On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.”  This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020.

The USDOE’s earlier guidance, as paraphrased by DESE, had stated that a “district is not required to provide services to students with disabilities during extended school closures if the district does not provide any educational services to students during this period of time.”  Many districts seized on this a reason not to provide services either to regular education students or to special education students (though many announced their intent to provide “enrichment” materials to regular education students).  Parents of special education students (and their advocates and attorneys) questioned the legality of this action, particularly in light of the fact that special education involves not only a right of access to education but an affirmative entitlement to specialized services that will allow the student to make effective progress (known as a free appropriate public education (“FAPE”)).

The March 21, 2020 OSERS guidance attempts to halt the freefall of FAPE during the Coronavirus crisis by addressing “a serious misunderstanding that has recently circulated within the educational community,” in Massachusetts as well as elsewhere. To that end, the guidance provides several important clarifications:

• Under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act, all school districts must continue to provide a FAPE to their special education students even during the Coronavirus crisis, “consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students.” Thus, although the guidance makes clear that methods of service delivery may change, it emphasizes that students who have an Individualized Education Program (“IEP”) or 504 plan have a right to continue receiving special education and related services during this national emergency.
• The guidance clarifies that federal disability laws do not present “insurmountable barriers” to remote services for special education students. OCR and OSERS explicitly instruct school districts that “they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities.”  In other words, districts may not issue blanket refusals to provide educational services in order to avoid the challenges of providing special education services during the current crisis.
• OCR and OSERS acknowledge that some services (g., “hands-on physical therapy, occupational therapy, or tactile sign language educational services”) may require in-person instruction, such that they cannot be replicated through alternative means. However, OCR and OSERS note that other services (e.g., “many speech or language services”) can be provided remotely. OCR and OSERS encourage school districts and parents to “collaborate creatively” to find new ways of providing services, such as through “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation,” as well as via “low-tech strategies” such as “an exchange of curriculum-based resources, instructional packets, projects, and written assignments.”
• OCR and OSERS reiterate a point made in their prior guidance that when there has been “an inevitable delay in providing services — or even making decisions about how to provide services” due to the national emergency and school closures, IEP Teams must make individualized determinations about compensatory education services (“whether and to what extent compensatory services may be needed”) once schools reopen. Compensatory education is an equitable remedy designed to provide a special education student with a replacement for IEP services that he or she has not received, placing the student in a position equivalent to that which he or she would occupy if the services had been delivered in a timely manner. If the Coronavirus crisis continues for any length of time (as it appears that it will), we believe that there should be a presumption that any student who has missed services will be entitled to compensatory relief.
• The guidance also offers information on procedural timelines under the IDEA. OCR and OSERS make clear that these timelines remain in effect during the current crisis, although school districts and parents are encouraged to reach “mutually agreeable extensions of time, as appropriate.” This means that certain important activities, such as IEP development, initial eligibility determinations, annual reviews, and reevaluations, must still be completed within mandated timelines unless the timelines are extended by agreement. In our view, this calls into question the practices of some Massachusetts districts that have flatly refused to hold virtual Team meetings while schools are closed due to the Coronavirus, despite the fact that administrators, teachers, and other service providers are working remotely during this time.
• Emphasizing again that school districts should be flexible in designing new ways to comply with their legal responsibilities, the guidance encourages districts to work with parents and agree to hold IEP Team meetings through remote means (such as “videoconferencing or conference telephone calls”). OCR and OSERS also point out that IEPs may be amended or modified in writing without a meeting, if the parents and district agree to that procedure.

The OCR/OSERS guidance provides encouraging news after a week of very concerning messages and acts by school districts regarding their special education students. It serves as a call to the DESE and other state agencies to incorporate and expand upon OCR’s/OSERS’s directives by issuing state-specific guidance regarding districts’ obligations to provide special education services, comply with procedural requirements, and furnish compensatory education services as a result of school closures. As OCR and OSERS recognize, and as we are all aware, this is indeed a challenging time. As the guidance underscores, however, this is not a time when districts should be allowed to abandon their most vulnerable students. If districts and parents work together to find creative solutions as the guidance envisions, we will emerge from this time with a stronger and more resilient system of special education.

Special Education Today is a publication of the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.