Requirements and Considerations for Educational Institutions Serving Children with Special Needs Under IDEA, Rehabilitation Act and ADA

The Centers for Disease Control and Prevention (CDC) issued guidance to address states’ responsibilities to infants, toddlers and children with disabilities and their families and to educators, staff and other professionals serving this group of children. During the COVID-19 outbreak, local educational agencies (LEAs) and early intervention service (EIS) programs will need to collaborate with their state educational agency (SEA), Bureau of Indian Education (BIE) or local public health department, as appropriate, to address questions about how, what and when services should be provided to children with disabilities.

The CDC guidance provides that though the Individuals with Disabilities Education Act (IDEA), Section 504 and Title II of the Americans with Disabilities Act (ADA) do not specifically address extended1 school closures such as the nation is presently encountering, if an LEA offers any educational services to the general student population, then the LEA must make every effort to provide special education and related services to a student in accordance with that student's individualized education program (IEP) or for students entitled to Free Appropriate Public Education (FAPE) under Section 504, consistent with a plan developed to meet the requirements of Section 504. The CDC emphasizes in its guidance that individualized plans for students are expected and accepted, given the current climate of ever-shifting policy regarding school procedures.

In instances where a child contracts COVID-19 and must remain homebound while students otherwise have been permitted to resume in-person instruction, the CDC states that an LEA must provide special education and related services and hold an IEP meeting to adjust the student’s learning plan if necessary, including to allow for virtual instruction. Further, if the student does not receive services for an extended period of time, the child’s school must determine whether compensatory services are needed.

The guidance provides that if a child with a disability at high risk of severe medical complications is excluded from school during an outbreak of COVID-19 and the child’s school remains open, a temporary exclusion2 would not be considered a change in education placement subject to the protections of 34 CFR §§ 300.115 and 300.116 and 34 CFR §§ 104.35 and 104.36. However, a child’s parent or other IEP team member may request an IEP meeting to discuss the potential need for services if the exclusion is likely to be of long duration. For long-term exclusions, an LEA must consider placement decisions under the IDEA’s procedural protections of 34 CFR §§ 300.115–300.116, regarding the continuum of alternative placements and the determination of placements. Under 34 CFR § 300.116, a change in placement decision must be made by a group including the parents and other persons knowledgeable about the child and the placement options. If the placement group determines that the child meets established high-risk criteria and, due to safety and health concerns, the child’s needs could be met through homebound instruction, then under 34 CFR §300.503(a)(1), the public agency must issue a prior written notice proposing the change in placement. A parent who disagrees with this prior written notice retains all of the due process rights included in 34 CFR §§ 300.500-300.520.

The guidance further provides that IDEA Part B funds may be used for activities that directly relate to providing and ensuring the continuity of special education and related services to children with disabilities. For example, IDEA Part B funds may be used to disseminate health and COVID-19 information that is specifically related to children with disabilities, to develop emergency plans for children with disabilities or to provide other information. LEAs, however, may not use IDEA Part B funds to develop or distribute general COVID-19 guidance or to carry out activities that are not specific to children with disabilities. Additionally, LEAs may not use IDEA Part B funds to administer future COVID-19 vaccinations to any children, including children with disabilities.

Additionally, the CDC stated that if the offices of the state lead agency or the EIS program or provider are closed, then Part C services would not need to be provided to infants and toddlers with disabilities and their families during that period of time. If the offices remain open, but Part C services cannot be provided in a particular location, such as in the child’s home, by a particular EIS provider, or to a particular child who is infected with COVID-19, then the lead agency must ensure the continuity of services by providing services in an alternate location, by using a different EIS provider or through alternate means, such as consultative services to the parent.

Additionally, once the offices re-open, the service coordinator and EIS providers for each child must determine if the child’s service needs have changed and determine whether the individualized family service plan (IFSP) team needs to meet to review the child’s IFSP to determine whether any changes are needed. If offices are closed for an extended period and services are not provided for an extended period, the IFSP team must meet under 34 CFR § 303.342(b)(1) to determine if changes are needed to the IFSP and to determine whether compensatory services are needed to address the infant or toddler’s developmental delay.

If an EIS provider cannot provide Part C services in the child’s home during a COVID-19 outbreak, but the EIS program or provider determines that it is safe to provide face-to-face Part C services in another environment such as a hospital or medical clinic, then the child could receive temporary services at the hospital or clinic.

Additionally, if the lead agency or EIS provider determines that face-to-face Part C services should not be provided for a period of time, then the EIS provider or service coordinator may consult with the parent through a teleconference or other alternative method (such as e-mail or video conference), consistent with privacy interests, to provide consultative services, guidance and advice as needed. However, determining how to provide Part C services in a manner that is consistent with the most updated public health and safety guidance is left to the discretion of the lead agency and the EIS program and provider serving a particular child and family.

The guidance provides that IDEA Part C funds may be used for activities that directly relate to providing and ensuring the continuity of Part C services to eligible children and their families. The state may use IDEA Part C funds to disseminate health and COVID-19 information to relevant parties, develop emergency plans to support the provision and continuity of Part C services, or provide other information to relevant parties who need this information. Other activities that relate to service provision, including the provision of service coordination, evaluations and assessments, may also be funded. Similar to the limitations on IDEA Part B funds, IDEA Part C funds may not be used to administer future COVID-19 vaccinations to any children, including children with disabilities.

As the nation continues to respond to the rapidly evolving COVID-19 pandemic, Taft strives to provide regular updates regarding legal developments impacting our clients. Please reach out to us with questions or if we can be of assistance in these unprecedented times.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.


1 Generally more than 10 consecutive days.
2 10 consecutive school days or less. 

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