Season 4: Episode 3: Distance Learning Challenges and Successes During the COVID-19 Pandemic

Well, this last quarter of the 2019-2020 school year has certainly been unusual! Students are adjusting to distance learning while districts are troubleshooting and problem-solving in innovative, creative ways. Christina Peer joins Lisa Woloszynek and Miriam Pearlmutter to talk about how special education has – and has not – changed in the era of coronavirus distance learning. We also discuss privacy concerns arising as children connect from home and how to address graduation ceremonies during this COVID-19 pandemic.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter | Haverfield in Cleveland, Ohio. Every so often, every few weeks, we get together even during these times and we talk about education law and any new legal developments relevant to school districts, administrators, teachers, anybody who works in the schools.

Lisa: In our last several episodes, we’ve discussed school districts as they have started to happen to deal with this coronavirus outbreak and what that means for schools, especially at least schools in Ohio have been closed to students for some time. We’ve talked about distance learning options, some special education, confidentiality, staff, and union issues.

Now that we’re in May and the closures have extended, we wanted to get back together and discuss what those continuing pandemic issues look like. Especially as we move into the summer and talk about what the last quarter of school has looked like for the school district and some planning for things like graduation, progress reporting, things like that. With us today, we have a partner and head of our education group at Walter | Haverfield, Christina Peer, thank you for joining us, Christina.

Christina: Thanks so much for having me.

Lisa: Welcome, welcome. Christina, you’ve actually had a webinar recently on some similar topics. Is that right?

Christina: That’s correct. We did a webinar pretty recently on these topics. If you were able to attend that webinar in person or via Zoom because obviously that’s the way we did it. This will be more of a recap for you, but if you weren’t able to access it for some reason, then you can certainly utilize this podcast or you can also let folks from your district who maybe couldn’t attend the webinar, let them know that they can go listen to this podcast, because a lot of people in districts, not just directors of special education or administrators, but also teachers have a lot of questions about some of the issues we’re going to be talking about.

Lisa: Absolutely. Just before we dive into too much, I want to just remind all our listeners. We are in Ohio. We are going to be talking a lot about things that are somewhat specific to Ohio since all different states are dealing with this pandemic differently. Keep in mind, you can certainly apply some of the general concepts and then check your state rules and regulations for any more specifics.

Miriam: Christina, I think one of the first questions that I’d like to ask you about is whether district’s obligations in terms of providing a free, appropriate public education have changed at all in any way as a result of this pandemic. Has there been any amendments to district obligations or anything that you know of that you can share with our audience?

Christina: Miriam, which is a fabulous question. It’s one, frankly, to which there’s the correct legal answer and then there’s what’s practically happening. Legally, absolutely nothing has changed. There have been no amendments to IDEA. There has been no relief government in terms of what a district’s obligation is to provide a free, appropriate public education. That all looks exactly the same.

Practically speaking, I think all of us know that since everyone is now providing educational opportunities remotely, what students are getting looks very different than what they were getting when school buildings were physically open. At least in Ohio, the guidance that districts have gotten from the Ohio Department of Education thus far is that they need to make a good faith effort. That’s, note, the air quotes, a good faith effort to provide students with a free, appropriate public education.

Again, understanding that it’s not going to look the same as it would have looked if school buildings were actually open. I’ve had some people ask me, “Well, isn’t this different?” Because under the Endrew F. Standard, we have to talk about the child’s unique circumstances. Students are making progress and you’re providing services that are designed to provide students with a free, appropriate public education and educational opportunities dealing with their unique circumstances.

The issue with that is that it’s not the child’s circumstances that have changed in this pandemic, it’s the world’s circumstances. Nothing is different about the student and their needs, what’s different is how we can deliver instruction. Districts can’t necessarily use this and say, “Well, our faith obligation has changed based on this change in circumstance,” because that just isn’t the case. The child’s circumstances are the same.

It’s tough. Let’s be honest. It’s really, really tough because you’ve got so many students who just are not going to get the same level or benefit of the services online that they would in person, but districts don’t have other options at the moment.

Lisa: It’s really important to point out too, as this has developed over the last couple months. I think when it first started school districts were really hopeful that we were going to see some really clear guidance that clarifies that FAPE can look different and we’ve seen that the federal government isn’t really going that direction. The recommendations that came out of the US Department of Education for things that they were seeking waivers for and asking Congress to look at really only looked at a waiver related to transitions from part C to part B under IDEA.

