COVID-19 Advocacy Update

EDUCATIONAL UPDATE 03-26-2020

As the United States grapples with the escalating outbreak of COVID-19, the highly contagious and devastating coronavirus, education leaders across the country are facing difficult, enormously impactful choices. Should they close schools? For how long? How can instruction continue outside the school environment?

Districts across Tennessee and the entire U.S. are exploring various approaches to closing or taking their instructional programs online. This leaves parents of students wiith Down syndrome and other disabilities wondering how and whether their child's educational needs will be met during this period of extended school closures.

Fortunately, IDEA mandates that all eligible students have a right to a free and appropriate public education (i.e., FAPE as articulated in an IEP) even in times of crisis. The IDEA, along with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act collectively provide such students with the right to special education and related services that are appropriate for their needs as well as the reasonable accommodations and modifications they need to access those offerings.

To guide state departments of education, local school districts and parents, the U.S. Department of Education released new guidance on March 12, 2020 (the March 12 guidance) specifically tailo-red to the critical issue of how this current health crisis impacts our students. The new guidance specifically addresses school closures and moving to other modes of education for students with disabilities:

Question A-1: Is an LEA required to continue to provide a free appropriate public education (FAPE) to students with disabilities during a school closure caused by a COVID-19 outbreak?

Answer: The IDEA, Section 504, and Title II of the ADA do not specifically address a situation in which elementary and secondary schools are closed for an extended period of time (generally more than 10 consecutive days) because of exceptional circumstances, such as an outbreak of a particular disease.

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school 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 ADA)). 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. (34mCFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).

The bottom line for our kids is this: If an LEA does continue to provide educational opportunities to the general student population during a crisis, it “must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” This means that to the extent that a school district provides any kind of educational opportunities (even ones that are "optional" or "suggested," or which "do not count towards a grade"), they must provide similar or comparable opportunities to students with disabilities.

DSAMT's strong recommendation to parents right now is to ascertain from your school district (a) what kinds of educational opportunites are being provided for all children; and (b) what kinds of educational opportunites are being provided for students with IEPs. If you learn that your district is, for instance, providing online education for the general education population, but not providing anything for students with disabilites, that is a problem and we are here to help support you as you advocate for services for your child. If your district is providing optional educational opportunities or even just educational resources to the general education population, they should also be providing something similar for students with disabilities.

Please stay posted for more information next week, including a planned Q&A Session (date and time TBD) with Erin Richardson, DSAMT's Advocacy & Policy Director, during which parents can ask questions and share concerns.

UPDATED GUIDANCE FROM TN DEPARTMENT OF EDUCATION RE SCHOOL CLOSURES AND SPECIAL EDUCATION SERVICES (updated March 27, 2020)