Legal Perspectives

Consideration: Guidance on Hour/Day Requirements

• PDE will not penalize districts/schools that fail to meet the minimum 180-day/hours (990/900/450) requirements as a result of COVID-19 response efforts.

• PDE will provide a simplified form that districts/schools can use to report any shortfall in days or hours.

Consideration: Guidance on Continuity of Education

• Schools are not required to provide any type of instruction during the closure of schools due to COVID-19 response efforts.

  • PDE recognizes that the rapidly evolving pandemic may make it impossible to implement Continuity of Education plans.

  • Although not required, many schools have plans, or are creating plans, to provide Continuity of Education.

  • Educational services may continue in a variety of ways, including:

    • Flexible Instructional Days for districts/schools with approved plans

    • Online/digital learning opportunities

    • Non-digital learning opportunities (e.g., materials sent home with students)

  • The decision to employ one or more of the above methods of Continuity of Education is to be made at the local level based on feasibility, availability of resources, access and equity considerations, and the Commonwealth’s social distancing recommendations.

  • Whatever decision is made, LEAs must ensure full access to learning for all students, with particular attention to free appropriate public education (FAPE) for students with disabilities and English as a second language (ESL) services for English Learners.

  • Adhering to FAPE during the period of a school closure:

    • When a school is closed because of COVID-19 response efforts and does not provide any educational services to the general student population, the school is not required to provide services to students with disabilities during that closure period. Once school resumes, the district/school must provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or Section 504 plan.

    • When a school is closed because of COVID-19 response efforts and does provide educational services to the general student population, the school must ensure that students with disabilities have equal access to the same opportunities, including the provision of FAPE that is reasonable and appropriate for the student in this current circumstance. In addition, districts/schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP or Section 504 plan. Once school resumes, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost during the closure within a reasonable timeframe.

**For more detailed guidance relating to special education processes, timelines, and requirements, please refer to the Special Education Guidance Document.

Consideration: Guidance on Transportation for Non-Public Students

• In accordance with the social distancing order from the Governor's Office, schools are not required to provide nonpublic school transportation during the entirety of the closure.

Consideration: Guidance on State Assessments

• As of March 19, Pennsylvania Department of Education cancelled all PSSA testing and Keystone exams for the remainder of the 2019-2020 school year, This includes the Pennsylvania Alternative System of Assessment (PASA).

Consideration: Guidance on Social Distancing

What considerations need to be taken into account to comply with social distancing realities and school closures?

• According to the Centers for Disease Control and Prevention (2020), the length (duration), geographic scope, and public health objective of school closures relating to COVID-19 may be reassessed and changed as the local outbreak situation evolves. At this time, the recommendation is for at least 14 days. This recommendation may be updated as the situation evolves.

• In the event of a school dismissal, schools should cancel extracurricular group activities and large events, such as performances, field trips, and sporting events. This may require close coordination with other partners and organizations (e.g., high school athletic associations, music associations, community groups). In addition, school districts should discourage students and staff from gathering or socializing anywhere, like at a friend’s house, a favorite restaurant, or the local shopping mall.

• During the period of school closure, districts should look to ensure continuity of meal programs for students. Additionally, schools could consider ways to distribute food to students who receive free or reduced cost meals. For more information, school districts should check with the US Department of Agriculture – Food and Nutrition Service for additional information: https://www.fns.usda.gov/disaster/USDAfoodsPandemicSchools.

• In the event that there is community spread of COVID-19, districts should design strategies to avoid distribution in settings where people might gather in a group or crowd and consider options such as “grab-and-go” bagged lunches or meal delivery.

• Any activities that are provided in this guidance document that include the use of public resources should be accessed if social distancing opportunities are feasible. These activities should be done in the home or virtually as opportunities allow or present themselves.

Consideration: Returning to School

• With regard to returning to normal school activities and schedules, the CDC is currently working on additional guidance to help schools determine when and how to re-open their buildings to students. If you need immediate assistance with this, consult local health officials for guidance.

