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Georgianna Kelman鈥檚 phone doesn鈥檛 stop ringing nowadays. A special education attorney in Los Angeles, Kelman currently represents 60 families in Southern California with complaints that their children didn鈥檛 receive services they were entitled to when schools closed in the spring.

鈥淚 can only imagine the bottleneck of litigation that is coming,鈥� Kelman said. 鈥淚 have clients to this day who have not heard from their teachers or their service providers.鈥�

Because of the abrupt switch to remote learning when COVID-19 swept the country, districts nationwide have struggled to follow through with the services students are required by law to receive. It was made even harder by the fact that individualized education programs, or IEPs, that determine services for each special education student were never meant to be delivered virtually. These services might range from extra tutoring or speech therapy to extensive, one-on-one assistance for students with severe and complex health needs.

In Los Angeles, Jabril Scott, who is entering kindergarten this fall, is supposed to receive speech, occupational and physical therapy. But 鈥渇or the first month [of school closures], we didn鈥檛 hear anything from any therapist at all,鈥� said his mother, Noel Scott.

When a therapist eventually contacted the family, they sent links to handouts for at-home activities. 鈥淚t was just really silly,鈥� Scott said.

released in May showed that almost 40 percent of parents whose children typically receive individual support in school did not get those services during school closures. Those with IEPs were also twice as likely to be doing little to no remote learning, and were just as likely to say that distance learning was going poorly.

Before schools closed, Jabril, who has Down syndrome, was also supposed to receive a device that helps him communicate. But when Noel Scott asked about it, she was told the office where the device was kept was locked. With schools in Los Angeles remaining closed for the beginning of the year, she鈥檚 not very hopeful that remote services will improve.

鈥淓specially if we鈥檙e going to be doing online distance learning, there has to be a lot of engagement for him to participate in that,鈥� she said.

Special education students 鈥渟truggled the most,鈥� Mississippi State Superintendent Carey Wright said recently in a call with reporters. She added that her department has 鈥渉eard from parents who did not feel that their children received what they should.鈥�

Special education families across the country have stories like the Scotts鈥� this year. But whether districts provided services for students with special needs during school closures also varied tremendously and depended on a range of factors, including agreements negotiated with unions, if districts already had one-to-one device programs, and teachers鈥� own family circumstances.

Some districts and regional education agencies that provide special education services say they are already being sued, and they expect litigation costs to further strain budgets when many are already facing cuts. Their reports come as the Senate is considering another pandemic relief bill that leading Republicans have said should include liability protections.

But John Eisenberg, executive director of the National Association of State Directors of Special Education, said that across the board, states have not yet seen a flood of lawsuits. While some districts might be receiving more complaints based on how responsive schools were to families during the school closures, the majority of complaints 鈥済et resolved with a phone call,鈥� he said.

Even so, at least two cases have received attention so far. And with a growing number of districts announcing they will remain closed for the start of the school year, the issues prompting complaints could continue into the coming year.

In New York City, a disability rights attorney has signed 200 parents from 10 states onto to reopen schools so students can receive in-person services. With a radio advertising campaign, he鈥檚 seeking more families to join. And in Hawaii, aims to make it easier for districts to make up for the special education services students didn鈥檛 receive during the closures.

The reopening debate is spurring additional litigation 鈥� both in states that are aggressively reopening schools and those that are not. In Florida, education groups over Republican Gov. Ron DeSantis鈥檚 order to reopen schools, leaving many special education families conflicted.

Parents 鈥渒now that their children need specially designed instruction delivered in the classroom,鈥� said Ann Siegel, the director of advocacy, education and outreach for Disability Rights Florida. But in other cases, she said, virtual instruction was more individualized and positive.

In California, where Gov. Gavin Newsom, a Democrat, has issued restrictions stating which schools can reopen, a conservative group last week, arguing that students with disabilities are among those hurt the most by distance learning.

A small survey of in the Los Angeles Unified School District showed that less than half of the respondents said their children received services during the three months that schools were closed in the spring. Others said the therapy provided wasn鈥檛 effective.

