FAPE Obligation During COVID-19
Archived COVID-19 Page
Explanation
Regardless of the impact the ongoing COVID-19 pandemic has on the learning model in a grade level, building, or district, one constant is the obligation the district has to provide all students with disabilities a Free and Appropriate Public Education (FAPE). This section outlines the key characteristics of a FAPE as well as guiding questions, considerations and resources for teams to use when determining how to provide a FAPE to each individual student with a disability being served in our schools.
However, the U.S. Department of Education has recognized that schools will not be able to implement the IEP exactly as written; districts need to be creative and do their best, they need to individualize plans, and they need to adapt in various learning models while keeping health and safety at the forefront.
Key FAPE Characteristics
Following the 2017 Supreme Court Decision in Endrew F. vs. Douglas County a FAPE was redefined to include the following characteristics:
An IEP that is reasonably calculated
Opportunities to make progress appropriate in light of the child's unique circumstances
The chance to meet challenging objectives
Parents are engaged in IEP planning in meaningful ways
While these FAPE characteristics do not change when the learning environment changes as a result of health and safety concerns related to the COVID-19 pandemic, the US Department of Education has recognized that schools aren't going to be able to provide identical services and supports to those listed in a student's IEP.
Instead, the IEP team must be creative and make individualized considerations to ensure that each student with a disability is able to participate and progress during any learning model, particularly distance learning.
FAPE Self-Check Questions
Frequently Asked Questions
If my student's parent has elected distance learning and the IEP team believes a FAPE is best provided through in-person learning, how should we proceed?
As is the case in typical circumstances, the district is considered the expert when it comes to the provision of FAPE, and for this reason, the obligation to provide it falls to the district. To this end, the district needs to offer to the parent a plan they believe is reasonably calculated to allow the student to make progress in light of his/her unique circumstances. If that involves in-person learning through a hybrid or in-person for all students model, then the district must propose that plan, even if the parent chooses not to accept it.
An IEP Team has two options for how to document the proposal or consideration of in-person or hybrid learning:
The District could propose in-person or hybrid learning formally by documenting the action in box 1 of the PWN: Action(s) Proposed or Refused
example: The district is proposing that Student return to in-person learning instead of continuing to participate in distance learning.
The district could document that the team considered bringing the student to school for in-person services in box 4 of the PWN: Other options considered and why those options were refused
example: The team considered bringing Student to school for in-person services, but parents have determined that they continue to choose distance learning, as is their right per the Governor's executive order. The team decided that the CLP service and support changes described above, including parent coaching, will be implemented before revisiting a change in Student's learning model to in-person instruction.
Again, a complete CLP should be developed for each student, regardless of what the parent chooses.
How many service minutes are sufficient to provide a FAPE? What is the minimum amount of service required?
It depends. There is no black and white answer to this question as all service minute determinations are based on the individualized needs of a student. What constitutes a FAPE for Student A does not necessarily constitute a FAPE for Student B. Direct and indirect service minutes during distance learning need to be aligned to those in the IEP, though not identically the same. Service minute duration and frequency need to be reasonably calculated to meet the needs of each individual student. There is no exact formula.
Further information about special education services can be found here.
What if services are temporarily suspended due to operational challenges of COVID-19?
When operational challenges exist, the US Department of Education and Minnesota Department of Education urges school teams to be creative and provide necessary special services to the greatest extent possible, though perhaps utilizing staff, methods, or settings that are not typical.
If services cannot be provided to any extent due to operational challenges associated with COVID-19 (i.e., an entire team in quarantine, a significant number of paraprofessionals in quarantine, etc.), please reach out to your Special Services Supervisor (SSS) for guidance. In most cases, when the suspension of services is temporary (i.e., a couple of days), then the impact on the provision of FAPE is likely minimal. However, in some cases, compensatory education may be warranted and each situation will require individual analysis. Regardless of the circumstance, parent communication and involvement is key.