Fiscal Report
Public Education's Point of Reference for Making Educated Decisions

Serving Students with Disabilities and Students on Section 504 Plans Amid A National and State Health Crisis

Among the myriad challenges faced by local educational agencies (LEAs) is the congruence of federal and state laws for providing a free and appropriate public education (FAPE) to students with disabilities (SWDs). There have been various versions of guidance from both the United States Department of Education (ED) and the California Department of Education (CDE) as the COVID-19 crisis evolves. What we know now is that there is not currently a waiver of federal requirements under the Individuals with Disabilities Education Act (IDEA). The CDE encourages LEAs to “do their best in adhering to IDEA requirements, including federally mandated timelines, to the maximum extent possible.” The CDE is currently working with the ED to determine if waivers or flexibilities may be offered under the federal law. Additionally, LEAs may not have considered the Section 504 requirements for accommodation. Students who are on a Section 504 Plan (504 plan) are also entitled to the same considerations. 

If an LEA closes school and does not offer any alternative educational setting for all its students (such as distance learning), then there is not an obligation to provide the SWDs or students on a 504 plan alternative settings; however, when school resumes, the LEA must resume making every effort to provide services in accordance to the Individualized Education Program (IEP), or 504 plan. If a student does not receive services due to a closure, the IEP team (or 504 plan team) must determine whether, and to what extent, services may be needed, consistent with applicable requirements and including how to make up for any lost skills during the closure. 

When students are offered a distance learning or independent study option, equitable options must be made available to SWDs, and the requirements of the IEP must be met. That said, the ED emphasized in a recent communication, “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.” Meeting the IEP or Section 504 accommodations requirements can present challenges that were not considered in the initial transfer to online or distance learning environments and may include assistive technology devices not currently used by the student. If services cannot be provided to SWDs due to logistical reasons, an IEP or 504 plan meeting should be convened with parents and providers of services to determine what services will be provided and, upon the return to school, how to mitigate any loss of educational progress. Under our current environment, the meeting will most likely be a virtual meeting, presenting challenges of its own to secure signatures and obtain quality input. Procedural safeguards for social distancing remain in place and have not been waived.

If an LEA remains open, but students at high risk of severe medical complications are excluded during the outbreak, the exclusion is considered a change in placement, generally for exclusions that are considered to be a long duration (more than ten consecutive school days). LEAs and IEP and/or Section 504 teams must convene to discuss a change in placement. Equitable access is required when alternative settings for education need to be utilized. Although this may not be an issue while school closures are in place, the return to school also may present issues with exclusions for health reasons.

If an SWD is placed in a nonpublic school that closes due to health concerns, the LEA’s IEP or 504 team must make a determination for each child as to whether and to what extent services may be needed, as well as how to make up any skills lost.

LEAs can, and might consider, adding a distance learning plan to the IEP or 504 Plan in the event that special circumstances arise. The contingency plans allow the parents and providers an opportunity to determine the appropriate placement in special circumstances.

While there are severe challenges and compliance issues with both the IDEA and Section 504, the CDE has committed to “a reasonable approach to compliance monitoring that accounts for the exceptional circumstances facing the state.” Timelines for complaint investigations have been extended by the length of any school site closure. 

Like every individual experiencing this uncharted course, the CDE and the ED are working hard to ensure students are not suffering educationally amid this crisis. The CDE has convened a work group of special education practitioners and other experts to help brainstorm best practices. There is a lot of information available, and some of it leaves more questions than answers. Some of the answers may not come for years down the road as we learn from this experience. We appreciate you and all you do for our students. We will bring new information as it comes out. In the meantime, below are several links to articles and guidance that have been published to date.