Earlier today, the Governor extended the closure of all Pennsylvania schools until at least April 6. As a result, the dust seems to have temporarily settled on governmental notices and advice to schools regarding the provision of education in the midst of this pandemic.
This SLB is intended to recap and summarize the current state of affairs to bring everyone up to date before new notices are issued in the coming week.
All Schools in Pennsylvania are closed by the order of the Governor until April 6, 2020.
Under the new order, school buildings would be allowed to reopen on April 7 for two days to allow time to prepare classrooms, cafeterias, transportation and other critical operations.
Some cyber charter schools apparently continued to operate for a period of time early in the closure period and upped their marketing game to parents who were concerned about lost educational services during the closure. The Governor issued a second notice to clarify that the closure affects all schools, including cyber charters, and schools located within non-educational settings such as detention centers and hospitals. If you have received notices from such schools that they continue to operate, you should contact your solicitor for guidance on how to proceed.
Because all schools are closed, there is currently no obligation to provide educational services.
Concurrently, there is no obligation to provide accommodations and/or special education related services to students at this time. Many schools have provided educational resources and activities to parents and students. To be clear, these materials would have been issued and intended as enrichment activities only.
The US Department of Education has declared that IEP Teams do not have to meet during this closure.
The DOE has not, however, taken any steps to waive or otherwise address the statutory timeframes for holding annual IEP meetings, or for completion of evaluations and re-evaluations. The state does not have authority to waive these timelines.
Therefore, we recommend the following:
- Communicate with parents!
- We do not recommend asking staff or families to meet in person during the timeframe in which in-person contact is prohibited for any other activity (such as the current mandatory retail and other business closures). Offer to hold mandatory meetings virtually – phone, email, video conferencing, etc.
- Complete all written reports on time. If not all necessary data is available, and cannot be obtained due to the closure or other social distancing considerations, consider issuing the report and indicating that additional data are needed. A fresh 60-day timeline may be helpful.
Continuances are being granted for all pending due process matters upon request.
Of course, these hearings must be held without undue delay and consideration will have to be made for virtual hearings or other mechanisms.
When school resumes, all FAPE obligations will also resume.
School leaders have participated in numerous virtual conferences to discuss options on how to proceed. We know that substantial time and effort are being dedicated to ensuring that all elements of FAPE are provided to the maximum extent possible. State and federal proclamations have acknowledged that such efforts are expected and imply that good faith efforts will be considered if they are challenged.
Compensatory educational services may be owed to some students despite everyone’s best efforts.
After school resumes in any format, the District should assess students to determine the need for compensatory services. Again, the best course of action is to communicate with parents – about the planning being done to address student needs, as well as planning to provide compensatory services as life begins to resume an approximation of normalcy. Options for providing compensatory services may include extending the school year and adding to the time or scope of currently-planned ESY.
Bottom Line for Schools
Over the weekend, U.S. Secretary of Education Betsy DeVos announced the Department has released new information clarifying that federal law should not be used to prevent schools from offering distance learning opportunities to all students, including students with disabilities. This new resource from the Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) explains that as a school district takes necessary steps to address the health, safety, and well-being of all its students and staff, educators can use distance learning opportunities to serve all students. Click here for a copy of the supplemental fact sheet.
The Education attorneys at KingSpry will continue to monitor developments and are available for client consultation should questions arise. Under these circumstances, our best advice is keep calm and carry on.
If you have a question, contact your legal counsel or one of the education attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.