At the beginning of the school year, San Diego Unified leaders sent out a form to special education families, asking them to give consent for their children to take part in telehealth services.
In the time since, that form has pinged back and forth between many special education families on social media, causing confusion and, for some, distrust. The tussle between the district and families is just the newest in a long line of problems related to distance learning – especially among historically disadvantaged groups within the school system.
At a board meeting in early September, one public commenter told district leaders she believed the form was designed to take away parents’ rights.
“Why not be transparent and call it what it really is: a waiver,” she wrote. “By parents signing this form, it means parents are signing their children’s rights away.”
Andra Greene, San Diego Unified’s general counsel, responded to the public commenters: “This is not a waiver form at all. It is simply a consent form to allow for one-to-one instruction to be provided telephonically,” she said. “Parents are in no way restricted from participating in the [Individualized Education Program] process, nor do they waive any rights.”
Several local special education attorneys told me the reality of the form is somewhat more complicated. They questioned the form’s purpose and noted it might not be in the best interest of families to sign.
The form is a two-page document with 12 bullet points. Various attorneys pointed to bullet points one and 10 as those that raised the most concern:
“1. I have decided to receive telehealth and/or teleservices.”
“10. There are benefits from engaging in telehealth and teleservices however, those results cannot be guaranteed or assured.”
Paul Ingram, a local attorney, told me the first bullet point concerned him the most.
“The first sentence of the form could be seen in a negative light,” he told me.
Ingram explained the form could be perceived by a court as a parent agreeing to a change in a child’s Individualized Education Program, or IEP. IEPs are legal documents that define what services a child will receive to help them with their special needs. Parents, by law, are allowed to weigh in on the IEP. If they don’t like the services a school district wants to offer, they can challenge the district.
It’s possible the document could make a challenge harder, Ingram said. When parents and district leaders disagree on a child’s IEP, parents have a right to have the child’s services frozen in their current state. If parents have signed the consent form, and move to challenge the services the district is providing later, it’s possible a judge would say they have agreed to allow services online, rather than in person. The child’s services could be frozen in that state until the dispute is settled.
I asked what Ingram might advise a client who is hesitant to sign the form.
“I’d tell them to go and ask the district what will happen if they don’t sign it,” he said. “Are they saying they’re not gonna give me the services, if I don’t?”
If the district said it would still provide services, Ingram said there would be no need to sign the form. If the district said it wouldn’t provide services, that would raise a new question about what to do next.
San Diego Unified spokeswoman Maureen Magee did not immediately respond to questions about the form or whether parents could still receive services if they didn’t sign it.
Seth Schwartz, another local special education lawyer, described his reading of the form as “multi-faceted.”
“They maybe didn’t intend it in a bad way,” he said. “From talking to some people, I understand it was meant to address privacy issues. Initially, I took it as a not big deal.”
One bullet point on the form asks parents to acknowledge there are “risks, benefits and consequences associated with telehealth.” The form points out that telehealth is susceptible to technological problems, “breaches of confidentiality by unauthorized person.” It also mentions that it would be hard for teachers to respond to emergencies.
Initially, Schwartz took this statement as the main purpose of the form. But he said the more he read it, the more he became concerned about bullet point 10.
“It seems like one little innocuous line, where they seem to say your child may not benefit from services online. But it’s trigger language and indicates they may not be responsible for progress they should be responsible for,” he said.
“I don’t interpret it as signing away any special education-related rights,” said Jazmine Gelfand, another special education lawyer. Nonetheless, Gelfand was also concerned by some of the form’s content and said she would not necessarily advise her clients to sign it.
Nicole Shelton is executive director of Advocacy Associates, a firm that advocates on behalf of special education families. She also said she would be advising her clients not to sign the form.
“It does appear to be something they’re using to try to cover their behinds,” she said. “But it is indeed circumventing the IEP process.”