By Matt Keister, Esq.

The closing of schools due to COVID-19 has raised many legitimate special education law concerns and questions among families of children with special needs. Several of these issues are particularly important and deserve some consideration:    

Free Appropriate Public Education (FAPE) 

First, the question of whether schools can meet the continued requirement of providing a FAPE to children with disabilities during the pandemic.  

The U.S. Department of Education (ED) offered some initial guidance on the continuity of FAPE question via a Q & A document on March 12th, just as some of the initial states were closing schools. Specifically, the ED noted that local education agencies (LEAs) are only required to provide a FAPE to students with disabilities if educational services are being provided to the general population while schools are closed due to COVID-19. If services are being provided, “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 [or 504 plan].” If educational services are not being provided to the general population while schools are closed due to COVID-19, ED stated that LEAs are not required to provide services to student with disabilities. 

The Vermont Agency of Education (AOE) echoed this in its Continuity of Education Plan Guidance, and in its updated Education Plan Guidance 2.1 (I recommend Vermont families read this document in its entirety).  

Coronavirus Aid, Relief, and Economic Security (CARES) Act 

The proposed CARES Act is a federal economic relief bill currently being considered by the U.S. Senate. Of significant concern to families is a provision included in this stimulus package (as of the writing of this article on March 22nd) that directs the Secretary of Education, Betsy DeVos to report back to Congress within 30 days on the waivers needed under the Individuals with Disabilities Education Act (IDEA) and Section 504 (of the Rehabilitation Act of 1973).  

Here is the relevant language which is found in Section 4511 of the Act

IDEA REPORT.—Not later than 30 days after the date of enactment of this Act, the Secretary of Education shall prepare and submit a report to the Committee on Health, Education, Labor, and Pensions and the Committee on Appropriations of the Senate, and the Committee on Education and Labor and the Committee on Appropriations of the House of Representatives, with recommendations on any additional waivers the Secretary believes are necessary to be enacted into law under the Individuals with Disabilities Education Act (20 U.S.C. 4 1401 et seq.) and the Rehabilitation Act of 1973 (29 5 U.S.C. 701 et seq.) to provide limited flexibility to States and local educational agencies to meet the unique needs of students with disabilities during the emergency involving Federal primary responsibility determined to exist by the President under the section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191(b)) 12 with respect to the Coronavirus Disease 2019 (COVID-19). 

The concern from families and advocates about this proposed language is warranted. Such waiver authority could allow schools to opt out of providing a FAPE to children with disabilities, which would undermine these important civil rights laws and erode their protections. Instead of positioning for this legislation to be subverted, Congress should be doing the opposite: Working to provide states with the funding necessary to support schools in the delivery of services (including online services and future extended school year and compensatory services) during these unprecedented emergency closures.  

In the meantime, because these are federal law protections, state governments do not have authority to grant unilateral waivers from federal special education requirements, absent some action from the federal government.  

Compensatory Services 

Compensatory Education (Comp Ed) is typically provided by schools when students do not receive the special education services they were due. Within the context of the ongoing school closures, the question arises of whether children who would be receiving special education services are entitled to Comp Ed to make up for the services they miss out on amidst the pandemic.  

Some initial guidance has been provided.  

According to the ED Q & A, an IEP Team “would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.” While vague, at least ED is acknowledging this important question.  

Moreover, per initial OCR guidance, “if a student does not receive services after an extended period of time, the student’s IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost.” This language is slightly more specific, noting that Comp Ed may come into play to account for skills lost during the pandemic. 

Vermont AOE has been more detailed in its most recent guidance: 

“Compensatory services may be appropriate in the event of missed services. Services and needs will likely vary by student, so each IEP will need to be reviewed with the provision of compensatory services in mind, before, during and after the period of school closure. When planning for the possibility of compensatory services, educators should focus on team processes and data collection…After school reopens, the IEP team must convene to make a determination as to whether and to what extent it may be necessary to provide compensatory services. Prior written notice in this case must describe the purpose of the meeting, review of progress, whether to amend the IEP to reflect a significant regression that cannot be recouped within a reasonable amount of time.”  

The Comp Ed question will likely receive continued attention as the school closure situation evolves. In the meantime, families should be diligent about documenting conversations with the school about services, as well as keeping detailed information about services offered and received.  

And, as an aside, families should document any time (including parents’ time) and money spent on private services and provide adequate notice to schools if seeking reimbursement.    

Given the shift of services to being delivered virtually, in the many inevitable cases where in-person special education services are not transferrable via online education, Comp Ed may be an appropriate means of making up for this lack of access, once in person services resume.  

Distance Learning Challenges 

Amidst the pandemic, there are reports of some school districts attempting to avoid providing online education due to a special education law misinterpretation, namely that online education would not be possible in light of federal disability law. This is false.  

In response to this, the ED Office for Civil Rights (OCR) released a supplemental fact sheet on March 21st. In this recent supplemental fact sheet, OCR reminds schools that “they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities…To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction… school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.” 

When schools do provide online education to students, a student’s IEP should be adhered to as much as possible when providing special education. Per AOE guidance, “if a district moves to remote education in which it continues to provide educational opportunities to the general student population, the LEA 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. The LEA must also maintain its obligation to provide students with disabilities with equal access to the same opportunities as their peers without disabilities.” 

AOE guidance also noted that if a district supplies parents and students with supplemental enrichment materials to prevent learning loss and to support parents in keeping students engaged, “any such materials must be made accessible for students with disabilities (e.g., the district must not utilize online-only learning if all students do not have internet connections, translated materials must be provided, accommodations should be made for students who are vision or hearing impaired).” 

Online education, if provided, must be made accessible to all students – every child must receive an equal opportunity. Moreover, online learning, like in-person education, must be tailored to meet the unique needs of each child receiving special education – accommodations and modifications will often be necessary. This will require some flexibility as educators strive to provide students with access to the services agreed to in their IEP in online setting. Fortunately, there are already some examples of school districts embracing this challenge by making special education a priority when designing online education plans.  

Parent Training 

Given that parents and guardians are taking a more direct role in educating children during school closures, parent training will become an increasingly important component of IEP planning.    

Per recent AOE guidance: 

“In addition to ensuring the content is presented in an accessible format for the student, a school team will need to focus on considerations for the individuals who will be supporting the student access to their learning platforms. Special educators should consider parent training as a related service that is listed in the IEP. Special educators may need to amend the IEP based upon parent training that would be appropriate to the distance learning environment.” 

Please see the most recent AOE guidance, which details the various ways parents may be more involved in educating their kids, and accordingly, will need the training necessary to bring them up to speed.  

Continuing Education Plans  

AOE states that “all schools are required to create Continuing Education Plans for students should the closure extend beyond April 6, 2020, and those plans constitute the general education curriculum in this context. If general education is being provided in this context for longer than ten days, an IEP amendment will need to take place to reflect the change in placement for the student on an IEP. This amendment should be viewed as the planning document to ensure that each student has access to the new general education context. Local Education Agencies (LEAs) must ensure that to the greatest extent possible, that each student with a disability can be provided the special education and related services identified in the student’s IEP. A student’s current IEP accommodations and modifications must be considered when changing the student’s educational placement in accordance with the SU/SD’s Continuing Education Plan and each individual student’s ability to access their educational program.” 

IEP MeetingsPlanning and Communications Continue 

The IEP and 504 planning processes will continue.  Meeting virtually or over the phone are viable alternatives to doing IEP meetings in person. Moreover, schools should communicate with families and students as frequently as possible. 

On the question of upcoming evaluations, OCR states that “if an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504.” 

Matt Keister, Esq.