COVID-19 Update: Services for Special Education Students

UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.

In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.

What flexibility can we expect in meeting federal requirements for education?

We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.

Specifically regarding students on IEPs and 504 plans, what services must we provide during a closure?

We are receiving many calls related to the delivery of instruction during possible closures, and specifically regarding the delivery of instruction to students with IEPs and 504 Plans. Here is what ED said on this topic in 2009 regarding H1N1:

Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

The IDEA, Section 504, and the ADA do not specifically address a situation in which elementary and secondary schools would be closed for an extended period of time because of exceptional circumstances; however, LEAs must be sure not to discriminate on the basis of disability when providing educational services.

If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational services, 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. Once school resumes, however, a subsequent individualized determination is required to decide whether a student with a disability requires compensatory education to make up for any skills that may have been lost because of the school closure or because the student did not receive an educational benefit.

If an LEA continues to provide educational opportunities to the general student population, then it must ensure that students with disabilities also have equal access to the same opportunities and to the provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the greatest extent possible, each student with a disability receives the special education and related services identified in the student’s individualized education program (IEP) developed under IDEA, or a plan developed under Section 504.

There is no guarantee that ED would issue the same guidance today for COVID-19, but given the parallels between the concerns in 2009 and those today, this 2009 guidance is a reasonable starting point for planning a compliant response to a potential school closure for COVID-19.

What are the special education implications of providing online instruction during a closure?

It is notable that the approach that creates the most risk for a school district, per the 2009 ED guidance, is to offer online instruction during a closure. The reason this can become a problem is that students with disabilities will need to be offered accessible instruction that meets their unique needs. It is difficult to imagine how a district might provide “regular prompting,” a common accommodation, to a child who is sitting alone at a computer. And what of the child who does not have a computer or internet access? Per the 2009 ED guidance it would be more legally compliant to not offer any instruction at all than to offer online instruction without an adequate plan for students with special needs.

This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.

Will we be required to provide compensatory education to students on IEPs and 504 plans following a closure?

The 2009 ED guidance points to the fact that a discussion of whether compensatory education may be required should follow any period of closure regardless of what services are provided. Unless a child is already assigned to home instruction at the time of the closure, any set of services during a closure will in some ways not be in compliance with the child’s IEP. While proactive amendments to account for anticipated closures could minimize the risks, it would be ambitious for most districts to secure consent for amendments for all IEPs. A more realistic approach could involve identifying students who are most at risk of significant regression during a closure, and working with parents to develop a plan to minimize that regression. Not only is this educationally sound, it would be an important part of any legal defense related to IDEA or Section 504 complaints. Once school resumes after a closure you can revisit whether other compensatory services are appropriate.

Please continue to follow the Ennis Britton blog for updates on COVID-19, and do not hesitate to call any of our attorneys with questions or concerns.