COVID-19 and Students with Disabilities: FAQs for Authorizers

Yes, where they continue to provide educational services to students generally. Students with disabilities have rights under various federal and state laws, most notably the IDEA, Section 504, and the ADA. These laws collectively provide such students with the right to special education and related services that are appropriate for their needs as well as the reasonable accommodations and modifications they need to access those offerings. Individualized Education Programs (IEPs) and student plans under Section 504 (504 Plans) identify each student’s needs and serve as a set of requirements, obligating state and local education entities to implement those programs, services, and supports. These are essential civil rights protections for vulnerable children. Federal and state legislatures and courts have uniformly found such rights under IDEA to be mandatory and non-negotiable, even when difficult or expensive to provide. Section 504 and the ADA are considered to have very high thresholds for any exceptions. Federal disability laws apply, even in a crisis.

The U.S. Department of Education released guidance on March 12, 2020 specifically tailored to the current health crisis: Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak. This  guidance specifically addresses school closures and moving to other modes of education for students with disabilities, essentially stating that: 

1) The relevant laws do not directly address how special education must be handled in a situation where schools are closed for an extended period of time, such as for a virus like COVID-19;

2) If a local education agency (LEA) is not able to provide any educational services to students, then it is not required to provide special education services, but may be required to retroactively offer compensatory services once school resumes under ordinary conditions; and

3) If an LEA does continue to provide educational opportunities to the general student population during a crisis, it “must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.”

On March 16, 2020 the Office for Civil Rights of the U.S. Department of Education issued its own new guidance (OCR Guidance): Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students. The OCR Guidance focused on directly addressing the question of how IEP team meetings should be conducted during periods where school buildings are closed and communities are exercising social distancing, essentially stating that if the IEP team is unable to meet in person, they should meet by teleconference or other remote methods to make determinations about how a student’s needs can be met under whatever conditions now exist due to school closure and any quarantine that might be imposed on the student due to localized health considerations. The same is true for personnel implementing Section 504 Plans. If an evaluation requires a face-to-face assessment or observation, it should be delayed until the school reopens.

NOTE: Guidance from the U.S. Department of Education does not replace applicable federal, state, and local laws and regulations but is, instead, the Department’s interpretation of those authorities in the context of the specific current situation.

• Authorizers should require schools to articulate their plan for serving all students, including those with disabilities (unless the school is entirely closed and not offering educational services to anyone). These plans should include information about how the school is proactively communicating with families of students with disabilities; assessing the technology and accessibility needs of the students, especially any accessibility issues unique to their disability; and determining who will be supporting the student in the home. 
• Authorizers should not assume that schools they oversee are familiar with the rules relating to students with disabilities during closure and remote learning. 
• Authorizers should hold schools accountable for implementing the plans they submit and check back regularly on progress, including requiring that schools: gather and maintain data on what they are doing for students with disabilities and how those strategies are working; report that information to the authorizer; and make such changes as the authorizer requires in order to comply with the law and their own policies.

• Authorizers should encourage schools to establish a COVID-19 task force or working group that includes representation from the special education team, including someone who can focus on compliance along with instruction and academics. 
• They should consider creating a community among the schools they oversee to share best practices, examples of strong plans that are working well, and how schools are supporting students with disabilities. They can post documents and resources online and provide all schools access to them. 
• Communicate! Authorizers can set up weekly or more frequent news blasts to share updated information and best practices and/or host webinars or virtual work hours to allow schools access to the authorizer and to each other. Authorizers should ensure that topics related to students with disabilities are addressed within these modes of communication. 
• Authorizers may want to ask schools to pause to develop a mission and purpose for distance learning that includes ALL students. 

• Building genuine relationships with families is even more valuable during the current crisis.
• Strengthen data collection efforts, especially surrounding outcomes of efforts made during this time
• This is a great time to dive into implementing universal design for learning (UDL).
• Set the tone of thinking about what CAN be done, rather than what can’t be done in the current situation —and then think of ways to get schools credit for what they are doing.
• See your role as an authorizer as a chance to say to schools: We want you to be successful in educating kids and what can we do to support you in doing that?

