What are the School District’s responsibilities during school closures due to the COVID-19 outbreak? by Alison Morris, Esq.

The United States Department of Education (DOE) provided a Questions and Answers document regarding schools’ responsibilities for providing services to students with disabilities:

https://sites.ed.gov/idea/files/qa-covid-19-03-12-2020.pdf?fbclid=IwAR0GwPfjaVavFbbFrVyFUm8mIF37TKSLITeK1g2yNcfKHzOR7vitvS8KWfs

While there is no federal law covering this exact scenario (schools closing for extended periods of time due to exceptional circumstances), the DOE did provide information on your child’s rights during this time. While each parent of a special needs child should read the Questions and Answers documents, here are the most important facts from the DOE:

1. If a school decides to close and does not provide any educational services to its general student population, then the school is not required to provide services to students with special needs. However, as we will touch on, your child could be entitled to compensatory or make-up services for the time your child was not provided any services, as per their IEP or 504 Plan.

2. If a school is providing educational services to the general student population (including though virtual lessons), then the school “must ensure that students with disabilities also have equal access to the same opportunities … and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504.”

3. If a school is open or providing educational services to students, but a student with a disability is not able to attend school or participate because the student has Coronavirus, the school must provide that student with special education and related services, such as home instruction services. If, due to safety reasons this cannot be accomplished, your child could be entitled to compensatory or make-up services.

4. If a school remains open but, because the student is excluded from attending school because the student is high-risk/medically fragile, if the exclusion is only temporary (10 school days or less) and the student can receive alternate instruction (for instance, “online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities”), then the exclusion is not a change in placement. However, if the school excludes the student from attending school for longer than 10 school days, the school does need to consider other placement options and should hold an IEP meeting to discuss alternate placements and options.

5. If students with special needs do not receive services during this time (either because a school is not providing services to any students, or because no one is able or available to provide required services as per a student’s IEP or 504 Plan), then the school “would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.” (emphasis added).

Our suggestions during this time are to:

• Give schools some time to determine how to provide services to its students, including its special needs students.

• Keep a record of all days and services your child misses. Then, when school starts again and things are back to normal, you will have a record of any compensatory education and/or related services your child needs, and you can provide that to the school.

• Work with the schools in trying to be creative during this time to try and provide your child services and academic instruction. However, do not allow schools to use the Coronavirus as an excuse or reason for the school not to take action. Meetings, activities, and services (to a certain extent and on an individualized basis) can be conducted virtually and/or over the phone.

If you have any questions or concerns, we at the Cuddy Law Firm are here to assist you during this time. Please stay safe, and please keep track of any services not provided to your child with special needs.