Kathryn PerricoChristina Peer

March 13, 2020

In a press conference on March 12th, 2020, Governor Mike DeWine directed that, in order to prevent the spread of coronavirus (COVID-19), all elementary and secondary schools, including public, private, and charter schools, close for a three-week period beginning at the end of the school day on March 16th, 2020. We understand that many of you may be proactively closing in advance of this deadline, and we want to take the earliest opportunity to share with you general guidelines regarding the provision of continued services and educational opportunities to students with disabilities following the March 12th, 2020 release of the U.S. Department of Education’s (DOE) question and answer document that addresses how to provide services to children with disabilities during a COVID-19 outbreak.

While it is important to note that neither the IDEA, Section 504 of the Rehabilitation Act of 1973, or Title II of the Americans with Disabilities Act specifically address requirements for the provision of services to students with disabilities during extended and unexpected school closures, it is equally important to remember that students with disabilities do not automatically lose their rights, or have those rights suspended, during an extended closure.  During the press conference, Governor DeWine stated that school districts will have the ability to make local decisions regarding whether, and to what extent, programming may be provided electronically/remotely to students. Once a district determines that it is providing distance learning services to regular education students, it must provide commensurate services to students with disabilities. In the event that a district is providing no services to any students during the closure, per the March 12th DOE guidance, it remains obligated, once school resumes, to convene the IEP team to determine “whether compensatory services are needed under applicable standards and requirements.” The Ohio Department of Education’s Office for Exceptional Children (ODE/OEC) has not yet issued guidance regarding this issue.

Because districts are required to provide commensurate services, once a district determines it is providing distance learning services to all students during an extended break, district staff and IEP teams must make determinations regarding appropriate services to be delivered to students with disabilities that will allow them to continue to access the curriculum and make progress on IEP goals in a fashion commensurate to the opportunities being provided to non-disabled students. Service providers should carefully document services provided during this time. Where this is not possible through distance learning, teams should make individualized determinations, in concert with the department of health and individual health care providers as appropriate, about whether direct services are viable, and to what extent. Where direct services and distance learning are both inappropriate, teams should reconvene after school reopens to determine what level of compensatory services may be required to meet the FAPE requirement.

At this point, neither the DOE nor ODE/OEC has provided any relief from adherence to the IDEA’s mandated timelines for the completion of IEP annual reviews and evaluations. Districts are urged to remember that remote meetings are acceptable if properly noticed through the formal meeting invitation. Every effort should be made to adhere to applicable deadlines, including deadlines for IEP annual reviews. Staff should be reminded to document all attempts to obtain parent participation in the annual review meeting. In the event an evaluation of a student with a disability is underway or coming due, teams should assess whether the evaluation can safely continue in light of the COVID-19-related closure. If completion is not feasible, the team can consider conducting a records review, in order to adhere to deadlines, followed by completion of the evaluation, as indicated in the planning form, upon the resumption of school. For initial evaluations, districts are encouraged to consult with counsel as the specific facts of each case will guide the appropriate course of action. Importantly, all decisions made regarding IEPs and evaluations must be documented in a prior written notice.  Prior written notices should be comprehensive and include details regarding the decision and the basis for the decision – including documenting all attempts to include parents in the process.

It is also worth noting that DOE guidance allows for the use of IDEA part B funds for activities that directly relate to providing, and ensuring the continuity of, special education and related services to children with disabilities, such as dissemination of COVID-19 information or the development of emergency plans for students with disabilities during the closure or in relation to the outbreak. Situations involving students in outside placements that may not be subject to the mandated closure, or whose particular health conditions require that they remain excluded from school once it resumes are also important to consider, but given the nuances of such situations, consultation with counsel is suggested.

As indicated in prior alerts, we will keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.