In light of CDC recommendations regarding COVID-19, North Carolina Governor Cooper issued an executive order closing all public schools in North Carolina for two weeks, beginning Monday, March 16, 2020, through March 30, 2020. North Carolina State Board of Education and Department of Public Instruction is providing North Carolina-specific guidance regarding what local boards of education and school districts are to do while schools are not in session and when students return to school. Further, there is additional legislation pending and proposed that likely will clarify some of the employment, unemployment, and leave questions. We will distribute further information as more firm information comes to light.

In the meantime, North Carolina boards of education and districts should comply with U.S. Department of Education guidance. This alert will focus on the most pressing issues in light of Governor Cooper’s executive order.

Privacy

Student Privacy Under the Family Educational Rights and Privacy Act (FERPA)

• Personally identifiable student information remains confidential. Nonetheless, schools may decide to release personally identifiable information without prior written consent on a case-by-case basis in order to protect the student or another individual, but only to those authorized to receive it on a need-to-know basis, such as to public health departments, but not to the media.
  • General emergency preparedness does not meet the requirements allowing a school district to disclose personally identifiable information without prior written consent from the student’s parent or guardian. There must be a specific emergency.
  • If public health authorities determine that COVID-19 is a significant threat to students or other individuals in the community, then the U.S. Department of Education provides that this is an emergency allowing disclosure of personally identifiable information without prior written consent. In light of Governor Cooper’s executive order, schools likely may release personally identifiable information without prior written consent on a case-by-case basis in order to protect the student or another individual, but only to those authorized to receive it on a need-to-know basis. The general rule, though, remains that personally identifiable information is confidential.
  • Public health departments may be appropriate parties to disclose such personally identifiable information. The media is not.
• If a school decides to so disclose personally identifiable information without prior written consent, the school must record in the student’s education records the articulable and significant threat that formed the basis for the disclosure and the parties to whom the information was disclosed.
• As always, schools may release non-personally identifiable information without prior written consent, such as whether students or families at the specific school have tested positive for COVID-19, without revealing which students or families. North Carolina DPI has requested schools immediately notify them if a school learns of a confirmed COVID-19 case in the school.
  • Parents and other students generally are not appropriate parties to disclose personally identifiable information about specific students, however.
  • There may be the rare instance where a school may determine that parents of students are appropriate parties, for example, a student with COVID-19 is an athlete who has been in close proximity with other students. In such a situation, parents may need to be aware of this information in order to protect their own children or themselves. School officials should determine case-by-case to whom such information may be released. Only parents who need to know this information should receive it.

Employee Privacy Under Article 21A of Chapter 115C of the General Statutes

• Schools should not tell parents or students that a specific teacher or other school official has COVID-19.

