Masking requirements changes
An Agency of Education COVID-19 Advisory Memorandum was issued that recommended universal masking requirements until February 28, 2022. After February 28, 2022, the recommendations changed depending on whether 80% of a school population was vaccinated. However, this guidance was rescinded on March 14, 2022.
As a result, many schools across the state have ended their masking requirements. This has raised many questions for parents of and students with disabilities who are immunocompromised, who have complex medical conditions, or who are at risk of serious illness or death if they contract COVID-19.
On March 24, 2022, Miguel Cardona, Ed.D., United States Secretary of Education, sent a very helpful letter to educators and parents regarding what updated guidance from the CDC means in ensuring ongoing access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) looks like for students with disabilities who are protected by the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and/or the Individuals with Disabilities Education Act (IDEA).
This letter provides some important information:
- Both individualized education programs (IEPs) and 504 plans must address school-related health needs of students at increased risk of severe illness from COVID-19.
- State or local rules, regulations, or policies that limit the ability of an IEP or 504 team to appropriately place a student with a disability in their least restrictive environment violate IDEA and 504.
- An IEP or 504 team may need to include a person knowledgeable about the student’s health needs, including whether COVID-19 prevention and risk prevention strategies are needed, such as a school nurse, or the student’s own health care provider(s).
- Schools must continue to take action to preserve safe in-person learning opportunities for students with disabilities.
- Schools must make reasonable modifications when necessary to ensure equal access for their students with disabilities, absent a showing that the modification would be a fundamental alteration to the program, or an undue administrative burden.
- Student-specific information must be used to decide whether, and which, COVID-19 prevention strategies are necessary. This may include medical or health records, diagnostic or other evaluative data, or information documented by medical health professionals.
- It remains the responsibility of the entire IEP team to ensure FAPE is provided in the LRE.
- Schools can use American Rescue Plan Act funds to implement strategies that are necessary to keep students safe attending school in person.
- Expectations around masking in schools must be made on a case-by-case basis to comply with a school’s obligations to make reasonable modifications for particular students with disabilities.
- Schools must not place all students with disabilities, or all students with disabilities at high risk of serious illness from COVID-19, in a segregated setting away from peers.
COVID testing changes
On March 14, 2022, the governor and the Agency of Education changed their recommendations regarding COVID-19 testing and masking, based on updated recommendations from the Vermont Department of Health. This guidance reduced the number of scenarios where testing is recommended. The changes announced by the AOE do not affect diagnostic and staff assurance testing, but does direct schools to change their Test at Home program to be consistent with Department of Health guidance.
Video: On September 18, 2020, Rachel Seelig, staff attorney for Vermont Legal Aid's Disability Law Project, talked about K - 12 students with disabilities returning to school during the COVID-19 crisis at a town hall presentation. Watch the video on YouTube.
Webinar: On July 22, 2020, Marilyn Mahusky, staff attorney for Vermont Legal Aid's Disability Law Project, presented a webinar for the Vermont Family Network on “Returning to School.” View the webinar on YouTube.
As students with disabilities return to school, families are facing many new questions as they try to help their child navigate learning in a different environment.
Returning to fully in-person instruction for students with disabilities
The goal is to maintain full in-person instruction for the 2021-2022 school year.
Individualized education programs (IEPs) and 504 plans should be written to allow a smooth transition back to fully in-person instruction if a student learned remotely or in a hybrid model during the 2020-2021 school year. Sometimes a student’s needs have changed, and the IEP needs to be amended. A parent can ask for an IEP team meeting to request changes to the IEP to meet the changing needs of a student. In addition, a student may not have had an IEP or 504 plan in the past, but, during the last year, the student has developed a disability and may need an IEP or 504 plan. A parent can request an evaluation to determine if their child is now eligible.
Example: A student had an IEP because of a Specific Learning Disability. While the student was learning remotely, they developed anxiety. Now, they need their IEP to address their disability-related needs for anxiety as well.
Some students with disabilities may not yet be able to return to the in-person learning environment because of their disability or medical conditions. Even if a district is not offering a hybrid or virtual option to all students, such an option may be needed as a reasonable accommodation for a student for whom in person attendance is not recommended by a physician.
