Introduction

In the prior installment of this series, we started to look at how COVID-19 has impacted public school education in New Hampshire. In particular, we looked at a chronology of the key Executive and Emergency Orders issued by Governor Sununu, as well as the key pieces of guidance issued by the federal and state Departments of Education. In this installment, we will look at some of the issues regarding the provision of special education services in light of the COVID-19 emergency.

Special Education and COVID-19

Do special education services need to be remote? Not necessarily.

Based on Governor Sununu’s Emergency Orders, one would think that special education services, if they are going to be provided at all, would need to be remote. For example, Emergency Order #1 on March 15 ordered all public school districts to transition to remote instruction, and all public schools to be closed to students. Emergency Order #17 on March 26 ordered all non-essential businesses to close their physical locations, and all citizens to stay in their residences. Emergency Order #19 on March 27 extended the remote instruction requirement through May 4. Emergency Order #32 on April 16 extended the remote instruction requirement through the end of the school year.

On the other hand, there is an interesting exception listed in Emergency Order #17. Paragraph 5 states, “This Order shall not apply to any K-12 schools within this State.” On March 30, 2020, the New Hampshire Department of Education (“NH DOE”) issued Guidance specific to Emergency Orders #16 and #17. See Dept. of Educ. Guidance Relating to Emer. Orders #16 and #17 (Mar. 30, 2020). The NH DOE specifically referred to the exception listed in Paragraph 5. This Guidance highlighted several interesting points:

• There should not be “more than 10 individuals in a single enclosed space, i.e., a room with four walls….” There can be more than 10 individuals in a building. Social distancing should be encouraged. Staff should be allowed to work from home where possible.
• Special education services that require physical contact, such physical therapy, or that require being within six feet of a student, are considered “essential functions… [and are] consistent with the Orders.” My reading of this is that such services are permissible.
• Providing and dropping off meals is considered an essential function.
• Parents are permitted to travel to pick up meals or educational materials, but should observe social distancing guidelines when interacting with others.
• “Social distancing guidelines should be followed whenever possible in performance of essential functions. If an essential function cannot be performed in accordance with social distancing practice, best hygiene practices should be observed (e.g., hand washing) as well as the use of personal protective equipment (PPE) where appropriate (e.g., gloves).”

Three-Tiered Safety Net

New Hampshire has implemented what it refers to as a three-tiered safety net for its special education students. The New Hampshire DOE Guidance for Remote Instruction describes the three tiers as follows:

Special education services may be of a nature that they can be provided in a remote instructional environment.

Special education services may be able to be provided in person, with limited cohort sizes and other preventative measures that allow in person service delivery in our schools or by one of our valued providers in accordance with HHS guidelines. We recognize that many individuals have concerns about being in school facilities or having contact with students. School communities are encouraged to be sensitive to individuals who may have specific health risks or have regular contact with someone who has specific health risks when determining when in person delivery is appropriate.

Finally, if we are simply not able to provide those services, we may need to revert to compensatory services, knowing that this is a last resort option.

Guidance for Extended Emergency Order Remote Instruction in Support, NH Dept. of Educ. (no date).

Compensatory Services

Yes, compensatory services are possible… but, in my opinion, probably unlikely if the school district is being reasonable and trying to find a way to implement services, given the restrictions presented by the COVID-19 emergency. Note the NH DOE’s wording: compensatory services “is a last resort option.” Also keep in mind what compensatory services are. A very basic explanation is that compensatory services are “a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA.” C.G. ex rel. A.S. v. Five Town Community School Dist, 513 F.3d 279, 290 (1st Cir. 2008). What are nonfeasance and misfeasance? Black’s Law Dictionary defines nonfeasance as “[t]he failure to act when a duty to act existed.” Black’s Law Dictionary 1076 (Bryan A. Garner ed., 7th ed., West 1999). Misfeasance is defined as a “lawful act performed in a wrongful manner.” Id. at 1014.

We should also look at guidance provided by the U.S. DOE:

School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment… these exceptional circumstances may affect how all educational and related services and supports are provided… [S]chool districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically…

[D]uring this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.

It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency… Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.

Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, U.S. Dept. of Educ. (Mar. 21, 2020).

Putting this all together – the restrictions caused by COVID-19, the restrictions presented by the Governor’s emergency orders, the guidance offered by the New Hampshire and United States Departments of Education, as well as my own experience and knowledge – I expect that whether a school district will owe compensatory services to a student will depend a great deal on how reasonable and easy to work with the district is during this crisis. A school district that is responsive to parents, tries to find ways to implement services required under the IEP, listens to parent concerns and responds appropriately, and is generally reasonable, will likely be viewed as a district that truly tried to offer FAPE; a school district that is unresponsive, unreasonable, does not offer services, or offers services that are wholly inadequate compared to what was possible under the circumstances, will likely be viewed as a school district that denied FAPE and owes compensatory services.

Similarly, parents need to be reasonable. They need to understand that it might not be possible to implement IEP services as agreed to in the IEP. It also might not be physically possible to make up for every minute of a services that was missed due to the COVID-19 emergency. Therefore, parents need to be open to different approaches and options.

If there is a dispute that goes to a due process hearing, hearing officers will apply the laws to the facts to settle the dispute and make decisions. However, they will also look to see who was reasonable or unreasonable. You do not want to be the party going into a due process hearing looking like the party that was overly demanding and unreasonable during an emergency.

Summary of Part 2

In Part 1 of this blog series, we looked at key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. In Part 2, we looked at special education in New Hampshire during the COVID-19 emergency. Coming up, we will look at implementation issues and other challenges facing New Hampshire school districts and parents as they try to ensure that education continues while health risks are minimized in light of the COVID-19 emergency.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit https://www.lawbaron.com for more information, or to schedule a phone or video consultation.