We’ve seen that the response really is that FAPE obligation still exists and districts really need to work with families and their teams to figure out what does that look like in this new, different circumstance for everyone.

Christina: That’s exactly right. It’s so challenging. Districts really were very hopeful at the beginning of this, that there would be some additional guidance and maybe some additional flexibility, but that has not come to be the case, at least not yet.

Miriam: Districts also need to understand too when we look to, for example, the Ohio Department of Education they’re in a bind too, because we’re talking about federal laws. They can’t just pick and choose what they want to waive on their own like timelines and such. It really is going to become a little challenging, districts really are going to have to get creative in what they’re trying to do.

Christina: That’s exactly right.

Lisa: One question that I had is about this last quarter, the fourth quarter, so part of support for students with IEPs are still required, even regardless of what’s going on with report cards in districts, is that right?

Christina: That’s right. At least in Ohio. I’m saying that simply because of the way the Ohio IEP form is- the way it’s worded. In Ohio, our IEP form says that progress reports for students with disabilities will be provided at least as often as report cards are provided for non-disabled students. That really comes at it from our section 504 non-discrimination perspective, right?

Then the Ohio IEP form goes on to say, it has a little box. Anyone in Ohio is familiar with our little box where you have to put in specifically every, how many weeks progress is going to be provided. Districts can say, “We’re going to do it every nine weeks,” if they do report cards every nine weeks, or “We’re going to do it every four and a half weeks,” or, “We’re going to do it every 12 weeks,” whatever works. Because of the way it’s worded, you can’t just say, “Well, no, we’re not going to do progress reports,” because the IEP specifically calls for them within a specific timeframe.

Miriam: One thing that I’ve heard and gotten a lot of questions on, and I’m sure Christina you’ve gotten similar questions is how do we document remote learning on a progress report, and do we need to give some long explanation? I’ve seen some very long explanations that are trying to mirror some of the guidance from the federal government in the department of education.

I just want to caution and discuss for a second what that should look like, because I think while districts really are trying to be proactive with this approach, I think sometimes they’re overlooking some of the implications and problems that could also stem from some of the assertions that they might be trying to make.

Christina: I think you’re right. I believe that putting something on a progress report is appropriate. Something to document that learning was taking place remotely, that data was being gathered in a different manner than it had been gathered for say the first three grading periods of the school year. I’ve also seen some that are like these very long-winded entire paragraphs, trying to explain everything.

I wouldn’t go with a whole paragraph. I would go with a short statement that explains, “Due to COVID-19 and school building closures instruction was being provided remotely, data was gathered remotely during the fourth quarter.” I had one district that felt most comfortable and I liked this approach. They felt comfortable also putting in a statement letting parents know that when students were back physically in school, they would take new baseline data on the different goals.

Which, frankly, I think is something we’re going to need to do anyway but it was nice to even let the parents know as part of the progress report, “Look, this is something we plan on doing. You’ve got your progress report, take it for what it’s worth, and then we’re going to get new baseline as we have to make educational decisions looking forward.”

Miriam: I think that’s a great idea. Some of what I would advise to avoid repeating is some of the obvious and certainly trying, just because you might want to assert in there that you’re providing FAPE, doesn’t necessarily equate to that. If you feel obligated to put that stuff in there, try to take a step back and think through that first.

Christina: Exactly. I think that’s exactly right. I’ve had some districts who- they’ve basically said so much in trying to prove that they’re providing FAPE. Whether they think they’re providing FAPE, it almost proves the opposite. Less is more here in some ways.

Miriam: Don’t forget you have your prior written notices. Your PR01 in Ohio, you can use those and really should be using those to explain what you’re providing for each individual student during this time. That will be your documentation to show the efforts that you made and the options that you discussed.

Lisa: One thing I was wondering about is, what actual services look like during these distance learning times. Have you seen any specific information about related services or specially designed instruction about how districts are actually working with students with special education needs?

Christina: The guidance that we’ve been providing to districts, like high-level guidance is make sure that whatever services you’re providing, whatever that looks like, it has to be specific to the student’s IEP goals and objectives. It can’t just be general services from an intervention specialist or, “Oh, we’re providing you with access to this general education curriculum but we’re not providing you with any services specific to your IEP goals and objectives.”

