Learning in the Time of COVID-19:
The Impact on Blind Students of Current Guidance Issued by the US Department of Education Regarding Students with Disabilities

by Carlton Anne Cook Walker

From the Editor: Almost overnight the COVID-19 pandemic has upended life as we knew it. The closure of schools across the United States left teachers and parents scrambling to devise effective ways for students to continue learning at home. Parents, teachers, and advocates raised concerns that the rights of students with disabilities might be swept aside during the crisis. In this article Carlton Anne Cook Walker, president of the National Organization of Parents of Blind Children (NOPBC), reviews a series of directives issued by the US Department of Education regarding students with disabilities. She also explains what the National Federation of the Blind has done to ensure that the rights of blind students and other students with disabilities are not eroded during the COVID-19 crisis. Here is her most informative article:

When the COVID-19 pandemic gripped our nation in March, businesses and institutions across the country were ordered or strongly encouraged to close their doors. The closure orders have had a significant impact on public schools. Between March 16 and March 24, schools in all fifty states, the District of Columbia, and all five US territories (American Samoa, Guam, Puerto Rico, Northern Marianas, and US Virgin Islands) were under state orders or recommendations to shut down. While this time period encompassed the scheduled spring break for some schools, most had ten to thirteen weeks of the school year remaining when the shut-down orders were issued.

Guidance from the United States Department of Education

On March 12, 2020, even before state-ordered school closures took effect, the US Department of Education (USDOE) published guidelines specific to COVID-19-related school closures and the provision of special education services and FAPE (free appropriate public education) to students with disabilities. The March 12 document indicated that schools had no duty to provide education services to students with disabilities unless the school provided "educational opportunities" to students in regular education. In those cases, the USDOE recognized that schools must provide "equal access" to those educational opportunities and must provide FAPE to students with disabilities.

Ongoing controversy surrounds this USDOE position that schools only have duties to students with disabilities when they provide educational opportunities to nondisabled students. This has been the guidance of the USDOE in the Trump administration since at least September 2017. However, earlier guidance from the USDOE did not indicate that schools could avoid their responsibilities to students with disabilities by withholding educational opportunities from all students. The current guidance was not mentioned in 2014 (regarding educational services to students with disabilities during school closures related to the Ebola pandemic) or in 2012 (with regard to areas ravaged by Hurricane Sandy), both occurring under the Obama administration.

Scapegoating of Students with Disabilities

By advising school officials that they could avoid their legal obligations to students with disabilities, USDOE opened Pandora's box. As schools began to close their doors, many school officials declared that they would not offer any instruction to any students, and they blamed students with disabilities for this decision. These school officials opined that it was too difficult to provide services to students with disabilities via distance instruction. They shared with the general public their fears of an avalanche of litigation resulting from their failure to follow students' IEPs (individualized education plans) during the crisis.

These claims were not well founded. First, during in-person instruction, many schools routinely have violated provisions of students' IEPs on a regular basis. Braille materials are delayed, filled with errors, or nonexistent. Inaccessible materials, particularly educational software and websites, are used routinely. Far from being fearful of litigation, some school officials routinely dismiss parental complaints about IEP violations. They know how difficult, time-consuming, and expensive it is for parents to hold school officials accountable in administrative hearings and in court. If these recalcitrant school officials were truly afraid of IEP-related litigation, blind students would be receiving accessible materials on time, Braille instruction early and often, adequate and age-appropriate cane travel instruction and use, and access to necessary accessible assistive technology throughout school and at home.

In fact, for most blind students the transition from in-person instruction to at-home distance instruction should be an easy one—at least if the district has been following federal special education law by providing accessible materials and assistive technology for the student to use at home. Moreover, for years, quality disability-related education services (such as physical therapy, occupational therapy, and speech therapy) and blindness-specific instruction (such as Braille instruction, training in the use of accessible technology, and cane-travel instruction) frequently have been provided through distance instruction. Claims that these services cannot be provided remotely are either a result of ignorance or of intentional misdirection.

