On March 12, 2020, the United States Department of Education (“DOE”). issued Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak (“Q and A”). The Q and A updated guidance that the DOE had issued in December of 2009 in response to a potential H1N1 outbreak. In the Q and A, the DOE addresses multiple issues applicable to students with disabilities, including but not limited to: (1) providing a free appropriate public education (“FAPE”) to students with disabilities during a school closure; (2) the provision of services to students with disabilities who may be absent due to COVID-19 while schools are open; and (3) the option of developing contingency plans for students with disabilities.
1. Obligation to Provide FAPE to Students with Disabilities During a School Closure Caused by a COVID-19 Outbreak.
In the Q and A, the DOE first notes that the IDEA, Section 504, and Title II of the ADA do not specifically address a situation in which elementary and secondary schools are closed for an extended period of time because of exceptional circumstances, such as the outbreak of a particular disease. The DOE then distinguishes between closures where the school district does and does not provide educational services to its general student population.
The DOE advises that if a school district closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then the school district would not be required to provide services to students with disabilities during that period of time. However, if the school district continues to provide educational opportunities to the general population during a school closure, the DOE states that “the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” The DOE further states that school districts “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 developed under IDEA, or a plan developed under Section 504.”
2. Students with Disabilities Who are Absent Due to COVID-19 While Schools are Open.
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 a COVID-19 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 online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, 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 that the school “must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost.”
The DOE also addresses students who are excluded from school during the COVID-19 outbreak because the students are at high risk for severe complications and the schools remain open. The DOE advises that “[i]f the exclusion is a temporary emergency measure (generally 10 consecutive school days or less), the provision of services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available, is not considered a change in placement.” During this time period, either the parent or other 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 advises that a longer-term exclusion for a specific student would be a placement decision by the IEP team and reminds school districts that any decision “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.”
3. Development of Contingency Plans.
The Q and A addresses the possibility of school districts including a distance learning plan in a student’s IEP as a contingency plan. The DOE states 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 a COVID-19 outbreak.” The DOE further advises that “[s]uch contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home.”