As we all struggle with the enormous challenges that we face with COVID-19, parents of children in special education may be concerned about the closure of schools. While closures are necessary, the situation raises many questions about your child’s IEP and special education status. Parents' specific concerns may vary greatly, from waiting for an initial assessment to determine a child's eligibility for special education to implementation of an existing IEP.
There are few definitive answers so far, and as with everything around the COVID-19 crisis, things change on a daily basis, even as a return to normalcy may be many weeks or months off. (See our article on COVID-related education issues for fall 2020 for updated information.)
First, check your district’s website and/or call to find out what they are doing as far as distance learning, and how they plan on meeting the IEP and other needs of your child. That is always the starting point as you sort out things. Of course, there are serious health matters that might affect your child and that might mean certain IEP components, especially in-person components, would be inappropriate and even dangerous. Your child’s health and that of educators is paramount. For example, if your child's IEP calls for him to have a 1:1 aide, you may have understandable concerns about that aide coming into your home; the school and the aide may have similar concerns. For now, those health issues may very well trump any IEP mandates, and the U.S. Department of Education (DOE) recognizes that schools may not be able to provide all services in the same manner they are typically provided. This is clearly a uniquely fluid situation.
The DOE has issued some guidance on IEPs and special education during this public health crisis. The information provided below, primarily from the DOE, represents “policy,” and is not law. It does, however, provide guidance that school districts will rely on, and, if a dispute went to court now, such guidance within the context of this truly unique crisis would likely be recognized by courts. Following are the key issues addressed by the U.S. Department of Education.
A school district is not required to provide services/education to a student with an IEP if it is not providing services/education to the general education population. But if your child's school continues to provide learning opportunities during a school closure, the school must ensure that students with disabilities have equal access to the same opportunities, including the provision of a free and appropriate public education (FAPE). So if the district is providing online services to the general education population, your child must be provided with special education and related services online, virtually, or by telephone. However, the U.S. Department of Education (DOE) has made it clear that "ensuring compliance with IDEA [Individuals with Disabilities Education Act] should not prevent any school from offering educational programs through distance instruction."
In its guidance, the Department of Education requires that schools must provide each student with a disability the special education and related services identified in the student’s IEP "to the greatest extent possible." And the Department recognizes that "there may be exceptional circumstances that could affect how a particular service is provided."
So what does this all mean? Your child is entitled to at least the same options as the general education population, but also the provision of FAPE, meaning that your child should have all parts of his or her IEP provided, but within the context of the health and other challenges faced by your child and school staff, and to the “greatest extent possible.” This language suggests the district has some wiggle room. Unlike normal situations, when a written, agreed-to IEP component must be provided unless you agree otherwise, here both the crisis itself and DOE's guidance establish flexibility. For now, there is no absolute right to an agreed-to IEP. For example, say your child has group speech therapy. You would have a difficult time arguing that “to the greatest extent possible” requires a group meeting, since this would require other children to be forced to attend a group activity, which no school (or court) would enforce in this crisis. This kind of wiggle room likely applies to almost anything that involves other people being with or working with your child.
If your child's school is offering online learning, the DOE suggests that disability-related modifications may include extensions of time for assignments, speech and language services through video conferencing, videos with captioning or embedded sign language interpreting, and providing accessible reading materials to all, or having inaccessible documents read over the phone to those who need it.
Once school resumes, the IEP team should determine whether the child is entitled to “compensatory educational services” for the time that the child did not receive an adequate education, to make up for any skills that may have been lost or not advanced during the school closure. But keep in mind that IDEA allows for flexibility in determining how to meet the individual needs of students with disabilities, so if your child was provided with substituted services (say speech therapy services over Zoom rather than in person), the IEP team may decide that compensatory services may not be required.
A child who is infected with the novel coronavirus while school is open may be entitled to home instruction due to medical reasons. You will need a letter from your child’s doctor, stating the condition and how long your child will be home. State law usually provides details as to how much homebound instruction for medical reasons is available. (In California, for example, there is a statute that limits home instruction to 10 hours per week, but that does not apply to students with an IEP. It has been my experience that some districts try to apply this statute to students with an IEP.)
Your child's IEP Team must then determine whether the child is available for instruction and could benefit from homebound services such as "online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available."
Whether home instruction would be available for a child under an IEP who is not otherwise sick is uncertain. You can request it, but be prepared for the district to say your child’s IEP does not provide home instruction unless you have a letter from your doctor saying your child currently has a medical condition requiring home instruction.
What if you want your child to be assessed to determine whether he or she may qualify for special education? What if you and your district reached an IEP impasse and you filed for due process before the school closures? What if you had an important IEP meeting planned but it was canceled?
The answers to these questions again must be given within the context that health and safety are paramount and will justify action or inaction otherwise not allowed by law. If your child was scheduled for an initial assessment, did that include classroom observation, which is often very important to the assessment? This alone would suggest rescheduling. Even if classroom observation is not indicated, you or the district may be concerned about unnecessary human contact at this time, and any assessments or meetings may need to be delayed.
As to due process, the extraordinary circumstances we face will likely mean delays in any mediations or hearings. It simply may not be the best time to proceed with a due process complaint if you haven't filed one yet. Or if you do file, be prepared for delays. Your child’s specific situation will determine whether filing now, so the matter is "in line,” or waiting makes more sense. With in-person hearings, will witnesses be available? Will they refuse to attend? States may pass emergency law extending current timelines for mediations and hearings. Moreover, the department in your state in charge of due process can grant extensions, which would certainly be very likely in the case of delays caused by COVID-19.
We will continue to update this page as more information becomes available. For more information, you may find the following material from the DOE helpful: