As most Massachusetts residents know, on March 15, 2020 Governor Charlie Baker ordered all public and private schools in the Commonwealth to cease in-person instruction through April 6, 2020.  That restriction was later extended through the end of the 2019-2020 school year.  The Massachusetts Department of Elementary and Secondary Education (“DESE”) directed school districts to provide students (including special education students) with remote instruction during that time.  With the 2019-2020 school year drawing to a close, DESE been considering summer school programs and looking toward the reopening of school in the fall.  DESE has issued the following guidance on those subjects:

• On June 4, 2020, DESE Commissioner Jeffrey C. Riley issued “Initial Summer School Re-Opening Guidance.”
• On June 7, 2020, Senior Associate Commissioner and State Director of Special Education Russell Johnston issued “Guidance on Summer 2020 Special Education Services.”
• On June 25, 2020, Commissioner Riley issued “Initial Fall School Reopening Guidance,” including “Initial Fall Special Education Guidance” (Appendix C).
• On July 1, 2020, Commissioner Riley issued “Comprehensive Summer School Guidance,” which supersedes the June 4 initial guidance.

All four documents may be found at http://www.doe.mass.edu/covid19/on-desktop.html.

What does DESE’s guidance tell us about the shape of special education for the summer and fall of 2020?  Although further guidance about the fall reopening is anticipated, some important principles emerge.

