Special Education Update: COVID Changed Everything about Special Education Except the Law

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.”

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.” 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 circumstances of the student sounds simple enough, but this tenet of special education law does not always fit neatly in real-world application. For example, it is well-settled that the availability of programs or services cannot be a determining factor in making service recommendations and COVID has not changed that. Accordingly, in a COVID world, statements like “day programs have no availability for the foreseeable future” can deny FAPE where a student needs those services. Likewise, statements such as “residential facilities are not accepting new students,” while perhaps true, likely will be an IDEA violation for a student who cannot be appropriately educated outside of a residential facility.

Another established legal principle is that lack of sufficient resources or personnel is not proper justification for the failure to provide FAPE. Notwithstanding that personnel shortages due to COVID are rampant nationwide, schools must find a way to deliver IEP services or risk an IDEA violation. Thus, if a student’s IEP includes a one-toone aide, the fact that the school district has posted the position but had no applicants for months will not excuse the failure to implement the IEP.

Navigating the Realities of COVID

So, what should school districts do when COVID circumstances have left them without staff or other resources to deliver IEP services? Wouldn’t amending an IEP to change or decrease services for reasons other than the individual needs of the child violate IDEA?

It is our view that where an IEP offers appropriate goals and services, the IEP should not be changed, even if the current realities of COVID prevent its full implementation. A student does not need less speech services than his/her IEP provides just because the district’s only speech service provider retired after 35 years because of health risks from COVID. Writing or amending an IEP to offer only the services a district is able to provide, where those fall short of FAPE, would not be legally defensible.

We believe that the preferable course is to ensure that the IEP offers FAPE and make all reasonable efforts (and document those efforts!) to implement the IEP. If staff shortages are a barrier to delivering services, post available positions, make efforts to publicize them, and even consider staffing company options, if available. Continue creative hiring and retention efforts (and document those efforts!) to find and keep needed staff and other resources. And when IEP services simply are not available despite the district’s best efforts, communicate with the parent that the district will offer compensatory services for those missed. For example, if a student needs residential placement for FAPE but no availability can be found, provide the services that can currently be delivered, document ongoing efforts to find an appropriate placement, and communicate with the parent the district’s offer of compensatory services for the time the placement was not available.