The U.S. Department of Education (ED) recently issued a “Supplemental Fact Sheet” updating its earlier Questions & Answers and Fact Sheet on coronavirus disease 2019 (COVID-19) and clarifying that schools should not refrain from providing distance learning out of fear that they cannot adequately serve students with disabilities. In the updated guidance, ED advises school districts that the delivery of a free appropriate public education (FAPE) may look different when schools are physically closed. The guidance also addresses the impact of school closures on special education timelines, including urging schools “to work with parents to reach mutually agreeable extensions of time.” School districts should keep the fact sheet in mind when crafting general distance learning options and specific services and supports for individual students.

In the earlier Q&A, ED stated that if a school district completely closes, it is not required to serve students with disabilities; if, however, a school district continues to provide educational opportunities to general education students, it must provide equal access and FAPE to students with disabilities. In the press release accompanying the Supplemental Fact Sheet, U.S. Secretary of Education Betsy DeVos admonished those who she contended had used the guidance “as an excuse not to educate kids.” The fact sheet explicitly rejects the premise that schools should let special education concerns limit distance learning: “Some educators . . . have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true.”

ED did not lower the standards requiring equal access and FAPE, but it did seek to ease the concerns of school leaders, noting that OCR and OSERS “recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and . . . will offer flexibility where possible.” The fact sheet provides examples of alternative delivery methods to “ensure that all students have access to meaningful educational opportunities,” including “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation [as well as] lowtech strategies [such as] instructional packets, projects, and written assignments.” The guidance also encourages educators, parents, and administrators to “collaborate creatively,” which we know many school districts have already been doing over the past weeks.

The guidance does not specifically address what constitutes FAPE during school closures. Generally, FAPE requires provision of an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” As described on a recent Council of Administrators of Special Education webinar, a child’s current circumstances can include that school is closed, in-person instruction is not feasible, and peer interaction is limited to virtual communications. For many students, appropriate progress in light of these circumstances will differ from the progress a student may be expected to make in a more traditional setting.

Additionally, the guidance addresses the impact of school closures on IDEA timelines. While timelines are not automatically extended, some flexibility is available:

  • The timelines for resolving state complaints and due process complaints can be extended by agreement of the parties.
  • The timeline for resolving a state complaint can be extended in exceptional circumstances, which should be determined on a case by case basis and documented.
  • Reevaluations can be based on a review of records unless additional assessments are needed.
  • A school district and parent can agree to conduct an IEP meeting through alternate means, such as videoconferencing or conference call, and IEP amendments can be made by agreement without a team meeting.

Importantly, the guidance contemplates the amendment of IEPs to account for changes during the COVID-19 pandemic. While in Illinois, days through March 30 do not count as instructional days, districts should begin to prepare for the potential that some IEPs will need to be amended should the closure continue and require prolonged remote learning. For more information on this or any other issues, contact the authors of this post or any other member of our special education law team.