Students with Disabilities

• IEP Teams are not required to meet in person when schools are closed. If meetings are absolutely needed, virtual communications (ensure meaningful parent participation) should be used. Maintaining student confidentiality during this time is still required, so virtual meetings are not recommended by DPI. Regardless of whether an IEP Team meeting is held, case managers should communicate frequently with parents regarding the child’s services. At this time, annual review timelines have not been changed but may be in the future.
• Educating students with disabilities:
  • If the public school is not providing education to students at all, then that public school is not required to provide services to students with disabilities during this time, including homebound services. No compensatory education is required for such time. DPI has also given guidance that the same is likely true for abbreviated school days—EC services may also be abbreviated by the same fraction.
  • However, as North Carolina moves to virtual instruction, public schools must ensure that students with disabilities receive the special education and related services under their IEP or 504 Plan to the greatest extent possible. Unless equally effective alternate access is provided, distance learning must be accessible to students with disabilities, meaning they must be able to obtain the same information and engage in the same interactions, with substantially the same ease of use, as their non-disabled peers. This is particularly important for students who use assistive technology: The online learning tools must be accessible to students with disabilities and compatible with the various forms of assistive technology that students might use to help them learn. Automated checkers and manual quality control should be used to determine whether distance-learning programs are accessible. Schools should pay particular attention to ensuring accessibility for students who are blind, have low vision, are deaf or hard-of-hearing, have mobility disabilities affecting their hand-coordination, have seizure disorders, and have cognitive disabilities.
    • OCR has released a brief seven-minute webinar regarding the legal obligations surrounding distance learning.
  • There may be exceptional circumstances rendering access impracticable or impossible. In these situations, keep a log of all services not provided and the dates on which the services should have been provided. Keep in mind that specially-designed instruction requires instruction, such as via video chat, not just specially-designed work packets.
    • If possible, IEP Teams should meet to discuss and document the service delivery during a prolonged school closure and the appropriateness of the revision.
    • When school resumes, the IEP and 504 Teams should meet to determine whether compensatory services are needed under applicable standards.
• Evaluation:
  • Evaluations that require a face-to-face assessment or observation should be delayed until school reopens.
  • Evaluations that do not require a face-to-face assessment or observation may take place while schools are closed, if the student’s parent or guardian consents.
  • The 90-day timeline will likely be adjusted, though it has not yet. Conduct all the evaluations you can without face-to-face interaction, and the face-to-face evaluations and observations as soon as school resumes.
• Placement:
  • When schools resume, if a child is absent for an extended period (more than ten consecutive school days) because the child is infected with COVID-19 or is at high risk of severe medical complications and therefore excluded from school, the IEP or 504 Team must meet to change the child’s placement and IEP, if needed. Specifically, the IEP or 504 Team must determine whether the child would benefit from homebound services. Homebound services should be provided through online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities to prevent transmission to the child’s homebound instructor(s). Such services must be accessible to the student considering the student’s disabilities and any assistive technology the student uses. If services are impossible or impracticable and the child does not receive services, the IEP and 504 Team should meet when schools resume to determine whether compensatory services are needed under applicable standards.
• Dispute resolution:
  • None of the dispute resolution timelines have been extended.
  • For state complaints, the complaint investigator will work with the LEA to determine the timeline for the specific complaint.
  • For mediations, state employees and contractors are prohibited from statewide travel, so mediations may only be held virtually, if possible for the parties. Otherwise, mediation dates will need to be rescheduled.
  • For due process hearings, the timelines have not been extended. OSEP is likely to provide further guidance. In the meantime, school districts should work closely with their attorneys to respond to these petitioners.
  • For corrective action, school districts should coordinate timelines in collaboration with the Corrective Action Coordinator.
• Financing:
  • Schools may use Part B funds to disseminate health and COVID-19 information specifically related to children with disabilities, to develop emergency plans for children with disabilities, or to provide other information to school personnel, parents, and staff related to the provision of special education during this public health emergency.

Graduation Requirements

• No guidance has been issued yet.

Using Remote Learning Opportunities

• Information about using North Carolina’s Remote Learning Resources may be found here.
• Many internet service providers are lowering the cost of internet services, or providing it free, during this time. Schools should provide this information to families if virtual instruction is a reality for their school district.
• Schools are using distance working and many have created forms and rules for distance working. Student confidentiality should be a priority with any electronic access to student data.

Communicating about COVID-19

• Schools must ensure effective communication with parents with disabilities and meaningful access to adults and students with limited English proficiency.

Assessments and Accountability

• It is unlikely for the U.S. Department of Education to grant statewide waivers of assessment requirements unless the schools remain closed during the entire testing window. However, North Carolina may decide to extend the testing window if such a situation were to occur.
• The U.S. Department of Education will consider a one-year waiver to the 95% assessment participation rate requirement and chronic absenteeism indicator if a school faces many absent students during the test window due to COVID-19.
• The March 17 and 31 ACT test dates will be rescheduled.
• The March 30-April 10 ACT WorkKeys test window has been postponed.
• March 20 Testing Updates Webinar has been postponed.
• The April 4 ACT test date has not yet been changed.

Child Nutrition

• North Carolina has received a waiver approving the service of meals in non-congregate settings and at school sites during school closures related to COVID-19.
• Schools can offer reimbursable meals to eligible children in households impacted by the school closures. The following methods may be used:
  • Parents or household members may pick up meals;
  • Volunteers may assist in meal distribution;
  • School districts may use transportation routes and school buses to distribute meals;
  • Law enforcement may distribute meals; and
  • Any other ways determined by local authorities.
• New legislation anticipated to be enacted on March 18 will allow any family with at least one child eligible for free or reduced-price lunch to receive a supplemental allotment, in accordance with a state plan approved by the USDA. North Carolina has not yet developed such a plan but we will continue to monitor this.

Bullying and Harassment

• Bullying and harassment based on national origin, race, and disability, as well as other protected classes, remain prohibited. Schools should pay particular attention to bullying and harassment students may face because of their Asian ancestry or because they have tested positive for, or are regarded as testing positive for, COVID-19.

Teacher Workdays

• March 16-30 are designated by default as “optional teacher workdays.”
• All staff remain in work status and are eligible to be paid.
• Mandatory teacher workdays or annual leave days may be scheduled during the COVID-19 school closure period.
• New federal legislation anticipated to be enacted on March 18 will require 10 days of paid leave be provided to employees with COVID-19 related absences.