As we are all experiencing, statewide school closures due to COVID-19 are substantially affecting our schools and students.  There are particular implications for students with disabilities who have individualized education programs (“IEPs”) or Section 504 Plans.  It is important to ensure that students with disabilities have the same access to any “continuity of learning” provisions that districts are providing for general education students.  In addition, federal and state guidance documents have emphasized that school districts must also continue to provide a free appropriate public education (“FAPE”) to students with IEPs or 504 Plans – to the greatest extent possible – when school districts provide educational opportunities to the general student population.  This Legal Alert summarizes the most important considerations for addressing the legal implications for students with disabilities during the COVID-19 school-closure period.

Initial Evaluations and Re-Evaluations

Recent guidance has allowed for evaluation timelines to be suspended during school closure when those evaluations require face-to-face testing or direct observation of students.  Districts should consider notifying parents when an evaluation timeline is suspended due to school closure.  This period of school closure, however, can be used to address other components of evaluations, such as records reviews, the completion of rating scales, etc.  This will assist with facilitating the completion of evaluations in a timely manner when school is back in session.

CSE and Section 504 Meetings

Recent federal guidance stated that Committee on Special Education (“CSE”) and Section 504 meetings may be held remotely rather than in-person during school closure.  Some districts are finding success in holding CSE and Section 504 meetings through online platforms or via teleconference.  Neither state nor federal guidance have suspended the deadlines for holding CSE or Section 504 meetings, including annual review meetings that may be due while school is closed.  Accordingly, as the school-closure period continues over time, it may be prudent to hold CSE and Section 504 meetings to the greatest extent possible based on staff and parent availability and access to the necessary technology. In addition to making sure all CSE members, including the parent/guardian, have access to the meeting and are engaged via teleconference or videoconference, the Committee members should have access to all documents and materials being considered and reviewed by the CSE.

Delivery of Services Using Teletherapy and Remote Instruction

Many districts are exploring the use of teletherapy – which is delivering services through remote platforms, including over the telephone and/or internet – during school closure.  Both the federal and state government have encouraged the use of teletherapy and telepractice in implementing student special education services during school closure.  Districts should be aware of any privacy implications related to the use of the remote delivery of services.  For example, service providers should only use online platforms that are approved by the school district.  In addition, school district personnel should determine whether teletherapy is an appropriate mode of service delivery based on the type of service and individual student need.  According to State guidance, there is no requirement to amend current student IEPs to provide for the delivery of teletherapy.

As part of their continuity of learning plans, school districts should be mindful of ensuring that any materials posted on a virtual or otherwise remote platform are accessible to all students regardless of disability status.  This may require certain accommodations and modifications of learning materials to address the needs of students with disabilities. It is important that school districts maintain close communication with parents during this process.

Compensatory Services

Both the federal and state Departments of Education understand that it may not be possible to provide students with all of their IEP or Section 504 services during school closure.  Based on this, schools will need to make individualized determinations regarding whether and to what extent compensatory services may be needed.  These determinations do not need to be made until schools return to normal operations.  Providing compensatory services does not necessarily mean making up the same type and amount of services that were missed due to school closure.  Rather, the determination should be made on an individual basis by calculating the amount and type of make-up services, if any, needed to bring the student to the level the student would have been if services were not missed due to school closure.  According the federal Department of Education, this determination should be made by the CSE (or the Section 504 Team if applicable).

In the meantime, thorough documentation of any parent and student contacts – regardless of the means of contact – is important to assist school districts with tracking services provided during school closure.  Service providers should carefully document the date, time, and duration of each service provided during this period.  Similarly, collecting progress monitoring data to the greatest extent possible during school closure can assist with calculating whether students require compensatory services – and the type and amount of those services – when school reopens.

CSE Out-of-District Placements and IESP Services

The State Education Department has issued guidance to all approved special education schools, state supported schools, 853 schools, approved special class preschool programs and special act schools. These schools have the same requirement to provide their students with programs and services during the school-closure period through online instruction and alternative methods – to the greatest extent possible – similar to public school districts.

Parentally-placed private school students with individualized education services programs (“IESPs”) are also entitled to special education services through alternative methods during school closure.   School districts should coordinate with nonpublic schools to facilitate this process.

Federal and state guidance documents can be accessed at NYSED’s updated COVID-19 web page.   The special education implications for school closures are continually evolving.  We will continue to monitor and provide updates on any new federal and state guidance on our firm’s COVID-19 response page.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.