Are schools required to provide a Free Appropriate Public Education (FAPE) during COVID-19?
Let’s start with the United States Departments of Education and IDEA.
§ 300.17 of IDEA states:
Free appropriate public education or FAPE means special education and related services that—(a) Are provided at public expense, under public supervision and direction, and without charge; (b) Meet the standards of the SEA, including the requirements of this part; (c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§300.320 through 300.324.
Sections §§300.320 through 300.324 specifically address meeting the needs of the child, not the needs of the school.
COVID-19 did not change the needs of the child. It changed the location at which those needs are addressed.
United States Department of Education
The document opens with a disclaimer:
“This Q & A document does not impose any additional requirements beyond those included in applicable law and regulations. The responses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding. The Q & As in this document are not intended to be a replacement for careful study of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), Title II of the Americans with Disabilities Act of 1990 (Title II), and their implementing regulations.”
It goes on to state its interpretation of IDEA as it relates to COVID:
The IDEA, Section 504, and Title II of the ADA do not specifically address a situation in which elementary and secondary schools are closed for an extended period of time (generally more than 10 consecutive days) because of exceptional circumstances, such as an outbreak of a particular disease.
If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).
March 21, 2020, the Department of Education released “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (March 21, 2020).”
To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA),† Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.
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.
The Department understands that, during this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.
It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency. As mentioned above, 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 students. Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.
Nowhere does it state that IEPs should be put on hold or that unofficial learning plans—which aren’t legal, and about which parents have no control and for which schools can’t be held accountable—should be implemented.
April 27, 2020, U.S. Secretary of Education Betsy DeVos declined to seek Congressional waivers to FAPE requirements of IDEA.
Federal vs State
Earlier this month, Education Secretary Betsey DeVos stated FCPS’ “springtime attempt at distance learning was a disaster.”
“I would also note that the Trump administration has yet to release any comprehensive plan for reopening schools.”
And yet, FCPS and VDOE have often stated that federal guidance is not law and does not have to be followed.
In the Notice of Complaint VDOE issued in response to a systemic complaint filed against FCPS (which is currently being investigated), VDOE stated:
“Significantly, US ED also stated that its Q &A document “does not create or confer any rights for or on any person. This Q & A document does not impose any additional requirements beyond those included in applicable law and regulations. The responses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding.” See <https://sites.ed.gov/idea/files/qa-covid-19-03-12-2020.pdf>”
In its response to the NOC, FCPS echoed the same statement:
“While Parents ostensibly rely upon the US ED Q&A Document to support their above allegations, such document expressly provides that it “does not create or confer any rights for or on any person”, nor does it “impose any additional requirements beyond those included in applicable law and regulations” (Attachment 11b: US ED Q&A Document, at 1). Rather, the resource acknowledges that its responses “generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented [t]here and are not legally binding.”
So, even if the Trump administration had come up with a plan for reopening schools, states such as Virginia could cite that it is just guidance. It doesn’t have to be followed.
So where does that leave FAPE?
The Supremacy Clause
Per the Supremacy Clause of the Constitution, federal law trumps state law. Federal law is supreme.
An example is illustrated in the U.S. Department of Education’s recent “Differentiated Monitoring and Support” report about Virginia:
“The provisions in Virginia Administrative Code 8VAC20-81-170(B)(2)(a) and (e), as interpreted by the State and implemented by its LEAs, are inconsistent with the language and intent of 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502(b), which do not limit a parent’s right to an IEE at public expense to circumstances where the parents disagree with the results of a specific evaluation component already conducted by the public agency.”
The DMS report states that within 90 days, VDOE must, among other things:
Submit a written assurance to OSEP specifying that as soon as possible but in no case later than one year from the date of this report, in accordance with 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502, the State will revise Virginia Administrative Code 8VAC20-81- 170(B)(2)(a) and (e)
At this point, federal law has not been waived, so FAPE stands.