Mitchell L. Yell, Ph.D.

The Covid-19 pandemic is having an unprecedented effect on education.  With schools being out of session until probably the 2020-2021 academic year, administrators and teachers are having to determine how best to educate students when they cannot attend school.  This can present unique issues if a student is receiving services under the Individuals with Disabilities Education Act (IDEA).  When the IDEA was originally passed as the Education for All Handicapped Children Act (EAHCA) in 1975 and reauthorized in 1980, 1986, 1990, and 2004, Congress never anticipated that special education teachers would need to educate their students through means other than face-to-face interactions.  Because of the closures of school all over American, however, that is precisely what teachers are doing.  What are the responsibilities of special education teachers to their students whose special education programs are spelled out in their individualized education programs (IEPs)?

In March 2020, the Office of Special Education and Rehabilitative Services (OSERS) and the Office of Civil Rights (OCR) in the U.S. Department of Education issued policy documents titled “Supplemental Fact Sheet:  Addressing the risk of COVID-19 in preschool, elementary and secondary schools while serving children with disabilities”  and a Q & A  titled “Questions and answers on providing services to children with disabilities during the coronavirus disease 2019 outbreak.”  Both of these documents are available on the Department’s IDEA website:  http://sites.ed.gov/IDEA.

The reason for issuing the supplemental guidance was to address a “fundamental misunderstanding” in the educational community.  To address this misunderstanding Department officials wrote that: “As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true.”

The Guidance statement further noted the following: “To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”

What does this mean?  Essentially officials in the U.S. Department of Education recognized the totally unprecedented nature of the Covid-19 pandemic and are attempting to alleviate the concerns of administrators and teachers that with students with disabilities who have either 504 plans or IEPs they must continue to provide face-to-face services. Clearly, the department recognizes that the use of distance and online instruction to provide special education and related services may be necessary to protect the health and safety of administrations, teachers, and students.  Additionally, disability-related modifications and services such as (a) distance instruction, (b) teletherapy and tele-intervention, (c) extensions of time for assignments, (d) videos with accurate captioning or embedded sign language interpreting, (e) accessible reading materials, and (f) many speech or language services through video conferencing may be provided online.

School districts must continue to provide a free appropriate public education (FAPE) to students with IEPs and to those students who are served under Section 504.  School personnel should engage in creative collaboration with parents to deliver IEP or 504 services technologically with the understanding that effective individualization is often feasible by using online or distance technology. If a school district offers continuing education for general education students during the pandemic, the district must also offer services to students with disabilities under Section 504. If school personnel or a student’s parents ask for an IEP meeting to address any concerns or to amend the IEP, the IDEA allows IEP meetings to be held online or through other technologies.  Additionally, if parents are comfortable doing so, IEPs can be amended without convening the entire IEP team.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act became law on March 27, 2020.  With respect to students with disabilities, the CARES Act granted the Secretary of the U.S. Department of Education the power to waive certain requirements of the Every Student Succeeds Act (ESSA), such as the end-of-year testing requirements.  States could apply to the secretary to waive requirements.  It is likely that state officials will apply for such waivers.   The law did not give the secretary the right to waive requirements of the IDEA or Section 504.  The law does require the secretary to report to Congress with 30 days of the signing of the law if there is a need for additional waivers under the IDEA or Section 504.

It is important to keep track of the efforts in the states to assist educators during the pandemic. Laws or regulations may be passed in the states and states may apply to the secretary of the U.S. Department of Education for waivers from the testing requirements.

The following bulleted list reviews the information on Covid-19 and students with disabilities:

• School districts still have an obligation to provide students with disabilities with a FAPE, which includes special education and related services.
• How a FAPE will be delivered will be different and will primarily include distance and online instruction during the Covid-19 pandemic.
• Related services such as speech and language therapy and mental health counseling may also need to be provided virtually.
• Parents and school-based should collaboratively work to determine the services that will be provided.

We are in highly unusual times that require flexibility and collaboration between parents and school-based personnel to continue to provide students with disabilities a FAPE.  What a FAPE looks like will be very different than it was a few short months ago.

This brief message on Covid-19 will also appear in the newsletter of the Council for Children with Behavioral Disorders.  Mitch