On Thursday, March 12, 2020, the United States Department of Education, Office of Special Education and Rehabilitative Services (OSERS) issued new guidance (the “Guidance”) to state and local educational agencies related to the provision of services to children with disabilities during the COVID-19 outbreak. At the outset, the Guidance notes that the IDEA, Section 504 and Title II of the ADA do not specifically address extended public school closures (more than 10 consecutive school days) due to health emergencies.

School Closures and Educational Opportunities

The Guidance explains that when schools are closed and educational services are not provided to any students, schools do not have an obligation to provide instructional and related services to students with disabilities. When schools reopen, schools must make every effort to provide the services set forth in a student’s IEP or Section 504 plan. Working through the Planning and Placement Team or Section 504 team, as applicable, schools must also consider, on an individualized basis, whether the student requires compensatory services.

If schools are closed but some educational opportunities are provided to the general population of students, schools “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 ADA0).” According to the Guidance, “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))” (emphasis added). This Guidance is important because it recognizes the reality that school districts will not be able to replicate service delivery during a school closure as a result of a pandemic either by providing all of the services in the IEP or providing those services in the same manner.

The Guidance also addresses the following situations:

  1. Schools remain open but children with disabilities are not attending due to COVID-19 infection;
  2. A public school for children with disabilities is closed due to the possibility of severe complications from the COVID-19 outbreak but the school district continues to operate other locations or programs.
  3. Schools remain open but exclude children with disabilities who are at high risk of severe medical complications from COVID-19 outbreak;
  4. Multidisciplinary teams include distance learning plans within IEPs in the event of an outbreak of COVID-19; and
  5. The use of Part B funds for activities other than special education and related services.

Additional information about each of these situations is addressed in the Guidance can be found here.