Special Supplement

COVID-19 Guidance and Case Law: Winter Update

pzirkel

February 17, 2021

With re-openings increasing across the country on at least a hybrid basis and vaccinations gradually extending to teachers at least in some districts, the outlines of the nature and extent of the FAPE obligation, including the remedies for its denial, are increasingly emerging in recent legal activity specific to students with disabilities. For this latest period, the activity is almost entirely in the two administrative dispute resolution forums under the IDEA—state complaint investigations and due process hearings. Federal adjustments, either via Congress or OSEP, have taken a back seat during the initial phase of the new Administration. At the other end, court decisions during this latest period have slowed down, subject to parents having to “exhaust” the available due process hearing procedure under the IDEA. The crystallization of the final contours of IDEA obligations during the pandemic await the development of precedents at the judicial level, but courts often defer to hearing officer decisions upon appeal. This latest summary provides an update since the coverage in the late fall update (COVID-19 Special Supplement #7).

State Complaint Decisions

Since COVID-19 Special Supplement #7, several new state complaint decisions have been issued. Here are some available examples, which show that the primary claims continue to be based on the failure to implement (FTI) category of FAPE and that their dispositions vary based on not only the child’s circumstances but the selected FTI standard:

  • A November 10 state complaint decision in North Dakota (In re Student with a Disability) rejecting the parents’ FTI FAPE claim on the basis that the occasional lapses upon moving to distance learning were quickly corrected, thus not amounting to the “material” standard
  • A November 12 affirmance of state complaint decision in Virginia (Fairfax County Public Schools – summarized in COVID-19 Special Supplement #5) that did not find systemic violations in the school district’s move to distance learning
  • A November 16 state complaint decision in Indiana (Greater Clark County Schools) finding an FTI violation due to lack of documentation for the early part of the new school year – ordering as corrective action (a) IEP team provision of a compensatory education plan and (b) development of a tracking log for proper documentation
  • A November 20 state complaint decision in Minnesota (Roseville Public School District) finding an FTI violation for the first two weeks of the new school year – ordering compensatory education documented as an amendment to the IEP
  • A December 4 state complaint decision in Minnesota (South Washington County School District) finding extended FTI violation, including ESY – ordering IEP team to determine compensatory education
  • A December 7 state complaint decision in Minnesota (Worthington Public School District) finding that telephone call and follow-up PWN for distance learning served as requisite amendment to the IEP
  • A December 8 state complaint decision in Nevada (Clark County School District) finding FTI violations per Van Duyn materiality standard for both pre- and post-summer 2020 –ordering increased synchronous instruction, at least 92.5 hours of compensatory education and IEP team determination of possible additional compensatory education per regression-recoupment data upon return to in-school instruction
  • A December 11 state complaint decision in Colorado (Douglas County School District RE-1) finding procedural violation for unreasonable delay in obtaining consent for initial evaluation that was harmless due to ultimate evaluation determination of non-eligibility, resulting in reminder-type corrective action
  • A December 22 state complaint decision in Montana (In re Student with a Disability) finding systemic violations in inconsistent progress reports – ordering forms, training, and an individualized determination of compensatory education
  • A February 1 remand of a state complaint decision in Virginia (Fairfax County Public Schools), which had found no violation upon providing 100% distance learning for the student, requiring reconsideration in light of the after-discovered evidence of (a) medical documentation of the child’s motor control and other barriers to virtual learning and (b) an updated progress reports showing negative trend – need to address, per Endrew F., “what additional accommodations might be appropriate for in-person, if not in school, instruction within the confines of the pandemic closures”

Due Process Hearing Decisions

The number of due process decisions has also increased considerably, with more uniform standards for FTI and more frequent orders for specific and direct compensatory education.

