Coronavirus and Schools: USDE Guidance on the COVID-19 Outbreak
CORONAVIRUS UPDATE
The United States Department of Education (USDE) has issued a Q&A document related to the education of students with disabilities during the COVID-19 outbreak. A copy of this guidance can be found by clicking on the icon to the right.
The guidance of the department is consistent, in general, with the guidance we have provided over the past week. A review of two key points, and our own interpretations of the guidance, follows.
First, a general school closure applicable to all students, such as those now mandated in Montgomery County, will be easier to manage than will be the use of alternative means, such as on-line coursework or live-streaming, to continue educational programming. USDE advises that in the case of a general closure, services to students with disabilities can be discontinued entirely—just as they are for all students. USDE cautions, however, that IEP teams might have to reconvene upon the resumption of programming to determine whether services might need to change (and presumably be intensified) to address deficits that the closure might have been exacerbated. The inquiry required would be something like a retrospective ESY eligibility determination. Teams would have to determine whether the program break resulting from the COVID-related closure caused such significant regression in previously-attained skills, or such significant disengagement from the learning process, or such significant failure to realize predicted progress that some form of “compensatory” service is warranted. “Compensatory,” in this sense, does not mean hours converted to cash in the form of a compensatory fund (of the kind commonly included in a settlement agreement to replace, or compensate for, hours of programming the student should have received that the LEA failed to provide). We interpret the word “compensatory,” as used in the USDE guidance, to mean “intensified special education or related services in the IEP that address a disability-based need made all the more severe by the prolonged interruption of education.”
Having to consider intensification of services upon the resumption of school after a period of general closure is a headache, but at least while schools remain closed, according to USDE, they can remain closed for all. Schools need not worry about making arrangements for possibly hundreds of students with disabilities during the closure. Nevertheless, some of our IU clients in counties surrounding Montgomery County, who are serving students with disabilities placed in their programs by now-shuttered Montgomery County school districts, have asked whether their programs should remain open for these students during the period of closure—particularly if parents are willing to transport their children. Certainly, keeping the doors open avoids a problem for the placing Montgomery County school district: that district will not have to consider “compensatory” services for the student when schools reopen (other, possibly than compensation for parent-provided transportation). On the other hand, allowing students to continue in their out-of-county programs, when their home districts have been closed in an effort to contain the COVID-19 outbreak, seems contrary to the point of the closure. USDE, moreover, supports the idea that closure for all students can and should include closure for students with disabilities as well.
One might argue that general closures offer a gift in their simplicity.
When, however, schools attempt to remain running by providing alternatives such as on-line or cyber programming, USDE makes clear, as we have, that the full FAPE mandate remains in effect for students with disabilities. Students whose disabilities necessitate more direct forms of instruction or who require more structure and support to access learning will be entitled to that instruction and structure, and those supports, even in the on-line context. IEP teams will be challenged to revise programming that might have required intense staff support in the school setting to be equally suitable in the on-line setting.
Outright school closings of the sort Governor Wolf ordered in Montgomery County might require extraordinary action—possibly legislation—to implement commonwealth-wide, but such closures clearly lower the significant hurdle that the IDEA imposes on schools trying to meet the needs of disabled learners.
Second, USDE addresses the issue of individual student quarantines, whether mandated by health officials or undertaken voluntarily. Its advice, again, is consistent with ours. Students with disabilities who are unable to attend school because they have contracted or been exposed to COVID-19 remain entitle to a FAPE. USDE suggests that exclusions lasting more than ten days should trigger an IEP team meeting to develop an IEP for in-home services to remain in effect for the duration of the exclusion. While we do not necessarily support ten days as a hard-and-fast rule, we agree that each day of medical–related exclusion in excess of ten presents a risk for schools.
Some school districts are allowing parents who are concerned about the COVID-19 outbreak to withhold their children from school even if they have not contracted or been exposed to the virus. This is not a practice we recommend, whether the absence is recorded as “excused” or whether it is recorded as “unexcused” without truancy enforcement. Students with disabilities whose parents are permitted to withhold them from school because they a fearful of COVID-19 exposure are in the same position as students who are quarantined because they actually have or have been exposed to the virus. They are entitled to a FAPE if the period of exclusion is protracted (more than ten days, in the view of USDE). As lawyers sometimes do, we are in the process of attempting to build a consensus on this issue: the best approach to take with the parent of a child with a disability in this scenario. We hope to have definitive guidance to you tomorrow.