To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, March 30, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
By Executive Order 202.4, Governor Cuomo ordered schools closed on March 18, 2020 and, as of Executive Order 202.11 issued on March 27, 2020, the closure will continue through at least April 14, 2020. The latest order indicates that schools must continue plans for alternative instruction options throughout the closure. The plans for alternative instruction options have created innumerable questions regarding provision of services to students with disabilities. In response, the New York State Education Department’s Office of Special Education issued a Memorandum on March 27, 2020 to help clarify these requirements, entitled Provision of Services to Students with Disabilities During Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State. The guidance also touches on some topics related to general education students and provides the first specific guidance with regard to continuity of learning for English language learners with disabilities. This memorandum addresses provision of instruction and services for school-age students, provision of services for preschool students with disabilities and IDEA and Part 200 procedural requirements in the face of school closures.
- While schools are closed pursuant to the Governor’s Executive Orders, must a FAPE be provided to students with disabilities?
The short answer to this question is “yes,” with caveats. “School districts 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 individualized education program (IEP). However, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students.” The guidance also notes that schools should, to the extent possible, provide English language learners with disabilities “services in accordance with both their IEPs and Part 154 of the Commissioner’s regulations.”
In the two weeks since schools were first ordered closed, school districts across the state that had the technical capability and student 1:1 device initiatives raced to effectuate distance learning plans that utilized a variety of technological means. SED has now confirmed its agreement with the use of “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, secure online options for data tracking, and documentation … [including] special education and related services provided through distance instruction provided virtually, online, or telephonically.” SED issued a reminder that any such use of digital instruction must be accessible to students with disabilities, including English language learners with disabilities. To the extent such means are not accessible to individual students, educators must provide children with an equally effective alternate access to curriculum and services.
- Do IEPs have to be amended if a school district is using virtual online learning during the closure?
SED confirmed its support of federal guidance that where “virtual learning is part of a school closure recommendation,” there is no requirement to amend students’ IEPs. The reasoning for this is that the online or virtual learning is considered an alternate mode of instructional delivery.
- Can mandated IEP related services be provided through telepractice, and if so, must IEPs be amended to utilize telepractice?
SED confirmed its support for federal guidance encouraging the use of “teletherapy and tele-intervention” to meet the needs of students with disabilities.
Consistent with its position on provision of distance instruction, SED has stated that “if continuing the provision of related services via telepractice is part of a school closure recommendation,” IEPs need not be amended. Thus, any school district using telepractice for related services should make sure to include a description thereof in its school closure recommendation (also referred to as continuity of learning plan or similar document).
- What privacy interests are involved in using online means of providing instruction and/or related services?
Two laws may be implicated in the use of online distance learning for all students.
The federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, provides that an “education record” is directly related to a student and is maintained by the educational agency or another party acting for the educational agency. If either the school district or the provider of the online application on the school district’s behalf maintains a recording of a session with any student(s), that recording is an education protected by FERPA. Any such recording could only be shared with the parent’s/guardian’s permission or pursuant to one of the exceptions to the consent requirement in FERPA.
New York Education Law § 2-d prohibits disclosure of student personally identifiable information (PII) for any commercial or marketing purposes, and requires that any third party contractor that receives PII execute a Data Security and Privacy Plan detailing, among other things, the means by which PII will be protected.
If your school district is utilizing any online platforms or applications in which PII is collected (for example, login information as well as any audio/video recordings) by the platform or application vendor and you do not already have a Data Security and Privacy Plan in place, we can provide assistance to ensure compliance with the law.
- What are the requirements for continuation of special education services for students with IESPs?
New York State’s guidance does address this question. School districts of location must ensure that parentally placed nonpublic school students are provided the special education and related services in their IESPs during the school closure to the greatest extent possible “on an equitable basis as compared to other students with disabilities enrolled in the public school.”
Preschool Students with Disabilities
- What is required for related services and/or special education itinerant services to be provided via “telepractice” for preschool students with disabilities?
