Special education and the coronavirus: Legal FAQs about IEPs

Updated September 29, 2020

Some public schools have reopened in person. However, others have not, and they may still be providing distance education to students learning at home. Here are answers to common legal questions you may have about special education, evaluations, and IEPs during the coronavirus pandemic.

As you read these FAQs, keep in mind that your state and local laws may differ. New and pending lawsuits and complaints may also impact the answers here. Your first place for information is your state department of education and your local school district, as well as the U.S. Department of Education’s up-to-date coronavirus information page. But these FAQs will give you a good starting point.

If a school has students learning at home, is the school required to provide special education?

Yes. Kids with disabilities have the right to a free appropriate public education. If a state or school district decides that all students must be taught at home for public safety, it must have a plan for special education services.

You have the right to know what the plan is, and the school must explain the impact on your child. If the school doesn’t have a plan, contact your school superintendent and your state department of education immediately.

Schools must plan for how students can use accommodations or get equal access if learning is online or at home. This could mean providing assistive technology tools or other supports. For more insight, watch this seven-minute webinar from the U.S. Department of Education (ED) on accessibility and online education.

Does a student have the right to in-person IEP services if students are learning at home?

It depends on state and local rules. State or local school districts that require students to learn at home may allow IEP services to be provided in person. They may allow in-person only for some disabilities (the most serious) or some services (ones that can’t be done online).

Contact your state department of education and school to find out what the rules are in your area. Keep in mind that rules may vary by the town or county you live in. They may depend on the number of coronavirus cases in your area, or on the approach of local health officials.

What if you don’t agree with your school’s rules? One option is to try to convince school officials to provide an in-person option for vulnerable students, like those with IEPs. Currently, there are lawsuits and complaints seeking in-person special education. The issue isn’t settled. So far, courts seem to be deferring to state and local rules, but that could change. Learn more by reviewing your options for IEP dispute resolution.

Does a student have the right to the same special education or related services in their IEP that they had before the coronavirus pandemic?

Yes, but services may be delivered in a different way. ED has created legal guidance on coronavirus and services for students with disabilities. (See a PDF of the guidance.) This guidance is not law, but it influences what schools do. ED says schools must “make every effort to provide special education and related services” to students. But it notes that there could be “exceptional circumstances” that change how services take place.

Many IEP services are provided one-on-one or in small groups. For example, a student’s IEP might require 30 minutes of occupational therapy. Schools must provide these services in a way that’s appropriate and safe during a pandemic. They will need to iron out a lot of the details.

One important right to be aware of is “stay put.” Some families have used this right to argue that their kids’ IEP services must remain the same and be in-person while there’s a dispute. (Here are recent decisions on “stay put” from New York and California.)

If IEP services are missed, is the school required to provide compensatory services?

If services are missed, the U.S. Department of Education says IEP teams must consider make-up or “compensatory” services. Some school districts have decided to voluntarily provide these services to all kids with IEPs. But many others have not.

Generally, a student has the right to compensatory services if there’s a denial of a free appropriate public education. If a school completely stopped services during the pandemic, there’s a good argument for compensatory services. (Here’s an example of a case where services were awarded.)

However, if a school did its best to provide appropriate services, but the services weren’t exactly what the IEP called for, it’s not as clear. We’ll have to see as courts decide more cases.

Can IEP teams meet remotely by videoconference or telephone?

Yes. Federal law has always allowed families and schools to agree on having remote IEP team meetings. (Here is the specific federal regulation.)

This is important because many states and schools are discouraging in-person gatherings.

Both families and schools have the right to ask for an IEP meeting at any time. Some states have specific timelines for IEP meetings, while others don’t.

If you participate in a remote IEP meeting, keep in mind that it’s illegal in some states to video or audio record the meeting. Some schools also have policies against recording. Another thing to know is that because of privacy laws, you might not be able to use your favorite videoconference software for an IEP meeting.

Finally, what if you want to meet in person? In guidance, ED has said that “IEP teams are not required to meet in person while schools are closed.”

What if a family has requested an evaluation and the deadline is coming up?

If your school district has re-opened in person, then there’s no reason to delay a deadline. However, if your state or school has kids learning at home, the answer isn’t as clear.

In past emergencies, like Hurricane Sandy, ED has said that it’s OK for states to delay evaluation timelines if they need to. To get an answer, look at your state department of education website for how your state is handling deadlines. You can also contact the staff at the school responsible for special education and evaluations.

One common approach states have taken is to keep the same deadlines for evaluations that can be done remotely. However, if in-person observations or tests are needed, then the school may delay the evaluation. This is what ED recommends in guidance to schools.

If a child with an IEP has the coronavirus and is sent home, but the school stays open in person, does the child have the right to instruction at home?

Yes, but there are some requirements. If kids have IEPs, ED says they need to be classified as needing homebound instruction because of a medical problem, ordered by a doctor. They also must be out for an extended time (usually 10 consecutive days or more).

Once this happens, the IEP team must hold a meeting to figure out how to provide education and services to the child. That might include forms of distance learning, like schoolwork packets, telephone or video calls, online classes, or some other learning away from school. Any services might need to be adapted because of the child’s location and illness. However, the child still has the right to them.

Does the expanded Family Medical Leave Act (FMLA) let parents take time off work to care for kids with IEPs learning at home?

Yes. Congress recently passed the Families First Coronavirus Response Act, which expands the FMLA. The expanded FMLA allows parents to take time off from work to take care of their kids when their school or daycare has closed because of coronavirus. This includes kids with IEPs and 504 plans. But keep in mind that this only applies to employers with fewer than 500 employees.

The expanded FMLA gives parents 12 weeks of leave. The first two weeks are unpaid (although emergency paid sick leave may apply) and the remaining 10 weeks are paid at two-thirds of their regular rate of pay with a max of $200 per day.

If you need to take leave, talk to your manager or human resources person. For more information, check out this helpful guide from the U.S. Department of Labor. 

(This answer was reviewed by Kate Bischoff, an attorney and HR consultant who works with Understood.)

As schools continue to manage the coronavirus, there may be situations where families and schools disagree. Despite any differences, it’s important to work together to make sure everyone stays safe and that kids get the services they need.

More: FAQs about the coronavirus and school closings, discrimination, and more.

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