Season 1, Episode 2: Coronavirus & Comp Ed: Ensuring Our Children with Disabilities Are Receiving a FAPE

Welcome to the podcast. Let's talk sped law, a podcast dedicated to discussing special education rights of children with disabilities. I'm your host and special education attorney, Jeff forte. Now let's talk sped law.

Hi everyone. Attorney Jeff forte from let's talk sped law today. I want to discuss something very important to you. Um, and that is your child's right to compensatory education. As you all know, right now we are unfortunately seeing the Corona virus pandemic on fold hour by hour across our country. And in that regard it's important that you understand what your child's potential claim is to compensatory education. So let's jump into today's podcast entitled Corona virus and comp at ensuring that your child with a disability is receiving a free, appropriate public education. As we all come to terms with our new temporary norms across our nation due to the sea void 19 pandemic, it's critical that we understand and fully appreciate the impact that this outbreak is having on special education and related services to our students with disabilities and to their families. It's absolutely essential that families make informed and collaborative decisions about the educational wellbeing of their children with disabilities by first consulting with their local education agencies to determine how going forward our children with disabilities are going to be educated during this crisis. That said, it's also equally important that families know their child rights under the individuals with disabilities education act during this crisis situation, including your child's potential rights to receive comp ed. So first let's talk about what comp ed is. And by comp ed I'm referring to compensatory education. Under the individuals with disabilities education act, local educational agencies are legally obligated to provide all children, not some and not others, but all children eligible to receive special education and related services with a free appropriate public education. So as most of you know, if a child is eligible to receive special education related services under the Ida, they receive special education services under what's called a FAPE, which is a free appropriate public education. Now, if your local education agency does not give your child with special education related services, the services that they're supposed to be receiving as set forth and provided in your child's IEP, then your child may be eligible to receive compensatory education. Compensatory education is essentially a compensable compensatory fund or a compensation fund, so to speak, that helps your child catch up on lost time, hours, and related services for the duration of when your child was denied a FAPE, the amount of time and services that your child missed is what we commonly refer to as compensatory education. Now, if what happens if your school district is closed open or is available for e-learning, what's going on right now that I see is all the school districts within our state are closed. Okay. But some school districts are offering E learning programming. So if your child, if your school district is closed and is not providing educational opportunities to the general student population during this outbreak, then your local education agency is not legally mandated to provide services to children with disabilities during that same timeframe. So think of it like this. If your school district closes because of a snow day, that day in which your school is closed is not considered a day in which any child is receiving education, so therefore just like a neuro-typical general education student is not going to school the same for a child with a disability. Both are being treated equally and the same because the school is closed. The problem though that is arising is when your local education agency decides to offer online learning or e-learning alternatives to the general student population and is not offering those services to the special education student population. Now it gets even more complicated because what happens if your local school district is closed but as offering voluntarily on a voluntary optional purpose, e-learning alternatives to the general student population, even though it's voluntary, shouldn't those services and those same opportunities be given to the child with disability for specialized instruction and related services pursuant to that child's IEP or five Oh four plan. In essence, even if in the best intentions your local education agency is providing educational opportunities to some students but not others, it is certainly not legally compliant. Just this week, the United States department of education issued guidance to local education agencies on how to appropriately handle providing special education and related services to children with disabilities. During the CV 19 outbreak, the us department of education provides guidance that specifically provides that your local education agencies quote, must ensure to the greatest extent possible that each student with a disability be provided the special education and related services set forth in the student's IEP or five Oh four plan. So the present concern that parents should be inquiring about and knowing about is how is your local education agency going to ensure that a student with a disability receives their IEP or five Oh four special education and related services to the greatest extent possible during the school closure. I anticipate that there's going to be compensatory education claims that we will need to examine and provide a response back when schools are in session and these anticipated issues is what is going to be coming up. The amount of compensatory education that will be illegally needed and required for each student. Now, let's talk about how, assuming there is a comp claim, a comp ed claim, let's talk about how compensatory education is calculated. Well, generally speaking, the starting point and determining any claim or any award for compensatory education is by showing when a parent knew or should have known about their child's denial of a FAPE. To put it into context, if your local school remains closed, but starts to offer e-learning programming to educational students, but not the same for children with disabilities, you should Mark and enter that date down in a journal. Next, you need to look at what educational benefits would have accrued during your child's denial of the FAPE period. This requires that you examine both the qualitative and the quantitative benefit your child would have received had your child been offered a FAPE. There's simply no cookie cutter approach, so to speak, in this analysis, since your child's education is so specialized and uniquely designed to meet his needs. Lastly, it's critical that you keep and maintain a sufficient record of your child's right to claims of compensatory education. An impartial hearing officer cannot appropriately determine the amount of your child's compensatory education claims, unless you as a parent are able to provide that hearing officer or a mediation or mediator during mediation with sufficient insight as to the precise type of educational and related services your child missed in order to further promote your child's progress as set forth in your child's IEP goals and objectives and service hours. Now, my firm and I here are actively monitoring updates from the us department of education, as well as following how local education agencies are offering educational programming to students with disabilities in order to ensure that our children are being appropriately educated to the greatest extent possible during the Corona virus outbreak. Stay tuned for additional podcasts from let's talk sped law and thank you for listening.