By Bernard A. Krooks and Marion M. Walsh
The COVID-19 pandemic has made education more challenging than ever. Schools are operating remotely and may continue to do so for the foreseeable future. In fact, no one knows what public education will look like in September. In this age of remote instruction, all involved face unprecedented uncertainty and stress.
Yet the pandemic has had a disproportionate impact on students with learning or emotional disabilities. The transition to remote instruction has left many with inappropriate programming or services, the inability to access instruction and a feeling of isolation. Parents may feel too overwhelmed to assist and often lack the training to do so.
In these times, parent advocacy is more important than ever. The Individuals with Disabilities Education Act (IDEA) mandates that each student with a disability receive a free appropriate public education (FAPE). The U.S. Department of Education has confirmed the entitlement to a FAPE during the COVID-19 emergency. The New York State Education Department has stated that students with disabilities must receive continuity of learning and, to the greatest extent possible, the special education and related services identified in the student’s individualized education program (IEP). Thus, even though school buildings are not open, educational and therapeutic services must continue in a way that works for each student.
School districts will be seeking increased flexibility due to the current crisis. That’s why it is particularly important for parents to be vigilant and proactive in working on an appropriate program for your child—whether a Kindergartener or a young adult-- for now and for next year.
Ten Tips for Strong and Informed Advocacy
1. Review and Document Progress this Year. During the quarantine, you may have had more time with your child and have a better sense of how they are doing in school. Monitor progress in all areas. Document what is working and not working and what services the school district may not have provided. Check whether the district has completed evaluations in the past three years.
2. Review IEP. Ensure you have a copy of your child’s IEP. If you do not, request it from the school district. Ensure the IEP is accurate and reflects your child’s needs. Take the time to ensure that present levels of educational achievement and functional performance are correct and updated.
3. Make Sure you Understand Program and Services. Make sure you understand the IEP. What is the class size for your student? Will she have an appropriate amount of interaction with non-disabled peers? Consider whether the frequency of related services, such as speech or counseling, is appropriate.
4. Examine Annual Goals. Every IEP contains goals to address every area of need. Goals drive the programming and should be specific, measurable, achievable, relevant and timely. Make sure the goals are appropriately ambitious and not recycled from the year before.
5. Review Needed Transition Services. If your child is turning 15 this year, the IEP must contain appropriate transition services, meaning the services needed to transition to post-secondary schooling or programming and independent living.
6. Be Realistic in Expectations. A FAPE requires an appropriate education—which means that the IEP must be reasonably calculated for educational benefits in light of a child’s circumstances. In 2017, the U.S. Supreme Court clarified that progress just above minimal is not enough to show a FAPE. Yet the IDEA does not require a school district to provide services to maximize a student’s potential. So for effective advocacy, focus on what is appropriate.
7. Consider Whether Your Child Needs Increased services. Make sure the IEP reflects any changes brought on by the quarantine. Thus, if your child has regressed or is showing increased anxiety, the school district should document this on the IEP.
8. Make Sure the IEP Reflects Parental Perspective. If you disagree with the IEP, make sure the comments reflect this. Document any concerns in writing.
9. If Your Child Does not have an IEP, Consider Referral. If you believe your child has a disability that is impacting his education, refer your student to the Committee on Special Education for evaluations to determine eligibility. You may also refer your child for a Section 504 plan if you think your child needs accommodations but not special education services. School districts have an obligation to identify and evaluate students who may have a disability.
10. Consider Legal Representation if You Need Help. If you are unclear about your student’s rights and the responsibility of your school district, it is recommended to seek legal representation from an experienced attorney.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven years. He is past President of the National Academy of Elder Law Attorneys (NAELA) and past President of the New York Chapter of NAELA. Mr. Krooks has also served as chair of the Elder Law Section of the New York State Bar Association. He has been selected as a “New York Super Lawyer” since 2006. Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.elderlawnewyork.com.
Marion M. Walsh, Esq., is a partner of Littman Krooks LLP who leads the special education department. She serves on the Board of Directors of NAMI Westchester and is a past honoree from Westchester Jewish Community Services, as advocate of the year.