Families of special needs students fear they’ll lose school services in coronavirus shutdown

In Sangamon County in central Illinois, a father whose 10-year-old receives occupational and vision therapy at school was already concerned about how remote learning would affect his son and other students with disabilities.

Then he got a letter from his son’s school district that made him worry even more. The letter asked parents to either accept the remote learning being offered, which amounted to a scaled-down version of what was provided when children were at school, or decline and acknowledge that they were “voluntarily waiving” their rights to a “free appropriate public education” and the ability to seek services from the school later.

The father and other parents of special needs students said the letters have stoked fears that their children won’t get the education and other services, such as speech therapy or counseling, they are entitled to under federal law while schools are shut down to stem the spread of COVID-19. And if their children lose those services now, they worry, they may not be able to make them up or get them back when schools reopen.

“It is inappropriate that they are asking everyone to sign these forms to take it or leave it, and if you decline, we will have you waive your rights,” said the parent, whose son receives services through the Sangamon Area Special Education District and who asked to remain anonymous to keep his child’s identity private. “There are going to be thousands of parents who have no idea they have other options, and they will be forced to waive their rights without realizing they didn’t have to do it.”

After ProPublica Illinois and the Chicago Tribune obtained copies of letters from the Sangamon district and two other school districts and asked the Illinois State Board of Education about them this month, the state agency told school districts to stop using such language. The federal law that governs special education, the Individuals with Disabilities Education Act, or IDEA, guarantees students access to school and services to help them learn.

“At no time shall a school district request that a parent voluntarily waive their child’s right to a (free appropriate public education)” or FAPE, according to the new guidance, which said federal law does not permit such waivers.

Despite the state agency’s intervention, some parents of special education students, who number about 317,500 in Illinois, remain concerned. Those families often rely on a team of experienced school workers to help their children, and they have had to advocate for the services they receive.

In Chicago, the struggle over how to serve students with special needs came to a head this week. The Chicago Teachers Union filed a federal lawsuit Tuesday over the handling of special education during the pandemic, alleging that Chicago Public Schools and the U.S. Department of Education have failed to provide adequate resources and guidance. A directive to rewrite tens of thousands of individualized learning plans, in particular, has created an “impossible burden,” according to the lawsuit.

Students and their families also are facing a hardship, according to a group of Chicago advocates who appealed last week to city and state education officials to issue new, clear expectations for what remote learning should include for students with disabilities. The group, Special Education Advocacy Coalition of Chicago, wrote that it had “grave concern” that too many Chicago Public Schools students weren’t receiving meaningful schoolwork or other assistance. The level of access to schoolwork varies from school to school, the coalition wrote, and some students don’t have assistive technology to help them communicate.

Emily Bolton, a Chicago Public Schools spokeswoman, said the district has not asked educators to rewrite students’ entire learning plans but to “make basic accommodations and plans” to serve them. “Make no mistake: this lawsuit against the district is not about helping students — it’s about avoiding the necessary steps to ensure our most vulnerable students are supported during this unprecedented crisis.”

Department of Education spokeswoman Angela Morabito said: “This is nothing more than political posturing for a headline. It’s sad to see the union making excuses for why they can’t educate all students instead of figuring out a way to make it happen.”

It doesn’t appear that Chicago asked parents to sign the questionable waivers if they declined a remote learning plan. But an ISBE spokeswoman said she knew of three school districts that had sent letters including waiver language. It’s unknown how many more districts might have sent them, but the agency’s new guidance puts districts on notice that they shouldn’t try to force parents to make such a decision.

ISBE also has told districts they should “communicate and collaborate creatively with parents” and determine with each student whether services will need to be made up when schools resume normal operations.

School officials and attorneys for the three districts said that parents and special education advocates misinterpreted the letters and that they had no intention of forcing parents to “take it or leave it.” The option for parents to waive remote learning, they said, was intended for families who had decided they didn’t want or need the distance-learning education and other services the district provided. If they didn’t think the remote learning plans were sufficient, parents were allowed to request more or different services, district officials said.

The Department of Education reiterated last month that schools are obligated to educate students with disabilities during the coronavirus crisis. The Education Department’s guidance came as schools in New Jersey drew attention for forcing parents of students with disabilities to sign waivers saying they wouldn’t sue before the districts agreed to provide services online, according to HuffPost.

