FAPE Focus: Equitable Services for Students in Virtual Schools

You know that LEAs have child find responsibilities for students enrolled in private schools that are located within the district’s boundaries, regardless of where the student resides. And that districts provide equitable services to students with disabilities enrolled in private schools that are located within the district’s boundaries, even if the student lives in another district. But what if the private school is a virtual school? What LEA is responsible for child find and equitable services when the students and educators may be scattered across the state – or even the country?

Introducing Thompson & Horton’s FAPE Focus

Introducing Thompson & Horton’s FAPE Focus, a series of short posts on our SpEd Law Spotlight blog to provide timely updates, practical tips, and useful reminders. First up: TEA has released the form required by HB 3928 that districts must provide to parents when there is reason to suspect a student may have dyslexia and need specialized instruction. The TEA FAQ clarifies that TEA expects districts to provide the form to parents when the district proposes to conduct an IDEA evaluation for dyslexia, refuses to conduct such an evaluation, and when the district proposes or refuses to conduct an IDEA evaluation for any other suspected disability. Districts should incorporate provision of the form into their practices starting immediately.

U.S. DOE Emphasizes Obligations to Protect High-Risk Students as Pandemic Improves  

On March 24, 2020, Dr. Miguel Cardona, Secretary of Education, wrote a letter to educators and parents emphasizing the Biden Administration’s continued commitment to providing services and supports to allow students with disabilities to learn safely alongside their peers during the pandemic.  This letter provides strategies for educators, Districts, and families to enable students with disabilities to participate in in-person instruction and to receive a free appropriate public education (“FAPE”) in the least restrictive environment.  

Secretary Cardona first encourages IEP teams to leverage IEP and Section 504 processes to provide protections for in-person learning.  IEP teams (ARD Committees in Texas) and Section 504 committees must address school-related health needs of students with disabilities at an increased risk of severe illness from COVID-19 in IEPs and Section 504 plans and place students in the least restrictive environment that meets those needs. IEP teams and Section 504 committees should also consider whether students at a heightened risk of severe illness from COVID-19 require a health plan to address preventative and risk-reducing strategies, such as proper sanitizing or physical distancing. When health plans are included in the student’s IEP or Section 504 plan, these documents must be provided to each individual responsible for implementing the student’s IEP or Section 504 plan.   

New OCR Fact Sheet Shines Light on Provision of FAPE, Comp Services for 504 Eligible Students

Since COVID-19 first reared its ugly head, we have been discussing when and to what extent schools would be required to provide students with disabilities compensatory services due to the pandemic. On February 16, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released a fact sheet reminding schools that the responsibility to provide compensatory services also applies to students receiving services under Section 504. OCR recognizes that a school’s provision of compensatory services to a student does not devalue the school’s good faith efforts to educate students with disabilities during these difficult circumstances. Instead, OCR describes compensatory services as a remedy to address the unfortunate reality that unavoidable interruptions caused by the COVID-19 pandemic may have harmed many students with disabilities.  

The fact sheet also reminds schools of the responsibility to continue providing FAPE as the COVID-19 pandemic lingers. Notably, the fact sheet recommends that when considering whether changes in services are necessary to provide a student FAPE, Section 504 teams should consider not only the impact of the loss of services on skills and any mental health and trauma concerns but also any physical health effects of “long COVID.” Keep reading for more analysis of this new resource.