A Authorized and Guideline Abstract for Mediators and Battle Decision Practitioners

Special Education In a Pandemic: A Legal and Guideline Summary for Mediators and Conflict Resolution Practitioners

The current Pandemic has created a crucial need for Conflict Resolution Practitioners, particularly mediators, to resolve and defuse conflict surrounding the education of children with disabilities. To help them accomplish this goal, mediators must update their knowledge of current legal standards in special education. This paper will help Conflict Resolution Practitioners update their expertise by summarizing current federal legal guidelines, laws and regulations, and expectations from Public Authorities, during the COVID-19 Pandemic. The paper will also review the expectations and rights of State Education Agencies, Local Education Agencies, and parents or guardians of children with disabilities during this unprecedented time.

Special Education In a Pandemic: A Legal and Guideline Summary for Mediators and Conflict Resolution Practitioners

HEATHER KENNEDY, CALIFORNIA STATE DOMINGUEZ HILLS

NCRP, INDEPENDENT STUDY, DOCTOR JARRETT
 

INTRODUCTION

The U.S. Department of Education (USED), Equal Opportunity Commission (EEOC), Office of Civil Rights (OCR), and other primary education and advocacy agencies all recognize the

challenges schools, school districts, children with disabilities and their families are facing during these unprecedented times of a pandemic. Each agency has issued advice and guidance on how to proceed during the epidemic. They have done this with the understanding that confusion, emotions, challenges, and frustrations experienced in Special Education are at an all-time high. Conflict Resolution Practitioners (CRP) are ideally situated to help those involved in disability education disputes and can do so by educating themselves on these changes and challenges.

At minimum, mediators and CRPs who work in Special Education or with the OCR are required to be “qualified and knowledgeable” of guidance, laws, and regulations (Wrightslaw, n.d.). It is more important than ever that those who serve in this role stay informed of these rules during the COVID-19 pandemic. CRPs must help conflicted parties to understand their rights and responsibilities, assist with communication, define challenges and interests and use creative problem solving so that children with disabilities are provided services to meet their educational needs and limit possible damage or knowledge loss (Feinberg, Beyer, J., & Moses 2002).

The following provides a summary of guidance for CRPs, especially mediators, that work for and with students with disabilities. This summary will outline rights, responsibilities, guidance changes, regulations, and laws during the COVID-19 pandemic for parents of students of disabilities, State Education Agencies (SEA), and Local Education Agencies (LEA). It will cover those students who have a Section 504 and IEP plans. As always, practitioners should refer to state laws and guidelines in which they practice.

SUMMARY OF GUIDANCE, RIGHTS, AND EXPECTATIONS

IEP & Section 504 Conflict Resolution During the Pandemic

The Office of Special Educations (OSEP) and the USED have consistently outlined their expectation of parents, SEAs, LEAs to work together during the pandemic. This teamwork requires frequent communication, a flexible mindset, and creativity (COPPA,2020). This collaboration can prevent most disagreements and provide an environment of civil discourse, especially when the current situation can lead to elevated emotions and miscommunication (USED, September 2020). Both LEAs and parents should track their efforts in this endeavor, which would prove useful if a disagreement escalates to more formal dispute resolution mechanisms (USED, June 2020).

In resolving disputes through mediation, parents and public agencies are not bound by specific timeframes for mediation by the Individual with Disabilities Education Act (IDEA) and the Rehabilitation ACT of 1973 Section 504 (504) (U.S. Department of Education, June 2020). While Section 504 does not require mediation as part of the state complaint process, it is considered best practice. The OCR often uses mediation as part of their “early complaint resolution” process (USED Office for Civil Rights, 2010). Many states have implemented a Section 504 mediation system.  It is important to remember that mediation is a voluntary and mutually agreed-upon process. Parents and public agencies can agree to their own timelines for mediation, as long as they remain reasonable. Mediation can also be conducted through video and telephone conferences (USED, June 2020).

IEP Specific

The IDEA 15-day timeline for an LEA convened resolution meeting and the 30-day resolution period after a filed due process complaint can be extended if both Parents and LEAs agree and if applicable state laws and regulations do not prevent it. The absence of SEA staff is not an exception to extending resolution timelines (USED, June 2020). The 7-day resolution meeting process timeline and 15-day resolution period for expedited disciplinary removal due process complaints cannot be extended (USED, June 2020).