• School districts will be required to develop and follow detailed safety protocols. Each of DESE’s guidance documents contains a wealth of detail regarding the safety procedures that districts must follow.  These vary somewhat, as between the summer and the fall.  For example:
  • Numbers of students. During the summer, school buildings are limited to 50% capacity, with no more than 300 students in a building at any one time.  There is no such limitation in the fall, although districts must adhere to distancing guidelines (described below).
  • Class size. During the summer, class size may not exceed 10 students, with no more than 12 people total per room (i.e., 10 students and 2 teachers or other service providers).  There is no such limitation in the fall, although districts are subject to distancing requirements (described below).
  • Distancing requirements. During the summer, students must remain 6 feet apart, “when feasible.”  To the extent possible, desks must be spaced at least 6 feet apart and must all face the same direction.  During the school year, although 6 feet remains the aim, “a minimum physical distance of three feet has been established.”  Again, desks should all face in the same direction.
  • Face coverings and masks. For the summer, all students are required to wear a mask or face covering that covers the nose and mouth.  During the school year, that requirement applies only to students in grades 2 and above, although kindergarteners and first-grade students are encouraged to wear them.  Adults are required to wear masks or face coverings during both the summer and the fall.  Both for children and for adults, exceptions must be made “for those for whom it is not possible due to medical conditions, disability impact, or other health or safety factors.”  Comprehensive Summer School Guidance, p. 7; Initial Fall Guidance, p. 8; see also Summer Special Education Guidance, p. 2.  (See below for more on “disability impact” with regard to various categories of special education students.)
  • To the extent that the fall and summer safety standards vary, DESE explains the divergence by saying that it has tried to align its summer standards with standards promulgated by “other child and youth serving agencies, such as summer camps and child care facilities” during the current phase of the state’s reopening. Comprehensive Summer Guidance, p. 2.
• In-person instruction is encouraged. For the fall, the goal is “the safe return of as many students as possible to in-person school settings,” Initial Fall Guidance, p. 2 with “a focus first and foremost on getting our students back into school buildings.”  at 3 (emphases in original).  As a means toward that goal, DESE recommends that districts conduct “even a small in-person program” during the summer if feasible.  Initial Summer Guidance, p. 3; see also Comprehensive Summer Guidance, p. 3 (districts “should make reasonable efforts to establish in-person summer services”).
• Remote instruction must remain an option, however. DESE is requiring districts to prepare three possible learning models for the fall: in-person; fully remote; and “a hybrid of in-person and remote learning.”  Initial Fall Guidance, p. 2.  For the summer, if a district cannot meet safety standards as of July 6, 2020 (the earliest date that summer programs may open), it may start remotely and then switch to in-person or, if the district determines that it will not be possible to implement safety guidelines at all during the summer, summer services may remain remote.  DESE has instructed districts not to make blanket determinations as to which services will be provided in person and which will not.  Instead, districts should document their decisions carefully, demonstrating a rational basis for their choices.  DESE Zoom Meeting Presentation for Special Education Directors, June 9, 2020 (available at http://www.doe.mass.edu/covid19/sped.html).
  • At the parents’ option, a student may continue to receive remote instruction even if the district is offering in–person programming. Both for the summer and in the fall, “[f]amilies, in consultation with their medical providers, will ultimately make the decision” as to whether their children will attend in-person instruction or will continue with remote learning.  Comprehensive Summer Guidance, p. 4; Initial Fall Guidance, p. 6; see also Summer Special Education Guidance, p. 2.  A doctor’s note (or submission of DESE’s home/hospital instruction form) is not required if a parent chooses remote summer instruction, DESE Zoom Meeting Presentation for Special Education Directors, June 9, 2020, and does not appear to be required for the fall.  This is different from the position that DESE took in earlier guidance (“COVID-19 Frequently Asked Questions for Schools and Districts Regarding Special Education,” March 17, 2020, revised May 15, 2020), and should come as a welcome relief to many parents who, for whatever reason (g., the child’s medical condition, his or her inability to comply with safety measures, and/or the general prevalence of COVID-19 in the community), conclude that it is too risky for their child to attend school in person.
• Special education students should be prioritized for in-person instruction. For the summer, DESE states that “[s]tudents with disabilities, particularly those who receive summer services as a provision of their Individualized Education Programs (IEPs)” form one of three high-need categories who should receive priority for in-person instruction, with the other categories being students who have been “off track or only intermittently engaged prior to and/or during the period of school closures” and “[v]ulnerable students who may be at risk socially or emotionally due to the school closures.”  Comprehensive Summer Guidance, p. 3.  (Of course, some special education students will fall into all three categories.)  For the fall, “high-needs students,” who are defined as including students with disabilities and English learners, “should be prioritized for full-time in-person learning when feasible.”  Initial Fall Guidance, p. 14 (emphasis in original).
• The greater the student’s special needs, the greater priority he or she should receive for in-person instruction. DESE’s summer special education guidance refines its general guidance by instructing districts to prioritize in-person instruction for the most vulnerable special needs students among those whose IEPs provide for extended school year (“ESY”) services.  In order to identify the most vulnerable, districts “should consider the nature of the disability and the barrier it imposes on a student’s ability to access remote learning,” Summer Special Education Guidance, p. 3, prioritizing students in three categories:
  • “Students with the most significant disabilities who have demonstrated substantial regression during remote learning;
  • “Students who receive multiple services during the summer – such as applied behavior analysis; speech, occupational, and/or physical therapies; and academic instruction . . .; and
  • “Students who will need more time to learn new procedures and protocols to increase their successful reentry to school in the fall.”

Id. at 4 (emphasis added).  Students in these categories should be offered some or all of their instruction in person, if the district can comply with DESE’s safety standards for summer instruction.  Students not included in these categories, such as those “who receive a limited number of services (such as tutoring, related services, or academic services only) would participate in summer services remotely.”  Id.  Similarly, for the coming school year, “DESE recommends that schools and districts . . . provide as much in-person instruction as possible for students with moderate to severe disabilities (e.g., maintaining full-time in-person instruction for students in substantially separate classrooms even if the rest of the school is in a hybrid model of instruction).”  Initial Fall Guidance, App. C, p. 22 (emphasis added).  DESE has also recommended prioritizing school-year instruction for preschool special education students.  Id.

