Coronavirus and Schools: New COVID-19 Guidance from USDE
The chimera was a shape-shifting beast of ancient mythology, with the head of a lion, body of a goat, and tail of a dragon. It has come to mean anything that can appear to be one thing and then another. Using this meaning, one might easily characterize the “new” guidance issued yesterday by the United States Department of Education as “chimeric.”
The guidance is attached. The department leads with this promising statement about the provision of on-line education to the general population:
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. (emphasis in original)
One might assume, reading this statement, that the department is about to announce a policy of waiving IDEA and Section 504 mandates, or at least a policy of flexibility in implementation and leniency in enforcement. Careful reading, however, reveals no such thing. The lion’s head really does have a goat’s body. USDE advises us that we can pursue flexible implementation of the IDEA mandates within the parameters of that mandate. For example:
- IEP teams still have to convene, but they can do so virtually (we all knew that).
- Mandatory reevaluations still have to be completed within timelines but can consist of a review of records (we knew that too, and SSKW offered advice on complying with timelines even when a review of records alone is insufficient).
- Special education can be offered virtually (sure it can, when virtual presentation is appropriate for the child).
- Hearings must still take place but resolution meetings can occur outside the 30-day time line when the parties agree, and hearing officers have the discretion to grant the equivalent of continuances at the request of a party (yes, the IDEA makes that clear too).
- If students with blindness or visual impairment cannot see online material, the teacher can read or describe it to the student on the phone (USDE in its recent guidance seems to have an inordinate fondness for Twentieth Century technology—and we assume most teachers would have figured this one out without guidance from the nation’s lead educational agency).
In our guidance previously offered on March 19th, we too offered the opinion that districts contemplating actual instruction and planned courses—to ensure “continuity of learning” to the general population—should not be deterred from doing so out of fear of IDEA or Section 504 liability. Yes, districts that do so will have to offer instruction to students with disabilities that is at least reasonably designed to address their learning differences. No, that instruction will not meet the procedural and substantive requirements of these law. There is virtually no way it could. (USDE cannot admit that, of course). Thus—
- We will not be able to convene hundreds of IEP team meetings—virtual or otherwise—in the next few weeks to adjust the IEPs of every student with a disability to reflect on-line learning, but we might be able to issue NOREPs to our parents notifying them briefly of the temporary adjustments in instruction we will be making during the COVID-related closures.
- We will not be able to deliver goal directed instruction with goal-specific progress monitoring (with the exception, perhaps, of related services delivered by tele-practice), but we can deliver planned group instruction in basic skills—reading, writing, math, organization and study skills, learning-related behavior) that is leveled to meet the known instructional levels of the assigned group. Students who are decoding and comprehending on a first grade level, for example, would participate in a planned course of reading instruction at that level regardless of the particular reading skills targeted in their goals.
- We cannot complete live testing and assessment of students for whom evaluations and reevaluations are falling due, but we can complete an ER or RR within timelines that defers testing-dependent eligibility, present level, or educational recommendations pending the return to school and the completion of testing at that time. (We have provided advice on the wording of ERs and RRs elsewhere).
We expect that most parents will be grateful for the instruction and the opportunities it offers their children. Thank goodness it has always been so. There will, however, always be those who view legal grievance and legal action as the only solution to a problem. Certainly we have enough attorneys in Pennsylvania whose living depends on such malcontent. When the dust settles and time allows, we will need to convene IEP team meetings to consider what if any “compensatory services” might be required to address any adverse effect on a child’s FAPE the COVID-19 closure might have had (as USDE very unhelpfully keeps reminding us). Those calculations will be all the less dire if we have made some effort to serve students with disabilities during the break. Some of you have expressed concern not so much about compensatory education as about the possibility of money damages for discrimination under Section 504 that might result from our far-less-than-perfect efforts to educate children with disabilities. To recoup money damages in a Section 504-ADA-based action, however, a litigant must prove that the actions of educators were either intentionally discriminatory or demonstrated “deliberate indifference” to the rights of children with disabilities. Courts would be hard-pressed to find such culpability in making good faith efforts such as those described above, which recognize the needs of vulnerable learners and strive to meet those needs against overwhelming conditions beyond the control of the educational community.
We will get through this.