Coronavirus (COVID-19): New York Charter Schools Special Education Q&A

Written by New York charter school attorney, Paul T. O’Neill, the following is a comprehensive question and answer about the guidance on special education law and regulations related to COVID-19 for New York city and state.

The U.S. Department of Education, which has primary authority over special education, has issued three formal guidance documents over the last several weeks. These guidance documents interpret federal special education law and regulations as they apply to the COVID-19 health emergency. The New York State Education Department (NYSED) has also weighed in with formal guidance on how relevant state and federal special education rules apply in New York. The New York City Department of Education (NYCDOE), which has primary responsibility for special education in New York City charter schools, has offered informal guidance to charter schools as well, as has the Charter Schools Institute of the State University of New York (SUNY), which serves as the authorizer for many NY charter schools.

Q1. Does Federal Law Require NY Charter Schools to Meet the Needs of Students With Disabilities During COVID-19 Closures?

A. Yes, if the LEA offers an educational services while the school building is closed due to the virus. Some services can be provided remotely during the hiatus; others that require an in-person component may be offered as compensatory services once regular instruction resumes.

The Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Title II of the Americans with Disabilities Act (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.

But federal guidance makes it clear that,

if a Local Education Agency (LEA)[1] 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.[2] [emphasis added]

In other words, if the LEA provides no educational services, special education obligations do not apply. But if the LEA does provide any education services to the general student population while the building is closed, it has an obligation to meet the needs of students with disabilities:

[I]f 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.[3]

The LEA must ensure “to the greatest extent possible” that students with IEPs and Section 504 Plans receive their mandated services during COVID-19 closures. The guidance is careful to point out that in  instances where in-person supports or evaluations are needed, services to students with disabilities will have to be deferred until regular instruction resumes. CSEs and Section 504 personnel will have to make an individualized determination as to which services can be provided remotely and which ones must be deferred.

Q2. Does Use of Distance Education Platforms to Provide Services to Students with Disabilities Violate Federal Law?

A. No. In a supplementary set of guidance issued on March 21, 2020, the Office for Civil Rights (OCR) of the U.S. Department of Education directly addressed whether or not it is viable to use distance learning methods, such as online learning platforms, to serve students with disabilities.  OCR said:

Some educators. . . . 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.[4]

Districts and schools should use whatever tools and methodologies are available to them in serving students with disabilities during COVID-19 closures and do so in a way that is designed to meet each student’s needs.

Q3. Has the New York State Education Department Weighed in on How Students with Disabilities Should be Served During the COVID-19 Closures?

A. On March 27, 2020, NYSED issued guidance called Provision of Services to Students with Disabilities During Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State (NYSED Guidance). [5] That memorandum builds on the federal guidance and provided more detail on how the state is interpreting and implementing special education requirements. The NYSED Guidance makes it clear that, where school authorities and parents agree, there can be considerable flexibility on special education timelines, use of electronic communication, conducting remote CSE meetings and other considerations.

Q4. Has the New York City Department of Education Provided Information About Proper Practices for Serving Students with Disabilities in Charter Schools during the COVID-19 Closures?

A. Yes. NYCDOE has issued a number of directives for schools located in the City, including charter schools, over the course of the last several weeks that are relevant to charter schools, some of which make distinctions for schools not run by the NYDOE.[6] This includes a guide to providing remote services to students with disabilities

Q5. If a school district or charter school is using virtual online learning during a school closure, will students’ IEPs have to be amended?

 A. No. If online or virtual learning is part of a school closure recommendation, the school district would not be required to amend students’ IEPs as online or virtual learning would be considered an alternate mode of instructional delivery.

Q6. Can mandated IEP related services be provided through telepractice during statewide school closures due to Coronavirus?

 A. Yes. The U.S. Department of Education and NYSED have encouraged the use of teletherapy and tele-intervention as a means to continue to meet the needs of students with disabilities, including English Language Learners with disabilities. Charter schools should consider telepractice as an option for provision of related services, including bilingual related services, to the extent possible and consistent with privacy interests. During the time period the school is closed pursuant to the Governor’s Executive Order, CSEs are not required to amend students’ IEPs if continuing the provision of related services via telepractice is part of a school closure recommendation.[7]

On March 18, 2020 NYCDOE provided detailed guidance[8] relating to the provision of teletherapy, noting that:

Contract agencies should provide tele-therapy to students with IEP/IESP Speech, OT, PT and Counseling mandates where clinically appropriate and feasible following the same guidelines, procedures, and best practices. . . . utilized by DOE providers.[9]

The NYCDOE emphasizes the need to obtain written consent from parents before such services commence, to document all communications with families regarding the services, steps to be taken where teletherapy is not deemed viable and considerations for schools being reimbursed by the district for teletherapy services.

Q7. If a District is Having Difficulty Meeting Timelines for Evaluations, Reevaluations, Annual Review Meetings, Due Process Hearings and Resolution Sessions, Because of Coronavirus, Can Timelines Be Extended?

A. NYSED has indicated that it will be as flexible as federal and State law and regulation allow and will continue to investigate and inquire about additional flexibility for provision of services for students with disabilities during the outbreak.

According to the NYSED Guidance, Committees on Special Education and Preschool Special Education should continue to work with parents and students with disabilities, including English Language Learners with disabilities but would not be required to meet in person while schools are closed. Evaluations and reevaluations, including bilingual evaluations, that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. A reevaluation may be conducted by reviewing existing evaluation data. This review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.

School districts having difficulty meeting timelines for initial evaluations or reevaluations may wish to create a template document to assist school personnel in documenting decisions made, why timelines were exceeded, and documentation of parent participation and consent through temporary alternate methods, such as email or notes.

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[1] The LEA is the entity that is primarily responsible for providing a free and appropriate public education to students with disabilities.  In NY, that entity is the district of residence of each student with an IEP.

[2] Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak, U.S. Department of Education, March 2020, at A-1, available at https://sites.ed.gov/idea/files/qa-covid-19-03-12-2020.pdf.

[3] Id.

[4] Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools

While Serving Children with Disabilities, March 21, 2020, at 1, available at https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf.

[5] http://www.p12.nysed.gov/specialed/publications/2020-memos/nysed-covid-19-provision-of-services-to-swd-during-statewide-school-closure-3-27-20.pdf.

[6] See the menu of NYCDOE statements collected within the online COVID-19 Resource Center maintained by the New York City Charter School Center, available at https://www.nyccharterschools.org/covid19#gceo.

[7] Relevant guidance on the provision of related services through telepractice is available on the NYSED Office of the Professions website (see NYS Professions with Telepractice Guidance).

[8] Available at https://www.nyccharterschools.org/sites/default/files/page-covid-19-NYCDOE%20tele-therapy%20guidance%20covid-19%20FINAL%20FOR%20ISSUANCE.pdf.

[9] Id.

For more information

New York schools with questions about compliance with these laws should reach out to Paul T. O’NeillJaime A. Fernand, or Lisa J. Holtzmuller. If you have questions about Massachusetts or Rhode Island school laws, please contact Matthew R. PlainGreg Vanden-Eykel, or Rita E. Nerney at 888.273.9903.

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