Special Education and FAPE in the Age of COVID-19
In light of COVID-19, public schools find themselves in uncharted territory, and there is serious concern about how the provisions of federal special education laws apply during this unforeseen pandemic. When written, the IDEA and other disability-related laws did not contemplate a time when public school buildings would be completely closed, and millions of students would need educational instruction only via virtual/distance learning platforms for an extended period of time. As a result, many public schools currently find themselves unable to provide all special education and related services in the same way that they were provided prior to the closures.
Court and Federal Agency Guidance
While no court case exists that addresses the provision of special education services in light of a pandemic, perhaps some direction can be found in the U.S. Supreme Court’s 2017 decision in Endrew F. v. Douglas County School District. In Endrew, the court found that school officials are to provide a free appropriate public education (FAPE) to students with disabilities by making available an IEP that is reasonably calculated to enable each child “to make progress appropriate in light of the child’s circumstances.” During the school closure period, will FAPE be assessed in light of the circumstances of a national health emergency? The answer to that question remains to be seen. In the absence of court or legislative authority applicable to the provision of FAPE in light of a global pandemic, we must turn to the only guidance that—so far—was issued by the U.S. Department of Education (ED) in mid-March. Although ED’s guidance documents do not have the force of law and are not legally binding, they can serve as important resources to help educate school personnel about the requirements of the law in a concise and readable format.
At the very beginning of the school closure process, ED quickly issued its first Q&A document on March 12, 2020, which noted that if a school district closed its schools in order to slow the spread of COVID-19—and did not provide any educational services to its general student population—the district would not be required to provide services to students with disabilities during that same period of time. However, ED also noted that if a school district continued to provide educational opportunities to its general student population during a school closure, the district must also ensure that students with disabilities have equal access to the same opportunities, including the provision of FAPE. ED stressed that school districts must ensure “to the greatest extent possible” that each student with a disability continues to be provided the special education and related services that were identified in the student’s IEP prior to the school closure.
To further address the provision of FAPE during the COVID-19 outbreak, ED issued a fact sheet on March 16, 2020. Addressing the continuation of educational services for students with disabilities, ED highlighted that “if feasible” the student’s IEP team or personnel responsible for ensuring FAPE could assist in determining whether some, or all, of the identified services could be provided through alternate or additional methods. In addition, ED noted that IEP teams are not required to meet in person while schools are closed and, where evaluations require face-to-face assessment or observation, the evaluation would need to be delayed until the school building reopens.
On March 21, 2020, ED provided its final guidance document addressing FAPE, stating again that federal disability law allows for “flexibility” in determining how to meet the individual needs of students with disabilities and that the “determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency.” Importantly, ED emphasized that FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to them.
In addition to federal guidance that must be followed, each state’s educational agency has its own guidelines for addressing the provision of FAPE during COVID-19. Rebecca Collopy’s article “Educating Students With Disabilities During the Time of COVID-19” outlines each state’s policy. Reviewing state and local guide-lines is important because they often add to federal requirements and reflect various policies that stem from earlier legal challenges that occurred within a state’s particular jurisdiction or from state law itself.
Many states’ guidelines highlight that school leaders must act in “good faith” or make “reasonable efforts” when providing special education services during the school closure period. In special education litigation, courts will often also consider the “good faith” of a school district in administering services, especially “in light of the circumstances.”
Local Plans and Recommendations
In addition to federal and state guidelines, local school districts are required to maintain a local compliance plan for implementing IDEA. In terms of how school administrators should generally operate in following such plans, we offer these suggestions:
- Let your district’s special education director and site-based special education coordinators be concerned with procedural considerations—expired timelines, overdue IEPs, evaluation/reevaluation timelines—but ensure that your staff are following the special education director’s guidance with respect to those issues.
- Be more concerned with demonstrating that your service providers—general and special education—are focused on making good faith, reasonable efforts to provide appropriate services to their students with disabilities “in light of the circumstances.”
- Be sure that your general education and special education staff are meeting and planning together to ensure that they continue their good faith, reasonable efforts, which include:
- Development of an organized, individualized, and documented distance learning plan for each student
- Services that target prioritized IEP goals and critical skills for each student
- Plans developed in a way that affords parents a meaningful opportunity to participate, where feasible, along with efforts to communicate and work with parents in a creative and collaborative fashion
- Be sure that you, as the school administrator, and your service providers establish regular communication with parents regarding student progress during the school closure period. 5. Document everything, including all contacts and agreements made, as well as all service provisions “in light of the circumstances.”
Julie Weatherly, Esq., is an attorney who represents and consults with school agencies in their efforts to appropriately educate students with disabilities. Phyllis Wolfram is the executive director for CASE, the Council of Administrators of Special Education. She has also worked in the field of special education for 35 years. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington, IN. She is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.
Collopy, R. (2020). Educating students with disabilities during the time of COVID-19. Nat’l
Sch. Choice Week. Retrieved from schoolchoiceweek.com/educating-students-with-disabilities-during-the-time-of-covid-19.
Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017).
U.S. Dep’t of Educ. (2020, March 12). Questions and answers on providing services to children with disabilities during the coronavirus disease 2019 outbreak. Retrieved from www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf.
U.S. Dep’t of Educ. (OCR) (2020, March 16). Fact Sheet: Addressing the risk of COVID-19 in schools while protecting the civil rights of students. Retrieved from www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf.
U.S. Dep’t of Educ. (OCR and OSERS) (2020, March 21). Supplemental fact sheet addressing the risk of COVID-19 in preschool, elementary, and secondary schools while serving children with disabilities. Retrieved from www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf.