Defining a Student’s Legal Rights to Special Ed During COVID-19

This is an unbelievable time. We are embarking on uncharted territory as COVID-19 affects everything from small businesses, to taxes, elections, sporting events, and even the supply and demand of toilet paper. With mandated school closures across Ohio and much of the country, families, administrators, and lawmakers are scrambling to put procedures together and are trying to figure out what this means for our special education students. As with most important social issues, there are strong voices on both sides.

US DEPARTMENT OF EDUCATION’S GUIDANCE
The US Department of Education has issued several documents, regarding the applicability of a public school’s obligation to provide a FAPE and deliver IEP/504 Plan services during the pendency of this global crisis. Here are some of the main points:

  • If a school closes and is NOT providing ANY educational services to any of its students (general education or special education), then they are NOT required to provide services to students on IEPs/504 plans. If a student with disabilities doesn’t receive services for “an extended period of time,” the team must determine if compensatory services are appropriate.
  • IEP/504 teams are NOT required to meet in person while schools are closed. 
  • Evaluations that must be done in person should be delayed until school reopens. If the evaluations don’t need to be done in person, they can take place during school closure if the parent consents. 

Click here for USDOE’s fact sheet.

COPAA’s OPPOSITION
The Council of Parent Attorneys and Advocates (COPAA), a non-profit group whose members work to protect the legal and civil rights of students with disabilities, strongly opposes the United States DOE’s view that special ed students are not entitled to services if a school is closed. COPAA issued the following statement:

“COPAA has grave concern with the Department of Education’s proposition that students with disabilities are not entitled to services during a school closure. COPAA believes the obligation remains. If schools close for only a brief time for all students, the school district must maintain continuity of learning by providing educational services to students with Individualized Education Programs (IEPs). For such temporary emergency closures, the provision of homebound services such as instructional telephone calls, homework packets, Internet-based lessons, and other available distance-based learning approaches is not considered a change in placement.” Read COPAA’s full statement.

OHIO’S GUIDANCE
While there is an argument as to legal obligations when no services (online or in-person) are being provided to the general population, Ohio’s Department of Education makes it clear that students with disabilities ARE entitled to receive a FAPE (meaning implementation of their IEPs) if a school district is offering on-line schooling to its general population. An excerpt from ODE’s Q&A document reads: 

“Should schools provide related services and intervention to students with disabilities if they are offering some form of instruction during this ordered closure period?

Yes. The school should make a good faith effort to provide such services. If instruction is offered to all students, including alternate delivery models like online learning or distance learning, then districts are required to provide students with disabilities special education services. If, however, a student with a disability cannot access the alternate delivery models being offered to general education students, then the district should consult with parents and/or caregivers to determine the needs of the student and identify the most appropriate means for meeting those needs during the closure period. In the interest of community health, districts should take steps to identify the most appropriate location for delivering those services, such as a daycare, home or other location. Compensatory services might need to be considered.”

Click here for the full ODE Q&A document.

OUR ADVICE
We are advising our clients to be patient through this global crisis. The priority is keeping everyone healthy, particularly since many of our students are the most vulnerable. If your school district is providing online schooling, reach out to the Intervention Specialist and ask what accommodations or specialized instruction might be available remotely and see how you can work together to make the best of this novel situation. If a student’s IEP requires hands-on or in-person services (such as PT or OT), you should not expect to get those services while schools are closed. When things return to normal, meet with the team and discuss whether compensatory services are appropriate to meet your child’s unique needs. (Compensatory services are basically making up for special education services a child should have received at some earlier time.) It’s a case by case determination as to how and when any necessary compensatory services should be provided. 

Meanwhile, stay calm. We will get through this together.

– Attorneys Linda Gorczynski and Franklin Hickman

Posted in Blog, Special Education.