06 October 2020

U.S. Department of Education Issues Pandemic Era Guidance on IDEA and FAPE

On September 28, 2020, the U.S. Department of Education’s Office of Special Education Programs (OSEP) issued guidance, in the form of a Q&A document, to address questions surrounding the implementation of the Individuals with Disabilities Education Act (IDEA) in the COVID-19 environment.  The document incorporates questions regarding the initial evaluation process, annual IEP team meetings, and reevaluations, shedding light on what to do when face-to-face meetings and evaluations are unattainable or impracticable.

OSEP emphasized that schools must continue to make every effort to provide students with disabilities with the special education services that meet their individualized needs and provide FAPE – even if those services need to be provided in a different manner.  IEP Teams are empowered to identify and “consider a variety of instructional methods and settings.”  Where face-to-face IEP meetings and student evaluations are not feasible or practicable, OSEP recommended considering alternate means, such as a telephone or video conference call, if acceptable to the parents and other IEP Team members.  This option is available for both initial and annual IEP Team meetings.

Additionally, OSEP underscored that the requirement remains that an IEP for each student must be completed by the start of the school year.  In discharging their obligations, IEP Teams may need to determine whether revisions to the IEP are necessary.  With a parent’s consent, a district can amend the IEP without a meeting as long as the required annual IEP meeting is ultimately held – and parents must be provided with notification of their rights regarding the changes.  Relatedly, school districts are not discharged from their obligation to provide extended school year (ESY) services, where applicable.  Students that were not provided ESY services during the summer may need to be provided with those services during the school year in order to meet FAPE obligations, even if the school district is currently only providing distance learning.

Relative to reevaluations, school districts are encouraged to determine all appropriate assessment tools and instruments, and determine whether those tools and instruments can be administered remotely for any “in-person” (either live, in person, or via videoconferencing) observations, provided doing so would not significantly affect the reliability or validity of the results.

The document serves to reiterate school district obligations and responsibilities relative to FAPE and bolsters OSEP’s March 21, 2020 guidance concerning the determination of FAPE in the COVID-19 environment, which may be found here.  As conditions continue to change, flexibility and cooperation remain of vital importance, and OSEP encouraged school staff and parents to work together to ensure special needs are appropriately being met.

The Q&A document may be accessed here.