Legal Brief
Mounting Litigation on Disabilities Issues
BY SHANNON L. TAHOE/School Administrator, May 2021

REMOTE LEARNING was not even a concept when the Individuals with Disabilities Education Act became federal law. But here we are in 2021, in the midst of a public health crisis, where schools were forced to shift to remote learning models overnight.

While many students are facing academic challenges from the pandemic-forced disruptions to schooling, students with disabilities who require services with physical interaction have been severely impacted by the shift to remote learning that’s taken place in many parts of the country.

In March 2020, the federal government issued guidance that requires school districts to provide each student with a disability the special education and related services identified in the student’s individualized education plan “to the greatest extent possible.” The guidance recognizes “exceptional circumstances … could affect how a particular service is provided.” But what does this mean?

Is it even possible to effectively provide occupational therapy, physical therapy or speech therapy with little to no physical interaction? Can a student’s IEPs goals be met in a remote setting?

Parental Litigants

In the fall, two parents of children with severe disabilities have said “no” and filed suit against the Boulder Valley Central School District in Colorado. One student has Down Syndrome and various intellectual and language impairments. The student’s IEP identifies the highest needs as “community safety, communication skills, friendships and social relationships, and personal care needs.” The student also receives occupational therapy to develop independent living skills.

The second student has been diagnosed with low-functioning non-verbal autism. The student’s IEP specifies a need for sensory tools; assistance with toileting, dressing and meals; supervision during all times of the day; and small-group and one-to-one instruction.

By providing only two days of in-person instruction per week, the complaint alleges the school district is not meeting the students’ IEP requirements and thus failing to provide a free appropriate public education.

Similar lawsuits are popping up in various states and a national class action suit has been filed in New York. The lawsuits demand full-time instruction, fresh evaluations for students with severe regression, compensation for parental expenses and funding for additional staff. The federal Office of Civil Rights also is investigating at least four school districts for compliance with the IDEA during the pandemic.

Four Considerations

While acknowledging the considerable difficulty in offering specially designed instruction and accommodations remotely, school districts can act in several ways to meet the needs of their students with disabilities and avoid potential litigation:

»Communication. Districts must develop a protocol to communicate proactively with parents and guardians regarding their child’s IEP services. When families are frustrated, they turn to litigation as their last option, and that is not in anyone’s best interests.

»Services. Districts must review each student’s IEP and determine which services can be remote during any closure and what other alternative methods of instruction and services can be provided to assist the student in meeting her or his IEP goals.

»Documentation. Districts must clearly document the amount of instruction and services the student was provided (including dates, times and duration, and any progress toward meeting the IEP goals using measurable data points.

»Compensatory services. The IEP team also must determine whether the child is entitled to compensatory education services to make up for skills that were lost or not advanced during the period when the student did not receive in-person instruction. In making this individualized determination, schools should consider various details, such as services provided to students during the suspension of in-person instruction, regression in skills and progress or lack of progress on IEP goals.

Focusing on these four items will ensure students obtain the best services practicable during this unprecedented time while also minimizing litigation for school districts.

SHANNON TAHOE is an attorney with the Capital Region BOCES in Albany, N.Y.