In recent weeks, school districts across the United States have been forced to respond to unexpected disasters in addition to all of the ongoing pandemic-related challenges. From tragic school shootings to catastrophic tornados, schools have continued to adapt as best they can. These situations serve as powerful reminders about the importance of developing contingency plans for how to support some of the most vulnerable students – those with disabilities – when disasters strike.
Recent pandemic guidance sheds some light on the question of what a district’s obligations might be when schools are unexpectedly disrupted due to unforeseen circumstances. In 2020, the U.S. Education Department released insightful guidance for districts amid the emerging COVID-19 pandemic. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, U.S. Department of Education (March 12, 2020).
The ED declared that when a school district is closed and not providing any educational services to the general student population, then the school district is not required under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act to provide services to students with disabilities. However, once a school resumes in some fashion, a district’s obligation to provide services for disabled students changes, even if educational programming is provided in a different format such as remote learning. At that point, districts are obligated to “make every effort” to fully implement a student’s IEP or 504 plan, including providing all special education services and accommodations for students.
In the event that a school is unable to provide the services, special education teams may be expected to convene and consider whether compensatory services should be offered at some point. Additionally, teams should consider whether any type of recovery services might be provided to help compensate for any regression and learning loss.
As we have seen during the pandemic, schools that are able to adapt quickly to disasters are better able to support their students with disabilities, prevent regression and learning loss, and reduce or altogether avoid costs associated with compensatory education and recovery services. The ED stressed the value of creating contingency plans to address unexpected changes in learning platforms and resources. When contemplating the question of whether special education teams should consider distance learning plans as a contingency during the pandemic, the ED responded “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 an 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.” This same concept is easily extrapolated to other types of disasters.
The lessons learned during the pandemic provide a solid foundation for schools in developing contingency plans. These plans may address the following needs:
Available Resources. School districts should have a solid understanding of what resources are available in their districts and communities to pull from in an emergency situation so that they can quickly access them. It is also helpful to maintain backup technology devices such as computers and hotspots to help facilitate the district’s quick response.
Supports for displaced students. Students who experience natural disasters such as floods and tornados may temporarily lose housing. In addition to IDEA and Section 504, students may have rights under the McKinney-Vento Homeless Assistance Act. Having access to technology such as laptops and hotspots, as well as maintaining connections with neighboring districts, educational service centers, and county agencies help schools adapt quickly.
Team meetings. It is important for special education teams to convene meetings in a timely fashion so that your knowledgeable professionals are able to problem solve and address unique challenges that a student with disabilities might face because of the disaster. Utilizing technology and staff to facilitate meetings quickly is important.
Additional Service and Staff Needs. Not only are students impacted by disasters, but staff as well. Districts may need to quickly access additional staff to fill service gaps or expand services that are provided to students. Alternatives might include utilizing telehealth services and working with neighboring districts and ESCs for backup support.
Documentation. It is critical that districts have an effective way to document what they are doing for students with a disability at all times, but especially during a pandemic. This data becomes critical for special education teams as they explore future student needs, and also helps defend against parent and advocate challenges that may come your way.
The value of developing solid contingency plans before a district faces a disaster is significant. School districts should work with their colleagues and legal counsel to develop a strategy for future needs. A member of the Ennis Britton special education team is here to help support your efforts.
The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.
On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.
Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.
As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.
Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.
As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.
The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.
The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN) 2021 WL4755619)
Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”
The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions.
The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments.
The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)
In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.
In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.
What this means for your District:
Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.
The U.S. Department of Education’s (DoE) Office of Special Education and Rehabilitative Services (OSERS) issued a dear colleague letter on August 24 reiterating its commitment that children with disabilities and their families have successful early intervention and educational experiences for the 2021-22 school year.
As it did last year in a Q&A document released on September 28, 2020, OSERS asserts that “with few exceptions” there is no authority vested in DoE to waive IDEA requirements. The only “notable” exception identified by OSERS relates to waiving maintenance of effort funding requirements. The lack of requirement waivers applies regardless of the primary instructional delivery approach – both virtual and in-person learning are held to the same standard.
The letter reports that “the Department expects that all [school districts] will provide every student with the opportunity for full-time, in-person learning for the 2021-2022 school year.” Both the letter and accompanying Q&A document indicate a focus on the transition from remote to in-person learning. While the vast majority of Ohio students made this transition at some point during the 2020-2021 school year as vaccines became available, in some other states it is happening for the first time this fall. A successful transition includes ensuring that IEPs are in effect for children with disabilities at the start of the school year, and all other rights of children with disabilities under IDEA are protected.
The guidance reaffirms the importance of appropriate implementation of IDEAS’s child find obligations, which requires the identification, location, and evaluation, of all children with disabilities in the states, including those enrolled in homeschool. An effective child find system is an ongoing part of each state’s responsibility to ensure that FAPE is made available to all eligible children with disabilities. The Q&A document provides some specific ideas related to child-find during the pandemic, including a warning to “not rely solely on referrals by parents” as the primary child find tool, and the precaution that traditional child find strategies may not be adequate during remote learning. Increased community outreach and education is strongly encouraged by OSERS.
