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How To Legally Protect Yourself and District From Special Education Litigation During Social Distancing and Quarantine

Here’s the big question for special education: Is it legal to have students and teachers quarantined and not provide special education services? Well, technically no. The IEP team signed a legal contract that said, a specific person will provide specific services, in a specific place, and during a specified time. However, legal precedent shows us that unknown events and acts of God are reasons to provide flexibility on contractual agreements. This flexibility is currently happening in our country towards rent, mortgage payments, student loans, state tests, college classes, etc. The current pandemic is unprecedented. We weren’t ready for this. So now, we have to do whatever makes the most sense to help our world, our country, and our individual students.

The Most Safe Way To Legally Protect The School District

If you have the time, and you know you are out of a brick and mortar building for the rest of the school year, the safest option for the district and teachers is to hold another IEP meeting (digitally or via telephone), and then rewrite the IEP to meet the current needs of the pandemic. Then once we have returned to brick and mortar, we would meet again to redo the IEP. This could potentially lead to parents feeling more stressed because it appears that all supports are gone. But it is legally correct. Check out my following option if you want a softer option for parents.

For re-evaluations and testing, I would place them on hold. A parent could potentially sue the school district for not up holding child find laws and evaluating their child within 90 days of suspecting a disability. However, part of the special education process is to determine if, with adequate instruction, the student still requires special education services to access the content. I personally would not feel comfortable making the decision that adequate instruction has occurred when curriculum has been reduced, changed, modified, kids are suddenly at home, parents are anxious, etc. Plus I don’t even know if testing would be considered valid if it was administered digitally. If school districts communicate this with parents, and document their reasoning, it should be defensible in court.

The Next Best Option (and probably most practical)

The most practical thing a district can do is to have the IEP team meet and write an addendum to each IEP. Basically it would just spell out how the IEP would modify until each state and county are out of the stay-at-home orders. This would allow teachers to protect themselves, give parents and chance to ask questions, and for the team to set up a plan going forward.

Since an addendum doesn’t have a set format, make sure you include:

Photo by Michael Morse from Pexels

Things To Consider To Help Families

Keep It Up

There really aren’t rules on what is right and wrong in this situation. But, following legal precedent and the current laws can help guide you in the right direction. Keep up your positivity. You can do this. We all can if we work together.

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