Blaming of disabled students for the lack of instructional services to all students created a backlash against students with disabilities. Across the country, parents of nondisabled students began to complain that their children were being left behind because of "those children." Even some parents of children with disabilities, including parents of blind children and of blind children with additional disabilities, joined the utilitarian chorus: "So long as the majority of students are being served, it's reasonable to ignore the education of disabled students."

On March 16, twenty-four states, the District of Columbia, and Puerto Rico announced school closures. On the same day, the USDOE published another document addressing new COVID-19-related concerns affecting schools. Notably, and possibly a result of the growing backlash against disabled students, the USDOE explicitly addressed the affirmative duty of schools to "take appropriate action to investigate or otherwise determine what occurred when responding to reports of bullying and harassment of students based on actual or perceived disability, race, color, or national origin." This document also reiterated the March 12 guidance regarding duties to disabled students. It noted that IEP team meetings need not be held in person and that evaluations not performed in-person could continue during school closures.

The next day, on March 17, the USDOE's Office of Civil Rights (OCR) put out a YouTube video and a press release confirming schools' legal obligations to disabled students and pointing out the feasibility of meeting those obligations. "Online learning tools must be accessible to students with disabilities," the USDOE stated, "and they must be compatible with the various forms of assistive technology that students might use to help them learn." Assistant Secretary of Education for Civil Rights Kenneth L. Marcus also advised, "Students with disabilities must have access to educational technology utilized by schools, and OCR will continue to work to ensure that no student is excluded from utilizing these important tools."

Good Guidance, Bad Example

By March 20, nineteen more states closed their schools, bringing the total number of states with mandatory closures to forty-three. The next day, on Saturday, March 21, the USDOE issued another document, apparently seeking to spur school district officials to meet their legal obligations to students. This new USDOE guidance repeated earlier guidance and directly addressed concerns schools had put forth regarding special education services. While it acknowledged that some services, including "hands-on physical therapy, occupational therapy, or tactile sign language educational services" cannot be provided through distance education, it reminded school officials that many special education services can be offered using distance education.

Unfortunately, it appears that this guidance was hastily written. It offered an example wherein the USDOE advised that it would be permissible for a teacher to provide written educational materials to sighted students and offer only audio access to a blind student. However, long-standing federal law has not been changed due to the COVID-19 crisis, and a closer look at the language used in the guidance makes it clear that this is a very narrow example that cannot be applied to most blind students. The blind student example in the new USDOE guidance reads as follows: "For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud."

Please note important conditions contained in this example. For the read-aloud to be permissible, the teacher would need to be unable to "distribute a document accessible to" the blind student. This should be difficult to prove because, presumably, the school provided Braille or accessible electronic documents before the school closures. Braille production does not require hands-on interaction with a student; it only requires the embossing of educational materials that should be no more difficult than the printing of those same educational materials. Alternatively, an accessible electronic file could be used by the Braille reader with a school-provided refreshable Braille display, or it could be embossed at home on a school-provided embosser.

Fortunately, the USDOE example notes that the teacher may read the materials aloud or provide the student with an audio recording only "if appropriate for the student." If the student needs to interact with the text (as all of the nondisabled students get to do), audio alone would likely not be appropriate for the student. If nondisabled students are provided with text to access the assignment, schools need to prove why blind students do not need the same access to text.

The March 21 USDOE "blind student" verbiage evidenced a lack of understanding about accessible education options for blind students, especially with regard to distance learning. The example of read-alouds was behind the times given present technology. It is unfortunate that the USDOE chose the example they used, but it certainly does not mean that schools can shrug off their responsibilities under federal law to every blind student by simply providing an audio version of materials provided to nondisabled students in readable text.

