COVID-19 and Students with Disabilities: FAQs for Schools and Practitioners

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.”

The guidance also addresses circumstances in which special education schools close, students who become infected are out of school for extended periods of time, and schools consider including contingency plans in their IEPs. If you have questions about those issues, please refer to the complete guidance document.

On March 16, 2020, the Office for Civil Rights of the U.S. Department of Education issued its own new 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 in which school buildings are closed and communities are exercising social distancing. It essentially states that if the IEP team is unable to meet in person, it 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.

On March 21, 2020, the Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) of the U.S. Department of Education issued supplementary guidance: Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities. This guide clarifies that federal law should not prevent schools from offering distance learning opportunities to all students, including students with disabilities. As school districts take necessary steps to address the health, safety, and well-being of all their students and staff, educators can use distance learning opportunities to serve all students. Furthermore, the Department encouraged states and districts to explore and utilize available flexibility, within the confines of the law, to educate students with disabilities during the pandemic.

It is important to note that the Department acknowledged that during the COVID-19 crisis, schools may not be able to provide all services in the same manner in which they are typically provided. While some schools may provide certain IEP services to some students in-person, it may not be feasible or safe for some institutions to provide offerings such as hands-on physical therapy, occupational therapy, or tactile sign language educational services. However, many disability-related modifications and services may be effectively provided online (e.g., extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, and accessible reading materials, as well as many speech or language services through video conferencing).

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.

Administrators, teachers, and case managers should remain in regular contact with families. Schools should identify families’ prefered method of contact (e.g., phone, text, email, video chat) and their preferred days and times for contact. Special education teachers and service providers should share information on the school’s distance learning* plan, and specifically how individual student supports and services will be provided. They should get the family’s input and outline to families how instruction will be delivered, share expectations for the adult supervising the student, and conduct a needs assessment to understand the resources the family has or may require to access the instruction.

*We use the term distance learning in an attempt to capture the varied approaches to instruction schools are taking during the COVID-19 school building closures. This includes online learning, remote learning, independent study, or a hybrid of various models.

Schools should conduct a needs assessment with each family to understand what barriers exist related to accessing instruction and content through their distance learning plans. Schools should consider how students will access content and create an inventory of the resources, supplies, and technology (e.g., internet and an up-to-date device) needed to fully participate in the alternative learning environment. Once a needs assessment has been completed with all families, schools should develop plans for providing the identified supplies and/or technologies to each family.

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.

Communication and collaboration with parents/caregivers is always key, but in these times it is critical. Parents/caregivers should have a solid understanding of their rights under IDEA and what their child is entitled to under the present circumstances. If they decide to decline remote/virtual services, schools should follow their individual state’s guidance on how to properly document these decisions. Generally speaking, there is a lack of clarity on how such decisions by parents/caregivers will impact a school’s obligations going forward. The U.S. Department of Education has made it clear that schools should provide services that can be delivered remotely during school building closures and defer other services until students return to the building. It is less clear whether schools will be required to provide deferred compensatory services for offerings that parents/caregivers simply declined to receive remotely.

The structure, function, and quality expectations of IEP meetings should be maintained as schools transition to virtual/remote meetings. In other words, all rules still apply in the virtual meeting space. Parents/caregivers are entitled to receive multiple outreach attempts, have access in advance to reports and assessments, be provided opportunities to share and discuss information about present levels, and receive reports on progress as existed before. To ensure meaningful access and participation, schools should identify preferred forms of communication (telephone, video conference, etc.) and assess (and mitigate) any technology barriers. IEP teams should support families in downloading and running any required program or software in advance of meetings. Currently, schools are using online platforms such as Zoom and G Suite for Education to host virtual IEP meetings, as they can be made to be FERPA compliant. Schools should work with their technology and information teams to review privacy and security requirements for all virtual platforms they plan on using.

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.

This is shifting rapidly. Schools should develop compliance protocols based on those in place when schools are open when possible. 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. Look for state-specific guidance or rulings regarding flexibility on timeline requirements or request guidance from state departments of education. Any circumstances that prevent services from being made virtual should be documented.

