Now that many of us have been doing some form of remote learning for close to 7 months, we are starting to see hearing officers and state agencies weigh in to resolve complaints related to the appropriateness of remote special education services. While we have not yet seen any Illinois decisions, a review of decisions from other states may shed some light on trends and approaches. Read on for a sample of recent cases and takeaways that may be relevant to your school.

Participation in Remote Learning

In a due process case in Washington, DC, the student had previously been residentially placed but transitioned to a therapeutic day school in January 2020. The student was making some progress until schools were closed due to the pandemic but did not participate in the school’s remote learning program. While the student’s guardian advocated for the student to return to the residential placement, the student, district, and therapeutic school recommended continuing at the day school. Given that a month had passed between the hearing and the decision, the hearing officer directed the IEP team to meet and determine if the student had been participating in the remote program. If so, that would demonstrate that the day school was his least restrictive environment. But if the student had not been participating, a residential placement should be made.

• Schools should take and document steps to support student engagement in remote learning. An IEP meeting to develop new approaches may be warranted to avoid a potential need for compensatory services and/or a more restrictive placement.

IEP Implementation

A state complaint in Indiana challenged the services a student received during remote learning. The student’s IEP called for 120 minutes per week of special education support, but during virtual instruction in the spring, she had only received a series of check-ins. The state determined that the district failed to implement her IEP and was required to provide compensatory education.

In a due process complaint in Massachusetts, a hearing officer denied the district’s motion to dismiss, finding that the district’s alleged failure to implement the student’s IEP during remote learning could amount to a denial of FAPE. The student’s IEP called for speech services as well as reading instruction by the reading intervention teacher and academic support by the special education teacher. Parents alleged that during the school closure, the student did not receive the required reading instruction from the reading interventionist. Instead, the district provided a virtual reading coach program and tutoring by another reading instructor. The hearing officer determined that a hearing was necessary to decide the implementation issue.

In a state complaint in South Dakota, the district was unable to provide all of the educational and related service minutes on the student’s IEP during the school closure. The district, however, substantially implemented the student’s IEP, as substantiated by service logs. Additionally, the district provided progress reports on the student’s annual goals showing the student’s continued progress. Accordingly, the state did not find a denial of FAPE (except for a 1-day delay in providing ESY services).

• Failure to implement the student’s IEP (or IRLP) during remote learning can be a denial of FAPE. Documentation of the services provided and the student’s progress can help the school avoid liability.

Individualized Remote Learning Plans

In a state complaint in Kansas, a district created an individualized continuous learning plan for a student but neglected to provide for the significant modifications to class and homework assignments that were included in the student’s IEP. Although the seventh grader was reading and doing math at the first grade level, the needed assignment modifications were not provided during remote learning. While recognizing that the FAPE analysis must be made in light of the exceptional circumstances caused by the pandemic, the state found that failing to provide modified assignments needed by the student was a denial of FAPE. The state also faulted the district for not providing sufficient parent participation in the development of the individualized continuous learning plan.

• If the services the student will receive during remote learning will differ beyond the new location and modality, IEP procedural safeguards, including parental participation, should be followed when developing the individualized remote learning plan. The remote plan should provide for the services and supports needed by the student to access and progress in their education.

Remote Learning Not A Change of Placement

In the South Dakota case cited above, the parent alleged that the change to remote learning when schools were ordered to be closed in the spring amounted to a unilateral change of placement. The state explained that “the term ‘placement’ refers to the entire educational program and services being provided to the child as set forth in the child’s IEP and not merely the location where those services are provided. If a proposed change substantially or materially affects the composition of the educational program and services provided to the child, then a change in placement occurs, triggering the notice requirement.” In this case, the state found that the state complied with the Governor’s school closure order during March and April and that its decision to provide distance learning rather than in-person learning for ESY did not constitute a unilateral change in placement.

• The question of whether a state’s or district’s decision to implement remote learning causes a change of educational placement under the IDEA is a foundational one that will continue to be debated. The state here found that the system-wide health and safety decision did not constitute a change of placement but of circumstances.

Given the individualized nature of special education, every case is very fact-specific. Nonetheless, these first cases highlight some of the same principles that have always been critical:

• Individualization and problem solving. Strive to make decisions and adjustments to meet the unique needs of each student, try creative strategies; and be ready to change approach if the first plan is not effective.
• Communication and parental involvement. Working with parents as partners is especially critical when students are learning at home. Open communication and collaboration continue to be key.
• Implementation and documentation. While some flexibility is warranted, IEP implementation continues to be a requirement and focus. Documenting the services provided and the student’s progress will help demonstrate the school’s compliance and the benefit provided to the student.

While remote and blended learning are new to us all, relying on these same principles is a helpful guide.