New Hampshire, Coronavirus (COVID-19) and School Law – Part 2
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.
New Hampshire, Coronavirus (COVID-19) and School Law – Part 1
Introduction
School districts all over the country have been grappling with educational, technical and legal challenges as they have been forced to transition from in-person to remote instruction due to the coronavirus (COVID-19). Each school district has been responsible for implementing its own version of remote learning, based on guidance provided by the United States Department of Education, as well as each state’s Department of Education (DOE).
State and school district responses to the remote learning challenge have run the gamut from openly refusing to provide remote services to openly embracing the changes. New Hampshire appears to fit into the latter description. The New Hampshire DOE immediately jumped on the challenge and helped school districts within the state give a good faith effort to meet the challenge. As Vice President Mike Pence said, New Hampshire is “setting the pace.” See, e.g., https://www.unionleader.com/news/education/vp-pence-says-nh-is-setting-the-pace-on-remote-learning/article_b496dda9-a48e-5b7d-b9b8-01cfd8891bbf.html. What we do not know yet is whether the actual execution has been as good as the plans. New Hampshire parents: what has been your experience?
Since the beginning of March, the amount of information issued by federal and state authorities has been almost overwhelming. There have been fact sheets, Q&A sheets, guidance sheets, letters to education leaders, executive orders, webinars, trainings, video conferences and audio conferences. Let’s look at some of the key legal points from all of this information.
Chronology of Guidance and Orders
COVID-19 started in China in December 2019, but by March it had spread to the United States with such intensity that it became both a state and national emergency.
- March 12, 2020 – The federal Department of Education created a COVID-19 Q&A document to provide guidance to school districts, parents and other stakeholders. Questions and Answers on Providing Services to Children with Disabilities during the Coronovirus Disease 2019 Outbreak, U.S. Dept of Educ. (Mar. 12, 2020). This Q&A, like most guidance documents, did not change any laws or create any rights. Guidance documents simply interpret existing laws so that parties can make reasonable decisions about how to implement the laws. Among the guidance provided in this Q&A was that if a school district closes its schools and does not provide any educational services to the general student population, then the district would not be required to provide services to students with disabilities. On the other hand, if a school district “continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” FAPE stands for Free Appropriate Public Education, and is one of the basic requirements of special education law. The U.S. DOE’s wording created confusion among some states and school districts, to the point that some districts (outside of NH, as far as I know) openly stated that they would not be providing formal remote education, because they were afraid of violating FAPE requirements. As you will see below, New Hampshire officials stepped in quickly to clarify the need to continue formal remote instruction, and to provide school districts with appropriate support. The U.S. DOE also issued clarifying guidance on March 21, 2020, discussed below.
- March 12, 2020 – The New Hampshire Board of Education implemented an emergency amendment to Education regulation Ed 306.18(a)(7), regarding remote instruction.
- The pre-emergency version of Ed 306.18(a)(7), implemented in 2014, authorized, but did not require, school districts to submit a plan to the Commissioner of Education, outlining the district’s plan to conduct remote instruction “for up to 5 days per year when the school has been closed due to inclement weather or other emergency. The plan shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day. At least 80 percent of students shall participate for the day to count as a school day.”
- The emergency amendment to Ed 306.18(a)(7) authorizes school districts to conduct instruction remotely. It also requires districts to “create a plan that shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day.”
- March 13, 2020 – Governor Sununu issued an Executive Order related to COVID-19, in which he declared a state of emergency. NH Exec. Or. 2020-04 (Mar. 13, 2020). Although the contents of the order are very important, there are just a few education-related items that need to be highlighted here:
- Section 13: Directs the NH Department of Education to “provide updated and specific guidance relating to preventing and mitigating COVID-19….”
- Section 14: Suspends all school sponsored out-of-state travel for public school students and teachers.
- Section 18: States that additional “orders, directives, rules and regulations” might be forthcoming.
- March 15, 2020 – Governor Sununu issued his first Emergency Order, pursuant to his March 13 Executive Order. NH Emer. Or. 1 (March 15, 2020). In this Emergency Order, the Governor:
- Ordered all NH public K-12 school districts to transition to remote instruction and support for three weeks, between Monday, March 16, 2020 and Friday, April 3, 2020.
- Ordered each school district to “develop a temporary remote instruction and support plan….”
- Ordered that all public K-12 schools be closed to students starting on March 16, 2020, to allow each school district to develop and transition to remote instruction and support.
- Ordered that each school district begin providing temporary remote instruction and support to all students no later than Monday, March 23, 2020, and continuing through Friday, April 3, 2020.
- Ordered the Department Of Education to provide assistance and guidance to school districts in the development of remote instruction and support.
