Flurries, FAPE, and Flexible Instruction Days

News & Events

Flurries, FAPE, and Flexible Instruction Days

Alert Date: September 9, 2019

By: William J. Zee and Kalani E. Linnell
Related Practice Areas: Education and K-12

Students and teachers welcome snow days as an unexpected break from the winter education routine. By the time June rolls around, however, dreaded make-up days put a freeze on summer vacation. Temporary closures also may have a chilling effect on student learning by interrupting instruction, which is most beneficial when delivered consistently throughout the school year.

In an effort to thaw those effects, a recent amendment to the Pennsylvania School Code allows districts to establish their own version of the Flexible Instructional Day (FID) Program. The Pennsylvania Department of Education is overseeing the approval of the programs and is offering guidance to school districts.

Approved FID programs will allow schools to deliver instruction to students remotely up to five days per year, either using technology or some other means, when extenuating circumstances prevent the school from opening. These FIDs will count toward the district’s minimum of 180 student instructional days per school year.

Among other things, school districts seeking to establish a FID program must provide the Pennsylvania Department of Education with “assurance of compliance with the Individuals with Disabilities Act (IDEA).” In addition, compulsory attendance laws and regulations require school districts to enforce attendance during FIDs, so school districts must establish a procedure for identifying student participation. A FID program also must delineate the responsibilities of professional employees and students during a FID.

Even outside of the FID Program context, a district’s failure to deliver a Free Appropriate Public Education (FAPE) under either the IDEA or Section 504 can cause an avalanche of problems. Special consideration must be taken prior to implementing a FID program to ensure that FAPE continues to be provided. The delivery of instruction to students covered by the IDEA or Section 504 needs to be tailored to each student’s unique needs.

Schools that applied for FID approval will receive an answer by November 1 from the Pennsylvania Department of Education. In the meantime, schools should begin considering what FID Program implementation will look like for students with disabilities.

If your school has questions about the legal requirements associated with Flexible Instructional Day Programs or the delivery of FAPE, please reach out to me or any member of the Barley Snyder Education Practice Group.
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