504 Specific

Complaint procedure timelines with the OCR have not changed. State local grievance procedures for Section 504 should continue to follow the suggested U.S. OCR process timelines. However, states have some flexibility as long as parents and schools mutually agree to waive or postpone conflict resolution timelines, and timeframes remain reasonable. CRPs should refer to specific state OCR guidelines. (USED Office for Civil Rights, 2020) (USED Office for Civil Rights, 2010)

Expectations and Common Understanding for All Involved

The USED has declared that the “core tenants” of the IDEA and the Rehabilitation Act of 1973 remains intact (U.S. Secretary of Education Betsy Devos, 2020). Students with disabilities retain all their rights to access a Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) whether the school is closed, open, or virtual. (Education Law Center, 2020). Agencies, states, districts, and families must work together with flexibility and cooperation to find innovative and creative strategies to help students succeed and for schools to meet their legal obligations (U.S. Secretary of Education Betsy Devos, 2020). 

Authorized agencies have created their guidance on the following principles: Everyone’s health and safety must be taken under consideration in all decision making (U.S. Secretary of Education Betsy Devos, 2020). Every student with a disability must be provided special education and related services by the LEA and SEA (State Education Agency) to the “greatest extent possible” (USED, March 2020). Systems should not guide decisions for children with disabilities, but rather, each student’s interests and needs of the individual student should be considered (U.S. Secretary of Education Betsy Devos, 2020). Lastly, virtual and telephone meetings are welcome and encouraged by education governing agencies as alternate to in-person meetings required for IEP and Rehab 504 requirements and processes. This includes the allowance of digital and electronic communication and signatures (USED, June 2020).

In addition to federal guidance on students’ education and rights with disabilities, all persons and agencies involved with students with disabilities should review the state’s regulations and decisions. All recent guidance published since the pandemic’s start is informal and does not impose any additional requirements beyond existing law and regulations, and are not legally binding (Department of Education, March 2020). Authoritative agencies in their dispute decisions can consider the utilization of adherence to issued guidance.

A Parent’s Rights and Responsibilities IEP & 504

Parents or guardians continues to retain all rights: to be involved and informed of all education decisions and actions, have access to all due process rights, receive copies of procedural safeguards, give informed consent before initial evaluations and reevaluations, to choose (or not to) choose to sign a release of information, and to access student records and documents, even when schools are closed (Euban,2020) (USED, June 2020). Parents are not required to waive their FERPA and HIPPA rights and identifying information during the use of virtual and tele-practice service sessions (COPPA,2020) (USED Office for Civil Rights, 2020). Parents also have the right to track services missed due to COVID-19 impact and request compensatory services (National Center For Learning Disabilities, 2020).

In the case a student is infected with COVID-19 or placed under quarantine from exposure, the parent can request homebound instruction within the guidelines of their state OCR and SEA laws and procedures (Department of Education, March 2020). SEAs and LEAs must consider parental concerns and public health authorities’ input to decide if a student should attend school in person or virtually. If a student is virtual, then provisions should be provided to maintain their education services and accommodations (USED, June 2020).  

Public School Agencies and Teacher Rights & Responsibilities 

IEP & 504

When educational opportunities are available to the general population during school closure, an LEA must provide access to the same educational opportunities to students with disabilities (USED, March 2020). A school is required to be flexible and creative in meeting the needs of students with disabilities and providing FAPE. Schools and teachers should research and investigate ideas on how to provide services using alternative methods (USED, March 2020). During the phasing of in-person instruction, schools have the right to prioritize in-person education for students with disabilities. They must base those decisions on individualized determinations of student needs (USED Office for Civil Rights, 2020). Distance instruction must comply with the IDEA, Section 504, and the ADA. This can be done by providing alternate methods. While many hands-on services like occupational therapy may not be available through traditional means; it can be delivered virtually, online, by telephone, and with the use of outside provider services (USED, March 2020). 

For school absence or need of home instruction, special education and related services must be made available and provided to a student with a disability absent from school for an extended period due to COVID-19 infection and quarantine and high-risk students with complicated medical issues. This guidance is similar to homebound instruction due to a medical problem and ordered by a physician. Each state has its own guidelines on homebound instruction (Department of Education, March 2020). IEP teams and 504 personnel must track and determine if and to what extent compensatory services are needed to make up for any skill deficits that may have occurred due to changed education settings and circumstances (United States Department of Education, June 2020). Home instruction is part of IDEA and is considered best practice for 504 plans and ADA accommodations (Student Supports Services, n.d.) Each state has its own guidelines on homebound instruction and compensatory services (Department of Education, March 2020).

