Coronavirus and Schools: Is it All or Nothing in the COVID-19 World?
CORONAVIRUS UPDATE
We are in an area where not all students have access to the internet. Some of these students receive special education supports as well as related services. It is my understanding that if we are providing virtual related services for some then we must provide virtual related services for all. Is that correct?
You are really asking two questions: The first is whether a school must offer a particular virtual related service to all students whose IEPs include that related service if it is offering that related service to some such students. The second is whether a school must refuse to offer a particular virtual related service to all students if not all students will be able to access it. The answer to both questions is no.
To the first question: related services are an individualized form of support that are designed to meet individual needs. In the current circumstances, with resources stretched beyond capacity in many instances, schools simply might not be able to deliver every service to every child who is entitled to it. A school could decide, for example, to offer virtual speech and language therapy only to students with the most severe language-related needs, or only to students who are most likely to regress in language development, or only to students whose language needs cannot be met by other personnel (an autistic or life skills support teacher, for example). Such limitations would constitute a perfectly rational form of service delivery triage.
PDE has provided guidance on “continuity of education” that hints at this all-or-nothing approach, but in a different context. Under this guidance, for example, if a school decides that it will offer virtual algebra instruction to 8th grade students, it must ensure that all 8th graders have the opportunity to participate in that instruction. This approach would require that 8th grade students with disabilities receive adapted or modified virtual algebra instruction or virtual instruction in a math more suited to their levels (“replacement instruction”). It would not require, however, that every child in the district—disabled an nondisabled—receive math instruction.
The second question is one of socio-economic “equity.” You are not denying virtual related services to students in unconnected households; these students are not able to access those services because of economic or geographical issues beyond the control of the district. In their “continuity of education” plan format, PDE requires each educational entity to identify the means by which it will make a good faith effort to ensure “equity” in the delivery of education—to provide access to families who lack the means to connect on line. Some schools are making arrangements for drive-up access to Wi-Fi hotspots at schools or other public facilities. Where equipment is the issue, some districts are loaning laptops or Chromebooks to students. Where the cost of connectivity is an issue, some districts are helping families set up free basic Internet services through Comcast. In the absence of anything better, limited services is provided in the form of paper-and-pencil work packets with telephonic support. The very real possibility exists, however, that not every economic or geographical barrier can or will be overcome. We do not recommend—and we do not interpret any guidance from PDE as recommending—that when you cannot serve all, you should not serve any.
Although the inability of some families to access virtual learning opportunities is not the “fault” of the school, the absence of services during the period of mandated school closure might entitle the deprived student to more compensatory service after-the-fact than might be needed for a student who had Internet access during that time. Courts have recognized that compensatory education can be limited when the misconduct of the parent has impaired the ability of the school to deliver special education and related services to a child, but the entitlement to compensatory education is generally not a matter of “fault.” Its purpose is to make the child “whole” when he or she did not receive the FAPE to which he or she was entitled.