A theme underlying much of the guidance, and one emphasized by recent Department of Education actions, is that COVID precautions are “of utmost importance.” Not only does COVID pose a direct threat to individual students – especially disabled students with medical fragility – but the fear of COVID may result in parents turning to private schooling and homeschooling for perceived safety. This can make IDEA compliance more challenging. As a result, OSERS looks to COVID precautions as key element of IDEA compliance. The letter points to the CDC recommendation that everyone in K-12 schools wear a mask indoors, including teachers, staff, students, and visitors, regardless of vaccination status. The guidance encourages schools to put in place layered prevention strategies including promoting vaccination and proper universal mask-wearing.
What does this mean for your district?
Adjustments to “normal” IDEA compliance, such as child find procedures, will be essential during this school year as OSERS increases its expectations while continuing to assert that no waivers will be issued. While the initial Q&A focuses on child find, OSERS has indicated that additional guidance will be forthcoming. As was the case last school year, the new guidance is expected weeks or months after school resumes. Unfortunately, schools cannot point to this delay by OSERS as a defense against any alleged IDEA violations. As a result, careful planning and informed, proactive legal guidance are key.
U.S. DOE’s Office for Civil Rights Enters the Fray by Initiating Discrimination Investigations Against States with Mask Prohibitions
On Monday, August 30, the U.S. Department of Education’s Office for Civil Rights (OCR) opened investigations into five states that prohibit schools from setting universal mask mandates.Letters were sent to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah. Several state school chiefs who received the letter said they agreed that their school districts should have the flexibility to set mask requirements if they deem them necessary.
OCR will specifically investigate whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for infection of COVID-19 by preventing them from safely attending in-person education.Specifically, they will determine whether these prohibitions are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act which collectively mandate that schools are required to provide a free and adequate public education (FAPE) to students with disabilities and also provide programs and facilities that are accessible to individuals with disabilities.
Education Secretary Miguel Cardona had previously sent letters to each of the states who will be subject to the OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educations, and that families have confidence that their schools are doing everything possible to keep students healthy.”
The Department will continue to monitor, but did not launch an official investigation into, Florida, Texas, Arizona, or Arkansas as they have voluntarily suspended enforcement of their policies while litigation is ongoing as described below.
Florida Judge Invalidates Governor’s Executive Order
On Friday, August 27, a Florida judge ruled that school districts can legally require their students to wear masks to prevent the spread of COVID-19. He stated Governor Ron DeSantis overstepped his executive order by banning school districts from requiring students to wear masks.
The governor has argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children. However, the judge noted, it exempts government actions that are needed to protect public health and are reasonable and limited in scope. A school district’s decision to require student masking to prevent the spread of the virus falls within that exception.
Through his opinion, the judge cited Florida Supreme Court decisions which found that individual rights are limited by their impact on the rights of others. For example, adults have the right to drink alcohol but not drive drunk, and that there is a right to free speech, but not to harass or threaten others. As a result, he said that school boards could reasonably argue that mask-less students endanger the health of other students and their teachers, and mask policies should be up to them to determine.
Despite the ruling, the Florida Department of Education on August 30 began withholding school board member salaries from two school districts that require masks in classrooms. Florida Education Commissioner, Richard Corcoran, said he is following through on the orders of the State Board of Education and stated funds would continue to be withheld monthly until each school board complied with state law and rule.
Lawsuit in Texas Filed
On Tuesday, August 17, a lawsuit was filed in Texas claiming that the state is discriminating against medically vulnerable students by failing to accommodate their disabilities. The parents filed suit on behalf of their disabled children, all of who are under age 12 and ineligible to receive a COVID-19 vaccine.
The parents claim that the ban violates Section 504 and Title II of the ADA by excluding students with underlying medical conditions from district programs and failing to make reasonable accommodations that would allow those students to attend school. In addition, they are asking a judge to issue a temporary restraining order that would allow districts to implement mask mandates and prohibit the state from withholding funds from districts that choose to make them mandatory.
The lawsuit challenges an executive order by Governor Greg Abbott that declares school systems cannot require students or staff to wear a mask. It also noted that districts must allow individuals to wear a mask if they choose to do so. As a result of ongoing litigation, the Texas Education Agency issued an updated public health guidance that stated it would not be enforcing the mask provisions in the interim, but would make additional guidance once the court issues are resolved.
Other Actions Afoot
In Arkansas, a judge pressed pause on the state law that prohibits local officials from setting mask mandates, meaning school districts can – at least for now – set their own local mask requirements. Tennessee’s governor has signed an executive order requiring schools to allow families to opt out of mask mandates. In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government.