Coronavirus and Schools: Some Guidance
CORONAVIRUS UPDATE
Spreading with this virus is a fear that might impel some schools to act ahead of the science and the law in an effort to curb community panic. Worth noting, for the sake of perspective, is that this year’s flu is anticipated by the CDC to infect 34 to 49 million Americans, requiring 350,000 to 620,000 hospitalizations and resulting in between 20,000 and 52,000 deaths. Despite this reality, CDC estimates that fewer than half of all Americans receive the flu vaccine in a typical year. At this nascent point in the COVID-19 outbreak, health officials are aware of and are counting only severe cases, most involving hospitalization and death. Many of us are therefore making assumptions that will likely prove to be erroneous: that this disease is more severe and deadly than it actually is. In reality, as reports from high-infection areas are beginning to confirm, the most prevalent symptoms of this disease are relatively mild, and far more people are likely to have been walking amongst us with the disease—presenting with the mild upper respiratory cold and flu ailments that are common during the winter months, or presenting no symptoms at all. The rates of severe symptoms and death, therefore, are highly likely to be much, much lower than our pinhole perspective on the disease allows us at this point.
We offer these observations not to minimize the need for vigilance but to encourage vigilance without panic. With that goal in mind, we look to the current law. The regulations of the Pennsylvania Department of Health allow for the exclusion of staff and students from school settings when they have one of sixteen specifically-enumerated diseases, among which the various Coronaviruses are not included, see 28 Pa. Code § 27.71. Schools are permitted to exclude staff and students exhibiting certain symptoms of illness, some of which are consistent with the symptoms that the CDC associates with COVID-19, including “productive cough with fever,” “oral or axillary temperature equal to or greater than 102° F”; and “unusual lethargy, irritability, persistent crying, difficulty breathing or other signs of severe illness.” id. at § 27.72(a). Such exclusions can be effective until the ailment “is determined by the school nurse, or a physician, to be noncommunicable.” Id. The Department of Health regulations allow for exclusion of asymptomatic persons based on “household contact” with an infected person only for a rare few disease types, among which, again, the Coronaviruses are not included.
Given the absence of authority to exclude individuals in the absence of specific symptoms, some schools are opting to close. Setting aside the logic of doing so—given the lack of knowledge concerning where and how prevalent COVID-19 is or when we might expect it to peek in any given area—we should bear in mind that the Pennsylvania School Code clearly requires that public schools will maintain a conventional 180-day school term in the absence of a declaration from the Secretary of Education of a “weather-related, safety-related or health-related emergency,” which the secretary can declare on a “school entity …, county, or statewide basis.” 24 Pa. Stat. § 15-1505(a). Although Governor Wolf declared a “state of emergency” on March 6 for the purpose of mobilizing coordination of intergovernmental resources, this declaration was not tantamount to the school-related declaration by the Secretary of Education. Even if and when the secretary does declare such an emergency, schools will have to use an authorized alternative to the strict 180-day requirement, including (a) meeting a yearly requirement of 900 hours of instruction for elementary schools and 990 hours for secondary schools or (b) opening schools on Saturdays not more than once monthly (always a popular option).
Another option available to those schools who timely submitted plans to the department, is the use of “flexible instructional days” for days on which a district or charter school has closed school. We have, however, discussed in other pool opinions the problems with using so-called FIDs with populations who do not have ready access to internet connections and, most important, for students with disabilities whose learning needs might not be entirely compatible with self-directed, on-line learning. The presence of a health emergency that, in the view of a school entity, warrants closing schools to prevent the possible spread of infection does not excuse the obligation to ensure that a “free appropriate public education” is in place for students identified as disabled under the IDEA. Those who do not receive full implementation of their IEPs during periods of school closure will, of course, be entitled to compensatory services, preferably in accordance with an agreement under which the parents accept the offered compensation in place of, and in full satisfaction of the obligations of the district or charter school to provide, a FAPE to the child. An option for some—maybe even many—children with disabilities during an extended period of school closing might be to arrange for direct instruction and related services in real time by tele-practice. Again, however, students who require the structure and monitoring that only a physically-present adult can provide might need an instructional aide or PCA to be present in the home during live-streamed instruction. We recommend that any such arrangements be anticipated in the specially-designed instruction of each child’s IEP, using contingent language such as—
In the event of a school closing of greater than ___days, Student will receive live streamed direct instruction in reading, math, and social skills as described in this IEP, with an instructional aide in the home to assist with task completion, redirection, and clarification of directions.
This sort of language, of course, will require an IEP revision. Schools anticipating closures should consider either reconvening IEP team meetings to discuss the delivery of specially-designed instruction and related services during closures or should at least propose revisions without a meeting if parents are willing to allow this process.
We have received some questions concerning children who are medically fragile and whose parents are either refusing to send their child to school or, for those who are educated in the home, are refusing to allow school personnel into the home. For most, if not all, of these children, the precautions in effect for other communicable diseases, such as influenza, should suffice to address COVID-19 (e.g., rigorous hand sanitizing prior to contact, wearing of protective masks, maintaining physical distance, regular deep cleaning of room and equipment). If that is the case, the refusal to send the medically-fragile child to school and or barring school personnel from entering the home should be treated as an unexcused absence and should not obligate the school to offer compensatory services. If, however, the parents have physician-supported evidence that the risk of COVID infection should be treated differently than other risks, IEP teams will have to consider the remote learning and compensatory education options discussed above—as the school will have acknowledged already that the child’s medical fragility is cause for accommodations.
We have also received questions concerning the effect of school closures on mandated timelines such as the 60-day timeline for completion of an evaluation or reevaluation, the 30-day timeline for completing an initial offer of special education following an initial evaluation, the three- or two-year timelines for reevaluating students with disabilities, and the window for completing PSSA and PASA testing. Nothing in the law allows suspension of any of these timelines to accommodate a local decision to close schools. Thus, evaluations would have to continue (in the home or at school), IEP teams would have to convene, reevaluation processes (including reviews of existing data) would have to go on, and properly-proctored group testing mandated under ESSA will have to take place despite these closures—if they happen. Only legislation—possibly at the federal level—will allow for exceptions to these legal requirements.
Certainly, as circumstances evolve—as declarations are made and as emergency legislation is enacted—we will offer further guidance. For now, plan with the foregoing in mind and don’t panic.