Closed schools have to serve some special education students in person, experts say

Out of all the students struggling with distance learning, students with disabilities need in-person services the most, some San Diego parents and advocates say.

Many special education services — such as hands-on occupational therapy or a one-on-one aide — can’t be replicated well online, parents say. Some are reporting that their children simply aren’t learning and that Zoom is too distracting and impersonal.

Meg Menard, a Tierrasanta mom of a 6-year-old boy with autism who attends Elevate Elementary charter school, said she sits with her son throughout his Zoom classes and reminds him to sit up and pay attention every few seconds. At the same time, she takes care of her three other children and works on a master’s degree.

“He doesn’t want to pay attention to Zoom,” she said of her son. “He doesn’t want to sit down and stare at his iPad…. I have to keep telling him to stop messing with the screen. He’s also a 6-year-old little boy, so he doesn’t want to sit still anyway.”

At school, her son had a special education aide who knew how to get her son to focus and who fueled his drive to learn. Now the aide interacts with him via Zoom, but it’s not the same, Menard said.

“It’s been terrible, a terrible experience,” she said. “It’s not anybody’s fault; it’s just a really unfortunate situation.”

Many San Diego-area school districts and charter schools are staying closed for the near future, though some of them are planning to hold in-person sessions for some special education students.

A recent special education ruling suggests that schools, in certain cases, have an obligation to serve students with disabilities in person — even if the schools are barred from reopening by the state, which could be the case in San Diego County as soon as next week.

Last month, a California administrative judge ruled in favor of an 11-year-old special education student who argued that the distance learning she was given was not comparable to the education she is supposed to receive according to her special education plan, also known as the IEP.

The student’s school district, Pleasanton Unified in Contra Costa County, had at first refused to give the student certain in-person services because the school district was barred from reopening, due to high COVID-19 levels in the county.

But the administrative judge, Cararea Lucier, noted that California schools have not been prohibited from providing special education services in person, despite the governor’s stay-at-home and school closure orders.

State guidance issued in early April says that, in some cases, school districts and charter schools have to provide special education services in person for the sake of students’ mental and physical health and safety, so that the students can access distance learning.

This particular case involved a student with intense physical needs. The Pleasanton student isn’t able to speak, is fed through a tube and is orthopedically, cognitively and visually impaired. She needs intensive, in-person services in order to learn, Judge Lucier decided.

Lucier ordered Pleasanton Unified to provide the student in-person speech therapy, physical therapy, vision services and a personal, licensed vocational nurse, all of which are listed in the student’s IEP.

Unlike with state or federal court cases, rulings on special education cases are specific to the individual student. They don’t necessarily create a new legal precedent that can be used as a rule in future special education cases.

But some special education experts say this judge’s order means schools aren’t going to get away with not providing in-person services if a student truly needs them.

“The cases we are starting to see are telling us that schools are not getting a free pass for COVID and school closures, that they are, and were, responsible for implementing the IEP and the learning losses that may have occurred for not doing so,” said Seth Schwartz, a special education attorney in San Diego who represents families, in an email.

Schwartz said just because a service is provided online doesn’t mean it’s insufficient.

“The delivery model must be viewed in light of the student’s ability to access the service and benefit from these opportunities to learn,” he said.

Andrew Lee, a former attorney and editor at the special education nonprofit Understood.org, said he expects more legal challenges to distance learning by special education students this new school year.

“I think something that everybody acknowledges is that kids with disabilities … are having a really difficult time with remote learning,” he said.

AALRR, a legal firm with a San Diego office that represents school districts, recently told its clients to expect more filings like this one challenging distance learning.

In anticipation, the firm is recommending that school districts review their distance learning plans and figure out which students are having trouble accessing distance learning — which could include students with moderate or severe disabilities, students with significant behaviors and medically fragile students.

Several school districts in San Diego County already are making plans to give in-person support to special education students.

San Diego Unified and Poway Unified are among area districts opening slowly and in phases, first bringing back students with disabilities and other vulnerable students for in-person support sessions.

The state is allowing schools to provide small, in-person support sessions for special education students and other high-needs students, even if the schools are in counties with high COVID-19 levels.

San Diego Unified Special Education Director Sarah Ott said recently that the district will be able to provide all IEP services online. Unlike in the spring, she said, all direct special education services will be live online for students this new school year.

“We’ll be able to provide all the services that are outlined in the IEP,” she said.

Ott said the district has been finding flexible ways to provide services, including one-on-one help, small group work, phone calls, and assistive technology tools like closed captioning, sign language and Google Read&Write.

She said school staff have seen more engagement with special education students online, because some students benefit from learning in a quiet space, rather than in a classroom with other students.

Still, several parents in the county say online learning and Zoom classes are not working for their children.

Alicia Martinez, whose son attends Charter School of San Diego, said that after a couple months of distance learning in the spring her 12-year-old son, who has autism and ADHD, started running away from the computer because he didn’t want to do Zoom.

It’s reached the point where she does his homework for him.

“He would lock himself in the room. No matter how much we coaxed him or helped him, there was no point; he was done,” Martinez said. “And I hear a lot of moms say this.”

Martinez said her son does not want to do the occupational and speech therapy he is supposed to do, according to his IEP. She worries he is regressing.

She wishes her school would provide one-on-one, in-person support sessions, even if it’s just an hour a week.

“These teachers, they have a gift. They’re experts, they can work with the kids,” Martinez said.

“No matter how much I try, I can’t get him to cooperate…. When I try to teach the way I learned it, I can’t make him understand. It’s hard for me; I’m not a teacher.”

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