The type of environment a student will learn in if they have an IEP or 504 plan is called a “placement.” It is determined by the IEP or 504 team, not by a child’s doctor, although input from a doctor will be helpful. One type of placement is called “Homebound” instruction. Homebound instruction is for students who are medically fragile and cannot leave home or are hospitalized. Virtual instruction is when a student is not medically fragile but, due to COVID-19, does not attend school for in-person instruction. Virtual instruction is a method of delivering educational services. “Homebound” is a type of placement for students with disabilities along a continuum of alternative placements that go from least restrictive to most restrictive. See our Learning From Home: Homebound Instruction and Virtual Instruction page.
Although Vermont is no longer in a state of emergency, there is still a national emergency because of COVID-19.
Students with disabilities still have rights in schools:
- IEP and 504 plans must still be individualized during COVID-19. See our IEPs and 504 Plans are Still Individualized During COVID-19 page.
- A school cannot change the IEP or 504 plan on its own without a meeting. An IEP can be changed without a meeting but only if you agree to the change in writing. See our IEP Amendments Due to COVID-19 page.
- Schools must develop and put in place strategies to help students with disabilities meet COVID-19 safety guidelines in school. Students who have a medical or behavioral reason for not wearing a face mask should not be made to wear one. Students with disabilities cannot be suspended for not meeting COVID-19 safety guidelines if their inability to meet the guidelines is related to their disability. See our Students with Disabilities and COVID-19 Guidelines in School page. Students continue to have the right to a hearing before being suspended or expelled from school. Students can only be removed from school before they have had a chance for a hearing if they pose an immediate threat of harm to themselves, others, or the school property/environment. This has not changed due to COVID-19. Learn more on our School Suspension or Expulsion page.
- Sometimes, when students pose an imminent and substantial risk of bodily harm to others, they may be restrained or secluded. This has not changed due to COVID-19. However, the Agency of Education had issued guidance about when the use of restraint is not safe because of the proximity it requires between an adult and a student. If a student has experienced restraint or seclusion in the past, or has begun displaying behaviors that are not de-escalated with other techniques, you may want to convene an IEP or 504 team meeting to create or amend a positive behavior intervention plan to reduce the risk of restraint or seclusion.
- Students still have the right to have a timely evaluation to determine if they are eligible for special education. However, it may be more difficult to complete evaluations due to COVID-19. Evaluations cannot be delayed solely “because of COVID.” School districts can only delay evaluations if there is a student-specific reason for the delay. Learn more about eligibility evaluations.
Returning to school for students who have had COVID-19
Some students may have had COVID-19 or may get COVID-19 in the future. Sometimes, after a person has COVID-19, they experience “long COVID.” This is how the CDC describes a “wide range of new, returning, or ongoing health problems people can experience more than four weeks after first being infected with the virus.” Students experiencing long COVID or other conditions arising because of COVID-19 may be eligible for special education and related services under IDEA or protections and services under Section 504. For more information on long COVID and eligibility, see the Office for Civil Rights/Office Special Education and Rehabilitative Services Resource.
Access to education if schools cannot remain fully in-person
Although schools hope to remain full open this year, the Vermont AOE has left it up to individual districts to determine how they will respond if this becomes impossible in a particular school or district.
Here is some more information which may be helpful if schools do not remain fully in person:
- A school must give students with disabilities the same choice it gives other students between in-person, remote or hybrid learning. See our IEPs and 504 Plans are Still Individualized During COVID-19 page.
- Remote instruction generally means that your child will be spending some time accessing their education through Zoom or a similar platform. This means that your child’s teacher and possibly other school personnel will be virtually in your home. Try to provide a learning space for your child that is quiet and free from distractions. You should also be mindful of maintaining the privacy of your child and other household members. We have heard reports of schools in other states sending law enforcement to students’ homes when teachers report seeing things that concerned them in the course of remote instruction, such as the apparent lack of a responsible adult in a home with young children and a child appearing to have access to unsecured firearms.
- The United States Department of Education (DOE) recently issued a Parent and Family Digital Learning Guide. You can find the Digital Learning Guide on the Department of Education website. The US DOE has also issued Volume 1 and Volume 2 of the Education Department COVID-19 Handbook.
If you have questions or problems with special education in Vermont, contact us for help.