ED Issues Guidance on FAPE During COVID-19
Over the weekend, the U.S. Department of Education issued
important guidance on how to comply with IDEA during COVID-19. This
guidance was in response to legitimate concerns voiced by AASA members that
they have been reluctant to provide any distance instruction because they
believe that it would be impossible to do so remotely for some students with
disabilities. In the guidance, ED said that “schools should not opt to
close or decline to provide distance instruction, at the expense of students,
to address matters pertaining to services for students with disabilities.
Rather, school systems must make local decisions that take into consideration
the health, safety, and well-being of all their students and staff.”
They write that USED “understands” that schools may not be
able to provide all services in the same manner they are typically provided…and
it may be unfeasible or unsafe…to provide hands-on physical therapy,
occupational therapy, or tactile sign language educational services.” That
said, it’s one thing for ED to understand this but another for Courts to
understand this is the case. The law is still the law, and ED’s suggestion that
districts are responsible for “still meet[ing] their legal obligations by
providing children with disabilities equally effective alternate access to the
curriculum or services provided to other students” will be an insurmountable
challenge for some districts.
While the Departments lacks the authority to waive certain
timelines, like those associated with IEPs, initial eligibility determinations
and due process hearings, they highlight that there is current flexibility
available with regard to these timelines. For example, IEPs can be reviewed
through video-conferences and the parents/districts can jointly waive to hold
an IEP meeting. Similarly, reevaluations can occur without a meeting and
without obtaining parental consent through reviewing existing evaluation data.
We recommend you see this memo from the law firm of
Thompson & Horton which further analyzes the steps districts can take
to comply with IDEA during this national emergency in addition to this
article from esteemed special education legal expert Perry Zirkel which
analyzes the past guidance from ED and offers advice to practitioners.