Schools are in danger of violating laws by not providing and implementing aids, services, or accommodations/ modifications that are part of the student’s IEP or Section 504. This includes providing written notice in a reasonable timeframe to initiate FAPE, evaluations, placement, and change to identification. They must also continue to provide procedural (United States Department of Education, 2020, June). While the OCR will consider all circumstances that require changes to plans, including the pandemic, schools must be creative and flexible to stay in compliance (United States Department of Education Office for Civil Rights, 2020).

Masks

CDC has issued guidance on mask-wearing for students with disabilities and those who provide services. They recommend that those who are deaf or hard of hearing should consider using transparent masks and covers. If that option is not available to increase the use of written communication methods (CDC, 2020). Teachers of students with disabilities should also consider the use of transparent face masks. The OCR acknowledges the challenges of some individuals with specific disabilities to wear a mask and how that may impede their education. Schools should make reasonable modifications in their policies in these circumstances (USED Office for Civil Rights, 2020).

 IEP

Distance Learning Plans

IEP teams are not required to create and include distance learning plans in an IEP in the case of a COVID-19 outbreak. However, creating an emergency plan is recommended because it would provide an opportunity for parents and a child’s school to agree and prepare for the child’s condition if an outbreak were to occur (Department of Education, March 2020).

Team meetings

Required participants of IEP meetings have not changed. A team member may be excused from the IEP team meeting if agreed by the parent in writing (United States Department of Education, September 2020). When a parent and an LEA IEP agrees to amend an IEP; they can do so in writing and without a formal meeting. However, written and agreed upon amendment cannot take the place of an annual IEP. 

Extended School Year (ESY)

In the case that ESY services did not occur due to the pandemic; an LEA will determine the possibility of makeup ESY services during the regular school year, such as school vacations (United States Department of Education, September 2020).

Initial Evaluations  

Public agencies can extend the IDEA Part B transition and initial evaluation timeline due to extenuating pandemic circumstances. This decision is required to be made on a case-by-case basis. Documentation of circumstances is required, and activities should be completed as soon as possible (United States Department of Education, July 2020). The USED understands it may be unreasonable to conduct face to face evaluations until health and safety factors allow it (U.S. Secretary of Education Betsy Devos, 2020). States can have their own timeframes for initial evaluation as long it complies with IDEA regulations (United States Department of Education, September 2020). A SEA may not give blanket extension determinations solely based on COVID-19 expectational circumstances (United States Department of Education, June 2020). A SEA should also be prepared to explain their decision rationale if required. 

Reevaluations

Due to the pandemic, some in-person evaluations may be conducted remotely, if possible, and as long as the evaluation consists of personal observation and conducted appropriately (United States Department of Education, September 2020). LEAs can consider and use alternate assessment tools and tests if they remain valid and reliable and are administered by knowledgeable and trained individuals. A reevaluation meeting consisting of only a review of existing evaluation data can occur without meeting the parent or parent consent (United States Department of Education, September 2020).

504

Local Education Agency Policy

To meet the requirements of Section 504 and Title II of the ADA, schools must make local decisions based on all students’ safety and provide FAPE. If states and districts make policy decisions that limit or reduce services for students with disabilities, they must ensure compliance with Section 504 laws and requirements; and consider the impact on students with disabilities. All decision-making for students with disabilities should be based on the individual needs of the child (United States Department of Education Office for Civil Rights, 2020).

Timeframes

The reasonable timeframe standard still stand for any Section 504 initiation, reviews, and evaluations. Typically, the OCR considers compliance according to IDEA and state regulations. Section 504 parents and schools can mutually agree to waive or postpone timelines (USED Office for Civil Rights, 2020).

Section 504 Revision

School districts that offer only distance learning do not need to revise 504 plans, and does not relieve LEAs of their legal obligations to comply with existing student plans. It is advised that school staff and parents work together to find ways to meet the student’s needs during COVID-19 challenges, which can include revising 504 plans (USED Office for Civil Rights, 2020).

CONCLUSION

Schools and families have fallen into a difficult situation managing the education of children with disabilities. They struggle to find creative ways and alternate solutions to provide needed services while staying in compliance with applicable laws and regulations. This situation has caused many to feel high stress, confusion, and frustration leading to conflict (National Center for Learning Disabilities.

