Coronavirus and Schools: Paying for Private School Virtual Programming During the COVID-19 Closure
CORONAVIRUS UPDATE
Bucks County LEAs are concerned about providers such as Woods, Martin Luther, Lakeside, BuxMont, and LifeWorks offering virtual learning for students they serve on behalf of Bucks County LEAs. The Bucks County LEAs want you to draft a letter to these organizations stating that they should not be offering virtual learning as FAPE for the LEAs to these students, but rather can offer the enrichment activities and/or resources. The 13 LEAs requested a letter from you to send a consistent message from Bucks County Schools. On a related note, Mary O’Neill from Woods has stated that Woods is moving forward with providing education to their students on campus. Mary said she will be having staff go into the residential units to deliver education. Not sure how that would play out with meeting FAPE obligations. Mary said New York was “OK and fine” with it for its residents. Thoughts?
We have been getting a lot of email traffic on this issue in general. Really, your question addresses two different scenarios:
- Private licensed academic schools that are providing alternative special education placements for students with disabilities under direct contract with a district (which Woods, Martin Luther, Lakeside, BuxMont, LifeWorks and dozens of other private licensed academic schools all do); and
- Private licensed academic schools that operate as part of, or in affiliation with, a residential treatment facility (RTF) and that are educating the residents of the RTF (which schools such as Woods, the various Devereuxs, LifeWorks, Presbyterian Children’s Village, and Melmark all do). During the recent COVID-19 closures, many of these schools have suspended classroom-based instruction in favor of on-line learning (as, for example, Lakeside and BuxMont have done) or, in the case of those schools educating RTF residents, in favor of providing one-on-one or small group instruction in the residential setting (as Woods is doing in your example above).
We will first address the schools not located in or affiliated with an RTF, such as BuxMont and Lakeside. We are of two minds on this issue. On the one hand, by moving to on-line learning, these schools are in breach of their agreements with their client school districts. Arguably, their contractual obligations to provide education are excused, as are the contractual obligations of the school districts to pay for that education, under the legal doctrine known as force majeure, an “act of God” that renders fulfilling the contract impossible. These private schools cannot attempt to cure the breach by unilaterally changing the fundamental terms of the agreement and then expecting continued payment from the contracting school districts. They especially cannot do so if the attempted “cure” consists of offering education that differs significantly from the education for which the school districts have agreed to pay. We are concerned that on-line learning—much less on-line counseling—will not constitute a FAPE for most of the severely behaviorally-disordered students typically served in such schools. If districts accept this “cure,” they—not the private schools—will own it should parents take issue with the appropriateness of the change. Because, moreover, moving from live instruction in a school setting to on-line instruction in the home constitutes a change in educational placement, the IEPs of the affected students will have to be revised and re-issued to parents with a NOREP, affording parents the opportunity to seek mediation and a hearing, thus invoking pendency in … what? a program that is not currently open? (Why assume that parents will be happy having these kids home all day, with or without an online experience.) If online learning is not a credible offer of FAPE, it will hardly offer any better a solution than will simply requiring private school students to experience the same total instructional shut-down that all students are experiencing.
On the other hand, some districts might prefer not to disturb too much the status quo—i.e., not to kick the proverbial slumbering dog—for these often difficult-to-place students and their often difficult-to-placate parents. These districts might be inclined to the “something is better than nothing” mindset and be perfectly satisfied with moving to online learning and counseling in accordance with a revised IEP. These districts might not want to undo their contracts with these private schools, lest the private schools be unwilling, post shut-down, to re-admit the students. One would recommend, in that case, that the school districts at least propose addendum agreements under which (a) the exact services to be provide on-line are described; (b) an adjusted cost for these services is established; and (c) the affected students are returned to school-based instruction as soon as the COVID-19 closure ends. Revised IEPs reflecting the temporary shift to on-line delivery of specially-designed instruction, and the automatic return to school-based programming when school re-opens, will also be necessary.
From your inquiry above, we gather that school districts in Bucks County, at least, are unwilling to accept the on-line “cure” that some of the private schools are offering. You have requested that we prepare a letter that these school districts can use to notify BuxMont, Lakeside, and other such schools that they are unwilling to accept this option. A model letter of this sort is attached. Note that we have placed in [brackets] optional language authorizing these private schools to offer on-line, non-curricular activities to students at an adjusted rate, should the private schools be willing to do so.
A similar problem has arisen with private schools that educate students in RTFs. As you note above, some of these schools are shifting to on-line education, like their non-RTF-aligned counterparts, and others are providing education and related services in person in the residences. Remember that all decisions concerning the education of students placed in RTFs and similar institutions reside with the “host” school district (the district in which the RTF is located), although the host can then bill back to the school district of parental residence the costs it has incurred for that education. The host school district and the resident school district can agree in writing that the resident district will retain educational decision-making authority, but the more typical arrangement is that this authority and responsibility rests with the host. Thus, in most cases, the host must decide whether to accept, incur the cost of, and assume responsibility for the on-line or in-residence instruction, even if it bills the cost of that instruction back to the resident district. If this instruction is occurring in person—whether one-on-one or in small groups—in the residential program at these RTFs, it violates the directive of the Pennsylvania Department of Education, see https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-19/Pages/AnswersToFAQs.aspx. If, on the other hand, this in-residence instruction is occurring on-line, the host district is left with the same choices outlined above for non-RTF-affiliated private schools: (a) refuse to agree to or pay for such instruction; (b) agree to pay for on-line activities that are non-curricular in nature (and thus are not subject to the full FAPE mandate; or (c) agree to pay and accept FAPE responsibility for such services, hopefully at a reduced rate. We discuss above the rationale that support these choices.
Again, as the schools in Bucks County appear unwilling to support these services as FAPE-governed instruction, these schools can use the model letter we have attached to notify the private schools of this determination.