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.