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Special education protections failed to shield youths with disabilities from COVID’s impact

It was unrealistic to expect parents to rely on IDEA's protections to recoup schooling lost to COVID. It was no surprise that few did.

When we first raised alarms that our youths with disabilities were left behind by Act 66, educators and others sought to reassure us that the schooling lost could be recouped through the procedures established under federal laws that assert the rights of students with disabilities (e.g., via the Individuals with Disabilities Education Act or IDEA). This has proven to be completely unrealistic, especially for those from traditionally underserved groups. The upshot - youths with significant disabilities WERE left behind by Act 66. Specifically,

  1. Alternative solutions proposed by special educators for youths with disabilities could never have created a school experience comparable to that offered by Act 66 to every non-disabled youth

  2. It was unrealistic to expect that most parents could readily utilize procedures under IDEA to ensure that their youths either quickly caught up on the progress lost to COVID, or could have been awarded a month - let alone an entire school year - of additional schooling to catch up

  3. The available evidence suggests that few if any parents turned to procedures under IDEA to try to recoup the schooling lost to COVID.

  4. Any surge in parents seeking formal redress by exercising their rights under IDEA would have devastated school districts

The results? Youths with significant disabilities WERE left behind by Act 66. And setting such unrealistic expectations was not only unfair to parents; this was unfair to special educators who made heroic efforts under unprecedented conditions.

These are complex issues that require a crash course in education- as one legislator staffer described it, like drinking from a fire hose! So sit down, and take a DEEP breath...

Special educators claimed that schooling COULD be reclaimed without needing to offer an extra year to youths with disabilities

Let’s start with educator’s claims that the solutions offered by IDEA or related measures are comparable to the extra schooling offered under Act 66. Consider how Dr. Carol Clancy, the state’s Director of Special Education, responded in a July 28th email last year, after I reached out to express my concerns that Act 66 was leaving youths like my daughter behind (emphasis mine).

“The intent of Act 66 is to help students make up for learning loss. There are multiple initiatives, as discussed in this webinar... to support students with disabilities to make up the learning loss or lack of progress over the next year that the current 21 year old students would not have access to due to aging out. This affords those students the same opportunity as all students impacted by the pandemic to have access to a year of learning, accelerated learning, access to IEP services that they may not have been able to access last year, and COVID Compensatory Services….I hope you can work with your LEA to develop a plan for your child to make up lost skills or lack of progress imposed by the pandemic.”

We cannot fault special educators for making claims like these that in hindsight have proven to be wholly unreasonable: under tremendous pressure from parents and from political leaders during unprecedented times, they were left with a choice to lean heavily on hope, or just walk away from their students. Special educators are absolutely dedicated to helping their students, so they leaned heavily on expectations we now must acknowledge were unrealistic.

Let’s break each of these arguments down: (1) that these students had the same opportunity to access a year of learning through various mechanisms, and (2) that COVID Compensatory Services was likely to help youths with disabilities access the schooling COVID robbed them of. We will save the analysis of accelerated learning and access to additional IEP services for a later post.

Under Act 66, parents of typical youths, and a handful of youths with disabilities just had to spend 5 minutes filling out a 1 page form, which virtually guaranteed them an extra school year indistinguishable from a typical school year. Educators claimed that youths with disabilities could "access the same opportunity as all students" through "accelerated learning, access to IEP services..., and COVID Compensatory Services".

None of the initiatives outlined by Director Clancy for youths with disabilities offered an experience equivalent to just staying in school for an extra year under an existing IEP. Trying to train teachers in the unproven techniques underlying accelerated learning, or trying to offer services outside of the traditional school day creates an experience that is clearly different from the traditional school year everyone else was offered through Act 66. Indeed, offering an extra year to youths with more significant disabilities is far easier and likely to be more effective than these and other solutions we will describe later. In theory, parents could exercise their special education rights to acquire an extra year through Compensatory Services but in practice, we doubt that this has ever occurred, as we describe next.

