Special Education Considerations Amidst COVID-19 Closures

On March 21, 2020, the U.S. Department of Education issued guidance from the Office for Civil Rights (“OCR”) and its Office of Special Education and Rehabilitative Services (“OSERS”) regarding providing services to students during school closure as a result of COVID-19. DESE has also issued guidance to schools after its COVID-19 webinar on March 13, 2020. As you know, the federal and state guidance is just that—guidance. Until legislation is passed or regulations are modified, this guidance gives school districts an idea of the federal and state departments may view or act on complaints regarding access to instruction or FAPE disputes, but cannot be relied upon fully in the event there are legal challenges to the District’s provision of FAPE to students.

Regardless, though, the guidance is clear that if all students are provided instruction during closure, students with disabilities are entitled to specialized instruction, related services and supports in order to provide the student with FAPE. OCR and OSERS state that Districts may use technology to provide FAPE, but not that the responsibility to provide FAPE has been lifted. Additionally, unless IEPs are modified, students’ FAPE provisions must include all supports, instruction and services included in their IEPs as they’re currently written.

Guidance has been definitive in stating that if no students are receiving educational services as a result of school closure, then students with disabilities aren’t entitled to greater access to education, including FAPE. In short—if we don’t provide educational opportunities to regular education students, we don’t have to provide those for special education students, either.

OCR and OSERS guidance also included a FAQ sheet that outlined modifications to required timelines under the IDEA. Those were not blanket modifications, but the guidance indicated that those timelines may be modified or waived with parental consent. It is also worth noting that the most recent versions of the stimulus package being discussed at the federal level also includes language allowing the Director of the U.S. Department of Education thirty days to notify Congress of any “limited” modifications to the IDEA and Section 504 that may be necessary as a result of the COVID-19 response.

Based on this guidance, we recommend taking the following steps with regard to students with disabilities:

  • Provide Notices of Action to students with disabilities.
    • Once school is closed for more than 10 days due to COVID-19 (meaning not including spring break!), the District needs to provide a Notice of Action to the family outlining that there has been a change in the student’s placement due to the school closure. We recommend reaching out to your school attorney if you have questions in how to draft that Notice.
  • Do the best you can with what you have.
    • If any change to a student’s services, instruction or supports need to be made as a result of the closure, we recommend having an IEP or Section 504 meeting with the appropriate participants (this can include a phone call or video conference—we just need to make sure that the parents can meaningfully participate) to come up with a plan for delivery of services and/or instruction to students.
    • This plan should be appropriate for the student, accessible to them, and provide meaningful educational benefit to the student.
    • Get creative!
      • Many districts are currently offering therapy sessions through Zoom, Facetime or other videoconferencing sites, as well as one-on-one instruction.
      • If the IEP Team determines that services will be provided to a student in a certain way, then the District needs to provide that access (laptop, chromebook, internet service, etc.) if the student needs those items to access FAPE. This will likely come up if students don’t already have access to those items at home, but will not create a duty on the part of the District to provide items to students who already possess them.
      • Likewise, if the provision of education services to a student may result in a need to modify a student’s Section 504 Plan, the student’s 504 Team should meet to make that determination.
      • Be mindful of FERPA requirements while working with students electronically, and ensure that any individuals who are supervising students during electronic therapy or instruction sessions are either a parent of the student, or the District has written consent on file in order for the person to be privy to student record information, as they’ll be “observing” education with regard to the student while the sessions occur.
    • Document services, instruction and progress during closure.
      • The key to determining what steps should be taken moving forward will be based, in large part, on what the District has done while school was closed.
      • The goal here is to ensure that the District is providing a student with FAPE, but if any barriers to access to certain services or instruction exist, we recommend documenting those barriers and how the District does or attempts to overcome them.
      • As part of the IEP review, it’s likely that progress on goals may be measured differently, or goals may even change—this needs to be documented in the IEP.
    • Meet when school reconvenes to discuss compensatory services.
      • It’s likely that students will need compensatory services once school reopens, or may even be eligible for ESY as a result of closure. If the Team has already determined for the year that ESY is not appropriate, then it does not need to convene now to determine that; however, that may be a consideration during an annual or triennial review if you have one slated soon. This can also be a topic of discussion in any IEP amendment meetings or conversations, if appropriate as well.

