Confused about whether your child should be receiving special education services if their school is closed because of COVID-19? You are not alone.
Soon after the COVID-19 crisis caused schools across a number of states to shut down, the United States Department of Education posted a Q&A on its website regarding states’ responsibilities to provide special education services under the federal Individuals with Disabilities in Education Act while their public schools were closed.
The USDOE’s Q&A caused an uproar because it suggested that public schools were prohibited from offering educational programs to special education students via distance learning. The Q&A also suggested that the right to a legally required free and appropriate public education was contingent upon whether general education students were receiving instruction, too.
Based on the USDOEs Q&A, some school districts decided to halt instruction entirely, under the assumption that they need not provide special education students with a free and appropriate public education during the closures.
As a result of both the backlash and mounting confusion, the USDOE has attempted to clarify its position through a “supplemental fact sheet” it posted on its website.
The USDOE stated that school districts should not close or deny distance learning opportunities, particularly because they can be used to provide services to special education students. The USDOE made clear that school districts can effectively provide many special education services via modifications, such as through video and telephonic conferences.
However, the USDOE also noted that the nature of some related services render them challenging, and perhaps unsafe, to administer from afar, such as occupational therapy. Needless to say, many special education students who receive physical therapy services (and other services considered unsuitable for refashioning) will be negatively affected during the school closures.
Closer to home for our law firm and most of our clients, the New Jersey State Legislature has passed Assembly Bill 3813, which currently awaits New Jersey Governor Phil Murphy’s signature.
The bill requires state school districts to give special education students the same access to remote instruction as general education students have (to the extent that access is “appropriate and practical,” which is something advocates contend the IDEA already requires). The bill also expressly authorizes school districts to provide speech language and counseling services through an alternative format.
And just today, April 1, 2020, the state of New Jersey issued rules applicable in a public health emergency (pursuant to the authority granted to agency heads by Executive Order 107, the State of Emergency signed by Governor Murphy), relaxing the general rules regarding the delivery of related services, and permitting them to be provided remotely. This is a good step toward getting children with disabilities back on track.
Despite the USDOE’s attempts to calm fears and refine its position, we remain in uncharted waters. Because the navigation is sure to be choppy during these uncertain times, you may be confused as to what special education services your children should be receiving, and what legal options are available to them in the event the services are not provided.
We at John Rue & Associates, LLC are here to help.
If you have any questions or concerns regarding the impact school closures have on your student’s education, please contact us at (862) 283-3155 for a free preliminary consultation.
John Rue & Associates, LLC
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