**This post was updated on March 13, 2020 to reflect the new guidance from the U.S. Department of Education. You will be able to find all of KSB School Law’s guidance documents related to the novel coronavirus, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19
As communities around the country record new cases of novel coronavirus, schools are grappling with tough questions about how to respond to this burgeoning pandemic. The novel coronavirus, scientifically named 2019-nCoV, causes the COVID-19 disease, which has led to serious complications in some vulnerable populations, and is expected to spread more quickly than common coronavirus strains (such as influenza.) As schools prepare to respond to the spread of this virus, one of the important issues that schools should consider (among many) is how the novel coronavirus implicates their obligations to meet the needs of students with disabilities.
Best Guidance
As we anticipated in the original version of this post, the U.S. Department of Education adapted previous guidance related to the H1N1 Virus to provide schools information about their responsibilities to students with disabilities in the face of the novel coronavirus. The new Guidance, entitled Questions and Answers On Providing Services To Children With Disabilities During The Coronavirus Disease 2019 Outbreak, was released by the Office for Special Education Programs on March 12, and can be found here. It is referred to below as the “Q&A” document.
This document largely builds upon the Department’s Questions and Answers on Providing Services to Children with Disabilities During an H1N1 Outbreak. On the other hand, the Department’s Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions and Other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus) (“Guidance”) continues to provide additional information that can be read to supplement the Q&A document. This guidance can be downloaded here.
These are our best sources of information about how to address the needs of students with disabilities during an outbreak of novel coronavirus.
Planning Ahead
Recognizing the need for schools to prepare for any circumstances caused by the novel coronavirus, the Q&A document allows IEP teams to adopt contingency plans into a student’s IEP that would be triggered by a disruption in the student’s ordinary instruction due to the contagion. The document provides as follows:
IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home. Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.
Services to Students With Disabilities Who Are Absent Due to Illness or Health Vulnerability
If a student with a disability is too ill to come to school, he or she is likely too ill to receive educational services. If the student is home for an extended period of time (generally 10 days or more) the school should reach out to the family to see if the team needs to meet to craft a plan that includes homebound instruction.
Schools should be even more proactive if a student is not ill, but cannot come to school because he or she is at high risk of health complications if exposed to the novel coronavirus. The student’s IEP or 504 team should meet as quickly as possible to discuss how to meet these students’ educational needs during their time at home. The Q&A document provides:
[T]he IEP Team must determine whether the child is available for instruction and could benefit from homebound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services.
In the Guidance, the Department specifically noted that these meetings would not have to be in person: “The team may meet by teleconference or other means” if that would be appropriate. Once the danger to a high-risk student has passed, the IEP or 504 team should meet again to ensure that there are no additional educational needs that have arisen due to the student’s inability to receive services.
Remember that Endrew F’s admonition is that IEPs must have “challenging objectives that are appropriately ambitious in light of the child’s circumstances.” For students who are ill and those who are high risk, “the child’s circumstances” may include an inability to attend school. This must be an individualized decision, not based upon stereotypes or generalizations related to the student’s disability. That means schools will not be able to adopt a “one size fits all” approach to these absences. In some cases it might be appropriate to press forward with aggressive academic instruction using distance learning; in others it might mean backing off on some of the academic goals the team adopted when the school year started. What is appropriate for each child will have to be discussed and decided by the student’s team in light of what is necessary for the student to receive meaningful education benefit.
Exclusion from School as a Change of Placement
The Q&A document specifically contemplated students that must be excluded from school due to the risk of novel coronavirus. If the exclusion is a “temporary” measure, or one lasting ten or less days, the exclusion is not considered a change of placement. However, where a student’s exclusion lasts longer than ten days, the school “must consider placement decisions under the IDEA’s procedural protections of 34 CFR §§ 300.115 – 300.116, regarding the continuum of alternative placements and the determination of placements.”
Services to Students with Disabilities During School Closures
Federal laws like the IDEA, the ADA, and Section 504 do not specifically address what schools should do if they are closed for extended periods of time. However, public schools are always obligated in all circumstances to ensure they do not discriminate against students with disabilities.