The myth that Compensatory Services could have helped families recoup lost education

Now we must dive deeply into the initiative most often cited as a solution to COVID for youths with more significant disabilities left behind by Act 66: COVID Compensatory (Comp) Services. In sum, it is completely unrealistic to expect that parents can successfully file for Comp Services to get an additional year equivalent to what typical families were offered through Act 66. I will illustrate this with some examples from the education of my daughter Margot, who was 19 when COVID struck

So, how are Comp Services supposed to work? Normally, parents have the option to seek additional (compensatory) services to make up for either (a) services not provided or (b) goals not met. Services and goals are both identified under a student’s Individualized Education Plan (IEP).

Additional guidelines were published by the Federal Department of Education to offer more flexibility to apply Comp Services due to COVID, but these guidelines were extremely vague and it is unclear how well this has worked. We would expect that most parents would struggle to make sense of those published by the state Department of Education without the help of an experienced lawyer or advocate. Even some experienced lawyers might struggle to master the ambiguities arising from COVID, or distinguish how it is different from traditional Comp Services. How can we expect parents to effectively advocate using guidelines that few parents - and even some lawyers - understand? In addition, the process of filing claims for Comp Services is complex, uncertain, and often expensive, and would have completely overwhelmed the system under COVID. Let's look at each

Arguing for Comp Services based on schooling not provided: Sometimes this is easy to document - for example, a review of records might reveal that the hour/week of speech therapy services described on an IEP was never delivered over a 16 week period. The solution in this case is simple - make sure that the student gets the 16 hours of speech services they missed. In fact, I was once contracted to help a Pennsylvania provider of preschool special education services reorganize its programs and personnel after it lost an unprecedented class action lawsuit based (in part) on just such a failure: part of the solution was to ensure that missed services were made up. So one might reasonably conclude that you need only calculate how many hours of schooling was missed in order to know how much is owed. Margot lost about 13 weeks when schools were first closed, from mid March until early September, so using this "quantitative approach", she would be due 13 weeks of schooling.

In fact, there is no clear formula. You cannot simply add up the hours because precedents established under special education case law do not necessarily require that one hour of school services must be made up for each hour lost. The Federal Department of Education never provided a precise formula in their COVID guidance. Over the course of 8 months of negotiations surrounding Comp Services, Margot's school district would never say just how many days she might actually be owed.

How do you calculate hours lost when online instruction is made available? Margot is non-verbal and is completely unresponsive to online learning. In fact, there is no research establishing the benefit of online learning for youths like Margot, or procedures for evaluating its potential to benefit any individual youth. That did not stop her school from insisting Margot would benefit. I know they did not want to see Margot fall behind. But I was also aware that online learning might in some cases be claimed to address a students needs, and I suspected that the team were under tremendous pressure to limit the amount of education that might be eventually owed. After a flurry of emails with supervisors, Margot’s school finally seemed to accept that she derived no benefit from online instruction, so we did not have to count these futile attempts as schooling provided in calculating schooling owed. Others are unlikely to be as successful.

How do you count for days lost as additional precautions are put in place for youths at higher risk? Like many youths with more significant disabilities, Margot has other conditions that put her at higher risk of catching COVID and complicate care under COVID. These also delayed her safe return to school. Margot’s refusal to mask up, her tendency to put her hands and objects to her mouth, and her need for very close 1:1 support across the school day increased the chance that, if someone at her school got COVID, Margot was more likely to get it too. Margot's seizure disorder and inability to safely swallow meant that she would feel COVID’s effects more profoundly. And because of her special health care needs, we could not afford to get COVID if we were to advocate for her care if she were to become sick.

So what happened for Margot? We could not safely send her back to school as soon as it re-opened in September 2020 because her school initially refused to immediately notify us if anyone in Margot’s sphere was positive or symptomatic. After three weeks, and still more email exchanges with supervisors, we worked out accommodations that minimized her exposure, and she slowly returned to school. So Margot lost another two weeks of school while we negotiated conditions for her safe return. In discussions with Margot's school, this loss was never acknowledged.

How do you count for education lost in community settings? Margot’s school during this critical transition phase centers on preparing her for a more independent life as an adult, and so requires opportunities to shop, exercise, and work in the community. She had increased her time in the community steadily during the 2019-20 school year: she was up to 16 hours /week in the community by March 2020, and on track to her goal of 20 hours/week by the end of that June. But when school re-opened in September 2020, Margot was able to spend barely 9 hours/week in the community because many settings were still closed. And by September 2021, she had only increased to 11 hours per week of community time. By December 2021, Margot had lost more than 50% of her community training hours, or the equivalent of 31 weeks of schooling. The initial proposals for Comp Services made by Margot's school made no reference to the number of community training hours lost. Only after I reviewed her daily schedule of activities over a 24 month period before and after COVID to establish the pattern did her school begin to recognize the loss.