Intervention specialists need to make sure that they’re doing that first and foremost. Many of them are doing it via Zoom, via Google Meet, via Skype. There are lots of different platforms that we’ve all become increasingly comfortable with over the past eight or nine weeks to provide that instruction, at least in Ohio. I say that because I want to make sure I give this caveat. At least in Ohio, the Ohio General Assembly passed House Bill 197, which makes it much easier and authorizes related service providers and intervention specialists to provide teletherapy.

They can provide actual therapy sessions via Zoom or via Skype or via Google Meets to kids who already had those services on their IEP. Additional parental consent is not required. Nothing else is required to be done and the good part for therapists about House Bill 197, it’s clear that there can’t be any ramifications on those folks against their license for providing this therapy remotely or via teletherapy during this time.

Some of the caveats with that are that people need to make sure that they’re doing it via a private platform. Not something that’s public-facing. Don’t go on Facebook live and do your OT session because that’s not going to be okay but if it’s a specific Zoom call where you’ve only given the passcode to the student or students who are going to be on those sessions or Google Meets, that’s completely fine.

Lisa: I have some questions too on, I think, they’re good points, especially for some of the related service providers of what the limits are there. I think some of that, you have to just think through very practically. What you’re trying to instruct, can you do that virtually? Fully recognizing there may be some physical therapy activities, some speech-language activities that you really just can’t or have to wait until you can do some in-person instruction.

Also remember what is safe in that mode, especially, for example, physical therapy, do you need to do hands-over-hand assistance to show that activity safely? Remember that parents don’t always know how to do that, so you need to be cautious in what activities you’re trying to request that the family do, without you present.

Christina: I think that’s a great point, Lisa. The rule of thumb that I’ve been talking to with different districts are things related to if you were a therapist working with the student, would you feel comfortable instructing a peer professional or another unlicensed person to help out with that activity if you’ve given them some training? A therapist can certainly provide some training to our parents on, “This is the way to help your child with a cutting activity or a shoe-tying activity or something like that.”

“I’m the therapist, I’m going to be here on the computer screen with you, but I’m going to need your hands, parents, to help me out with that.” That’s very different than, “We’re going to use this piece of physical therapy equipment,” but the physical therapist says, “Oh my gosh, I would never ask someone who’s not a licensed therapist to ever think about utilizing this piece of equipment with the students.”

It’s a common-sense way to think about what you might have parents to work on and what you might say, “Look, we’re just not going to be able to work on those particular goals right now.”

Lisa: I think that’s really good, useful metric for providers. Another thing I just wanted to go back to something that you mentioned earlier, Christina, is privacy. I think that in our last podcast episode, we did briefly talk about privacy issues. I think that as distance learning has progressed over the last several months, we definitely noticed some interesting privacy issues that have come up. I’m wondering if you can speak to that a little bit.

Christina: Sure. Some of the privacy concerns that we’ve looked at are, what happens in this environment when we don’t know who was in the house with the student. They’re doing this therapy session via the computer and we don’t know who all might be looking in. What we don’t want people to do, our district said, “We don’t want them to make parents premise their child getting therapy on waiving any privacy rights or anything like that.”

We looked at it from the perspective of, “Look, schools are not a completely closed-off environment.” Other people, outsiders do come into school. They come into classrooms, you have parent volunteers, and you have folks who come in. This really isn’t so different than that. What we’ve tried to make sure that teachers understand is, if you would say something that would not be appropriate for you to say in front of your entire class, in your brick and mortar building, please also don’t say it on your Zoom call or on your Google Meet.

It really is very, very much the same. Just know that there’s going to be other people in the background who are going to be listening in on what you’re saying, not for any malicious purposes but especially for young kids, they might need help, and kids with disabilities, they might need help accessing the Zoom call or the Google Meet or whatever it is. So parents are going to be there to help out.

Miriam: Let’s touch on really quick, recording of the sessions, both intentionally by district staff and also inadvertent recordings.

