What is a School District's Responsibility? -
By Diane Wiscarson and Taylar Lewis, Wiscarson Law -
Like all other fields, schools are currently experiencing severe staffing shortages due to the pandemic. These shortages include general education teachers, substitute teachers, special education teachers, paraeducators, speech-language pathologists (SLP), occupational therapists (OT), and many other specialists and consultants. While these shortages are impacting all students, they are affecting students with Individualized Education Programs (IEPs) in unique ways.
Staffing shortages have impacted special education students’ ability to access their education, gain educational benefit, and make progress on their IEP goals. For example, some students have “adult support” or “adult assistance” written into their IEP, and require a paraeducator or instructional assistant to access their education. Without adult assistance, these students may be unable to participate in class, play at recess, or even engage in activities of daily living.
To address the staffing concerns, some school districts have resorted to shortening students’ days or “sharing” adult assistance while at school. However, even recognizing the difficulty in finding available staff, districts still need to provide all students with a free appropriate public education (FAPE).
Whether school is conducted in-person, virtually, or some combination of the two, students impacted by a disability need to have a way to access their education. If a school district is not able to provide students with a FAPE due to staffing shortages, the district is required to make up the services at a later date. Students are entitled to the services in their IEP, regardless of staffing. Parents should document what services are or are not being provided. If services in a student’s IEP are not being provided, the district must make those services up.
What is the school district’s responsibility?
Regardless of what model a school district is using – in-person, virtual, etc. – districts still have to provide students with the necessary services, accommodations, and instruction needed to access their education.
It does not matter if districts make good efforts to hire staff but cannot find qualified people. Districts are still responsible for implementing students’ IEPs, even if they are short-staffed. Districts are required to provide whatever each student needs to access their education as it is written on the IEP. This was true before the pandemic and is still true today.
Districts cannot say that a student cannot have a service, such as speech, just because there is not a provider. Even if a student has to wait for a provider to be available, this does not mean the student permanently loses the time that is allotted to them through their IEP. Staff shortages may complicate service delivery, but the district cannot just remove services because there is not enough staff. Any changes to a student’s IEP services must be made by the IEP team and based on student need, not staff availability.
What services does the school district need to provide?
Districts are required to provide all of the services listed in a student’s IEP. Therefore, it is important to consider what supports the IEP actually contains. For example, if “adult support” is written into the IEP, in any form – adult support, adult assistance, paraeducator, or instructional/educational assistant – the specific adult support to be provided should be defined.
The tasks that the adult will support should be specifically listed, such as toileting, prompting, scribing, or transitioning between activities. Then, if supports or services are not provided, parents have an IEP that is not being implemented, and can be enforced or remedied in other ways.
What can parents do to monitor what services are provided?
Once a service is defined, parents should try to document what is or is not being provided. It can be helpful to keep a running log documenting the days that a student does not have an aide, or is not receiving speech services, for example. If possible, it can also be helpful for parents to document any Specially Designed Instruction (SDI) that was missed.
To determine whether their student is receiving appropriate services, parents can ask their student’s case manager when the SDI is being completed, who is providing the SDI, and what the SDI looks like. Parents can also ask whether their child’s teacher is licensed and credentialed or, if relevant, who is providing their child with adult support. Parents should ask questions and document any missed service time in writing (such as email).
Additionally, most related service providers, like SLPs, OTs, physical therapists, and others are required to maintain service logs. In the service log, each provider documents all service provided to each student. Parents are entitled to request these, and should just for knowledge, even if there is not a concern that service was not provided.
Sometimes, parents might know that a service will be missed in advance. For example, a parent might know that their child’s occupational therapist will be out for a few months on parental leave. If so, they should ask the district if a substitute will be available, or if not, how the district will make up that time for the student.
In general, parents should try to keep written records as much as they can documenting what is, and is not, being provided to their child. This record will help determine what the district might have to make up later.
What happens if the school district doesn’t provide a student with the services in the IEP?
If a student does not receive all of their IEP services, then they are likely eligible for compensatory services from the district. Compensatory education is service to make up for what should have been provided, but was not.
For example, for a student who had speech services in their IEP for 30 minutes per week, but no speech therapist was available for three months, parents can calculate how much time was missed. If SLP service was missed for 12 weeks, at 30 minutes per week, then the district would need to provide compensatory SLP services for those missed six hours.
What is compensatory education?
Compensatory education helps put a student back in the place that they would have been had the district provided that student’s services. This can look like providing students with tutoring for missed academic or social skills instruction. The compensatory tutoring service would be used to make up for missed SDI.
Compensatory education can also include makeup services for speech, occupational therapy, and other related services. For example, suppose during the pandemic, the student was denied SDI time or time with a provider, and those services are written on the student’s IEP. Then the district should provide compensatory education services.
Compensatory education should also take place outside of the school day. That might include after school, on weekends, or during the summer, so that the student doesn’t miss any additional educational time.
It is important for parents to know that compensatory education is not always a “one-to-one” ratio for lost time. If a student missed 50 hours of service, they may not need 50 hours of compensatory education to catch up – compensatory education is based on what the student needs to put them back where they should have been.
Compensatory education is also not an IEP team decision. Any discussion about compensatory education should be focused on what the student needs to catch back up, and generally occurs with administrators, rather than IEP meetings. Parents may find it helpful to hire an attorney to help negotiate the conversation around compensatory education.
What about recovery services – is that the same thing?
Compensatory education is different than recovery services! Recovery services were developed to help students struggling to make progress due to COVID-19 and distance learning.
Recovery services do not necessarily indicate that a student “missed” specific services. Instead, they are designed to help a student catch up if they did not progress on IEP goals due to school closures, distance learning, or other pandemic-related issues.
Unlike compensatory education, recovery services are an IEP team decision and should be discussed at a student’s annual IEP meeting (or whenever a parent requests) for the next two years. Whether a student is eligible for recovery services depends on what they were able to access during the pandemic and progress made on their IEP goals and objectives. This should be based on data!
Conclusion:
Students are entitled to their IEP services regardless of staff or educational environment (in-person, remote, or hybrid learning). However, in navigating school shortages, parents should be proactive, document what is occurring, and ask questions about their student’s progress.
If a student was denied services written in their IEP due to staffing shortages, that student is likely owed compensatory education. If a student struggled to access their education during distance learning and did not make progress on their IEP goals and objectives, that student is likely eligible for recovery services. If a student was both denied services and struggled to make progress on their IEP goals, then they may be eligible for both!
Navigating compensatory education and recovery services can be challenging, so parents should try to keep good records and ask an attorney if they have additional questions.
Photos of Diane Wiscarson and Taylar Lewis by Wendy Wilson
Diane Wiscarson is the founding attorney of Wiscarson Law, the only firm in Oregon with a primary practice area of special education law for families, and has represented thousands of families of special education students in Oregon and Washington. Taylar Lewis is also an attorney with Wiscarson Law, having served as a law clerk at the firm while attending the University of Oregon School of Law. Find more information at wiscarsonlaw.com.
This article was first featured on pages 36 and 37 of the Spring 2022 print and online edition of Spectrum Life Magazine.
You may also wish to view Recovery Services in the Age of COVID-19 from our Winter 2020-21 issue.
