Ruling roundup: Special education during the pandemic

Quick summaries of 14 key judicial and administrative rulings in specific topic areas related to IDEA and FAPE

Courts have been busy hearing COVID-related lawsuits in recent weeks. Here’s a look at 14 special education rulings.

From the courts:

Receipt of services during pandemic KOs students’ bid for payment order
Case name:
Abrams v. Carranza, 77 IDELR 47 (S.D.N.Y. 2020)
Ruling: Because students attending a private school for children with traumatic brain injuries continued receiving IDEA services during the COVID-19 pandemic, they could not compel their district to pay the school for those services while their FAPE complaints against the district were pending. The U.S. District Court, Southern District of New York denied the students’ motion for a preliminary injunction.

LEA must provide in-person services during pandemic, safety permitting
Case name:
L.V. v. New York City Dep’t of Educ., 77 IDELR 13 (S.D.N.Y. 2020)
Ruling: The U.S. District Court, Southern District of New York ordered a district to provide in-person services to a 5-year-old with autism to the extent it can safely do so during the COVID-19 pandemic. The court reasoned that the district failed to explain how delivering the child’s applied behavior analysis therapy and other services via a tablet would provide him FAPE. The court also ordered the district to conduct an independent assistive technology evaluation to assess the child’s individual needs and the software required to deliver his required services remotely.

COVID-related closures may not trigger stay-put rights to in-person IEP services
Case name:
J.C. v. Fernandez, 77 IDELR 15 (D. Guam 2020)
Ruling: The U.S. District Court, District of Guam ruled that five students with disabilities were not entitled to a preliminary injunction requiring the Guam Department of Education to implement their IEP services during state-mandated school closures due to the COVID-19 pandemic. The students with disabilities failed to establish that they would suffer irreparable harm without an injunctive order, the court held.

Teachers union can’t stop Ill. district from enforcing IEP revision deadline
Case name: Chicago Teachers Union v. DeVos, 76 IDELR 237 (N.D. Ill. 2020)
Ruling: In a case arising out of the coronavirus-related school closures, a teachers union could not prevent an Illinois district from requiring school staff to develop remote learning plans for all students with IEPs and Section 504 plans by the end of the SY 2019-20. The U.S. District Court, Northern District of Illinois denied the union’s motion for a court order that would allow additional time for IDEA and Section 504 compliance.

Grandparents can’t compel district to evaluate before schools reopen
Case name:
Jacksonville N. Pulaski Sch. Dist. v. DM, 76 IDELR 238 (E.D. Ark. 2020)
Ruling: The grandparents of a kindergartner with autism were not entitled to a preliminary injunction compelling an Arkansas district to evaluate the child over summer break. In denying the grandparents’ request, the U.S. District Court, Eastern District of Arkansas ruled that the grandparents failed to establish the child would suffer irreparable harm without the injunction. The court suggested that the district consider performing the evaluation before school reopens if safe to do so given the COVID-19 pandemic.

From the Office of Special Education Programs:

Part C evals may occur after 45 days if necessary due to COVID-19
Case name: Questions and Answers on Part C Evaluation Timelines During COVID-19, 76 IDELR 300 (OSEP 2020)
Noting that social distancing measures and other restrictions may make in-person evaluations impracticable during the pandemic, OSEP stated in a Q&A document that lead agencies and early intervention service providers may be able to extend the deadline in some cases. Providers may, in some cases, delay an evaluation, assessment, screening, or individualized family services program meeting beyond the 45-day deadline when necessary due to limitations arising from the COVID-19 pandemic.

Electronic consent OK during COVID with proper safeguards in place
Case name:
Questions and Answers on Implementing IDEA Part B Procedural Safeguards During COVID-19, 76 IDELR 301 (OSEP 2020)
Ruling: Districts may accept an electronic or digital signature for parental consent, OSEP stated in a Q&A addressing the provision of procedural safeguards during the COVID-19 pandemic. Districts may consider factors related to the pandemic, such as the closure of school buildings and social distancing orders when determining timing of prior written notice to parents. While districts may not be able to obtain parental consent in person, when seeking to evaluate or initiate special education services for a child with a disability during the COVID-19 pandemic, that typically shouldn’t stop them from proceeding with a proposed activity.

