Special Supplement

COVID-19 Guidance and Case Law: Late Fall Update

November 19, 2020

The pandemic continues, and the ultimate two-part question for parents and school districts still remains open-ended: (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, including any compensatory education? In the meantime, the issue for IDEA adjudications keeps reappearing in a potentially significant role—upon parental filing for a due process hearing on such pandemic-related issues, what is the “stay-put”? This latest summary provides an update since the coverage in the early fall Special Supplement.

Further Federal Guidance

A pair of USDE guidance documents since the last Special Supplement warrant special attention, both issued on September 28.

The OSEP Q&A document for Part B reminded districts that regardless of the instructional delivery approach they “must make every effort” to fulfill their FAPE obligation, including the regulatory requirements for prior written notice, IEP amendments, and annual IEP meetings. On the newer side, this guidance suggested that (a) districts should consider ESY during the school year for children who did not receive their full ESY entitlement during this past summer, and (b) states may change via their regulations or policies the 60-day timeframe and its exceptions for initial evaluations.

The OCR Q&A document (PDF) discusses various current pandemic-specific issues, such as prioritizing in-person instruction for students with disabilities and individualized exemptions for wearing masks for students with disabilities. Moreover, it repeats the prohibition of waivers of § 504 rights as a prerequisite for online instruction.

State Administrative Decisions

According to a national survey of state education agencies as of the end of the summer, both due process and state complaints activity is limited in comparison to pre-pandemic levels, and the COVID-19 decisions thus far are more frequent for state complaints than for due process hearings.

State Complaints. Since the last Special Supplement, various new state complaint decisions have been issued. Here are some available examples, which show the primary claims and their varying dispositions:

  • An August 31 state complaint decision in Indiana (Porter Township Sch. Corp.) concluded that the district speech/language (S/L) therapist’s posted assignments for a student with S/L impairment upon the district’s shift to distance learning constituted a failure to implement the IEP provision of 30-minutes of S/L services per week. The corrective action ordered was for the S/L therapist to provide nine 30-minute sessions either in-person or via telephone or videoconference as compensatory services.
  • A September 11 state complaint decision in Colorado (Denver Sch. Dist. No. 1) concluded that (a) the district’s failure to provide the prior written notice (PWN) and the distance learning plan (DLP) on a timely basis impeded the parents’ opportunity for meaningful participation, but (b) in relation to the IEP’s provision of 100 minutes per week of specialized instruction, the district’s shortfall of a total of 260 minutes for five weeks during the pandemic did not constitute a material failure to implement the IEP, because the student continued to make significant progress during this relatively limited period. The corrective action for the notice violations was to provide comprehensive training to special education personnel on the applicable requirements.
  • A September 18 state complaint decision in Colorado (El Paso County Sch. Dist.) by a different complaint investigator concluded that (a) the district’s provision of two thirds of the services specified in the DLP, which were significantly less than those provided in the IEP, in combination with the lack of progress monitoring constituted a material implementation failure warranting hour-for-hour compensatory services (totaling only 130 minutes); (b) the district’s failure to provide PWN upon substantially reducing the IEP services via the DLP was a violation that in this case did not result in a denial of FAPE.
  • A September 30 state complaint decision in Wisconsin (In re Student with a Disability) concluded that the district’s failure to implement the child’s IEP “to the greatest extent possible,” per federal guidance, from March 18 to the end of the school year warranted the corrective action of the IEP team meeting to determine the extent of compensatory services required for this failure.

Due Process Hearings. The relatively few available due process decisions remain largely within a few high-activity states.

  • In the Norris School District decision on September 2, the California hearing officer concluded that (a) the district did not “make every effort” to provide FAPE during the 28 school days between the schools’ closure and the initiation of distance learning, thus constituting a material failure to implement the IEP; and (b) the lack of individualized PWN and an IEP meeting upon this transition significantly impeded the parents’ opportunity for participation. The hearing officer ordered (a) compensatory education including a small reduction for the partial progress of the student and his limited accessing of the materials that the district provided during the 28-day period and (b) an IEP meeting to develop an appropriate DLP. The hearing officer also briefly commented that the new IEP, with any amendments, constituted the student’s stay-put.1 [PDF]
  • In the J.S. and Lenape School District decision on October 14, the New Jersey hearing officer denied the parent’s request for “emergent relief,” which is a procedure similar to a court temporary restraining order and which is specific to the administrative adjudication system in New Jersey. The parent sought the district’s provision of a 1:1 nurse, per the IEP of a student with multiple disabilities, including diabetes, while the student was at home per the parent’s choice of distance learning during the pandemic. The hearing officer found that the parent had not shown irreparable harm and the likelihood of legal success based on the particular facts of the case, which included that the parent provided the diabetes-related glucose monitoring while the student was at home. [PDF]
  • In the Springfield Public Schools decision on November 10, a Massachusetts’ hearing officer concluded, as a small pandemic-related part of a long and complicated case, that the district failed to implement the virtual ESY S/L services for at least two weeks, resulting in an order for two hours of compensatory S/L services. [PDF]

