Education Law Notes  

Connecticut’s mandated closing of school districts up to March 31, 2020 in response to COVID-19 – more colloquially known as the Coronavirus – has left school districts struggling with how they can best continue to provide legally mandated specialized instruction and related services to special education students.  Although state officials have afforded districts a certain degree of flexibility with respect to state education requirements, special education students are also covered by a comprehensive scheme of federal regulations that provide little leeway to those school boards that are responsible for creating and implementing the students’ Individualized Education Programs, or “IEPs.”  The unprecedented nature of this public health crisis, and the concurrent uncertainty as to the length and severity of the outbreak, has, to a certain extent, left districts to determine on their own how to translate legal requirements into practical application. 

Complicating matters is the Center for Disease Control’s most recent recommendation that gatherings of more than fifty people should be avoided for the next eight weeks.  Such guidance calls into serious question whether schools will reopen this academic year, and in planning how they will proceed, districts must look beyond the initial, State-ordered school closing.  This is unchartered territory, but there are certain considerations.

School Closing Without the Provision of Remote or Other Alternate Instruction

Districts that are not providing instruction to regular education students have no obligation to provide instruction to special education students.  In such cases, the school closings are analogous to snow days, or to school holidays and vacation weeks, when no students – disabled or non-disabled -- receive instruction. 

Note should be taken, however, of a reference contained within informal guidance recently provided by the United States Department of Education [“DOE”].

Although the Department expressly provides that “an LEA would not be required to provide services to students with disabilities during that same period of time [when the district was not providing instruction],” it goes on to add that the Planning and Placement Team [“PPT”] “would be required to make an individualized determination as to whether compensatory services are needed.”  While these two statements seem difficult to reconcile, they presumably reflect a concern that without ongoing, systemic instruction, a special education student could regress significantly enough so as to require additional services, analogous to those students who receive extended-school-year instruction.  At the same time, a virus-related school closing of limited duration would typically not require such compensatory services.

Again, though, at this juncture it appears overly optimistic to expect schools to reopen by April 1, 2020 , and while the decision not to provide any education over the initial two weeks can be justified by the practical realities of trying to structure and deliver alternative forms of meaningful instruction to both regular and special education students, districts cannot reasonably choose to forego instruction for the remainder of the academic year.  The longer special education students are denied an education, the greater the need will be for PPTs to make determinations as to the provision of compensatory services, and the more likely that extended-school-year programs will have to be expanded in terms of hours, weeks, and services offered.

School Closing With the Provision of Remote or Other Alternate Instruction

Districts that are implementing remote learning or other alternative forms of instruction are required to provide IEP services to special education students.  From a practical perspective, it could prove extremely difficult, if not impossible, to implement the full spectrum of the IEP’s specialized instruction and related services to a student who is at home, particularly students with significant needs.  Districts must consider, however, that although IEPs are predicated upon a student’s individual needs, they are not constructed in a vacuum; rather, they are crafted to comport with the student’s placement.  For example, if a special education student requires homebound instruction due to a prolonged illness or as the result of an expulsion for conduct that is not a manifestation of his or her disability, the PPT will routinely implement a modified IEP that is designed for implementation in the home or at an alternate location, like a municipal library.  This is a tack that districts can also attempt with students who are at home due to the school closings.  Of course, even the process of obtaining parental consent to amend the IEPs without the need for a meeting could prove cumbersome, or, if parents object, impossible. 

Another option would be to maintain the then-current IEP with the understanding that not all services will be provided, and the district will be required to make up the non-tendered services in the form of compensatory education.  Districts should accept the almost inevitable fact that, as suggested earlier, Summer 2020 extended school year services will likely be more a replication of an actual school term designed to enable a student to progress on their IEP goals and objectives rather than simply a means of preventing regression between academic years.

Regardless of the approach the district settles on, districts need to determine how they are going to implement specialized instruction and provide related services.  The former – at least in traditional academic areas -- is susceptible to the same remote learning instruction used with non-disabled peers.  In fact, the DOE’s informal guidance suggests that special education and related services could even be provided by phone.  While this approach would certainly limit those who are afraid that video links will threaten student confidentiality in violation of the Family Educational Rights and Privacy Act [“FERPA”], it is doubtful that it would be particularly effective academically.  For example, there are students who are visual learners or who require multi-modal pedagogical strategies, and a mere telephone connection would likely not provide those students with adequate instruction.

As to related services, however, counseling and speech and language therapies could be provided by video or, at least with respect to counseling, by telephone.  For instance, if a student’s IEP provides for small-group counseling, the district could provide a call-in conference number.  This would also be a potential option for individual and small-group reading and speech instruction, among other possible uses.

