The COVID-19 Pandemic: Distance Learning and Students with Special Needs

In an effort to quell the spread of the coronavirus outbreak, Governor Phil Murphy signed Executive Order No. 104 on March 16, 2020, ordering the statewide closure of New Jersey schools. New Jersey’s student population includes approximately 200,000 students with special needs who receive various services and accommodations pursuant to the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act. The implementation of distance learning has left parents wondering how and whether their child’s Individual Education Plan (IEP) or 504 is implemented during the duration of the school closures. Can virtual learning satisfy the multitude of special education programs and related services that the child is entitled to receive? While many school districts are getting it right, others continue to demonstrate an inability to execute distance learning programs for a variety of reasons. By way of example, some families do not have access to the technology required for distance learning, while others struggle without the physical presence of a teacher to provide the necessary support.

Despite the national emergency, school districts are required by law to provide a free and appropriate public education (FAPE) consistent with the obligation to protect the health and safety of students and educators. Moreover, federal law mandates that children with disabilities have an equal opportunity to receive an education, including home instruction (presently referred to by many districts as online or distance learning).

The New Jersey Department of Education continues to monitor the situation and provide guidance to school districts related to the closure. Prior to the closure of schools, all districts were required to enact plans for home instruction, the majority of which involve some type of remote learning platform. Special education, in many cases, is not amenable to distance learning, given the support and assistance the student requires. For a child with even mild learning or attentional issues, working independently in front of a computer is a tremendous challenge. In school, students have aides and support teachers present to assist and guide them, or they are taught in self-contained special education classrooms with trained staff. In addition to the foregoing, there is uncertainty with respect to initial evaluations for eligibility or reevaluations, IEP meetings, and due process and mediation proceedings. Thus far, the Office of Administrative Law has adjourned all due process and mediation proceedings until April 30, 2020 (unless otherwise ordered by the presiding judge), but this situation in developing and may change with certain matters being heard remotely, as adjourning matters has the unintended effect of foregoing the provision of services to some students.

As the coronavirus pandemic has developed, the United States Department of Education (“the Department”) has issued various guidance documents, including the following:

• On March 12, 2020, the Department published its initial “Fact Sheet: Impact of COVID-19 on Assessments and Accountability under the Elementary and Secondary Education Act,” along with “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease Outbreak.” The fact sheet discusses the possible implications of coronavirus on state accountability and assessment structures and use of federal funds. The Q&A document describes school district responsibilities to infants, toddlers, and children with disabilities and their families, and to the staff who work with children with disabilities.
• On March 16, 2020, the Department published “Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students” (“March 16 Fact Sheet”), which announced the establishment of a working group to disseminate accurate information and resources to parents, educators, schools, and school personnel that will answer some of your questions relating to your child’s rights.
• On March 21, 2020 the Department published “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” (“March 21 Fact Sheet”) to clarify its March 16 Fact Sheet, because some school districts were not providing any distance learning to students due to a misunderstanding relating to federal disability laws.

In short, the guidance from the Department mandates school districts to adhere to each child’s IEP or 504 to the greatest extent possible, including special education and related services. Once school resumes, districts will have to assess whether students have regressed and determine what is needed.

While the current situation is unprecedented, there are some actions parents and guardians can take to help ensure that your child’s needs are being met with distance learning:

• Review the special education programs and related services in your child’s IEP.
• Know what the distance learning plan is for your child and review it carefully.
• Monitor your child’s daily activities with distance learning.
• If the option is available, communicate with your child’s teachers and attempt to address concerns with your child’s teacher or case manager.
• Become familiar with the state and federal guidance related to special education services.
• If you believe that your child’s needs are not being met, keep a log of the issues, so they can be addressed when school resumes.
• If you are concerned about regression in the areas of physical therapy (PT) or occupational therapy (OT), you may want to take a video recording to document your child’s current abilities for a point of comparison once school opens.
• If you have the financial resources and provide services to your child through alternative means, keep accurate records, as you may have a claim with the school district.
• Stay informed.

The Gibbons Child Advocacy Team continues to monitor this situation as it progresses and is prepared to assist and advise clients with these issues. Due to the extraordinary circumstances created by the coronavirus pandemic, this is a fluid situation with new information, policy, and guidance being issued regularly at both the state and federal levels. For more information, please contact Debra Clifford or Mary Frances Palisano.

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