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Department of Education Offers Flexibility, Encourages Cooperation to Provide Students with FAPE During COVID-19 Pandemic

On March 21, the United States Department of Education’s Offices for Civil Rights and Special Education Programs (“OCR” and “OSEP”) issued a joint guidance document affirming every school district’s obligation to continue providing a free appropriate public education (“FAPE”) to students with disabilities during the COVID-19 pandemic, while also acknowledging the impact of school closures on the provision of special education and related services.  Addressing an initial misconception among some school districts, this Supplemental Fact Sheet underscored that nothing in the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), nor any other federal law protecting students with disabilities should prevent any school from offering educational programs through distance instruction.  Instead, OCR and OSEP made clear that a FAPE may include special education and related services provided through virtual, online, or telephonic distance instruction, so long as students with disabilities have equally effective alternate access to the curriculum provided to their nondisabled peers.

OCR and OSEP emphasized that both agencies will “offer flexibility where possible” to school districts regarding the provision of special education and related services, and recognized that determinations regarding how a FAPE will be provided “may need to be different” while schools remain closed.  A school district might, for example, provide speech and language services to an eligible student through video conferencing in lieu of typical in-person sessions.  To ensure equally effective access alternative access to a curriculum, a teacher might also read instructional materials over the telephone to a blind student, or provide audio recordings of such materials for the student to listen to.  Many screen-reading options exist within Internet based technologies that could be used to provide this type of basic accessibility to individuals with disabilities.  Teachers should also continue to provide accommodations, such as extra time for the submission of assignments, to students in accordance with their individualized education programs (“IEPs”) to the extent possible while providing distance learning.

OCR and OSEP further encouraged school districts to continue the collection of progress monitoring data, and to document the provision of all special education and related services during school closures.  When schools eventually reopen, PPTs will ultimately have to make individualized decisions regarding each student’s need for services based upon their ability to maintain and advance their skills using the alternative learning opportunities with which they have been provided, further underscoring the importance of data collection and documentation.

Finally, OCR and OSEP addressed the various timelines set forth in the IDEA for the resolution of state complaints, due process hearings, PPT meetings, and triennial reevaluations.  COVID-19 will likely be an extenuating circumstance justifying the extension of the timeline for the resolution of state complaints, and both school districts and parents can ask hearing officers to extend the timeline for the resolution of due process hearings.  However, OSEP is constrained by the operation of federal law from simply “suspending” all timelines during the pandemic at this time.  Therefore, OSEP encourages parents and districts to work together to use the tools available under IDEA to achieve substantive compliance with the law, while at the same time understanding that strict procedural compliance may not be possible in this unique situation.

While school districts in Connecticut should look to guidance from the State Department of Education (“SDE”) regarding the convening of PPT meetings and revisions to IEPs, they should work with parents to the extent possible in order to ensure the provision of special education and related services can be provided to the greatest extent possible until schools return to normal operations.  We will discuss the State Department of Education guidance in future posts.  However, readers should also be aware that both State and federal guidance are evolving even as we speak, and Congress is being asked to entertain emergency legislation that may provide some additional guidance on the subject of IDEA compliance during the pandemic.

The Supplemental Fact Sheet is the latest in a series of guidance documents issued by OCR and OSEP in the past several weeks, and school districts should monitor their respective websites for future publications.

The full text of the Supplemental Fact Sheet can be viewed through the following web link:

Attorneys at Berchem Moses PC are available to consult schools and school districts regarding regular and special education matters in the State of Connecticut, including matters pertaining to the impact of COVID-19 on public schooling.  For further information, please contact Attorney Michelle Laubin at [email protected]