Providing “hands-on” related services such as Occupational Therapy or Physical Therapy provide particularly thorny issues.  While there would be the option of the therapists going to the homes to work with the students, that triggers other issues, such as the potential reluctance of families having other individuals enter their homes or of the therapists themselves being reluctant to travel from home to home.  If there were no adults at home – an increasingly unlikely scenario – then it would obviously not be advisable to have therapists be alone with students in the latter’s respective homes.

An option is for therapists to consult with parents electronically in order to provide suggestions as to interventions the parents might be able to implement.  For example, they could by way of video conferencing even try to guide parents through some of the exercises.  They should also make themselves available electronically in order to assist parents with questions.  This extends not just to Occupational and Physical Therapists, but to all special education and related service staff. 

If there is any potential positive to this situation, it is the fact that the remote learning may provide an opportunity to reengage students who have been school avoidant.  It may also serve as a blueprint -- and an alternative to residential placements -- for how to serve these students who upon the reopening of schools still refuse to attend.

In-School Services During District Closing

An issue confronting a number of districts, particularly those with low-income families or a lack of a reliable internet or wireless infrastructure, are those students who do not have remote-learning capability.  Districts could potentially offer to provide such students with specialized instruction and related services within the schools.  Obviously, for this to be a viable alternative, one must divine the Governor’s order closing school districts.  Is it intended to mean that school districts are to cease their normal operations or is it a directive to close the actual buildings.  To date, Connecticut school buildings have not been identified as the foci of COVID-19 infections.  In other words, schools are not being closed because they are “hot zones.” 

As noted, the CDC is now recommending that gatherings of over fifty people be avoided, guidance with which this option would in most cases enable school districts to comply.  Although it would necessarily entail interaction with other people, this option could be limited to those students could otherwise not access the instruction, or those high-needs students, such as those who are severely autistic.  Furthermore, students could be allocated among the schools, thereby significantly limiting the amount of interpersonal contact.  

Parents – and perhaps even staff – might feel squeamish with this approach, and given the potential of liability, any districts that adopted this approach should offer it as an option as opposed to a directive.  Obtaining a consent or waiver from the parents would also be advisable.  Obviously, with the complete absence of non-disabled peers, such a setting would not constitute the least restrictive setting, but it certainly would be no more restrictive than what would essentially be homebound placements.

Ultimately, the uncertainty over whether the use of buildings for this extremely limited purpose would run afoul of the State’s directive to close districts is probably sufficient to discourage districts from pursuing this option.  Consequently, perhaps districts would be reduced to delivering instruction over the telephone – as inherently unwieldy as that would be -- to those students who lack access to the internet.

Triennial Testing and Annual Reviews

At this juncture, there is no indication that triennial testing and annual review timelines are going to be suspended or relaxed.  As to annual reviews, they can still be effectuated by means of video conferencing or even conference call.  While obviously this is not an optimal approach, if districts and parents are unable or unwilling to meet in person, these options are the best alternatives.  Needless to say, it may prove difficult to gauge appropriate IEPs for the upcoming school year given the interruptions in this year’s provision of full IEP services.  Thus, there may be a need to reconvene the PPT meetings at the outset of the 2020-2021 school year, particularly if there have been robust Extended-School-Year programming, to recalibrate the IEPs.

The more vexing issue is triennial testing, or other ongoing or already-recommended evaluations.  Theoretically, if parents are willing to have their children come to the district’s Central Office or similar setting, and if there are other staff present in order to avoid there being only a staff member and student, the evaluations can be conducted.  Another option would be to have the testing conducted in-home, although that is less desirable – and less safe -- than in the district itself.

While it would be possible to have the evaluations conducted remotely by way of video conferencing, that would entail allowing the testing protocol out of the district’s hands, which would pose a serious risk of the protocol being copied or otherwise transmitted by parents, thereby potentially invalidating the test and leaving the district open to potential lawsuits from the companies who have created the protocol. 

It would not surprise were parents to take the position that if districts cannot offer evaluations, that they would be entitled to select their own evaluators.  Given that in the area of “independent” evaluations, the term “independent” is a myth, this could cause districts significant expense and wreak havoc in programmatic considerations, with the private providers agreeing with the parents’ belief that students need out-of-district placements and the district lacking any evaluative information of their own to counter these arguments.  Thus, if the district can work out a means of at least offering to conduct the evaluation, the parents’ refusal would, one hopes, undercut their claim that they were entitled to obtain independent assessments.

Conclusion

In these unprecedented circumstances, drastic restrictions are being imposed on all facets of our lives.  It is not reasonable for the provision of special education and related services to be held to a higher standard than any other facet of society.  One of the goals of special education is to provide students with compensatory strategies that will help them realize educational progress despite their disabilities.  This same approach must now be followed by school districts, adopting compensatory strategies that will enable them to provide students with appropriate instruction as best as they can.