COVID-19 School Closures Do Not Alter Federal Law

USDOE guidance made clear that schools must provide all IEP services, including special accommodations and modifications (SAMs), unless they cannot do so. Schools should work with parents to find ways to deliver IEP SAMs, beginning with methods used before school closure and methods long accepted under federal law. These methods may include the drop-off of materials, distance instruction, and provision of accessible assistive technology at home. These methods can be incorporated into the current IEP as an amendment for which no formal meeting needs to be held. If the school and parent cannot agree, the IEP team should meet (using distance technology) to discuss providing IEP SAMs during school closure.

As noted above, IEP and evaluation meetings need not be held in person, and there are no provisions for timeline extensions due to school closures. These matters will likely be very case-specific, but schools that fail to hold timely IEP meetings during the COVID-19 pandemic may find themselves out of compliance when schools, enforcement agencies, and courts reopen.

Congress Invites Changes to Federal Law

The USDOE has taken a clear and unequivocal stance that COVID-19 has not changed federal law and that students with disabilities still have rights to FAPE. However, some interest groups have asked Congress to change federal law and strip disabled students of their rights. In fact, drafts of the landmark CARES Act (Coronavirus Aid, Relief, and Economic Security) contained a provision to allow USDOE Secretary Betsy DeVos to grant wide-ranging waivers to states that would cause disabled students to lose significant substantive and procedural rights and protections under the Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973 for a minimum of twelve months. The National Federation of the Blind (NFB) and other disability-rights organizations jumped into action. Members from across the nation asked their federal representatives in the House and Senate to vote against any law that would take away students' education and civil rights.

Our advocacy worked—to a point. The final CARES Act contained a section titled, "National Emergency Education Waivers." In part, this section directed Secretary DeVos to submit within thirty days a report recommending never-before-available waivers of the IDEA, the Rehabilitation Act, and two other federal statutes related to education and civil rights of disabled individuals during the COVID-19 emergency. Congress placed no restrictions on the type or duration of the waivers Secretary DeVos could recommend, meaning that students with disabilities might lose all of the education and civil rights protections that have been available to them for more than three decades.

Once again, the NFB and other disability advocacy organizations mobilized. We urged our members to continue communications with their congressional representatives, but we did not stop there. On April 10 our President, Mark A. Riccobono, sent a letter to Secretary DeVos, urging her to recommend no waivers of these important laws. President Riccobono's letter emphasized three important points: (1) Waivers of these laws would not "meet the needs of students" as required by the CARES Act and would, instead, keep student needs from being met. (2) The USDOE had provided the same school closure guidance to schools since September 2017, so schools should have been prepared to follow federal law during any unforeseen school closures. The letter noted, "While the COVID-19 emergency is widespread, its impact on education at the local level is far less than in previous state, national, and international catastrophes. LEAs [local education agencies] impacted by COVID-19 have far more resources than those impacted by hurricanes and other natural disasters." (3) Some schools and organizations such as the NFB successfully have provided accessible instruction and resources despite school closures, providing evidence that schools can follow the law, as written, without waivers of education and civil rights for students with disabilities, including blind students. Here is President Riccobono’s letter:

April 10, 2020

The Honorable Betsy DeVos Secretary
United States Department of Education 400 Maryland Avenue, SW
Washington, DC 20202

RE: CARES Act Education Waivers

Dear Madam Secretary:

Section 3511(d)(4) of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) requires that you submit a report to Congress “with recommendations on any additional waivers under the Individuals with Disabilities Education Act (20 U.S.C. 1401 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), and the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.).” As President of the National Federation of the Blind, the largest organization of blind people in the United States, I urge you to refrain from recommending any additional waivers under the Individuals with Disabilities Education Act or under the Rehabilitation Act of 1973. No additional waivers are necessary to meet the needs of students during the emergency, and none should be recommended to Congress.

Emergencies have long been part of the educational landscape. In recent years, several states and local educational agencies (LEAs) across the country have faced emergency situations, including hurricanes, floods, and other natural disasters, requiring the long-term closure of schools. These emergencies often left entire communities without internet, power, or shelter.

