We’re now a month into the school year, which begs the question: Are we now living in precedented times? Unfortunately, for schools in Nebraska, precedent goes out the window every time the Directed Health Measures (DHMs) are changed. Similarly for schools in South Dakota, a lack of consistency in guidance at the state level combined with increasing COVID cases leaves schools uncertain about how to serve students without facing liability. All of these changes beg several follow-up questions, so we wanted to take this opportunity to answer some of those most frequently asked by schools adapting their plans to their community’s changing circumstances.
What’s changed with the public health guidance and requirements?
Over the last several weeks, schools in some Nebraska health department regions were advised that if students were wearing masks at the time of an exposure or close contact with an individual who tests positive for COVID-19, they would not necessarily be required to isolate or quarantine as close contacts. Unfortunately, this advice was not consistent with the authoritative DHM’s in effect, and couldn’t be relied upon by schools. . . until the DHMs were updated again this week.
The updated and effective DHM’s, which can be found here, include new provisions about when a student must isolate or quarantine because of classroom contact with a student that tested positive. Specifically, the updated provisions indicate that:
In a classroom where everyone is masked, including the student to test positive, only the student who tests positive will isolate at home, and the remainder of the students will self-monitor for symptoms.
In a classroom where the student that tests positive is not masked, that student will be isolated at home, and any peers who had close contact with the student will quarantine at home, regardless of whether those peers were wearing masks during the close contact period.
In a classroom where the student that tests positive is masked, but others are not, the student who tests positive will isolate at home, and the students without masks that were in close contact will quarantine at home. The other students in the classroom that were masked will only be required to self-monitor for symptoms.
In a classroom where no students were masked, the student that tests positive will be isolated at home, and any close contacts will quarantine at home.
For South Dakota schools, there are no directed health measures to follow. Instead, much like the Pirate Code, the South Dakota Department of Health has mostly insisted their recommendations are simply “guidelines” which schools can take or leave. Anecdotally, though, many districts are reconsidering masking requirements in light of increases in outbreaks and the relative success some districts have had in implementing the measures.
We are now going to require that all students and staff members wear masks. How do we handle requests for exceptions to mask requirements?
If you have been a “strongly encouraged” school that is shifting to mandatory masking, it might be helpful to refer back to our previous post on the subject, found here. This post discusses how to handle requests for exceptions to mask requirements when a student cites an underlying medical condition as the reason for needing an accommodation. These requests implicate Section 504 and, potentially, the IDEA.
For students who cite political or “religious” reasons for their request, you are not required to grant an accommodation under the First Amendment. This is because a masking requirement is neutral and unrelated to discrimination on the basis of First Amendment activity. This probably can be explained best by analogy: You would not allow someone to attend school without clothes, even if they intended their nudity to be a political statement or a religious act. Similarly, you would not allow a student in welding class to weld without protective eye coverings, even if the student was attempting to make a political statement about over-regulation by OSHA or did not believe in the risks associated with welding without PPE.
We’re a little rusty on Section 504, can you give us some help?
Of course. These days, it seems like there is a regulation or an obligation for everything, and it’s tough to tackle these complex issues without support. Fortunately, KSB has a detailed memo, forms, and COVID-19 samples prepared to make your 504 process more efficient and accessible. These also come along with a link to a short Section 504 refresher course led by Karen, which will get you up to speed with your obligations in about 30 minutes. Just let us know if you would like to purchase these resources -- we are charging $150 for the package.
Our area is doing well to minimize the spread of COVID-19, so can we discontinue our remote learning program or hybrid system?
Yes. . . And no. . . Neither Nebraska nor South Dakota ever required schools to create a hybrid system allowing remote learning for all students. However, there are circumstances where the IDEA or Section 504 may require you to allow a student to engage in remote instruction in order to equally access your educational program. To that end, students with disabilities currently receiving instruction remotely might have IEPs or Section 504 plans that call for the provision of remote services, accommodations, or instruction.
This means that while you can discontinue remote learning programs or services for general education students, there will be additional considerations for students with disabilities. For those students whose IEP Team or 504 Committee included remote services or programming into the student’s individualized plan, the team will need to reconvene and consider the student’s unique needs and circumstances prior to making any changes. Additionally, requests for accommodations or services on the basis of disability must continue to be handled by the appropriate team.
What do we do if a student with a disability who is supposed to receive remote services or instruction isn’t logging on to access their education? And what about the kids who are logging on, but aren’t making progress?
We are approaching the end of the first quarter of the 20-21 school year, which means most families will be receiving progress reports very soon. We should review the current access and progress data for your students with disabilities receiving remote services or instruction over the last month now, before those reports are prepared and sent. If the data indicates that a student isn’t accessing their programming, or isn’t progressing despite accessing their programming, the student’s placement may not be appropriate. In these situations, we recommend that you reconvene the student’s IEP Team or Section 504 Committee to consider this new information, and discuss what changes are necessary for the student to make progress appropriate in light of their unique circumstances. It may be that the student and/or parents simply need technical support or training in accessing remote programming. On the other hand, the team may determine that remote programming is not appropriate for the student, and return the student to in-person instruction with adequate precautions. It is important that each student team reach independent determinations about the student’s unique needs and circumstances, regardless of the policies or programs that are applicable to the general education program.
What do we do if a student with a disability wants to return to school in person, but we aren’t permitting families to change until the end of the semester?
As noted above, schools are obligated to provide students with disabilities FAPE, irrespective of the rules set for the general education program. If a student with a disability requests a return to school in person, they’re asking for a change in placement unless their services and instruction would be the same in an in-person environment. In response, you should review the student’s progress data and determine if an IEP meeting should be held to consider changing the student’s placement. If the data indicates that the student’s current plan or placement is inappropriate, the team should meet to consider whether changes are warranted. However, this does not mean that the team is obligated to return the student to in-person instruction if the team concludes that in-person instruction is not the student’s appropriate placement.
What are the PWN/documentation issues with all this?
Prior Written Notice is required under the IDEA (but not Section 504) whenever a school proposes or refuses to initiate or change the placement or provision of FAPE to a student. That means you should respond with PWN if you receive a request to change a student’s programming or services (such as a request to return to in-person instruction) or a change to the services and accommodations necessary to provide the student FAPE (such as a request for an accommodation to masking requirements). Remember that you cannot unilaterally change a student’s placement or amend their IEP with PWN alone; you must either reach these decisions as a team or agree with the parent in writing to an amendment.
How many games are the Huskers going to win with this brutal schedule?
Just kidding. . . You’ll have to wait just a little longer before you can read our predictions and call your bookie. In the meantime, if you have any questions about these unprecedented times, or need a place to vent about the Huskers’ schedule, call Karen, Steve*, Bobby, Coady, Jordan*, or Tyler* at (402) 804-8000 or shoot us an email at ksb@ksbschoollaw.com.
*Steve, Jordan, and Tyler are not Husker football fans and make no promises or assurances that any complaints from Husker fans will be met with empathy, understanding, or support. By calling Steve, Jordan, or Tyler to discuss the Huskers, you do thereby assume the risk of any hurt feelings, and waive any claims or complaints in relation thereto. Further, by calling Steve, Jordan, or Tyler to discuss the Huskers, you do thereby consent to receive future communications regarding the success of the Michigan and Iowa football programs.