Over the last two weeks, school districts, county departments of health, preschool providers and parents/guardians have lacked any direction from SED regarding the provision of related services for preschool students with disabilities. The new guidance document has now clearly addressed this issue. As is the case for school-age students, the use of teletherapy and tele-intervention are encouraged to meet the needs of students with disabilities. Further, as long as the school district recommends continuing the provision of related services and/or special education itinerant services via telepractice/distance learning, no amendment of IEPs is required. To the extent services are rendered, providers will be reimbursed at the same rate as if the services were provided in person. SED’s guidance includes the reminder that services must be provided in a manner consistent with privacy interests.
IDEA/Part 200 Procedural Requirements including Timelines
- Can timelines a school district may not be able to meet because of Coronavirus be extended?
The IDEA and New York’s implementing regulations embodied within Part 200 of the Commissioner’s regulations include numerous timelines that must be met. None of these timelines were written with any thought of how they could be met in the exceptional circumstances of extended emergency school closures resulting from a worldwide pandemic. However, many of the timelines do have provisions that permit extension by agreement. In addition, both the U.S. Department of Education and NYSED have indicated a willingness to be as flexible as federal and state law will allow. What follows is a list of items with mandated timelines, together with explanation of whether/how they may be extended.
A. Evaluations and Re-evaluations
To the extent possible, if a parent/guardian has consented to an evaluation, it should be conducted. Any evaluation or re-evaluation that does not require face-to-face assessments or observations may continue if the parent/guardian agrees to a remote process. If a parent/guardian does not agree to remote assessment, or if an evaluation or observation requires face-to-face interaction, then the evaluation will need to be delayed until school reopens. Parents/Guardians and school districts may agree in writing to extend the timeline for evaluation or re-evaluation. Parents/Guardians and school districts may also agree in writing that re-evaluation is not necessary. We can help craft a template prior written notice and agreement form for either of these purposes. If a parent/guardian does not agree to an extension of time or that re-evaluation is unnecessary, and it is not possible to conduct a particular evaluation under the current circumstances, school districts should memorialize the reason for the delay as part of its IEP documentation process. School districts should also be aware that a re-evaluation may be conducted through review of existing data. In accordance with SED’s guidance, “[a reevaluation may be conducted by reviewing existing evaluation data. This review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.”
B. Annual Reviews
Many school districts have already been conducting annual review meetings using alternative means of participation such as video conferences and conference calls. SED’s guidance paraphrases the language of 8 N.Y.C.R.R. § 200.5(d)(7), which states that “[w]hen conducting a meeting of the committee on special education, the school district and the parent/guardian may agree to use alternative means of participation such as videoconferences or conference telephone calls.” To the extent practicable, school districts should advise parent(s)/guardian(s) in the meeting invitation notice that the meeting will be held remotely by alternative means of participation due to the emergency closure of schools. If the meeting notice has already been sent, parents/guardians should be contacted regarding the need to hold the meeting remotely. School districts should also memorialize the parent’s/guardian’s affirmative assent to these alternative modes of conducting meetings. This may be accomplished by having the chairperson begin the meeting by asking the parent/guardian to confirm that she/he agrees to use the particular alternative means of participation and then memorialize such agreement through a statement in the prior written notice or meeting comments/minutes associated with such meeting.
C. Due Process Proceedings
(i) Resolution Sessions
Pursuant to 8 N.Y.C.R.R. § 200.5(j)(2), a resolution meeting shall be convened within 15 days of receipt of a due process complaint notice from a parent/guardian. Although there is nothing in the regulation that references extending the time to hold a resolution session, the SED guidance indicates that “the school district and the parent are not prohibited from mutually agreeing to an extension of the resolution period.” If current circumstances prevent the resolution meeting from being held, even with the use of alternate means of participation, any such agreement should be in writing. We also note that the parent/guardian and school district may agree in writing to either waive the resolution process or use the mediation process to resolve the dispute.
(ii) Due Process Hearings
The state recognizes that in light of the state of emergency, due process timelines “may not be a priority for school districts or parents.” Hearings may continue through the use of hearings by telephone and/or testimony by affidavit. But to the extent it is not possible, NYSED encourages that extensions made by either the school district or parent/guardian be granted in accordance with the Commissioner’s Regulations.
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Education Law Practice Group regarding the issues addressed in this Legal Alert. Because of the frequent developments, you should consult counsel regarding specific questions.
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 the Education Law Practice attorney with whom you usually work.
 Preschool special education programs and services that are paid on a fee for service basis cannot bill for services that are not provided.