Special Education Timelines During Quarantine

 

Avoiding the spread of disease is obviously the most important consideration, these days, but life hasn't ground to a halt; it's just changed. Everyone is doing what they can, right now, to curtail the spread of disease so that we can all live our lives in peace, which doesn't mean stopping the living of lives while we ride this out.

 

The whole point of the measures we're all collectively taking as a planet right now is to preserve life, liberty, and the pursuit of happiness. However, with all of these sudden changes, there is a lot up in the air, right now, with respect to our students with disabilities who require services during extended breaks so as not to regress in their learning.

 

Even more concerning are our students with special needs that affect their behaviors who are cooped up at home with their parents, who are likely on the verge, already, without any behavioral support services. Those parents are at an increased risk of developing Post-Traumatic Stress Disorder (PTSD) from this whole shelter in place situation.

 

There are funny memes going around right now about parents trying to home-school their general education children and learning to appreciate their general education teachers, but nobody is making a meme about the mom of an autistic young woman who enjoys regular outings into the community as part of her special education program and is melting down on a regular basis, now, because she can't leave the house, go to school, hang out with friends, or visit her grandmother in a nursing home. These are the families that are already slipping into crisis while all the rest of us are riding this out and complaining about inconveniences.

 

For our students with developmental disabilities who require ongoing services in order to make reasonable strides towards a Free and Appropriate Public Education (FAPE), disruptions in services mean developmental stagnation and regression. That means the current school closures are particularly impactful.

 

Staying at home is important. If you can stay at home, you should. But, as millions of Americans figure out that they can actually still do their jobs, or at least a significant portion of their jobs, from home, and continue to work remotely, our society is finding a way to adapt on the fly to this situation in ways heretofore not possible because of our technology.

 

As awesome as that is for many private and public entities that are actively figuring this out, one area in which it has evidently not yet been figured out is special education services, or at least a triage solution for our kiddos who will regress, lose significant ground, and miss critical windows of developmental opportunity in the absence of ongoing special education services. Once again, our kids with the most demanding special needs are the last ones to get consideration by stakeholders in this situation.

 

I've been doing this long enough to know how the system tends to respond to certain things. There are predictable patterns in the behaviors of public education agency personnel in response to certain types of situational factors.

 

Sometimes, when the people in charge don't know what to do, you just have to give them suggestions about what they could do to get them jump-started. It's something similar to “Bystander Effect.”

 

In situations in which the Bystander Effect, occurs, if there are lots of people around when something horrible happens, everybody expects someone else to step up with a solution, so no one does anything. When there isn't anyone else to respond or just a few people, individuals are more likely to respond in the moment to a crisis.

 

Here, it appears that everyone is frozen in place waiting for someone else to do something when it comes to meeting the needs of our students with special needs during this current crisis. Rather than waiting for someone to step up and do something, I'm choosing to do what science says we should do when the Bystander Effect has gripped the crowd and everyone seems frozen in place – impose structure.

 

Imposing structure to overcome something like this isn't about telling people what to do so much as to signal their brains that the time of waiting for someone else to do something is over and they need to act, as well. Right now. Proposing a solution in a situation like this isn't about cramming a particular agenda down anyone's throat; it's about snapping people out of it so they stop looking at the car crash by the side of the road as they slowly drive by and actually stop their car to get out and help.

 

We can't ignore the needs of our students who are at risk of regression and loss of windows of developmental opportunity to learn because of factors beyond their control. These students are the least able to do anything about the deprivations they are experiencing at the moment. They are at our mercy and we can't afford to be bouncing off of each other like a bunch of hysterical ninnies in panic because we don't know what to do to help them. We do know what to do. Each child in this situation needs his/her respective village to get its act together and work in a coordinated fashion.

