Special Supplement

COVID-19 Guidance and Case Law: Summer Update

July 13, 2021

With many schools having resumed full in-person instruction by this past spring semester or planning for it for the start of the new school year, the frequency and outcomes of pandemic-related legal issues are becoming clearer.  The courts are slow in reaching definitive results, but the administrative level of state complaint and hearing officer decisions have already established a detectable pattern.  In addition to further guidance from the U.S. Department of Education, including its Office for Civil Rights (OCR), OCR has surfaced in a compliance role.  This latest summary provides an update since the coverage in the winter update (COVID-19 Special Supplement 8.)

Federal Guidance

Reflecting the general movement to resumption of in-school instruction, the federal agency guidance has addressed a range of reentry issues.

On February 12, 2021, the Department of Education issued a COVID-19 handbook containing strategies for safely reopening K–12 schools (https://www.ed.gov/coronavirus).  For example, the handbook recommends mitigation strategies to enable mask exemptions for the narrow subset of students with disabilities who cannot safely wear a mask because of their disability and mask adaptations for communication with students with hearing impairments.  As another example, the handbook suggests consideration for prioritizing in-school instruction for students with disabilities for whom remote instruction is not feasible or effective.

On May 13, 2021, OCR issued a civil rights FAQ on reopening schools (https://ed.gov/coronavirus).  Its broad-based coverage included repetition of the suggestions for possible prioritization of certain students with disabilities and for mask exemptions or adaptations.  It also added proscriptions against (a) disciplining students whose disabilities impedes their ability to adhere to social distancing requirements , and (b) requiring parents to waive any Section 504 rights as a condition of receiving remote or other educational services. As another example, this document reminded districts of the disability-based accessibility requirements for students and their parents for technological instruction and communications.  Finally, this Q/A guidance announced that “[t]he Department is aware of important questions regarding compensatory services for students with disabilities and plans to address those in a separate guidance document.”

State Complaint Decisions

Since COVID-19 Special Supplement 8, several new state complaint decisions have been issued. Here are some available examples in chronological order, which show that the primary claims continue to be based on either a variety of procedural issues or, even more homogeneously, the failure to implement (FTI) category of FAPE.  The outcomes tend to be rather strict about compliance, with corrective actions that are generally wider but shallower than those of the adjudicative avenue.

  • A February 12 state complaint decision in Maine (In re Student with a Disability) that found IEP team and FTI violations, resulting in corrective action of an IEP team to meaningfully discuss LRE and to determine the location and schedule for 290 hours of compensatory education.
  • A February 25 state complaint decision in Kansas (In re Student with a Disability) that found prior written notice (PWN) and FTI violations, resulting in corrective actions of training, revised procedures, and 39 hours of compensatory education.
  • A March 3 state complaints decision in Ohio (Bedford City School District) finding progress reporting and FTI violations, resulting in compensatory education.
  • A March 10 state complaints decision in Minnesota (Rocori Public School District) that found no violation of child find during distance, then hybrid learning based on the district’s proactive interventions and general effects of remote instruction.
  • A March 19 state complaints decision in Iowa (Linn-Mar Community School District) that found no IEP team, PWN, or FTI violations.
  • A May 10 state complaints decision in Indiana (Greenwood School Corporation) that found PWN and IEP team violations, resulting in corrective action of training of IEP teams.
  • A May 10 state complaints decision in Nevada (Washoe County School District) that found an FTI violation but, based on unusual circumstances, resulted in student-specific prospective remedy.
  • A May 18 state complaints decision in North Dakota (In re Student with a Disability) finding (a) no systemic procedural, including progress reporting, and (b) limited violations for service reductions not based individual needs, resulting in corrective action of IEP team determinations of whether the affected students require compensatory services.

