Letter to Governor Newsom re Supporting Delivery of Special Education Services Upon Schools Reopening

August 21, 2020

Re: Supporting Delivery of Special Education Services for Children with Disabilities Upon Schools Reopening

Dear Governor Newsom, Superintendent Thurmond, President pro Tempore Atkins and Speaker Rendon:

We appreciate your leadership in this time of unprecedented crisis and your continued commitment to ensuring the health and well-being of all the residents of the state, including those who are most at-risk to the effects of COVID-19.

As school districts start thinking about bringing students back into schools, the State of California must plan with great care how to support students with disabilities and to meet their unique and urgent needs. California must follow the lead of other states that have similarly established disabled students’ rights to services and supports to make up for services not provided during period of remote instruction and support, student regression, or a student’s failure to make expected progress as indicated in the student’s IEP. [1]

Provided below is a summary of some of the most urgent needs facing students with disabilities as they transition back to schools in the aftermath of the shelter in place order, together with policy recommendations to address these needs. The Disability Rights Education and Defense Fund (“DREDF”) administered a survey to parents of students with disabilities in California about their preferences for policies and practices around the delivery of instruction, hygiene, IEP meetings, and compensatory education when schools reopen. The over 400 survey responses have been incorporated into our policy recommendations and produced on page 9 with additional recommendations.

The undersigned organizations urge the Administration and the California State Legislature to adopt these recommendations as part of California’s COVID-19 response and relief efforts.

Our Most At-risk Children

Nearly 800,000 children with disabilities live in California. Under ordinary circumstances, disabled students are an at-risk population. Students with disabilities in California are disproportionately low income. Disabled students are less likely to graduate high school. They experience a suspension rate that is nearly almost double the statewide average, and a high rate of absenteeism.[2]

Many disabled students are in the foster care or juvenile justice system, are homeless, African American,[3] Native American, English language learners, and low income. These additional statuses exacerbate their vulnerability exponentially.

Already lagging behind and struggling, not only with academics but with behavior, speech, motor skills and other areas essential to their long-term success, this group faces unique challenges during the COVID-19 pandemic. With distance learning the primary option, children with disabilities are at greater risk of losing out on educational opportunities compared to children without disabilities. This is because services and supports for students with disabilities, such as occupational therapy, require frequent in-person interaction with service providers.

Experience During Shelter in Place

During the shelter in place, local education agencies, county offices of education districts and regional centers have struggled to fund and distribute technology and connectivity to all children to begin distance learning.  Children with Individualized Education Programs (IEPs) and Individual Family Service Plans (IFSPs) have received few, if any, of their state and federally mandated special education and early intervention services while schools and regional centers were closed as a result of COVID-19.

Districts across California have unilaterally changed children’s placements and IEP/IFSP services without notice to parents.  Parents have not received the essential federally mandated right to meaningful parental participation in deciding what services, technology, and accommodations children with disabilities required in order to access their education.

As a result, children with behavioral, medical, and communication needs have been denied access to specialized instruction, and related services, adaptive equipment and assistive technology.  Children with severe communication delays have been deprived of their speech and language therapy and the ability to interact with other children.

Children with disabilities are falling behind and experiencing regression.[4] The State must support these children as they transition back to schools, and take affirmative steps to ensure that they catch up.

Actions to Ensure Comprehensive and Compensatory Support of Children with Disabilities Once Schools and Regional Centers Reopen and the Stay at Home Order is Lifted

Recommendation No. 1: Ensure Access to Compensatory Education for All Students with IEPs and IFSPs

Because many IEP/IFSP services were unavailable during state and county shelter in place orders (e.g., special day class programs; center based programs), difficult to provide or not provided through distance learning (e.g. physical or occupational therapy), and of a lesser quality when not shared within a group or classroom setting (e.g., social skills instruction), the State must make affirmative efforts to protect the rights of these children to compensatory services and to make up for these losses.

