Coronavirus, Special Education and FERPA – Guidance From the Department of Education

March 13, 2020Alerts

As Pennsylvania schools grapple with the effects of coronavirus pandemic, they must plan for the needs of their special education students to avoid potential liabilities. The Department of Education issued guidance on March 12 regarding common concerns schools may have in key areas:

  • Working with students who have Individualized Education Programs (IEPs) or Section 504 Plans in the event of school closure;
  • Procedures for when parents need to pull students out of school or special activities (even when the school remains open; and
  • The implications of the Family Educational Rights and Privacy Act (FERPA) during this crisis.

Given the unpredictable and unprecedented nature of this crisis, it is likely that special education hearing officers and the Pennsylvania Department of Education (PDE) will provide some latitude to school entities in terms of how these issues are addressed if school entities make a good faith effort. However, failure to plan for addressing the needs of special education students during this crisis is unlikely to be excused.  

Federal Guidance on School Closures

Among its critical points, the guidance first indicates that if a school district completely closes and provides no educational services to any of its students, there would be no duty to provide services to special education students during the time the district or school is closed. However, if the district is closed for a prolonged period of time, it would be appropriate to review what needs to be done to bring the student back up to speed in their areas of need and address any regression upon their return, the same way as schools would look to do at the start of the school year or after the holiday break which, according to the guidance, could require providing additional services upon the students return. 

Cyber Instruction and FAPE

Second, if a district transitions to a cyber-model or provides instruction during a closure through some other model, the district must ensure that students with disabilities have equal access to this instruction and be provided Free Appropriate Public Education (FAPE), which in turn suggests providing necessary modifications and accommodations. In addition, related services and special education should also be provided “to the greatest extent possible.” This planning requires close examination for determining what cyber program to use, and special attention is particularly needed when working without outside vendors that provide cyber instruction to determine what they can and should provide in terms of accommodations and differentiated instruction.  However, for students who cannot be educated in a cyber-model, it is likely that some level of make-up hours will need to be provided for lost time, especially in terms of related services. A district may want to consider additional Extended School Year (ESY) services. Moreover, to the extent that school entities have other agencies providing some or all of a student’s instruction, such as out-of-district placements, certain related services or intermediate unit classrooms, school entities should work closely with those providers to determine what their plan is to respond to this crisis so the district can plan for any potential disruption in these services. 

Withdrawals and Absences

If parents choose to withdraw their child from the school entirely or from certain activities, schools should work collaboratively with the parents through this process and document that this occurred as a result of the parent’s decision, not the schools. However, if the district is not closed and the student needs to miss school because the student has the coronavirus, the IEP team must determine if the student is available for services. If not, there may be a duty to provide make-up services in the event a student misses a “significant” amount of school. Further, the federal guidance indicates that were a student to miss a significant amount of time (i.e., more than 10 days) of school due to high-risk coronavirus concerns despite the school being open, this situation would be considered a change in placement and school entities must reconvene the IEP team to develop a plan to address this kind of issue. 

Disclosure of COVID-19 Diagnoses

Finally, with respect to FERPA, the Department of Education has advised that school entities can disclose the fact that a student has been diagnosed with COVID-19 publicly, but cannot reveal personally identifiable information about the student when doing so. In addition, in some circumstances, if the district has knowledge a student has been diagnosed with COVID-19 or has symptoms of the same, they can reveal that information without parental consent under the health and safety exception. This means that if there is an articulable threat to health or safety, this information, including personally identifiable information, can be disclosed to public health officials and trained medical professional. However, this personally identifiable information cannot be provided to other parents or the media under any circumstances absent parental consent.

While major coronavirus-related shutdowns may occur across Pennsylvania, as in Montgomery County, schools should be prepared to manage the needs of their special education students and demonstrate best efforts to comply with state and federal educational support requirements during this crisis.

For reference, the Department of Education's guidance from March 12 can be found here: 

For more information about this alert, please contact Timothy E. Gilsbach at 610.397.2206 or [email protected], or any member of the firm’s Education Practice Group.