USDOE Issues COVID-Specific Guidance Documents on IDEA Part B Services and Other Special Education Matters

On September 28, 2020, the U.S. Department of Education (USDOE) issued two Q&A guidance docu­ments on commonly asked special education and Section 504 questions in light of COVID-19.

“Implementation of IDEA Part B Provision of Services in the COVID-19 Environment” reminds state educational agencies (SEAs) and local educational agencies (LEAs) that “no matter what primary instruc­tional delivery approach is chosen,” SEAs, LEAs, and IEP Teams “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” The guidance recommends measures to ensure each child with a disability has an IEP, even with remote learning. It reminds school offi­cials that an IEP team still contains the same federally required members, including, but not limited to, the child’s parents, at least one of the child’s regular educa­tion teachers (if the child is, or may be, participating in the regular education environment), and at least one of the child’s special education teachers. The guidance also addresses the IEP amendment process, extended school year services, initial evaluation timelines, and reevaluations of a child’s continued eligibility for IDEA Part B services and reminds school officials that they must continue to comply with the IDEA notwithstand­ing the unique challenges presented by COVID-19.

“Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment” advises that, not­withstanding the pandemic, school officials must con­tinue to comply with federal civil rights laws, most notably Section 504, to provide all students equal ac­cess to the school’s educational opportunities.

The USDOE acknowledges the importance of wearing face coverings but also recognizes that using a face covering can be challenging for some, especially students with special educational or healthcare needs. Subsequently, circumstances may arise in which rea­sonable modifications to face-covering policies, prac­tices, or procedures — in a manner consistent with the health, safety, and well-being of all students and staff —may be required. For instance, enforcing a face covering requirement “could impede a child’s ability to receive the FAPE required by Section 504” for a child with a dis­ability who has extreme sensory issues and cannot tol­erate wearing a face covering. In that circumstance, schools may be required to modify the face-covering re­quirement or otherwise accommodate the student’s disability needs, consistent with the health, safety and well-being of all students and staff.

Despite Section 504 requirements, the ADA does not require schools to permit a student with a disability to participate in or benefit from educational services, programs, or activities when that student poses a “di­rect threat” to others’ health or safety. Whether a stu­dent poses a threat, however, is a high bar that depends “on an individualized assessment of the nature, dura­tion, and severity of the risk; the probability that the po­tential injury will actually occur; and whether reasonable modifications of policies, practices or pro­cedures or the provision of auxiliary aids or services will mitigate the risk.” Due to the need for an individu­alized assessment, school officials should not assume that a student’s inability to wear a face covering automatically amounts to a direct threat.

The USDOE understands that the pandemic may limit or prevent in-person evaluations required under Section 504. In those cases, the guidance recommends that “schools should make good-faith efforts to conduct assessments virtually or via other comparable meth­ods.” Nothing in Section 504 prohibits parents and school officials from mutually agreeing to postpone evaluation timelines and use a diagnostic placement for a child suspected of having a disability until an appro­priate comprehensive evaluation can be conducted safely. A diagnostic placement is a trial run for a school to learn about a student’s needs. That temporary place­ment should last no longer than necessary to learn about the student’s needs and the placement’s suitability, with specifically identified evaluation time­lines as a precursor to any permanent placement. The USDOE reminds school officials that if the school pro­vides remote instruction, it cannot require parents of students with disabilities to waive Section 504 rights as a participation condition.

In sum, the guidance documents emphasize that school officials must continue to comply with federal obligations under the IDEA, Section 504, and other fed­eral civil rights laws despite the pandemic to ensure students with disabilities continue to receive a FAPE and ensure all students have equal access to a school’s educational opportunities.