 

So, in the interest of imposing some structure onto the conversation and planning that now needs to happen, here's what I am proposing for our students who may need or who already receive special education, so as to prevent a denial of FAPE:

 

1. Pending Referrals & Assessments
   1. Child Find [34 CFR Sec. 300.111] – This one is going to be difficult because most public schools are terrible at child find, in general, and most parents don't even know about it.  
      1. Teachers identifying the kids who may need to be referred for special education assessment on the basis of suspected disability will be even more difficult under the current circumstances, depending on how school officials are providing instruction, if at all, during this time of sheltering in place.
      2. Parents may have increased cause for suspecting disabilities when they attempt to assist their children with their school work at home and discover their kids have challenges in processing certain types of information, but they aren't necessarily expert enough to recognize those challenges as evidence of suspected disability. Further, emotional trauma can cause a child to become eligible for special education under the Emotional Disturbance (ED) category. Parents may find it necessary to refer their children for special education evaluation if they perceive challenges with mastering certain types of concepts in their children while attempting to assist them at home with instruction and/or if their children experience emotional trauma that interferes with their access to education now or upon returning to school once it is safe to do so, again.
   2. Pending Referrals - None of the timelines applicable to referrals for special education assessments plans should be disrupted by the current state of affairs. The only thing that needs to happen in response to any referral is the provision of an assessment plan, pursuant to 34 CFR Sec. 300.9 and 300.300. This is a document-driven administrative process. This has no in-person requirements that would otherwise delay processing. Given that so many people in administrative positions are able to still do their jobs if given the proper tools, there is no physical barrier to carrying out the duties of this step of the process and, therefore, there should be no delay in the applicable timelines just because of the current shelter in place situation.
      1. If a referral was made in writing prior to a student's school shutting down, an assessment plan should still be provided to the parents within the mandated timeline. Erring by one to five business days may be understandably forgivable given the circumstances and may result in a procedural violation that nonetheless results in harmless error, so parents shouldn't be threatening lawsuits over something like this.
      2. If a referral is submitted in writing via a manner that is accessible by school personnel, such as via email or through a web portal, during this period of sheltering in place, the local education agency should still act on the referral within the applicable mandated timeline. As a purely document-driven administrative process, this isn't going to put human beings into physical contact with each other in way that holds up the timeline for the provision of an assessment plan. Parents who want to make such referrals can use our free form letter generator on our site.
   3. Pending Assessments – If a referral for assessment has already been made, an assessment plan has already been signed by a parent, and now the assessment timeline is ticking down, some public education agencies may declare that the timeline is disrupted by the break from instruction due to everyone staying home and sheltering in place. However, that's not entirely true. For example, the assessment timelines are disrupted under California law for regularly scheduled school breaks and vacations of five or more days, but this shelter in place business isn't regularly scheduled or a vacation.
      1. Understand that assessment, whether it's an initial evaluation or a re-evaluation, is considered a related service pursuant to 34 CFR Sec. 300.34. Both 34 CFR Sec. 300.103 and 300.323(c) make clear that a related service cannot be subjected to any unnecessary delays as a matter of legal procedure, as this would delay the provision of services according to an IEP, and, thus, deny a FAPE.
         1. Unnecessary delays include sitting around and freaking out instead of acting. If public education agency officials claim to be working on a solution and weeks go by, they're not working on a solution; they're freaking out and wasting everyone's time. The Texas Education Agency (TEA) has already set up mechanisms to keep its complaint and due process systems going; evidently it understands that each State is ultimately responsible for making sure its students get educated, even if their local education agencies waffle under the pressure. If State education agencies can keep their systems going by having their personnel work from home on these administrative duties, the schools they regulate have no excuse for not doing the same, and I suspect State officials will see it that way, too.
         2. Necessary delays would include taking measures in order to otherwise comply with the regulations under the current unique circumstances. If it takes a week or two to put the necessary resources into place, that's forgivable. Any longer than that without additional extenuating circumstances and all you've got is poor leadership within the agency creating unnecessary, and potentially actionable, delays.
      2. It is entirely possible to assess a student who is not medically fragile using the everyday preventative actions being recommended by the Centers for Disease Control (CDC).
         1. Most special education assessments require at least some standardized testing that is administered in a 1:1 testing situation. An assessor can arrange to conduct standardized assessments in a 1:1 testing location at a school site via prior arrangement without risking an entire classroom or exposing an assessor to either an entire classroom of potentially infected students or household of potentially infected family members of the student being assessed.
         2. Acceptable reasons for delays of any component of assessment in these instances can include illness within the student's family or that of the assessor that puts them at risk of exposing each other to COVID-19 and a shortage of other assessors to otherwise conduct the assessments or other unique circumstances that might otherwise make a substitute assessor educationally inappropriate, but the delay should not be greater than what the situation actually requires based on what is known at the time.
         3. Public education agencies may need to enlist the support of assessors in the local community to stay on top of assessments as much as possible, and States may need to waive non-public agency licensing requirements under the current circumstances just to make sure everybody who needs ongoing speech/language services, for example, actually gets it.
         4. Classroom observations are going to be the obvious problem for many assessments. Even if an assessor comes to observe a student who is sheltering in place at home, that will not be entirely representative of how that same student functions in a classroom under normal circumstances. It may make more sense to wait until the student returns to school, but the assessment timeline may be ticking down while the child re-acclimates to the school setting, which could include emotional factors that were not present before but which could continue and are, therefore, relevant to the assessment process. Consultations with teachers and parents regarding in-class performance before and after quarantine will become imperative to supply accurate information for the assessment report. Regardless of how a student functioned in the classroom before quarantine, going forward post-quarantine is going to look and feel different for everybody after all of this. Post-quarantine classroom observation data is probably going to be more useful than pre-quarantine classroom observation data.
