This afternoon, Governor Mike DeWine issued an order closing schools for a three-week spring break beginning at the end of the school day on Monday, March 16, 2020. As school districts throughout the state are creating plans for how they will respond to COVID-19 going forward, many school districts are asking questions about how COVID-19 may impact students with disabilities.
1. Students with Disabilities Who are Absent Due to COVID-19 While Schools Remain Open.
In December of 2009, the United States Department of Education (“DOE”) issued Questions and Answers on Providing Services to Children with Disabilities During and H1N1 Outbreak, 109 LRP 77101 (Dec 1, 2009) (“Q and A”). The guidance document responded to questions that state and local educational agencies raised regarding the provision of special education and related services following the dismissal of a child with H1N1 or school closure due to an H1N1 outbreak. During a March 5, 2020 Senate subcommittee hearing, Secretary of Education Betsy Devos stated that the Q and A does not require many changes to be relevant for COVID-19 and that updated guidance should be available “very soon.”
According to the Q and A, if a child is home for an extended period of time (generally more than 10 consecutive school days) due to a medical problem, then an individualized education program (“IEP”) meeting is necessary to change the child’s placement and IEP as appropriate. The DOE advises that:
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If a child with a disability is absent for an extended period of time because of an H1N1 infection and the school remains open, then the IEP Team must determine whether the child is available for instruction and could benefit from homebound services such as instructional telephone calls, homework packets, Internet-based lessons, and other distance-learning approaches, to the extent available.
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Notwithstanding the foregoing, the DOE notes that when
providing any homebound services, “school personnel should follow appropriate
health guidelines to assess and address the risk of transmission in the
provision of such services.” If the
student does not receive services for an extended period of time, the DOE
states than “a subsequent individualized determination is required to decide
whether a child with a disability requires compensatory education to make up
for any skill that may have been lost because the child did not receive
The DOE also addressed students who were excluded from school during an H1N1 outbreak because the student would be at high risk for severe complications if he or she were to contract H1N1. The DOE advised that “[i]f the exclusion is a temporary emergency measure (generally 10 consecutive school days or less), the provision of services such as instructional telephone calls, homework packets, Internet-based lessons, and other available distance-learning approaches is not considered a change of placement.” During this time period, either the parent or another IEP team member may request an IEP team meeting to discuss the potential need for services if the exclusion is likely to last for a longer period of time. The DOE advised that a longer-term exclusion for a specific student would be a placement decision by the IEP team and reminded school districts that any decisions “must be based on the individual needs of the child and not on perceptions of the child’s needs based merely on stereotypes or generalizations regarding his or her disability.”
If a school district has a student who is unable to attend school either because the student is infected with COVID-19 or would be at high risk if the student were to become infected, the school district will need to consider if the student’s removal will be a temporary measure (less than 10 consecutive days) or will last for a longer duration. If a student will be unable to attend school for an extended period of time, then the school district should convene the student’s IEP team to discuss the provision of services to the student and appropriate placement based on the student’s individual circumstances. The IEP team should follow health guidelines and consider the risk of transmission when making decisions regarding the student’s placement and services. If the student cannot receive services for an extended period of time, then the IEP team will need to make an individualized determination regarding whether the student requires compensatory education.
2. School District Obligations to Provide Services to Special Education Students if Schools are Closed Due to COVID-19.
In Letter to Pergament, 114 LRP 2954 (OSEP 2013), the Office of Special Education Programs (“OSEP”) responded to an inquiry regarding a school district’s responsibility to “make up” special education and related services that a child with a disability did not receive because schools were closed during a teachers’ strike. OSEP stated that, “[g]enerally, if the functioning or delivery of educational services is significantly disrupted for all or nearly all students due to a short-term teachers’ strike, then the [school district] is not required to provide services to the affected children with disabilities during that period of time.”
OSEP further advised that ultimately the decision to provide compensatory education when there is a disruption in services, as well as the nature and amount of the compensatory education, is an individualized decision made by the student’s IEP team. The IEP team is responsible for determining “whether the child was denied educational benefit because of the disruption in educational services and whether compensatory education is needed to ‘make up’ for the denial including addressing any skills that may have been lost.”
OSEP’s guidance indicates that, for periods of time when schools are closed and all or nearly all students are not receiving educational services, the school district will not be obligated to provide services to its special education students. However, if the school district provides educational services to its non-disabled students while its schools are closed, then the school district also will be responsible for services to its non-disabled students. The determination of the appropriate services and placement for a special education student during a school closure is an IEP team decision. Pursuant to the Q and A discussed in the above section, the IEP team should follow health guidelines and consider the risk of transmission when making decisions regarding the student’s placement and services. If the student cannot receive services for an extended period of time, then the IEP team will need to make an individualized determination regarding whether the student requires compensatory education.
3. IEP Team Meetings While Schools are Closed Due to COVID-19.
The Individuals with Disabilities Education Act (“IDEA”) regulations enable school districts to conduct IEP Team meetings remotely. In that regard, 34 C.F.R. §300.328, states that, when conducting IEP team meetings “the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation, such as video conferences and conference calls.”
Additionally, 34 C.F.R. §300.321(e)(5) provides that a mandatory member of an IEP team “is not required to attend an IEP Team meeting, in whole or in part, if the parent of a child with a disability and the public agency agree, in writing, that the attendance of the member is not necessary because the member’s area of curriculum or related services is not being modified or discussed in the meeting.” The statute further permits the excusal of a mandatory member of an IEP team, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of curriculum or related service, if: (1) the parent, in writing, and the public agency consent to the excusal, and (2) the IEP team member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.
Therefore, if a school district needs to hold an IEP Team meeting while the schools are closed, the school district can conduct the meeting remotely. The school district also can request, but cannot require, that the parent/guardian waive certain members of the IEP team.
4. Development of Contingency Plans in Anticipation of a Potential Outbreak of COVID-19.
The Q and A addressed the possibility of school districts including a distance learning plan in a student’s IEP as a contingency plan in the event of an H1N1 outbreak. The DOE stated that “IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective dismissal due to an H1N1 outbreak.” The DOE further advised that “[s]uch contingent provisions may include the provision of special education and related services at an alternate location or the provision of instructional telephone calls, homework packets, Internet-based lessons, and other available distance-based learning approaches, and may identify which special education and related services, if any, could be provided at the child’s home.” Accordingly, a school district may, but is not required to, convene student’s IEP team to develop a distance learning plan in the student’s IEP that would be triggered if the District’s schools were to be closed due to COVID-19.