- March 21, 2020 – The U.S. Department of Education issued additional guidance in the form of a “Supplemental Fact Sheet.” 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).The U.S. DOE stated that federal law should not be interpreted as an excuse for not providing educational programs through remote instruction. The U.S. DOE also clarified that school districts are required to provide FAPE to students with disabilities, while also protecting the health and safety of the students and their teachers and service providers. FAPE might be possible through distance instruction virtually, online, or telephonically. How FAPE is provided might need to change during this emergency. If services cannot be provided, IEP Teams “must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” What I believe is the most important statement in this document concerns collaboration: “The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.” Putting this all together, my view of the key points of this guidance are as follows:
- School districts are required to provide FAPE;
- During this emergency, FAPE might look different than what the parties would normally deem acceptable;
- Schools and parents need to be flexible, open to new approaches, and work together to find ways to provide services;
- If FAPE cannot be provided, compensatory services later might be appropriate.
- March 26, 2020 – Governor Sununu issued Emergency Order #17, pursuant to his March 13 Executive Order. NH Emer. Or. 17 (Mar. 26, 2020). In this Order, the Governor required that all non-essential businesses close their physical workplaces and facilities at least until May 4, 2020. He also ordered all New Hampshire citizens to stay in their residences, with limited exceptions. Interestingly, Section 5 of this Order states that the Order “shall not apply to any K–12 schools within this State.” Sections 6 and 7 also exclude state and local governments, as well as houses of worship.
- March 27, 2020 – Governor Sununu issued Emergency Order #19, pursuant to his March 13 Executive Order. NH Emer. Or. 19 (Mar. 27, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through Monday, May 4, 2020.
- Sometime after Governor Sununu issued Emergency Order #19, the NH DOE issued an undated guidance document based on that Emergency Order, entitled “Guidance for Extended Emergency Order Remote Instruction in Support.” Note that this guidance document incorrectly states that Emergency Order 17 extended remote instruction through May 4; it was actually Emergency Order 19 that extended remote instruction through May 4. This Guidance is a detailed, 6-page document dealing with:
- Managing Expectations – Teachers need to hold high expectations, but be flexible;
- Planning and Advisory – Teachers should allow time for preparing instructional materials, collaborating with colleagues, and engaging individually with students;
- Student Screen Time – Remote learning does not necessarily mean that students are always online. Teachers need to be mindful to avoid too much screen time. They need to develop other creative instructional opportunities with resources that are at hand;
- Asynchronous and Blended Instruction – Teachers need to be aware that students, parents and families are dealing with multiple, simultaneous responsibilities and challenges as a result of the COVID-19 emergency. Remote instruction and support is just one of the many responsibilities and challenges. Teachers and administrators need to be flexible with students and families;
- Special Education/ESOL – Remote support will mean finding ways to be creative to support students with IEPs and non-English speakers;
- Healthy Habits – Everyone needs to be aware of how disruptive the current circumstances are, and how important it is that everybody take care of themselves and others;
- Mandatory Reporting – All adults in New Hampshire are mandatory reporters if they suspect child abuse or neglect. That responsibility has not changed;
- Instruction Hours – New Hampshire law requires that schools offer 945 hours of instructional time for elementary schools, and 990 hours of instructional time for middle/high schools. Although this is not changed, the state Board of Education or the Commissioner of Education is authorized to reduce the amount of instructional time. However, New Hampshire is being very lenient in what it considers instructional time. “During this remote instruction and support period, any day for which remote instruction is offered is considered an instructional day. In addition, the period from March 16 – 20, which for some districts was a preparation period for remote instruction and support, also is considered as instructional days. Districts that believe they may have difficulty meeting the statutory instructional time, are encouraged to reach out to the department to evaluate the individual circumstances and determine if a waiver may be required. “
- Attendance – How attendance is recorded is up to each school district. New Hampshire offers “a great deal of flexibility around attendance.” Simply engaging instructional material can be the basis for participation and attendance. “For some districts or classes, that may mean a daily check-in, for others it may occur less frequently. As a general rule, the department sees frequent, quick check ins with students an effective approach to monitor engagement.” Even with this flexibility, there might still be truancy, defined by RSA 189:35 as “Ten half days of unexcused absence.” If a school district believes a student is truant, the district should engage with the district’s truant officer.
- Sometime after Governor Sununu issued Emergency Order #19, the NH DOE issued an undated guidance document based on that Emergency Order, entitled “Guidance for Extended Emergency Order Remote Instruction in Support.” Note that this guidance document incorrectly states that Emergency Order 17 extended remote instruction through May 4; it was actually Emergency Order 19 that extended remote instruction through May 4. This Guidance is a detailed, 6-page document dealing with:
- April 16, 2020 – Governor Sununu issued Emergency Order #32, pursuant to his March 13 Executive Order. NH Emer. Or. 32 (Apr. 16, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through the end of each school district’s school year.
Summary of Part 1
That completes our brief introduction and summary of the key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. However, we have only touched the surface of all of the information promulgated by national, state and local authorities. New Hampshire school districts must ensure that education takes place remotely. School districts and parents must be willing to work collaboratively, be flexible, and understand that an acceptable and appropriate education, under the circumstances, might look very different than what it would have looked like when children were physically in school each day. In Part 2, we will dig into more detail about special education issues, technical and 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.
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