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Legal Aid, parents push for changes to ACPS mask policy

Albemarle County’s mask policy discriminates against students with disabilities and needs to be revised, parents and the Legal Aid Justice Center recently told the county School Board.

“The current mask policy has created an untenable situation for all, especially for students with disabilities,” said Heather Tower, who has a son with autism at Albemarle High School.

Her son, who doesn’t communicate verbally, is likely claustrophobic, which makes wearing a mask a challenge.

“In totality, the past six and a half weeks, his teacher has been working almost exclusively on mask wearing from nine to four daily, which is seven hours of forced discomfort on a docile child who is nonverbal,” Tower said. “This is the same child who has refused to wear a mask and goggles while skiing in cold Vermont winters the past seven years.”

Tower and several other others shared their concerns regarding the mask policy during Thursday’s School Board meeting and asked for a more individual approach to the issue of masking in order to take into account a student’s individual needs.

That’s what is currently happening, the division said in a statement Monday.

“Every child is entitled to the opportunity to learn at their highest potential,” division officials said. “We take very seriously our responsibilities to work with each family to provide all the accommodations needed to deliver to every child, meaningful learning experiences while protecting the health of our students and staff.”

The mask policy, which requires that everyone in a school building wear a mask while inside, says that students with a documented medical condition or disability that prevents them from wearing a mask will be offered an alternative education program. The policy doesn’t specify what the alternative program is.

The division has recently re-interpreted its mask policy to allow students with disabilities to come into the buildings to work on mask-wearing. Previously, students were told they would have to stay home until they could wear a mask all day.

According to the statement, division officials discussed the mask policy with the Student Health Advisory Board, which includes local medical professionals. That group recommended changes to the accommodation and mitigation practices for students unable to wear masks full-time while in school.

“We since have successfully been working with the small number of special education families and students for whom the masking policy was a difficult challenge,” officials said in a statement. “We added to several of our mitigation practices, the wearing of N-95 masks for staff, the use of face shields and goggles by staff, a doubling of our air filtration system protections in special ed classrooms, the use of outdoor learning spaces, smaller groupings of students and a graduated approach to increasing the skills and comfort level of students in wearing a mask.”

The division said that the response from families to “this work in progress” has been positive.

“Children who were not in school on a consistent basis are now in school,” officials said in the statement. “The support of their families has made it possible to utilize an individualized approach for each student, tailored to meet their own unique needs and comfort level with mask wearing.”

Early into this school year, parents started raising concerns with the policy and its implementation.

State and federal orders relating to mask requirements exempt students with disabilities. Additionally, state and federal special education laws were not suspended during the pandemic, meaning that schools were still obligated to provide services spelled out in a student’s individual education plan, a legal document.

Recently, LAJC prepared a civil rights complaint in response to the division’s policy but did not file it because the school system started accommodating and including students. Instead, Legal Aid is advocating for the division to change the policy to comply with the law and ensure all students with disabilities are accommodated and included.

The reinterpretation doesn’t change the underlying problems with the policy, which the School Board adopted in July, a Legal Aid representative said in a prepared statement read at the meeting.

“While this week’s Daily Progress article made it seem like this issue has been resolved, there continue to be students who are not accessing their special education and related services due to their disabilities and the existing mask policy,” said Spencer Haydary, a University of Virginia Law student working with Legal Aid. “Moreover, the written policy has not changed, but it needs to. The board needs to revise its policy if it is to ensure that Albemarle is for all learners.”

Haydary said that to resolve the issues with the policy, Legal Aid asked that the division allow for an “individualized determination of what reasonable accommodations are appropriate to allow students to access their special education and related services while keeping everyone safe.”

Additionally, Legal Aid asked that the school division no longer automatically relegate students with disabilities to an alternative education program if they are not able to wear a mask because of their disability. The organization also wants to see the division utilize other COVID-19 mitigation strategies such as increasing opportunities for outdoor learning, physical distancing, testing, better ventilation, minimal contacts, and private placement.

The School Board did not discuss the public comments during its meeting.

For Tower, the mask requirement has meant her son Jonathan is working on mask-wearing all day at school rather than his educational goals.

“Currently his teachers and staff are stuck between a rock and a hard place as they diligently work to follow the current blanket mask policy that’s required of them, and they’re continually placing the mask over our son’s face and he rips it off within seconds,” Tower said. “And after more than 18 months of practice, his ability to wear it while in a seated learning position is 30 to 60 seconds.”

Tower said that the division’s mask policy is preventing Jonathan from receiving a free and appropriate public education, which is the federal standard for students identified as having a disability.

“We would like to request that the board revise the current mask policy in order to fully integrate all student populations including students of different abilities,” Tower said. “Special education administration’s aware of the problem and the fact they’re not in compliance with federal IDEA law.”

One mother, Janice Mills, said that her daughter’s services only began six weeks into the school year after she retained legal counsel.

“Until I showed up with legal counsel, none of my daughter’s IEP goals were being worked on, like everyone else was mentioned, and none of her IEP mandated therapies have been started,” Mills said. “ … Once we had an emergency IEP meeting with legal counsel, we were offered the very same accommodations that the county had denied us for the previous six weeks. So, the truth of the matter is that students with complex needs — all the students that we’re talking about — are really best served in person, especially after having been out of school for a year with the pandemic.”

Mills’ daughter attends the county school division’s Post High program, which is geared toward students ages 18 to 22 to help them transition from a school setting to adulthood. Her daughter has Angelman’s Syndrome, which has led to neurologic and sensory issues, as well as PTSD from being involved with an Amtrak wreck in 2018.

“So both of those make mask-wearing an extreme challenge for her, even though we’ve worked really hard on it and are continuing to work on it,” Mills said.

Her daughter was sent home after the first week of school because of the mask policy, she said, adding that mask-wearing was the focus of that first week. She then negotiated an hour in-person twice a week where her daughter could go to Post High and work on mask wearing skills in addition to two 30-minute virtual sessions. Following the emergency IEP meeting, she’ll begin attending in-person, Mills said.

“It shouldn’t have to be this difficult and the exclusions shouldn’t be happening for people who don’t have legal counsel,” she said.

Similar to other speakers, Mills encouraged the division to change its mask policy to allow for an individualized plan to ensure that students have access to special education and related services.

“The current policy automatically excludes students with disabilities, and that needs to be changed,” she said.

Rochelle Garwood’s 20-year-old daughter, Laurel, also attends Post High and struggles to wear a mask because of severe sensory issues stemming from a brain injury.

“She absolutely panics when she wears a mask; she just can’t function,” Garwood said. “Her doctor is willing to attest to this. We were told, however, that for Laurel to attend Post High, she must work on wearing a mask.”

She said that Laurel was offered a few Zoom music sessions a week and some virtual physical therapy as an alternative if she couldn’t wear a mask. But she wants her daughter at Post High full-time where she can work on her IEP goals, which include communication.

Garwood said that they would do whatever it took so that people could feel safe around Laurel, who is vaccinated, including regular testing.

“It’s really important to us that she gets back to her IEP,” she said. “… We need to do this in a way that doesn’t traumatize Laurel.”


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