Special Education Services During COVID-19 School Closures

In response to COVID-19, Gov. Jay Inslee ordered the closure of all public and private schools in Washington State through April 24, possibly longer. “During mandatory closure school districts will be prohibited from providing in-person educational, recreational, and other K-12 school programs using their school buildings and facilities.” However, “Districts will not be prevented from providing instruction thorough online learning models (so long as those can be provided equitably) or from using their facilities to provide childcare, professional development, staff meetings, Individual Education Program meetings, direct services to individual students, or other activities deemed appropriate by the district administration.”  

This is an unprecedented situation that will impact all students in Washington State, especially students already receiving special services and those accessing social services such therapies, counseling, and meals. Families are rightfully concerned about the lack of special education services for students during this closure and the real risk of regression especially amongst the most vulnerable students. The question is, “Is the state required to provide special education services during the forced closure?”  

Because this situation is unprecedented, the answer is still unknown. It will either be resolved by state and federal legislative branches passing laws in response to the crisis, or as cases wind through the litigation process. However, various government and advocacy agencies have published advisory opinions. Regarding schools that are able to remain accessible to the general student population through on-line educational opportunities, there appears to be consensus that services must be made available to disabled students in an equitable manner. For example, disabled students’ needs may be met by, “providing services in an alternate location, by using a different … provider, or through alternate means, such as consultative services to the parent.” The Washington State closure mandate provides flexibility to school districts in assessing their individual population’s needs by providing access to school facilities in order “to provide direct services to individual students, or other activities deemed appropriate by the district administration,” as well as for IEP team meetings. If individual students are not capable of accessing distance-based learning or cannot receive homebound services, OSEP has acknowledged that compensatory education may need to be provided to make up for missed instruction. Districts must continue to comply with the IDEA and issue prior written notice for any changes in delivery or changes in placement.  120 LRP 9718 (EDU 03/12/20).

If a school district has halted any educational services, distance based or otherwise, to the general student population opinions of agencies differ on whether a school district has a continuing obligation to provide FAPE to its disabled students. The U.S. Department of Education’s Office of Special Education Programs (OSEP) issued guidance stating, “if (a school district) closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then (the school district) would not be required to provide services to students with disabilities during the same time period.” COPAA strongly disagreed with this guidance in a statement of its own, reasoning that “the Secretary (of Education) does not have the authority to grant waivers to FAPE under IDEA.” 

An extended school break, however, is not an unprecedented situation. School districts routinely close for extended periods time in non-emergency situations, such as during summer and winter breaks. The IDEA has always required that Districts provide students with disabilities special education and related services beyond the instruction year provided to the general population when those services are necessary to provide the student with FAPE through Extended School Year services (ESY). 34 CFR 300.106(a)(1). While ESY services are typically provided during the summer months, there is nothing in the IDEA that limits a public agency’s duty to provide ESY services to a child during other extended school closures, if the IEP team determines that the child requires services during those times.  71 Fed. Reg. 46,582 (2006).

The need for ESY is determined by the IEP team. A public agency cannot unilaterally limit the type, amount, or duration of those services. A district should evaluate a student’s needs for ESY services within a reasonable time after it is aware, or should be aware, that the student may need such services. The failure to promptly evaluate the student may result in a denial of FAPE. See, e.g., Mountain Lakes Bd. of Educ., 48 IDELR 24, (SEA NJ 2006); and Reinholdson v. School Bd. of Indep. Sch. Dist. No. 11, 46 IDELR 63, (8th Cir.2006, unpublished).

If a child’s IEP presently calls for ESY, the district needs to provide those services. Districts must provide ESY services when the child’s IEP team determines that the services are necessary for the provision of FAPE to the child. 34 CFR 300.106 (a)(2). See, e.g., San Francisco Unified Sch. Dist., 53 IDELR 31 (SEA CA 2009). 

OSEP guidelines explicitly go against what the IDEA requires for provision of services during an extended school closure. While a district may not need to provide continuity of services for all students with disabilities during school closures where the school suspends service to the general population, under the current IDEA, IEP teams, which must include the student’s parents, are obligated to make individualized determinations, in a timely manner, as to whether a student will need ESY services during the break in order to receive FAPE.  

The Washington guidelines allow for IEP meetings on school campuses and through conference calls and other methods that provide for social distancing. If your child needs Extended School Year services during a school closure or is being denied access to educational services provided to the general population during this time schedule a consultation with Cedar Law by calling (206) 607-8277. 

Future blog posts will address students being served through Non-Public Agencies (NPAs), access to nutritional services, and home-based resources and recommendations.