Court Actions

Court decisions for the previously identified COVID-19 lawsuits for general or special education students have begun to appear, especially for the July 28 nationwide class action on behalf of students with disabilities in J.T. v. de Blasio. Here is a snapshot of those decisions, which are largely preliminary rulings, since the September 10 decision in Killoran in the last Special Supplement, with the names or rulings of those cases that are of most direct and significant relevance to special education in bold font:

  • Sept. 29 – Mullen v. Tiverton Sch. Dist. (D.R.I.) – a federal court in Rhode Island denied the district’s motion to dismiss the First Amendment suit of the teachers’ union president, who claimed that the district terminated her for insisting upon negotiations or at least participatory input in the district’s arrangements for distance learning
  • Oct. 5 – E.E. v. Norris Sch. Dist. (E.D. Cal.) – a federal court in California granted the parent’s motion for a preliminary injunction enforcing the old IEP, which provided for a mainstreamed placement, as the “stay-put,” thus barring the district’s attempt to move the child to a different, more segregated placement at the start of the school year while the proceedings had not yet ended – the court’s reasoning included the conclusion that the hearing officer’s statement about stay-put was merely dicta (i.e., a nonbinding aside) because it was not at issue and without arguments or analysis and that the hearing officer’s decision did not agree that the new IEP was appropriate
  • Oct. 9 – DeSantis v. Fla. Educ. Ass’n (Fla. Dist. Ct. App.) – a state appeals court in Florida vacated a state trial court’s temporary injunction, based on the state constitution’s provision for safe public schools, against the governor’s July 6 emergency order to re-open the schools – the appellate court concluded that the teachers’ union did not meet the criteria for preliminary injunctive relief, including likely legal success and irreparable injury, especially because the order provided sufficient latitude for district discretion and individual exemptions
  • Oct. 14 and Nov. 5 – Hernandez v. Grisham (D.N.M.) – a federal court in New Mexico denied most of the requested preliminary injunction that challenged the state’s COVID-19 reentry policy for the public school as purportedly not being with sufficient rapidity and uniformity, rejecting the class action certification and the constitutional claims – as the limited exception, the court concluded that the only plaintiff with standing was the parent of a child with disabilities and ruled that under the IDEA, based on the child’s lack of progress in distance learning per Endrew F. and the state policy that allowed priority in-person instruction for students with disabilities within health/safety standards, the child was entitled to return to school for small-group instruction with social distancing and other requisite precautions2– in the subsequent ruling the court denied dismissal of the plaintiffs’ § 1983 claim against the governor and head of the state education agency
  • Oct. 22 – Lain v. Pleasanton Unified Sch. Dist. (N.D. Cal. 2020) – a federal court in California denied the parents’ motion for a temporary restraining order to enforce the hearing officer’s Aug. 24 stay-put order (summarized and provided in the last Special Supplement) because the district’s implementation rendered it moot and the parents had not exhausted the location issue
  • Nov. 10 – J.M. v. Jara (D. Nev.) – a federal court in Nevada denied the parents’ motion for a temporary restraining order for their IDEA and § 504 claims, including stay-put due the lack of irreparable harm, but moved the proceedings forward by scheduling the preliminary injunction hearing
  • Nov. 13 – J.T. v. de Blasio (S.D.N.Y.) – in this July 28 nationwide class action suit, a federal court in New York dismissed all defendants other than N.Y.C. and all plaintiffs outside the N.Y.C. public schools and requiring exhaustion (i.e., obtaining individual due process hearing decisions) for the N.Y.C. cases – the court’s conclusions about stay-put, which seem to be at least partly a reaction to the plaintiff attorney’s perceived overreaching, do not necessarily preclude success for this threshold issue or other claims, such as a material failure to implement the IEP, that may arise in any subsequent due process hearings for these or other parents [PDF]

Continuing Conclusion

Although the state of the law, like that for the resumption of schools, continues to be rather fluid, claims of violations procedural IEP requirements and material failure of implementation are emerging as the primary focus in the state complaint cases and, with the addition of the threshold issue of stay-put, in due process hearing and court cases under the IDEA. Moreover, those charged with the decisions in these cases exhibit significant variation in their interpretations and their remedial orders, although thus far all rejecting any broad-based waiver of FAPE obligations. Given the ponderous process of adjudication, which thus far has only yielded a handful of due process hearing officer decisions and preliminary court rulings, the best course continues to be maintaining positive resiliency and creative cooperation of both special educators and parents.

¹ See the Court Actions section for a subsequent court ruling specific to this student’s stay-put.

²The monthly legal alert for November describes this case in more detail.