Federal law requires schools and families to work together to design individualized plans that set specific academic goals for students and the number of minutes schools will devote to meet them. The plans also specify other services, such as social work or physical therapy, that will be provided to students.

Mark Strawn, director of special education for the Sangamon district, said his teachers and other workers have “been going above and beyond to meet the needs of our students.”

“You have to realize that IDEA was not written and adopted with a pandemic in mind,” Strawn wrote in an email.

Cassie Clark, director of the Kaskaskia Special Education District in southern Illinois, also sent parents a letter that required them to accept remote learning, through online or paper learning packets, or to decline services. Families who opted out were asked to acknowledge that they were not entitled to the education.

“We had a duty to inform parents of that, as other programs were indicating some parents were seeking to simply opt out of services during this period,” Clark said. She said no parents of students at the district’s Bridges Learning Center, which serves students with special needs, declined services.

Attorney Brandon Wright, whose firm represents the Sangamon and Kaskaskia special education districts, said the option to decline services was intended for the small number of families who decided not to finish the school year, not for families who disagreed with the services offered.

“Certainly there was never any attempt for it to be misconstrued,” Wright said. “In special ed, there is never a final answer. A parent can opt out today and tomorrow change their mind.”

Yet Laura Myers, whose son is enrolled at Bridges, was concerned when she got the letter. She declined some of the virtual learning because her 7-year-old son Gabriel, who has autism and is nonverbal, doesn’t have the attention span to handle it. She opted instead to work with him on paper packets and on sign language skills. She signed the form accepting the remote learning but also wrote that she wasn’t promising not to challenge it in the future.

“It’s all new and we are all trying to do the best we can, and we don’t need people trying to trick us,” Myers said. “That’s how it felt.”

Olga Pribyl, vice president of the special education clinic at the disability rights group Equip for Equality, said she was “alarmed” after learning of the letters and contacted ISBE. She commended the agency for taking “swift action to stop this illegal practice” and said any waivers signed by families should not be enforceable.

The group has advised parents to expect “some trial and error” during the pandemic and not to expect all services outlined in their child’s individualized education plan. But it remains concerned that students with disabilities are getting “minimal” education and services.

“Now more than ever, it is critical that children and youth in special education get the supports and services they desperately need so they don’t fall even further behind in school,” Pribyl said.

Crystal Lake District 47, in Chicago’s northwest suburbs, didn’t request parents waive their rights but asked them to sign forms acknowledging that if they don’t agree to the remote learning plan, they couldn’t seek services later to make up for what they didn’t receive.

Under federal law, students who aren’t given the services mandated in their individualized education plan can get those services later. But it’s unclear how schools will manage that because learning has been disrupted for the country’s tens of millions of students.

The parents of a fifth-grade student in the Crystal Lake district initially refused to sign off on their daughter’s remote learning plan. While it included writing and math, it didn’t have the occupational therapy or social work that help her with her ADHD.

The parents, who requested anonymity to protect their child’s privacy, asked the district to reconsider the decision, but the district declined. In an email to the family, director of special education Kelli Catini said that COVID-19 was an unprecedented crisis and that “it is not reasonable to expect that your child will continue to receive the same type of special education instruction or related services that he/she would have received if schools remained open.”

The parents eventually signed off on their daughter’s remote learning plan in late April but added language saying they did not waive their right to seek makeup services.

“Parents most likely will sign it and be OK or be done with it. Parents are overwhelmed trying to meet the needs of their students,” said the girl’s mother, a social worker in another school district.

“As a social worker myself, this is not the time I would abandon my services.”

Catini said some parents have opted out of remote learning because of various concerns, including that the district could not guarantee confidentiality or privacy using electronic communications for such sensitive services as counseling. She said parents can always change their mind later and can file a due process complaint, a formal means of settling disputes.

Attorney Darcy Kriha, whose firm represents about 100 school districts, including Crystal Lake, said districts are facing huge challenges, including sick staff members, and may face limitations in what they can do while the pandemic is still raging. “I feel like it is kinder to let parents know the consequences of their decisions. It doesn’t mean they don’t have further rights” to fight for more services, she said.

“A parent’s right to challenge what a district does is sacrosanct,” Kriha said. “Those rights need to be respected at all times.”