Progress not made: Another way to justify the need for Comp Services is by evaluating for each student whether they caught up, within a reasonable period of time, on the schooling lost , based on the goals established on their IEP. This appears to have been the option preferred for COVID Comp Services. But this is even more complex. Here are just a couple of reasons why.

A lack of progress is not necessarily a problem. IDEA recognizes that a student might need time to catch up on (or recoup) when their progress has stalled or when they have regressed (i.e., experienced learning loss) following a break in schooling. In such cases, a parent must establish that the amount of recoupment is unreasonable before arguing for Comp services. This is the most common rationale for offering summer school to students with IEPs.

With 5 months of initial closures, and additional closures occurring for some across the following year, COVID completely upended this equation. There are few clear standards for how much regression or recoupment following COVID-related school closures is unreasonable.

One challenge with this approach is that schools can limit offers of Comp Services to very specific goals, even though only a small proportion of the school day is dedicated towards making progress towards such goals. Students need to learn many things beyond those targeted in an IEP! So the first proposal for Comp Services made by Margot's school only referenced two very specific goals centered on community-based training, which she could not address because she was not in the community!. This proposal completely ignored all of the important learning that occurs outside of the IEP.

Another challenge is that progress is measured with respect to specific goals on a student’s IEP. Establishing that there has been a clear lack of progress depends both on the quality of the goals and of the data collected to track progress. The problem? The quality of both varies greatly. This is based on my own work as a statewide Director overseeing the work of hundreds of special education teachers for almost a decade, and teaching special educators at three different universities across the region. The challenge of documenting the lack of progress needed to argue for comp services is most problematic for poorly crafted IEPs... the ones for which help is most often needed!!

This is even more challenging for students with more significant disabilities like Margot, whose progress can be very slow and very frail. This is of special concern because students with the most problematic IEPs were likely most impacted by COVID. In Margot’s case, for example, her team argued that she was making progress towards a goal related to independently wiping her mouth because she did not act out when staff physically guided her through each step. While this kind of full physical guidance is certainly an appropriate teaching strategy in very early stages, claiming robot-like compliance one year later hardly counts as continuing progress!

This approach to Comp Services requires that the need be established by arguing each goal in turn, a process that is arduous and uncertain. For example, we asked Margot's team to drop an IEP goal involving the independent purchase of an item: it was unrealistic given the prerequisite skills required, and Margot had made no progress over 3 years. Her school then argued that this lack of progress would no longer be factored into time owed for Comp Services…. because we had dropped the goal!! It was only after I summarized Margot's progress over a 2 year period and demonstrated specific gaps in acquisition and generalization that the team seemed to finally accept that her progress was impacted beyond the two goals that they had initially identified.

The process of advancing claims for Comp Services is impossible for most families to navigate, so it is hardly surprising that so few do!

What formal steps can parents take? A parent communicates to their child's teacher that they feel their child's lost too much schooling or is not making progress as a result of COVID-related closures... what happens next? The path forward is complex and difficult. The first step they is a meeting with their IEP team, to share their concerns. At this point, the team will discuss expectations for recoupment and review progress on IEP goals. In my experience as a parent on one side of the table and as a statewide special education leader on the other, I have seen parents find themselves facing 3-6 special educators who, if left unchecked, can quickly counter the parent's concerns with a lot of special education jargon. If parents are uncertain about their rights, confused about their child's IEP goals, or uncomfortable pressing their concerns, nothing else will happen. I expect that this is the most common outcome when parents express their concerns.

But what could a parent do if they are still concerned and and determined to push for change? A parent could file a formal written complaint or begin formal mediation. If these are unsuccessful, they might proceed to Due Process, through which the parent makes their case to an independent hearing officer. Federal law requires that these kinds of outcomes are tracked by the state Department of Education. In most cases, parents will find it difficult to prevail through formal mediation or due process without the help of a lawyer.

