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.   

The letter then promotes the use of layered prevention strategies to continue keeping schools safe for students with disabilities. First, in accordance with the Center for Disease Control’s (“CDC”) new masking recommendations based on COVID-19 Community Levels, educators, staff, and families who spend time with children at increased risk of severe illness should consider taking extra precautions regarding masking, even when the COVID-19 Community Level is low. The letter reminds Districts that Districts, schools, and/or classrooms may still implement masking at any COVID-19 Community Level to address the school-related health needs of students. Likewise, Secretary Cardona encourages Districts to promote vaccinations among eligible students, educators, staff, and families, as well as frequent testing, proper ventilation, physical distancing, handwashing, respiratory etiquette, staying home when sick, and cleaning and disinfection.  

Additionally, Districts must make other reasonable modifications when necessary to provide equal access to students with disabilities, absent a showing that the modifications would cause a fundamental alteration or undue administrative burden to the program. Should a parent or other member of the IEP team or Section 504 committee request a particular prevention strategy, consider whether, and to what extent, such measures are necessary to provide FAPE and include necessary measures in the student’s IEP or Section 504 plan.  

Finally, consistent with previous U.S. Department of Education guidance, Secretary Cardona emphasizes the importance of educating students in the least restrictive environment—even during a pandemic. Districts must refrain from placing students at a high risk of severe illness from COVID-19 in a segregated setting away from their peers without disabilities and minimize health risks to allow high-risk students to participate in the least restrictive environment.  

This letter makes one thing clear: Districts are not excused from providing FAPE due to the pandemic. Rather, Districts must continue providing the opportunity for students with disabilities to meet challenging objectives alongside their peers during this time. For legal guidance regarding Secretary Cardona’s letter or educating students with disabilities in the least restrictive environment during the pandemic, contact the author of this post or any member of the Thompson & Horton Special Education Team.