On March 26, 2020, the Massachusetts Department of Elementary and Secondary Education (“DESE”) provided an important update to school districts on their legal responsibility to provide a free appropriate public education (“FAPE”) to their students with disabilities during the COVID-19-related school closures. This guidance, entitled “Coronavirus/Covid-19 Frequently Asked Questions For Schools and Districts Regarding Special Education,” replaces the previous one that DESE published on March 17, 2020. Also on March 26, 2020, DESE Commissioner Jeffrey Riley issued specific recommendations to school districts about implementing remote learning models, entitled “Remote Learning Recommendations During COVID-19 School Closures.”

These updates come in response to Governor Charlie Baker’s Order extending school closures from April 6, 2020, to May 4, 2020 and the United States Department of Education’s (“USDOE”) supplemental fact sheet issued on March 21, 2020, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities,” which was the subject of an earlier blog post on this site. DESE’s updated FAQ, like USDOE’s supplemental fact sheet, provides several important corrections and clarifications:

• DESE’s guidance makes clear that school districts must continue providing FAPE to students with disabilities during the COVID-19-related school closures. Tracking the federal directive, DESE states that “school districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students” (emphasis added). This represents a significant departure from DESE’s and USDOE’s previous guidance, which had stated that a school district is not required to provide special education students with services during extended school closures if the district does not provide any educational services to other students during that period. It is now clear that districts have an obligation to provide FAPE to students with disabilities, irrespective of what they may provide to nondisabled students.
• Following USDOE’s lead, DESE acknowledges that “[h]ow a district will provide FAPE will look different during this unprecedented period of national and state emergency.” It may not be possible to provide some services (such as hands-on physical therapy, occupational therapy, or tactile sign language services) at all. “However,” DESE states, “many specialized instructional opportunities and related services may be modified to be effectively provided” via other means. For example, the provision of FAPE “may include, as appropriate,” delivering instruction through remote instruction, such as sending material to students and/or through online or telephonic communication; distance instruction; teletherapy; tele-intervention; meetings held on digital platforms; online data tracking; and so on. Commissioner Riley’s memorandum, while not specifically geared toward students with disabilities, includes useful detail about the various forms that remote instruction might take.
• Public and private day special education schools (including collaboratives) were included in Governor Baker’s Order on March 23, 2020, and therefore these schools also must close until May 4, 2020. Residential schools were excluded from the Governor’s Order and therefore may remain open. Districts may need to continue to fund students’ placements at closed special education schools in order to ensure that the placements remain available when schools reopen. DESE is expected to issue additional guidance on this topic, as well as on the question whether, when a public or private special education school is closed, it is the responsibility of that program or the student’s home district to provide a student with services.
• DESE recognizes that school closures may affect a district’s ability to meet timelines for evaluations, eligibility determinations, and IEP development, but states that school teams and parents should “work collaboratively and creatively to meet IEP timeline requirements.” DESE further specifies that, if an IEP Team meeting “may need to be convened,” districts should convene the meeting telephonically or virtually. Although the “may need to be convened” language appears to give school districts leeway to determine whether to hold Team meetings, we believe that federal law requires school districts to hold Team meetings within the timelines mandated by the Individuals with Disabilities Education Act (“IDEA”) and by M.G.L. c. 71B.
• Once school closures end, school districts must review whether the closures negatively affected the delivery of a student’s special education and related services and convene IEP Team meetings “as necessary” to consider whether students are entitled to compensatory education services.
• DESE states that school districts should designate a member of each student’s IEP Team to “communicate regularly” with the student’s parents or guardians during the school closures regarding the provision of special education and related services.
• In Commissioner Riley’s recommendations to school districts on providing remote learning models to its students, DESE requires school districts to develop a remote working model to launch by “early April” if they have not done so already. DESE specifically recommends that these remote working models should “support students to engage in meaningful and productive learning for approximately half the length of a regular school day.”
• Although this does not appear in DESE’s FAQ, we understand that DESE has instructed districts that parental consent is not required to change delivery of special education from in-school to remote methodology; that any such change does not affect a student’s stay-put rights; and that privacy concerns do not prohibit remote instruction.
• No changes have been made to MCAS testing timelines and deadlines for submissions for MCAS-Alt. We expect that further guidance from DESE on this issue will be forthcoming.

DESE’s latest update comes as a welcome change from its previous guidance pertaining to the provision of a FAPE to its students. We anticipate that the USDOE and DESE will issue further guidance as school closures continue. In light of the continued school closures, DESE must continue to ensure that school districts across the Commonwealth provide their special education students with FAPE by developing effective remote learning models. As the USDOE and DESE recommend, school districts and parents/guardians must work collaboratively to make this happen. We encourage parents and guardians to contact their local school districts to ensure that the schools are following their state and federal responsibilities, and to develop a workable plan to ensure that their children are receiving a FAPE in these challenging times. Parents and guardians should also familiarize themselves with the many resources available to them, such as this excellent compilation provided by Massachusetts Advocates for Children.

Special Education Today is a publication of the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.