We know that many students and their families are continuing to struggle with remote learning. We would like to share this valuable resource for understanding your child's communication access rights under the Americans with Disabilities Act during remote learning. If your child communicates with an alternative communication system such as an AAC device, gestures, signs, or pictures/symbols, this information is for you.
We are continuing to monitor the legal impact of school closures on students with disabilities and their parents and caregivers.
On July 27, 2020, attorneys in New York state filed a federal class action lawsuit against ALL public school districts in the United States on behalf of ALL students with disabilities - including students with IEPs and 504 Plans. http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=J.T.+v.+de+Blasio+07.28.20.pdf
One of the named plaintiffs is a student in CMS (Charlotte-Mecklenburg Schools). See page 87. Both CMS and WCPSS (Wake County Public School System) are specifically mentioned in paragraph 38. The list of the North Carolina school districts sued is on pages 175-176. North Carolina public charter schools are not on the list of North Carolina school sued.
The complaint describes widespread denials of FAPE (Free Appropriate Public Education) and disability discrimination as a result of school districts' failure to provide appropriate special education services and access to the general curriculum after the COVID-19 related school closures. Only 10% of school districts provided adequate services to students with disabilities; many did not even try to provide individualized, appropriate services. Some school districts attempted to force parents to waive their child's rights just in order to obtain limited remote services.
This lawsuit is only in the early stages and will have many challenges before students with disabilities and their families can expect to experience relief as a result of the case. We will update you as the case progresses.
To prepare for the coming school year, consider joining us on August 19 for a webinar on Understanding & Advocating for a Free, Appropriate Public Education During COVID-19.
We are available by appointment to discuss your individual legal claims regarding services provided during the 2019-2020 school year and assist you in planning for the 2020-2021 school year.
On Monday, April 27, 2020, a coalition of special education attorneys and advocates sent a letter to the North Carolina Board of Education regarding the Board's duty to ensure all students with disabilities are provided a free appropriate public education (FAPE) during the COVID-19-related public school closures.
We hope your family is healthy and surviving the challenges brought on by COVID-19. We recognize this is an uncertain time, but it is not a time when your child is without rights. It is very important that we make a concerted effort to make sure that our children are receiving the special education services that they need and to which they are entitled. It remains unclear if the North Carolina Department of Public Instruction is going to order school districts to provide services to students with disabilities; however, we read the guidance from the federal government to mandate that your child receive services that are included in his/her IEP.
We believe it is important for parents to track and assess what level of service their child is receiving each week, rather than trying to rely on memory or the records of the school district months from now. Therefore, we are providing a Weekly Special Education Service Delivery Tracking sheet.
We are providing this as a service to North Carolina families to help you gather and maintain the information you may need in the future.
Should you have any questions regarding this form, or any education law matter, please feel free to contact our office at (919) 942-1430 or complete our contact form.
On Friday, March 27, 2020, the North Carolina State Board of Education released a plan to assist with the fallout of COVID-19 including a policy to assist graduating seniors. Seniors are not required to have more than the 22 credits required by the state to graduate. Seniors will receive grade for fall and yearlong classes but students will only received pass/fail grades for spring classes. If a student was failing on March 13, he or she must be provided with remote learning opportunities to help him/her pass.
The State Board also makes it clear that students in grades K-5 and 6-11 will not necessarily be evaluated or graded the same way. A school will only evaluate or grade if the school meets certain conditions such as equitable access, consistent communication between the teacher and students, and evidence of student learning.
Stacey Gahagan and I would like to provide parents and guardians with information about the impact of the COVID-19 virus on your child's right to a free, appropriate public education as guaranteed by the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.
Since North Carolina public schools began making decisions to close, the attorneys at Gahagan Paradis have been tracking and considering the ever-changing implications for the students we represent. IEP meetings are being canceled, school evaluations have ceased, and deadlines in due process cases are being extended. While school buildings are closed to instruction, some schools have ceased serving students while some are providing virtual services.
On March 12, 2020, the U.S. Office of Special Education Programs (OSEP) released Question and Answer guidance pertaining to COVID-19 and students with disabilities. There is a link to the guidance at the bottom of this email. Essentially, if schools do not provide services to students without disabilities during a school closure of more than 10 consecutive days, the school is not obligated to provide services to students with disabilities (students with IEPs and 504 plans). If the school provides services to non-disabled students, the school is obligated to provide students with disabilities equal access to the same opportunities including the provision of FAPE (free appropriate public education). School must ensure, "to the greatest extent possible," each student with a disability can be provided the special education and related services identified in the student's IEP or 504 plan.
On March 17, 2020, the North Carolina Department of Health and Human Services issued answers to Frequently Asked Questions (FAQs) related to Executive Order No. 117, which ordered the closure of all North Carolina public schools for instruction until March 30, 2020. During the period March 16-March 30, 2020, public schools are not required to provide remote or distance learning, but they may if they are able. Current virtual learning should continue. There is a link to the FAQs below.
On March 21, 2020, the U.S. Office of Civil Rights issued a Supplemental Fact Sheet addressing concerns that federal law presents insurmountable barriers to the provision of remote instruction for students with disabilities. I have added a link to the fact sheet below. OCR points out the ways school districts can provide remote learning and the need to make individualized decisions about compensatory education once schools resume normal operations.
Stacey and I will continue to monitor COVID-19 related issues for students with disabilities. We expect to see some guidance from the North Carolina Department of Public Instruction (DPI) soon. Until that time, we want you to be aware that no exceptions because of COVID-19 have been made to any legal requirements related to students with disabilities. Eligible students continue to be entitled to have an IEP or a 504 plan in place. IEP teams already have the option of using alternative meeting formats including phone and video conferencing. Timelines for initial evaluation and IEP development are not excused. Deadlines to file complaints related to 504 and special education claims are not waived. We will continue to work on individual cases, push for schools to meet deadlines, and update you when DPI releases guidance.
Stay healthy and contact our office if you need to consult with a lawyer.
Warmly, Ann Paradis