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  • Law Office of Richard J Murphy, PLC

Can schools require special education students attend in-person?

Updated: Oct 16, 2020

What if an IEP team determines a student needs in-person instruction but the parent wants to continue online instruction?

I recently posted about the Arizona Department of Education’s Alert about “In-Person Special Education Services Under the Governor’s Executive Orders”

Since that post, ADE has updated their Questions and Answers on their website

Several questions relate to the possibility of in-person instruction. Some students may require in-person instruction to receive a free appropriate public education (FAPE). This may be welcome news to some parents, but because of COVID-19 concerns other parents may not be ready to send their student to school.

ADE provided the following question and answer:

Q: If a parent refuses in-person services, must the IEP team review and revise the student’s IEP? (Posted 8/6/20)

A: The IEP team can determine that in-person instruction is necessary to provide a FAPE. If the PEA [school district] stands ready, willing, and able to provide a FAPE to the student, then the PEA has no further obligation. Thus, there would be no need to review/revise or amend a student’s IEP. PEAs are encouraged to consult their legal counsel to resolve questions related to specific students and cases.

This may be significant for students with disabilities in Arizona.

This applies once a charter school or school district starts offering in-person instruction:

If a student’s IEP cannot be implemented unless he or she is in a school setting, the school cannot implement that IEP unless and until schools resume in-person instruction. With the AZDHS guidance from August 6, 2020, that still may be a couple weeks away or more on a broad scale. Also, some schools have already moved the in-person date for instruction to after Labor Day or the end of the first quarter.

Executive Order 2020-51 does require some in-person instruction starting no later than August 17, 2020 (“Each school district and charter school shall begin offering free on-site learning opportunities and support services for students who need a place to go during the day as required by Executive Order 2020-41 and shall begin August 17, 2020, as prescribed in Executive Order 2020-44.”) But this timetable may change.

Schools have to post their plans on their websites and should be reaching out to the families of students with disabilities directly.

This directive does not apply to every IEP:

It is important to note that not every student on an IEP requires in-person instruction. From the ADE’s response, it is clear that not every IEP as written would require in-person instruction. “The IEP team can determine that in-person instruction is necessary to provide a FAPE.” (emphasis added)

Many IEPs would have been written before the school closures so it is unlikely that most would have included language that required in-person instruction.

But if the school has updated the IEP during the school closures and determined that the student requires in-person instruction to receive FAPE, then the school would be obligated to provide at least some of the instruction in-person. (ADE also states that a student’s instruction can be provided partially in-person and partially online.)

The key point is that unless the IEP team has determined that a student does need in-person instruction to receive FAPE, the school is not required to provide the instruction in-person and can continue to provide services via distance or online learning. So this would not apply.

What does it mean when a school “stands ready, willing, and able to provide a FAPE to the student?”

This is language that schools use to make it clear to parents that this is all they are going to offer. So, if the IEP team determined that a student does require in-person instruction to receive FAPE, then that is their “offer of FAPE” and they are going to provide those services in that setting.

If a parent refuses to send the student for in-person instruction in that situation, the school would not be doing anything wrong according to ADE.

This could negatively impact students with disabilities because the school does not have to offer any alternative to in-person instruction.

What can a parent do if they do not want to send the student for in-person instruction?

A parent in this situation has a few options.

(1) The school closures have not changed the parents’ and students’ rights to challenge the school’s decision with a due process complaint.

So, if a school has recently had an IEP meeting and determined that the student requires in-person instruction for FAPE, the parent can file a due process complaint. Filing a due process complaint will provide the student with “stay put” protection. This prevents the school from implementing the change to the IEP while the complaint is pending. The due process complaint is the only way to stop the school’s decision from being implemented.

If a school has already determined that the student needs in-person instruction and the parent anticipates refusing those services due to concerns over the student’s or families’ safety, a due process complaint can force the school to continue providing instruction in the online setting as it had been doing since March 2020.

Although parents can file a due process complaint on their own, it is a good idea to consult with a special education attorney to assist.

(2) If the school has requested an IEP meeting to change the services for the student but not made a decision as an IEP team, it is important to share the concerns about returning to school before the decision is made. As the IEP team would be making decisions based on the student’s individual needs, if there is some particular susceptibility that the student has, that should carry more weight with team.

(3) A parent can also ask the school team to consider other online options for the student in order to meet his or her needs. There are a number of robust instruction options that might allow the school to provide FAPE to the student that do not include in-person instruction.

If the IEP team has not made a specific determination that the student requires in-person instruction for FAPE, then online instruction can continue. But if the school is seeking to change the IEP to include in-person instruction as a requirement it is important to know your rights.

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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