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Commentary and Analysis Regarding Colorado Law

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Special Education during the COVID-19 Global Pandemic

April 14, 2020
Special Education during the COVID-19 Global Pandemic
By Brian L. Allard, Associate

As the spread of the global pandemic of the novel coronavirus, COVID-19, causes school closures for in-person learning across the nation, school districts have been left with extraordinary challenges, including but not limited to rapidly transitioning to online learning and conducting day-to-day business virtually. As school districts move to this virtual setting, an additional challenge includes that federal and state mandates for special education remain in place. School districts are still required to provide students with disabilities a free and appropriate public education (FAPE). This means that school districts must still comply with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Title II of the Americans with Disabilities Act of 1990 (Title II).

Recognizing the challenges associated with complying with these statutes, the United States Department of Education (Department) and Office of Civil Rights (OCR) issued a few fact sheets and guidance documents over the last month that are briefly outlined below. These documents show both the Department’s and OCR’s concern for the potential impact of the COVID-19 virus and the early concerns of transmission in schools before actual school closures. The early guidance, issued before the school closures, is still relevant and informative as school districts begin planning for their 2020-2021 school year.

On March 12, 2020, the Department issued a document entitled Questions and Answers for Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak. The document can be found here. Some of the highlights from that document include:

1. School districts must provide special education and related services to any child with a disability who is absent for an extended period because the child is infected with COVID-19.

2. If a child with a disability is excluded from school during the outbreak of COVID-19, because of a high risk of severe medical complications, and that exclusion is a temporary emergency measure, the provision of services, such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available, is not considered a change in placement.

On March 16, 2020, OCR issued a fact sheet, which can be found here. Some of the highlights from that document include:

  • IEP Teams are not required to meet in person while schools are closed. If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as the student’s parent or legal guardian consents.
  • If a student who has an IEP through the IDEA, or is receiving services under Section 504, is required or advised to stay home by public health authorities or school officials for an extended period because of COVID-19, provision should be made to maintain education services.
  • Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during extended school closure, especially when continuing education must be provided through distance learning.

Most recently, On March 21, 2020, the Department issued a supplemental fact sheet for school districts, acknowledging the difficulties imposed by the COVID-19 virus. The full text of the fact sheet can be found here. Some highlights from that document include:

  • Although providing special education services remotely seems like an insurmountable task, the Department reminds schools that they should not opt to close or decline to provide distance instruction, at the expense of students. Rather, school systems must make local decisions that take into consideration the health, safety, and well-being of all their students and staff.
  • The Department understands that, during this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services through video conferencing.
  • Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.

The above information only provides a sampling of the guidance from the United States Department of Education and Office of Civil Rights. Our attorneys are ready and available to answer any specific questions school districts may have in this unprecedented time. It is expected, over the coming weeks and months, and as COVID-19 continues to spread throughout the state of Colorado and the nation, other guidance and fact sheets will be issued that further address issues facing school districts. Stay tuned for further information as this unusual global pandemic, and the government’s response unfolds.

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