COVID-19 and Special Education Law
This is a time of great uncertainty. The schools are closed through the end of the school year (at least). Some schools have been offering online services during the school closure while others have perhaps relied on packets. It is certainly much different than the education that was provided before the school closure.
For some students with disabilities, the change to online school may have been helpful. But more than likely, it has been a struggle with parents shouldering even more of the burden. As a result, many students will be significantly behind in their education once the schools reopen.
If your school was providing for your child’s needs before the closure, chances are, it has taken reasonable steps to try to continue to meet their needs after the closure. On the other hand, if there were problems implementing the IEP before the closure, then things have likely gotten worse.
The good news is that the Individuals with Disabilities Education Act (IDEA) is still protecting the rights of students with disabilities. Schools are still required to provide a free appropriate public education (FAPE) to students with disabilities.
With the CARES Act, Secretary of Education Betsy DeVos was required to report to Congress about whether waivers to the IDEA were needed as a result of the coronavirus. When she issued her report, Secretary DeVos recommended no waivers on the issue of FAPE. This is very good news! It means that the IDEA should be intact and schools' obligations to provide FAPE to students with disabilities continue even during the school closures.
Some representatives of school districts and other organizations had been pushing for a complete suspension of IDEA protections not only throughout the closure but also for 45 school days after school resumes. That is half a semester! So the recommendation of no waivers was great news for students with disabilities.
The Department of Education also affirmed that schools are required to provide FAPE to students with disabilities during the school closures. The Department of Education provided: “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.” March 21, 2020 Supplemental Fact Sheet.
Based on the Department’s position, there will likely be a grace period for schools for when they were closed completely. In other words, when the schools were not providing any services to any students, they will not likely be held accountable for not providing services to students with disabilities.
So, for example, if your school did not provide any services to any student for 2 weeks in March and started some distance learning to students as of April 1, 2020, then the school would be responsible for providing FAPE to students with disabilities as of that date but not in the 2 weeks when no students received any instruction.
When schools resume, they will have to determine how to make up for the time lost due to the closures based on each student’s needs. So, even though this is a difficult time, the Department of Education is planning to have schools make up for lost time in some way.
I will be posting updates as more information becomes available. If you have specific concerns for a special education attorney, please feel free to contact the Law Office of Richard J. Murphy, PLC for a free legal consultation. This is a confusing time for everyone including educators, students with disabilities and their families. The Law Office of Richard J. Murphy, PLC is ready to help students with disabilities and their families.