 

Frequently Asked Questions:

Does the District have to provide special education and related services to students if our District is not providing any education to any students as a result of closure?

No. U.S. Department of Education and DESE guidance is clear—if your District is not providing any “educational opportunities” to any students, the District is not responsible for providing FAPE to students with disabilities. The District should ensure that it convenes a student’s IEP team shortly after reopening to determine whether any compensatory services are owed to the student as a result of closure, and IEP services should resume as soon as school reopens.

What should we do if we are offering instruction to everyone and need to modify a student’s IEP to reflect the new delivery of instruction and/or services?

We recommend reaching out to parents to discuss the delivery of their student’s specialized instruction and related services to determine how the District might be able to provide those services, including whether the parent is willing to meet with a service provider at an outside location, or allow a service provider into their home, and whether the family has access to a phone, computer and/or internet, if some services can be provided virtually.

If the District has a plan for providing services to the student, it would also be appropriate to discuss that plan with the parent, to determine how the student’s IEP might be modified, if a modification to the IEP will be necessary in order to provide the student FAPE during closure.

How can we modify a student’s IEP if we’re under a stay-at-home order?

IEP amendments may be made in one of two ways:

  • With written parental consent; or
  • Through an IEP meeting.

 

If the District is unable to obtain parental consent to amend the student’s IEP, then an IEP meeting should be held with the student’s IEP team. That meeting can be held electronically through a video conference or over the telephone; however, the District must ensure that the parent can meaningfully participate in the meeting, including providing any accommodations to the parent that are necessary under the ADA, and/or interpretation or translation services.

It’s also important to note the language of your area’s order. Schools are typically deemed “essential businesses” that are allowed to continue to operate under those orders, and individuals are also typically allowed to leave their homes for medical appointments under those orders. The DOL recently determined that IEP meetings are types of medical care for students, based on its determination that FMLA leave can be used to attend those meetings. It is possible that holding a meeting that meets all requirements of a stay-at-home order (small group size, social distancing, etc.) would be possible as a last resort, if meeting electronically is not.

If our District is providing optional distance learning (virtual education, Zoom classrooms, etc.) for no grade, do we need to provide special education and related services to students?

If we’re providing access to students of educational services, then we, at minimum, need to ensure that students with disabilities are provided equal access to those services, including any supports necessary to provide those students with access.

DESE’s guidance uses the term “educational opportunities,” to describe when a student is entitled to FAPE, but does not define the term. Because “educational opportunities” can be broadly construed, it is likely that any education provided to students will trigger the right to FAPE for a student with a disability. Still, it is not clear if the District is merely providing resources to parents, like educational links to use with their children, whether that would constitute “educational opportunities,” or where that line is drawn. However, the closer the educational services you’re providing to students looks like regular educational instruction, the more likely that the District will need to ensure that students with disabilities not only have access to those services, but also have access to FAPE.

Does the District have to approve requests for MOCAP courses for students with disabilities if they request taking courses during closure?

Requests for MOCAP courses for students with disabilities should be handled in the same way they’re handled during the regular school year. If your District allows students to modify courses mid-semester, and does not have a firm cutoff in policy for class transfers or MOCAP enrollment, then the request for MOCAP should be processed according to the District’s typical MOCAP procedures. In line with DESE guidance, and because most requests for MOCAP will result in a “change in placement” for a student with a disability, the “best educational interest” determination should be made by the student’s IEP or 504 Team to determine whether virtual education is the student’s least restrictive environment and appropriate to provide the student FAPE.

Guidance:

U.S. Department of Education guidance:

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf

DESE guidance:

https://dese.mo.gov/sites/default/files/se-com-q-and-a-providing-services-to-children-with-disabilities-during-coronavirus-outbreak.pdf

https://dese.mo.gov/sites/default/files/Webinar-FAQ-3-13-2020.pdf

If you have any questions regarding how to provide services and instruction to students with disabilities in light of school closures, any of our attorneys at EdCounsel would be happy to work through those questions with you. Please don’t hesitate to call or email!