COVID Changed
Everything Julie J. Weatherly, Esq.
Attorney & Founder Resolutions in Special Education, Inc.
COVID has changed everything about Special Education except the law. COVID-19 has impacted every aspect of education, especially special education. In addition to creating new modes for delivery of instruction, schools are navigating the complications of educating and protecting students with disabilities during COVID who may not receive the same benefit from remote learning options and may have unique health and safety concerns. As schools reopen to in-person learning, we are often asked “What do we do if, as a result of COVID, our district doesn’t have and can’t find something needed by a student with a disability?” This question can stem from a shortage of service providers and/ or support personnel or difficulty locating placement options, especially day programs and residential placements where safety protocols may limit the number of individuals attending. While COVID has forever changed the world of special education, the requirements of the law have not changed, even if compliance is more challenging and, in some cases, impossible. Regardless of the circumstances of COVID, the U.S. DOE steadfastly maintains that students with disabilities remain entitled to a free appropriate public education as set forth in their IEPs. As a result, answers to questions such as “What do we do if, because of COVID, we don’t have, can’t find, or can’t afford …” apply the same legal standards that existed before the pandemic, even when they are unworkable in the “new normal.” 10
The Legal Standard for FAPE As explained by the U.S. Supreme Court in 2017, “[t] o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”i As has always been true in developing an IEP, service recommendations must be based on the individual needs and circumstances of the student and nothing else. Consequently, school team members must respond to parent requests for services based upon what the student needs to make progress, rather than what the district has, always does, or has never done before. Thus, the sole question for FAPE is this: “What do the school’s data reflect a student needs in order to make progress appropriate in light of his/her circumstances?” That FAPE is all about the individual needs and
