Special Education Students Sue Hawaii DOE for Compensatory Ed Services for State’s Denial of FAPE during COVID-19

Special Education Students Sue Hawaii DOE for Compensatory Ed Services for State’s Denial of FAPE during COVID-19

By April 29, 2020 News No Comments

On April 13, 2020, a group of students in Hawaii filed a class action lawsuit against the Hawaii Department of Education, alleging that they, and thousands of other disabled children in Hawaii, have been denied a free and appropriate public education (“FAPE”) during school closures due to the COVID-19 pandemic.

Specifically, four students (three with IEPs and one with a Section 504 plan) allege that Hawaii failed to implement the students’ IEPs and/or modification plans beginning about March 2020. Moreover, the students allege that Hawaii discriminated against them by failing to provide mandated services to eligible disabled students, including Extended School Year (“ESY”) services, while continuing to provide educational services to non-disabled peers. As relief, the students request that they receive certification as a class to move forward with their suit on behalf of all impacted students in the state. They further request that the Department of Education develop an “equitable means of remedying…lost educational opportunity by establishing criterion and procedures” and a possible assignment of a special master to oversee the Department’s compliance with any settlement.

These students face many procedural and substantive legal hurdles before reaching the stage in which a judge will issue a decision on the merits. Specifically, under the Individuals with Disabilities Act, plaintiffs must first exhaust their administrative remedies, e.g., filing a due process complaint, prior to filing a complaint in federal court. Because the students here failed to exhaust their administrative remedies, this procedural failure may result in the court dismissing the complaint outright. Moreover, given the very individualized nature of determining the appropriateness of a student’s IEP services, as well as the student’s progress/regression in order to calculate the level of compensatory education services (if necessary), it is unlikely that the students will prevail on their attempt to be certified as a class.

In addition to developing remote learning plans for all students, including students with disabilities, school districts across Illinois have also been grappling with the prospect of handling future due process and state complaints, as well as compensatory education requests, due to the ongoing mandated statewide school closures. Although this class action suit may open the floodgates for other students to file copycat complaints across the country, school districts should continue to focus their efforts on implementing students’ services and supports as provided by their IEPs and Section 504 plans to the best of their abilities in order to mitigate compensatory education claims. This includes developing individualized remote services for students, communicating with parents, and documenting services offered and students’ progress throughout Remote Learning Days. Once in-person instruction resumes, school districts can then assess students’ progress  and determine how best to address compensatory education services for students.

Please contact any attorney in our Students/Special Education practice group with questions on implementing services and supports during Remote Learning Days or mitigating future compensatory education claims.

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