IDEA may grant SEAs, LEAs flexibility in MOE during COVID-19 pandemic
Case name:
Questions and Answers on Flexibility of IDEA Part B Fiscal Requirements During COVID-19, 76 IDELR 256 (OSEP 2020)
Ruling: Acknowledging that many state educational agencies and local educational agencies are anticipating budget cuts to special education programs due to the COVID-19 pandemic, OSEP stated in a Q&A that SEAs and LEAs experiencing economic hardship due to the coronavirus pandemic may receive some flexibility in meeting IDEA Part B fiscal requirements and with respect to their maintenance of effort obligations.

From state due process:

1-day gap in ESY during COVID-19 leads to comp ed award for SD teen
Case name:
Brookings Sch. Dist., 77 IDELR 55 (SEA SD 2020)
Ruling: A South Dakota district denied FAPE to a student with a speech impairment by failing to provide his special education services through distance learning during the first day of extended school year services and by failing to provide the student transportation as a related service prior to school closures resulting from the COVID-19 pandemic. The state ED ordered the district to provide compensatory education and to compensate the parents for transporting the student. The state ED also found that the district did not unilaterally change the student’s placement by implementing distance learning during state-mandated school closures.

Pandemic-related changes to IEP don’t excuse failure to modify assignments
Case name:
In re: Student with a Disability, 77 IDELR 25 (SEA KS 2020)
Ruling: A Kansas district violated the IDEA not only by failing to ensure a seventh-grader with an intellectual disability received modified assignments when her school closed due to the COVID-19 pandemic, but also by failing to include the parent in the development of the student’s Individualized Continuous Learning Plan. However, the state ED found that the district provided all specialized instruction and related services required by the student’s plan and did so in a timely manner.

Without remote services from aide, COVID closures block child’s progress
Case name:
Beach Grove City Schs., 120 LRP 24255 (SEA IN 07/16/20)
Ruling: The Indiana Department of Education determined that a district violated the IDEA when it failed to properly implement the IEP of a student with an undisclosed disability during the SY 2019-20. It instructed the district to remedy the FAPE violation by providing the student compensatory services. Although the district provided the student virtual instruction through the end of the school year and frequently checked in on her progress, the state ED found that the student did not consistently receive the academic support services required by her IEP. Because “there were multiple weeks where 120 minutes of academic support in the general education setting was not demonstrated,” the state ED determined that the district failed to properly implement the IEP.

COVID-19 circumstances, efforts to send records nix corrective action
Case name:
Perry Twp. Schs., 120 LRP 24253 (SEA IN 07/16/20)
Ruling: While a district provided some educational records to the mother of a student with a medical condition in an untimely manner, the IDOE declined to order corrective action to address the violation. The state ED considered the impact of the COVID-19 pandemic and the fact that the district was “continuing to work on providing” records when it declined to order corrective steps for a district’s failure to provide all of a student’s education records in a timely manner. While some records were released beyond the 45-day time limit, corrective action was unnecessary, the state ED concluded.

Due to COVID-19, private evaluator can’t observe classroom behaviors
Case name
: Westminster Sch. Dist., 120 LRP 22869 (SEA CA 07/14/20)
Ruling: An administrative law judge found that a California district’s triennial assessment of a kindergartner with a speech and language impairment was appropriate. Her mother was not entitled to independent educational evaluations at public expense. The ALJ noted that the parent’s ABA specialist focused on behavior, not academics, did not observe the child at school, and performed his assessment after the child had been distance learning for two-and-a-half months due to COVID-19 school closures.

Cal. district can’t replicate pupil’s current placement for stay-put due to school closures
Case name:
Menifee Union Sch. Dist., 120 LRP 14923 (SEA CA 04/21/20)
Ruling: In an expedited decision, an ALJ noted that a student was entitled to a stay-put order requiring the district to maintain his current educational placement. However, due to COVID-19 school closures, it was not possible to exactly replicate the student’s existing placement. “Therefore, Student shall be afforded the same instructional services as are being provided to other students at [his middle school] during the school closure,” the ALJ wrote.

Documents mentioned above are available to subscribers of Special Ed Connection, a DA sister publication. Subscribers have access to frequent updates on litigation. 

Editor’s note: This Legal Research Center feature helps the busy practitioner by focusing on recent key judicial and administrative rulings in specific topic areas.

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