• Some of our highest-priority students with disabilities may be at greatest physical risk. For example, DESE recognizes that some “high-priority students with disabilities require 1:1 support, and need assistance from staff with feeding, washing, dressing, academic readiness, sitting at a desk, manipulating academic materials, using communication devices, etc.”  Summer Special Education Guidance, p. 2.  It may not be possible for such students to remain 6 feet (or even 3 feet) from staff members.  Some of the highest-priority students may also have difficulty tolerating mask-wearing; may frequently mouth objects; may be unable to understand the need for safety precautions; and so on.  Some observers have questioned why our most vulnerable students should be among the first exposed to the risks of in-person instruction.  As discussed above, however, parents may opt out of in-person instruction, and should not hesitate to do so if they believe that the physical risks of such instruction outweigh the educational benefits for their child.  Such students may also be candidates for in-home instruction (discussed below).

• Summer services are not limited to remediation. Although special education students may receive ESY services only when necessary to prevent “substantial regression in [the student’s] learning skills and/or substantial difficulty in relearning such skills,” 603 CMR 28.05(4)(d)(1), DESE has endorsed a broader scope for services this summer.  “While it may be tempting to focus on remediation because of the disruption to academic learning this spring, summer programming can and should do more.  Educators can prioritize student mastery of the prerequisite content standards, credit recovery, and deliver services as identified in student IEPs during summer programming – and also help prepare students for success in the fall by previewing and practicing upcoming content.”  Comprehensive Summer Guidance, p. 3.  In addition, summer services may “incorporate regular enrichment, social-emotional learning (SEL), and opportunities to build relationships and community.”
• All special education students must continue to receive a free appropriate public education (FAPE) in the least restrictive environment. DESE has re-emphasized that students with disabilities must continue to receive FAPE, including all services outlined in their IEPs and including ESY services if provided in their IEPs.  Summer Special Education Guidance, p. 1; Initial Fall Guidance, App. C, p. 22.
  • When services will be provided in a way different from that specified in the IEP (e.g., remotely as opposed to in person), the parent must receive written notification. Summer Special Education Guidance, pp. 3, 15.  An IEP amendment is not required in this instance (nor does the notice have the effect of amending the IEP or altering the student’s “stay-put” rights).  at 15.  Formal parental consent to the temporary change in the method of service delivery is not required.  Id.
  • Whether instruction is in-person or remote, districts must continue to monitor student progress, collect data, and issue progress reports at least as often as regular education students receive report cards. Initial Fall Guidance, App. C, pp. 22-23.
  • Special education timelines remain in effect. Initial Fall Guidance, App. C, p. 23.
• Special considerations for certain populations of students with disabilities. DESE’s guidance includes comments on in-person instruction for students with certain types of needs:
  • As noted above, DESE has instructed districts to prioritize in-person instruction for preschoolers with special needs.  Younger students (and their service providers) may be among those who need to wear transparent masks, Initial Fall Guidance, p. 9, presumably because younger students are more apt to be frightened by masks and/or are more likely to rely on facial cues for communication.
  • Transition-age students. At the other end of the age spectrum, DESE has instructed districts that, although in-person participation in community-based programs and inclusive concurrent enrollment college-level programs for older students may be limited during the current crisis, districts “should make efforts to develop plans collaboratively with community-based providers, colleges, parents/guardians, and students so that students can access as much programming as possible.”  Initial Fall Guidance, App. C, p. 23.
  • Students who are deaf, hard of hearing, or otherwise rely on visual and facial cues to communicate. Such students, as well as their service providers, may need to wear transparent masks so that their mouths and facial expressions may be seen.  In addition, if the student requires an interpreter, that person’s presence must be taken into account in determining proper social distancing.  Summer Special Education Guidance, p. 12; Initial Fall Guidance, pp. 8-9.
  • Students with high-risk medical conditions. As discussed above, DESE encourages all parents to consult with their medical providers to determine the safety of in-person instruction, and gives parents the final choice about such instruction.  DESE has specifically alluded to the need for medical consultation for students with high-risk medical conditions, including “students who depend on mechanical ventilation,” children with tracheostomies, and those who require nebulizer treatments in the school setting.  Summer Special Education Guidance, p. 11.   
