Proactive Response Strategies Help School Districts Avoid Special Education Litigation Risks During the Pandemic

This article is the second of two in-depth reports focusing on the increase in legal challenges facing school districts under the Individuals with Disabilities Education Act (IDEA) amid the COVID-19 pandemic. For the first article, pleaseclick hereto view.

Mitchell Yell, a professor of special education at the University of South Carolina, while helping the South Carolina Department of Education develop guidelines for serving students with disabilities during the pandemic, was particularly eager to convey a key message to teachers and school administrators: despite school closures or socially distanced instructional models, there is no flexibility in the requirement to provide the individualized services guaranteed to students eligible for IEPs.

To that end, he recorded a one-hour audio guide for educators to listen to repeatedly. Yell said, "We wanted to tell them right away: you still have to provide a free and appropriate public education (FAPE) to students with disabilities. The format may differ, but you must do it."

This effort was not only to support educators in serving students during extraordinary times while maintaining compliance with IDEA, but also to help schools avoid litigation over potential IDEA violations.

Parents of students with disabilities can directly sue school districts for failing to provide FAPE, and if a district is found to have failed to provide services as specified in a student's IEP, parents may be awarded "compensatory education." A survey of states released by the Center for Appropriate Dispute Resolution in Special Education (CADRE) showed that in the first six months after the pandemic began, failure to implement student IEPs was themost common issue in due process complaints。

Families have the right to file a due process complaint withintwo years of knowing or having reason to know of the alleged violation, although state policies may extend that deadline. This legal avenue is a concern for school leaders, who say that given pandemic-related circumstances—such as school campus closures and other factors beyond their control—individualized special education services have been provided to the greatest extent possible.

José Martín, an attorney with Richards, Lindsay & Martín in Austin, Texas, which represents school districts, noted that the risk points for districts facing legal challenges include reducing or cutting services without parental consent, or failing to meet IDEA's procedural requirements. Martín said, "Can everyone understand that this is a pandemic and that districts are doing their best? Only you can prove that."

Even outside of a pandemic, disputes between parents and educators can arise over the type and amount of individualized services for students. According to data from CADRE, a technical assistance center of the U.S. Department of Education, special education litigation (i.e., due process)increased between 2008 and 2018。

During the same period, the number of state complaints—another avenue for parents and advocates to express special education concerns—rose slightly. However,early dispute resolution methods(such as voluntary mediation meetings) also increased between 2008 and 2018, indicating a willingness on both sides to resolve disputes without going to court.

CADRE Director Melanie Reese said, "CADRE promotes early dispute resolution as much as possible. You want to address concerns early, before issues escalate."

In some states, parents and districts agree to invite impartial, trained facilitators to IEP meetings to help keep conversations focused on student needs and to move discussions forward in a collaborative and respectful manner.

Proactive strategies

School systems—and individual teachers—have taken numerous steps to implement the specific instructional methods in students' IEPs, such as: some fully online schools opened in-person learning opportunities solely for students with disabilities who need intensive support and others who cannot learn online. Many schools offer additional tutoring time before or after class, use remote therapy services, or send assistive technology devices to students' homes to better enable their participation in online learning.

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"You can't just say, 'We've done enough.' Keep working at it. That's my slogan for all districts right now—let's keep working at it."

David Bateman

Professor of Special Education Law, Shippensburg University, Pennsylvania

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Special education experts say that schools that have been more successful in matching, or at least adapting, student IEPs to current pandemic realities are takingmultiple proactive measures。

First, they maintain ongoing communication with parents to understand how students are accessing and engaging in learning, said special education attorney Julie Weatherly. Weatherly represents school districts in Alabama, Georgia, and Florida, and founded Special Education Solutions. She said, "Given the current situation, work with parents to keep them informed—just as you always have—and work together to do your best to provide some appropriate services for children."

Matt Cohen, a Chicago attorney representing families in special education disputes, agreed: "In my view, one of the most important positive features of the guidance from the U.S. Department of Education and some states is that (schools are told they should) engage in genuine dialogue andwork with parents as partners to solve problems, rather than simply imposing a plan and expecting the child and parents to accept it no matter what."

David Bateman, a professor of special education law at Shippensburg University in Pennsylvania, who also helps school districts prepare for due process hearings, said that simply sending emails and making phone calls is not enough. Follow-up should be thorough, including efforts to adjust practices when students struggle and when parents do not respond to outreach. He said, "You can't just say, 'We've done enough.' Keep working at it. That's my slogan for all districts right now—let's keep working at it." He added that these ongoing efforts should also include verifying that students can log into virtual learning platforms and have reliable internet connections.

Tim Havard, director of student services for Auburn City Schools in Alabama, said that is exactly the approach his district has taken. Despite the many challenges of adapting student services to a fully online environment or even socially distanced in-person formats—especially in supporting students with significant cognitive disabilities—Havard said the district, which serves about 1,000 students with IEPs, has not received any formal complaints during the pandemic.

Havard credits the high responsiveness of special education teachers to parent questions and suggestions. He said that during this difficult time, educators need the support of parents just as parents need the support of the district. "The key is focusing on student needs and communicating with parents," Havard said.

CADRE's Reese advises schools not only to follow IDEA requirements for providing parents with notice of due process and other procedural rights, but also to share CADRE'sparent resourceson early dispute resolution practices andtips for virtual IEP meetings。

Reese said, "Disagreements can arise, and procedural errors are not uncommon. Investing in building relationships helps foster trust. If parents don't feel trust, small issues can escalate because of that."

Weatherly also advises school staff to establish systems for thoroughly documenting communication efforts with families and adjustments to approaches. While having complete records of communication and instructional adjustment decisions helps organize a school's specific approach to individual students during this chaotic period, these records can also serve as evidence in future court cases if necessary. She said, "We've instilled this idea in all the directors. You have to remember this is a different time. Your staff may be working from home on different networks and portals, so you really need to set up documentation systems."

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"Investing in building relationships helps foster trust. If parents don't feel trust, small issues can escalate because of that."

Melanie Reese

Director of the Center for Appropriate Dispute Resolution in Special Education

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Several legal experts also warned school districts against adopting a one-size-fits-all policy of providing compensatory services to all students with disabilities. Weatherly said that while such an effort may be well-intentioned, compensatory services should be based on individual needs, and each student's situation should be reviewed by the IEP team. She said, "A one-size-fits-all approach is dangerous. There may be some IEP teams that can make individualized decisions about the impact of COVID on a child and continue to provide some services—I tend to call them 'COVID-impact services' or 'recovery services.'"

But Weatherly said unresolved situations could evolve into lawsuits against districts. She said, "I think at some point we'll see a large number of these cases, but I think everyone is baffled by how long this situation has lasted. For parent attorneys, it's difficult to prove what compensatory education services should be provided when in many cases the impact of COVID is almost impossible to assess."