IDEA and ADA in the Time of Covid-19
By Susan Conners, M.Ed.
President, TAA of Greater NY State
I have been receiving many, many phone calls at the TAA of GNYS office since schools closed across the state in March. Many of our kids with TS receive services and accommodations at school through either IDEA (an IEP) or through the ADA (a 504 Plan). Most of the questions were regarding the services and accommodations on these two legal documents and whether or not the school was obligated to provide these services while the school buildings were closed and students were receiving instruction via a variety of video formats. We are now facing a situation where many schools may not open in the fall, may offer only part-time in school instruction, may give parents a choice or operate entirely remotely. The question thus once again becomes, “Are students who have IEP’s or 504 Plans entitled to continue to receive their services and accommodations under these circumstances?” I hope this article will help everyone better understand the school’s legal responsibilities and will also help you be prepared before school commences again in September to ensure that your child is receiving what he/she is entitled to.
The Current Law
If a school district closes its schools and does not provide any educational services to the general student population, then a school would not be required to provide services to students with disabilities under an IEP or 504 Plan during that same period of time. HOWEVER, schools did continue to provide educational services to the general student population through remote video formats so that law did not apply as many parents thought that it did.
What Happened Next?
On April 6, 2020 we learned that an economic stimulus Act (CARES Act) directed the Education Secretary to report to Congress about waivers of children's rights under the IDEA and the Rehabilitation Act (Section 504). That same day, many of you were asked to contact your Members of Congress and request that they reject waivers. We knew organizations representing special education administrators were lobbying to have timelines for initial evaluations, reevaluations, IEPs, and complaints waived for 45 school days after schools reopened. So, we waited and on Monday, April 27, 2020, the Education Secretary announced her decision: No Waivers! She held that schools must provide a free appropriate public education (FAPE) in the least restrictive environment. In the news release, the Ed Secretary advised that learning must continue during the COVID-19 crisis because "there is no reason that a student's access to FAPE cannot continue online, through distance education or other alternative strategies."
If a school 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. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). 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. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).
This means that all services and accommodations/protections on the 504 Plan or IEP must be provided to the child. As many of you understand, some services may me more difficult to provide remotely, but it doesn’t mean that it can’t be done. For example:
If your child receives speech services, this can be done remotely or on a one on one basis as many speech therapists did this spring when schools closed. Occupational therapy and counseling services can be done in the same manner.
If your child attends a resource room class every day with a small group of other students, then the special education teacher must meet remotely with that small group as defined by the IEP. This may take a bit of creativity and pre-planning but it can be accomplished.
Accommodations may be a bit easier but will still take some pre-planning. For example, if your child receives extra time on tests or to hand in homework assignments, they must be granted that same accommodation even if they are attending school remotely.
If they receive organizational supports through either a 504 or an IEP, that must be provided by a teacher as directed on their plan.
If your child has an accommodation that requires the use of technology, the technology must be provided at home if they are learning remotely.
Some accommodations may be impossible or unnecessary to provide such as preferential seating if the child is attending school remotely.
What Do Parents Need to Do Now?
Most annual review meetings for IEP’s have likely already been completed in the spring. Some 504 meetings may have already taken place also. It may not be necessary to call another IEP or 504 meeting but I strongly recommend that parents go through their child’s documents before school begins again to familiarize themselves with the goals, services and accommodations listed on that document. You may need to meet with either the child’s special education teacher or the school’s 504 coordinator when school opens to review exactly how the services and accommodations will be provided.
** The sources for the legal content of this document were:
US Department of Education.