Students with Disabilities Highlighted in CDC’s “Operational Strategy for K-12 Schools through Phased Mitigation,” and USDOE's “COVID-19 Handbook Volume 1: Strategies for Safely Reopening Elementary and Secondary Schools”

02.15.2021

On February 12, 2021, the Centers for Disease Control and Prevention (“CDC”) released “Operational Strategy for K-12 Schools through Phased Mitigation” (“Operational Strategy”), and the United States Department of Education (“USDOE”) released “Handbook Volume 1: Strategies for Safely Reopening Elementary and Secondary Schools.”  (“Handbook”).  The federal agencies largely offer the same guidance, although the Handbook includes some details not found in the Operational Strategy.  Our office has published alerts that comprehensively discuss the agencies’ guidances. This summary highlights suggestions and recommendations particular to serving and protecting students with disabilities.

The guidances advocate implementation of five main mitigation strategies:  1) universal and correct use of face coverings; 2) physical distancing; 3) handwashing and respiratory etiquette; 4) cleaning and maintaining healthy facilities, including ventilation improvements; and 5) contact tracing in combination with isolation and quarantine.  The guidances emphasize education and modeling of, and adherence to, these strategies by all members of school communities.  Visitors to schools are discouraged, but itinerant related-service providers should be accommodated.  The guidances also recommend active and specific communication about reopening plans to underserved families, including those of students with disabilities.  This outreach should include accessible notifications to parents of students with disabilities when school-community members become infected.

The agencies point out that disabled students who are unable to wear a face covering might still safely attend school if other mitigation strategies are implemented.  The guidances acknowledge that in some circumstances a student’s program might need to be provided virtually (and that quarantined students must be served in accordance with applicable laws).  The guidances encourage educational staff members to wear masks with clear panels if they work with students who lipread or must see mouth and facial movements for effective communication and instruction (e.g., deaf and/or hard-of-hearing students).  Face shields alone are discouraged as not sufficiently protective.

The Handbook recommends that schools carefully consider appropriate responses to students with disabilities who struggle with face coverings.  For example, if a student’s difficulty wearing a mask is “related to an emotional disturbance or sensory disability,” the school’s response should be different from a response for a nondisabled student.  The Handbook suggests that appropriate responses should include protocols for taking a face-covering break, such as allowing temporary mask removal in a well-ventilated space away from peers.

The Handbook recognizes that physical distancing may be difficult for some students because of their disabilities, including those with vision impairments, others who require tactile interpreting, and some who have intensive needs.  The Handbook states that these students must be appropriately served in compliance with the law. 

The guidances discuss cohorting strategies, targeting inclusion of historically underserved students, including students with disabilities.  Cohorting might provide schools the ability to prioritize in-person instruction for students who require special education and related services directly provided in school environments.  The Handbook cautions that, while schools might partner with parents and community volunteers to ensure adult supervision of cohorts, this support does not take the place of qualified professional educators and paraeducators. 

The Handbook discusses safety measures for transportation.  Schools are encouraged to consider appropriate accommodations for students with disabilities, including the reservation and special cleaning of specific seats.  Notably, the Handbook encourages all families to drive or walk their children to school, if possible, to reduce the number of students on buses.  Families could be reimbursed for reasonable and necessary costs associated with transportation.

The Handbook discusses accommodations for extracurricular sports, including amplification equipment for coaches or instructors when delivering instructions.  We caution that schools should not immediately assume that student-athletes with an individualized education program or Section 504 plan are entitled to accommodations for extracurricular activities as part of FAPE.  Rather, these student-athletes might be entitled to accommodations as a matter of equal access to the activity.  And, students who are not eligible for an IEP or Section 504 plan might still be entitled to accommodations for participation in extracurricular activities, to avoid disability-based discrimination.

What Does This Mean:

The CDC’s and USDOE’s guidances provide some new strategies for the safe reopening of schools.  Schools should take care to review their safety plans and, in particular, document implementation of safety strategies.

As the Handbook’s full title suggests, it is intended as the first volume in a series, which will include such topics as “[m]eeting the social, emotional, mental health, and academic needs of students,” and “[a]ddressing lost instructional time for students.”

If you have any questions regarding this Alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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