Fearing 鈥榣egal challenges鈥櫬�

AASA, The School Superintendents Association, lobbied hard for the federal government to lift the requirements of the Individuals with Disabilities Education Act during this crisis, and they continue to look for such in the next relief package, as well as 鈥減rotection against related litigation.鈥�

Although the Coronavirus, Aid, Relief, and Economic Security Act passed in March allowed for the waiver of major elements of the special education law, U.S. Secretary of Education Betsy DeVos against lenience. She urged districts to demonstrate 鈥渋ngenuity, innovation and grit鈥� in serving students with special needs through distance learning or other methods. She also hasn鈥檛 granted a request from the Council for Exceptional Children for over IEP timelines.

Some districts acted on their own, however, asking parents to waive their rights to services for their children, but such moves have been declared to be legally out of bounds. The New Jersey Department of Education, for example, issued saying such waivers violate state and federal laws.

In a this month, AASA, the National School Boards Association and the Association of Educational Service Agencies said 9 percent of respondents in those service agencies have received due process complaints related to the pandemic 鈥� essentially demanding what families are entitled to under the law. In addition, 30 percent of school districts and 38 percent of the regional agencies said they were expecting complaints.

Anonymous comments included 鈥淚 fear that the cost of litigation could potentially bankrupt our district鈥� and 鈥淲e are a very small independent district, and a single due process hearing could, in reality, close down the district.鈥�

The survey report notes that a single due process complaint can cost as much as $50,000, even if the parties mediate an agreement. About one-third of the special-education-related complaints districts said they had received focus on insufficient services, and 22 percent focus on compensatory services, which aim to help the students make the same amount of progress they would have if the services hadn鈥檛 been lost. Fifteen percent of the complaints focus on IEP meetings.

The report blames the Trump administration, saying that 鈥減olicy support has been inadequate鈥� and that while DeVos offered flexibility in how services were provided, 鈥渢he ambiguity of federal or state policies could lead to legal challenges for school practitioners.鈥�

Senate Majority Leader Mitch McConnell, a Republican from Kentucky, has spoken repeatedly about providing liability protection in the next federal relief package. On Monday, he and Republican Sen. John Cornyn of Texas introduced the 鈥�,鈥� which aims to discourage 鈥渋nsubstantial lawsuits鈥� against a variety of institutions, including school districts. But Sasha Pudelski, assistant director of policy and advocacy for AASA, said the bill wouldn鈥檛 prevent complaints or litigation related to special education.

鈥楪ood faith attempts鈥�

Eisenberg said AASA and the other organizations are trying to 鈥渟ell a narrative鈥� and that there鈥檚 no indication that there鈥檚 an increase in litigation compared with a typical year. Districts see thousands of requests for mediation and due process complaints every year. last fall from the U.S. Government Accountability Office showed that requests for mediation 鈥� considered a less adversarial route than lawsuits 鈥� have increased over the past decade, while due process complaints have declined.

Wendy Tucker, senior director of policy for the National Center for Special Education in Charter Schools, added that if schools made 鈥済ood-faith attempts鈥� to provide services, remained in touch with parents during the shutdown and worked out compromises, they are less likely to see complaints. Most parents, she said, weren鈥檛 expecting perfection.

Linda Litzinger, a public policy specialist with Texas Parent to Parent, a statewide advocacy organization, agreed. She said parents have complained the most about a lack of communication from districts regarding how and when services would be delivered.

鈥淸Parents] gave the schools a lot of leeway, and that worked for a while,鈥� she said. But when weeks passed and parents still hadn鈥檛 heard from their children鈥檚 special education teachers or classroom aides, 鈥渢he frustration mounted.鈥�

A lot of parents, she said, are 鈥渙n pause鈥� because they want to know what districts are planning for this fall before they file a complaint or join a class action.

As in New Jersey and , Litzinger said some families in Texas were asked to sign waivers absolving districts from special education laws or from following what is in a student鈥檚 IEP during school closures. Her group has told them, 鈥淧lease don鈥檛 sign anything,鈥� and to get an expert to review it. A parent in the Northside Independent School District, for example, was asked to sign a temporary 鈥渃ontinuity plan鈥� explaining how services would be modified while schools were closed.

