This is not the end; it is not even the beginning of the end.
It is, perhaps, the end of the beginning.
America’s hopes for a speedy recovery from the COVID-19 pandemic have not materialized. After several months of sheltering in place, tragic death tolls and widespread sickness, most of us remain cloistered in our homes. Businesses are shuttered, airports are empty and school buildings are closed. The education community is focused on serving students and families who cannot access those buildings for instruction, meals and support. In an intensive burst of targeted energy, districts and schools leapt into action in late March, quickly developing and implementing plans for remote education. Such plans seemed sufficient to allow schools to tread water for a while, holding things together until the dangers abated. Optimists hoped for a return to normal by late spring; more conservative observers doubted that students would be back at their desks by the end of the school year. As Memorial Day approaches with no vaccine or pharmaceutical solutions in sight, prudence requires that we take a fresh look at the circumstances and reconsider our plans for education into the summer and beyond.
Our particular focus is on the welfare of students with disabilities and their families. Their lives have been disproportionately disrupted by the nationwide school closures. Many of the Individualized Education Programs (IEPs) that explicitly lay out the plan for providing a free, appropriate public education (FAPE) for each student with identified disabilities under special education laws cannot be fully implemented remotely. Some special education and related services can be offered through online means, but others require in-person services, evaluations, and supports that cannot be readily provided through distance learning. When the virus hit, school and district leaders immediately started asking what to do about this.
The U.S. Department of Education provided an answer. In March, as educators were hastily switching to remote learning, the Department issued three rounds of non-regulatory guidance focused on how to educate students with disabilities. Such guidance, while lacking the force of law, can fill gaps in what is explicit from statutes, regulations, and case law. Since our special education laws and regulations do not address what would happen if all school buildings were to close indefinitely at the same time, guidance from the Department was badly needed. Most importantly, their guidance said this: While school buildings are closed, students with disabilities should continue to receive all the services and supports called for in their IEPs that can be provided remotely. Services and supports that cannot be provided remotely should be deferred until schools reopen and treated as “compensatory services” that will accumulate during the closures. Not only should IEPs be fully resumed upon the reopening of schools, but schools should calculate the services deferred to each student and make them up. This approach made sense—calling for accumulated “compensatory services” is a well-established practice in special education, although it ordinarily results from schools or districts failing to provide mandated services when they were due. In the COVID-19 context, the impetus for compensatory services isn’t wrongdoing, just the practical reality that school building closures may make it impossible to provide certain services. It appears that there is considerable variety in how the line between services provided and services deferred has been drawn by districts and schools across the country, but it is clear that deferral of services has been widespread and extensive. Traditional district schools and charter schools nationwide are following this federal plan and expect that reopening will come with a burst of compensatory services for students with disabilities.
Unfortunately, that may not work at all, for several reasons.
Difficulty Providing a Mountain of Services
Many districts and independent charter schools are likely building up a large and rapidly growing mountain of compensatory services that must be provided when students return in person to schools. Such a backlog of services will be expensive to provide, require more qualified providers than may be available, and could be difficult to implement. In the face of financial conditions that are forcing states and districts to slash education budgets, where will the funds come from to pay for all of the occupational and physical therapy that will be needed? For all of the full-time services required by students who require significant supports? Even if the dollars are available, who will provide all of these supports? It seems unlikely that in most places there are enough qualified therapists, consultants, paraprofessionals, and specialized instructors to meet the need.
Children and Families Can Only Process So Much
If we assume for the moment that there will be a sufficient number of providers and money to pay them, we still have a big problem when schools reopen and the compensatory services come due. Given what we know about how students develop and learn, it seems unrealistic to expect that children will be able to drink from the fire hose of accumulated services. They may have a legal right to all the supports that have been deferred, but that sort of concentrated volume could be overwhelming. For instance, if a student is due to recieve 5 hours of a related service such as speech or occupational therapy per week and was not provided this service for 12 weeks due to the pandemic, we cannot reasonably expect to double or triple up on those services come fall and assume that the student will simply make up the lost ground, or even have time in the school day for them. This idea of delayed services may work better as an approach to fairness than it does as a method of remediation.
Deferring Services Indefinitely
The many challenges schools will face are daunting. Nevertheless, since the pandemic closed schools and the Department issued its guidance, districts and schools have been expecting to provide compensatory services this fall when school buildings reopen. But what happens if they don’t reopen? A cautious reading of current circumstances would have to include the possibility of schools in certain areas not being permitted to reopen their buildings by the start of the 2020-2021 school year. Or, out of health concerns and logistical considerations, choosing not to do so. Or reopening and then closing again as infections surge. Or reopening partially on a staggered schedule so students only attend school every other day. If buildings do not reopen as envisioned in the guidance issued by the Department, then deferred special education services may not be provided. This seems like a major threshold to cross—and could have the unintended and problematic effect of a de facto waiver of services that was surely never intended by the Department when it called for deferral.
What Do We Do?
It is not acceptable under special education law or equitable practices to defer mandated special education services indefinitely. How do we avoid that if remote learning continues into the coming school year? If school buildings do reopen in time for fall classes, how can we make service delivery work? That is a complex problem that will require our best collective thinking to solve. But here are some suggestions to start the ball rolling:
- Make providing mandated services for students with disabilities a priority in district and school reopening plans.
- Train an expanded cohort of professionals to conduct assessments that will document present levels of student mastery and retention to inform instruction and revisions to IEPs.
- If a school does not intend to return to fully school-based instruction for the fall, consider half measures that could allow students with disabilities access to in-person services (e.g., evaluations or occupational therapy). Access could be provided at certain buildings that are made particularly clean and safe.
- Re-examine assumptions and challenges that have resulted in deferred services and supports. Are there creative ways that any of these elements can be offered remotely or in a modified way in-person (e.g., in-person occupational therapy with a partial plexiglass divider and gloves)?
- Together with parents and guardians, develop a compensatory services plan for each student that is more than the sum of deferred service hours, and instead reflects the expertise of the IEP team taking a fresh look at student needs and circumstances.
- Devise a backup plan that allows districts and schools to offer a continuity of services despite interruptions. This could include a continuation of the remote learning program and platform used in the spring.
From the outset of this extraordinary, unprecedented health crisis, stakeholders at every level— classroom, school, district, state, federal—have done their best to quickly put in place a process that allows education to continue and to accommodate varying student needs. If COVID-19 closures had been short, that might have worked for all learners. But that was not the case. We need to acknowledge that reality and adjust our thinking. Unless educators work together to find creative, effective solutions, too many students with disabilities will likely be left with either a pile of accumulated services from which they cannot meaningfully benefit or, if remote learning remains in place, no compensatory services at all. We can and must do better.