On July 17, 2020, in L.V. v. New York City Department of Education, a federal district court in New York ordered the school district to provide in-person educational services to a five-year-old student with autism “to the extent that they can be performed safely in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.” In granting the parent’s request for relief, the court ruled that the district failed to “adequately [explain] how its computer-based services are a satisfactory substitute for [the student] during the COVID-19 pandemic, nor conducted an evaluation of how remote services can be delivered to [the student] to meet his individual needs.”
The parent and district in this case are involved in a pending due process proceeding. In September 2019, the hearing officer issued a stay-put order requiring the district to provide the student with 1:1 services in ABA therapy, occupational therapy, speech language therapy, and physical therapy. Due to the pandemic, starting in March 2020, the district provided the student with a tablet device and attempted to implement the student’s services through remote means. However, the parent alleged that the student had difficulty sitting still long enough to receive adequate remote services from the district and, shortly thereafter, filed an injunction request in court, asking the court to order the district to implement the hearing officer’s stay-put order in person.
In ruling for the parent, the court noted that the hearing officer’s stay-put order “contemplated delivery of in-person services” to the student rather than remote services. The court found that the district failed to explain how the tablet device would meet the student’s needs and failed to implement an individualized plan tailored to the student’s needs during remote learning. Although the court acknowledged the challenges and safety concerns facing the district during the pandemic, the court ultimately held that the district must still make individualized determinations to provide the student with FAPE during the pandemic. The court ordered the district to provide the student with in-person services as provided by the hearing officer’s stay-put order and “conduct an independent assistive technology evaluation to assess the [student’s] individual needs and the software required to deliver his required services remotely.”
While the federal district court in New York does not have jurisdiction over Illinois school districts, the court’s decision is instructive. Based on the court’s decision, districts should review existing IEPs and 504 plans and determine, on an individualized basis, whether remote instruction will provide the student with FAPE. Specifically, districts should determine whether the student’s IEP/504 plan can be implemented remotely and whether additional technology, assessments, or supports are necessary to allow the student to access his/her education. If districts cannot implement the student’s IEP remotely as written, districts should consider proposing remote learning plans/IEP amendments or convening the IEP team to discuss how the student’s educational needs will be addressed during remote learning in order to provide him/her with FAPE.
Contact an attorney in our Students/Special Education practice group with questions regarding remote learning plans and the provision of special education services during the COVID-19 pandemic.
Source: L.V. on behalf of J.V.2 v. New York City Dep’t of Educ., 2020 WL 4040958 (S.D.N.Y. July 17, 2020)