FAPE Required During COVID-19 School Closures

Finally, some good news. As we wrote about earlier this month, many states, including Massachusetts, advised school districts that they did not need to provide students with special needs any direct IEP services during the COVID-19 closures, if districts are not providing educational instruction to general education students.

On March 21, 2020, the Office of Civil Rights within the U.S. Department of Education (DOE), issued a supplemental fact sheet to clarify the “serious misunderstanding” that school districts were not required to provide students with special needs any services during the shutdown, explaining:

School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.

DOE encouraged the use of “distance instruction, teletherapy, and tele-intervention” when delivering IEP services. DOE also provided examples of how districts may continue to offer students a FAPE virtually, such as encouraging districts to use video conferencing for direct instruction, providing students with accessible materials, having teachers call students to explain lesson materials, and offering related services such as speech-language services through video conferencing.

DOE also explained that IEP Teams will need to make “an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” This means that each student’s IEP Team will need to consider how to offer services to students that were not provided as a result of the COVID-19 closure.

Bottom line: DOE is advising that school districts and parents be creative to determine ways in which IEP services can be delivered virtually during the school closure period. We encourage parents to reach out to districts to inquire about beginning virtual IEP services when feasible and appropriate.

Stay safe. We are with you,

Michelle, Dan & Sherry