As schools across the state rushed to solidify reopening plans, a number of special education concerns needed to be addressed. We have prepared the following FAQ document, which addresses a variety of pressing topics, including the latest on masks and mask exemptions, obligations based on the district's mode of operations, obligations to students who opt into temporary remote learning opportunities, live streaming considerations, and PPT meetings.

This FAQ document was prepared for informational purposes and in conjunction with a webinar dated September 24, 2020, and does not necessarily reflect any guidance that may have changed since then. If you have specific questions about newer guidance, please feel free to contact one of the attorneys listed on page 1.

Here are twelve FAQs:

Q1. What should I do if a student with an IEP shows up to school with a mask exemption letter from her treating physician?

A1.

The first step is to review the letter and have the school nurse or another designated professional communicate with the physician, if needed, to confirm the legitimacy and necessity of the stated exemption. School districts will be well-served to have medical exemption sample forms available which they ask families and physicians to complete. Pending completion of the form and the ultimate medical determination, the district can utilize temporary strategies, such as potentially asking that the student remain remote, or in an individualized learning space in the school environment. (Note: These temporary strategies can also be utilized for students with disabilitybased reasons for not wearing a mask, as discussed below.) We understand through the guidance developed by the Connecticut State Department of Education ("CSDE") and the Department of Public Health ("DPH") that there are two primary circumstances in which a student may be "exempted" from wearing a mask. One is a true medical exemption wherein the student's medical condition prevents the student from being able to safely wear a mask. The health guidance thus far has been clear that there are very few medical conditions that would actually prohibit a student from being able to wear a mask. Some examples may be significant respiratory and lung conditions. (See DPH webinar on 8/17/2020 and CSDE, DPH joint FAQ regarding Reopening K-12 Public Schools, Volume 3, dated 9/2/2020). The CSDE and DPH September 2, 2020 FAQ makes clear that, "Staff and parents of students with underlying medical conditions severe enough to preclude use of face coverings should consider the potential risk of serious complications of possible COVID infection when making the decision of whether or not to attend school in person."

The second primary circumstance in which a student may not be able to wear a mask is disability based in which the student's developmental or other disabilities make it not possible for the student to safely wear a mask. In this circumstance, the information about the need for an exemption could come from the parents directly, from an outside provider, or could be generated by school staff themselves. The next step in this scenario is to convene the PPT or Section 504 meeting to discuss how to accommodate the student and implement the student's IEP in light of the inability to wear a mask. Questions to be explored include:

  1. Can the student be taught how to gradually tolerate longer periods of wearing a mask?
  2. Can the student be significantly distanced from other students in her/his cohort while at school?
  3. Can the teacher or providers have additional layers of protection when in the presence of the student, such as plexiglass dividers, face shields or double masking?
  4. Does it make sense for the student to receive her education and services in another location -- such as a separate room within the school building or in an administrative building -- to limit the number of people with which the student will have contact?
  5. Does the student have behaviors which would cause her/him to be unable to distance herself from other students or staff during instruction? If so, can we address these behaviors effectively through the IEP?
  6. Is the family receptive to a home-based model if these other protections cannot be put into place?

Finally, and importantly, at the end of the analysis: if the student's "inability" to wear a mask, whether for medical or disability-based reasons, endangers the health and safety of other students, staff and the school community in general, because that student cannot be safely protected through others' use of additional measures or through a different classroom environment, the district does have the right to say: "you need to learn in an environment outside of the school right now until we can progress to a way to keep you and others safe in school." Then, the work begins of creating the other appropriate environment. This may include services in the home which parent contracts for and district reimburses; it may include virtual instruction and services; it may include receiving instruction in another building in the district with individualized instruction.

Q2. A medically complex student with an IEP is requesting remote learning during the pandemic due to the health risk posed to the student. How should the district respond?

A2.

Addendum 6 [https://portal.ct.gov/-/media/SDE/COVID-19/Addendum6-ReopenGuidance-for-Educating-Students-with-Disabilities.pdf] to the State Reopening Plan (Adapt, Advance, Achieve) [https://portal.ct.gov/-/media/SDE/COVID-19/ CTReopeningSchools.pdf] offers guidance to school districts for meeting the special education needs of students with serious health conditions during the pandemic.

The requirements under state law for the provision of homebound and hospitalized instruction for special education students remain unchanged.... Homebound and hospitalized instruction, pursuant to state law, should not be confused with instruction in the home, which is an articulated placement on the continuum of educational placements outlined in the IDEA....

In accordance with the IDEA, the child's PPT may determine that the child requires instruction in the home in order to receive FAPE, after considering in-district supports and other LRE considerations, evaluation information, and input from any private supports. In this case, the PPT would be making a placement decision pursuant to the IDEA, and not under RCSA § 10-76d-15 [homebound/hospitalized instruction].

Instruction in the home must be made available pursuant to the IDEA's obligation to provide a continuum of alternative placements. Such placements should be rare and made only after careful consideration of the child's individual needs and LRE considerations. Given the restrictive nature of this placement, it should be reviewed by local education officials on a regular basis to ensure that special education students are receiving FAPE and return to school as soon as possible."

In addition to the above guidance, it may be helpful to distinguish between situations in which students are "opting in" to voluntary remote instruction and situations in which the PPT recommends a change in placement for health and/or safety reasons.

Q3. Our school district is currently operating in the hybrid model with live streaming of instruction. Students assigned to the resource room "live stream" on alternating days. Parents told the principal that the live streaming resource room violates student privacy rights. Are they correct?

A3.

"Privacy rights" of students is an often-misunderstood concept. The federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99, (FERPA) governs the confidentiality of education records from disclosure to third persons without parental consent or an applicable exception (e.g., disclosure to a school official). Importantly, FERPA only applies to education records. FERPA defines education records as those that are directly related to a student and maintained by the school district. 34 C.F.R. § 99.3.

Live Streaming Lessons
"Live streaming" group instruction does not implicate FERPA because, generally, a class lesson does not directly relate to any specific student, even if a student is observable in the class, personally identifiable information about students from their education records are not disclosed, and no record is maintained. Moreover, under FERPA, while a parent can generally opt out of a district disclosing "directory information" such as a student's name or image in general district publications (e.g., honor roll lists, sports programs, newsletters, etc.), parents may not exercise such a right to prevent a school from disclosing a student's name, identifier or school email address in a class in which the student is enrolled. 34 C.F.R § 99.37(c)(1). Therefore, the appearance of a student's name on a Zoom or Google Meet participant list does not violate FERPA. In the wake of the school closure in the spring of 2020, the Student Privacy Policy Office within the U.S. Department of Education conducted a webinar and confirmed this position. U.S. Dep't of Educ., FERPA and Virtual Learning (March 30, 2020) [http://www.lawadmin.com/sg/gendocs/FERPAandVirtualLearning. pdf]

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.