Special Education Clarification

March 16, 2020

Colleagues,

When we had our Facebook live event on Sunday, I answered questions with the best available advice I had at that point. Today the Nebraska Department of Education has issued clarification regarding Special Education services during the COVID-19 school closures based upon guidelines from the US Department of Education.

They have asked us to share the information which you can find below my signature. We suggest that you read the entire document but want to highlight:

• If your district closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then they are not required to provide services to students with disabilities during that same period of time.
• If your district does provide some services to general education students during a closure, they must be sure not to discriminate on the basis of disability.  So, if a school district decides to use virtual learning to continue to instruct all students during a closure, the district will need to make sure that all of a student’s educational needs are met to enable him/her to benefit from this instruction as well.  District leaders cannot simply announce that general educational services will happen virtually without considering the needs of students with disabilities. Both special education and general education staff must understand that the decision to continue providing educational services in either physical form (like worksheets) or digital form (like Zoom or Schoology) will implicate special education obligations.
• Early childhood services:  if the offices of the state lead agency closes, then Part C services will not need to be provided to infants and toddlers with disabilities and their families during the closure.  Similarly, if the lead agency’s offices are open but the offices of the EIS program or provider in a specific geographical area are closed due to public health and safety concerns in that specific region, the EIS program or provider would not be required to provide services during the closure.  If the offices remain open but services cannot be provided because the child is infected, the lead agency must ensure the continuity of services via alternate means, such as consultative services to the parent.
• IEP’s MDTs: Currently the Nebraska Department of Education has not waived or made any determination that IEP’s/IFSP’s or special education/early intervention services are “on hold” or “suspended” in any way and districts continue to be responsible for services except as determined by the Q & A. 
• The Nebraska Department of Education recommends that all districts work to provide for students in an equitable fashion, reach out to the department with questions or concerns, and communicate with families and students specifically about individual student needs.  The biggest recommendation is that all communications and decisions be documented.  The Nebraska Department of Education is working closely with the Office of Special Education Programs (OSEP) and if/once guidance around timelines and waivers is available, it will be provided. 

If you are concerned with what you are being asked to do, please share those concerns with the appropriate administrator.  If you cannot reach resolution, please contact your local association president for assistance or contact your organizational specialist by calling the NSEA at 800-742-0047.

Thank you!

Maddie
Maddie Fennell, NBCT
Executive Director
Nebraska State Education Association
605 South 14 St., Lincoln NE 68508
Mobile: 402.871.6575 | Office: 402.475.7611 | 800.742.0047 
Fax: 402.475.2630

Special Education Services during the Coronavirus School Closures Clarification

The Nebraska Department of Education, Office of Special Education is committed to providing support to all Schools and Students during this time of school closures due to the Coronavirus. 

Due to some miscommunication regarding Special Education requirements during the Coronavirus school closures, The Nebraska Department of Education, Office of Special Education would like to offer the following clarification on the requirements of school districts around Special Education and Early Intervention. 

The guidance document entitled Questions and Answers On Providing Services To Children With Disabilities During The Coronavirus Disease 2019 Outbreak, was released by the federal Department of Education, Office of Special Education Programs (OSEP) on March 12, and can be found here: https://cec.sped.org/~/media/Files/News/OSERS%20Coronavirus%20FINAL%2031220.pdf.

Schools are encouraged to plan ahead. The NDE, Office of Special Education recognizes the need for schools to prepare for any circumstances caused by the novel coronavirus, the Q&A document allows IEP teams to adopt contingency plans into a student’s IEP that would be triggered by a disruption in the student’s ordinary instruction due to the contagion.  The document provides as follows:

IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home. Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.

Services to Students With Disabilities Who Are Absent Due to Illness or Health Vulnerability

If a student with a disability is too ill to come to school, he or she is likely too ill to receive educational services.  If the student is home for an extended period of time (generally 10 days or more) the school should reach out to the family to see if the team needs to meet to craft a plan that includes homebound instruction. 

Schools should be even more proactive if a student is not ill but cannot come to school because he or she is at high risk of health complications if exposed to the novel coronavirus.  The student’s IEP or 504 team should meet as quickly as possible to discuss how to meet these students’ educational needs during their time at home.  The Q&A document provides:

[T]he IEP Team must determine whether the child is available for instruction and could benefit from homebound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services.

In the Guidance, the Department specifically noted that these meetings would not have to be in person: “The team may meet by teleconference or other means” if that would be appropriate.  Once the danger to a high-risk student has passed, the IEP or 504 team should meet again to ensure that there are no additional educational needs that have arisen due to the student’s inability to receive services. 

We have been asked what a school should do should they be “closed” due to coronavirus. 

The Q&A document specifically contemplated students that must be excluded from school due to the risk of novel coronavirus.  If the exclusion is a “temporary” measure, or one lasting ten or less days, the exclusion is not considered a change of placement.  However, where a student’s exclusion lasts longer than ten days, the school “must consider placement decisions under the IDEA’s procedural protections of 34 CFR §§ 300.115 – 300.116, regarding the continuum of alternative placements and the determination of placements.”

Services to Students with Disabilities During School Closures

Federal laws like the IDEA, the ADA, and Section 504 do not specifically address what schools should do if they are closed for extended periods of time.  However, public schools are always obligated in all circumstances to ensure they do not discriminate against students with disabilities. 

The Q&A makes clear that if a school closes and does not provide educational services to the general student population, then the school would not be required to provide services to special education students either:

If an LEA closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.

However, the Q&A cautioned schools that, if they do provide some services to general education students during a closure, they must be sure not to discriminate on the basis of disability.  So, if a school district decides to use virtual learning to continue to instruct all students during a closure, the district will need to make sure that all of a student’s educational needs are met to enable him/her to benefit from this instruction as well.  District leaders cannot simply announce that general educational services will happen virtually without considering the needs of students with disabilities. Both special education and general education staff must understand that the decision to continue providing educational services in either physical form (like worksheets) or digital form (like Zoom or Schoology) will implicate special education obligations.  According to the Q&A:

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.  SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504.

The Q&A specifically addresses early childhood services.  It noted that if the offices of the state lead agency closes, then Part C services will not need to be provided to infants and toddlers with disabilities and their families during the closure.  Similarly, if the lead agency’s offices are open but the offices of the EIS program or provider in a specific geographical area are closed due to public health and safety concerns in that specific region, the EIS program or provider would not be required to provide services during the closure.  If the offices remain open but services cannot be provided because the child is infected, the lead agency must ensure the continuity of services via alternate means, such as consultative services to the parent.

Currently the Nebraska Department of Education has not waived or made any determination that IEP’s/IFSP’s or special education/early intervention services are “on hold” or “suspended” in any way and districts continue to be responsible for services except as determined by the Q & A.  The Nebraska Department of Education recommends that all districts work to provide for students in an equitable fashion, reach out to the department with questions or concerns, and communicate with families and students specifically about individual student needs.  The biggest recommendation is that all communications and decisions be documented.  The Nebraska Department of Education is working closely with the Office of Special Education Programs (OSEP) and if/once guidance around timelines and waivers is available, it will be provided. 

For additional guidance and information please visit the NDE, Office of Special Education website at: https://www.education.ne.gov/sped/ and the NDE, Coronavirus Resources page at: https://www.education.ne.gov/publichealth/resources/