Christina: Recordings are really, really, really tricky issue. I know some districts feel the need to go ahead and record because they want to be able to document what’s been done. Some of it is based on that and I would say to those folks, “Look, you don’t really need to document what has been done, not in that way anyway. Please hear what I’m saying. We definitely need to document the services that we’re providing but recording is not really the best way to do that.”

You wouldn’t do that if you were teaching in a brick and mortar school. We don’t record all of our lessons, so there’s really no reason to record everything that we’re doing in this new environment. That being said, other districts are saying, and I understand this, “We want to record the lesson because we want to be able to make it available later for students who maybe couldn’t attend, at 1:00 PM on Thursday afternoon. They can get access to it later. We want to make sure that everything is available to all of our families to the greatest extent possible.”

The best way to go about doing that is to have the teacher record the part of the lesson that has the teacher instructing, but not to record all of the interactions with the students that might take place later. If the teacher’s going around and having students answer questions or provide information, just stop the recording there after the actual instruction has been provided. That’s certainly one way to do it.

Folks need to be concerned about what educational records you’re making. If you have videos that have students in them, are those becoming educational records for each of those students? I think the answer to that is unclear because FAPE didn’t really– Well, let’s just say it wasn’t written to contemplate COVID and lessons being recorded and everything being done remotely, and we don’t have good guidance yet about how to handle some of these issues, and I don’t think we’re going to for quite some time, so people just need to be cognizant of that.

You also need to be careful about the possibility of recording inappropriate content. Maybe situations where a student who is part of the lesson does something or says something that’s inappropriate, well, now we have a recording of that and what do we do with that? You also have to worry about people, everyone is Zoom-bombing by now. What happens if someone Zoom-bombs the lesson that you’re doing and now we have a recording of it, and maybe the content was pornographic and highly inappropriate, how then do we work through that?

Those are situations where if you’re a teacher, I would say call your administrator. If you’re an administrator, I would say call your local police department and your attorney to figure out what to do with any recording if you have one of this really inappropriate content. I would also tell you, “Please whatever you do, don’t share it with anybody else in the meantime.”

This is not the time to say, “Oh my gosh, look to see what was recorded on my Zoom lesson.” Then you start forwarding it to other people, because now we just magnified the problem. Just little high-level things to take into consideration.

Miriam: What about the families where the districts are offering a variety of services and maybe the family has health care workers that are busy working and don’t have a lot of time to help the child participate in these services, or they just don’t want to participate? What kind of issues have you seen in that realm?

Christina: I haven’t really had parents come to say, “Well, we’re not able to participate because of our unique family situation, we’re health care workers,” or that sort of thing. Unfortunately, what I have seen a good bit of are folks who are simply declining services because they don’t like remote learning, they don’t like online instruction. They’re saying, “I’m going to decline services now, and then I’m going to come back and tell the district that you owe me all of this time later, because I want my child’s time to be in person. I don’t want it to be via remote because I don’t think the remote is very effective for my child.”

I would say to districts, you need to keep offering the services. You need to send prior written notices documenting your efforts to get the parents on board, letting the parents know that simply declining services is not an option. This is not something that parents can opt-out of.

Now, obviously, there’s nothing we can do to make a parent accept services, but that being said, we can certainly take into consideration later when all of this shakes out, whenever that might be. We’re looking at what Ohio was terming as recovery services or compensatory services, however you choose to think about it, do you have parents where you can say, “Look, we don’t believe that we owe your child all of the minutes that were missed because we offered to you all of these different minutes and all of this different instruction and you chose not to take advantage of that. It’s not a choice.

Lisa: I like how you reference the recovery services. I’ve heard a lot of districts talking about and acknowledging they’re going to need to look at compensatory services when schools are back in physical session. I like the idea and concept of recovery services because this is a little different scenario than just the child didn’t get what they were supposed to get from the district.

The other thing I wanted to point out too is keep in mind if parents are declining or not liking the remote learning type of model, your team’s still going to have some obligation to talk through other options. It really is because of the child’s needs, that it’s just not a good mode of service for them. I get that that’s challenging, but think about are there other things you can provide the family to work on and they have one district that send an iPad to the family and also send a whiteboard and some supplies like that to practice some skills.

Trying to be creative and meet that child’s specific needs, while I acknowledge it’s not going to look the same, but be able to show that you had those conversations and you came up with some ideas and attempted to at least try or offer some different strategies to the family.

