IndyBar: Schools’ Obligations and Special Education in the Age of COVID-19

By Catherine Michael, Connell Michael Kerr LLP

The world has changed and the world of public education has been forced to change along with it. From using hybrid models of both in-school and virtual instruction, alternative day schedules, to school districts that have foregone offering any in-person instruction at all, the changes to public education are varied. While these changes affect most of us with children of school age, they deeply and significantly affect parents of children who have special needs in terms of education or health. Parents of children with challenges are trying to understand their options and what requirements are still in place to ensure children are provided the educational services they desperately need.

Many parents are struggling in situations with a child who may not be capable of wearing a mask or understanding the social distancing requirements. Parents whose children are in school districts that have gone entirely virtual are expressing frustration that their children cannot access the curriculum. In some cases, a child with a reading disability, such as dyslexia, is not able to read the materials that are being sent home, or a child with a cognitive disability may not be able to access a computer at all. Lastly, a big question on many parents’ minds is how they can make up for what their child has missed from speech therapy to reading instruction and what they can ask for from the school.

The reassuring thing for families is that while the world of education has changed, the laws as to what must be provided for children with special needs have not. The Individuals with Disabilities Education Act (IDEA) is a federal law that requires appropriate education plans and supports for children with special needs. Its Indiana-based counterpart is Article 7 of the Indiana Code. The U.S. Department of Education has been clear to the states that there is no reason to waive the requirements of the federal law and that schools are still expected to provide appropriate services with necessary accommodations — they simply need to do it in a new way. Both IDEA and Article 7 require that schools have appropriate programs in place for students with special needs and allow parents to file educational due process actions with the state if they do not. Section 504 of the Rehabilitation Act of 1973 is another federal law that provides accommodations, and like the Americans with Disabilities Act, it ensures that students who need accommodations, including students who cannot wear a mask or use a computer, have reasonable accommodations that allow them to access public education.

For special needs students in virtual programs, schools must ensure they have access to technology and the internet. For some families this means the school must supply the laptop and reimburse internet expenses. For students who struggle with reading, schools need to use technologies such as FaceTime or Zoom, to directly interface with these students for one-to-one teaching, provide audiobooks, provide instructional (versus grade level) materials and engage in technology that provides educational games for those students. Some students may need paper copies of books, assignments and instructions read aloud and a lot more in terms of the one-to-one interaction than others. If a child needs this to advance educationally, the school is obligated by law to provide it. In some situations, if a school is not able to serve a child due to their intensive needs, it would mean providing a private program for the student. Some school districts are excelling during this time, making great use of technology and staff who choose to stay at home but still want to teach. They are engaging in small group teaching models via Zoom, one-to-one teaching and utilizing a variety of software programs to make learning fun and as structured as possible. Other schools still have a lot of catching up to do.

In terms of accommodations for students with special needs with an in-person school setting, it can mean a variety of things, depending on what is appropriate for that child. It can mean behavioral training to make wearing the mask doable, it can mean providing the child a facial shield instead, or if neither of those is feasible it can mean providing the child with a one-to-one aide in a fitted N95 or other mask to work with the child and ensure social distancing.

The key is that schools are required to help their students with challenges access the system just as their non-disabled peers are able to do. Parents need to communicate with their school system clearly their child’s needs and what they need to ensure that they are met. •