Practitioners should review each assessment to determine if they can gather valid results from administering the assessment virtually. In some cases, evaluations or portions of an evaluation can be done remotely. For example, social workers and school psychologists in some states collect social histories as part of their evaluations. This can be done via phone or video conference.

Keep in mind that guidance from OSEP reminds us that reevaluations do not need to contain new testing information to be valid, as long as the team agrees that they have enough information to design appropriate programming for a student. For example, schools serving graduating seniors have an obligation to provide students with the services and accommodations provided during their schooling so they can use that information to advocate for themselves in their post-secondary decisions. If the IEP team determines that current testing data would allow the team to complete this documentation accurately, no additional testing is required.

While the guidance does not specifically address the issue of timelines for IEPs and evaluations, it is clear from other recent guidance that the US Department of Education is establishing a process through which LEAs and families can make modifications to various elements of the IEP process, including timelines and method of service delivery, amongst themselves remotely. If that does not work for whatever reason, either because the nature of the services cannot realistically be provided remotely or because the family will not agree to a revised timeline for discussion and figuring out how the services may be provided, those elements of the IEP that cannot be provided as currently written in the IEP should be deferred until the resumption of in-person instruction and called compensatory education.

We expect guidance from the U.S. Department of Education to continue to evolve on this. Currently, the Office of Civil Rights guidance states as follows:

“IEP Teams are not required to meet in person while schools are closed. If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504.”

IEP goals should still be tracked and progress should be monitored. Progress should be reported to parents/caregivers as outlined in the IEP. If services or goals are being modified to reflect the school’s new distance learning model, make sure they are designed in a manner that ensures progress monitoring and reporting can occur. In cases in which the goals for a student, including monitoring procedures, need to shift, these changes must be made as a result of an IEP team decision. Schools are leveraging existing online student information systems or developing trackers for teachers to monitor progress through virtual instruction. Behavioral goals may still allow for data collection, but in some cases, the goals may need to be revised or the data collection responsibility may shift to the parent/caregiver. 

Federal laws require Local Education Agencies (LEAs) to provide a full continuum of special education supports and services to students who reside in their geographic catchment area, as well as to ensure that students with disabilities receive a free, appropriate public education (FAPE) in the least restrictive environment (LRE) appropriate for a student’s needs.

State laws vary as to whether or not each charter school functions as a part of a larger LEA (usually the local district) or serves as its own independent LEA. If a charter school is its own LEA and thus responsible for providing the full continuum of special education supports and services, it is responsible for providing special education if it continues to offer instruction after closure. 

If a charter school is within a district LEA, it may be more difficult for special education supports and services to move forward when the district has opted to shut down entirely.  However, if a charter school that is part of the district LEA has the authority and capacity to conduct IEP meetings and otherwise make special education decisions, those schools should use that authority to adjust IEPs to reflect the distance learning environment as appropriate for each individual student. Document all actions and decisions in order to keep the district LEA informed. 

By now, most districts and schools have made an unexpected leap, switching from their existing in-person program to a remote education model that is new to them. There are various models and options to consider when designing a distance learning environment, and these should be examined as the hiatus continues and programs are refined. The following list is a starting point for schools as they determine what is best for their students with disabilities. Schools and parents/caregivers should collaborate to decide how best to provide the mandated supports and services for each student. Whatever the format of instruction, students with disabilities must be provided with the supports and accommodations called for in their IEPs and 504 Plans.

• Virtual/Online Education:
  Many states already have  district and/or charter schools that provide instruction via the internet. Models can include fully virtual instruction or blended learning, which incorporates elements of traditional classroom and online learning. For many districts and schools facing COVID-19 challenges, a switch to online education has proven to be an attractive option. They have learned, however, that making such a transition on short notice may be quite difficult—instructional practice, hardware, software, staff capacity, and the time (and possibly money) to develop them may be in short supply. Schools may have to provide computers, internet access, and other technological elements at no cost to students who lack such resources. Students with IEPs are also entitled to be educated together with their non-disabled peers in the least restrictive environment appropriate for their needs. Online options may be difficult for some students with disabilities to access. This can be particularly true for services such as physical and occupational therapy and social/emotional support, which may require in-person support. Fully online learning models usually require the participation of an adult on-site that can serve as a facilitator.  For students with disabilities, it may be that the parent or other family member who might serve in that role lacks the specialized training needed to provide certain support. Such challenges are not new—the virtual schooling environment has struggled from its inception to meet the full range of specialized student needs.