Consideration: COVID-19 and Issues Relating to Family Education Rights and Privacy Act (FERPA)

• • School districts should consider the extent of information that can be disclosed from a student’s educational records during this pandemic. Per the Federal Educational Rights and Privacy Act (FERPA), a parent or eligible student must provide written consent before an educational agency can disclose personally identifiable information (PII) from education records unless one of the exceptions to consent is applicable. See 20 U.S.C. §§ 1232g(b)(1) and (b)(2); 34 C.F.R. §§ 99.30 and 99.31.

• • For more detailed guidance for working with public health officials to manage COVID-19-related issues while protecting the privacy of students' education records, school districts should visit the U.S. Department of Education’s COVID-19 resource: https://studentprivacy.ed.gov/resources/ferpa-and-coronavirus-disease-2019-covid-19

• Health or Safety Emergency Exception

• • FERPA permits educational agencies and institutions to disclose, without prior written consent, PII from student education records to appropriate parties in connection with an emergency, if knowledge of that information is necessary to protect the health or safety of a student or other individuals. 20 U.S.C. § 1232g(b)(1)(I); 34 C.F.R. §§ 99.31(a)(10) and 99.36. This exception is limited to the period of the emergency and to disclosing PII to “appropriate parties” providing specific medical or safety attention, such as law enforcement officials, public health officials, trained medical personnel, and parents (including parents of an eligible student). This guidance is clear that the media does not qualify as an appropriate party under this exception.

  • Educational agencies are still required to complete a case-by-case determination whether to disclose PII, which should include the totality of the emergency. If the educational agency concludes that there is an “articulable and significant threat to the health or safety of the student or another individual” and PII from education records is needed, the PII may be disclosed without consent.

  • However, the requirement to record disclosures of PII submitted to the public health department or other outside parties still remains, even in the context of a health or safety emergency. School districts are mandated to: (1) record the articulable and significant threat to the health or safety of a student or other individual that formed the basis for the disclosure and (2) the parties to whom the agency or institution disclosed the information. 34 C.F.R. § 99.32(a)(5).

• Absent Student Disclosures

• • The Department of Education’s guidance further addresses the ability of educational agencies to disclose information about student absences due to COVID-19. Of particular importance is the question concerning non-consensual disclosures to public health departments:

“May educational agencies and institutions disclose without consent the names, addresses, and phone numbers of absent students to the public health department so that the health department may contact their parents in order to assess the students’ illnesses?”

• • • • FERPA permits educational agencies and institutions to non-consensually disclose PII from education records in the form of contact information of absent students to the public health department in specific circumstances, such as in connection with a health or safety emergency (20 U.S.C. § 1232g(b)(1)(I); 34 C.F.R. §§ 99.31(a)(10) and 99.36) or pursuant to other applicable exceptions.

• • • • While FERPA generally permits the nonconsensual disclosure of properly designated “directory information” (e.g., name, address, phone number, grade level) when parents or eligible students have not opted out of such a disclosure, it does not permit an educational agency or institution to disclose “directory information” on students that is linked to non-directory information (such as information regarding a student’s illness). For instance, an educational agency or institution may not disclose directory information on all students who are receiving special education services or those who have been absent from school.

• • • For this reason, unless a specific FERPA exception applies, educational agencies and institutions should prepare consent forms for parents and eligible students to sign to allow the potential sharing of this type of information if they create, or intend to create, a tracking or monitoring system to identify an outbreak before an emergency is recognized.

• • • School districts may want to review their FERPA consent forms and consult legal counsel to find methods of appropriately documenting the “articulable and significant threat” determination required by the health or safety emergency exception to FERPA.

References

Pennsylvania Department of Education. (2020). Answers to frequently asked questions (COVID-19). Retrieved from https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-19/Pages/AnswersToFAQs.aspx

Centers for Disease Control. (2020, March). COVID-19: K-12 schools and childcare programs. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools-faq.html

U. S. Department of Education. FERPA and the Coronavirus disease 2019 (COVID-19). (2020, March). Retrieved from https://studentprivacy.ed.gov/resources/ferpa-and-coronavirus-disease-2019-covid-19

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