November 10, 2021
Now that most schools have resumed full in-person instruction, the frequency and outcomes of COVID-19 legal issues are becoming clearer. This latest summary provides an update since this past summer’s Special Supplement 9. As explained below, the expected surge in the number and complexity of cases has not surfaced. State complaint decisions have continued at a relatively dampened but steady level, with failure to implement (FTI) claims being the most common and with the outcomes mixed. Due process hearing decisions have been slower in reaching fruition, with COVID-19 claims not particularly pronounced. As usual, the time lag for court decisions is by far the longest, but various preliminary rulings have emerged. The majority of these preliminary judicial rulings focus on claims in the K-12 education context more generally than on those specific to students with disabilities. The guidance from the U.S. Department of Education continues to appear periodically but rather anti-climactically.
Reflecting the general movement to resumption of in-school instruction, the federal agency guidance has addressed a range of reentry issues. The following are leading examples under Section 504 and Part B of the IDEA.
On July 26, 2021, OCR and OSERS issued a fact sheet on “long COVID” under Sec. 504 and the IDEA (https://ed.gov/coronavirus). First, this guidance explains that this term refers to a wide variety of health conditions that arise more than four weeks after infection, even in asymptomatic cases. Second, this guidance warns school officials that “long COVID” may either cause eligibility or, for those already identified as eligible under Sec. 504 or the IDEA, may warrant new or different services or modifications. The recommended emphasis is on the child find and evaluation obligations under these interrelated statutory frameworks.
On August 24, 2021, as part of the U.S. Department of Education’s Return to School Roadmap, OSERS issued guidance reminding school districts of their child find obligations under the IDEA, including adjustments for the efficacy of their monitoring and data collection procedures during the pandemic (https:sites.ed.gov/idea/idea-files/rts-qa-child-find-part-b-08-24-2021/).
On September 30, 2021, as another step in the Roadmap series, OSERS issued a Q-and-A document on IEP development and implementation, which included the added IEP team special considerations associated with the pandemic. These considerations include addressing, for example, (a) “new or different social, emotional, behavioral, or mental health needs”; (b) “COVID-19 prevention and risk reduction strategies”; and (c) “lost skills or a lack of expected progress” (https://sites.ed.gov/idea/idea-files/return-to-school-roadmap-development-and-implementation-of-ieps/).
State Complaint Decisions
Here are Since COVID-19 Special Supplement 9, a limited number of new state complaint decisions has become available, with (a) continued procedural and FTI claims, (b) emerging confusion about “compensatory services,” and (c) the initial appearance of risk mitigation issues, such as masking. Here are examples in chronological order:
- A June 11, 2021 state complaint decision in Ohio (Forest Hills Local Schools) found FTI violations for IEP services, progress monitoring, and compensatory (recovery services), resulting in limited corrective action of up to 9 hours of recovery services in the IEP comprehension goal, depending on the IEP team’s determination of progress.
- A June 17, 2021 state complaint decision in Delaware (In re Student with a Disability,#21-05) found prior written notice (PWN) regarding delivery of speech/language (S/L) therapy via teletherapy, resulting in corrective actions of training for S/L therapists, limited S/L compensatory education, and IEP meeting for recovery services (“unfinished learning”).
- A July 15, 2021 state complaints decision in Indiana (Portage Township Schools) found no FTI violation in limited failure to provide extra time per child’s IEP that the teacher promptly corrected.
- A September 2, 2021 state complaint decision in Wisconsin (In re Student with a Disability,#21-012, 21-016) found partial FTI violations resulting in corrective action of proper IEP team determination of compensatory (“additional”) services.
- A September 17, 2021 state complaints decision in Indiana (Bartholomew Consolidated School Corporation) found no violation of a state regulation requiring IEP team consideration of parental concerns in enhancing the education of the child. The focus was specific to implementation of the district’s mask mandate, which included a medical exemption.
Due Process Hearing Decisions
The pace of due process decisions has increased in relation to that of state complaints decisions. The trend continues the predominance of FTI claims and the initial, thus far limited appearance of “compensatory services.” Here are examples in chronological order, with a representative prevalence of decisions from California:
- In Ventura Unified School District on June 18, 2021, a California hearing officer rejected various FAPE claims, including one for in-person instruction, with the limited exception of an FTI violation per the Ninth Circuit’s Van Duyn standard, resulting in 21.25 hours of compensatory education.
- In Allen Independent School District on June 30, 2021, a Texas hearing officer denied an FTI claim based on the Fifth Circuit’s Bobby R. standard in light of the child’s progress.
- In Russellville School District on July 3, 2021, an Arkansas hearing officer found an FTI violation including but not limited to the pandemic period, resulting in tuition reimbursement for the half year of the child’s enrollment and an additional year at the private school as compensatory education.
- In Bellflower Unified School District on July 23, 2021, a California hearing officer found an FTI violation per Van Duyn and failure to complete transition assessments on time, resulting in compensatory education (including training) and an IEE at public expense.
- In Rialto Unified School District on August 16, 2021, a California hearing officer ruled that the district met the Endrew F. standard for FAPE and that the issue of “compensatory services” per federal and state guidance was premature.
- In Fremont Unified School District on August 20, 2021, a California hearing officer ruled that the district did not make sufficiently robust efforts to evaluate the child during the pandemic, resulting in an award of an IEE at public expense.
