Are Special Education Services Required in the Time of COVID-19?

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

This is a difficult and complicated time for everyone. With school closures across the country, many children and families are experiencing particularly challenging circumstances. This article aims to provide clarifying information on the implementation of special education law during this crisis to assist lawyers in ensuring the educational rights of your clients.  

On March 12, 2020, the U.S. Department of Education (USDOE) issued a fact sheet to states providing informal guidance stemming from its interpretation of federal special education law in light of the special circumstances imposed by the COVID-19 outbreak. Relevant to the issue of what education is due to special needs students during this public health crisis, the USDOE stated,    

If a [local educational agency, typically a school district (LEA)] continues to provide educational opportunities to the general student population during a school closure [i.e. by providing online learning], the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of [free appropriate public education (FAPE)]. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). [State Educational Agencies (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 [individualized education program (IEP)] developed under [the Individuals with Disabilities Education Act (IDEA)], or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).  

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. 

“Questions and Answers on Providing services to Children with Disabilities during the Coronavirus Disease Outbreak March 2020” USDOE, March 12, 2020.

In sum, the USDOE advised in early March that if learning is halted for general education students across a school district, then the district would have no obligation to provide IEP services for special needs students. However, once any education is provided to the general education population, then IEP services are due. If a district is unable to provide such services, then once school resumes, compensatory education would be due.  

Following this directive, local school districts in my home state of Massachusetts began emailing parents, in an uneasy tone, about the possibility of providing “virtual” learning opportunities for students pending the reopening of school buildings. Each communication stated that “remote learning will not serve as a substitute for school or replicate classroom instruction." The underlying message was clear—if and when the school district offers anything to support its out of school general education students, it should not be mistaken for “education.” The messages were preparing the community to expect that online resources were to be for enrichment only, not progress. 

This approach is quite problematic. First, remote services would not continue the curriculum where it ended. Given the numerous comments that this crisis is likely to last months and not weeks, this directive provides no avenue for students to actually learn the remaining material expected in their current grade, nor to complete the necessary credits (as necessary for high school students) to be promoted or graduated. This is a problem with potentially disastrous consequences. No district wants to hold kids back as it results in extra costs to educate each child, and clearly this would be highly problematic for students, leaving possibly months of unproductive time, the likelihood of regression, and for many seniors, the postponement of college or other post-high school plans.  

So why would public school districts be insisting that any services they intend to provide during school closure should not be considered "school,” education, or instruction? School districts were banking on the validity of the USDOE’s March 12, 2020, guidance that "[i]f an LEA 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 an LEA would not be required to provide services to students with disabilities during that same period of time."

My conclusion, and that of many other educational observers, is that school districts, determined that they may alleviate themselves of the legal obligation to provide a FAPE to special education students if they withhold actual instruction, even virtual instruction, from the general student population.  

Recognizing such acts by local school districts as a growing trend, on March 21, 2020, the USDOE, through its Office of Civil Rights (OCR) and Office for Special Education and Rehabilitative Services (OSERS), issued a supplemental fact sheet. This document reverses the USDOE interpretation of the law from March 12, saying  

A serious misunderstanding . . . has recently circulated within the educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true.

To be clear: ensuring compliance with . . . (federal special education law) . . . should not prevent any school from offering educational programs through distance instruction.

"Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities" USDOE, Office for Civil Rights Office for Special Education and Rehabilitative Services, March 21, 2020.

The memo goes on to provide suggestions as to how schools might provide typical special education accommodations and services online, including “extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.”

In this memo the USDOE states definitively that even in this time of COVID-19, school "districts must provide a [FAPE] consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students." USDOE further refers the reader to an earlier USDOE publication warning districts against discrimination in response to COVID-19: "Educational institutions should take special care to ensure that all students are able to study and learn in an environment that is healthy, safe, and free from bias or discrimination." United States department of Education, “OCR Coronavirus Statement,” March 4, 2020.

After taking several days to incorporate this new guidance from USDOE into its direct guidance to local educational agencies and school districts, on March 26, 2020, a day following the governor’s extension of school closures through early May, Massachusetts Department of Elementary and Secondary Education issued further guidance saying,

[W]ith school closures now extended, districts, schools, and communities have an obligation to engage students in meaningful and productive learning opportunities through an appropriately structured educational program. Remote learning is not synonymous with online learning. Remote learning can take place in a multitude of ways, including by helping students engage with resources in their everyday lives and in the natural world around them. Remote learning also provides unique opportunities to further engage students in the arts or interdisciplinary work. . . . Examples of remote learning tools include large-group video or audio conference calls, 1:1 phone or video calls, email, work packets, projects, reading lists, online learning platforms, and other resources to effectively engage with students.

