Author: Omer A. Khan, Attorney at Law
Recently, the Office of Administrative Hearings (OAH) has held in two cases that a student was denied a free appropriate public education (FAPE) because the Local Educational Agency (LEA) changed the student’s educational program that did not adequately implement Student’s IEP. On August 24, 2020, OAH decided the Los Angeles Unified School District case (Case No. 2020050465) and followed up with the Norris School District case (Case No. 2020010423) on September 2, 2020.
In Los Angeles Unified School District, the 22-year old student was eligible for special education under the category of autism, with additional impacts from her intellectual disability and deficits in speech and language, social-emotional functioning, and adaptive behaviors for independent living. Student’s last agreed upon IEP provided a nonpublic school placement for the student, which included special education services for 1,545 of the 1,950 minutes Student attended school each week, plus 60 minutes per week of small-group speech and language services. Forty percent of Student’s weekly schedule – 630 minutes – was devoted to community-based instruction, and 240 minutes per week of hands-on vocational skills training. The student’s speech and language services were provided in either a class or community-based environment to aid her expressive and pragmatic language skills.
On March 19, 2020, Student’s IEP was implemented through the District’s distance learning program due to school closures. As a result, Student received half of the amount of instructional minutes required by her IEP and lost 116 hours of hands-on community-based instruction and vocational training. Parent alleged that this inadequate implementation of Student’s IEP was a denial of FAPE and sought as a remedy that ability for Student to return to the nonpublic school for an additional semester once in-class instruction resumes.
The hearing officer referred to guidance published by the United States Department of Education Office of Special Education and Rehabilitative Services (OSERS) and the California Department of Education (CDE) to LEAs for how to implement special education during the COVID-19 lockdowns. The hearing officer noted that, although the OSERS guidance promised to “offer flexibility where possible,” the guidance did not substantively rescind an LEA’s responsibility to implement a student’s IEP, nor did it create a safe harbor for LEAs who make an attempt to provide special education services through distance learning. Additionally, the guidance published by CDE encouraged the use of distance learning, and did not indicate that there was any waiver or relaxation of existing IDEA or Education Code requirements for providing FAPE to students with disabilities.
As a result, the hearing officer concluded that LAUSD’s services fell materially short of adequately implementing the student’s IEP by not providing student the number of minutes of instruction required by Student’s IEP, and the type of instruction required for the student to make meaningful progress on her vocational, social skills, community skills, behavioral, and transition goals. Under these unique circumstances, the Student was not entitled to an IEP meeting to consider the need for compensatory education services or to return for a semester at the nonpublic school because the student had “aged out” of special education by the time the decision was issued. Instead, the hearing officer ordered the District to provide 40 hours of post-secondary transition counseling to assist the parent with coordinating with the reginal center, Department of Rehabilitation, and other agencies to locate an adult day program and/or employment for Student.
In Norris School District, Student was on an IEP that provided for 6,300 out of 6,420 monthly minutes in the general education classroom, 160 minutes a month of one-to-one specialized academic instruction in the general education classroom, and 120 minutes a month of speech and language services in a separate classroom. In this case, the LEA ultimately was forced to shut down instruction completely for 28 school days between March 28, 2020 and May 8 2020. The student was not provided with any direct instruction, whether in-person or virtual. Nor did the LEA provide Student with any in-person or virtual speech therapy. Student was provided with distance learning plan packets (which included worksheets and other tools) and weekly contact with Student’s teachers and service provider. The parent alleged, among other things, that Student was denied FAPE during school closures.
The hearing officer determined that Student was denied FAPE during school closures because (a) the District did not discuss options with Parents or the possibility of offering Parent training to help deliver the services to the student with virtual assistance by staff, (b) the District’s prior written notice regarding services during school closures was not specifically individualized to the Student or explained how the District proposed to change or modify the delivery of Student’s IEP, and (c) the District should have held an IEP meeting to consider alternative methods of delivery of Student’s services given that the parents were struggling to deliver all of the materials provided by the District. The hearing officer reasoned that there were no exception to implementation of an IEP for physical school closures caused by pandemics or other directives to close schools
During the COVID-19 lockdowns, LEAs have had to significantly adapt their special education programs. These due process hearing decisions provide helpful reminders that LEAs should consider holding IEP meetings where parents may be struggling to provide support at home and consider whether additional parent training is warranted. Another important takeaway is that LEAs must find ways to implement a student’s IEP both quantitatively (number of minutes of instruction, activities, etc.) as well as qualitatively (addressing all of the student’s needs as written in their IEP) to the greatest extent possible.
For further guidance on small group, in-person services, see http://girardedwards.com/new-guidance-and-permission-for-small-group-in-person-services-when-general-in-person-instruction-is-still-prohibited/