New Federal Guidance on Schools’ Obligations to Ensure Students with High-Risk Medical Conditions Can Attend School Safely

Mar 29, 2022 | Accommodations, Covid-19, Federal Standards

In a recent letter to educators and parents, US Department of Education Secretary Cardona reiterates key legal rights afforded to students with disabilities to make sure they have equal access to in-person instruction and receive a free appropriate public education (FAPE) in the least restrictive environment (LRE) without risk to their health during the COVID-19 pandemic.

Secretary Cardona starts by urging schools to lead with equity and inclusion to ensure all students have access to in-person learning alongside their peers. He explains that the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act require schools to address the health needs of students with disabilities who are at increased risk of severe illness from COVID-19.

School districts must make reasonable modifications when necessary to ensure equal access for students with disabilities, absent a showing that the modifications would constitute a fundamental
alteration or undue administrative burden to the program. State or local laws, rules, regulations, or policies that improperly limit the ability of the school to address the school-related health needs of a student with a disability violate the IDEA and Section 504.

For some students with disabilities, the provision of FAPE in the LRE may require that the IEP or Section 504 plan include specific risk-reduction strategies. “A school could decide that some degree of masking of students and staff is necessary as a reasonable modification to ensure that students with disabilities have equal access to in-person learning without incurring an elevated risk of hospitalization or death due to COVID-19.” Sanitizing or avoiding shared use of personal and classroom items are other examples of potential accommodations.

More generally, the guidance encourages schools to continue to use layered prevention strategies, including vaccination, masking, testing and ventilation to help students remain safely in school.

Finally, Secretary Cardona emphasizes that students with disabilities are entitled to FAPE in the least restrictive environment, and he warns against serving students with disabilities in a separate setting from their peers (unless consistent with the student’s IEP). Instead, schools must take action to preserve safe in-person learning opportunities for students with disabilities who are at high risk of severe outcomes from COVID-19.