Reversing a FAPE Freefall? U.S. DOE Upholds Students’ Rights to Special Education During Coronavirus Crisis

On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.”  This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020.

The USDOE’s earlier guidance, as paraphrased by DESE, had stated that a “district is not required to provide services to students with disabilities during extended school closures if the district does not provide any educational services to students during this period of time.”  Many districts seized on this a reason not to provide services either to regular education students or to special education students (though many announced their intent to provide “enrichment” materials to regular education students).  Parents of special education students (and their advocates and attorneys) questioned the legality of this action, particularly in light of the fact that special education involves not only a right of access to education but an affirmative entitlement to specialized services that will allow the student to make effective progress (known as a free appropriate public education (“FAPE”)).

The March 21, 2020 OSERS guidance attempts to halt the freefall of FAPE during the Coronavirus crisis by addressing “a serious misunderstanding that has recently circulated within the educational community,” in Massachusetts as well as elsewhere. To that end, the guidance provides several important clarifications:

  • Under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act, all school districts must continue to provide a FAPE to their special education students even during the Coronavirus crisis, “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.” Thus, although the guidance makes clear that methods of service delivery may change, it emphasizes that students who have an Individualized Education Program (“IEP”) or 504 plan have a right to continue receiving special education and related services during this national emergency.
  • The guidance clarifies that federal disability laws do not present “insurmountable barriers” to remote services for special education students. OCR and OSERS explicitly instruct school districts that “they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities.”  In other words, districts may not issue blanket refusals to provide educational services in order to avoid the challenges of providing special education services during the current crisis.
  • OCR and OSERS acknowledge that some services (g., “hands-on physical therapy, occupational therapy, or tactile sign language educational services”) may require in-person instruction, such that they cannot be replicated through alternative means. However, OCR and OSERS note that other services (e.g., “many speech or language services”) can be provided remotely. OCR and OSERS encourage school districts and parents to “collaborate creatively” to find new ways of providing services, such as through “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation,” as well as via “low-tech strategies” such as “an exchange of curriculum-based resources, instructional packets, projects, and written assignments.”
  • OCR and OSERS reiterate a point made in their prior guidance that when there has been “an inevitable delay in providing services — or even making decisions about how to provide services” due to the national emergency and school closures, IEP Teams must make individualized determinations about compensatory education services (“whether and to what extent compensatory services may be needed”) once schools reopen. Compensatory education is an equitable remedy designed to provide a special education student with a replacement for IEP services that he or she has not received, placing the student in a position equivalent to that which he or she would occupy if the services had been delivered in a timely manner. If the Coronavirus crisis continues for any length of time (as it appears that it will), we believe that there should be a presumption that any student who has missed services will be entitled to compensatory relief.
  • The guidance also offers information on procedural timelines under the IDEA. OCR and OSERS make clear that these timelines remain in effect during the current crisis, although school districts and parents are encouraged to reach “mutually agreeable extensions of time, as appropriate.” This means that certain important activities, such as IEP development, initial eligibility determinations, annual reviews, and reevaluations, must still be completed within mandated timelines unless the timelines are extended by agreement. In our view, this calls into question the practices of some Massachusetts districts that have flatly refused to hold virtual Team meetings while schools are closed due to the Coronavirus, despite the fact that administrators, teachers, and other service providers are working remotely during this time.
  • Emphasizing again that school districts should be flexible in designing new ways to comply with their legal responsibilities, the guidance encourages districts to work with parents and agree to hold IEP Team meetings through remote means (such as “videoconferencing or conference telephone calls”). OCR and OSERS also point out that IEPs may be amended or modified in writing without a meeting, if the parents and district agree to that procedure.

The OCR/OSERS guidance provides encouraging news after a week of very concerning messages and acts by school districts regarding their special education students. It serves as a call to the DESE and other state agencies to incorporate and expand upon OCR’s/OSERS’s directives by issuing state-specific guidance regarding districts’ obligations to provide special education services, comply with procedural requirements, and furnish compensatory education services as a result of school closures. As OCR and OSERS recognize, and as we are all aware, this is indeed a challenging time. As the guidance underscores, however, this is not a time when districts should be allowed to abandon their most vulnerable students. If districts and parents work together to find creative solutions as the guidance envisions, we will emerge from this time with a stronger and more resilient system of special education.