2020). To manage this conflict, provide children with disabilities FAPE schools, families, and educators must work extra hard on their teamwork. This can be accomplished by focusing on five necessary actions: communication, using creativity, problem-solving, considering alternative ideas, and solution generation. These five actions are the core priorities of any dispute resolution process are now expected actions from Education and Civil Rights organizations.

Mediators and Conflict Resolution Practitioners are the best positioned to create environments that nurture these core priorities. Their training and experience to manage conflict in addition to yielding the tool of current knowledge in special education law and procedures can provide conditions forthis to occur. Conflict resolution practitioners and mediators, yielding the tool of current knowledge in special education law and procedures can provide environments for this to happen. The current legal and guidance summary provided in this paper will provide all invested and involved parties of children with disabilities to create the greatest possible outcome for these children and, hopefully, allow more conflicts to resolved in informal settings. This can result in quicker solutions than for the conflict to escalate to higher formal dispute processes. 

ENDNOTES

Center for Disease Control and Prevention (CDC). (2020, September 1). Operating schools  during COVID-19: Retrieved October 6, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcommunity%2Fschools-childcare%2Fguidance-for-schools.html

COPAA (2020). COVID-19 Q&A. Wrights Law.  https://www.wrightslaw.com/covid/2020.0331.COPAA.faq.IDEA.COVID.pdf

Education Law Center. (2020, August). Fact sheet; resolving special education disagreements. https://www.elc-pa.org/wp-content/uploads/2019/08/Resolving-Special-Ed-Disagreements-Rev-Aug-2019.pdf

Feinberg, E., Beyer, J., & Moses, P. (2002). Beyond mediation: Strategies for appropriate early dispute resolution in special education. Unpublished manuscript. National Center on Alternative Dispute Resolution (CADRE): Eugene, OR.  http://www.ideapartnership.org/documents/Beyond_Mediation2002.pdf

National Center for Learning Disabilities. (2020). Parent advocacy toolkit. https://www.ncld.org/wp-content/uploads/2020/06/2020-NCLD-Parent-Advocacy-Toolkit_v2.pdf

Student Supports Services. (n.d.) Section 504 online introductory course. https://sss.usf.edu/resources/topic/section504/504course/Module1/index.html

U.S. Secretary of Education Betsy Devos. (2020, April 27). Recommended waiver authority under section 3511(d)(4) of division A of the Coronavirus aid, relief and Economic Security ACT (CARES ACT). https://www2.ed.gov/documents/coronavirus/cares-waiver-report.pdf

Department of Education. (2020, March). Questions and answers on providing services to children with disabilities during the coronavirus disease 2019 outbreak. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf

United States Department of Education. (2020, March 21). Supplemental fact sheet addressing the risk of COVID-19 in preschool, elementary and secondary schools while serving children with disabilities.  https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf

United States Department of Education. (2020, March 16). Fact sheet: Addressing the risk of COVID-19 in schools while protecting the civil rights of students.  https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf

United States Department of Education (USED). (2020, June 30). QA procedural safeguards  https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-dispute-resolution-procedures-part-b.pdf

United States Department of Education (USED). (2020, June 22). Part B Dispute resolution in COVID-19 Environmental Q&A documents. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-dispute-resolution-procedures-part-b.pdf

United States Department of Education (USED). (2020, September 28). OSEP QA 20-10.  https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-provision-of-services-idea-part-b-09-28-2020.pdf.

United States Department of Education (USED). (2020, July 6). QA evaluation and assessment timeline. https://sites.ed.gov/idea/files/QA-Evaluation-Timeline-Part-C.pdf=

U.S. Department of Education’s Office for Civil Rights (2010). Guidelines for educators and administrators for implementing section 504 of the rehabilitation act of 1973: Subpart D.   https://saom.memberclicks.net/assets/MACSS/MACSS_Conferences/guidelines%20for%20implementing%20504.pdf

U.S. Department of Education Office for Civil Rights. (2020, September 28). Questions and answers for K-12 public schools in the current COVID-19 environment. https://www2.ed.gov/about/offices/list/ocr/docs/qa-covid-20200928.pdf

Wrightslaw. (n.d.) What is mediation? How does it Work?. FAQ about special education mediation. https://www.wrightslaw.com/advoc/articles/mediation_faq.htm