Under federal law, children with disabilities are eligible for compensatory services needed to make up for any failures to provide an appropriate education. When a formal complaint is filed by a parent seeking compensatory services, typically the parent must demonstrate regression or lost skills. This process places a significant burden upon the parent to prove the harm to their child, generally without adequate data collected by the school or regional center or the tools or professional qualifications required to measure progress. This process can take significant time, which translates into additional months that children are not receiving these compensatory services.  Further, requiring families to undertake extensive legal action imposes unnecessary cost and delay for both parents and the state, and a further break-down of relationships between districts/regional centers and families. 

In order to prevent this unnecessary harm, we recommend that state officials take the following action:

1. Issue an Executive Order directing school districts to offer compensatory services to all children with disabilities, including those children whose districts did not provide distance learning opportunities to any students.[5]
   1. Any parent who opts in should be entitled to compensatory services, regardless of whether they file a complaint or can prove regression. Regression should be presumed.
   2. Any parent who opts in should be entitled to extend compensatory services into a second year of such services, should one year of services be insufficient to help the child recoup, or if the services are not provided.[6]
   3. Such services should extend past age 22 if the student needs them to make up for the education lost.
   4. Students should have the option to receive compensatory education services during the regular school day, before or after school, over the summer, and during holiday breaks.[7]
2. Issue an Executive Order requiring school districts and regional centers to develop uniform assessment procedures to determine the type and extent of compensatory services to which disabled students are entitled, including:
   1. A structured interview with parents and teachers within 30 days of the termination of applicable shelter in place orders to determine the extent of regression.  The interview questions for parents should be in plain language and should be sent to the parent ahead of time, together with the contact information for each parent’s local Parent Training and Information Center (PTI).
   2. A review of the child’s current level of performance within 30 days of the stay at home order being lifted, using a variety of assessment tools to gather relevant functional, developmental, and academic information about the child. Such tools include: parent and teacher input; brief observation of the student; and measuring of each child’s progress toward their IEP goals (with comparison to their progress prior to the shelter in place, and their anticipated progress had there been no shelter in place).
   3. For children who demonstrate significant regression, a full re-evaluation in all areas of eligibility.

Recommendation No. 2: Ensure Access to Extended School Year for All Students with IEPs and IFSPs

Because IEP/IFSP services have been unavailable or sharply diminished during the pandemic, the State must take affirmative steps to prevent further regression by ensuring access to an Extended School Year (ESY).

Under federal law, students are entitled to ESY if this program is necessary to their receipt of an appropriate education.[8]  As with the need to prove regression for compensatory education services, this places a significant burden upon the parent, takes time, and requires parents to undertake legal action, causing further delays. 

In order to prevent this unnecessary harm, we recommend that state officials take the following action:

1. Issue an Executive Order directing school districts to offer ESY to all children with disabilities, including those children whose districts did not provide distance learning opportunities to any students.
   1. Any parent who opts in should be entitled to ESY.
   2. The number of minutes and the services that will be provided may be reached through an individualized fact-specific determination similar to the assessment plan in Recommendation No. 1, element 2.

Recommendation No. 3: Suspend expulsion and suspension policies and implement mechanisms to support reintegration of students with behavioral, emotional, and mental health disabilities.

All students, especially students with disabilities, will struggle to return to the educational environment.  Students with behavioral and mental health issues will struggle with this transition and students previously without such issues may develop them.  Attending school with the stress of social distancing protocols and the fear of COVID-19 will likely further exacerbate behavior and mental health struggles. Due to implicit bias and other forms of bias, the challenges for Black, Latinx and Native students with disabilities who are already disproportionately disciplined and whose families and communities are being hit the hardest by the virus are even greater now. In order to smooth this transition for all students, including students with disabilities, we recommend that state officials take the following action:

Issue an Executive Order:

