Special Education SpotlightSpecial Education Expertise and Insight
Tag: FAPE
ARD Committees put a lot of time and effort into drafting clear, ambitious, and supportive IEPs. We attorneys spend a lot of time training teams on drafting legally compliant IEPs, reviewing IEPs, and negotiating IEPs. But what happens next? Implementation is where the magic happens. And implementation lapses are frequently where due process and state complaints happen. Here are five tips to support consistent implementation and avoid trouble.
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.
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.