In March of 2020, many Governors across the country closed their schools due to the COVID-19 pandemic. On March 21, 2020, the U.S. Department of Education (“DOE”) published guidance for local school agencies on how to appropriately handle special education and services to children with disabilities during the ongoing public health crisis. The DOE has emphasized that school districts’ compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (“ADA”) school districts should not prevent distance instruction. Accordingly, special education services should continue during the period of remote learning from home as much as feasible.
During school closures due to the virus, if local education agencies (“LEAs”) continue to provide educational opportunities to general student populations, children with disabilities are entitled to receive the same educational opportunities that are being afforded to general student populations. Specifically, children with disabilities are entitled to a free and appropriate education (“FAPE”), pursuant to Section 504 and the ADA. LEAs must ensure that, to the greatest extent possible, each student with a disability be provided the special education and related services set forth in the student’s IEP or Section 504 Plan. In the event of school closures, an IEP Team or PPT may, but is not required to, consider remote or distance learning plans in your child’s IEP, as long as the instruction is meaningful.
During the COVID-19 national emergency, schools may not be able to provide all services in the same manner that are typically provided to students. While it may be unfeasible or unsafe for some school districts, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or sign language educational services, some disability-related modifications and services may be effectively provided online. For example, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services by way of video conferencing may all be successfully instituted remotely for students with disabilities. Teachers providing special education plans may have to create more specific daily or weekly plans for a special needs child who is now at home for the rest of the school year.
Additionally, the DOE guidance includes IDEA timelines for state complaints, IEPs, reevaluations, and due process hearings and encourages school teams and parents to work collaboratively and creatively to meet IEP timeline requirements. If a child has been found eligible to receive special education and related services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of that determination and IEPs must be reviewed on an annual basis. However, due to COVID-19, parents and school districts may agree to conduct IEP meetings through alternate means, including video conferences or telephonic conference calls. Of note, due to the pandemic, when making changes to a child’s IEP, the parent of a child with a disability and the school district may agree to not convene an IEP Team meeting for the purposes of making changes and can develop a written amendment or modification to the child’s IEP.
A reevaluation of a child with a disability must occur at least every three years, unless both the parents and school district agree that a reevaluation is unnecessary. However, a reevaluation may be conducted through a review of existing evaluation data when appropriate, without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.
In regard to state special education complaints, absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution, if exceptional circumstances exist. The DOE has now stated that exceptional circumstances include a large number of state workers unavailable or absent from work for an extended period of time due to the pandemic. In regard to due process hearings, the parties can come to a mutual agreement to extend the 30-day resolution deadline due to COVID-19. Additionally, a due process hearing officer may grant a specific extension of time at the request of either party to the hearing.
Moreover, when a child with a disability is classified as needing homebound instruction because of a medical problem, as ordered by a physician, and is home for an extended period of time, generally more than ten (10) consecutive school days, an individualized education program (IEP) meeting could be necessary to change the child’s placement and the contents of the child’s IEP. If a child with a disability contracts COVID-19 and has to be absent from school for an extended period of time while school is open, parents or guardians may be able to make arrangements with the LEA to provide homebound instruction special education and related services.
If you have any questions about special education and related services during the COVID-19 pandemic, contact Attorney Joseph Maya at (203) 221-3100 or JMaya@mayalaw.com for a complimentary consultation regarding your matter.