• Independent Study:
  Another approach to distance learning that some districts and schools have  taken is to utilize a program of independent study that does not rely on online offerings. Instead, students work from packets of hard copy resources and related materials.

• Blended Learning:
  As noted above, “blended learning” is a term commonly used to refer to programs that have both a virtual element and an element based in a “brick and mortar” school building. Given the baseline challenges that COVID-19 presents to students being educated at the same location, conventional models for blended learning may not be viable. But it is also possible that a school’s program could draw on written materials and workbooks that are sent to students to complete at home. Such materials could also be paired with online elements. Students with disabilities would need to have access to whatever supports they need in order to make use of such materials.  

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.

Coordination between general educators and special educators is essential as services continue during school closures. Administrators must allow time in the virtual school day for this collaboration. Educators should use co-planning to determine when and how special education push-in services will be implemented within the school’s new alternative model. Virtual platforms such as Zoom and Google Meet or Hangouts can offer the ability for students to simultaneously see both educators, and for educators to see which students may need additional assistance through a breakout room or via private chat.

As IEP teams review student IEPs to determine what components need to be modified to align to the school’s new alternative model, they should also consider whether the BIPs are still relevant to the distance learning environment. If the BIPs remain appropriate to the new distance learning environment, consider how to appropriately track progress and support parents/caregivers in co-implementing plans.

The IEP team is required to consider how each student will be able to access instruction and their services within the distance learning environment. If assistive technology will be required for a student to appropriately access information, the IEP team is required to provide that technology. Partnering with parents/caregivers is critical in determining the context in which students will be able to receive instruction, what modalities of instruction will be most effective, and which assistive technologies may prove beneficial for students with severe or profound disabilities given the change in environment.

Yes. Related services of various sorts—such as physical, occupational and speech therapies—are mandated elements of many student IEPs and are an important element of FAPE. Where a school or district is providing educational services to students, related services called for in student IEPs must either be provided remotely or, if in-person elements are required, treated as compensatory services and that are provided to the student when school resumes under normal conditions.

As schools review IEPs to determine where to make modifications based on the new distance learning model, they also make determinations about how best to ensure ongoing delivery of related services. Schools and providers are using online platforms to provide teletherapy and adjusting groupings as appropriate. Most schools have online student information systems, which should remain accessible and be utilized during distance learning. Service providers that are required to log sessions and session notes and report progress towards IEP goals must continue to do so in the same manner as before.

From a special education lens, the services written into a student’s IEP must be provided, including those that are included in the IEP on an “as needed” basis. All services mandated in an IEP must be provided if instructional opportunities are being provided to general education students. Services that require in-person elements may need to be deferred until school resumes under normal conditions.

Decisions for all students, but especially those with moderate or severe disabilities, must be made on an individual basis. The National Fragile X Foundation has a practical example of how service providers can provide explicit assistance to families to keep therapies going during school closures.

Ordinarily, compensatory services are required when an LEA fails to adequately provide a student with an IEP with the supports called for in the IEP.  Those rules continue to apply during COVID-19 school building closures, but an additional category of compensatory services are also relevant in this unusual context. The U.S. Department of Education Guidance released in March of 2020 specifically states that “If a child does not receive services after an extended period of time, a 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.” Services and other measures that cannot be provided remotely should be offered as compensatory services once school buildings reopen.

Compensatory education is designed to ensure that the student is appropriately educated in line with IDEA and allows the team to determine what services the student will need in order to meet that definition. Current guidance around compensatory services leaves the IEP team a great deal of discretion:. 

The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements. 

Teams should make every attempt to provide services aligned to student need during distance learning to reduce the regression of skills that may occur.

There is nothing in IDEA that indicates giving financial compensation to parents/caregivers qualifies as compensatory services. This is different from the situation where a parent unilaterally enrolls their child in a private placement because of a denial of FAPE and the public school pays for that private placement. There are specific requirements and processes that must occur in those situations, as laid out in federal law.

Additional funding for IDEA is being explored by Congress but it is premature to speculate regarding the potential of additional funding for compensatory services in FY2021.