While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges.
The first case comes from the District of Guam, J.C. v. Fernandez. In that case, parents requested a temporary mandatory injunction to require the district to provide the services in the students’ IEPs, including 4 hours per day of in-person instruction during the summer. The court declined to assume that a change to remote instruction constituted a change of educational placement such that stay put could be used to maintain in-person instruction. The court noted that the parties had drastically different views of the underlying facts and that the court lacked evidence related to the alleged harms of remote learning or the steps the district was taking to minimize the disruption of the shut-down. The court allowed the plaintiffs additional time to refile for a preliminary injunction based on a more developed factual record.
The second case comes from the Southern District of New York, L.V. v. New York City Department of Education. In that case, the parent filed a due process complaint in 2018 challenging the student’s initial IEP upon transition from early intervention services to preschool. Several stay-put orders have been entered since that time, the most recent was in September 2019 and required 1:1 ABA, OT, PT, and speech services, as well as transportation. When the district closed its schools in the spring, the student received an iPad and hotspot to use for remote instruction. The parent, however, claimed that the technology did not work consistently and was inappropriate for the student because he could not focus on instruction delivered via the iPad.
The parent filed a lawsuit, seeking an injunction to enforce the stay-put order and arguing that the stay-put order required in-person instruction. The court found that the remote instruction provided by the district did not comply with the stay-put order. The court faulted the district for not providing any explanation of how the iPad was appropriate to meet the student’s individual needs and ordered the district to fund an independent assistive technology evaluation to determine what device and software would be appropriate if remote instruction is needed because in-person instruction cannot be safely delivered. At the same time, the court ordered the district to provide the student’s services in-person to the extent it was safe to do so – based on guidance from health authorities.
While the New York case is unique in that a due process complaint with a stay-put order was already pending so the parent was in a position to request an injunction, whereas in most cases a parent would be filing a new due process complaint and seeking to invoke stay put (like the case in Guam), the court’s reasoning provides some useful guidance. First, the court recognized the safety risks inherent in in-person instruction and did not foreclose remote instruction if warranted by local health conditions. (This case is also unique in that all of the student’s services were already 1:1 with private providers funded by the district, making in-person instruction more feasible because it did not involve an entire class of students.) Second, the court focused on the district’s failure to have an individualized plan to provide the student’s services remotely; many of the services required by the stay-put order had not been provided at all, and the services provided were not delivered in a way that the student could access.
While we have a small number of cases to draw from, so far, we see a willingness of courts to acknowledge a district’s need to make determinations regarding in-person versus remote instruction based on the public health situation, which is outside the scope of IDEA and the IEP process. However, we also see courts looking for facts indicating that, given the system-wide circumstances, the district made individualized determinations to meet student needs. Accordingly, districts should review student IEPs to determine if they can be implemented remotely and if so what types of technology or other learning activities are appropriate for the student. And if the IEP cannot be implemented as written remotely, districts should propose IEP amendments or convene IEP meetings to make plans to address student needs during remote instruction.
Our team has developed an Outline for Individualized Remote Learning Plans to guide your teams through the considerations needed to create robust individualized plans and incorporate them into a student’s IEP to aid procedural and substantive compliance. Please reach out to a Franczek attorney to purchase the outline or with questions about specialized instruction during remote and blended learning.