Our team recently spoke to the parent of a child with a disability who asked: “What if I disagree with the other members of my child’s IEP team about whether my child should wear a mask, or the terms of the mask wearing?”

This is a great question. Not all students’ IEPs will need to address mask issues, but some may. This could be done in the body of the IEP following a meeting (and updated later when mask policies change), as an addendum, or as an amendment without a meeting.

Mask requirements for students vary widely from state to state. In New Jersey, consistent with guidance issued by the federal Centers for Disease Control (CDC) in August 2021, all students, employees and visitors inside the state’s schools must wear a mask. A copy of the Governor’s Executive Order can be read here: https://nj.gov/infobank/eo/056murphy/pdf/EO-251.pdf . The Order, which also requires masks on school buses, is effective indefinitely, until it is revoked.

While it’s impossible to generalize appropriate mask strategies for all students, this blog will touch on the current federal and state (New Jersey) guidance for masks in schools, and offer some basic tips for IEP teams.

What are the exceptions to the mask mandate?

Exceptions to the mask requirement remain unchanged from the 2020-2021 school year. As explained in the Governor’s Order, they include:

• “When doing so would inhibit the individual’s health, such as when the individual is exposed to

extreme heat indoors;

• When the individual has trouble breathing, is unconscious, incapacitated, or otherwise unable to

remove a face covering without assistance;

• When a student’s documented medical condition or disability, as reflected in an Individualized

Education Program (IEP) or Educational Plan pursuant to Section 504 of the Rehabilitation Act of

1973, precludes use of a face covering;

• When the individual is under two (2) years of age;

• When an individual is engaged in an activity that cannot be performed while wearing a mask,

such

as eating and drinking or playing an instrument that would be obstructed by the face covering;

• When the individual is engaged in high-intensity aerobic or anerobic activity;

• When a student is participating in high-intensity physical activities during a physical education

class

in a well-ventilated location and able to maintain a physical distance of six feet from all other

individuals; or

• When wearing a face covering creates an unsafe condition in which to operate equipment or

execute a task.”

How does a student obtain an exemption from the mask mandate?

Students seeking exemption due to a disability and/or medical need must submit, “written documentation from a medical professional. Self-attestations and parental attestations are not sufficient.” See https://covid19.nj.gov/faqs/nj-information/reopening-guidance-and-restrictions/are-schools-open-what-are-the-safety-requirements. Most school districts require that a specific form, provided by the District, be completed by a student’s treating physician. Any parent seeking a mask exemption may also need to consent to the District communicating with the student’s doctors regarding the request.

What if the student’s physician and a school physician or IEP team disagree about whether a student should be exempt from wearing a mask?

Neither the federal nor New Jersey guidance gives specific instructions on what to do when an IEP team does not agree on whether a student should be exempt from the mask mandate. Schools can be subjected to penalties and legal action for not enforcing the mask mandate. At the same time, civil rights laws require that a disabled student have equal access to education and individualized accommodations when needed. Under the IDEA, a student’s individualized needs must be met so the student receives an appropriate education and can make “meaningful progress.” Thus, a disagreement about masking could, regrettably, raise legal issues or dispute for a team.

Taking all the federal and state guidance into consideration, any mask exemption, individualized masking goals, accommodations or modifications should be addressed in a student’s Section 504 plan or IEP. If a team reaches impasse, parents or the school can utilize the options applicable for any IEP or Section 504 dispute: IEP facilitation, mediation, state or federal complaints, or seeking a due process hearing.

What can IEP teams do to collaborate?

First and foremost, convene a team meeting to discuss the student’s current needs and team input on managing mask-wearing.

Make sure that the student’s Section 504 plan or IEP contains the most up- to- date information about current academic, behavioral and social functioning. Concerns and new student needs should be addressed with individualized goals, accommodations or modifications.

Ensure that any behavior support plan has been updated to addresses any mask-related issues, including positive supports such as addressing sensory needs that might be exacerbated by mask wearing, or mask breaks at specific times. Discuss whether the student’s behavior has been impacted by mask wearing and how to address it.

If masks are impacting a student, numerous sources, including federal guidance from the Office for Civil Rights suggest:

“Consider having teachers and staff wear a clear or cloth mask with a clear panel when interacting with young students, students learning to read, or when interacting with people who rely on reading lips.”

“Use behavioral techniques (such as modeling and reinforcing desired behaviors and using picture schedules, timers, visual cues, and positive reinforcement) to help all students adjust to transitions or changes in routines.” https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html#anchor_1625662037558

“In a distanced classroom, teachers said students need more explicit language and cues to express how they feel.” https://www.edweek.org/leadership/teaching-the-new-covid-19-social-emotional-skills/2020/09

IEP teams should also keep in mind that some students with complex medical needs may need an alternative setting, such as instruction in the home, to minimize COVID-19 risks. The New Jersey Department of Education’s most recent guidance, The Road Forward, updated in August 2021, states: “Students with underlying health conditions that may make them more susceptible to or exacerbate the symptoms of COVID-19 may be eligible for home instruction per the process outlined at N.J.A.C. 6A:16-10.1 or as required by the student’s Individualized Education Plan (IEP) or 504 plan.” (page 13) https://www.nj.gov/education/roadforward/docs/HealthAndSafetyGuidanceSY2122.pdf

If you have questions about mask issues, the IEP process, or any other IDEA or Section 504 matters, our special education team is here to help! For a free phone conference, contact us at 856-642-6445, or submit the online inquiry form available at https://www.advo-kids.com/contact.

If you have a question about this blog, feel free to email me directly at [email protected]

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This material is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.