Despite these severe situations, Congress has never sought to allow the Secretary to waive provisions of the Individuals with Disabilities Education Act (IDEA) through any legislation addressing national crises. While the COVID-19 emergency is widespread, its impact on education at the local level is far less than previous state, national, and international catastrophes. LEAs impacted by COVID-19 have far more resources than those impacted by hurricanes and other natural disasters.

Moreover, the Department of Education (“the Department”) has provided guidance to LEAs for years regarding their responsibilities to provide their students with disabilities free appropriate public education (FAPE) during emergency situations, including school closures. States and LEAs across the nation received notice of their disaster-related responsibilities in US Department of Education guidance issued in September 2017. The Department reissued that guidance in September 2018, and the COVID-19 outbreak guidance issued in March 2020 remains identical.¹ Certainly more than two years is adequate. Many LEAs across the nation are following the Department’s guidance and providing FAPE to their students with disabilities, including blind students.² They utilize accessible technological solutions for distance learning, and they continue to provide blind students the materials and tools they need at home to learn.³ Given that many LEAs are already meeting their long-known responsibilities without waivers, it is clear that waivers are not “necessary” to allow “States and local educational agencies to meet the needs of students during this national emergency.”⁴

Some states and LEAs are focusing their efforts on planning their waiver requests in anticipation of your recommendations to Congress, as opposed to meeting their legal obligations to provide FAPE. Blind students, and other students with disabilities, should not be stripped of their rights to FAPE simply because some LEAs have not done their due diligence for years and now seek to further avoid their legal obligations. Our nation benefits when these students receive the FAPE they need to be ready for post-secondary education, post-secondary employment, and living independently. Failing LEAs should not be rewarded for their multiple and long-term failures to comply with IDEA, Section 504, and Title II of the Americans with Disabilities Act.

LEAs may use IDEA Part B funds to mitigate the damage caused by their lack of preparedness. Additionally, the CARES Act also provides a tremendous amount of financial support for states and LEAs in this time of national emergency. Section 18003 provides $13,229,265,000 dedicated to elementary and secondary schools, and Section 18003(d) emphasizes the use of these funds for underserved student populations, including students with disabilities.⁵ With this massive appropriation, even unprepared LEAs can meet their legal obligations to the students they serve. Waivers that will allow a further delay of educational services are in no way necessary.

The National Federation of the Blind and other organizations have stepped up to provide educational opportunities for blind students and their families during the COVID-19 emergency. Our Distance Education Resources provide interactive online lessons, how-to videos, and written lesson ideas to meet the educational needs of blind students. LEAs receiving federal money can do the same.

Without the unnecessary crutch of waivers, LEAs can focus on meeting their students’ needs. With the additional funds from CARES, LEAs can implement or enhance systems to deliver high-quality and equitable educational opportunities to their blind students and other students with disabilities. As a father of two blind daughters, I urge you to report to Congress that no waivers are necessary and to encourage underperforming LEAs to reach out to, and learn from, successful LEAs and organizations like the National Federation of the Blind.

Sincerely,
Mark A. Riccobono, President
National Federation of the Blind

Advocacy Works!

Many advocacy groups urged Secretary DeVos to grant only limited waivers, but others believed that broad waivers would be granted. On April 27, Secretary DeVos issued her report, and she rejected calls for waivers of substantive rights of students with disabilities. Her report noted, "Schools can, and must, provide education to all students, including children with disabilities." Further, the report stated, "The needs and best interests of the individual student, not any system, should guide decisions and expenditures," and "Services typically provided in person may now need to be provided through alternative methods, requiring creative and innovative approaches."

The press release accompanying the secretary's report presented the same focus on student need found in President Riccobono's letter: “ . . .there is no reason for Congress to waive any provision designed to keep students learning. With ingenuity, innovation, and grit, I know this nation's educators and schools can continue to faithfully educate every one of their students."

