Encouraging Changes: DESE Provides Updated Guidance to School Districts Regarding the Provision of FAPE During School Closures

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.

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.

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

A Superb Article on Endrew F. Closes Bill Crane’s Career as an Advocate for Children with Disabilities

Bill Crane has just posted an excellent article on the website for Mass Advocates for Children (“MAC”), analyzing and commenting on the ramifications of the U.S. Supreme Court’s Endrew F. decision on the required standard for services and placements under IDEA.    Continue reading

Providing an IEP May Not Suffice if a District Fails in Its Child Find Obligation

Suppose a child exhibits troubling behaviors and/or difficulties learning basic skills in kindergarten or another early grade. Suppose further that, despite the child’s problematic performance, no teacher or other public school employee recommends that the child be evaluated. Perhaps that child passes through first and part of second grade with similar problems until finally a referral is made, an evaluation completed, and an IEP developed. Problem solved? Not entirely. The question remains whether the district should have taken these steps much earlier and whether any remedy is available to make up for the lost time and services.

The District of Columbia Circuit recently held that, although a school district’s provision of an IEP may satisfy the district’s obligations now and for the immediate future, parents may still be entitled to compensatory education for the months or years when their child was not yet on an IEP or identified as eligible for special education. Boose v. District of Columbia, 786 F.3d 1054 (D.C. Cir. 2015). Continue reading

Federal Guidance Regarding Speech-Language Services for Students with Autism

The Office of Special Education Programs of the United States Department of Education (“OSEP”) issued a “Dear Colleague Letter” letter on July 6, 2015 regarding speech-language services and evaluations for children with Autism Spectrum Disorder (ASD). Continue reading

Parents are awarded an out of district placement after proving that the district’s program for a child with Autism and Intellectual Disability does not provide FAPE

A Brookline family has just prevailed in a decision issued by the BSEA’s newest hearing officer, Amy Reichbach, finding that the district’s program did not provide a FAPE and ordering Brookline to place the student at the RCS Learning Center in Natick.  In Re: Jacqueline, BSEA #1408578.  Attorney Dan Heffernan of our firm represented the family in this close, complex, and hard-fought case.  The decision highlights many of the types of issues that frequently arise where districts struggle to address the severe and multifaceted needs of children who require intense, systematic, consistent, and comprehensive services and need to be with peers who will provide for mutual learning and progress.  Districts do their best to meet such needs in most cases, but the lack of a sufficient cohort of students with comparable needs and the incompatibility of the normal structure of a regular school setting – generally open and flexible, expecting growing independence from all students – often make it difficult for a severely involved child to make meaningful progress.  Continue reading