Coronavirus and Schools: More Answers on Closings, General Education vs. Special Education and More

CORONAVIRUS UPDATE

Posted on Mar 13, 2020 in Press Releases and Announcements

Question from a school district: Many of us are wrangling with 101 procedural questions that have not had guidance to inform our response. It’s unprecedented. People down the road will look to a precedent we are setting today. ( I hope they never have to.) While I know your area of focus is special education, what about general education? Anything in that arena would be helpful too. The only saving grace would be some relief from PDE on required school sessions and many other things. FID was insurmountable, if not impossibly laughable, in the time frame we received it, and all districts, technology rich, instructionally agile, or not at all, punted. Once we solve the issue with the kids, we can begin working on the countless issues of adults who are in our employ and need some answers too.

I am using my response to your question to answer a few others we have received this morning, but first to your concern.

Most of the guidance we have issued thus far actually does address regular education concerns, even if through the lens of special education. Later today, or over the weekend at the latest, we will be posting on our website our pool guidance along with some labor guidance we have offered to our solicitor clients so that this advice is open to all. The key points that we have made, applicable to all school programs, are as follows:

1. Public schools do not have the authority to shut down unilaterally for prolonged periods that compromise the ability to deliver 180 days of instruction. Even if the Pennsylvania Secretary of Education declares an emergency, schools will have to run a 180-day year using Saturdays and holidays or seek permission to provide 990 hours of instruction at the secondary and 900 at the elementary levels.
2. Requiring students to resort to online or live-streamed instruction is not a solution, as most districts did not get PDE approval for so-called “flexible instructional days,” and those that did can only use them for five days.
3. Schools do not have the authority to exclude students or staff who are not actually ill or are not actually showing symptoms of potentially communicable illness.
4. Schools do have the authority to excuse the absences of, or refrain from truancy enforcement against, students whose parents elect to withhold them from school because of actual or feared exposure. Doing so, however, places those children in the same position as those who are absent for actual illness. If such students have a disability, they will be entitled to a FAPE—perhaps in the form of in-home instruction—if the absence is prolonged.
5. The same is true for staff. If you elect to allow staff to take sick days or leave because they have been exposed or they fear exposure, it is advisable to do so in accordance with a memorandum of understanding establishing that this allowance will not establish a past practice. Your collective bargaining agreements will dictate whether such absences are paid or unpaid.
6. Suspending all extra-curricular activities, field trips, assemblies and other nonacademic activities is sensible and permissible, as is canceling school for periodic deep cleanings and reinforcing good hygiene in school (obviously).
7. The ultimate solution is going to have to rest with the Pennsylvania General Assembly, which has a hard decision to make. The assembly could enact emergency legislation suspending school for a prolonged period and possibly for the remainder of the school year. In doing so, however, the assembly must balance against any mass closing the effects that such closing will have on working families, on basic nutrition for students who depend on school meals, on the rights of students with disabilities, and on federally-mandated testing regimes and federally-funded program requirements. Equally hard choices will be presented by any decision to require schools to move entirely to cyber education for a prolonged period. The assembly will have to consider technical questions related to the absence of universal internet access and adequate technology in many households, labor issues related to requiring educators to work from home while expecting that they will engage in child care at the same time, as well as the problems outlined above.

Now to a few specific special education related questions posed in the past few hours:

• Question 1:  Secretary Rivera has recommended the cancelation of sports, extracurricular activities, and community-based events. What is your guidance on community-based instruction and experiential learning such as work study that is included in the IEPs of students with disabilities?

Answer:  As USDE reminded us in the Question & Answer Guidance we reviewed yesterday evening, the FAPE must go on. An IEP team can always reconvene and identify other activities that might develop post-secondary readiness. Those activities, however, will be school-based if they are not community-based. One might reasonably ask, then, whether the loss of quality that could result from elimination of community-based experiences from the IEP can be justified, given the unlikelihood that a school-based alternative will be any more effective in limiting the possible spread of infection. Absent an IEP revision, however, community-based instruction and work experience programming must continue.

• Question 2:  What effect will closures, such as those currently in effect in Montgomery County, have on the 60-day timeline?

Answer:  This question illustrates perfectly why a coordinated, legislative solution is needed so desperately. Ad hoc solutions, such as the dovernor’s one-county closure, seldom take into account all of the implications and outcomes of the action. Sections 14.123(b) and 14.124(b) of the Pennsylvania State Board regulations provide that, in calculating the 60-day evaluation and reevaluation timelines, the period “from the day after the last day of the spring school term up to and including the day before the first day of the subsequent fall school term will not be counted.” All non-school days that occur within the school term, however, do count. That rule remains in effect. Thus, unless a closure terminates the school term entirely, which the 14-day closure ordered for Montgomery County does not, the timelines must include the period of closure. Our assumption, however, is that this rule will not be very rigorously enforced, either as a compliance matter by PDE audit teams or as a FAPE matter by hearing officers. If teams make every effort to get evaluations and reevaluations completed upon the resumption of school after closure, we suspect that neither audits nor hearing officers are going to hold LEAs accountable for issuing “late” reports. The point of the closures, after all, is to limit close contact. An evaluation that involves testing and assessment is nothing if not that.

Now, if the General Assembly enacts legislation that ends the 2019-2020 school term early, we have a horse of a different color.

Stay calm, stay wise, be leaders … and wash your hands.