COVID-19 Response - School Closures and Impact upon Special Education and Section 504 Students Frequently Asked Questions and Summary of Current Guidance

Effective March 16, 2020, all public and nonpublic elementary and secondary school buildings in Michigan were closed to students for educational purposes through April 5, 2020, to address the COVID-19 outbreak in Michigan. (See Executive Order 2020-05). Before and following the Governor’s issuance of Executive Order 2020-05, the United States Department of Education (USDOE), Office of Special Education and Rehabilitation Services (OSERS), the United States Department of Education, Office for Civil Rights (OCR) and the Michigan Department of Education (MDE) issued guidance regarding schools’ ongoing obligations to students with IEPs and Section 504 Plans during the temporary closure. Because of the recent Stay Home, Stay Safe Executive Order, the Answers and Comments should be taken in the context of the E.O. (See Executive Order 2020-21).   

This FAQ and Summary of Guidance addresses the following Guidance issued from USDOE and the MDE. More specifically, this FAQ and Summary of Guidance addresses the following documents:

• March 12, 2020, USDOE “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak.” (USDOE Q&A, March 2020).
• March 13, 2020, Michigan Department of Education (MDE) Guidance related to Michigan Schools’ obligations to comply with the Individuals with Disabilities Education Act (IDEA) and the Michigan Administrative Rules for Special Education (MARSE) during a Public Health Emergency. (MDE Guidance on IDEA and MARSE, March 13, 2020).
• March 16, 2020, OCR Fact Sheet “Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students.” (OCR Fact Sheet, March 16, 2020).
• March 18, 2020, MDE “Guidance on Transition to Online Learning: Considerations and Technical Readiness.” (MDE Guidance on Transition to Online Learning, March 18, 2020).
• March 20, 2020, MDE Guidance on “Instructional Time During School Closure.” (MDE Guidance on Instructional Time, March 20, 2020).
• March 21, 2020, USDOE, OSERS and OCR, Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.” (USDOE Supplemental Fact Sheet, March 21, 2020).

The USDOE and MDE have issued additional Guidance and Resource Documents for schools that stray beyond the scope of this E-Alert and FAQ. Those documents may be found at USDOE’s dedicated COVID-19 website, and at MDE’s dedicated COVID-19 website. Clark Hill Attorneys have issued separate E-Alerts and other Resources for schools that may cover some of those other Guidance Documents.  

In recognition of the complexity of the situation concerning special education and Section 504 students, we have prepared a list of frequently asked questions to help address many of the common questions and concerns regarding this student population. Because the situation and state of the Guidance continue to develop rapidly, the Reader should consult the USDOE and MDE websites and other reliable public information outlets for the most current guidance for schools. We will attempt to continue to update this FAQ and Summary of Guidance as the situation develops and as conditions warrant during the closure.  

Question 1: During the closure of school, if no educational services are provided to students, will students still receive their Individualized Education Program (IEP) or Section 504 services?

Answer: No, but see Comment below. 

Comment: If the closure causes educational services for all students to pause within the local educational agency (Intermediate School District, Public School District or Public School Academy), then the school is generally not required to provide services to the affected students eligible for special education or Section 504 services during that same time. (USDOE Q&A, March 12, 2020, Q A-1; MDE Guidance on IDEA and MARSE, March 13, 2020, Question # 1). MDE’s March 13, 2020 Guidance seems to be consistent with the USDOE’s Q&A, March 12, 2020, and MDE quoted portions of the USDOE Guidance as support throughout the Guidance Document. (See the MDE Guidance on IDEA and MARSE, March 13, 2020).  

The USDOE Q&A, March 12, 2020, states:

“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.”  [USDOE Q&A, March 12, 2020, Question A-1]. 

Relying upon the USDOE Q&A, March 12, 2020, and the MDE Guidance on IDEA and MARSE, March 13, 2020 Guidance, many Michigan schools have chosen to forego the development, creation, provision or implementation of distance learning, online learning, new learning or remote instruction delivered from a distance for all students during the temporary closure. Many Michigan schools have also chosen to provide students some access to voluntary supplemental learning opportunities through recommended resources, enrichment materials, and other engagement activities to ensure some continued contact exists between schools and families. The most recent Supplemental Fact Sheet by USDOE (March 21, 2020) appears to signal a change in direction from OSERS and OCR and a reaction from the USDOE to the cessation of instruction for public school students during the COVID-19 school closures around the Country.

In the most recent USDOE Supplemental Fact Sheet, March 21, 2020, OSERS and OCR have expressed concern about what they describe as “a serious misunderstanding that has recently circulated within the educational community.” (USDOE Supplemental Fact Sheet, March 21, 2020, page 1).

OSERS and OCR emphasized, “To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.” [USDOE Supplemental Fact Sheet, March 21, 2020].

As of the date of this FAQ and Summary of Guidance, it is unclear whether MDE will clarify its previous Guidance on this topic and it is equally unclear whether Congress, the Michigan Legislature or the Governor’s Office will clarify the Guidance.  Please see Question 4, below, for further discussion of online learning, virtual learning, or learning from a distance. 

