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FMG Education Law Blog Series: Special Education Issues Facing Schools in the COVID-19 Era

4/22/21

By: Tia Combs and Candice Jackson

Part 2: “A Year Online” 

A New and Deadly Virus

In January 2020, few Americans were aware the outbreak of a novel coronavirus that was about to dramatically alter how nearly every person and institution conducted their daily lives. On January 29, 2020, there were only five cases total in the United States. By mid-March, COVID-19 had caused a global pandemic, shutting down all but the most essential services across the nation.

As the novel coronavirus spread across the world and began to circulate in the United States, educators began to look to the government for guidance on how to cope.  By February 11, 2020, the American Federation of Teachers called for guidance from the federal government as to how schools should handle the threat.  In mid-February, individual schools and districts began to make the decision to close for deep cleaning, planning to reopen after a few days or a week. On February 25, the Centers for Disease Control (CDC), warned that schools should prepare for the threat of the new virus.

Soon after the World Health Organization declared COVID-19 a worldwide pandemic on March 11, 2020, schools across the United States shut their doors to students. The first statewide shut down occurred in Ohio, when Gov. Mike DeWine announced all Ohio Schools would close. By March 25, all public schools in the United States had closed, as to in-person instruction. Most schools continued to be closed until at least the end of the spring 2020 semester. This left schools scrambling to provide educational instruction, with unique questions and challenges regarding providing special education services to students with disabilities.  

School Districts React

From the start of the pandemic schools worked quickly to do what they could to substitute remote learning for in-person education. Schools scrambled to buy and distribute hardware and software needed to make remote learning a reality, amidst questions about equitable access for populations of students on whom the difficulties associated with learning online fall disproportionately.

Chromebooks suddenly became the hottest product on the market. So many Chromebooks were ordered that the New York Times reported that sales of the devices in 2020 rose as much as 41% over 2019. Los Angeles Unified School District alone reportedly spent $100 million on computers in March 2020 to distribute devices to students for online instruction and train teachers and staff. 

Almost all districts had to tackle a preexisting digital divide as the need for good internet access became the deciding factor as to whether a student could go to school successfully or not. Districts purchased and distributed wi-fi hotspots. Some districts whose students have spotty in-home internet access set up mobile wi-fi hotspots in the parking lots where their school buses now sat idle.

As most schools transitioned to teaching students virtually, special education presented a particular problem.

A Specialized Curriculum

To understand the nature of the problem presented by trying to provide special education virtually, it helps to consider what exactly special education is. In Part 1 of this blog series we examined how the IDEA requires all public school districts to provide a “free appropriate public education” (FAPE) to students with disabilities and how the contours of FAPE have been defined and redefined over the years. But, as a practical matter, how does the implementing of FAPE work?

By definition, special education describes “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.” 34 CFR 300.39(a)(1).  Perhaps the crux of the definition is the term “specially designed instruction,” which is also defined as “adapting…the content, methodology, or delivery of instruction to address the unique need of the child that result from the child’s disability and to ensure access of the child to the general curriculum.” 34 CFR 300.39(a)(1). 

School districts generally accomplish designing specially designed instruction for students with disabilities by looking at the grade-level standards and the needs of the individual student. Teaching methods are then adapted to help the individual student get the benefit of the curriculum in a manner that is tailored to that student. For example, a student with dysgraphia, a neurological disorder that impairs fine motor skills and the ability to write, might be provided with a scribe or a computer to help her take notes. Another student with the same disability with might benefit from additional time for assignments and tests, or permission to take a test in a room without the distraction of peers. Or, a student with severe cognitive or developmental disabilities might have an aide assigned just to him that helps him progress through the school day, while another student with the same disabilities may instead be placed in a special education class for all or part of the day. The specific accommodations a child needs are decided upon by his or her IEP Team at a meeting and then memorialized in the IEP.

Depending on the special education services that a student needs, providing those services in a virtual environment, in a manner that is as effective as when the services are provided in-person, may present significant challenges.

Federal Response

Initial Confusion

With districts and schools faced with the seemingly insurmountable challenge of adjusting to closed school buildings with little or no preparation, the United States Department of Education (ED) issued its “Questions and Answers on Providing Services to Children with Disabilities During a COVID-19 Outbreak” on March 12, 2020. In that document, ED stated:

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.

…

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.

The document went on to state that “The Department understands there may be exceptional circumstances that could affect how a particular service is provided.” However, the overly simplistic statements from ED did little to allay the fears of school administrators that provision of FAPE might not be possible, at least for some students with disabilities, in an all-remote setting. The legitimate concern over whether schools could provide FAPE online led some districts to decide not to offer any educational services, at least in the short run, during a time when the general public’s view was that COVID-19 was a short-term problem and that schools and the rest of the country would be “back to normal” after we had “stopped the spread.” Lots of schools, imagining that the pandemic shut-downs would only be for a brief period, closed schools altogether with the hope and expectation that schools could re-open even before the end of the spring term.

However, we learned throughout March and April of 2020 that COVID-19 would not be a short-term problem.  ED realized quickly that its initial statements in the March 12, 2020 Q & A were having the perverse impact of contributing to school closings out of fear of not being capable of providing FAPE online. Only 9 days after the March 12 Q & A, ED published its “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” in an attempt to further clarify.

