Schools Must Provide FAPE During Covid-19

Aug 6, 2020 | Covid-19, FAPE, Federal Standards

Question: Are schools that are operating virtually due to the Covid-19 pandemic still required to provide FAPE – a free appropriate public education – to students with disabilities?

Answer: Yes. It’s important for parents to know that schools must still provide FAPE. The right to FAPE, under both the IDEA and Section 504, is one of the most important student rights in special education law. Early in the pandemic, no one knew if Congress would amend or waive this or other important rights. It did not, and in two sets of guidance, the US Department of Education affirmed the right to FAPE. Per the guidance, the delivery of FAPE may look different in a virtual delivery model. In other words, FAPE needs to be provided, but there is flexibility on how FAPE can be delivered.

Let’s look to the March 12th guidance:
“If a [school district] continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE… [S]chools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504.”

And in the March 21 guidance:
“School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible.”

The guidance explains, for example, that it may not be feasible or safe to provide in-person therapies but services can be provided online instead.

Got that? There is some flexibility in how FAPE is provided, not whether it’s provided.