Special Education Rights and Coronavirus (COVID-19)

Many of the families we work with have reached out with questions about their children’s education and rights as they relate to COVID-19. While the situation is rapidly evolving, we have summarized our understanding of the current landscape below, and will continue to update as new information becomes available.

Given the risks associated with COVID-19, the Commonwealth of Massachusetts is taking unprecedented steps to reduce the spread of the virus. On March 15, 2020, Governor Baker signed an Order temporarily closing all public and private elementary and secondary schools in Massachusetts. Schools are not to re-open before Monday, April 6, 2020.  While the Order explicitly excluded approved special education residential and day schools from having to close their doors, on March 15, 2020, the Department of Elementary and Secondary Education (“DESE”) tweeted that they will be working with private and residential schools this week “on next steps.”  At this time, several private special education schools have chosen to close in conjunction with public school districts and in keeping with the advice received from public health agencies. We anticipate these closures will expand within the coming days.

There are many questions about what rights students with disabilities have during this unique time.  Neither the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973, nor Title II of the Americans with Disabilities Act (“ADA”) addresses the situation in which elementary and secondary schools are closed for extended periods of time due to the outbreak of a disease. However, the US Department of Education has released a Q & A fact sheet to address some common questions.

Specifically, where a school district, also referred to as a Local Education Agency (“LEA”), closes a school and is not providing educational services to the general population, they are not required to provide services to students with disabilities during that same period. Once school resumes, the LEA should attempt to deliver students with disabilities the services provided in the student’s IEP or 504 Plan. In the event that an LEA is not able to provide IEP services when school resumes, compensatory services may be appropriate. However, if the LEA does continue to provide “educational opportunities” to the general student population during the COVID-19 related closure, they must ensure that students with disabilities have equal access to the same opportunities, including the provision of FAPE. (The Q & A is available here: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf)

Some Massachusetts school districts are encouraging students to make use of online “educational activities” while the schools are closed. Without further guidance from DESE, it is unclear what services LEAs will need to provide, if any, to ensure that students with disabilities can access these programs equally. Districts may determine whether they are able to hold previously scheduled TEAM meetings via tele-conference on an individual basis, but as of yet, have been provided no explicit guidance that they have to do so.

The Bureau of Special Education Appeals (“BSEA”) has announced that beginning on March 15, 2020, there will not be any in-person proceedings until further notice. If you have a previously scheduled upcoming proceeding, the BSEA staff will contact you, or your attorney, to make arrangements for remote meetings where possible.

It is anticipated that DESE and Governor Baker will continue to provide updated information about education and special education as we learn more about COVID-19. Please stay healthy and safe. We know these are stressful times for our families, and we will be with you every step of the way.