August 12, 2020
The primary two-part question arising under the IDEA and Section 504 as a result of the COVID-19 pandemic is (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, typically but not exclusively in the form of compensatory education?
Further Federal Guidance
Since the original set of guidance documents under the IDEA and Section 504 that the U.S. Department of Education (USDE) issued in March, the Department released a second wave of “informal guidance” in June and early July.1 None of these relatively recent documents comes close to answering these two core questions. Nevertheless, they address the various specialized areas of practical interest, including the following:
- funding waiver requests (June 8, 2020)
- assessment waivers of the 1% cap (June 9, 2020)
- dispute resolution procedures (June 22, 2020)
- use of IDEA Part B funds (June 26, 2020)
- procedural safeguards under Parts B and C (June 30, 2020)
- Part C evaluation and assessment timelines (July 6, 2020)
State Administrative Decisions
The decisions from the IDEA’s state complaint and due process hearing avenues have touched upon the core questions to a limited but slowly enlarging extent. Due in part to the generally limited filings and the often delayed completion under the unprecedented conditions of the pandemic, the number of decision administrative decisions remains very low. Since my June 30 special supplement, which reported two state complaint decisions, I have only found an additional state complaint decision from Kansas and a due process hearing decision from Massachusetts.
In the Kansas case, the complaint investigator concluded that the district violated the IDEA in three ways during the pandemic: (a) failing to implement the IEP provisions for modified homework and assignments; (b) failing to provide meaningful participation for the parent in the development of the individual continuous learning plan (ILCP), and failing to provide the parents with prior written notice for the ILCP. Yet, the investigator also concluded that the district provided FAPE to the child via the ILCP. The remedies for the violations included a change in procedures and the provision of specified training, but not compensatory education. Particularly notable in the decision is the reliance on the USDE and Kansas state education agency guidance. For the full findings and conclusions, read the decision [PDF].
The Massachusetts due process hearing decision was based on the district’s dismissal motion, which is allowed under the state’s procedures and which accepts the parents’ allegations as facts for the limited purpose of deciding whether to grant the district’s motion. The claim was based on the student’s senior year, with the focus being on the pandemic period, during which the parents—like those in the Kansas decision above—alleged that the district’s remote instruction failed to provide FAPE. Based on Massachusetts’ law and the circumstances of the case, the hearing officer dismissed the parents’ FAPE claim for the first semester of the student’s 12th grade and ruled that she had no authority to stop the student’s scheduled graduation, per her IEP’s transition plan. However, she refused to dismiss the claim for compensatory education for the relevant pre-graduation period, thus preserving the issue for a hearing, in which the parents had the burden to prove the denial of FAPE and the entitlement to compensatory education. She also ordered the parents and student to amend the complaint to clarify whether the student agreed with the complaint, because her IDEA rights had transferred to her upon reaching age 18 during the school year in question. Read the full decision [PDF] for your own assessment.
Court Actions
Court lawsuits and to a much more limited extent court decisions have attracted more public attention, but they continue to address rather specialized issues.
The lawsuits since my June 30 supplement are as follows:
- July 20: Fla. Educ. Ass’n v. DeSantis (Fla. Cir. Ct.) – teachers union state ct. suit for emergency relief from in-person reopening order based on state constitution provision for “safe and secure” public schools
- July 22: NAACP v. DeVos (D.D.C. July 22) -Administrative Procedures Act challenge to USDE interim rule for calculation of apportionment of CARES Act funding to private schools
- July 28: J.T. v. de Blasio (S.D.N.Y.) – nationwide IDEA/§ 504/§ 1983 challenge to closure and remote programs of school districts based on a “stay-put” change in placement theory
The two decisions since my June 30 supplement are as follows:
- July 15: J.C. v. Fernandez (D. Guam) – denied preliminary injunction for summer stay-put order w/o prejudice based on probable applicability of N.D. v. Haw. (9th Cir. 2010) [PDF]
- July 17: L.V. v. N.Y.C. Dep’t of Educ. (S.D.N.Y.) – granted preliminary injunction to enforce DPH Sept. 19 stay-put order for ABA/OT/PT/SLT in-person within safety guidance (because it was not satisfactory for this child remotely) but not the parent’s requested funding account [PDF]
Continuing Conclusion
In sum, the state of the law, like that for the resumption of schools, remains a rather fluid and largely indefinite picture that warrants the continued resiliency and creative cooperation of both special educator and parents. It is unlikely that we will have definitive legal answers as to the FAPE and remedy questions until not only the pandemic but also the courts have finished their ponderous process. Hearing officers will be the key to the development of sensible judicial precedents.
1 For the Department’s compilation of such guidance documents, see https://www.ed.gov/coronavirus
Perry A. Zirkel 