  • In Georgetown Independent School District on November 18, a Texas hearing officer ruled that the district engaged in a material FTI violation and a procedural failure to properly amend the IEP, resulting in 270 minutes of SLT compensatory education and reimbursement for dyslexia tutoring services ($877)
  • In East Windsor School District on November 18, a Connecticut hearing officer ruled that the district committed a material FTI for the academic and behavioral components (not the OT and SLT components) of the IEP during the first two months of distance learning but limited the remedy to a prompt IEP meeting to determine whether an amendment is appropriate – not compensatory education due to gross-denial standard and parent’s lack of cooperation
  • In Ringwood Board of Education on November 19, a New Jersey hearing officer dismissed the FTI compensatory education claim based on mootness – the state changed its policy to allow teleservices without parental consent or waiver, and the district voluntarily provided compensatory services during the summer
  • In Shoreline School District on November 25, a Washington State hearing officer ruled that the district committed a material FTI violation, including during the ESY period –ordered, as the remedy, reimbursement for the private in-person ABA aide during the summer and for the private ABA school thereafter
  • In Anaheim Elementary School District on December 1, a California hearing officer granted the district’s request for an in-person initial evaluation of the student rather than the parents’ insistence on a virtual approach and in-home services
  • In District of Columbia Public Schools on December 4, a D.C. hearing officer ruled that the district committed a material FTI violation during the new school year – ordering both reimbursement and prospective provision of an in-person aide (at the private ABA school or another suitable location) to support the child with distance instruction
  • In District of Columbia Public Schools on December 14, a D.C. hearing officer ruled that the district failed to complete the evaluation within the prescribed period and failed to provide the parents with the requested records access – ordering IEEs for any incomplete evaluation components and records access
  • In In re Student with a Disability on December 22, a Wisconsin hearing officer ruled that the district’s private placement virtual instruction was FAPE in the LRE for the child rather than the parents’ insistence on providing it only with nondisabled students
  • In Bass Lake Joint Elementary School District on December 23, a California hearing officer ruled in favor of the parent’s material FTI claim – ordering funding for 500 hours of compensatory education for in-home related services, including those arranged by the parent, up to a total maximum of $75K
  • In District of Columbia Public Schools on December 23, a D.C. hearing officer ruled that the district’s initial distance learning arrangements met the Endrew F. standard but the virtual delivery of services during the new school year were a material FTI violation –ordering a district-paid IEE to determine the compensatory education relief
  • In District of Columbia Public Schools on December 30, a D.C. hearing officer ruled that the private placement did not meet the Endrew F. standard but rejected the parent’s FTI claim for the private school’s provision of virtual instruction – ordering IEP team to order new private placement only
  • In In re Student with a Disability on December 30, a Nevada hearing officer ruled that the district violated Endrew F. by not providing a behaviorally trained adult for in-person assistance with distance learning – ordering reimbursement for the provision of said services at private ABA center

Court Decisions

  • Nov. 19 – C.M. v. Jara (D. Nev.) – denying the parents’ motion for a preliminary injunction for their IDEA and § 504 claims that sought to require systemwide resumption of in-school instruction in the state’s largest school district (thus, echoing a similar ruling summarized in my COVID-19 Special Supplement #7)
  • Nov. 24 and Dec. 1 – Martinez v. Newsom and Brach v. Newsom (C.D. Cal.) – requiring exhaustion of IDEA and § 504 claims respectively challenging systemwide move to distance learning w/o procedural safeguards (e.g., reevaluation) and tiered reopening system (within broader class action seeking more immediate and complete in-school instruction)
  • Dec. 8 – Jacob v. Iowa Dep’t of Educ. – state lower court decision affirming the state complaint decision that found no violation during the “voluntary educational enrichment opportunities” transitional phase to distance learning in Iowa (as summarized in my COVID-19 Special Supplement #3)
  • Dec. 18 – Hernandez v. Grisham – dismissing, in the IDEA part of a much broader lawsuit that has been subject to several earlier decisions, (a) the attempted joinder of an additional parent of a child with disabilities because he had failed to exhaust the impartial hearing process before filing in court, and (b) the attempted continuation of the FAPE claim of the original plaintiff-parent of a child with disabilities because the IEP team had met and revised his child’s IEP in response to the court’s earlier order (summarized in my COVID-19 Supplement #7) and exhaustion would apply to any challenge to that revised IEP – read the full decision, which includes several additional conclusions of interest, including a refusal to grant judicial deference to the cited federal guidance [https://scholar.google.com/scholar_case?case=1220236758159301790&q=hernandez+v.+grisham&hl=en&as_sdt=6,39] – this case is currently on appeal at the Tenth Circuit

Latest Conclusion

Looking through the lenses of the various complaint resolution forums of the IDEA, the contours of school district obligations in the COVID-19 context are emerging as we’ve moved from the tumultuous initial period at the end of the school year to the more experienced period of the first semester of the new school year. The state complaint process has addressed FTI and, to a lesser extent, procedural claims with varying rigor. The majority of cases have resulted in corrective action, although any compensatory education is often delegated to the IEP team. The due process hearings have made increasingly clear that (a) the materiality standard applies to FTI violations and (b) Endrew F. provides back-up leverage for obtaining relief for rather blatant denials of FAPE via virtual instruction. The remedy is often direct compensatory education or reimbursement that covers in-person private arrangements. Districts that insist on systemwide cookie-cutter approaches to virtual instruction are likely to be vulnerable, especially if they are not proactive in identifying those students with disabilities for which this approach is a flagrant failure or in creatively arranging for in-school delivery or at least in-person support. However, for those stakeholders who seek a more definitive, precedential answer, appeals to courts? will ponderously appear in the years ahead.