The New Jersey Department of Health issued COVID-19 guidance and education materials for child care and K-12 schools on March 04, 2020. Click here to review the material.
As our district clients are reviewing the material and making preparations for possible interruptions to normal operating procedures, we wanted to offer this update on a few legal implications you should consider carefully, including potential school closures, implementation of online learning, implementation of individualized education programs ("IEP"), and potential changes to board meetings.
Key Action Steps Prior to Closure:
State officials have advised that school districts should engage in preparedness planning, and submit plans for school closures to the executive county superintendent for approval. School districts should first prepare by reviewing and updating emergency operation plans. The CDC recommends that this be done in collaboration with local health departments. The focus should be on plans that include strategies to reduce the spread of infectious diseases that builds on everyday school policies and practices. The plan should also emphasize common-sense preventative actions for students and staff, like staying home when sick, covering coughs and sneezes properly, cleaning surfaces with disinfectant, and frequent hand washing. Districts should develop plans for cleaning and disinfecting schools during a closure. Additionally, during this period, the CDC has advised that attendance policies be relaxed to the extent possible, to allow staff and students to stay home when sick, including ceasing any application of policies that discourage the use of sick time, or reward perfect attendance.
In addition to these initial action steps, districts will have to prepare for potential closings. Districts should plan by identifying essential tasks and issues that must be included in a preparedness plan, establishing leadership teams and assigning tasks accordingly. These issues are discussed in further detail below.
What if your schools have to close for a period of time?
New Jersey law requires public school districts to provide 180 instructional days to students each school year. State officials have advised that in the event that the Department of Health issues a written directive for school closures, that time will count toward the required 180 days of instruction. However, given that students could experience an extended break in instruction, districts should still plan to provide home instruction through alternative learning. Districts should plan by reviewing the number of devices that can be sent home with students to determine whether online learning can be equitably provided. Additionally, the district must consider whether the entire student population has access to a computer and/or internet at home. This could be accomplished by sending home a survey to parents. In the event that the district cannot provide online home education services to all students, the district should plan to provide hard packets of lesson plans developed by teaching staff.
With respect to the impact on teaching staff, when schools are closed, (healthy) teachers are able to report while students are home. Teaching staff may report to develop lesson plans, or deliver online instruction via online lessons if the district is utilizing that technology.
It should be noted that in order for the closure to count toward the 180 instructional day requirement, it must occur by written directive of the New Jersey Department of Health. Should the board make the decision to close the school based on an outbreak, or to engage in proactive cleaning, those days would need to be made up. Should the board invoke its managerial prerogative to alter the school calendar to include make-up days either at the end of the school year before June 30th or by cancelling spring break, it should be considered that the impact of such changes is a matter that is subject to bargaining with the union.
Finally, districts must develop a plan to provide continuity of food services to those students who are eligible. As many students rely on school meals to meet their nutritional needs, districts should consult with their food services providers to determine a plan for providing students with those meals during a closure. Districts should also plan by putting together a list of those students who receive meals to determine how onerous a task it will be to provide those students meals during a school closure.
If a student, especially a special education student with an IEP, is asked to stay at home because ill or quarantined, what compliance issues need to be addressed?
Students who are medically quarantined maintain their rights to a free and appropriate public education. In the event that any individual student is sent home ill or quarantined, school districts must be prepared, with protocols in place, to offer those students educational services remotely. This may be done via conversion of face to face lessons to online lessons or hard copy packets, depending on the district and/or the student’s access to a device and internet at home. Thus, districts must proactively review protocols for online home instruction including communication protocols with parents and/or guardians during such time a student is unable to attend school.
Provision of education for students with disabilities is a distinct consideration when engaging in this planning. In the event of a student being quarantined or sent home, school districts remain responsible for the free appropriate public education (FAPE) of its students eligible for special education services with an individualized education program (IEP). Districts should plan for how they will continue to meet the requirements of the Individuals with Disabilities Education Act (IDEA). Districts should prepare for how they will implement the IEP’s for students who are kept home for periods of time. Districts must develop a protocol to communicate proactively with parents and guardians regarding IEP services prior to and during a student’s absence or quarantine. District child study teams should be prepared to review how a student’s absence will impact the delivery of special education and related services, and develop plans to accommodate that impact. This may include, home instruction via online educational services or hard copy lessons, or compensatory services. If a student receives special education and/or related services that cannot be delivered via remote learning strategies, the district should prepare a plan to offer compensatory services when the student returns to school. All of these accommodations to provide students with special education and related services under an IEP should be reviewed on a case-by-case basis, along with consistent communication with parents and/or guardians.
With respect to general education students who may be quarantined, districts should similarly be prepared to provide education services to those students. Districts should review their access to devices that the school has the ability of sending home with students, and students’ access to internet at home. If districts are able to guarantee that every student has access to a device and internet at home, general education students may be able to receive lesson plans provided by teachers via online education. Again, protocol should be developed for proactive communication with parents or guardians before and during a student’s absence or quarantine. In the event that student does not have access to internet access at home or the ability to receive services through an online education program, the district must review other accommodations or options to provide home instruction or compensatory services to that student. This may include hard copy instruction packets prepared by the teaching staff.
In anticipation of possibly needing to provide home instruction via online learning, districts should consult with IT staff to review technical issues that may interfere with the District’s ability to provide access to computers and internet. It would be prudent for districts to identify a task force specifically assigned to ensuring the school’s ability to provide online lessons to students who may be quarantined or sent home ill. Additionally, child study teams should be prepared to develop plans on an individual basis, while communicating with parents/guardians, to provide special education and related services to those students with IEPs.
What if board meetings have to be cancelled?
Decisions about cancelling a board meeting should be made through guidance from local, county, and state officials. If school board meetings have to be cancelled or postponed, districts should make every attempt to comply with Open Public Meeting Act (“OPMA”) notice requirements. OPMA does not specifically address the notice period required to cancel a meeting. A sign should be placed on the door of the previously established meeting location.
We are closely monitoring all information coming from state and local officials regarding the COVID-19. For all of your legal concerns relating to coronavirus preparations and potential disruptions, please contact the Public Schools and Education Department at Parker McCay.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.