         5. In an effort to achieve compliance to the degree possible, but with the understanding that some unavoidable delays in the assessment process can legitimately occur because of the current situation, I am strongly recommending to parents and public education officials that short-term individualized response-to-crisis assessment schedules be developed using available technologies to arrive at a plan for each student who is pending assessment so that parents know what to expect by when, school personnel know how to allocate assessment resources, and the process can be kept moving along in a relatively timely manner so that, by the time students return to school, if they need an IEP, the IEP team can have an appropriate one in place for them upon their return. Otherwise, the team can finalize the assessment process once the student returns to school so that IEP team decisions can then be made as intended.
         6. It may be necessary for parents to negotiate timeline extensions with their local education agencies as part of an individualized response-to-crisis assessment schedule, but I am strongly advising parents against agreeing to any such extensions without also including something in writing that describes exactly what is being delayed that necessitates such an extension. For example, if all of the standardized testing can be conducted prior to a student returning to school, but the IEP team agrees that a classroom observation shouldn't happen until two weeks after the student returns, then the team can agree to keep the assessment process open until the observations can be done, shortly after which the report can be finalized and the IEP team can convene to discuss the results. It may be appropriate for some students in situations like these to complete the evaluation report during this period of quarantine based on what is available so that an appropriate IEP offer is made to the student as soon as possible, with the understanding that classroom observation data will be collected once the student has settled back in and may be used to amend the IEP if it reveals something not already otherwise identified by all the other assessment data on record. So long as parents and schools document their arrangements to get through pending assessments during this situation and the parents give informed consent to any such alternative arrangements, parents will not be inclined to file lawsuits, nor will they have the evidence necessary to argue against delays to which they have, knowingly and with full understanding, consented. Taking these steps will reduce a lot of anxiety about loose ends and what comes next for everybody involved.
2. Pending IEP meetings – This stands to be one of the biggest procedural challenges simply because of all the IEP meetings that were already on calendar and subject to mandatory timelines at the time that everyone started sheltering in place, but it is still nonetheless one of the easiest situations to solve. 34 CFR Sec. 300.322(c) and Sec. 300.328 require that local education agencies facilitate meaningful parent participation in the IEP meeting process, even if that means using alternative means of participating other than attending meetings in person, such as telephone and video conferencing. While some delay as education agencies get their people set up with the technologies necessary to work this way from home might be within reason, this isn't something that should cause an IEP meeting scheduled for two weeks from now from not being held at its originally scheduled time without IEP team member agreement. It doesn't take that much technology to do a conference call and email the paperwork to meeting participants. The law already provides for accommodating the fact that parents and educators can't always meet in person to conduct IEP meetings, and those laws remain in force, right now.
3. IEP implementation – This is the grand-daddy of all special education issues facing families of students with special needs, right now. And, it's a hotbed for lawsuits if local education agencies don't respond appropriately to the situation.
   1. Online learning options – These options are being proposed for general education students and will work for many special education students, as well, at least in some areas of learning.
      1. Where it will usually not work is with students who have:
         1. Poor task initiation, task maintenance, and/or task completion
         2. Impaired executive functioning and/or attention
         3. Severely delayed communication skills
         4. Severely delayed cognitive development
         5. Vision loss or severe visual disabilities that prevent them from accessing what is on the screen (for students with these challenges who are also receiving speech/language services via a virtual model, it might still work so long as the therapist can see their mouths when they speak, depending on the nature of the therapy)
         6. The forms it can take include:
            1. Video conferencing with teachers and/or therapists
            2. Using online learning games and apps
            3. Conducting research
            4. Watching educational videos
      2. Direct in-home instruction – It may be necessary for teachers to provide home/hospital instruction to students at serious risk of regression on a 1:1 basis in their homes. The law already provides for this option, as well. If it is medically inadvisable for a child on an IEP to go to school, home/hospital is an appropriate placement option under normal circumstances. However, it's probably fair to say that a judge would not find the current times normal and that every special education student cannot be reasonably provided with in-home 1:1 instruction. This is going to be the area in which education agencies are most likely to get themselves into trouble. If there is any way for teaching staff to use the everyday preventative actions recommended by the CDC to provide 1:1 instruction to those students most at risk of regression, it should be done. Small group instruction of no more than 8 students is still achievable, even if done for fewer hours of the day than normal. One teacher could instruct two or three different groups of no more than 8 students for a couple of hours each day in rotation at a school site and manage to stave off regression and actually continue progress towards FAPE. Individual and small group therapies could also be provided while special education students are on campus, rotating students out so that there are never more than ten people in one place at a time.
      3. Transportation & Other Related Services – Some related services may become unnecessary during alternative teaching arrangements. For example, a student may not need a 1:1 behavior aide to receive 1:1 in-home instruction, but would totally need the aide at school while trying to participate among all the other students. Transportation may not be needed for students who are being served at home but would be needed for those who need to travel to a school site for any direct instruction and/or therapies that cannot be provided any other way. If alternative arrangements are made to serve special education students at risk of significantly regressing while sheltering in place, unusual but temporary transportation services may become necessary in order to implement such an alternative plan. Local education agencies cannot place the burden on parents to transport their children with special needs to school for alternative services during this time, particularly if parents have no way of transporting them. The whole point of special education transportation as a related service is to overcome that very obstacle. If special arrangements have to be made to prevent a student with an IEP from regressing during these current times, those arrangements will have to, by necessity, include an offer of transportation services if the parents cannot otherwise transport the student. Whether or not such related services are necessary really comes down to the individual needs of the child, as always. It's not like somebody bombed the bus lot; the vehicles are there and the drivers still need their jobs, so, as long as everyone follows proper sanitation and social distancing protocols, transportation services can be provided.