The Q&A makes clear that if a school closes and does not provide educational services to the general student population, then the school would not be required to provide services to special education students either:
If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.
However, both the Q&A and the Guidance cautioned schools that, if they do provide some services to general education students during a closure, they must be sure not to discriminate on the basis of disability. So, if a school district decides to use virtual learning to continue to instruct all students during a closure, the district will need to make sure that all of a student’s educational needs are met to enable him/her to benefit from this instruction as well. District leaders cannot simply announce that general educational services will happen virtually without considering the needs of students with disabilities. Both special education and general education staff must understand that the decision to continue providing educational services in either physical form (like worksheets) or digital form (like Zoom or Schoology) will implicate special education obligations. According to the Q&A:
If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504.
Evaluation and Assessment During School Closures
In the Guidance, the U.S. Department of Education was unwilling to waive school obligations to evaluate and assess during school closures:
IEP teams would not be required to meet in person if a school closes. IEP teams, however, must continue working with parents and students with disabilities, including conducting informal assessments or formal assessments of the student, including parent surveys and standardized reports, and offer advice, as needed. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents, according to the guidelines.
Special education staff should look ahead to assessments and evaluations that are scheduled to occur for the remainder of the 2019-20 school year. It would be wise to consider advancing those assessments or to reach out to parents now to make a plan for what will happen in the event of a school closure.
Students in Out of District Placements
Students with disabilities who have been placed in out of district placements, regardless of whether those are residential or day programs, will pose unique issues for school districts. The Q&A makes it clear that if a residential facility closes, the local education agency remains responsible for addressing any educational needs of the students who were placed in that facility. Special educators should be proactive now to reach out to any out-of-district program that is serving students with disabilities to discuss that facility’s closure protocol. School districts should also communicate with the parents of these students now to broach plans for serving these students in the event of a school closure. Schools should also reach out to their attorneys for specific guidance on how to meet their legal obligations to students in out if district placements in these circumstances.
As with any other areas possibly impacted by coronavirus, you should gather all of your vendor contracts to have a clear picture of the school’s and the vendor’s/provider’s obligations, rights, and responsibilities. In the services context, you should be prepared to share your contract for services with your legal counsel to determine if it contains any provisions addressing closures, continuation or discontinuation of services during a closure, and others.
Early Childhood Services (Part C)
The Q&A specifically addresses early childhood services. It noted that if the offices of the state lead agency closes, then Part C services will not need to be provided to infants and toddlers with disabilities and their families during the closure. Similarly, if the lead agency’s offices are open but the offices of the EIS program or provider in a specific geographical area are closed due to public health and safety concerns in that specific region, the EIS program or provider would not be required to provide services during the closure. If the offices remain but services cannot be provided because the child is infected, the lead agency must ensure the continuity of services alternate means, such as consultative services to the parent.
Services to Students With Disabilities After School Resumes
Regardless of the services, if any, that a student with a disability receives during a school closure, special education staff must proactively gather data about the student when school resumes. The Guidance repeatedly states that, in all cases, district staff will need to determine whether a student with a disability needs compensatory education to make up for any skills or services that may have been lost during the student’s absence or the school’s closure. These services can be delivered by providing extended school-year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours. The Q&A makes it clear that early childhood officials must similarly consider if a child’s service needs have changed or whether the child’s IFSP needs to be revised after services resume.
Conclusion
The best advice for special educators is to be proactive now. Start thinking about whether your school will provide instructional services to all students during a pandemic closure, and consider the implications for special education students. Reach out to case managers and service providers to get them thinking about how services could be designed for the students on their caseloads. Communicate with the parents of disabled students to see if you can reach agreement on what circumstances would trigger distance learning services or what services would be appropriate during a school closure. The more school districts can plan ahead, the more likely we are to meet all of our legal obligations to students with disabilities if the novel coronavirus disrupts our school year.