Is your child with disabilities failing to make progress during remote learning? If so, you may have a claim for in-person services under the Individuals with Disabilities Education Act (IDEA).
A federal court in New Mexico, in Hernandez v. Grisham, available here, has provided emergency relief to a student with disabilities who sought in-person instruction during the COVID-19 pandemic because she was not making progress with remote learning.
The court found that the parents presented evidence that remote learning resulted in severe learning loss for the student, and this would continue if the district continued to deny in-person services due to the COVID-19 school closures. The school district acknowledged that it could provide small group instruction to students with disabilities, but argued that it was too dangerous due to the risk of COVID-19 spread. Ruling in parents’ favor, the court found that the injuries to the student, including severe learning loss, outweighed any possible damage the district could incur if the instruction was provided with proper precautions.
The court acknowledged the seriousness of COVID-19. However, in spite of the ongoing pandemic, the student was still entitled to a free and appropriate education (FAPE) which it explained “could be provided with in person instruction in small groups, with appropriate precautions including social distancing.” In such circumstances, the educational benefit would “outweigh the relatively low risk of contagion.” Given the student’s lack of progress under remote instruction, the court saw it was likely that the student’s Individualized Education Plan was not reasonably calculated to ensure she received educational benefits, in violation of IDEA.
What does this mean for students with disabilities? Many states still recommend that districts continue to take precautions, including implementing remote and hybrid options. However, the pandemic does not relieve districts of their FAPE obligations, and therefore, they cannot automatically restrict in person services for students with disabilities if they need such services to make appropriate progress.
Need more information? Contact the attorneys at Reisman Carolla Gran & Zuba LLP, www.rcglawoffices.com, by email or at 856.354.0021. Our attorneys are working hard to ensure continuity of services and to protect our children now more than ever.