Question 2: When school resumes after the temporary closure, must the school provide compensatory education for students who are entitled to FAPE under IDEA and Section 504?

Answer: Possibly, Yes.

Comment: The USDOE Q&A, March 12, 2020, states as follows:

“Once school resumes, . . . 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.” (USDOE Q&A, March 12, 2020, Q A-1, page 3).

The MDE Guidance on IDEA and MARSE, March 13, 2020 states:

“There may be circumstances where an IEP team needs to consider, on an individual basis, whether there is a need for compensatory education.” (MDE Guidance on IDEA and MARSE, March 13, 2020, Q 1, p 1).

Some have questioned why a Government-Mandated-School-Closure during a Health and Safety Emergency would require compensatory education for special education and Section 504 Students, where no other students are being educated. The USDOE Q&A, March 12, 2020, emanates from previous USDOE guidance during the H1N1 outbreak, where USDOE required schools to consider compensatory education when extended dismissals, closures or student absences occur because of the outbreak. (See USDOE Guidance on H1N1 Outbreak, 2009, Q A-1). A careful read of the USDOE H1N1 document regarding “compensatory education” appears to be more accurately classified as “extended school year,” since the USDOE describes the purpose to be to make up for skills that have been lost because of a lack of educational benefit.

Regardless of the terminology, both USDOE and MDE appear to accept the proposition that, following the closure and upon the students’ return to school based upon the COVID-19 crisis, an individualized determination of whether a special education or Section 504 student is entitled to compensatory education is required. Absent some legislative relief, change in interpretation or judicial decision to the contrary, it appears that individualized determinations of compensatory education will be required for students receiving FAPE under Section 504 and the IDEA following the closure and upon the students’ return to school.

Question 3: Following the closure and upon a return to school, must the school convene an IEP Team Meeting, an IEP Amendment or a Section 504 Meeting for every student to consider whether compensatory education is required?

Answer: Possibly, yes.

Comment: Assuming that consideration of compensatory education is legally-required during a Government-Mandated-School-Closure due to a Public Health Emergency, the USDOE Q&A confirms that, if a child does not receive services after an extended period of time (considered as more than 10 school days), “a subsequent individualized determination is required to decide whether a child with a disability requires compensatory education to make up for any skills that may have been lost because the child did not receive educational benefit.” (USDOE Q&A, March 12, 2020, Q A-1 and Q A-3). MDE’s Guidance is similar in stating that, if school is closed and no learning from a distance is occurring, “there may be circumstances where an IEP team needs to consider, on an individual basis, whether there is a need for compensatory education.”

Regardless whether formal IEPs, IEP Amendments or Section 504 Planning Meetings are going to be required, the USDOE and MDE Guidance are aligned insofar as the assumption that compensatory education may be required when the closure ends and school resumes. The most conservative approach in addressing this consideration would be to convene IEP Team meetings or to propose IEP Amendments or Section 504 Planning Meetings to comply with this Guidance. If the school and the Parents agree that compensatory education is not required, the school should document that agreement, possibly using prior written notice or notice under Section 504. The Notice would indicate that the school considered convening an IEP, IEP Amendment or Section 504 Planning Meeting to consider compensatory education, but the parties did not do so because the parents and school agree that the student does not need compensatory education. If there is no agreement on an IEP, IEP Amendment or Section 504 Planning Meeting to make the determination and there is a possibility of a dispute regarding whether that student would qualify for compensatory education, schools should strongly consider convening an IEP, IEP Amendment or Section 504 Planning Meeting to avoid the appearance or allegation of predetermination concerning compensatory education and to ensure that the decision is made by the Team with proper opportunity for parental participation at a meeting.

Question 4: May Schools provide online or distance learning during the COVID-19 school closure?

Answer: Yes, but please see the comments below.

Comment: The USDOE addressed this topic in its March 12, 2020 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. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). 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. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).” [USDOE Q&A, March 12, 2020, Q A-1, page 2].

The MDE Guidance on IDEA and MARSE, March 13, 2020, certainly allows but does not require, schools to use online learning, distance learning, virtual learning or learning from a distance during school closures caused by the COVID-19 crisis. To the extent that schools decide to do so, USDOE and MDE have stated that such distance learning may require the provision of FAPE to students with IEPs and Section 504 Plans. (See USDOE Q&A, March 12, 2020, Q A-1; MDE Guidance on IDEA and MARSE, March 13, 2020, Q # 1).

Following the release of the MDE Guidance on IDEA and MARSE, March 13, 2020, MDE issued additional Guidance on Transition to Online Learning, March 18, 2020. (See MDE Guidance on Transition to Online Learning, March 18, 2020). According to the MDE Guidance, before transitioning to fully online learning, the School should ask:

• Do all students have access to appropriate learning devices?
• Do all students have access to the internet?
• Can the district successfully support the needs of all learners, including students with IEPs, students with a 504 plan, English learners (EL), and other students who may need accommodations?
• Have educators previously participated in professional learning opportunities that prepared them to transition teaching and learning online successfully?
• Have students had enough prior exposure to blended or online learning to be successful?
• Does the district have online tools available to effectively support instruction (i.e., a learning management system)?

