Flu School closures and students with disabilities

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Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and Other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)

The U.S. Department of Education (Department) is issuing the following guidance to help prepare state educational agencies (SEAs), local educational agencies (LEAs), schools, and postsecondary institutions in the event of an outbreak of the H1N1 influenza virus during the 2009-2010 school year.  For the full guidance see attachment. Below is the guidance for students with disabilities:

B. Requirements under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA).

Elementary and secondary schools must ensure equal access to educational opportunities for students with disabilities, and provide a free appropriate public education (“FAPE”).  The following questions primarily address the obligations of, and best practices for, SEAs, LEAs, and schools with regard to these requirements when planning for an H1N1 outbreak.[1]

B-1.  Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

The IDEA, Section 504, and the ADA do not specifically address a situation in which elementary and secondary schools would be closed for an extended period of time because of exceptional circumstances; however, LEAs must be sure not to discriminate on the basis of disability when providing educational services.

If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational services, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.  Once school resumes, however, a subsequent individualized determination is required to decide whether a student with a disability requires compensatory education to make up for any skills that may have been lost because of the school closure or because the student did not receive an educational benefit.

If an LEA continues to provide educational opportunities to the general student population, then it must ensure that students with disabilities also have equal access to the same opportunities and to the provision of FAPE, where appropriate.  SEAs and LEAs must ensure that, to the greatest extent possible, each student with a disability receives the special education and related services identified in the student’s individualized education program (IEP) developed under IDEA, or a plan developed under Section 504.

B-2. In the event of a school closure, how might educational services be provided to students with disabilities?

As part of their H1N1 planning, SEAs and LEAs must consider ways of ensuring that continuing education activities (i.e., services provided during a school closure) are accessible to students with disabilities.  Technology provides unprecedented opportunities for all students, including students with disabilities, to have access to high-quality educational instruction during an H1N1 outbreak, especially when continuing education must be provided through distance learning.  SEAs and LEAs should consider the accommodations (e.g., educational materials in accessible formats or through the use of auxiliary aids and services) that must be provided in order for a student with a disability to have an equal opportunity to participate in a distance learning program.

For recommendations on how to continue learning during a flu outbreak, please visit the following Web address:

http://www.ed.gov/admins/lead/safety/emergencyplan/pandemic/guidance/continuity-recs.pdf.

B-3. What must a school do if it cannot provide services in accordance with a student’s IEP or Section 504 plan because of an H1N1 outbreak or if a student opts to stay home because the student is at high-risk for contracting the virus?

If a school continues to provide instruction to the general school population during an H1N1 outbreak, but is not able to provide services to a student with a disability in accordance with the student’s IEP, the student’s IEP team determines which services can be provided to best meet the child’s needs.  The team may meet by teleconference or other means to determine if some, or all, of the identified services can be provided through alternate or additional methods such as through tutoring by phone, the Internet, or closed-circuit programming.  Appropriate personnel under Section 504 must take similar actions regarding a student who has a Section 504 plan.  Once school resumes, or the danger to a high-risk student has passed, a student’s IEP team, or appropriate personnel under Section 504, must determine whether, and to what extent, compensatory services are needed to ensure that the student receives educational benefit.

B-4. In the event that a school is closed, would an IEP team be required to meet?  Would an LEA be required to conduct an evaluation of a student with a disability?

IEP teams would not be required to meet in person while schools are closed.  IEP teams, however, must continue to work with parents and students with disabilities during such school closures, including conducting informal assessments (e.g., assessments developed by a child’s teacher) or formal assessments of the student, including parent surveys and standardized reports, and offer advice, as needed.  If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens.  Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents.  These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504.

B-5.  What steps must be taken to serve a student with a disability who may have lost skills as a result of a prolonged absence from school?

The student’s IEP team (or appropriate personnel under Section 504) must make an individualized determination as to whether, and to what extent, it may be necessary to provide compensatory education to help the student regain skills that might have been lost during the period in which special education and related services were not provided.

If appropriate, compensatory education could be provided in a number of ways, such as providing extended school year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours.  All such compensatory services must be directly linked to the denial of educational benefit, including any decline in the student’s skills that occurred as a result of a student not receiving services during an H1N1 outbreak.

The student’s IEP team also must review the student’s IEP and determine whether any other changes in the IEP are needed.  An IEP team may consider using informal assessments to determine whether there have been changes in a student’s performance.  If changes have occurred, the IEP team must determine whether changes are needed in the services and supports currently provided to the student.

B-6. If an LEA is required to provide services to parentally placed private school students with disabilities during an H1N1 outbreak, how will the LEA communicate with these private schools?

LEAs should, during the required consultation process with private school officials under section 612(a)(10)(A)(iii) of the IDEA, establish procedures and strategies, including a communication process, that will be implemented in the event of an H1N1 outbreak.  Planning for this effort may require establishing a backup strategy that will be operational in the event of an H1N1 outbreak.  LEAs should coordinate such planning with appropriate private school officials to make sure that they have access to information related to IDEA equitable services for their eligible students.


[1] The questions in section I(B) primarily address the obligations of and best practices for states and LEAs when planning for an H1N1 outbreak; however, guidance related to accessibility to educational services provided during an H1N1 outbreak generally would apply to colleges, universities and other educational institutions.