The Many Legal Issues Arising Out Of The COVID-19 Crisis

March 20, 2020
Dear Friends,
The COVID-19 crisis transcends the obvious health and existential threat, with millions of school-aged children across the country home from school indefinitely as we watch an ongoing and as yet unresolved wrestling match involving Congress, the U.S. Department of Education, state administrative agencies, (e.g. the New York State Education Department), and local educational agencies (e.g. the New York City Department of Education).
Families are calling our office with the following kinds of questions. For example, can unmet IEP mandates give rise to a claim for compensatory education? Can the local school district provide my child with remote learning opportunities? If I am thinking about securing private services for my child, can the school district be made to pay for those services? Before I secure private services for my child, do I need to send my school district a “ten day notice” preserving my right to seek reimbursement for the cost of those services? Am I permitted to contract with service providers to come into my home if they are willing to do so? Since I am now spending the entire “school day” with my child, can I get (or secure funding for) “parent training” hours? Do I have any insurance coverage that may help to fund any of the supports my child may need? Should I request that my school district’s IEP team reconvene as a telephonic meeting?
The U.S. Department of Education has published and circulated March 2020 Questions and Answers that, unfortunately, do not definitively answer these kinds of issues. The crisis has put us all into largely uncharted territory. However, the Department of Education’s Q and A does suggest that if you are living in a school district that is offering remote learning opportunities, your family may have greater options and rights going forward than families living in school districts that are not offering such opportunities.
Each family’s circumstances will be unique. For that reason, families should consult with their attorney before contracting for private services or taking other related steps.
Lamar Alexander’s (R-TN) Shameful Effort To Nullify Or Dilute IDEA Entitlements
In the meantime, we are calling on all parents to help stop an ignoble legislative initiative and threat that, if allowed to pass, could easily destroy or at least significantly dilute our children’s entitlements under the federal IDEA statute and related state regulations.
           As part of Congress’ response to the COVID-19 outbreak, the bill introduced earlier this week in the Senate -- the Coronavirus Aid, Relief, and Economic Security Act  (to provide an infusion of cash to key industries, support for health care providers/health care systems and more) also includes a provision directing the Secretary of Education [Betsy DeVos] to report back to Congress within 30 days on any “waivers” needed under the IDEA and the Rehabilitation Act of 1973 (Section 504).The bill also gives the Secretary broad waiver authority over the Higher Education Act (HEA), the Elementary and Secondary Education Act (ESEA) and Carl D. Perkins education laws.
To be sure, these “waiver” provisions jeopardize every child’s rights to Child Find, a free appropriate public education (FAPE), Individualized Education Program (IEP), all procedural safeguards, re-evaluations, related services and accommodations.
As if COVID-19 was not already a serious crisis for families whose children are now not attending a school-based program, this legislative initiative threatens to eliminate every child's fundamental right to Child Find, a free appropriate public education (FAPE), Individualized Education Program (IEP), all procedural safeguards, re-evaluations, related services and accommodations, and more. To say the least, Congress should not be giving the nation a trillion dollar stimulus package while at the same time sweeping America's disabled children under the rug. It is time for our entire community to sound the alarm.
Our office is following this development closely and undertaking efforts to challenge this shameful proposal.
We urge all families to join us by reaching out to their Senator/Representative today (via email).
_Senators of the 116th Congress
A sample email follows:
Dear Senator/Representative:
While the COVID-19 outbreak has placed a tremendous and unprecedented strain on schools and districts, it is imperative that we work together to find solutions that allow children to receive equitable access to an education and the services that support them without undoing all of their civil and educational rights. I am writing as a concerned (parent/teacher/child advocate) to urge you to reject any proposal that would provide waiver authority to the Secretary of Education regarding the Individuals with Disabilities Education Act (IDEA). More than 7 million children and their families rely on the federal IDEA statute to receive special education supports and services.
I hope you will help schools by providing states with additional funding that can be used to provide teachers and school leaders and families with the tools they need to connect to teach and support students. Schools can also be supported with funding to provide an extended school year to students and other compensatory services.
COVID-19 does not discriminate on the basis of party affiliation. The IDEA statute came into being as a bipartisan effort that families across the nation have relied upon for decades. Please continue to support students with disabilities and their families who rely upon the IDEA so that they can access appropriate and effective educational programs. Please do not support any legislative initiative that would give any one individual the power to undo and eviscerate IDEA.
We know you will continue to have many questions. Please continue to reach out to us with those questions and we will remain in touch and connected.
Your Team at Mayerson & Associates

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