COVID-19 and Special Education Services

Guidance has been issued by both the U.S. Department of Education and the CDC regarding how schools should be operating during this time.  One important thing to note is that it is very likely that schools will be closed longer than the current 2-4 weeks that have been implemented in many states.  Per the CDC guidance, "Available modeling data indicate that early, short to medium closures do not impact the epi curve of COVID-19 or available health care measures (e.g., hospitalizations). There may be some impact of much longer closures (8 weeks, 20 weeks) further into community spread..."

Special education services

This is an uncertain time for all students, but even more so for children who receive special education services and who may be impacted not only intellectually but also behaviorally, emotionally, and/or psychologically.  Assuming a school is providing educational services in some format, they need to be taking into account and accommodating the needs of students who are in IEPs or 504 plans.  Per the USED guidance: "If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE."

However, according to USED guidance, schools should still be considering whether to provide services to students with special education needs even if they are not providing educational services to other students:

"Question A-3: What services must an LEA provide if a public school for children with disabilities is selectively closed due to the possibility of severe complications from a COVID-19 outbreak?

Answer: If a public school for children with disabilities is closed solely because the children are at high risk of severe illness and death, the LEA must determine whether each dismissed child could benefit from online or virtual instruction, instructional telephone calls, and other curriculum based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services. The Department understands there may be exceptional circumstances that could affect how a particular service is provided.

If a child does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) 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."

Further, as the guidance makes clear, compensatory education must be considered for students with special education needs once school reconvenes.

IEP team meetings

In terms of IEP team meetings scheduled during the school closure, different districts are handling this differently.  Some districts are moving forward with meetings via phone or videoconference.  Some are rescheduling.  There is certainly a strong argument to be made to move forward with meetings electronically.  However, parents will want to consider what is best for their child and themselves - practically, virtual IEP meetings can be very difficult and confusing.  However, if a parent wishes to move forward with an IEP meeting during the school closure, a school should try to accommodate them.  From the USED guidance: "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 developed under IDEA, or a plan developed under Section 504."  This should include keeping IEP meetings up to date and on schedule.

***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***

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