Wisconsin School Closure: Understanding Students’ Rights Concerning IEP Services and Programming (Part 1)

The COVID-19 pandemic is impacting everyone, in multiple ways.  For students with an Individualized Education Program (IEP) and their parents, the recent statewide school closures in Wisconsin have raised important questions about students’ rights.  

In this first blog post in a two-part series, we’ll look at how school closures impact students’ rights to services and programming.  

Students’ Rights to a Free Appropriate Public Education (FAPE) 

Students with IEPs do have rights during this period of school closure.  The foundation of those rights is based on the right to a free appropriate public education (FAPE), as expressed by the U.S. Supreme Court in Endrew F. v. Douglas County School District, 137 U.S. 988 (2017). 

Under the Endrew F. decision, schools must offer an IEP that is “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”  Importantly, this requires services to be individualized to meet the unique needs of a child with a disability.  

This right is not new because of school closure or the pandemic, but it is recognized and understood that it has become more challenging for districts to deliver a FAPE during this time given the current measures taken to protect public health and the resulting school closures. 

As set forth in federal¹ and state guidance², if a district is not providing educational services to the general student body during this school closure period, then the district is not required to provide services to students who have special education needs.  Instead, the district must resume providing FAPE under the IEP when school resumes.  It is important to note that students may be eligible for compensatory services if determined necessary by the IEP team when school resumes.  This is a decision made on an individualized, case-specific basis.  

Districts not providing services are becoming less of a factor since the initial weeks of school closures.  As districts faced the continuation of closure more and more districts have stepped up and are now providing educational services to their student body. 

Most districts are providing educational services to the general school population now, even though the school facilities themselves are closed due to COVID-19.  Under this scenario, the law is clear: The district must provide equal access to the same opportunities to students with disabilities.  In other words, the district must provide a FAPE and should be providing as much of the current IEP to “the extent possible.” ³ 

A Variety of Ways to Deliver FAPE Services to Students with IEPs 

Delivering Services, of course, is where the challenge comes in.  The district must consider how to deliver the same services being provided to the general student body to students with IEPs that will be effective for each individual student while at the same time following safety measures during this pandemic.  

Distance learning options range from low-tech solutions such as paper and pencil packets to incorporating a variety of video and online resources.  Tools such as video conferencing for academic instruction, daily “check-ins” and small group sessions to maintain social skills can be utilized.  On-line instructional activities, telephone calls with students or parents, audio or video recordings, other video or televised educational programs, and print materials through Bookshare, Learning Ally, American Printing House for the Blind, as well as speech, occupational and remote physical therapy sessions are just some of the options available.  The key is to make the curriculum accessible and appropriate for the individual student. 

The school closure requirement came quickly, and a number of school districts were caught unprepared.  It appears that over time, more districts, and in fact individual teachers, are coming up with and offering services and more effective delivery models for students with IEPs.  Hopefully, your district is working diligently to address this situation and has school learning options for your student based on their needs, abilities, and learning style.  If not, you may want to advocate for your child through collaboration with your child’s special education teacher or other appropriate IEP team members.  Together you can use creativity and flexibility to suggest realistic, helpful strategies and services for learning options based on your child’s individual strengths and needs and the ability to access services remotely in your home.  

Some Flexibility is Needed Under the Circumstances 

Of course, keep in mind that given the current situation, it is probably not realistic to expect that your child will receive all of the same IEP services in the remote format that he/she received in person before the school closures occurred.  When a student with an IEP returns to school, the IEP team will need to determine if compensatory services are necessary and required given the changes during the closure period.  

Keeping track of any reduction in the amount of services your child is receiving as well as keeping track of progress (or lack of progress) during the period of closure will be helpful for you later during the discussion of compensatory services that will occur when school resumes.  This could be a video recording or data sheet showing your child’s skills existing when school closed compared to his/her ability to perform those same skills when returning to school.  This would track the important skills specific to your child and his/her disability and needs such as reading, writing, behavior, speech or independent work ability. 

Know that this is a very fluid situation, given the changes brought on by the pandemic, but also the changes being made at the federal, state, and school district levels.  As the situation continues to evolve, expect that additional guidance and rules will be forthcoming in both the health and education areas.  

In the second installment in this blog series, we will explore how COVID-19 impacts students’ and parents’ rights to various IEP meetings during school closure.  

At Schott, Bublitz & Engel, we help students and parents with a variety of school law and special education issues. To learn more or to speak with an IEP Services Attorney, contact us today.  

¹ Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak, 76 IDELR 77 (EDU 2020) 

² Extended School Closure for Students with IEPs due to COVID-19 Special Education Question & Answer Document, (WI DPI, Revised 4/23/20) 

³ Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak, 76 IDELR 77, p. 2 (EDU 2020)