Christina: Those are all really good ideas, Lisa. I like those a lot.

Miriam: I really love hearing about districts that are creative and come up with out of the box ideas and I think one area that we really are seeing a lot of this creativity in is with graduations. As the year comes to a close, school districts have to figure out what to do with their graduating seniors, with eighth-graders and here in Ohio, we have had some relatively specific guidance from the Ohio Department of Education as well as the Ohio Department of Health.

Some of the guidance indicates that obviously virtual graduation is preferred. If you’re able to do a graduation virtually, completely online, that’s what they would like to see. That’s what ODE would prefer to see. Other options that they have allowed school districts include a drive-through graduation where the families remain in their cars either in the parking lot or in a line, and then they hear the ceremony and each student individually comes out one by one maintaining social distancing guidelines to receive his or her diploma.

Then there’s also, I guess some school districts are doing single family graduations where the process takes place where we’re typically would inside a building in the auditorium, but it only involves one family and that one family, presumably, less than 10 people requirement also includes the administrators and everyone who’s present in that room. The student comes up on the stage, receives his or her diploma, and then leaves with his or her family leaves, and everything is cleaned down. Everything is wiped down, the door handles, and everything is sanitized and prepared for the next family that comes in.

This just came to mind as you were talking, Lisa, about the creativity. Some districts are combining the two. They’re taking video of the small family graduations and then combining it into a montage that they are showing at a drive-in theater or some other venue that would include more families separated in their vehicles.

Lisa: Been in the area, there’s been a lot of creativity out there. It’s been great to see. I would say one thing just to point out as districts wrap up their planning for these pieces. At least in Ohio, there is a process where the districts can get some approval to bring students and families into the school buildings, but they do have to come up with a really specific plan to still ensure health and safety and they need to request permission to do so from their local Department of Health.

Miriam: That’s a great reminder, if you are using a school building in Ohio for your graduation ceremony, even if it’s a single-family ceremony, you should petition your local board of health for specific permission to do that.

Lisa: I think one final issue before we wrap up, Christina. I wanted to just quickly ask you about those students who are in separate facilities. Sometimes a school district’s IEP team will place a child in a separate facility for services. What’s going on with those kids? Are school districts still obligated to make sure those students are receiving services even during this time of building closure?

Christina: Absolutely. Something that every district should be aware of whether you’re in Ohio district or anyplace else in the country, because this is part of federal law, the district of residence, so the district that placed that student is always responsible for making sure the student is receiving a free appropriate public education. If the separate facility is not doing anything or they’re not reaching out to parents, they’re not continuing to provide some services, legally that comes back on the district of residence. You really want to make sure that you’re keeping track of those students as well.

The only potential situation where that would not be the case is if you have a student who’s placed in a separate facility through a settlement agreement of some kind. If the settlement agreement specifically says that the district is not responsible for faith during the term of that placement, but otherwise, that’s going to come back on the district of residence, and you’re going to want to make sure that you are in fact, checking in on those students and those families, making sure that they have what they need.

I’ve heard a couple of really distressing situations in our local area about students who weren’t able to access the instructions the separate facility was providing, because they were doing it remotely, of course, and the student didn’t have technology that they needed.

While the separate facility didn’t notify the district of residence that the student needed technology and the district of residence is saying, “Look, we have computers sitting around, we would loan this family, an iPad, or a Chromebook or something but because no one communicated with us, we weren’t able to do that and now we have a student who has missed out on a lot of instruction that was offered just due to lack of technology.”

If you have kids placed in separate facilities, it is really important for districts to reach out to make sure that those families also have what they need.

Lisa: I think that’s a great point. We’ll dive into this a little bit more in our next episode as we talk about summer planning. There’s been a wide range of what separate facilities are doing for their summer planning too. It’s going to be really important for districts to reach out and be proactive, so you know what you’re going to be responsible for planning on your end as well.

Christina: Absolutely.

Miriam: Christina, thank you so much for joining us today. We really appreciate it. For our next episode next time, like Lisa said, we’re going to talk more about summer issues, extended school year services, and then also looking forward to the fall and what school districts should be thinking about. Thank you so much for joining us today. Have a great day. Enjoy your day in coronavirus land, stay healthy.

Disclosure: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of the information contained in this podcast.