The COVID-19 Pandemic: School Law and Special Education Updates

Client Alert

Gibbons Special Alert

April 14, 2020

By: Mary Frances PalisanoDebra A. Clifford

On March 30, 2020, the Gibbons Child Advocacy Team posted “The COVID 19 Pandemic: Distance Learning and Students with Special Needs,” which addressed the status of special education in New Jersey following the March 16, 2020 execution of Executive Order 104, mandating the statewide closure of New Jersey schools. Since then, Governor Murphy has issued Executive Orders 115 through 119, which provide further clarity for New Jersey school districts with respect to student testing, district staff evaluations, and other district personnel matters. The public health emergency status in New Jersey has now been extended, and Governor Murphy has stated that schools are closed indefinitely. This special alert focuses on updates since our March 30 post and provides further recommendations. New Jersey school districts, parents, and students are dealing with a new reality in education due to the COVID-19 health crisis. This unprecedented time has also raised significant concerns in the area of special education.

Modifications to the Regulations Concerning Special Education and Related Services

Changes to the regulations concerning special education and related services were required to adapt to the new normal of virtual learning. The regulation changes were due, in part, because numerous school districts refused to provide services to special education students for lack of clear guidance in this area. At the April 1, 2020 New Jersey Board of Education meeting, temporary rule modifications were adapted to Chapter 14 of the New Jersey Administrative Code, which governs special education and related services. Specifically, acting pursuant to the Governor’s Executive Order No. 103, the New Jersey State Board of Education adopted temporary regulation modifications to N.J.A.C. 6A:14-1.1, 6A:14-3.9, and 6A:14-5.2, which now allow school districts to deliver special education and related services to students with disabilities through the use of “electronic communications, virtual, or online platforms.” Further, related services may be provided by way of “telemedicine and telehealth, or through electronic communications, which include virtual, remote, or other online platforms, as appropriate and as required by the student’s IEP to the greatest extent possible.”

The regulation modifications are intended to facilitate the provision of counseling and other related services either virtually or via telephone during distance learning. With these modified regulations allowing for special education and related services through distance learning methods, school districts are able to improve compliance with individualized education programs (IEPs), which detail the programs and related services to which students are entitled so as to provide a free and appropriate public education (FAPE).

It is important to note that the above-referenced modifications do not alleviate the need for school districts to ensure that the services implemented are properly individualized for students and the responsibility of school districts to provide FAPE to the greatest extent possible during this time of national crisis. To the extent a parent believes a child’s related services needs are not being met, the case manager should be contacted and parents should keep a log of the issues to be addressed when school resumes.

Online Parental Waivers Related to the Implementation of Distance Learning

Parents should also be aware that several school districts are sending out waiver requests conditioning distance learning services on the execution of broad waivers. Some of these waivers request that parents relieve school districts of any potential liability associated with the provision of distance learning services. These waivers can be construed to exclude future claims for compensatory education in contradiction to the requirement of federal guidance issued by the U.S. Department of Education (USDOE). Parents may feel compelled to sign these waivers so that their child can receive services, but parents are cautioned to read the proposed waivers carefully and perhaps consider some limiting language so as to preserve the right to seek compensatory services once school resumes. To the extent services are not contingent upon the execution of a waiver, there appears no need to execute the waiver.

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act

The CARES Act, signed into law by President Trump on March 27, permits states and school districts to use existing federal funds for technology to support distance learning and teacher training during the COVID-19 health crisis. The CARES Act also directs Betsy DeVos, the U.S. Department of Education, Secretary of Education, to report to Congress within 30 days of the enactment of the CARES Act with recommendations of any additional waivers she deems necessary under the Individuals with Disabilities Education Act (IDEA) and other education laws. This directive has raised a red flag for many child advocates and parents of children who receive special education services.

While the national emergency prevents school districts from providing services in the same manner as they did in the past, school districts are nonetheless required by law to provide 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. We urge parents to stay informed.

Annual IEP Meetings During the COVID-19 Pandemic

During this time of school closure and social distancing, IEP meetings will occur virtually or via telephone conference. If a parent does not feel comfortable having a virtual or conference call meeting, a request can be made to extend the deadline for the child’s annual meeting, which will postpone the meeting until it can be done in person. Parents should be mindful that a request to postpone an IEP meeting may result in a lengthy postponement, as there may be a scheduling backlog once school resumes.

The question that is on the mind of many parents with annual IEP meetings during the next few months is: Will my child’s current IEP be modified to reflect distance learning programs?

Child Study Teams may, but are not required to, modify individual IEPs to include distance learning plans. One advantage to having a distance learning plan included in an IEP is that additional services may be agreed on for this period of distance learning or a future school closure. Note that a distance learning plan should be only a part of the IEP (or it can be a side agreement) – it should not be a replacement for IEP programs and related services.

Assessing Students During the COVID-19 Pandemic

Cancellation of Statewide Student Assessments
Given the continued threat of COVID-19, the USDOE notified states that it will grant a waiver to any state that is unable to assess its students during the spring 2020 testing window due to the COVID-19 pandemic, providing a release from federally mandated testing, accountability, and reporting requirements for this school year. This includes the spring administration of the New Jersey Student Learning Assessments (NJSLA), ACCESS for ELLs, and the Dynamic Learning Maps (DLM) assessment. With New Jersey schools closed indefinitely due to the COVID-19 pandemic, the New Jersey Department of Education (NJDOE) applied for the waiver of statewide testing, and the USDOE approved of same. Therefore, students in New Jersey will not be required to take statewide assessments.

Graduation Requirements
The cancellation of New Jersey statewide assessments will not prevent students from meeting their graduation assessment requirements. The Governor’s Executive Order No. 117 specifically waives the graduation assessment requirement for all seniors who are expected to graduate this school year. Moreover, current juniors and sophomores will have access to alternate assessments and the portfolio appeals process as a way to fulfill the graduation assessment requirement. These students are not required to take the NJSLA to utilize alternate assessments or the portfolio appeals process. Additionally, the NJDOE plans to make the NJSLA available in the summer or fall for current high school freshman, sophomores, and juniors (and middle school students taking high school classes) who may want to use the NJSLA high school assessments to meet their graduation assessment requirements.

Grading During Distance Learning
Given indefinite school closures, most school districts have changed the student grading structure for the remainder of the current school year. Interestingly, there has not been published state or federal guidance in this area. As such, there is not a uniform plan, and school districts have approached this process differently.

Most elementary schools have decided to eliminate letter grades, but middle and high schools have become more creative. One option is to combine third and fourth marking period grades for second semester and full-year courses to allow students and school district staff the opportunity to provide more accurate representations of students’ work during this difficult time. This approach allows students some time to address any work from the third marking period that they were unable to complete due to the school closure. It also provides educators more flexibility as they adapt their instruction to the new distance learning environment. Be sure to review the grading plan in your district so that your child is aware of the expectations going forward.

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.

To view all client alerts in Gibbons “The Coronavirus Pandemic and Your Business: How We Can Help” Series, click here. Please also be sure to follow Gibbons on LinkedIn for a continuous feed of COVID-19 related updates and other important business, industry, and firm news.