subscribe to our newsletter!Whether you’re preparing for your annual IEP meeting this spring or reviewing the one you just had, there are a few things to keep in mind. There is also comp ed. Undivided legal consultant and special education attorney Grace Clark helps us navigate these and other issues. 

 


  What do we need to be thinking about for our IEPs this spring?

First, remember that the majority of the IEP you’re creating now will be implemented next fall. With so much variation in students’ current learning situations as well as what is expected within the next year, IEP teams will need to develop very comprehensive IEPs this spring. They will need to address how services will be provided during full-time in-person instruction. Some considerations that will need to be addressed in the IEP are:

  • instructional minute adjustment
  • additional services to make up for learning loss
  • new mental health services
  • support in navigating a new campus for kids who moved to a new school this year
     


  How should we address the regressions our kids have experienced?

When a student demonstrates a lack of expected progress, IEP teams are required to meet. If you suspect your child has experienced a lot of regression, you may consider requesting an updated psycho-educational assessment (or an assessment in the areas you suspect a lot of regression). An assessment will provide you with data to establish learning loss, and you can use the data to craft an IEP to recoup the loss. If testing shows a child has experienced serious regression, the school should respond with an increase in service hours to compensate.

It is anticipated that many children will require extra services in order to make up for lost skills. As mentioned above, the CDPH has directed schools to prioritize summer programming, maximizing the amount of instructional time over the summer, and utilizing before- and after-school times.  

Keep in mind that programming provided during the summer to recoup learning loss is not the same as ESY. ESY services are prospective, and are not intended to make up for previous denials of FAPE. If your child was supposed to be provided with ESY last summer and was not able to receive this service due to the school closure, the school should make up this time by providing it during the school year, or during school breaks.

(Note: Because so many students have been falling behind, a new bill has been introduced to the California senate that would allow parents to hold their child back a grade, or change a child’s grades to a “pass” or “don’t pass,” so students who regressed during school closures aren’t unfairly held to account.)

 


  What recourse do parents have whose schools are not providing therapy?

With the passage of SB98, an IEP must contain a description of how the IEP will be provided during emergency conditions. It is appropriate that the IEP continue to be provided differently. Each student must negotiate the terms of their IEP based on their individual needs, but if a student requires therapy, the school must provide it.

 


  How can parents talk about placement if they weren’t able to tour schools or meet teachers?

If a parent does not feel ready to discuss placement because they have not been able to tour a prospective school, they can request for their child to remain in their current placement until it is possible to tour the new school. If a parent feels that a move may be in their child’s best interest, many schools are offering virtual tours, or will accommodate prospective parent meetings on Zoom.

 


  Many parents are having a hard time talking about goals when they don’t have reliable data to cite. Should we request new assessments at the beginning of next year?

Newly enacted California Evidence Code section 43509 requires schools to specifically state what additional supports will be provided for students with disabilities served across the full continuum of placements. This includes how the school will measure learning status particularly in the areas of English and math, and how the school will address learning loss and accelerate learning progress, as needed. The school must also state how these strategies differ for students with disabilities. Teachers and parents should work together to make sure a student is able to access instruction, and that the delivery of instruction is effective. 

It is nearly impossible to create realistically ambitious goals without current data on a student’s present levels. Any parent who suspects their child has experienced regression, or has veered off-track from the time of their last IEP, can request a full psycho-educational assessment if it has been at least one year since the previous assessment. This could be done when school returns in the fall, or could be started now.

(Note: Under California law, assessments should have resumed in June 2020. Some districts are asking to waive the assessment timeline, but it’s not a good idea, so don’t do it!)

 


  If a family doesn’t feel confident in the baselines provided, can compensatory ed be revisited next year, once they see how their child is functioning in a normal school environment?

A family has two years from the date a violation occurred to request a due process hearing. This means that if the violation was incorrect baselines, the family has two years to address this issue with the school before any request would be prevented by the statute of limitations. Waiting until next year to address problems from this year is probably fine. However, waiting too long, as in nearing the two-year mark, would put the school in the position of not having to address the issue, since the family would have no recourse for the school’s failure to act.


*** MORE ON COMP ED ***

In a free workshop for parents provided by LA’s Jewish Family Service on April 14, three attorneys (two of whom were also SpEd teachers) — Arlene Bell, Chris Eisenberg, and Allison Hertog — shared some great points on how to approach comp ed this coming school year. Here are a few highlights.

  • Remember that the purpose of comp ed is to provide your child with the support they need to attain the academic position they would have achieved had they received the FAPE they were entitled to during the school closures. Any loss of FAPE due to school closures justifies comp ed. This slide from the Jewish Family Service LA breaks out the areas to consider and document when making your case.


  • It’s also really important to understand the differences between recoupment services and comp ed. They are not the same!


     


  Any social-emotional points parents should consider writing into the IEP to support kids returning in person this spring or next year? Any accommodations you’re seeing in re: masks or social distancing?

The CDPH has instructed schools to maximize mental health services due to the significant amount of mental health symptoms students are experiencing as a result of the school closure. I recommend that parents who have concerns about their children’s mental health specifically ask their school how they are incorporating this instruction into their reopening plans even if a child’s IEP did not previously address mental health.

The California Department of Education recently reminded schools in a February 11, 2021, letter that students with disabilities who cannot wear a mask cannot be excluded from their regular educational program for this reason. The letter specifies that people with certain disabilities (including cognitive, intellectual, developmental, sensory, and behavior disorders) who are unable to wear a mask properly, or cannot tolerate a mask, should not wear one. These students must not be excluded from educational environments if their disability prevents them from wearing a face covering. Further, schools must continue to adhere to the least restrictive environment requirement of the IDEA, which means they cannot, for example, force a child who cannot wear a mask to attend a special day class if the child was not previously placed in a special day class.

 


  Is there anything parents can do to advocate for their children who have just been assigned a different teacher/class? 

Unfortunately, students do not have the right to the same teacher or class for the duration of the school year. The best way to prevent a child from being moved is to make an appealing request to the principal. I have always found the most success by stating the problem and then proposing a solution, or multiple solutions.

 

What are your IEP concerns this spring? Do you still have questions? Let us know!

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