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

Issues in Special Education that Candidates Should Address

We are posting a link here to an article written by Bob Crabtree, of counsel with KC&S, regarding some of the critical issues surrounding special education and disability rights that candidates running for legislative and executive offices should address.  Though IDEA is a federal law, states can establish increased requirements for special education and these are therefore issues to discuss with candidates for state office as well.  The issues discussed in the article include: inadequate special education funding; the weakening of required standards governing IEPs; judicial decisions about recovery of attorneys’ fees and related costs; and the burden of proof in special education proceedings. 

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

New First Circuit Opinion Elucidates Exhaustion Requirement for School-Related Claims Under Sections 504 and 1983

The First Circuit has recently clarified the exhaustion requirements for school-related Section 504 and Section 1983 claims in light of Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017).  In Doucette v. Georgetown Public Schools, #18-1160 (1st Cir. Aug. 26, 2019), a divided panel reversed a District Court decision that dismissed parents’ Section 504 and Section 1983 claims for failure to exhaust IDEA’s administrative process. Continue reading

Providing Notice of a Unilateral Placement

Pursuant to both state and federal law, students with special needs are entitled to a free appropriate public education (“FAPE”).  If parents are dissatisfied with the appropriateness of the school district’s programming, parents have the right to place a student in a private school program at their own expense and seek reimbursement from the district.  This is called making a “unilateral placement.”  Whether or not a lawsuit seeking reimbursement will ultimately be successful depends on a number of complex factors that are beyond the scope of this post, but it is important to provide adequate notice to the school district of a student’s new placement. Continue reading

House 518 Would Require Transportation and Increased Funding for Recovery High Schools – a Proven Resource in a Troubled Time

Readers may recall a number of posts we have entered over the past few years regarding Recovery High Schools. Massachusetts currently has five such high schools – in Boston, Brockton, Beverly, Worcester and Springfield – and they have each proven to be an excellent support for high school age students who are struggling to disengage from drug and/or alcohol dependence/abuse. A Recovery High School’s ability to provide a solid high school education along with appropriate services and supports to such students, in the company of peers who are struggling with the same issues, is critical to the success of this resource. The alternative – returning to the student’s home high school – is all too often disastrous, as a student’s fragile beginning toward recovery can so easily be crushed by a school district’s lack of supports while a user subculture of peers eagerly draws the student back into its mix. Continue reading

A New First Circuit Case: C.D. v. Natick Public School District

In a recent decision, C.D. v. Natick Pub. Sch. Dist., No. 18-1794 (1st Cir. May 22, 2019), the First Circuit Court of Appeals grappled with the legal standards at the heart of most special education disputes – namely, the entitlement of a student with special needs to a “free appropriate public education” (FAPE) in the “least restrictive environment” (LRE).  The First Circuit’s decision followed the Supreme Court’s decision in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), which, for the first time since 1982, squarely considered the contours of a FAPE.  For an in-depth discussion about Endrew F., please see our previous post here. Continue reading

45 Years Old – Are the Purposes of Chapter 766 Being Achieved?

September 2019 will be the 45th anniversary of the effective date of the special education reform act known as “Chapter 766.” (Although Chapter 766 was adopted in 1972, its full implementation was delayed for two years to allow educators and agencies time to prepare.)

Five years ago we checked in with readers to invite their comments on whether the stated purposes of Chapter 766 were being met.  Comments from some of the advocates and political leaders who were behind the legislation in 1972 were eloquent, insightful and heartfelt. They included, for example, the following from Martha Ziegler, a great civil rights leader whose work in 1972 organizing the widely disparate interest groups of the world of disability advocacy into a cohesive lobbying force was a key factor in the success of the movement, as was her later work founding and presiding over the Federation for Children With Special Needs. Continue reading