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The MSBA hosted a webinar on May 12, 2020, addressing how to manage special education services on behalf of clients during the COVID-19 pandemic. Attorney Mark B. Martin gave an overview of relevant federal and state guidance and provided practical tips on how to advocate on behalf of students with disabilities.

State Guidance Maryland guidance includes the Maryland State Department of Education (MSDE) document “Providing Continuity of Learning to Students with Disabilities during COVID-19” and a fact sheet on free appropriate public education (FAPE) issued on March 30, 2020. Even during the pandemic, students are entitled to FAPE. This includes the provision of equitable access to instruction and additional supports as needed.

Federal Guidance The U.S. Department of Education (USDOE) has provided guidance, including fact sheets issued on March 16 and March 21, 2020. Students with disabilities must have access to virtual learning tools that are compatible with various forms of assistive technologies they may use, such as sign language interpretation software or audio to text capabilities. The USDOE approved the use of distance instruction, teletherapy, and teleintervention; as well as lower-tech learning through packets, projects, and written assignments.

Practice Tips Practitioners should advocate for clients but remain flexible and realistic as to how education services will be delivered. Students are likely living in homes with other children who have schoolwork and adults who have work responsibilities. This includes teachers. Attorneys should know what the local system is providing to general education students and build upon that for the student they’re advocating for. Push schools to be creative, and ask for the training and support that parents or guardians may need to be their child’s primary instructor.

Questions to Ask About Individualized Continuity of Learning Plan
• Are the goals related to each domain of an IEP? (math, reading, social)
• Does the parent know what skills should be the focus of each domain, and what is the purpose of each activity being sent home?
• What training does the parent need in order to support a child’s learning?
• How will the school system determine whether a student is making progress? If the student failing to make progress, can compensatory services be offered down the road?

Compensatory educational services Once schools reopen and resume regular operations, IEP teams will need to determine whether and to what extent a student has regressed and/or failed to make progress, and are they entitled to compensatory educational services? Mitigation and recovery efforts may be necessary. Counsel should plan to look for compensatory services. Practice tips include reviewing the January and March 2020 progress reports in order to determine a pre-pandemic baseline; gather and maintain data; record behavioral observations such as attention and focus. It will be easier to argue for compensatory services if you can show harm to the student’s educational progress.

View the webinar in its entirety, below.