In the Supplemental Fact Sheet, ED stated:

At the outset, OCR  and  OSERS must  address  a  serious  misunderstanding  that  has  recently  circulated  within  the  educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools 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. Rather, school systems must make local decisions that take into consideration the health,  safety, and well-being of all their students and staff.  

…

To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction. 

ED further noted that “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency…although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies.” The Supplement also encouraged states, districts, and parents to work together to agree on extended timelines and otherwise make mutually beneficial compromises for state complaints, due process hearings, IEPs, eligibility determinations, and reevaluations.

ED Declines to Waive Special Education Requirements

Section 3511(d)(4) of Division A of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (March 27, 2020) requested the Secretary of Education, Betsy DeVos, provide Congress with recommendations concerning whether additional waivers of the IDEA’s provisions were necessary to assist states and local educational agencies with meeting the needs of students and adults with disabilities during the COVID-19 crisis.  

Many districts were dismayed when on April 27, 2020, ED issued its report to Congress stating that Secretary DeVos was “not recommending Congress pass any additional waiver concerning the Free Appropriate Public Education (FAPE) and Least Restrictive Environment (LRE) requirements of the IDEA, reiterating that learning must continue for all students during the COVID-19 national emergency.”

Teachers and districts fretted that without waivers they would fall short of the requirements of FAPE. When the Chicago Board of Education determined that compliance would require a revision of 56,000 IEPs and 10,000 Section 504 Plans, teachers in Chicago went to federal court requesting a waiver of these requirements. Specifically, the Chicago Teachers’ Union filed suit against ED, DeVos, and the Board of Education of the City of Chicago, alleging that ED’s refusal to request waiver of any FAPE requirements pursuant to the CARES Act would require teachers and case managers to revise all of those IEPs and Section 504 Plans within the last six weeks of school. The federal judge, however, held that the case was unlikely to succeed on the merits and was ultimately dismissed.

ED Offers New Guidance

Helpfully, having worked with school districts for half a year at that point to navigate COVID-19 challenges, ED issued a new Question and Answer document on September 28, 2020 addressing how districts should implement IDEA during the COVID-19 pandemic. ED highlighted that while a student’s education could be provided through remote/distance instruction, in-person instruction, or some combination of both, districts remained responsible for ensuring that FAPE is provided. The September 2020 Q&A noted that it was appropriate for an IEP team to consider how special education and related services described in an IEP might be provided both in traditional in-person methods and using remote instruction. When discussing how remote instruction might be provided, ED pointed out that this might include “online instruction, teleconference, direct instruction via telephone or videoconferencing, or consultative services to the parent.”

This guidance was similar to that being provided by state departments of education. Most states issued guidance reminding districts that FAPE was still required but that it might look significantly different than prior to COVID-19.

Schools and Teachers Rise to the Occasion

Education professionals have done an admirable job of finding creative ways to deliver services during the COVID-19 pandemic. Teachers mastered new technologies and conducted classes online, including specialized services for children with disabilities. This required constant adaptation as both students and teachers adjusted to a new paradigm of teaching and learning.

Particularly difficult was the delivery of services that had traditionally been provided only in person such as gross motor skills and behavioral therapy. There were also a lot of questions about setting up online schooling for non-verbal students and those that need one-on-one directions with prompts, redirection, or hand-over-hand instruction.

Special education teachers worked overtime to assess students’ needs in light of the pandemic. Teachers made endless phone calls to determine what tools and other support students would have at home.  They coached parents to help their children in new ways and worked with them to assess goals and objectives to create benchmarks.

Teachers also got involved with more than just students’ academic lives. IDEA requires districts to also address students’ management, physical, and social needs. Teachers recognized that the support their students needed was ongoing and continued to work with students and their parents to get students the education they needed.

Despite heroic efforts by schools and educators, frustrated and frightened parents have filed lawsuits in several states claiming (among other things) that school closures and virtual learning violate the IDEA by failing to provide FAPE. While most such lawsuits are still on-going, at least one court (in New Mexico) has already held that it is possible that some students cannot be provided with FAPE using remote learning. The legal uncertainty around online provision of FAPE thus continues to present schools with significant concerns and risks. Because the heart of FAPE is individualized services based on each individual student’s needs, it is difficult for a court to conclude, for instance, that FAPE can never be provided virtually or that FAPE must always be provided virtually whenever educational services are provided virtually for students without disabilities.

In other words, educators, students, and families have strived mightily to meet unparalleled challenges with a shared goal of continuing to provide quality educational services for American children. But a year into the pandemic, how successful has mass incorporation of virtual learning been, especially for students with disabilities, and what are the legal risk factors facing schools in the coming year? Our third and last blog in this series will discuss the road ahead for school districts when it comes to providing FAPE against the backdrop of long-term changes COVID-19 has wrought on American education, including hybrid distance learning models and learning losses resulting from the pandemic.

For more information about this topic please contact Tia Combs at tcombs@fmglaw.com or Candice Jackson at cjackson@fmglaw.com.