School districts across Wisconsin are contemplating how to begin school for the 2020-2021 school year with the current public health emergency caused by COVID-19. There are essential questions that school districts must answer concerning special education once the district determines whether to start school entirely virtual, entirely in-person, or with a hybrid model that blends a few days of each mode of instruction.

Will All of the District’s IEPs Provide FAPE?

The Department of Public Instruction (“DPI”) advised school districts last Spring that annual individualized education program (“IEP”) teams should develop IEPs as though schools will open normally in the Fall. IEP teams should consider whether the IEPs developed in the Spring can be fully implemented if the school district provides virtual instruction or a hybrid instructional schedule in the Fall.

The Individuals with Disabilities Education Act (“IDEA”) requires that every eligible student must have an IEP in place that is reasonably calculated to provide a free appropriate public education (“FAPE”). Failing to offer an IEP that provides FAPE can be a costly mistake, as a recent federal district court decision demonstrated. Grafton Sch. Dist. v. J.L. by and through L.L., 2020 WL 3843996 (E.D. Wis., July 8, 2020).

In Grafton, the student’s IEP team met in May 2018, for the annual IEP meeting. The parent raised concerns about the student’s progress in writing and asked that the District pay for summer programming at a private school. The IEP team was not able to complete the IEP at the meeting, although the team drafted six (6) goals. The parent and school district subsequently agreed to leave the partially drafted IEP as a placeholder through the summer and to reconvene the IEP team to discuss the student’s progress at the private school over the summer.

The parent refused to meet with the IEP team in August 2018 despite repeated efforts to schedule a meeting. The parent eventually notified the school district that she would be enrolling the student in a different private school and that she expected the school district to pay its tuition. As a result, the school district never reconvened the IEP team or completed the student IEP for the school year.

The parent filed for due process seeking reimbursement for the private school tuition. The administrative law judge (“ALJ”) awarded the reimbursement request holding that the incomplete IEP was not reasonably calculated to provide the student FAPE. The ALJ also reasoned that the District was required to offer an IEP that provided FAPE, and the parent’s refusal to meet did not relieve the District of its obligation. The ALJ further reasoned that the District should have convened an IEP meeting without the parent to finish the annual IEP. The District’s failure to do so, however, meant the ALJ only had the incomplete May IEP to consider. The ALJ concluded that the May 2018 IEP was not reasonably calculated to provide FAPE, and thus, the parent was entitled to tuition reimbursement.

On appeal, the District Court for the Eastern District of Wisconsin upheld the ALJ’s ruling finding that the parent’s refusal to meet did not excuse the District’s failure to offer an IEP reasonably calculated to provide FAPE.

The decision in Grafton underscores the importance of ensuring that student IEPs accurately reflect the special education and related services students will receive when school starts. School Districts may need to revise IEPs if staff cannot implement the special education and related services required using the selected mode of instruction. Further, school districts must ensure that the IEP offered to each student is reasonably calculated to provide FAPE to avoid reimbursing parents for private schools offering their preferred mode of instruction (i.e., private schools that offer full-day in-person instruction while the school district that requires at least some virtual instruction).

How Will Limits on In-Person Instruction Apply to Special Education?

Special Education Directors in school districts that choose to provide entirely virtual or a hybrid blend of in-person and virtual instruction will need to determine whether these options are sufficient for special education students. Under the IDEA, the IEP team must make decisions about a student’s educational program on an individualized basis. Eligible students who were not successful in a virtual setting in the Spring may need in-person instruction more frequently than their non-disabled peers to receive FAPE.

As a result, school districts that choose a hybrid model that includes two (2) days of in-person and two (2) days of virtual instruction may need to consider allowing some special education students to attend in-person four (4) days a week to receive FAPE. The IEP team must base its decision on the student’s educational needs, not on administrative convenience, or to accommodate parent schedules.

School districts that choose an entirely virtual option could argue that an in-person educational setting is not available in the District, and therefore, not available for special education. However, this could lead parents to seek in-person instruction from a private school and seek tuition reimbursement from the school district. As noted earlier, the school district must show that the IEP offered to the student was reasonably calculated to provide FAPE.

Unlike last Spring, when the State prohibited all in-person instruction, school districts now can choose to provide limited in-person instruction to special education students even though the school district does not offer that option to general education students. Where a school board is considering entirely virtual instruction, administrators should seek clarification on whether the school district can offer special education instruction in-person.

How Will the School District’s Mode of Instruction Impact Additional Service Determinations?

School districts must consider additional services for every student with a disability to address the impacts of the school closures in March 2020. DPI advised that school districts should determine additional services as soon as possible but no later than six (6) months after the 2020-2021 school year begins. DPI further advised that the timeline for determining additional services starts regardless of the mode of instruction the school board selects. School districts should consider how it will gather sufficient data to assess student progress and determine additional services under the school district’s mode of instruction.

Additionally, some students may need additional services before school starts to address mental health issues arising out of the school closure or to acclimate to a learning environment. School districts should consider how the selected mode of instruction may impact a student’s need for additional services before the school begins. For more information about additional services and the relevant factors, please see our legal update on the topic.


School districts are considering many factors from a variety of sources to determine how to open schools safely for the 2020-2021 school year. Special education will be impacted no matter what decision the school district makes about the mode of instruction to start the year. District administration should be ready to assess special education issues and address them to ensure eligible students receive FAPE.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Chad P. Wade

Chad P. Wade | 833-654-1176

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.