Due Process Hearing Decisions

The pace of due process decisions has increased to a level more commensurate with that of state complaints decisions.  The trend continues the predominance of procedural FAPE claims under the uniform two-step test, substantive FAPE claims under the Endrew F. standard, and FTI claims increasingly under the Van Duyn materiality standard.  Although affording defendant districts generally wider latitude two-step than in the state complaints process, the decisions that have found denials of FAPE resulted in more definitive retrospective remedies, such as compensatory education or tuition reimbursement.  Here is a sample in chronological order:   

  • In Florence County School District No. 1 on February 22, a South Carolina hearing officer ruled that the district had denied FAPE to a child with OHI and SLD based on a combination of FTI and Endrew F., resulting in an order for a more “aggressive” IEP including a 1:1 compensatory education component.
  • In Downingtown Area School District on March 14, a Pennsylvania hearing officer ruled that a pandemic-related delay in the reevaluation of an eighth grader with SLD led to a substantively deficient IEP, warranting tuition reimbursement with a 15% reduction due to the parents’ partially unreasonable conduct.
  • In Orcutt Union School District on April 22, a California hearing officer concluded that the district committed predetermination, reevaluation, and—based on the Van Duyn materiality standard—FTI violations, resulting in orders for an IEE at public expense and 428 hours of compensatory education.
  • In Special School District of St. Louis County on May 4, a Missouri hearing officer found only limited procedural violations (step 1) and none that resulted in a requisite loss to the student or parents (step 2) in provision of distance learning plan to teenager with autism.
  • In Corona-Norco Unified School District on May 20, a California hearing officer found an FTI violation under the Van Duyn material (i.e., more than minor) shortfall standard, resulting in an order for 80 hours of compensatory education.
  • In Hampshire Regional School District on May 28, a Massachusetts hearing officer ruled that the IEP for a third grader with OHI/SLD, including the subsequent remote instruction, met the Endrew F. standard for substantive FAPE.

OCR Complaint Process

In its enforcement of the wider coverage of Section 504 and the ADA, the U.S. Department of Education’s OCR has issued various responses to pandemic related complaints against local and state education agencies.  Here is a sampling of the reported responses:

  • On January 14, OCR reported its initiation of investigations of three large districts and one state agency education for alleged systemic violations of Section 504 during the pandemic.
  • On March 25 and April 27, OCR reported the latest in a continuing line of voluntary resolutions in which districts agreed to arrange for disability-based accessibility of their remote instruction and websites.
  • On April 12, OCR reported a voluntary resolution agreement in the wake of an alleged FTI violation for the IEP team to determine whether the child needed compensatory education and for the related training of designated district administrators.

Court Decisions

The court decisions since the last Supplement are relatively infrequent, although some of the earlier decisions that rejected broad-based challenges to the switch to remote instruction are now on appeal at the Second Circuit (J.T. v. de Blasio), the Ninth Circuit (Martinez v. Newsom and Brach v. Newsom), and Tenth Circuit (Hernandez v. Grisham).  Related developments that also merit special attention are (a) the potentially analogous February 17th federal district court ruling in Doe v. Zucker that rejected constitutional and Section 504 challenges to New York’s tightening of the medical exemption for required vaccinations, such as polio and measles; and (b) the June 30 filing of a new lawsuit, Simpson-Vlatch v. Michigan Department of Education, which may signal state-based class-action sequels to J.T. v. de Blasio by the same N.Y.C. law firm.  Additionally, the latest significant court decisions are:

Latest Conclusion

Looking through the lenses of the various decisional dispute resolution forums of the IDEA and Section 504/ADA, the legal obligations of school districts in the COVID-19 context are becoming closer and closer to their pre-pandemic contours as experience increases over time and the focus shifts toward resumption of full in-school services.  Although the standards and their application vary between the adjudicative and administrative forums and among the decisional jurisdictions, the simple message become clearer and clearer: “FAPE” means “FAPE.”  Within this simple equation, the most frequent FAPE challenges are FTI and, to a lesser extent, the procedural and Endrew F. dimensions.  Finally, the distinction between and the implementation of the remedy of compensatory education and the federal/state guidance for compensatory (i.e., recovery) services looms as a leading issue.  Pending the development of legally weighty precedents, creative and collaborative proactivity continues to be the North Star.