The Virginia Department of Education (VDOE) set a dangerous precedent with the release of its document “VDOE Considerations for COVID Recovery Services for Students with Disabilities”.
The document includes a get-out-of-providing-compensatory education/”recovery services” loophole—and exhibits a questionable interpretation of laws related to students with disabilities.
If you’ve read the “Dear VDOE” articles of the past two days, you know that questionable actions have been taken during the state investigation process. (See “Dear VDOE: Is it Okay for Compliance Specialist to Judge, Joke at the Expense of Parent Advocating for Her Child?” and “Dear VDOE: How Can a Prior Written Notice Be Both “Skimpy” and “Compliant”?“)
VDOE’s COVID Recovery Services document compounds the problem, raising the question of whether VDOE is biased toward school divisions rather than being unbiased. This comes not long after the United States Department of Education (USDOE) issued a monitoring report on Virginia earlier this summer. VDOE’s COVID recovery services document states:
In March 2020, the Governor of Virginia ordered the “cessation of all in-person instruction at K-12 schools, public and private, for the remainder of the 2019-2020 school year.” Subsequently, the U.S. Department of Education (USED) issued guidance that “[i]f 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.”
Furthermore, USED stated that it “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.”
Finally, USED noted that “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)). State Education Agencies (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)).”
VDOE interpreted the following from the USDOE guidance it quoted:
The first sentence in the statement above regarding the provision of FAPE refers only to Section 504 and the Americans with Disabilities Act and speaks solely to “access” for students with disabilities.
IDEA and Section 504: How Can They Be So Misunderstood?
Section 504 is the civil rights law that prohibits discrimination on basis of disability in public/private programs that receive federal financial dollars. In USDOE’s own words:
Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education (ED). Section 504 provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”
OCR enforces Section 504 in programs and activities that receive Federal financial assistance from ED. Recipients of this Federal financial assistance include public school districts, institutions of higher education, and other state and local education agencies. The regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104.
The Section 504 regulations require a school district to provide a “free appropriate public education” (FAPE) to each qualified student with a disability who is in the school district’s jurisdiction, regardless of the nature or severity of the disability.
VDOE’s interpretation of USDOE’s guidance benefits the school divisions and ignores basic regulations related to Section 504 and the Individuals with Disabilities Education Act (IDEA).
In the “first sentence” referenced by VDOE, USDOE specifically states:
“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.
AFTER this sentence appears the following:
(34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)).
The lack of reference to Sec 300.101 of IDEA does not dictate exclusion of compliance with IDEA.
In both VDOE’s guidance and in USDOE’s guidance, there is the reference to 34 CFR 104.33. This is the requirement of FAPE. This is inclusive of implementation of the IEP developed under IDEA (referenced by its former name “Education of the Handicapped Act”):
§ 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient‘s jurisdiction, regardless of the nature or severity of the person’s handicap.
(b) Appropriate education.
(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non handicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
Thus, referencing section 300.101 would be redundant and unnecessary.
Yet, VDOE is focused on section 300.101 not being specifically mentioned.
The lack of a reference specifically to section 300.101 does not afford VDOE and its LEAs a pass on IDEA implementation or related compensatory education or “recovery services”.
In addition, the requirement to provide FAPE is not limited to access—and VDOE’s COVID document doesn’t provide a clue to how it came to an understanding that indicates otherwise.
USDOE’s guidance indicates if an LEA provides educational opportunities to general education, then students with disabilities MUST have equal access, including the provision of FAPE.
IDEA is an education act that provides federal financial dollars to guarantee special education and related services to students with disabilities. So, the receipt of that assistance requires VDOE to comply with the provision of FAPE—even as it is described outside of section 300.101.
Voluntary = Closed; Compulsory = Open
VDOE also claims that “voluntary” instruction somehow does not qualify as an educational opportunity that USDOE has indicated required FAPE. And yet . . . offering a class still provides an opportunity to take that class, whether or not attendance is mandatory.
Thus, students with disabilities must be offered the same opportunities but in the means (with the supports) prescribed by the IEP (FAPE).
Page 4 of VDOE’s recovery services document states:
If schools are closed, a LEA need not provide services to any student during the time it is closed. The situation presented by COVID-19 is infinitely more complex than two alternative scenarios – schools are closed with no services and schools are open with all services. Notably, the USED’s guidance does not contemplate the huge variety of forms of instruction, activities for the continuity of learning and types of “educational opportunities” that have been provided to students across the Commonwealth. Thus, there must be an attempt to construct a rational and reasoned approach to a school division’s responsibility to students with disabilities during the varying phases of school reopening. There is a construct that draws a bright line between schools being open and schools being closed. If participation is compulsory, then school is open. If participation is voluntary, then schools are closed, and the only right retained by the student with a disability is the right to access under Section 504.”
This is a convenient “bright line” to draw.
School divisions such as Fairfax County Public Schools (FCPS) include the following clause in their IEPs:
FCPS will provide services on days that school is in session and will not provide or compensate for services missed on days when schools are closed due to holidays, inclement weather, or for reduced services that are the result of a partial day schedule.
This clause is the very clause FCPS cited in its response to a systemic complaint filed against it. In its response to the complaint, FCPS cited VDOE’s FAQ 025-12, 34 CFR § 300.106(b), and 8 VAC 20-81-10 in support of the following statement:
. . . the Services page in each student’s IEP stipulates that FCPS ‘will not provide or compensate for services missed on days when schools are closed due to holiday, inclement weather, or for reduced services that are the result of a partial day schedule.
In public, FCPS has stated that it will wait until the end of the first quarter of the 2020-21 school year to assess students for “recovery services”.
However, in its complaint response, it has argued against having to provide such services period.
FCPS went on to state:
Virginia Department of Education’s FAQ 025-12 states that there is no expectation that a school will provide services when the school is closed, whether planned or in unplanned emergency situations. See e.g., Smith v. James C. Hormel School of Virginia Institute of Autism, 2009 WL 4799738, at *FN 26 (W.D. Va. Dec. 8, 2009) (where the school was closed for a holiday break, no educational services could be lost during the closure); also Student with a Disability Dep’t of Defense-Defense Legal Servs. Agency, 109 LRP 47582 (2008) (further reasoning that when a school calendar is compressed, “it is not surprising that special services might also be compressed or reduced. Such a reduction does not indicate disorganization or pettiness or behalf of the school, but rather the practical result of the facts.”).
In correspondence related to the same systemic complaint VDOE characterized FCPS’ instruction “voluntary in nature”—although, to my knowledge, FCPS NEVER released a statement in an email or on its site, or anywhere else, that indicated that participation in instruction was “voluntary”.
However, according to VDOE:
If participation is voluntary, then schools are closed, and the only right retained by the student with a disability is the right to access under Section 504.
VDOE’s reliance on its interpretation comes at a high cost to children statewide.
Governor Northam’s March 23, 2020 press release states:
The Virginia Department of Education (VDOE) will issue guidance to help divisions execute plans to continue instruction, while ensuring students are served equitably, regardless of income level, access to technology, English learner status, or special needs.
Nothing in the governor’s release states that a) instruction will be voluntary; 2) school instruction will be closed; 3) FAPE will be denied; or 4) that IEPs and 504 Plans won’t be implemented.
What say you, VDOE? Perhaps Superintendent James Lane can weigh in on this?
Did VDOE and its school divisions accept federal funding and then fail to provide FAPE?
Or will you tell us that VDOE and its school divisions returned federal funding?