At some point during this process, parents might also begin informal discussions with the school in search of a resolution. This may result in a legal settlement which may include something akin to Comp Services. Here too parents will find it difficult to prevail without the help of a lawyer. We expect that many disputes are resolved through informal discussion that sometimes leads to a formal settlement. But there is no requirement that these kinds of outcomes be tracked by the state Department of Education, and non-disclosure clauses in settlements prevents the sharing of information about outcomes.

What happened for Margot? Margot lost 46 weeks of schooling, and her school reluctantly agreed that progress had stalled in some areas. We spent thousands of dollars in legal fees and dozens of hours reviewing documents, preparing arguments, and emailing and meeting with her school team to make our argument for COVID Comp Services. How much schooling did we recoup? We still do not know, because no agreement has been signed after more than 8 months of negotiation, but we know we would never recoup more than 50% of the schooling Margot lost.

And Margot’s outcome is a best case scenario. I was only able to successfully challenge Margot’s team regarding their claims about the schooling Margot had received because I know Margot’s rights and the school’s responsibilities under IDEA. I was only able to challenge the school’s assessment of her progress because I know what good goals and reasonable progress looks like, and because I had worked for years with her team to make her goals as relevant as possible. And I had the resources to hire a great lawyer, the time to devote to her case, and the confidence that she would get something back. It is patently unrealistic to expect that many parents could actually use IDEAs protections to recoup schooling lost to COVID.

What happened for other families? Data reported each December by the Pennsylvania Department of Education (DOE) offers some clues. During the year when COVID shut down schools (2019-20) 1495 formal complaints, requests for mediation and due process filing were initiated. About 2/3's (1002) of these were subsequently withdrawn.

Given that every child with an IEP was impacted by COVID, we would expect to see a sharp increase in the number of families taking formal steps in response to the loss of schooling one schools e-opened. The first full report after most schools had re-opened (2020-21) actually revealed almost a 20% decrease in the number of families taking such steps subsequent to COVID: a total of 1220 formal complaints, requests for mediation and due process filing were completed, and a little more than 1/2 (667) of these were subsequently withdrawn.

The proportion of families taking such formal steps also remained very small: with about 340,000 students in Special Education, only about 0.1% of families with students in special education pursued a formal complaint, mediation, or due process to completion. There was no evidence that a meaningful number of families exercised their educational rights to recover schooling lost to COVID.

It is a good thing that parents did not seek Comp Services following COVID: Had they, the system would have quickly collapsed! Every special educator can tell you just how stressful - and expensive -it is to resolve formal complaints brought by parents. The reason that many families seek mediation or settlements through informal discussions is that the final step of Due Process is very complicated and often acrimonious, with no one really "winning" except the lawyers! As a statewide public school leader overseeing programs for students with Autism, I worked very hard to ensure that we offered a high quality education and a rapid response to parental concerns, not only because it was the right thing to do, but because a Due Process was SO stressful.

Even if only 1 out of 100 families had taken more formal steps to address their COVID related concerns for their child's education, this would have represented a ten-fold increase over pre-COVID rates. Had families acted on DOE's recommendations that they could seek recourse through IDEA, special educators across Pennsylvania would have been overwhelmed, delaying or destroying any chances of recouping ANY lost schooling. In Margot's case, for example, relatively simple steps in moving the process forward were sometimes delayed for 4-6 weeks because educational leaders had to double check with their legal teams, or (I suspect) were just too overwhelmed.

Failing to offer an extra year to youths with disabilities is unfair to already over-burdened school districts

COVID placed truly unprecedented demands on school leaders, especially on leaders within the hundreds of individual school districts across Pennsylvania. Within a matter of weeks, schools and teachers had to re-invent teaching. Within a matter of months, they had to develop and then implement untested health and safety protocols. They had to push ahead with these changes even as they - and their families - found themselves at heightened risk for catching COVID once schools re-opened. And, of course, they had to undertake all this within already stretched budgets.

So it was completely unfair to then expect that local school districts could ever adequately address the potentially countless complaints potentially arising from families seeking redress through IDEA. Even if only 1% of parents took formal steps in response to their concerns about schooling lost through COVID, this would have represented a ten-fold increase. Such an increase would have been unmanageable at the best of times, but the extraordinary pressure on special education directors in individual school districts did not let up once schools re-opened.



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