As the 2020-2021 school year is set to begin in a few short weeks, parents have many questions and concerns about how their children are going to be educated this year due to the COVID-19 pandemic. For parents of students with Individualized Education Programs (IEPs) or 504 plans, the uncertainty around how students access their education may be significant. These students may need intensive individualized instruction, related services like speech or occupational therapy, may have difficulty accessing online platforms, or are medically fragile, among many other needs, due to a disability (or disabilities). Most districts have provided little to no guidance around the needs of these students when discussing plans for the 2020-2021 school year.
There are generally three different models of education being proposed nationally – in-person learning, distance learning, or a hybrid model with a mix of in-person and distance learning. The public health ramifications of the in-person and hybrid models are untested. It is likely that, regardless of the model adopted by your district, there will be periods where distance learning will be the sole education model offered to students. In some districts, it may be the only model offered. It is also anticipated that this will not be crisis learning, similar to what occurred from March – May 2020, but rather a bona fide attempt at education through distance learning.
Regardless of the model chosen by your district, your child’s IEP team needs to determine how to provide your student with free appropriate public education (FAPE) whether your child is receiving their education through any of the models being used or proposed under the current circumstances.
Ask yourself: is my child being offered specifically designed instruction, related services, and accommodations and modifications that provide equal access to general education instruction provided through distance learning? The answer is likely, no.
There is no COVID-19 pandemic or emergency exception to a district providing FAPE to its students with IEPs. As it stands, the U.S. Department of Education has stated that FAPE must be provided whether a student is learning virtually or in-person.
Individualized Distance Learning Plan
In order for successful distance learning by students with disabilities to occur, our position is that schools should develop an Individualized Distance Learning Plan as an addendum to a student’s current IEP or 504 plan. 
Every situation is unique. Here are possible next steps and subjects to discuss with your IEP or 504 team:
Request an IEP or 504 team meeting. Keep in mind that meetings may not occur until the planning periods begin and teachers are again under contract.
Write out your questions and concerns for discussion at the IEP or 504 team.
Develop an Individualized Distance Learning Plan through discussion with your child’s IEP or 504 team.
Request a written draft of the Individualized Distance Learning Plan at the end of the meeting, along with a copy of the Amended IEP. Be sure to review the written draft carefully. It should fully and completely describe your student’s plan and include accurate meeting minutes reflecting the IEP team discussion.
Topics for discussion at the meeting may include, but are not limited to:
Remote access capabilities
Tools: computer, tablet, phone
Availability of reliable internet access
Modalities being offered/proposed by service area (academic services/specifically designed instruction; related services; etc.):
Online learning websites
Online instructional materials
Other (be creative)
How will any of the modalities offered be individualized to my child’s needs?
How will any of the modalities offered be individualized to align with my child’s IEP
Baselines – where was my student prior to beginning distance learning?
Which goals/objectives roll over into the distance learning plan?
Defining new goals/objectives
Frequency – maintaining motivation
Who will be taking data?
How will it be taken?
When will it be taken?
How often will it be taken?
How will progress monitoring be shared with me?
Replicating accommodations at home
Means: phone, video-conference, text, email
Each question or concern should be documented in the meeting minutes. You can ask that your list of questions and concerns be included in your child’s education records by attaching them to the IEP or 504 plan developed at your meeting.
The district may ask you to agree that the Individualized Distance Learning Plan provides FAPE. It is inappropriate for the district to ask you to make this decision. Whether the distance learning plan is appropriate or will permit your student to make progress remains to be seen. This is no different than how you would approach your pre-distance learning IEP.
Do not for any reason or under any circumstances waive your right to compensatory education in the future. (To learn more about compensatory education, you can review the guidance provided by COPAA – Council of Parents, Attorneys & Advocates, available at https://cdn.ymaws.com/www.copaa.org/resource/resmgr/docs/2020_docs/copaa_statement_on_compensat.pdf) If you are unsure about whether you have waived or are being asked to waive compensatory education, you should immediately seek legal advice and counsel.
In 2017, the U.S. Supreme Court ruled that an IEP must be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” The crisis we are living through does not negate your child’s right to an appropriate education.
If you are having difficulty getting an IEP designed to provide your student with a meaningful plan that addresses the current situation, want assistance at an IEP meeting, or wish to discuss your child’s education program in general, you can reach The Sullivan Law Firm at (912)289-1081 or through our website: www.jhsullivanlawfirm.com. We may be able to help.
 SARS-CoV-2 is the virus that results in the disease we know as COVID-19.
 https://www.ed.gov/news/press-releases/secretary-devos-reiterates-learning-must-continue-all-students-declines-seek-congressional-waivers-fape-lre-requirements-idea (last visited July 10, 2020).  We believe that this individualized distance learning plan should be an additional part of your student’s IEP and should not replace the plan designed for the typical school setting. Your student’s IEP should be amended to include this plan in order to document any distance learning provided to your student, but the pre-distance learning IEP remains your student’s placement for all other purposes.  Endrew F. v. Douglas County School District, RE-1, 137 S. Ct. 988 (2017).
This statement does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This statement is in the form of legal education and is intended to provide general information.