Legal Update Memo No. 12-2020 – Serving Students with Disabilities During the COVID-19 Outbreak (K-12)

Download pdf: 12-2020 – Serving Students with Disabilities During the COVID-19 Outbreak w attachment (JEN-CDC)

Numerous questions have arisen regarding serving students with disabilities if a school has to close for an extended period of time in order to stop or slow the spread of COVID-19.  On March 12, 2020, the U.S. Department of Education issued a document titled Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak.[1]  The document is attached to this Legal Update. Among other issues, the U.S. Department of Education advises:

  • If a Local Educational Agency (“LEA”) chooses to close schools and does not provide any educational services to the general student population, it also is not required to provide students with disabilities with services pursuant to their Individualized Education Program (“IEP”) under the Individuals with Disabilities Education Act (“IDEA”) or a plan pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”). However, in this situation, students could possibly be entitled to compensatory services.  Following any extended school closure (generally more than 10 school days), IEP teams should make individualized determinations of whether compensatory services are needed, which could occur through an IEP meeting or through an IEP amendment with Prior Written Notice (“PWN”) as appropriate.
  • If a LEA does provide educational opportunities to the general student population during a school closure, “the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE [Free Appropriate Public Education].” This means that students with disabilities must be provided with necessary supports to ensure access to the alternate educational opportunities.  Additionally, those students must still be offered FAPE under the IDEA or Section 504. The guidance is clear that, with any alternate educational opportunity, and “to the greatest extent possible,” each student with a disability should be receiving his/her special education and related services identified in his/her IEP or Section 504 plan.  In this situation, IEP teams should also review whether all special education and related services were provided during the school closure and should make individualized determinations as to whether compensatory services are needed, which, again, could occur through an IEP meeting or through an IEP amendment with PWN as appropriate.
  • If a student will be accessing a distance learning program and/or independent study, the IEP team must amend the child’s IEP to provide for such a change of placement before the services are provided. This IEP amendment could be completed and signed by students’ parents prior to any school closure and be triggered only in the event of school closures.

Neither the U.S. Department of Education nor the California Department of Education has addressed how to handle mandatory timelines that may be delayed due to staff or student illness and/or school closures.  Please contact your SELPA for additional information on this topic.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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