What Comes Next in Special Ed?
Over the past several months, many have asked what comes next in the field of special education, especially in the areas of child find, compensatory services, and the availability of COVID relief programs.
Child Find
School districts remain responsible for identifying, locating, and evaluating all children with disabilities who are in need of special education and related services throughout the pandemic. During this unprecedented national emergency, there are risks of both under- and over-identifying students with disabilities. School staff may wrongly assume that a child’s seeming inability to comprehend or focus on the curriculum is caused by an unidentified disability without careful inquiry or, conversely, believe that a child’s school performance is solely attributable to the unique circumstances raised by the pandemic. Each child’s circumstances are different.
In order to be eligible for special education and related services, however, each child must meet the definition of one or more specific categories of disability and need special education and related services as a result of his/her/their disability or disabilities. 34 CFR 300.8(a)(1). In other words, an eligible student with a disability needs an adaptation of the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and ensure access of the child to the general curriculum. 34 CFR 300.39(b)(3). A school district’s failure to properly identify a student with a disability could result in a hearing officer or ISBE ordering the school district to provide compensatory services to the student.
Ultimately, teams are going to have to made individual determinations about whether lack of participation in remote learning, attendance problems, or other difficulties are evidence of a disability – or are evidence that the child’s academic or behavioral issues are a result of a failure to access instruction. While we cannot use the pandemic as a shield from our child find obligations, we similarly must be careful that we are not attributing age-typical responses shared by a large number of students during the pandemic to a non-existent disability.
Compensatory Education
The United States Department of Education has advised that each student’s IEP team and, as appropriate, 504 team should decide whether a student needs compensatory services when schools resume normal operations. United States Department of Education, Supplemental Fact Sheet: Addressing the Risk of COVID-19 IN Preschool, Elementary and Secondary Schools (March 21, 2020). Historically, courts, state educational agencies, and hearing officers have ordered school districts to provide compensatory services as a remedy when a school district has failed to identify and/or provide appropriate services to a student with a disability. The purpose of the ordered compensatory services is to place the student in the position that he/she/they would be in had the district provided the appropriate services in the first place. In the absence of a formal finding from a court, state educational agency, or hearing officer, the focus of each IEP meeting should remain whether the child’s IEP is reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances, which includes those circumstances that have arisen due to COVID-19.
Therefore, the vocabulary we use is important. The fact that the federal and state guidance during the pandemic may have referred to compensatory educational services, that does not mean that all students are automatically owed these services – or that “compensatory” is the correct term to describe the services. IEP teams need to be clear that they are not confusing the legal remedy of compensatory services with regular FAPE services, COVID relief, programs, extended school year services, or other resources made available to IEP students. Compensatory services are for a denial of FAPE, not to make up for the possibility that remote learning services may have been non-preferred.
Preparing for COVID Relief Programming
Some school districts anticipate providing summer “COVID relief” programs to its students. As the United States Department of Education stated in March 2020, schools “must ensure that students with disabilities also have equal access to the same opportunities[.]” In other words, any COVID relief opportunities and programs must be offered to the entire student body, including students with disabilities. To that end, school district must ensure that IEP students and their needs are considered in planning for these programs.