Districts brace for pandemic-related special ed litigation

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This article was published on K-12 Dive by Kara Arundel on February 10, 2021.

This is the first installment of a two-part deep dive on the increased legal challenges districts face under the Individuals with Disabilities Education Act during the COVID-19 pandemic. For part two, click here.

When Loudoun County Public Schools in Virginia closed for in-person learning last spring due to the new novel coronavirus, Zoey Read knew her 7-year-old — who has autism and emerging speech skills but participates in general education classes — would struggle with the virtual learning format. She didn’t anticipate, however, the neurostorm meltdowns and self-injurious behaviors that would manifest and worsen over the course of the pandemic.

The 1st-grader’s inability to access at-home learning and incomprehension of why she couldn’t go to the school she loved escalated, despite her teachers’ and parents’ efforts at accommodations to make online school more welcoming. During one particular low point, Read took pictures of her daughter’s self-injuries and shared them with her state representatives in attempt to document her concerns about her child’s behaviors and protect herself from potential child abuse claims.   

“I would put on the computer, [and] she would run from the computer because she didn’t understand it was school. She’d go to the front door to go to school. She’d hit her head on walls, anything she could hit her head on,” Read said, noting the challenge a change in regimen that’s been in place for years presents for an autistic child.

The difficulties of transitioning individualized special education academic and behavioral services to online and hybrid formats have been challenging for teachers and school administrators since the onset of the pandemic — not only because of the potential for regression of students’ skills, but also because of the vulnerability of districts to be sued or otherwise held accountable for the potential violation of students’ rights under the Individuals with Disabilities Education Act even as they navigate never-before-seen situations of educating students during a global pandemic.

A few months after the pandemic began and schools closed to in-person learning, school administrative groups warned of a potential onslaught of special education litigation due to limited financial and staff resources available to provide such individualized student services remotely. For example, nearly a third of educational services agencies were concerned special education litigation would dominate their time and resources during the 2020-21 school year, according to a survey by the Association of Educational Service Agencies.

Special education lawsuits can be costly, time consuming and emotionally draining for parents and school staff. The cost of one special education due process hearing can run as high as $50,000, with the average cost between $8,000 and $12,000, according to research conducted more than a decade ago.

A 2019 Government Accountability Office report found special education dispute resolution activity for five selected states was more prevalent in very high-income districts, which points to the barriers families from lower-income communities face in hiring attorneys and navigating their due process rights.

Special education litigation also has the potential to advance through the court system and set a precedent for future special education approaches within a court’s jurisdiction and even nationally. Evidence of systemwide failures could lead to state or local corrective action plans and sanctions from the federal government.

Because there has not been a wide-scale, long-term shutdown of schools in modern history, it’s difficult to forecast how the pandemic will shape future special education practices. 

And while special education lawyers and administrators K-12 Dive spoke to said they haven’t seen notable increases in litigation rising from pandemic-related disputes, several predict an uptick may emerge once more schools move to a fully in-person status and can determine how far students have fallen behind academically or behaviorally.

“Districts were faced with an impossible task to come fully online in one week’s time. It left them in a completely vulnerable situation,” said Jose Martín, an attorney with the Richards, Lindsay & Martín law firm in Austin, Texas, which represents school districts. Schools that failed to adapt special education services to online formats or arbitrarily dropped some individualized student services “are in for a world of hurt” legally, Martín said.

Meeting IDEA obligations

Although the public health crisis is ongoing, courts and oversight entities are indicating a seriousness to holding schools accountable for IDEA services, according to experts’ analyses and a review of pandemic-related disputes that have been decided or are under investigation.

