How districts can meet their obligations
to special ed students despite COVID-19

By Paul Heiser, Senior Research Analyst

One issue every school district is grappling with while schools are closed during the coronavirus outbreak is maintaining continuity of learning for all students, including special education students.

It is difficult for school attorneys to say anything with certainty in a period in which the governor and the State Education Department are issuing executive orders and guidance documents on a nearly daily basis.

But Anne McGinnis, an attorney with the Harris Beach law firm who specializes in special education law, took a crack at it in a webinar on Tuesday.

"Federal guidance indicates that if we’re providing educational services to our general education students, that opens up our obligation to provide a free and appropriate education (FAPE) to students with disabilities," McGinnis said. "As a result, giving tasks to [general education] students, putting instructional materials online, sending home packets – those could qualify as educational services that trigger your obligation to provide a FAPE for students with disabilities."

However, sending home packets and giving online access to resources may not be sufficient to satisfy the provision of a FAPE for students with disabilities, said McGinnis. Students with disabilities sometimes need to be given direct services, such as occupational therapy, that they would not be able to get remotely. In such cases, services may need to be "made up" when schools are back in session. This is called "compensatory services."

Compensatory services could be a remedy for a district’s failure to provide a student with services required under his or her individualized education program (IEP) or Section 504 plan. {An IEP is a learning plan tailored to meet the unique needs of children who qualify for services under the federal Individuals with Disabilities in Education Act (IDEA). A Section 504 plan generally provides accommodations and services for children with disabilities who are not eligible under the IDEA as well as environmental supports and sometimes related services, such as speech therapy.}

Each school district will need to decide which students are entitled to compensatory services as a result of a school closure, and if they are so entitled, to what extent. These determinations should be made by the Committee on Special Education (CSE) or the Section 504 Committee, as appropriate.

According to McGinnis, providing compensatory services doesn’t automatically mean making up lost services on a one-to-one basis.

"If a student misses 10 occupational therapy sessions, (providing) compensatory services doesn’t necessarily mean you have to give 10 additional occupational therapy sessions," McGinnis said.

She said schools should determine where a student would have been if the student had received the services. Then, only the amount and type of services needed to bring the student to that point would need to be provided. For example, if a CSE determines that a student who missed 10 sessions could catch up to where he or she should be with four therapy sessions, that would be the extent of the district’s obligation for compensatory services.

Regarding students who need speech therapy, McGinnis noted that New York State permits speech therapy to be delivered through video chat in a method called telepractice. Districts are under no obligation to use telepractice but may wish to discuss it with speech therapists who serve their students.

"There is the potential that a lot of kids across the state may need compensatory services once schools reopen, so we need to monitor this situation closely and be aware of any additional federal or state guidance that may affect these issues," McGinnis said.

Editor’s Note: Guidance on special education is expected from the State Education Department. Consult your school attorney regarding special education issues in your school district.