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ADE reaffirms IEP and FAPE rights for students with disabilities

Updated: Oct 16

On August 14, 2020, the Arizona Department of Education (ADE) again reaffirmed that students with disabilities need to be provided FAPE even as schools offer different options for reopening. Specifically, ADE updated its Guidance for the 2020-2021 School Year Reentry for IEPs.

ADE wrote: “All provisions of IDEA are still in effect regardless of how instruction is being delivered to students.” This is important to keep in mind in communicating with your school.


For example, if a student has transportation included as a related service on the IEP, the school is still required to provide transportation.


Additionally, schools are also not permitted to reduce service minutes for a student with disabilities on an IEP because of the change to online learning or staffing concerns. Any IEP changes must be based on the student’s needs not the school’s needs.


While it is a challenging time for schools that is not an excuse to deny students with disabilities their rights.


Here are some of the ADE's questions and answers updated today. I also provided the link below:


Q: If a student is attending school through an online platform, but the IEP team has determined that the student requires in-person services in order to be provided a FAPE, what is the PEA’s [Public Education Agency or school district/charter] obligation? (Posted 8/14/20)

If FAPE cannot be provided in a virtual/online format, members of the IEP team, including the parent, can determine that in-person instruction is necessary to provide a FAPE. IEP meetings are not necessary for every student, however any changes to the IEP should be appropriately documented. If it has been determined that in-person services are needed to ensure a FAPE, then the PEA would be obligated to make in person services available to meet the individual needs of the student. PEAs are encouraged to consult their legal counsel to resolve questions related to specific students and cases.


Q: If it is written in the IEP that a student has support services (such as paraprofessional support or nursing services) that may not be able to be implemented in an online format, what is the PEA’s obligation? (Posted 8/14/20)

Members of the IEP team, including the parent, can determine whether support services would still be required for that student to receive a FAPE. IEP meetings are not necessary for every student, however any changes to the IEP should be appropriately documented. PEAs are encouraged to consult their legal counsel to resolve questions related to specific students and cases.


Q: Does the IDEA allow an IEP team to meet and revise the IEP to reduce a student’s service minutes based solely on the instructional methodology or staffing resources of the PEA? (Posted 8/14/20)

No. IDEA requires that each student’s IEP be reviewed at least annually and revised as appropriate, based on the needs of the student. Students should be provided with the special education services outlined in their current IEPs. If it has been determined that in-person services are needed to ensure a FAPE, then the PEA should make in-person services available to meet the individual needs of the student. Reducing service minutes to fit a school-specific need is inappropriate and may result in a parent exercising their procedural safeguards. Parents retain the right to exercise their procedural safeguards, including filing a state complaint, requesting mediation, filing a request for a due process hearing, or filing a complaint with the Office for Civil Rights if they disagree with the provision of a FAPE being offered to their child. (emphasis added)


Q: If any part of the IEP specifically (goals, accommodations, support services) is written for implementation in a brick-and-mortar setting, what is the PEA’s obligation? (Posted 8/14/20)

Members of the IEP team, including the parent, must determine whether those items would still be required or if they ought to be amended in order for that student to receive a FAPE. IEP meetings are not necessary for every student, however any changes to the IEP should be appropriately documented. PEAs are encouraged to consult their legal counsel to resolve questions related to specific students and cases.


Q: Should transportation be provided if it is determined that the student requires in-person services in order for the student to receive a FAPE? (Posted 8/14/20)

Yes. If the IEP team determines that transportation, as a related service, is needed in order to provide a FAPE, then transportation must be provided.


Q: Can a PEA require all students with disabilities to receive all services in person, regardless of whether their IEPs can be implemented in a virtual format? (Posted 8/14/20)

No. The provision of a FAPE is based upon the individual needs of the student. Members of the IEP team, including the parent, should determine whether the student requires in-person instruction in order to receive a FAPE. If the IEP can be implemented virtually and a FAPE can be provided, then the option for the student to receive services virtually should remain available. Parents retain the right to exercise their procedural safeguards, including filing a state complaint, requesting mediation, filing a request for a due process hearing, or filing a complaint with the Office for Civil Rights if they disagree with the provision of a FAPE being offered to their student.


Q: Can a PEA require all students with disabilities, regardless of individual needs, to receive all services virtually or through remote learning? (Posted 8/14/20)

No. EO-2051 specifically requires PEAs to have an in-person option available for the delivery of special education services to those students who require in-person instruction in order to receive a FAPE. Determinations as to which students require in-person instruction in order to receive a FAPE should be individualized and be based upon the needs of the student and the services outlined in the IEP. Parents retain the right to exercise their procedural safeguards, including filing a state complaint, requesting mediation, filing a request for a due process hearing, or filing a complaint with the Office for Civil Rights if they disagree with the provision of a FAPE being offered to their student. (emphasis added)


https://www.azed.gov/specialeducation/special-education-guidance-for-covid-19-for-school-year-2020-2021-reentry/


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

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