- In Pleasant Valley Unified School District on August 30, 2021, a California hearing officer ruled that the district met the Van Duyn and Endrew F. standards except for the initial three weeks of the pandemic, resulting in 58 hours of compensatory education.
- In Saugus Unified School District on August 31, 2021, a California hearing officer found an FTI violation per Van Duyn and awarded 65 hours of compensatory education, rejecting the district’s claim that the federal guidance regarding “compensatory services” does not preclude such an award.
- In New York City Department of Education on September 2, 2021, a New York review officer ruled that the district substantially complied with the hearing officer’s compensatory education award for lapse in stay-put services and that district need not make up for any services that the child missed due to parents’ choice.
- In Board of Education of Harrison Central School District on October 22, 2021, a New York review officer reversed the hearing officer’s FTI ruling and compensatory education award. The review officer concluded the district provided an appropriate virtual program consistent with the IEP but the clear impediment was the parent’s conduct, not the technology or the student’s disability.
- In New York City Department of Education on October 25, 2021, a New York review officer (1) reversed a hearing officer’s order for an IEE at public expense in the wake of the switch to remote instruction, because (a) the parents did not disagree with an evaluation; (b) the hearing officer had not held a hearing; (c) the hearing officer did not have jurisdiction for systemic issues; and (d) the J.T. v. DeBlasio court rejected the pendency claim, but (2) ordered the district to evaluate the child and convene an IEP meeting to consider compensatory (recovery) services.
OCR Complaint and Compliance Process
In its enforcement of the wider coverage of Section 504 and the ADA, the U.S. Department of Education’s Office for Civil Rights (OCR) has issued occasional complaint resolution and compliance activity.
- On June 30, 2021, OCR announced its initiation of investigations of five states (Iowa, Oklahoma, South Carolina, Tennessee, and Tennessee) to determine whether their ban of school district mask mandates violates Section 504.
The court decisions since the last Supplement have increased in frequency, although most are preliminary injunctions. A wider array of court rulings have been on more general grounds than the IDEA or Section 504. The majority of the rulings based on the Constitution in favor of COVID-19 risk prevention strategies in public schools (e.g., Guilfoyle v. Beutner (C.D. Cal. Sept. 14) and Maniscalco v. N.Y.C. Dep’t of Educ. (E.D.N.Y. Sept. 23)), but the majority of those based on state law in the opposite direction (e.g., In re Abbott (Tex. Ct. App. Aug. 27) and Richland School District 2 v. Lucas (S.C. S. Ct. Sept. 30)). However, for significant court decisions specific to students with disabilities, the latest examples are:
- July 17, 2021 – E.E. v. Norris School District (9th Cir.) – affirmed the lower court’s stay-put preliminary-injunction ruling, which was different from the dicta in the hearing officer decision [https://law.justia.com/cases/federal/appellate-courts/ca9/20-17270/20-17270-2021-07-14.html]
- July 22, 2021 – Rabel v. New Glarus School District (E.D. Wis.) – upheld the hearing officer’s decision that IEP team’s placement of child in private school synchronous was FAPE in the LRE rather than parent’s preference for placement in district’s asynchronous program for nondisabled students [https://casetext.com/case/rabel-v-new-glarus-sch-dist]
- August 31, 2021 – H.W. v. Comal Independent School District (W.D. Tex.) – upheld the hearing officer decision that district’s change to more restrictive placement was FAPE in the LRE despite intervening period of remote instruction and delayed AT evaluation [https://casetext.com/case/hw-v-comal-independent-school-district]
- September 15 through November 1, 2021 – G.S. v. Lee (W.D. Tenn.); ARC of Iowa v. Reynolds (S.D. Iowa); Disability Rights S.C. v. McMaster (D.S.C.); S.B. v. Lee (E.D. Tenn.); R.K. v. Lee (M.D. Tenn.). But cf. Hayes v. DeSantis (S.D. Fla.) (lack of exhaustion and irreparable harm) – series of federal court decisions that have almost all granted preliminary injunctions in favor of § 504/ADA challenges to governor’s or legislature’s ban on school district mask mandates. [e.g., https://www.aclu.org/legal-document/disability-rights-south-carolina-v-mcmaster-order-granting-temporary-restraining]
- October 15, 2021 – L.E. v. Ragsdale (N.D. Ga.) – denied preliminary injunction under Sec. 504/ADA against relaxed COVID-19 restrictions (e.g., optional masking and vaccinations) based on neutral policy and robust virtual option, in which the 4 vulnerable students with disabilities had progressed [http://eastcobbnews.com/judge-denies-restraining-order-in-cobb-schools-mask-lawsuit/]
Now that most public schools have resumed in-person instruction, the various decisional dispute resolution forums of the IDEA and Section 504/ADA have not experienced a boom of activity as a result of the COVID-19 pandemic. The primary issues in both the IDEA’s state complaints and impartial hearing mechanisms continue to be FTI and Endrew F. FAPE claims. The court decisions have largely focused on preliminary rulings concerning the more general school population, but those specific to the IDEA tend to center on stay-put or deferential review of hearing officer FAPE decisions, whereas Section 504 has arisen in a series of preliminary injunctions against state bans of district mask mandates. Finally, the distinction between and the implementation of the remedy of compensatory education and the federal/state guidance for compensatory (i.e., recovery) services remains an unresolved source of confusion. Pending the development of legally weighty precedents, creative and collaborative proactivity continues to be the pole star for school personnel and parents.