A district team may have good intentions to protect a student with a disability from contracting COVID-19 by stipulating in the IEP that he will learn remotely. But it may set the district up for denying that student a free and appropriate public education (FAPE) if other instructional models are permissible during the pandemic—and if that student doesn’t benefit from remote instruction.
Indeed, in Hernandez v. Lujan Grisham, 77 IDELR 185 (D.N.M. 2020), the parents of a student with learning disabilities received a temporary restraining order requiring a New Mexico district to amend the student’s IEP after it had previously been amended to reflect the district’s preference for fully remote instruction. The evidence showed that this restriction, which was based on the district’s misinterpretation of state school reentry guidance, was likely detrimental to the student’s learning. The court found that the district should have revisited the student’s IEP when it became clear the student was experiencing a significant learning loss with remote services.
In a similar situation, a district may want to keep abreast of public health guidelines regarding in-person schooling and afford students with disabilities the first opportunity to return to school buildings when the option becomes available. Districts also should continually review whether students who are receiving nontraditional services are receiving FAPE.
“The lesson is frankly that, regardless of [COVID-19], FAPE is not taking a holiday,” says Mark Sommaruga, a school attorney at Pullman & Comley LLC in Hartford, Conn. “I don’t see this as an order for in-person learning, but you must provide FAPE somehow. You are now expected to comply with the IDEA.”
Follow these tips to prevent an inadvertent denial of FAPE during the pandemic:
- Prioritize in-person learning. If you’re able to provide a hybrid learning model to students based on health and safety guidelines, afford all students with disabilities the opportunity to learn in-person full time, Sommaruga says. “It is best to prioritize special education students, especially those with the most significant exceptionalities,.”
- Design a timeless IEP. Design every student’s IEP as if schools are operating normally and every student is going to be learning in person. Create an alternative plan that describes how a student’s IEP will be implemented differently when remote instruction is required,Sommaruga says. Also include in this plan what may happen if a hybrid learning model is adopted, but the student is not able to come in to school full time. If the student is only able to come in two or three days a week, for example, determine how you will deliver his services on the days he comes into school. At the same time, recognize that not all students may require all services to be delivered in person while a hybrid model is in effect.
- Clarify guidelines with parents, staff. Rely on your local public health officials if parents demand to have their child return to the school building and you aren’t sure it’s safe, Sommaruga says. In some cases, it may be safer for students to be in school than out in the community. But if everyone is engaging in remote learning because of an outbreak, you can rely on public health data and clarify for parents the threshold that needs to be met for students to return partially or fully to in-person learning. “You can’t make a broad assertion of a danger,” he says. “Especially if guidelines say you could be open.”
- Don’t make decisions based on classification. If you have limited staff or space and can only bring some students with disabilities back into the building, emphasize serving students with the most complicated needs rather than specifying a particular disability category. “It needs to be based on an individualized determination of need,” he sys. To avoid this difficult decision, though, give all students with disabilities the option to return to the building at the same time, Sommaruga adds. “It’s easier.”
Cara Nissman covers autism, school psychology, and IEP team issues for Special Ed Connection, a DA sister publication.
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