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COVID-19 Closes Schools Across the United States: United States Department of Education Releases New Guidance for Schools During Coronavirus Outbreak

Posted on: March 19th, 2020

By: Tia J. Combs

Many schools across the county have closed or are operating virtually due to the COVID-19 outbreak.  On March 12, 2020, the US Department of Education released two documents with new guidance for schools and educators faced these unprecedented problems.

First, the Student Privacy Policy Office released its FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs) March 2020.  This document details how schools should handle confidential information covered by the Family Educational Rights and Privacy Act (FERPA) during the outbreak.  Most importantly, the document addresses how the health or safety emergency exception to FERPA’s consent requirements (20 U.S.C. § 1232g(b)(1)(I); 34 C.F.R. §§ 99.31(a)(10) and 99.36) might permit an educational agency or institution to disclose personally identifiable information (“PII”) about particular students.  The document reiterates that agencies and institutions are responsible for making a determination, on a case-by-case- basis, concerning disclosure.  It also notes that disclosure, without prior written consent, is permitted under law if there is, based on the totality of the circumstances, an articulable and significant threat to the health of safety of a student.

The document specifically addresses the question of whether schools may disclose, without prior written consent, to other students and parents that a student is out sick due to COVID-19.  The document states that such disclosure is generally going to be permissible if it is released in a form that cannot be traced back to a specific student.

Second, the Department released its Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak. This document outlines how local educational agencies (“LEA”) can provide a free appropriate public education to students with disabilities during a school closure caused by the COVID-19 outbreak.  The document explains that if LEAs are continuing to provide educational services to the general student population during a closure, LEAs must also continue to provide educational opportunities to special education students consistent with their IEP or 504 Plan to the greatest extent possible.  Schools must also provide specialized instruction to children with disabilities who are infected with COVID-19 and miss school for an extended period of time, possibly via homebound services if the student qualifies. The document emphasizes that special education students who are not provided with services could be owed compensatory education.

The US Department of Education has also launched a website with general information for schools faced with complications from COVID-19 at https://www.ed.gov/coronavirus.

More Information Can be Found at:

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

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