It’s hard to know just what’s happening with schooling these
days because the language in the press and elsewhere isn’t precise. Just because a Governor has declared school
closed, what does that mean?
I have classified the
different types of closures. There’s the
basic one I think everyone is familiar with: school is closed. That normally is short term and for something
like a weather event; ide storm, tornado, snow, hurricane, etc. But some schools have created “Snow Days”
where they ask teachers to prepare materials for students to do when there is a
cancellation of classes because of weather.
Now we have a
situation also called school cancellation but what it really means in some states
is that school buildings are closed – but there may or may not be some form of
remote learning.
Because education is a function of each state, what is
happening during the COVID-19 pandemic can be very different. Some states have basically cancelled school (all
classes) for a time. Others expect some
form of remote learning to be taking place.
State education laws and legislative actions are a big reason for the
differences. Because of that, and the
lack of advanced preparation for something as unexpected as this situation,
there are lots of questions.
The US Dept of Education has tried to provide guidance in
particular for students with special needs.
But, I have heard from a number of very well educated colleagues who
find the guidance unclear. I’m going to
attempt to clarify the situation with this post. It is
hard to be specific because of differences in state law, and because there is great
variability in the needs of students with IEPs.
Every IEP should be tailored to serve the specific needs of the student.
What is happening for all the students in what I’ll call
regular education (typical classrooms)?
If the students are on break – there’s no instruction happening,
students aren’t required to do any educational activities – then there’s no
requirement for schools to provide services for special needs students.
If a school district closes its
schools and does not provide any educational services to the general student
population, then a school would not be required to provide services to students
with disabilities during that same period of time. Once school resumes, the
school must return to providing special education and related services to
students with disabilities in accordance with the student’s IEP or, for
students entitled to FAPE under Section 504, consistent with any plan developed
to meet the requirements of Section 504.
UNLESS – if the
student’s IEP specifies ongoing services that are necessary to protect the
student’s mental or physical health, I argue that the school has a moral,
ethical, and potentially legal obligation to continue provide those services to
the extent possible.
If an LEA continues to 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. (34 CFR §§
104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs,
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. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33
(Section 504))
If there are instructional activities for the regular
education students, then students with IEPs should be getting services that
match. Most students with IEPs are
integrated into the pre-COVIS-19 regular classes for some if not all of the
day. Students with IEPs should be
getting the same educational opportunities.
States where the expectation is that students will continue
with some form of remote learning may have defined the instructional time
requirement, and may have identified the type of documentation they need to
provide to the state. Most states have a
defined school year, sometimes 180 days, sometimes converted the 180-day
requirement into hours to give school districts more flexibility.
Depending on state law, it may be necessary for school
districts to reach that required instructional time to get state funding. States may provide some waiver of that
requirement, but it may take state legislative action to accomplish that. Whatever the expectation is for the regular
education student, the same expectation would exist for students with IEPs
unless there had been a previous reduction in instructional time in the
student’s IEP.
Here’s where it gets tricky for school districts serving
students with IEPs. The mode of delivery
of service changes with remote instruction.
For the moment assume that the school is using ZOOM video conferencing,
and other online delivery. If the IEP
didn’t already state that as one of the service delivery methods, ED recommends
that there be a revision in the IEP to reflect the new instruction. Of course, a school cannot make a change like
that without having parental sign-off on the change. ED is clear that the change in IEP does not
require a face-to-face meeting, but does require there be an appropriate paper
trail to support the change.
There can be students who, in the traditional classroom had
no significant difficulty with instruction and learning, but with the shift to
this new remote instruction, are having difficulties. Just as in pre-COVIS-19 education, when a student
is having difficulties there’s an assessment to see if the student needs other
supports, the same should happen with this new situation. There’s hope that schools resume their
traditional education practice, but using that as an excuse to avoid looking
for ways to support students having difficulties in the new remote instruction
environment is not acceptable.
While the Federal legislation is steady and U.S. Dept of Ed
guidance seems to be consistent, what’s happening in the schools seems to be still
evolving, especially as it’s clear the social distancing will continue for at
least another month.
Here are links for guidance from the US Dept of
Education:
OCR Short Webinar on Online Education and Website
Accessibility
And a selection of news articles on the topic:
And a specific example of the evolving guidance: Mass students
with IEPS must have remote lessons