  • A Texas hearing officer ordered the Georgetown Independent School District to provide a student with extra speech therapy and reimburse the family for hundreds of dollars for a tutor after ruling the district failed to implement the student’s IEP during spring 2020 school closures.
  • Although a U.S. District Court judge in the Southern District of New York dismissed a class action lawsuit that said every local and state school system in the country violated IDEA by not holding in-person learning for students with disabilities last spring, the judge wrote that the decision doesn’t preclude individual families from filing complaints against their state or local school systems.
  • A California Department of Education investigation found the Bakersfield City Elementary School District out of compliance for not providing services to 25 students with IEPs “to the greatest extent possible” between March and August. Corrective action includes providing each of the 25 students up to 30 hours of additional services.
  • The Washington Office of Superintendent of Public Instruction required corrective action from the Bellevue School District after an investigation found the district did not provide a child’s parent with information about the student’s progress toward some of their IEP goals. Instead, the district wrote on the progress report, “Due to limitations of remote learning, progress towards [this] goal will be assessed when in-person services resume.”
  • The U.S. Department of Education’s Office for Civil Rights has opened investigations into what it said were “disturbing” reports about the Indiana Department of Education’s failure to meet the individual needs of students with disabilities during the pandemic. OCR also opened similar investigations into Seattle Public Schools, the Los Angeles Unified School District and Fairfax County Public Schools in Virginia. (The initiation of an investigation does not mean a determination of a violation has been made.)

Schools are legally required to provide support and services to a student with disabilities who qualifies for special education. Those services are agreed to by the student’s IEP team, which includes the student’s teachers,  parents and even older students. To make those determinations, the IEP team meets at least once a year to review data about the student’s progress and to determine details about goals and services, including specific strategies, time commitments and how progress will be measured. 

Those IDEA procedures did not hit pause during the pandemic. In fact, in mid-March, the Education Department issued a fact sheet clarifying that if a school district provided services to general education students, even remotely, it must make sure students with disabilities have access to the same opportunities. Schools must also continue providing services promised in a student’s IEP, the guidance said.

The department acknowledged the “exceptional circumstances” experienced by the education system and that “schools may not be able to provide all services in the same manner they are typically provided.” However, it urged districts to offer virtual and remote supports to students with disabilities when in-person services were unavailable. A September FAQ from the department noted no matter how instruction is delivered, school systems must still fulfill their IDEA obligations

In other words, school systems are legally liable for providing “free appropriate public education” to students who qualify for IDEA services even during the public health crisis. 

Because IDEA doesn’t dictate certain methodologies, how individualized services would be adapted for hybrid or virtual formats would be up to districts and IEP teams. Additionally, there would be no waivers to IDEA requirements, including procedural deadlines.

While some students with disabilities have thrived during virtual learning because of reduced social distractions or flexibility to customize learning preferences, the adaptation of certain in-person services to online platforms, especially for students requiring more intensive supports like one-to-one aides and hand-over-hand guidance, has been the most difficult, according to educators and disability rights advocates. 

“For the most part it’s just been heartbreaking for many, many families … not being able to access an education,” said Selene Almazan, legal director at the Council of Parent Attorneys and Advocates, which helps parents of students with disabilities understand their legal and civil rights. “Then when you put in the overlaying issues of language and poverty and lack of access to the technology, I think it’s going to take a while for students to catch up to where they need to be.” 

Matt Cohen, a Chicago-based attorney who represents families in special education disputes, said a majority of calls to his office have been from parents saying their child is struggling to participate and engage in online learning. He added while federal and state guidance has clearly indicated schools must adhere to IDEA requirements during the pandemic, specific guidance on how to meet the needs of kids with disabilities, especially harder-to-serve students, has been vague. 

Some guidance has even been contradictory, he said.

“There are directives that implementing IEPs should be akin to business as usual,” Cohen said. But schools were given wide discretion on how they would support students’ IEP goals during the pandemic, absent qualitative or legal standards, he added, leading to lots of confusion for educators and parents about how much support is required.

For example, some state guidance has recommended districts create continuous learning plans — sometimes referred to as distance learning plans — for students with disabilities. Those plans document the differences in delivery of services for remote versus in-person learning. However, some of those changes weren’t based on individual students’ needs, but on the circumstances forced upon the district due to COVID-19 prevalence in the community or staff quarantines that shifted learning online.

