The Individuals with Disabilities Education Act (IDEA) requires that school districts provide the services available in the last agreed-upon Individualized Education Program (IEP) unless the parents have agreed to a change in programming. During the COVID-19 pandemic, school districts have had to resort to remote provision of services. For children with disabilities, for whom remote services are not accessible and cannot provide a free appropriate public education (FAPE), can parents request in-person services? According to Judge Analisa Torres’ decision in L.V. v. New York City Department of Education (S.D.N.Y. July 17, 2020), the answer is yes, to the extent the services can be performed safely.
Cookie-cutter remote learning programs have frustrated many parents of children with special needs. For example, can a small child with multiple disabilities really learn from sitting in front of a tablet or computer all day? Are parents required to act as their child’s paraprofessional all day? When a family has two working parents, multiple children to care for, and other household responsibilities, it can be impossible to implement virtual learning successfully.
One court has recognized that such non-individualized remote services may not comply with IDEA’s guarantee of FAPE.
L.V. is a single mother with two children with autism spectrum disorder. At the time of the onset of the pandemic in New York City, one of her children, J., was not receiving consistent services. L.V. sought and received, from the New York City Department of Education (NYCDOE) a tablet device enabled with its own Wi-Fi hot-spot. The device’s internet connection, however, was not reliable and, at age 5, J. was unable to sit still to use the tablet.
L.V. filed a lawsuit, asking for an order requiring NYCDOE to provide in-person services to J. The school district responded that it would provide all the services to which J. was entitled, but only insofar as that could be done entirely remotely, by using the hot-spot enabled tablet.
The court ruled that J.’s program contemplated in-person services and NYCDOE had not explained how the remote services are a satisfactory substitute. Nor had the school district conducted an evaluation to determine how it could deliver remote services to J. to meet his individual needs. As a result, the court ordered NYCDOE to provide the in-person services in the last agreed-upon program “to the extent that they can be performed safely in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.” L.V. had identified service providers willing to deliver in-person services. The court ordered NYCDOE to use those, or similarly qualified, providers. The court also ordered an independent assistive technology evaluation to assess J.’s “individual needs and the software required to deliver his required services remotely, to the extent certain services cannot be provided in-person due to the current pandemic.”
The magistrate judge’s report and recommendation is available here and the district court’s opinion adopting the recommendation is available here.
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.