1. Suspending expulsion and suspension policies for all students when schools reopen for six months except where inconsistent with Section 4141 of the Gun Free Schools Act.
2. Suspending districts’ ability to discipline students during virtual instruction by excluding students from virtual instruction or prohibiting students from participating in class discussion, logging on to lectures, and participating in group projects.
3. Directing school districts to hold SST meetings and offer special education assessments and behavior intervention plans (BIPs) for students without IEPs and 504 plans who exhibit aggressive behaviors.
4. Directing school districts to utilize and/or develop evidence-based approaches in lieu of suspensions and expulsions, such as restorative justice, positive behavioral interventions and supports (PBIS), evidence-based therapy modalities, Dialectical Behavior Therapy, Trauma-Focused Cognitive Behavior Therapy, and mindfulness.
5. Prohibiting schools from requiring students who otherwise would be suspended or expelled to remain home and participate in school via virtual tools.
6. Suspending districts’ ability to place students with disabilities into interim alternative educational settings (IAES) for six months.
7. Directing districts to conduct assessments and provide appropriate services and supports for children with behavior difficulties and mental health issues who need extra support to transition back to school.
   1. Such assessments should be conducted at least twiceonce before the district reopens, to develop a plan for reintroducing the student to the educational environment, and again 30 days after school has started to address ongoing behavior and mental health struggles.
   2. The assessment prior to reopening should include a structured interview with parents similar to that described in Recommendation No.1, element 2, and a review of the student’s Behavior Intervention Plan (BIP). The assessment should consider and implement additional behavior services and mental health services and supports, including additional counseling. The interview questions for parents should be in plain language and should be sent to the parent ahead of time, together with the BIP.
   3. The assessment following reopening and reintegration of the student into the school environment should determine additional supports and services students need to address ongoing problem behaviors and mental health struggles. The district should use a variety of assessment tools to gather relevant functional, developmental, and academic information about the child, including: parent and teacher input, brief observation of the student, and other informal measurements to develop present levels of performance.
   4. Where behaviors and mental health struggles are severe, the district should conduct a Functional Behavioral Assessment and/or Educationally Related Mental Health Services assessment.

Recommendation No. 4: Require districts to provide Part B services to all students with disabilities, including students who are transitioning from Part C to Part B of the IDEA.

During the State’s shelter in place order, children with disabilities have aged out of eligibility for IDEA Part C early intervention services and may be eligible for Part B services from their district. The IDEA requires districts to ensure that 100% of the children enrolled in Part C and eligible for Part B have Part B services in place by each child’s third birthday. Because of the shelter in place orders, many districts have not conducted initial evaluations by the child’s third birthday to determine Part B eligibility and develop a transition plan. Districts have also not conducted activities required to comply with Child Find obligations. Due to this delay, the California Department of Developmental Services waived requirements mandating early intervention services end at age three. In order to further ensure services for eligible children with disabilities, we recommend that state officials take the following additional actions:

1. Issue an Executive Order requiring districts to work as quickly as possible to transition provide services to students who received early intervention services under Part C of the IDEA, but who aged out of these services during state and county shelter in place orders.
   1. Eligibility for Part B services should be presumed for these students until the district can conduct a comprehensive in-person assessment when the order is lifted.
   2. In determining which services to provide these students, districts should conduct a preliminary assessment of the student’s needs using a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent and the student’s regional center.
2. Issue CDE guidance emphasizing that districts must still abide by their Child Find duty to locate, identify and provide services to children who may be disabled and may need special education and related services, including children who did not previously receive services under Part C of the IDEA.
   1. In complying with Child Find, districts must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child during the shelter in place orders, including information provided by the parent, virtual observation sessions, and social distance friendly home visits.
   2. Once the state and county shelter-in-place orders are lifted, parents must have the option of either requesting an independent educational evaluation or allowing the district to reassess students to gain more accurate information about students’ needs.

Recommendation No. 5: Extend the eligibility of students who aged out of Part B services for at least 6 months.