Another point of confusion — and potential litigation — is when or if IEP teams should consider enhanced or additional services, known as compensatory services, for students with disabilities who are learning remotely, and who missed out on services promised in their IEPs during the pandemic and have regressed in their goals. 

March 2020 guidance from the Education Department advised IEP teams to consider compensatory services “when schools resume normal operations.”

The problem, many in the special education field say, is when that guidance was written, no one expected the pandemic to last as long as it has. Returning to normal operations could be months or even a year away for many schools.

“This is not like the typical failure of a special ed teacher just not doing their job. For the most part, everyone’s trying to engage in good faith reasonable efforts,” said Julie Weatherly, a special education attorney who represents school districts in Alabama, Georgia and Florida, and founder of Resolutions in Special Education.

While some state and district guidance, as well as legal experts, say it may be difficult to gauge the regression of skills while the pandemic is ongoing, others say if schools have the performance data showing slippage or the school’s failure to provide certain services for individual students, IEP teams should not delay consideration of compensatory services.

“It’s incumbent upon state departments of education to start giving guidance to local school districts on how they’re going to analyze it,” Almazan said. “Deciding that you’re going to give remedial services as a district-wide remedy may not be enough for many students, and they’re going to continue to need what’s called compensatory services.” 

Health metrics vs. students’ needs

As Read’s daughter continued to struggle with online learning last spring and efforts to make learning more accessible were still unsuccessful, Read hoped the 1st-grader would be able to start the 2020-21 school year in person full time. 

Instead, Loudoun County Public Schools adopted a plan to start the school year in a fully virtual mode with limited exceptions for in-person learning, which included phasing in on-site hybrid learning for nearly 850 students with disabilities depending on certain COVID-19 prevalence thresholds.  

Read filed a state complaint with the Virginia Department of Education on Oct. 5, alleging the district violated her daughter’s rights under IDEA by creating a district-wide policy for when on-site learning would resume, instead of allowing the IEP team to determine her daughter’s educational placement. The state rejected Read’s claims and found the district in compliance with IDEA. 

The Loudoun County district added in its findings that “local public health conditions, community concerns, and practical facility constraints have to be taken into account in these school reopening decisions, and we believe our local leaders are best positioned to do that thoughtfully.”

On Oct. 13, the district was able to welcome certain students, including Read’s daughter, back to campuses, according to Read and the district’s hybrid model implementation plan. While at school, the young student participated in learning, according to her mother. But on Dec. 15, the district went all-virtual again as COVID-19 metrics showed rising levels of new positive cases, according to the district website. 

The district did not return requests for an interview, but in a Jan. 28 email to the school community, Interim Superintendent Scott A. Ziegler wrote, “I want you to know that LCPS staff — from the Loudoun County School Board, myself, to the teachers, to all of the support personnel — and the community we serve have a common goal: to return students to school safely as soon as possible. We may disagree on the methods and timetable to return students to in-person learning, but I would like us to agree that we all have our students’ best interests at heart.” 

Read said her daughter is still unable to access online learning or even work on school-related activities at home. “I want the teachers and the school staff to be safe. I don’t want anyone to get sick, and I don’t want anyone to lose a loved one,” Read said. “But why is it OK for my child to be hurt and harmed when the school district knows what they’re doing?”

Read said she is unable to file a formal due process complaint because attorney’s fees are too expensive. The district has announced it will begin bringing some students back for in-person learning beginning Feb. 16. Read said her daughter is among that group.

Courtney Pugh, a parent advocate in Virginia who is assisting Read, said, “We’ve got to have compassion on both sides. The school system has to understand what the parents are struggling with, and the parents have to understand what the school system is dealing with. 

“However, that is not the time to make blanket decisions on a child who has an individualized plan,” she said. “These children are being left further and further behind, and they were already behind.”