Virtual Placement for Special Education Students

Although most schools are back to in-person instruction, the ongoing COVID-19 pandemic led many school officials (and parents) to consider virtual learning. Special education students typically have the same right to participate in virtual programming as their non-disabled peers if the virtual placement provides the student a free appropriate public educa­tion (FAPE). Before placing a special education student in a virtual program, the following questions should be reviewed:

Is virtual programming appropriate?

If a parent is interested in virtual programming, consider convening an IEP Team meeting to review the student’s existing data to determine if a FAPE can be provided in a virtual setting and whether virtual learning is appropriate for the student. The student’s current IEP should be examined to determine if the student’s program and services can be provided virtually. The student’s previous experience in a virtual setting, if any, should also be considered.

If the IEP Team determines that the student may receive a FAPE in the virtual setting, then the school may proceed with a virtual learning placement. Special education students have the same right to virtual programming as their non-disabled peers unless a FAPE cannot be achieved in the virtual setting. Denying a virtual learning placement to a student with a disability based on disability stereotypes or generalizations may expose a school to significant legal liability.

What about ancillary services?

If the student’s IEP requires ancillary services that cannot be provided virtually, (e.g., physical therapy), the student’s IEP Team should create a plan for service provision and provider awareness.

What happens to the IEP?

The student’s IEP may need to be amended. Although an IEP amendment may be accomplished without an IEP Team meeting with parental agreement and prior written notice, we nonetheless recommend convening an IEP Team meeting to discuss a student’s transfer to a virtual setting given the intricacies of shifting from in-person to virtual learning.

The IEP Team must ensure that the student’s amended IEP accurately reflects the school’s offer of a FAPE and the provided supports and services. School officials should focus on the duration and frequency of programs and services to ensure that all IEP terms can be fully implemented. Never remove aids or services that are required for a FAPE simply because they canno­t be offered virtually.

In the IEP notice provision, the school should include a statement that virtual programming was considered pursuant to the parent’s request and, if it is later determined that virtual programming is not appropriate, the IEP Team will reconvene. Finally, the notice provision should identify any in-person services that will be provided.

We have an IEP, now what?

Continue to monitor the IEP’s implementation. Out of sight should not mean out of mind. School officials should create a plan to regularly check on the student and program/service provider to ensure that the IEP is being implemented and offers a FAPE.

What happens if we decline to provide a virtual program?

Parent interest in a virtual program does not mean that the school must provide a virtual program, but special education students should have an equal oppor­tunity to participate in any virtual program options offered by the school if the student can receive a FAPE. The IEP Team determines programming and place­ment. Accordingly, if the IEP Team determines that a FAPE cannot be provided in the virtual setting, then the school’s offer of a FAPE should not include placement in a virtual setting.

In that situation, the school must provide prior written notice to the parent and include IDEA procedural safeguards. Prior written notice may be included on the IEP’s notice page if the IEP Team considered virtual programming at its meeting.

Closing Thoughts

A school must never decline virtual programming based solely on the student’s disability. Schools must always provide a FAPE to eligible students. Failure to do so, even based on a parent request, can result in due process complaints, compensatory education awards, and attorney costs. If you have questions about virtual programming, please contact a Thrun special education attorney.