  • Students who require toileting and/or diapering at school. Districts are required to develop protocols for toileting and diapering, incorporating specific safety provisions for students who require assistance with toileting and/or diapering at school.  Summer Special Education Guidance, pp. 7-8.
  • Students who require 1:1 instruction. As noted above, DESE acknowledges that it may be impossible to maintain social distancing for some students who require 1:1 and/or hands-on instruction.  The use of protective equipment in such situations thus becomes even more important.  Summer Special Education Guidance, p. 2.
  • Students who require physical restraint. Students with behavioral issues who receive in-person instruction may need to be physically restrained.  Social distancing is of course impossible during that process.  DESE cautions that “seeing staff putting on protective equipment or being approached by staff wearing protective equipment can create anxiety in students,” and that service providers should “[u]se a student-centered approach and offer reassurance throughout interactions.”  Summer Special Education Guidance, p. 8.  “Only staff required for safely restraining a student should be involved; one additional staff member should monitor and address protective equipment needs for those staff.”    Given the risk of COVID-19 infection, “it is even more important than usual to try to avoid long and extended restraints.”  Id.
• In-home services. As an alternative to in-person school services in a school building, DESE recognizes that “it may be more practical to offer in-person services in a student’s home with the consent of the students’ parent/guardian rather than in a school building during this period. Doing so might alleviate some of the cleaning, transportation, and facilities issues associated with in-person instruction.”  Summer Special Education Guidance, pp. 2-3.  These services could be of the types frequently offered at home (such as applied behavioral analysis (ABA) instruction or training in self-care and other activities of daily living) but need not be limited to those categories.  “As with any difference in the way special education services are delivered during this pandemic,” DESE states, “schools and districts should engage with families before deciding to offer in-home services and then provide written notification regarding this form of service delivery.”  at 3.
• For the summer, DESE requires all students to wear masks on school buses and requires districts to develop a “plan for transportation that includes minimizing group transportation.”  Comprehensive Summer Guidance, p. 5.  Group transportation should be provided only when there is no other option.  Id. at 11.  DESE’s Initial Fall Guidance, while acknowledging the need for all students to wear masks on buses, provides few specifics about transportation procedures or protocols.  DESE intends to issue further guidance on this topic in the coming weeks, which will include “bus scheduling options, addressing bus capacity, and alternative modes of transportation, and operational considerations” for the 2020-2021 school year.  Initial Fall Guidance, p. 16.
  • The Summer Special Education Guidance advises districts to “work collaboratively with families to determine their ability to transport their child(ren) to and from school,” and goes on to state that “[p]arents of students for whom special transportation is provided for in their IEPs and who transport their student are eligible for reimbursement, according to 603 CMR 28.07(6). In these cases, the student maintains the right to access transportation for a disability-related need at a future date.  The IEP should not be amended, but the family should be notified in writing.”  Summer Special Education Guidance, p. 9.  Of course, parents of special education students may not be required to transport their children.  If the parents are unable to transport the child, or decline to do so, then the district must provide transportation (including transportation to and from out-of-district placements).  To that end, districts must develop a written transportation plan that, among other things:
    • Requires that social distancing and group size requirements be maintained, to the extent possible;
    • Maximizes space between riders;
    • Requires masks or face coverings; and
    • Provides that, when social distancing cannot be maintained (“e.g., students who need to be buckled in, transferred in and out of wheelchairs, etc.”), drivers and/or monitors will wear appropriate protective equipment.

The summer and fall of 2020 will present unprecedented challenges.  We look forward to DESE’s continued guidance as families and districts navigate the uncharted territory of the COVID-19 crisis.  Watch this space for future commentary!

Eileen M. Hagerty is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.