[co-author: Mikaila John]
The COVID-19 pandemic has presented hardships for all students and school leaders, and it has been particularly challenging for students with disabilities and their IEP teams. Over the last nine months, districts and schools have been trying to figure out the most practical and effective ways to deliver special education and related services in a remote and hybrid learning environment. At the same time, a growing number of parents have brought due process complaints and state complaints to challenge the adequacy of those services. As those cases slowly work their way through the system, we are starting now to see more decisions. The challenges have been largely focused on whether schools are providing the special education and related services identified on the student’s IEP to the greatest extent possible and whether those services meet the student’s needs.
At the start of the pandemic, the U.S. Department of Education directed that school districts “must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services in the student’s IEP [or 504 plan].” The Department further advised that the provision of FAPE may include services provided virtually and that the “law allows flexibility in determining how to meet the individual needs of students with disabilities” (within the procedures specified in the Act). But the IDEA includes no general exceptions or waivers to IEP and FAPE requirements during physical school closures caused by pandemics or governmental directives. Accordingly, school districts remain responsible for providing FAPE to students by implementing IEPs to the greatest extent possible and providing modified or additional supports to address student needs related to the changed delivery model.
For instance, in a due process complaint in California, a parent brought a claim arguing that the district denied the student FAPE when it failed to provide the direct instruction and speech services called for in the student’s IEP. The 7-year-old student was averse to distance learning and the district provided packets of materials and weekly check-ins instead. The parent’s claim was successful because the district failed to materially implement the student’s IEP and should have attempted to provide the services via alternative means such as video conferencing with the parent’s assistance. Additionally, the hearing officer faulted the district for failing to call an IEP meeting to address the difficulties the student was having participating in distance learning as well as for failing to issue a prior written notice documenting the changes to the student’s services. While the circumstances prevented the district from implementing the IEP at school, the district remained responsible to implement the IEP to the extent possible by using alternative methods of delivery, defaulting to work packets when the student initially resisted distance learning was inadequate.
Similarly, a Wisconsin school district was found to have violated the IDEA by failing to implement the student’s IEP to the greatest extent possible during remote learning when, without explanation, it implemented only some of the required services remotely. In addition to specialized instruction, the student’s IEP provided for weekly meetings with teachers and for tests to be read aloud. Responding to the parent’s state complaint, the state education department commended the district for quickly changing to virtual instruction but concluded that it was reasonable to expect that the district would be able to arrange a time for the teacher to meet with the student remotely once a week and for the student’s tests to be read aloud virtually, which, it failed to do and failed to justify.
Failures to implement student IEPs, especially when, as described above, greater implementation appears possible, can lead to adverse findings for districts. At the same time, the U.S. Department of Education has also advised that every implementation lapse is not a denial of FAPE. Key considerations include both the circumstances and the student’s ability to participate in and benefit from the program. Accordingly, in a state complaint in Colorado alleging a relatively small gap in speech services where the student nonetheless made significant growth, the result was a finding of no denial of FAPE. Conversely, in another state complaint in Colorado alleging a relatively small gap in services, the missed minutes were a large proportion of the total minutes and the district failed to monitor the student’s progress. The result in that case was a finding of a denial of FAPE. The extent of the missed services and the available data to show student progress (goal updates, grades, assessments) are important in determining whether the discrepancy will be viewed as a minor imperfection or a material implementation failure.
Bear in mind that providing services to the greatest extent possible may not be sufficient if those services are significantly less than stated on the student’s IEP and the student is unable to make meaningful progress. In a due process decision from California, a hearing officer awarded compensatory education to a student in a transition program who needed in-person job training, personal interaction with peers and community members, and direct monitoring and redirection to reach her vocational, social skills, and behavioral goals. While the district tried to create a virtual program to deliver the student’s services, instruction was reduced to less than half the time the student would have received in-person. In addition to the reduced time, the remote services were not effective at targeting the student’s needs related to navigating her community, life skills, and vocational experiences.
But a reduction in direct services is not a per se violation. In response to a state complaint, a Minnesota school district was found to have properly implemented a student’s IEP during COVID closures. The adult student brought the claim because his distance learning plan included direct, remote teacher interaction for significantly less time than the instruction called for in his IEP. However, the district also implemented all of the student’s accommodations and provided learning activities addressing each of his goals for the remaining instructional time. Additionally, the district made the changes through an IEP amendment with prior written notice and also convened an IEP meeting to discuss the student’s concerns. The school had a detailed log of the services provided and the student’s participation and progress. The agency found the district had provided appropriate services in conformity with the student’s distance learning plan and the student had made progress on his goals (while not all goals and objectives had been addressed, only half of the IEP year had passed).
These early cases demonstrate that providing services to the greatest extent possible is a necessary first step, but ultimately hearing officers and state agencies are looking to see if the services were appropriate to meet the student’s needs in the circumstances, which may include problem solving meetings, trial and error, and new approaches – and definitely includes clear and robust documentation! As new decisions are published, we will continue to keep you updated on trends.
*Second-year law student, Loyola University School of Law, Franczek P.C. intern.