In California, districts must provide Part B services under the IDEA to students through the academic year when students turn 22. But the State’s shelter in place order has prevented students who age out of Part B services this year from meeting their IEP goals and/or gaining critical life skills necessary for independent living. In order to ensure that these students have the tools they need to successfully transition out of schools, we recommend that state officials take the following action:

Issue an Executive Order:

1. Requiring school districts to offer compensatory services to every student who would have otherwise aged out of Part B during the State’s shelter in place order. Such offer should be made prior to the commencement of the 2020-21 academic year.
2. Specify in the Executive Order that within 30 days of being notified of a student’s desire to receive compensatory education services, districts must then assess the student using a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student.  Districts will use this information to determine how long to extend each student’s eligibility for Part B services to ensure they meet their IEP goals and/or gain critical life skills necessary for independent living.
3. Specify in the Executive Order that a district that fails to conduct an assessment on a student who made known their desire for compensatory education services shall automatically extend the student’s eligibility for Part B services for 6 months.

Recommendation No. 6: Establish a system through which parents may seek reimbursement for expenditure on private services

Because many school districts failed to provide an appropriate education and related services to their disabled students during the State’s shelter in place order, some parents were forced to use their own funds to secure private services.  However, many other parents, especially low-income parents and parents who lost their job or saw a decrease in hours or wages due to the pandemic, were unable to secure private services.  In order to ease the financial burden on all parents, we recommend that state officials take the following action:

Issue an Executive Order:

1. Requiring school districts to provide compensatory education to put students in the position they would have been without the shelter in place order regardless of whether they received private services.
2. Requiring school districts to establish a system through which parents can request reimbursement for expenditures for private services.  This system should take into account:
   1. Whether the district failed to offer parents the opportunity to secure private services and be reimbursed by the district;
   2. Whether the district offered special education services or instead offered “consults,” “supports,” or other items that fall short of the U.S. Department of Education’s requirement that districts provide a FAPE; and

Recommendation No. 7: Toll and extend administrative statute of limitations

Senate Bill (SB) 117 halted the timelines for resolving a Uniform Complaint Procedures Act complaint for a violation of special education rights during the COVID-19 pandemic.  This took away one of the most cost effective and powerful tools that parents of children with disabilities have to protect their children’s rights.  Yet, there is no similar tolling of statute of limitations, meaning that parents cannot expect timely resolution of complaints, and may at the same time, lose their right to file a complaint due to the statute of limitations running.  Further, although administrative due process cases and mediations are still occurring, there are many reasons why a parent may chose not to seek these dispute resolution options during the COVID-19 outbreak, including their inability to access records in a timely manner (due to the halt of the records request timeline under SB117), their inability to gain appropriate assessments requiring face-to-face testing (due to the halt of this timeline under SB 117), the general unavailability of witnesses, the demands on parents of child care and distance learning during shelter in place, or the strategic ineffectiveness of successfully arguing a child’s case through video conferencing technologies.  While the IDEA sets default limitations periods for due process complaints and court complaints, States are permitted to change them; California has adopted two years and 90 days, respectively. 

Survey Responses and Recommendations

Delivery of Instruction Upon School Openings

When asked about the ideal structure for the delivery of instruction when schools reopen, parents were roughly equally divided between sending their students back to school, keeping students home to learn remotely 100% of the time, and a blended schedule. Of the parents who want to send their students back to schools full-time, roughly half prefer resumption of before- and after-school programs, such as day-care.

Over 90% of respondents who prefer a full-time or greater schedule cited their inability to provide home-instruction or transportation to/from school due to work conflicts, day-care expenses, and family care duties. Many others expressed concerns about the efficacy of virtual learning. Specifically, parents cited their inability to provide instruction due to language barriers, education level, and their own disabilities. Students have exhibited academic and behavioral regression and the need for more guided instruction, 1:1 aids, para-educators, more attentive case-managers, routine and structure to access learning, socialization, and better technology.

An overwhelming number of parents who prefer 100% distance learning or a part-time schedule expressed fear of contracting COVID-19 from their children, especially because of medically vulnerable family members and trepidation about their district’s ability to enforce social distancing and other safety protocols. Other parents expressed fear about disrupting their students’ routine at home and believe that the home environment would provide more stability.

