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To Wear or Not to Wear Masks

To Wear or Not to Wear Masks

Does your child receive services under an IEP or 504 plan?  Do you want your child to receive his or her education in the school building?  

What is the rule on face coverings?

It’s back to school time!  For many, this fall looks much different than last fall.  The biggest question on every parents’ mind is whether to send their children to school if they have issues wearing a mask.

On July 1, 2020, Secretary of Health, Dr. Rachel Levine, issued an order that everyone must wear a face covering outside of their homes.  This has been interpreted by many to mean a mask.  However, in her order, she provides various items that are permitted as face coverings.  For more details on that, check out this website:

https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-19/Waivers/MaskWearing/Pages/default.aspx

Many parents believe their children can only learn effectively if they are in a school building with teachers and peers.   Many special education students need services that are very difficult to provide through a computer.   Some examples:

  • For a student with physical disabilities:  physical therapy and occupational therapy are particularly difficult over the web.   
  • A student on the autism spectrum with social interaction issues may need to work with a small group on those skills.  

However, those same students may have difficulty tolerating “a mask.”  Do those children have the right to attend school without “a mask”? 

This issue, like most special education issues, has two sides.   You want your child educated in a way that will help her the most.   You saw your child’s skills regress horribly in the spring.

Schools and other parents also have a point of view.   Teachers, staff, and other students all have a need to be safe from the spread of Covid-19.   From their standpoint, any child who doesn’t wear “a mask” puts them at risk.

Each side has a legitimate point of view.    Is there a way to get a child the special education services they need without endangering others?

We put the phrase “a mask” in quotes because that is not the rule.  The rule requires face coverings.  Those are different. For example, your child may not be able to wear a tight fitting mask, but may be able to wear a face shield.   The first thing you should do is go to the state website (link is above) and look at the definition of “face covering.”

The answer to this question may lie within Section 504, which provides that children with disabilities are entitled to an appropriate education.  If your child has a disability which makes your child unable to tolerate a face covering in the same way as a child without disabilities, your child is entitled to reasonable accommodations.  For example, some children with autism cannot tolerate anything on their head.  

If you can establish your child cannot tolerate a face covering, what is a reasonable accommodation?  That depends on your child.   Perhaps your child can tolerate a  face covering for 30 minutes at a time, and then needs a break.  In that case, it might be reasonable for you to ask your school to allow your child a 5 minute break every thirty minutes.  You might suggest that she be allowed to stand outside for 5 minutes, put the face covering back on, and come back into the building.  If your child cannot tolerate any kind of face covering for any period of time, perhaps the plan is to provide instruction outside as long as the weather allows. 

Every situation is unique. The point is that a child with a disability can assert his right to access his education, but you cannot make an unreasonable request for accommodations. There is a balance, and reasonable parents and administrators may be able to find that balance.

How do you prove your child’s disability limits his or her ability to tolerate a face covering

You may be able to show this based on past evaluations.   For a child with autism, there may be reports about your child’s sensitivity to being touched.  For a student with anxiety, there may be reports describing feelings of claustrophobia. For a student with asthma, there may be reports reflecting that your child has difficulty breathing.   In some cases, the school may acknowledge the problem, but question whether your child can be educated safely.   That’s where (borrowing a phrase from employment law) there should be an interactive process between you and the school.

If you can,  get a note from a healthcare provider about your child’s inability to tolerate a face covering.  We have heard that some hospital systems have advised their physicians not to write notes.   In that case, use what you already have.  Despite what the Pennsylvania Department of Education says, Federal Law does not allow a school to require a current note from a doctor that your child cannot tolerate a face covering.

How do you assert this right on behalf of your child? 

Write to the district asserting that your child needs to attend school and her disability prevents her from wearing a face covering at all times.    The school is obligated to respond and set up a meeting.  

As a parents’ attorney, I want to be sure that your child is provided with a free appropriate public education (FAPE) as provided in Section 504 and the Individuals with Disabilities Education Act (IDEA).  The purpose of these laws is to put a child with special needs on the same footing or playing field as those without special needs.  You must establish that your disabled child cannot wear a face covering at all times, and then there can be a discussion about reasonable accommodations.  Hopefully, you and your school can devise a plan that allows your child to be educated in school, but which provides for the safety of others in the school building. 

Please remember this:  Despite the pandemic, your child still has a right to a FAPE. If your child has not gotten the services he should have received, you have a right to compensatory education (make up services).  Your school district should be prepared to discuss this with you.   

Note:  if your child has not been declared eligible for special education services but you believe he is eligible, you can request that your school district make that determination now. 

If you have questions about any of these issues, or need help asserting your child’s right to special education services, feel free to contact the office for a consultation.  

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