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Safeminds: Fears Rising of Massive Special Education Litigation
As the coronavirus pandemic continues, students with disabilities and their families are facing the rapidly approaching fall semester with reservations, as many of these families suffered through enormous difficulties last spring while trying to implement special education programs remotely. These families are now left to wonder if the fall semester will be any better for their students.
Concerned about the current state of special education programs, SafeMinds spoke to Tim Adams, a California special education attorney earlier this summer about special education advocacy during the pandemic. Sadly, in our article, Adams reported numerous instances where students eligible to receive special education were unable to receive any services since the COVID school closures. He also reported many other instances where students with disabilities received only a fraction of their educational services during the same time period.
Adams explained that early in the COVID shutdown, school districts from across the nation had erroneously interpreted a provision in last March’s Coronavirus Aid, Relief, and Economic Securities (CARES) Act as providing schools a free pass from following the requirements of the Individuals with Disabilities Education Act (IDEA). IDEA was passed in 1975 and guarantees a “Free and Appropriate Education” (FAPE) for all students with disabilities. A few weeks later, clarification from the Department of Education would prove these districts’ assumptions to be wrong.
Providing further clarification of obligations under IDEA, Adams explained, “… on April 27, 2020, Secretary DeVos issued her Report, making it clear that school districts are required to continue providing students FAPE in the least restrictive environment. The report did not request waiver authority for any of the core tenets of the IDEA. In other words, a special education student’s rights under federal law have not changed despite the COVID-19 school closures.”
However late last month, with the fall semester quickly approaching, three national school leader organizations asked Congress for a temporary reprieve from IDEA obligations. The School Superintendents Association (AASA), the National School Boards Association (NSBA), along with the Association of Educational Services Agencies (AESA) issued a 21-page report requesting liability protection out of concerns that meeting IDEA obligations will be excessively challenging during the ongoing coronavirus pandemic. Due to potentially not meeting IDEA standards, the school leaders are concerned about the possibility of special education lawsuits. To head off litigation, these groups suggested attaching an IDEA liability protection provision in the next COVID-19 relief legislation, which is currently being developed by congress. READ MORE AT SAFEMINDS