Only schools that can ensure equitable access to quality learning opportunities online should pursue full online learning. The Guidance specifically indicated that it was not intended to apply to schools that are providing supplemental learning activities through technology platforms, internet or remote learning resources. (See MDE Guidance on Transition to Online Learning, March 18, 2020). MDE followed the Guidance on Transition to Online Learning with another Guidance Document related to counting online or distance learning as instructional time during the period of school closure.  (MDE Guidance on Instructional Time, March 20, 2020). In that Guidance, MDE made it clear that professional development conducted by a public school during the closure and any online learning (even if consistent with the March 18, 2020 Guidance) would not be counted as “Instructional Time” for the purpose of the Revised School Code or State School Aid Act. In public explanations regarding MDE’s position, MDE expressed concern about the inherent inequity in providing instruction through online learning and the lack of any Legislative mechanism to count the days of school closure toward the hours and days of instruction in the Michigan Law. (See Guidance on Instructional Time, March 20, 2020, Q 2 and public remarks of Dr. Michael Rice, Superintendent of Public Instruction).

As stated above, the most recent Guidance from USDOE appears to strongly encourage schools at the local district level to provide access to instruction and services during the period of closure using existing resources. (USDOE Supplemental Fact Sheet, March 21, 2020). USDOE reminded schools of their duty to provide FAPE to students, recognizing that the environment is unique and uncertain given the nature of the health and safety emergency. (USDOE Supplemental Fact Sheet, March 21, 2020). USDOE also cautioned schools against choosing not to educate students at all or to limit education to supplemental or enrichment resources simply because of concerns that may have come from prior USDOE Guidance or concerns about the ability to educate students with disabilities under IDEA, Section 504 or the ADA. (USDOE Supplemental Fact Sheet, March 21, 2020). The USDOE Guidance document states that USDOE and its offices will make efforts to provide flexibility and support through technical assistance centers and resources for those schools that do provide online or distance learning during the closure. (USDOE Supplemental Fact Sheet, March 21, 2020). The details of the flexibility, beyond those in existing regulations such as timeline extension agreements and timeline extensions in complaints and hearings are unclear.   

Question 5: Does the extended school closure prohibit meetings such as evaluation/eligibility meetings, IEP meetings, student assessments, or child find screenings?

Answer: No.

Comment: While school facilities may be closed, there is no prohibition against holding virtual IEP team meetings (e.g., Zoom, conference calls). However, the determination to hold an IEP team meeting virtually must be made on a case-by-case basis, must include the parent, and cannot be the only meeting format considered. The Parent must consent to the alternative format for the meeting according to the IDEA. (See MDE Guidance on IDEA and MARSE, March 13, 2020, Q 3-d (for schools offering online learning); USDOE Supplemental Fact Sheet, page 4).   

Question 6: What if a student’s annual IEP review or other mandatory IEP deadline (e.g. the year determination of continued eligibility) is due during the extended school closure? Will there be a timeline extension of mandatory deadlines?

Answer: Presently, No.

Comment: At this time, based on the available guidance from OSERS, annual review IEP timelines cannot be extended. MDE will issue Untimely Data Alerts for annual IEPs not completed promptly due to a mandatory school closure as a result of the public health emergency; however, MDE has stated that it will not issue corrective action as a result of the untimely data submission. (MDE Guidance on IDEA and MARSE, March 13, 2020, Q-3-B Reevaluation Timelines).

Question 7: How does the extended school closure impact IDEA dispute resolution options, activities, and timelines?

Answer: At present, there is no waiver from IDEA dispute resolution options and timelines, including state complaints and due process hearings.

Comment: Both MDE and USDOE recognize the problems that will occur with evaluation timelines, reevaluation timelines, IEP deadlines and other dates related to compliance due to the closure. MDE reminds schools of the authority that presently exists to extend deadlines for evaluations and reevaluations, provided the parents agree and provided the extension is timely and otherwise meets the MARSE criteria. (See MDE Guidance on IDEA and MARSE, Qs 1-3, page 3). The USDOE also recognizes the problems that will occur with IEP, evaluation, compliance and due process hearing timelines and reminds schools of the existing authority to extend timelines under IDEA and the federal regulations. (USDOE Supplemental Fact Sheet, IDEA Timelines Attachment, March 21, 2020). As a practical matter, absent some additional authority through USDOE, Congress, MDE, the Governor or the Legislature, the authority to extend timelines is dependent on parent or party agreement and, with respect to compliance or due process hearings, upon the consent of MDE or the Administrative Law Judge handling the due process hearing. (See USDOE Supplemental Fact Sheet, Timelines Attachment, March 21, 2020).

Clark Hill's Education attorneys stand ready to assist in navigating your special education disputes in this rapidly evolving situation. If you have any questions regarding any special education-related matters, please contact Jeff Butler, Jordan Bullinger, Vickie Coe or another member of Clark Hill's Education Practice Group.