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Special Education and the Coronavirus: Legal FAQs About IEPs

By Andrew M.I. Lee, JD

Updated April 22, 2020

Nearly all schools are closed due to the coronavirus. Working with Lindsay Jones of our partner, the National Center for Learning Disabilities , we created this FAQ to answer common legal questions you may have about special education, evaluations, and IEPs.

As you read these FAQs, keep in mind that your state laws may differ. 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.

When all kids are learning at home, do schools still have to provide special education?

Yes. Kids with disabilities have the right to a . 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. Many states and schools have already put these plans in place, while others are just beginning to do so.

Schools will also need to plan for how kids can use 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 on accessibility and online education.

When all kids are learning at home, what happens to special instruction or related services in a child’s IEP?

We still don’t know all the details.

However, the U.S. Department of Education has created legal guidance on the coronavirus and services for students with disabilities.

In the guidance, the U.S. Department of Education 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. How will the school deliver this? Will there be enough staff to send someone to every family’s home? Will parents want visitors?

Schools will need to iron out a lot of details. If services are missed, the U.S. Department of Education says IEP teams must consider make-up or “compensatory” services.

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.

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.)

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 now that 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. Many states and schools are looking into meeting platforms that protect student privacy.

Finally, what if you want to meet in person? In guidance, the U.S. Department of Education 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?

Unfortunately, there’s no easy answer. And it depends on the state where you live.

Federal law has a 60-day time limit for an initial evaluation. But states have always been allowed to use a different timeline if they choose to, and many do. 

We’re also in the middle of a national emergency, and federal law doesn’t say what should happen. In past emergencies, like Hurricane Sandy, the U.S. Department of Education 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 the U.S. Department of Education 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?

This isn’t really happening now, as nearly all schools are closed. In the future, however, it may come up when schools reopen in person. And the answer is a bit complicated.

If kids have IEPs, the U.S. Department of Education 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.

We’ll be working with NCLD to update these FAQs as we learn more. If you have any input on these FAQs, please share it with us.

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

Get more coronavirus updates and tips from Understood.

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