Education Law Center Nails Problems with the DOE’s Emergency Changes For Special Education Students.

Tomorrow morning the New Jersey State Board of Education will hold its first-ever Skype public meeting due to COVID-19. The first item on the Board’s agenda will be a proposal by Education Commissioner Lamont Repollet that allows schools, during this State of Emergency, to provide services to students with disabilities on virtual platforms.

Education Law Center will be there to quibble.

And everyone’s right.

Quick backstory: When districts abruptly closed, some shut down all remote instruction due to obtuse guidance from the federal Education Department, since clarified. (See the bottom part of this post.) Now, Repollet says, students with IEP’s can have their services (like speech and occupational therapy) delivered online or on the phone. This “ensures school districts and educational agencies are meeting their legal obligation to provide a free and appropriate public education, as required by the Individuals with Disabilities Education Act (IDEA), during a period of extended school closures to the greatest extent possible.”

This is a reasonable stance during a crisis. And yet, as the mom of a son with multiple disabilities, I’m worried about cloudy and unenforceable phrases like “the greatest extent possible.” As I’ve written before, not all related services listed in IEP’s (Individual Education Plans) can be delivered remotely. Not all districts will comply —some don’t comply even when there are no emergency school closures. (We see the same uneven pattern in the delivery of home instruction to neuro-typical students.)

Education Law Center is right to be concerned. While I’m a frequent critic, especially concerning its dependence on teacher union money and its support for the Murphy Administration’s efforts to  regressively erase accountability and stifle parent choice, ELC’s response to Repollet, written in collaboration with the NJ Special Education Practitioners and the SPAN Parent Advocacy Network, is right on point.

Here are ELC’s four objections:

  • While the emergency regulation is necessary, ELC urges the state “to clarify that implementation of the emergency regulation will not, in and of itself, ensure school districts and educational agencies are meeting their legal obligation to provide a free and appropriate public education, as required by the Individuals with Disabilities Education Act.” IEP’s are, of course, individualized  and IEP teams must determine on a case-by-case basis if compensatory services are necessary once schools reopen. To indeed “ensure” that districts are doing right by kids, “we recommend that the State obtain and disseminate effective practices from the professional associations whose providers serve students with disabilities in the areas of speech-language, behavioral, occupational, and physical therapies. As noted in federal guidance, there are circumstances where it may be ‘unfeasible or unsafe’ to provide ‘hands-on physical therapy’ or ‘occupational therapy’ through remote instruction.”
  • ELC requests that the “State immediately notify all public school districts and charter schools that they cannot condition the provision of remote educational services during school closure on the signing of broad waivers by the parents of their students.” What’s that about? Apparently some districts are asking parents of students with disabilities to sign away their rights to due process once schools resume. Awful, right? These districts are totally in cover-your-ass mode and the State must intervene. In the same vein, some districts (ELC doesn’t name any names) have “improperly notified parents that the recording of any instruction or therapy sessions would be a violation of New Jersey Wiretapping Law.” ELC is right and districts engaging in this duplicitous behavior are wrong:  NJ is a one-party-consent state, which means parents can absolutely tape therapy and instruction without permission. Other districts have forbade parents from being present during remote instruction. That’s illegal too. 
  • Thirdly, ELC points out that “the disparities in services offered by different school districts have been startling, ranging from the mere distribution of work packets to the provision of direct instructional services via video conferencing.” One district says it “no longer has the capacity to print paper packets for its students who lack internet access.” (ELC must be reading my blog!) All students should have access to necessary technology. All students — disabled or not — must have access to “evidence-based practices for successful online instruction.” (Word to the wise: they don’t. No different than disparities in school-based instruction when we’re not in the midst of a pandemic.
  • Lastly, ELC says the State’s Office of Administrative Law, which resolves disputes between parents of special education students and districts, “has not yet embraced video or telephone conferencing to conduct mediation sessions in special education cases.” There’s no reason why these cases can’t be heard remotely so get on it!

It’s tough enough educating students with disabilities under typical circumstances. In is harder doing this remotely.  It seems to me that ELC’s letter is less about Repollet’s proposal and more about districts that are responding to this crisis with less integrity and grit than one would wish. We can’t trust them so we’ll have to count on the State to verify that New Jersey schools don’t shortchange students who are shortchanged all the time.

What do you think?

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