Of the waivers Secretary DeVos did recommend, most dealt with allowing agencies to have more time to spend funds so that they will not lose them, granting extended time to complete service obligations tied to scholarship funding, and other administrative functions unrelated to direct services. One of the waivers Secretary DeVos recommended provides additional protection for disabled children who receive early intervention services. It allows those services to continue past the child's third birthday until school-age services begin. Another waiver allows vocational rehabilitation agencies "to replace expired or spoiled food products at Randolph-Sheppard vending sites required to close due to COVID-19, thus allowing facilities to reopen more efficiently following the COVID-19 pandemic." Each of these waivers increases the rights of disabled individuals rather than limiting them, as some groups had requested.

The National Federation of the Blind Continues to Support Students and Families

The National Federation of the Blind blog, "Don't Be a Barrier: Be Accessible NOW," highlights existing and new NFB resources that set forth legal protections for blind students of all ages. On March 16, a blog post requested participation in the NFB Education Technology Survey designed to gather data for advocacy purposes. It encouraged parents and teachers to report accessibility-related concerns by emailing [email protected].

Many schools were not adequately prepared for a long-term closure. Administrators and educators struggled to determine what, if any, education would be provided to students. Despite the guidance from the US Department of Education, many states and local school districts were reluctant to embrace their mission of education. Sadly, many blind students and their families were left without instruction, accessible materials, or assistive technology.

As Dr. Kenneth Jernigan often said, "If a blind person has proper training and opportunity, blindness can be reduced to a physical nuisance." Yet, during the COVID-19 crisis, too many blind children across the country were not receiving any education from their schools. On March 24, the NFB launched a Distance Learning Resources initiative that provides blind children and their families with fun, accessible activities, interactive Zoom lessons, Braille book readings, and how-to videos in which blind adults demonstrate nonvisual methods of performing tasks around the house.

On May 4, one week after Secretary Devos’ report, NFB President Mark A. Riccobono sent a letter to the Chairs and Ranking Members of the US Senate and US House Committees overseeing education, urging Congress to accept the very limited waivers Betsy DeVos recommended and to expand two of them in order to, “improve educational opportunities during the COVID-19 pandemic and [to] protect students with disabilities whose needed services were adversely impacted by unplanned school closures” and “help Randolph-Sheppard entrepreneurs reopen their business, return to work, and employ their workforce.” Here is his letter:

May 4, 2020
 
The Honorable Lamar Alexander
Chairman
Committee on Health, Education, Labor, and Pensions
United States Senate
455 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Robert “Bobby” Scott
Chairman
Committee on Education and Labor
United States House of Representatives
1201 Longworth House Office Building
Washington, DC 20515
 
The Honorable Patty Murray
Ranking Member
Committee on Health, Education, Labor, and Pensions
United States Senate
154 Russell Senate Office Building
Washington, DC 20510

The Honorable Virginia Foxx
Ranking Member
Committee on Education and Labor
United States House of Representatives
2462 Rayburn House Office Building
Washington, DC 20515
 
Dear Chairman Alexander, Chairman Scott, Ranking Member Murray, and Ranking Member Foxx:

I write to you regarding Secretary DeVos’s report required under Section 3511(d)(4) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The National Federation of the Blind is pleased that no objectionable waivers undermining the educational rights of blind students were included in the report. This correspondence highlights two of the Department of Education’s recommended waivers, along with two additional legislative proposals to Congress that would improve the lives of blind Americans and students with disabilities. As President of the largest organization of blind people in the United States, I urge Congress to incorporate these four waivers in upcoming coronavirus legislation.

We commend Secretary DeVos for including “explicit authorization for Part C services to continue during the delayed Part B transition evaluation timeline,” so that children with disabilities are eligible for Part C services until a determination is made for Part B services. Prior to this national crisis, toddlers with disabilities would often go without services for weeks after their third birthday simply because their evaluation, determination of eligibility, and overall transition to Part B services were not conducted in a timely manner. As such, the National Federation of the Blind recommends the granting of this waiver, so that toddlers with disabilities may continue to receive Part C services during these unprecedented times.