This is by no means a comprehensive plan. That's more than one advocate sitting at home on lock-down can develop. It will take State agencies working with their local education agencies to come up with a comprehensive plan. At this point, I have to believe that people are scrambling behind the scenes all over the place to come up with a plan, but the public is still waiting to hear what it is. The families I represent are sitting at home wondering what is going to happen over the next few months. All the information about the schools going around is general in nature and none of it is specific to their children with special education needs. 

 

To the extent that what I've shared can impose some structure on the dialog that needs to be happening right now between parents and special educators, my contribution, here, is food for thought. It's not my intent, here, to tell anybody what to do. My intent is to break the frozen stance of this quasi-Bystander Effect and stop waiting for someone else to say or do something. 

 

In a real Bystander Effect situation, if you're in a crowd and someone suddenly falls to the ground or otherwise experience harm that requires intervention, most people will freeze and look around to see if anybody else is going to do something. In those moments, people who understand what is really happening have to snap out of it and do something. 

 

The guidance that psychologists are given if we find ourselves in such a situation is to point at the person right in front of us and say, “You! Call 911!” then approach the person in trouble with appropriate caution and, if they are conscious, tell them help is on the way. There's something magically triggering about issue a command like that because, unless the person you just commanded to make the call has no phone, the call will be made. Suddenly, instead of frozen with uncertainty, that person has a job to do. There's an action he/she can take to make things move in the right direction.

 

Initially, until someone barks a command, everybody is either a deer in headlights or otherwise assumes someone else will take care of it and don't think they have a role to play. There's something about barking that initial command that gets everybody working together in unison and it usually doesn't take more than that. Humans just sometimes need an environmental cue before we know whether, when, and how to act. 

 

So, that's basically what I'm doing. Me barking “Call 911!” to someone standing on the other side of a fallen human body isn't me being bossy. The suggestions I've made in this post isn't me being bossy, either. This is my effort snap all the stakeholders and decision makers out of it so they aren't standing in a virtual crowd waiting for someone else to say or do something. It's now been said, public education system. So act.