To accommodate the unique and diverse needs of parents, we recommend State officials require school districts that reopen to maintain, refine, and incorporate distance learning policies practices that enable students to virtually participate to the fullest extent possible in instruction and extracurricular activities.

Safety and Hygiene Protocols

Before feeling comfortable with sending their students to school, parents prefer to see the following safety and hygiene protocols and practices implemented at schools to prevent the spread of COVID-19:

• “Social distancing” practices by staff and students both at school and on buses;
• Provision of instruction outdoors;
• Adequate ventilation in campus buildings;
• Regular cleaning and disinfecting of school property throughout the school day, including but not limited to, desks, shared supplies, and bathrooms;
• Requiring staff and students to wear masks;
• Provision of separate supplies to each student;
• Provision of personal disinfectants, such as hand sanitizer and antibacterial wipes;
• Required daily temperature checks of all students and staff;
• Regular testing of staff;
• Limit staff’s interactions to a core group of students;
• Prompt notification to parents when staff or students test positive; and
• Adequate staffing of nurses at every school site.

Refining Distance Learning

Districts must be prepared to transition back to distance learning, this time with improved supports. Most respondents agree that if someone at school or a family member of someone at school tests positive for COVID-19, they would stop sending their students to school. However, most respondents believe they could better handle distance learning if there is another school closure with the proper supports and reforms. When asked what districts should improve upon, respondents identified the following components of distance learning:

1. Instructional changes:
   1. Longer and more frequent instruction time: Respondents reported that teachers spent little time providing instruction during the shelter in place order. Students were instead provided with homework packets, which placed a disproportionate burden on parents to provide instruction and on students to self-educate. We recommend that teachers provide instruction more frequently and for more minutes to provide students guidance, routine, and stability.
   2. Collaborative learning:Respondents reported that their students’ social skills and engagement with schoolwork deteriorated without interaction with their peers. We recommend that teachers provide students with more opportunities for collaborative and project-based learning to increase exposure to other students.
   3. Concrete lesson plans: Respondents stated that they felt overwhelmed by homework and instructional packets because they were not provided in advance with schedules for lectures, homework, and special education service , which made it difficult for families to plan around their work schedules. We recommend that teachers develop concrete and comprehensive lesson plans before the Fall semester to help families plan for the semester.
   4. Diverse schedules to meet family needs: Some respondents cited the need for flexible class schedules to accommodate their jobs while others stated that their students need routine and stability. We recommend school districts provide students the option to participate in fixed and flexible class schedules with live instructions and pre-recorded lessons.
   5. Better tracking of student progress: Respondents reported that their district did not track their students’ progress toward IEP goals and grade-level curriculum. This made it difficult for respondents to track their students’ regression and provide support. We recommend that districts resume tracking students’ progress communicate that progress more frequently with families.
2. Individual support and communication:
   1. More individual support and check-ins: Respondents whose students require one-on-one instruction and guidance found a lack of individual supports during the shelter in place order. Respondents also reported a lack of communication with their students’ teachers and case managers. We recommend that teachers and other educational providers schedule more frequent check-ins with both parents and students, especially during lessons.
   2. Use of instructional aides: Students who once relied on 1:1 aides and para-educators in school found their absence during virtual learning destabilizing. We recommend that instructional aides and para-educators provide individual support virtually and in-person, especially during instructional time.
3. Technological support:
   1. Better internet connectivity: Respondents reported poor internet connections, which made receiving special education services impractical. We recommend school districts contract with internet providers to ensure all families can access services.
   2. Better technology: Respondents reported receiving outdated equipment, which prevented their students from accessing services and supports. Students also found it difficult to use certain technology or technology at all because of their disability. We recommend districts conduct assistive technology assessments on all students with IEPs to provide them with technology or alternatives to technology that meets their disability-related needs.
   3. Consistent online platforms: Respondents reported feeling overwhelmed by having to navigate multiple online platforms to access lectures, homework, and special education services. We recommend districts limit the number of platforms to deliver services.
   4. Training: Respondents reported difficulty navigating technology and unfamiliar online platforms. For example, some districts disclaimed responsibility for teaching students with dyslexia how to type. We recommend districts provide trainings tailored to students’ disability-related needs directly or through third-party providers such as the Center for Assistive Technology, and computer programs such as Computing Without Tears for parents and students to improve computer literacy skills.