We also recognize that Part B services have been impacted by this national crisis, and students with disabilities who are close to exiting services, due to age or high school graduation, need those missing services so that they will be prepared for post-secondary education, post-secondary employment, and living independently. We urge Congress to extend Part B eligibility for services for twelve months after a local education agency’s resumption of in-person instruction or eighteen months after the end of the child’s IEP eligibility (based on age or graduation from secondary school), whichever occurs later by granting transition waivers to all students within twelve months of exiting IEPs: Section 612(a)(1)(A) of the IDEA (20 U.S.C. § 1412(a)(1)(A)).

We agree with the Secretary of Education’s proposed waiver authority under the Rehabilitation Act, which allows the use of FY2020 vocational rehabilitation funds to replace spoiled and expired supplies for Randolph-Sheppard businesses following the COVID-19 emergency. This will aid blind vendors in reopening Randolph-Sheppard facilities after the pandemic.

In addition to the Secretary’s recommendation above, we urge Congress to grant a waiver to the Rehabilitation Act allowing states to spend rehabilitation funds to ensure a fair minimum return for all Randolph-Sheppard vendors. We propose the below language, which states, “State agencies designated by 20 U.S.C. 107(a)(5) may use funds appropriated pursuant to 29 U.S.C. 701 Sec. 110 to assure a fair minimum return to blind vendors operating vending facilities on federal and other properties for a period of time not to exceed September 30, 2021.” This will ensure that blind merchants are provided a fair and equal opportunity to strengthen and maintain their businesses long after this unique national emergency.

These waivers will improve educational opportunities during the COVID-19 pandemic and will protect students with disabilities whose needed services were adversely impacted by unplanned school closures. They will also help Randolph-Sheppard entrepreneurs reopen their business, return to work, and employ their workforce. We thank you for your thoughtful consideration and are happy to provide any additional clarification should it be necessary.

Sincerely,
Mark A. Riccobono, President
National Federation of the Blind

cc: The Honorable Betsy DeVos, Secretary, United States Department of Education

Next Steps

While the USDOE has declined to request unnecessary waivers of the IDEA or the Rehabilitation Act of 1973, some groups are still clamoring for Congress to strip disabled students of their rights. If their efforts are successful, state departments of education around the country may request and receive waivers that will turn back the clock. Such waivers would enact into law substandard educational opportunities for students with disabilities.

We must urge our congressional representatives, our state departments of education, and our local school districts to focus on learning for all students. As President Riccobono noted, "Without the unnecessary crutch of waivers, LEAs can focus on meeting their students' needs. Underperforming LEAs [can] reach out to, and learn from, successful LEAs and organizations like the National Federation of the Blind."

-------------

1. “If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and 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 developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).”

From: “Non Regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants Impacted by Federally Declared Disasters” (September 2017, https://safesupportivelearning.ed.gov/sites/default/files/disaster-guidance.pdf), “Non Regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants Impacted by Federally Declared Disasters” (September 2018, https://www2.ed.gov/policy/gen/guid/disasters/disaster-guidance.pdf), and “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak” (March 12, 2020, https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf).

2. Due to the long-term nationwide shortage of professionals in blindness education, many blind students have been receiving services using distance technology tools for years. School closures should have no impact on blind students receiving education in this manner.

3. Since August 2006, IDEA regulations have required IEP teams to provide assistive technology at the student’s home if access is necessary for the student to receive FAPE.” 34 C.F.R. section 300.105(b).

4. Coronavirus Aid, Relief, and Economic Security Act, Section 3511(d)(4).

5. This grant of more than $13.2 billion represents an almost doubling of the Fiscal Year 2020 final federal IDEA Programs appropriation of $13.86 billion and more than a fifty percent increase of the $26.1 billion federal appropriate for Elementary & Secondary Education. From: http://www.nea.org/assets/docs/Final-FY20-Appropriations-for-Education-Related-Discretionary-Programs-with-State-Tables.pdf