The coronavirus pandemic is having an impact on education for students with disabilities, and thus it is likely to soon have an impact on the professional activities of impartial hearing officers. This post compiles some COVID-related guidance documents that may be of interest to IHOs, then notes a few of the issues raised by the guidance documents that may play an eventual role in hearings and hearing officer decisions.
Guidance Documents
The federal educational authorities have issued several documents discussing special education and coronavirus. These documents include:
OSERS, Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, 76 IDELR 77 (OSERS March 12, 2020).
USDOE Office for Civil Rights, Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students, 76 IDELR 78 (OCR March 16, 2020).
OSERS, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (with attached IDEA Timelines), 120 LRP 10623 (OSERS March 21, 2020).
Impacts on Hearing Procedures
The only document listed above that discuss resolution sessions and hearings are the IDEA Timelines attached to OSERS Fact Sheet. OSERS states that “[w]hile IDEA specifically mentions circumstances in which the 30-day resolution period can be adjusted in 34 C.F.R. § 300.510(c), it does not prevent the parties from mutually agreeing to extend the timeline because of unavoidable delays caused by the COVID-19 pandemic.”
Also, it notes that “although a hearing decision must be issued and mailed to the parties 45 [calendar] days after the expiration of the 30-day resolution period or an adjusted resolution period, a hearing officer may grant a specific extension of time at the request of either party to the hearing. 34 C.F.R. § 300.515(a) and (c).” Importantly, any extension must also be addressed in accordance with a state’s various requirements governing the granting and denial of extensions.
It seems obvious that social distancing and shelter-in-place orders impede face-to-face hearings. However, an IHO, in his/her discretion, could hold hearings by telephone. See Letter to Anonymous, 23 IDELR 1073 (OSEP 1995).
Issues Presented at Hearing
IHOs may confront claims that school districts failed to provide services to children during the outbreak and outbreak related school closings. It is possible to imagine claims based on the failure of a school district to create or carry out a continuity of services plan, as well as claims based simply on the unavailability or inadequacy of services during school closure periods. USDOE opines in its Q and A document, “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.” It appears that most schools are not closing down completely, however, but rather moving to remote instruction or other ways of providing services to students.
On the subject of schools’ obligations to students with disabilities once some services are offered to students without disabilities, the Office for Civil Rights document states,
Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements. 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.
The DOE Q and A document also advises of specific duties when public schools for children with disabilities are selectively closed due to high risk of severe illness if students attend. Remote instruction might be used; if services are not provided compensatory services may be needed. (Question A-3.) The OSERS Fact Sheet of March 21, 2020, reinforces this advice.
Especially salient issues could arise for students who cannot attend once schools reopen or who cannot participate in at-home instruction because they are infected with the disease. The fact sheet from the Office for Civil Rights continues:
If a student who has an individualized education program (IEP) through the Individuals with Disabilities Education Act, or is receiving services under Section 504, is required or advised to stay home by public health authorities or school officials for an extended period of time because of COVID-19, provision should be made to maintain education services. This also applies if the student is absent from school as advised by the student’s treating physician, consistent with school policy and documentation requirements. During such absences, if the school is open and serving other students, the school must ensure that the student continues to receive a free appropriate public education (FAPE), consistent with protecting the health and safety of the student and those providing that education to the student. If feasible, the student’s IEP Team, or the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, can be utilized to assist with the effort to determine if some, or all, of the identified services can be provided through alternate or additional methods. Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during an extended school closure, especially when continuing education must be provided through distance learning.
The Q and A document also provides that if a child is home for more than ten consecutive school days because of a medical problem there should be an IEP meeting to consider changes to the child’s placement and IEP. Alternative methods of providing instruction need to be considered, and, again, compensatory services may be needed. (Question A-2.) It is a change of placement to exclude a child at high risk of severe medical complications from school for an extended period once the schools reopen, and full procedural protections must be provided. Temporary emergency measures, generally ten school days or less of exclusion, would not be a change of placement, if opportunities for virtual instruction, telephone instruction, and other curriculum based activities are afforded. (Question A-4.) Claims for compensatory services or other relief could be advanced if these rules are not followed.