Mass DESE Remote Learning Recommendations During COVID-19 School Closures, 3-26-20. 

Given these recommendations, I expect that most, if not all, Massachusetts school districts will eventually provide some type of “remote learning” for its general education population.

My interpretation of this evolving landscape is that, given some reasonable period of time for the development of a remote learning plan which protects the safety of students and educational service providers, local educational agencies will be obligated to provide free and appropriate educational services to special needs students. A local educational agency cannot simply ignore the academic and/or therapeutic needs of its most vulnerable population. 

This initial order closing public and private K-12 schools in Massachusetts did not explicitly apply to special education day and residential schools, the subsequent order, extending closures through early May, includes special education day schools. Special education residential schools, which serve the children with the most complex needs, are allowed to remain open, and staff in such programs are deemed “essential workers” and thus excluded from an order that has closed all non-essential workplaces. 

Despite these exceptions, many special education day and residential schools have closed out of an abundance of caution, leaving the families of these most vulnerable students to fend for themselves. Not surprisingly, outpatient mental health providers and private tutors are reporting a surge in demand. It is expected that in short order, crisis interventions, including psychiatric emergency services and calls to police from homes overwhelmed by the special needs of their children, will see a multifold increase. And given that as of March 26, all but Maine, Iowa, and Nebraska have closed schools state or territory wide, affecting 55.1 million students, it is clear that a failure to develop comprehensive plans to provide remote learning to special needs students will result in yet another epidemic of need. See “Map: Coronavirus and School Closures” Edweek.org Education Week, Retrieved March 27, 2020. 

Practice Tips Within the Current Landscape

• Make a written request: Write to the director of special education in your client’s school or district and formally request alternate access to the special education and related services in the child’s IEP during the time that school buildings are closed. Request a “virtual” team meeting by telephonic conference call or video conference to discuss ways to provide services and supports while maintaining social distancing.
• Provide notice of any private services: Provide written notice to the director of special education services if the family will be or are incurring financial costs to provide alternative academic or related (therapeutic, speech and language, physical, occupational or behavioral) services during the time of school closure, including a statement that the family requests reimbursement for such costs.
• Keep a record: Encourage families to keep a diary of evidence of any regression that they notice in their child’s skills and any interventions that were needed, such as emergency mental health treatment, one on one adult support to complete assignments, or medication changes, during the closure of school buildings.
• Request team meetings: Upon the reopening of school buildings, immediately request a team meeting to discuss changes to the IEP which are necessary to address the student’s regression of skills and then-current need for additional special education services or a change of placement. The team should review any reports from private providers who have documented regression and posed recommendations for new services. Or the parent could request updated assessments in areas of concern.    
• Request home-based services: Some students may not be able to return to school buildings, even once they reopened, due to the health or high-risk status of family members. In these circumstances, families should be encouraged to request “home or hospital” services, delivered remotely. Such a request should be accompanied by a letter from a physician documenting the need.
• Keep ongoing due process appeals: Request that the hearing officer proceed with motion hearings, prehearing conferences, and hearings via telephone or video conference whenever possible. Although timelines may be extended to accommodate caregivers or ill witnesses.
• Make initial evaluations or three-year evaluations: Certainly, families should request evaluations in all areas of suspected special need when the situation arises. The USDOE, however, has offered that timelines for the completion of such special education evaluations (which typically require an in-person meeting with the student in order to be valid) may be waived in areas heavily affected by COVID-19. See “Fact Sheet: Impact of COVID-19 on Assessments and Accountability under the Elementary and Secondary Education Act” USDOE, March 12, 2020. However, if there is a particular reason that the assessments must proceed under the typical timelines and the health and safety of both the student and evaluator can be protected, that should be pursued  

Start Your Litigation Membership Today!

Join the ABA's Section of Litigation and gain value and insight in your career, no matter your experience level. Signing up is easy and grants you member-only access to the latest news, information, and thinking on litigation strategy.

Jennifer Gavin is an education lawyer in Brookline, Massachusetts.

^{Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}