Are my child’s rights under the Individuals with Disabilities Act (IDEA) at-risk?
As of the writing of this update, there have been no changes to special education laws. In fact, the US DOE has issued guidance reaffirming every disabled student’s right to a Free Appropriate Public Education (FAPE) during this period of remote learning. You can read that guidance here.
However, the Coronavirus Aid, Relief, and Economic Security (CARES) Act includes a provision compelling U.S. Secretary of Education Betsy DeVos to submit a report to Congress within 30 days recommending any waivers to federal special education laws the agency believes are necessary to provide “limited flexibility” for states and local school with respect to the COVID-19 health emergency.
The CARES Act became law on March 27, 2020—so we should expect the Secretary’s recommendations for waivers to the Individuals with Disabilities Education Act (IDEA) to be submitted to Congress before April 26th.
While we don’t yet know what Secretary DeVos will recommend, we are concerned. Earlier versions of the CARES Act provided greater leeway to states to waive IDEA requirements, but due to public outcry, spearheaded by parents and advocates, thankfully that language was never codified. We are watching this carefully.
We think it is crucial for parents (and grandparents and other concerned people) to email their Congressional representatives and demand that they take a stand to protect disabled students’ civil rights under the IDEA. When Secretary DeVos’ recommendations are added to House committee calendars, your representatives should know that the fiercest advocates in America—the families of students with disabilities—are watching them. An easy way to do this is in a few minutes is through Democracy.io. Simply enter your address to send an email to your Senators and Member of Congress. You can copy/paste the text below if you wish and edit it to make it your own:
I am a parent of a student with a disability. I understand that under CARES, Secretary DeVos will be returning to Congress in the coming weeks with the agency's recommendations for waivers to the IDEA. I am terrified that Congress may dismantle the most basic civil rights of my child, such as: access to due process, the right to a program designed to ensure that students with disabilities make "meaningful" educational progress (FAPE), access to my child’s mandated related services (Speech, Occupational Therapy, Physical Therapy, etc.), and more. Any erosion of the civil rights of students with disabilities is unacceptable. I am asking you to vote against any legislation that will reduce or limit my child’s entitlement to a free appropriate public education.
My child does not have an IEP or IESP and I had planned to request a CSE review. Is that still possible?
Yes. The DOE says on its website that parents can make a referral to the CSE by emailing the principal of their locally zoned school, by calling 311, or by emailing specialeducation@schools.nyc.gov.
Although prior to the COVID crisis we would have clients send referral letters by certified mail we are now directing clients to email the appropriate CSE administrator (See the DOE website’s page for “Committees on Special Education” to find a list of CSE administrators and their direct emails for every CSE office). In your referral letter you should now include your email addresses and cell phone number. We suggest that you use the following language in your email referral: In light of the ongoing health emergency, I consent to any evaluation or meeting that the DOE wishes to do remotely. Here is my cell phone number (INSERT) and my email address (INSERT). Please notify me of all meetings by email.
On April 6th, 2020 New York State issued guidance to relax school district compliance timelines for CSE referrals during this health emergency. The law normally requires that a school district conduct all evaluations, hold a review meeting, create an IEP, and issue a placement notice within 60 school days from the date the parents’ provided consent to the process (or around three months). This new guidance allows the DOE not to count the days when schools are closed pursuant to the Governor’s Executive Orders around the COVID-19 health emergency.
My child was receiving CPSE services (SEIT and related services) before the stay-at-home order and they have not been able to receive these services remotely. Will they be able to make-up these sessions?
The New York State Education Department has issued guidance to preschool providers indicating that the requirement that make-up sessions take place within 30 days will not include days that schools are closed pursuant to the COVID-19 health emergency. This may effectively provide for a one-month extension of a child’s CPSE program when schools resume—but we are awaiting more specific guidance from the DOE about how this will be implemented.
I have a scheduled impartial hearing. Is this really happening and how?
The NY State Education Department (NYSED) has issued guidance allowing impartial hearing officers (IHOs) to conduct their hearings by telephone (and more recently, videoconference). We have been doing these for the last three weeks and they are going very well.
NYSED is now allowing IHOs to extend cases up to 60 days, instead of the usual 30 days, while schools are closed. NYSED says that this change is to allow for greater flexibility with regard to witness availability.
If you have an upcoming impartial hearing, check in with your attorney for information on how your assigned IHO will conduct the hearing. You and your attorney will confirm witness availability.
I have received my retainer agreement from Skyer Law, but I’m not sure what I’m doing next year. What if I change my mind about pursuing a due process claim?
Our retainers for the 2020-21 school year for returning clients allow for retainer fees to be refunded if you change your mind and send your child to a public school and notify us in a timely manner. We understand how uncertain these times are and want to ensure that our clients have the benefit of good counsel as they make these important decisions.
My child’s independent private school is using Zoom even though the DOE has banned it. Is this okay?
On April 4th, the DOE abruptly announced that NYC public schools must transition from Zoom and Google Hangouts and now use Microsoft Teams. The reason for this change was concern over privacy rights. Private schools are not obligated to provide instruction in the same manner as the school district and can continue with whatever platform they have chosen.