Thank you for your time and attention to the needs of our most at-risk children in this evolving situation and your leadership in this time of crisis. We appreciate the remarkable circumstances in which school districts and regional centers are operating and their efforts to provide education in this unprecedented time. We offer these recommendations as part of California’s COVID-19 response and relief efforts to address the unique needs of California’s children with disabilities and urge you to adopt these recommendations as we collectively work to support our youth to survive and recover from this crisis.

We request a meeting with a representative of your office to discuss this matter. Our organizations are also available as a resource to support children with disabilities, educators, child welfare and probation providers, policymakers, and funders during this time of emergency. Please contact Malhar Shah, Disability Rights Education and Defense Fund, at (562) 879-4889 or mshah@dredf.org if you have questions.

Thank you for your attention.

Malhar Shah
Claudia Center
Disability Rights Education and Defense Fund

Linnea Nelson
ACLU of Northern California

Kathy Sher
ACLU of California Center for Advocacy and Policy

Josephina Cortez, Chairwoman
Bear RiverBand of Rohnerville Rancheria

Curt Child
Disability Rights California

Eva Patterson
Equal Justice Society

Byron Nelson Jr., Chairman
Hoopa Valley Tribe

Julia Souza
Law Foundation of Silicon Valley

Ted Hernandez, Chairman
Wiyot Tribe

Joe James, Chairman
Yurok Tribe

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[1] See, e.g., State of New Hampshire Office of the Governor, Emergency Order No. 48: Special Education Requirements to Support Remote Instruction, Governor.NH.gov https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-48.pdf Pennsylvania Department of Education, Guidance and Answers to FAQ on COVID-19 Compensatory Services, Education.PA.gov (Jun. 30, 2020) https://www.education.pa.gov/K-12/Special%20Education/FAQContact/Pages/COVID-19-Compensatory-Services.aspx; Florida Department of Education, Emergency Order No. 2020-EO-06, FLDOE.org (Jul. 16, 2020) http://www.fldoe.org/core/fileparse.php/19861/urlt/DOE-2020-EO-06.pdf; Colorado Department of Education, Special Education & COVID-19 FAQs, CDE.State.CO.US, http://www.fldoe.org/core/fileparse.php/19861/urlt/DOE-2020-EO-06.pdf (last visited Aug. 06, 2020).

[2] Legislative Analyst’s Office, Overview of Special Education in California (Nov. 6, 2019), 1 (almost one in five students with disabilities miss 10 percent or more of the school year”), at https://lao.ca.gov/reports/2019/4110/overview-spec-ed-110619.pdf.

[3] Id. (African American students represent 6 percent of the overall student population but 9 percent of students with disabilities).

[4] Even without COVID-19, children with disabilities are so vulnerable to regression that there are regulatory and statutory rights to extended school year services designed to attempt to prevent it. See 34 C.F.R. 300.106; Cal. Educ. Code 56345(b)(3).

[5] A large proportion 79% of survey respondents prefer school district to provide students with compensatory education to make up for school closures rather than picking up where they left off before the shelter in place order.

[6] More than two-thirds 64% of respondents want compensatory education services to extend over a long period of time. Some respondents want services to be front-loaded then tapered off depending on students’ progress.

[7] Nearly half more than 48% of survey respondents want a full range of options for their students to receive compensatory services while 29% prefer to have services delivered during the regular school day. Roughly 47% of respondents are worried about their students missing vital class time if pulled out for compensatory education. Many respondents are worried about their students’ inability to participate in compensatory education after school and during breaks because of their energy level, family needs, and transportation difficulties.

[8] 34 C.F.R. 300.106.