Eisenberg said such waivers 鈥渨ould not pass legal muster.鈥� And Phyllis Wolfram, executive director of the Council for Exceptional Children鈥檚 school administrators organization, said she has advised districts not to send blanket waivers to families and to instead 鈥渃ontinue to work individually with families on what they could provide.鈥�

鈥楢 mixed bag鈥�

Still, remote learning benefited some students with special needs, even if they didn鈥檛 receive all of the services in their IEPs. Tracy James, a grandmother in Escambia County, Florida, called distance learning 鈥� and her thoughts on schools reopening 鈥� 鈥渁 mixed bag.鈥�

While at home, her oldest grandson, Kyrian, who is entering first grade, avoided behavior problems that sometimes landed him in the 鈥渟eclusion or isolation room鈥� at school. But he missed out on the speech therapy he would have received in the classroom. Her younger grandson, Karsen, is entering the state pre-K program. Because he鈥檚 still developing language, James said, he needs the 鈥渋nitial in-person engagement鈥� of a classroom.

For this fall, she and her daughter have decided on a virtual school option for Kyrian and have been promised that he鈥檒l receive speech therapy later on.

And other families were impressed with how their schools handled the shift to remote instruction. Wendy Mauer, whose son Carter attends Suchma Elementary School in the Conroe Independent School District north of Houston, even dropped a complaint filed with the state education agency over his IEP because of the school鈥檚 approach, which included home visits by her son鈥檚 teachers.

鈥淲e had several IEP meetings online, and communication with staff was completely responsive,鈥� Mauer said. 鈥淲hen I expressed his work was not with accommodations, they immediately provided that service. The district also had an outstanding online learning portal for parents to navigate for resources and activities by their district curriculum specialists.鈥�

Looking toward the new school year, Wright in Mississippi said, many districts are planning to include those with special needs in the 鈥渇irst tier鈥� of students who are brought back into schools for in-person teaching.

鈥淭his is a place we鈥檝e never been. And I鈥檒l be up front about it, I don鈥檛 have all the answers,鈥� she said. 鈥淲e鈥檙e all trying to right this ship.鈥�

Some states are already using federal relief funds to help districts do a better job of providing special education services. Oklahoma, for example, has drawn from both the Elementary and Secondary School Emergency Relief Fund and the Governor鈥檚 Emergency Education Relief Fund 鈥� part of the CARES Act 鈥� for a that can be used for special education services. Of the 345 districts receiving the grants, 74 said they would use the funds for that reason.

In June, the Tennessee Department of Education announced that school districts would receive an extra $5 million on top of what they would normally receive in federal funds for special education to cover additional services, often delivered in the summer or after school.

But that was back when state and district leaders were likely thinking students would be returning to school next month as normal. Now there is no clear end to what services the additional instruction or therapy would be compensating for.

鈥淚t sounds like a good idea, but now we鈥檙e months later,鈥� Tucker said.

鈥楨normous academic needs鈥櫬�

Some experts say both school districts and parents need to move beyond the question of how to duplicate special education services 鈥� as spelled out in an IEP 鈥� in an at-home setting. An IEP includes specific goals for each student. But it also details the types of services or accommodations needed to help the student reach those goals, as well as where and how often those services will be delivered.

As long as parents鈥� demands focus on specific hours of therapy sessions, for example, there will be an uptick in litigation, said Nathan Jones, an associate professor of special education at Boston University. He also recently co-authored a reopening focusing on special education.

While students have a right to what鈥檚 in their IEPs, he said, it鈥檚 more important now to focus on what students need academically to regain what they鈥檝e lost and to make progress when school resumes. How, he asked, are schools 鈥済oing to meet the enormous academic needs students present when they walk in the door, whether it鈥檚 in person or virtual?鈥�

He highlighted New Hampshire Gov. Christopher Sununu for IEP teams to meet before the end of the school year, to offer extended school year services if needed, and then to have another IEP meeting within 30 days after the school year starts.

Rather than encouraging families to file complaints, Siegel in Florida said she鈥檚 advising families to focus on making sure their children are assessed when school starts and to determine what additional services will be needed.

鈥淗onestly, this is not a point-your-finger blame game,鈥� she said. 鈥淲e鈥檙e in this pandemic together.鈥�

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