The United States Department of Education (DOE) has issued a Questions and Answers on Providing Services to Children with Disabilities during the Coronavirus Disease 2019 Outbreak, which can be accessed at here. Below is a summary of the guidance.
I. If schools are closed because of the outbreak, must a FAPE be provided to students with disabilities?
A. If Local Educational Agency’s (LEA) schools are closed to slow or stop the spread of COVID-19 and no educational services are provided to the general student population.
The LEA is not required to provide services to students with disabilities (SWDs) during that period.
If, once school resumes, there is any disruption in how a particular service is provided as a result of the outbreak, the CSE or Section 504 Team, as appropriate, should meet to make an individualized determination if any compensatory services are needed.
B. If the LEA provides educational opportunities to the general student population during the period when schools are closed.
The school must ensure that SWDs have equal access to the same opportunities including provision of FAPE. State and local educational agencies and schools are guided to work collaboratively to ensure that, to the greatest extent possible, students SWDs are provided the special education and related services in their IEPs or Section 504 Accommodation Plans.
II. What if a student with a disability is absent for an extended period because the child is infected with COVID-19, and schools are open?
The student must be provided special education and related services. The DOE’s position is that when an SWD is classified as needing homebound instruction because of a medical problem as ordered by a physician and is home for an extended period (more than 10 consecutive school days), the CSE should meet to change the child’s placement and update the IEP as needed (or amend the IEP without a meeting on consent, if only the amount of time spent in special education is changed). The CSE must consider whether the child is available for instruction and could benefit from online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available, while following health guidelines to assess and address the risk of transmission of the disease in the provision of services. If the child does not receive services after an extended period of time, the CSE must determine whether and to what extent compensatory services are needed.
 The DOE memorandum also includes guidance regarding Early Intervention Services for infants and toddlers.
III. What services must be provided if a particular public school for SWDs is closed due to the possibility of severe complications to its population from a COVID-19 outbreak?
If a school is closed because its student body is at high risk for complications from COVID-19, individual determinations must be made about whether and to what extent each child could benefit from online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent they are available. Consideration should also be given to health guidelines to assess and address the risk of transmission.
To the extent any child does not receive services during the closure, the CSE must determine whether and to what extent compensatory services are needed.
IV. What must be done if a SWD at high risk for severe medical complications is excluded from school during an outbreak of COVID-19 and the child’s school remains open?
A. If the exclusion is 10 consecutive school days or less.
This is not considered a change of placement. Services, including online or virtual instruction, instructional telephone calls, and other curriculum based instructional activities may be provided to the extent available. The CSE may meet to discuss the potential need for services if the exclusion is likely to extend beyond 10 days.
B. If the exclusion will be for more than 10 consecutive days.
For students with IEPs, this would constitute a change in educational placement, and could only be made by the CSE, which would have to determine that the child meets established high-risk criteria, and that the child’s needs could be met through homebound instruction. All due process rights would have to be provided, including the right to prior written notice and due process hearing to challenge the decision.
For students with Section 504 Accommodation Plans, this would constitute a change in educational placement, and the change would have to be effectuated through decision of the Section 504 team, with all due process protections provided.
V. Can the CSE consider a distance learning plan in an IEP as a contingency plan in the event of school closure due to a COVID-19 outbreak?
Yes; the CSE may, but is not required, to include a contingency plan in the IEP that could be triggered and implemented during a school closure.
VI. Other than special education and related services, what may IDEA Part B funds be used for prior to and during a COVID-19 outbreak?
IDEA Part B funds may be used for activities that directly relate to providing and ensuring the continuity of special education and related services for SWDs. This includes dissemination of health and COVID-19 information specifically related to SWDs and development of emergency plans for SWDs.
IDEA Part B funds may not be used to develop or distribute general COVID-19 guidance or to carry out activities that are not specific to SWDs.
Should you have any questions or concerns regarding this legal alert or require further assistance with this topic, please feel free to contact Susan Fine or any one of our Education Law Department attorneys.