In a preemptive strike against the spread of COVID-19 throughout New York State, Governor Andrew Cuomo issued an executive order on March 16th, 2020, mandating that all schools within the State close no later than March 18th, for two weeks, ending on April 1, 2020. At the end of the two-week period, the State will reassess whether to extend such closures beyond April 1st.
Governor Cuomo’s executive order also suspended the requirement that school districts provide 180 days of instruction to their students. As the situation continues to develop, the 180-day instructional requirement will be adjusted according to the State’s mandated closures. However, school districts that choose to exceed the period of State mandated closure will not be exempt from the 180-day rule.
The executive order also directed school districts to develop a plan for alternative instruction. But what does this mean for students with disabilities? Are school districts still responsible for providing every student a free appropriate public education (FAPE)? Both the U.S. Department of Education[i] and the N.Y. State Education Department[ii] have released guidance relating to these issues.
The short answer is yes; districts must continue to provide a FAPE, and, in doing so, districts are required to provide students with equal access to the curriculum. But, “equal” does not mean “same.” Instead, the curriculum may be provided in an equally effective alternative. For example, if a teacher working from home provides students with a worksheet to be completed by the students at home, the teacher may provide it to all the students, including those whose Individualized Education Program (IEP) requires instructions to be read to the student, so long as the teacher is able to call that student and read the instructions, or to send a voice recording of the instructions to the student, in order to ensure continued compliance with the student’s IEP.
But there is a slight catch. If a district does not provide educational services to any of its students, the district would likewise not be required to provide educational services to students with disabilities during that same period. What this means for us in NY State is that if a district continues to provide educational services to their general student population, for any period between March 18th and April 1st, the district must also provide equally effective alternative educational services to their students with disabilities. However, if the district provides no instruction to their general student population during that period, they need not provide it to their students with disabilities either.
The good news is that Governor Cuomo’s executive order suggests that districts which choose to remain closed after the State’s mandated closure is lifted, will continue to be bound to the instructional day requirement, thereby forcing them to provide remote alternative learning to all of their students.
And, lastly, once school resumes, if a student was not receiving services during the school closure to the extent required under the student’s IEP or Section 504 Plan, the district must determine whether, and to what extent, compensatory services are needed to make up for any skills that may have been lost or missed during the closure period.