Given the likelihood that the current hiatus will extend for many weeks or months, it is critical that schools begin to think about issues such as how re-entry will occur when schools reopen and how any compensatory time that accrues during the closure will be provided upon return. These issues along with the related budgeting and staffing considerations should be incorporated into the schools’ plans. Schools should also be working to plan for how promotion will occur given the likelihood that testing will be cancelled. 

This slide deck from the webinar hosted by the National Alliance for Charter School Authorizers provides additional information and best practice recommendations for authorizers.

View Slides

Schools are depending on students’ IEPs and teachers for guidance in determining what approach makes sense for the individual students in order to reconceptualize what the least restrictive environment is in the new setting. For instance, some related services that were done in a group setting may now be individualized and provided remotely.

Each school is developing and implementing its own  model of distance learning. Instructional design and student learning decisions are made based on a multitude of factors specific to the school. As schools consider how to implement special education supports and services within their new model, they need to review each student’s IEP to determine which components need to be modified or adjusted. Where appropriate for more complex student needs, IEP Teams should be virtually convened in order to make such amendments. Guidance provided by OSEP during the March 13, 2020 Joint Webinar on COVID19 with OSEP, the Council of Administrators of Special Education, the Council of Chief State School Officers, and the National Association of State Directors of Special Education indicated that if online or virtual learning for all students is part of a school closure recommendation, the school district would not be required to amend students’ IEPs as online or virtual learning would be considered an alternate mode of instructional delivery.

It is essential that schools communicate and coordinate with parents/families as distance learning practices are put in place for students with disabilities. Where schools and parents/families are in agreement, much can be accomplished. This will vary by state, but schools are encouraged to explore virtual signature options, including the ability to attach a statement from the parent/caregiver that they are in agreement with the IEP.  There are many electronic signature options available, including several that are accessible on cell phones. Authorizers should factor in local rules impacting these issues, but recognize the need for flexibility in these challenging circumstances.

The key is educational opportunities. It does not matter if the work is required, recommended, graded, or “optional.” If general education students are being provided educational opportunities, students with disabilities are entitled to FAPE, as it looks in this unique and unprecedented situation.
 If the school is not providing any educational services, then special education measures will be treated as compensatory services that will be provided once school resumes under normal conditions.

As part of the long-term planning recommended above, schools should begin to consider the staffing and budgetary concerns with providing compensatory services when schools are reopened.

This time will need to be added to any compensatory services that accrue during the school closure, unless it is determined that the services can be provided in the distance learning model the school is using.

Look for state-specific guidance or rulings regarding flexibility on timeline requirements or request guidance from state departments of education. Where remote means can be used to move processes forward, this should be done. Where in-person elements are required, some evaluations may need to be deferred until schools reopen under normal conditions. Any circumstances that prevent services from being made virtual should be documented.

Schools should determine how best to adapt small group instruction and related services to their new model, and modify or develop policies regarding family observation or virtual classroom visitation. Schools should leverage technology features that maintain privacy (e.g., using chat rooms, blocking cameras from viewing each other, etc.) and document their practices. When parents/caregivers conduct observations in the typical brick and mortar school environment, many schools employ signed agreements ensuring that visitors will not seek or share any information related to other students whom they inadvertently observe during their time in the building. Schools should consider employing similar agreements as they transition to online environments.

OCR and the Department of Health and Human Services (HHS) recently provided guidance regarding HIPPA as it relates to teletherapy. The new guidance indicates that HIPPA rule enforcement will be relaxed during this crisis as it relates to telehealth therapy so that health care providers will be able to utilize non-public facing audio or video communication technology for diagnosis or treatment. This loosened requirement appears to apply to service providers in the school setting. The critical language is below, although the full guidance gives more detail and lists some examples of acceptable and unacceptable platforms.  

A covered health care provider that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 nationwide public health emergency can use any non-public facing remote communication product that is available to communicate with patients. OCR is exercising its enforcement discretion to not impose penalties for noncompliance with the HIPAA Rules in connection with the good faith provision of telehealth using such non-public facing audio or video communication products during the COVID-19 nationwide public health emergency.  This exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.