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Can a Child Receive In-Person IEP Services if the School is Doing Distance Learning? YES.

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A FAPE Test Case and Distance Learning

In light of the foregoing, I recommend the Plaintiffs’ Motion be granted in part. Specifically, I recommend that the DOE be ordered to provide J.V.2 with in-person services as described in the September 2019 PO to the extent such can be done safely in compliance with guidance from health authorities and immediately conduct an independent assistive technology evaluation to assess J.V.2’s individual needs and the software required to deliver his required services remotely if they cannot be provided safely in person during the pandemic. I recommend this order remain in effect for the duration of the 2020-21 school year.

I’ve said it a zillion times in the past 5 months. We’ve received no guidance from the Department of Education (at least nothing substantive) in regards to Special Education. Only that there are no waivers to IDEA…but also, schools should do what is reasonable.

Lots of interpretation there.

Last week, a court decision came down out of NYC. The summary of the case is below.

I think the important takeaways here are:

  1. Districts can and should provide in-person services to the extent that it can be done safely. However, I’m not thrilled with the word “safely” because it open to interpretation.
  2. Districts have been essentially assigning AT to kids without evaluating them first. Whether it’s an actual device or just the method of delivery, most kids were never assessed to see if they could be successful in this manner.

I’m not a lawyer nor do I play one on the internet. There are specific nuances to this case (like the family’s issues with the district began before the pandemic) that may not apply to your household. However, I find it promising and look forward to seeing what happens with other cases.

L.V., on behalf of herself and her minor child, J.V.2, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 19-CV-05451 (AT) (KHP).

United States District Court, S.D. New York.July 8, 2020

LV is a single mom with two kids with ASD. At the time of the start of the pandemic in New York City, one of her kids, J., was not obtaining regular services. LV asked for and received, from the New York City Department of Education And Learning (NYCDOE) a tablet enabled with its own Wi-Fi hot-spot. The tablet’s WiFi and the child’s age (5) meant that the tablet really providing the student with much interaction or education.

LV filed a suit, requesting an order needing NYCDOE to offer in-person solutions to J. The school area responded that it would provide all the services to which J. was qualified, but only what could be done from another location, by using the tablet.

The court ruled that J.’s program considered in-person services and NYCDOE had not clarified exactly how the remote services are an adequate substitute. Nor had the school district performed an evaluation to establish how it could provide remote services to J. to fulfill his individual needs. Therefore, the told NYCDOE to offer 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.”

The parent had contacted people willing to deliver in-person services. The court ordered the NYC Dept of Ed to either pay for those services or find comparable service providers. The court also ordered an independent AT eval so that distance learning could be used if possible.


How to Use This for Your Situation

I rarely recommend that parents go into IEP meetings and start firing off codes, statutes or cases. Or, sending emails as such, either. This case is no different. If you are being denied in-person services that you believe can be done safely and is reasonable, follow the process. Make your request(s) in writing, meet to discuss and follow up with PWN.

I am providing this case law synopsis only for informational purposes, because this is such new territory for everyone.

Here is the full order for those who wish to read it.

ORDER

ANALISA TORRES, District Judge.

On June 25, 2020, Plaintiff, L.V., proceeding on behalf of herself and her minor child J.V.2, moved for a preliminary injunction under the “stay-put” provision of the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1415(j), and Rule 65 of the Federal Rules of Civil Procedure. ECF Nos. 67, 67-2. The Court referred the motion to the Honorable Katharine H. Parker, for a report and recommendation. ECF No. 69.

On July 8, 2020, Judge Parker issued a Report and Recommendation (the “R&R”), recommending that Plaintiff’s motion be granted in part and denied in part. R&R at 13, ECF No. 73. Judge Parker held that although 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure typically allow parties 14 days to object to an R&R, “given the nature of the emergency relief requested, both Plaintiffs and Defendants shall have five days from the services of this [R&R] to file written objections.” Id. at 14.

The time for filing objections having expired and the Court having received no objections to the R&R, the Court reviewed the R&R for clear error, and found none. Santiago v. Colvin, 12 Civ. 7052, 2014 WL 1092967, at *1 (S.D.N.Y. Mar. 17, 2014). The Court, therefore, ADOPTS the R&R in its entirety. Accordingly, Plaintiff’s motion for a preliminary injunction is GRANTED in part and DENIED in part.

The Court finds that over the course of 2018 and 2019, a Department of Education (“DOE”) impartial hearing officer issued three pendency orders related to J.V.2’s education, culminating in an order issued on September 6, 2019 (the “September 2019 PO”). R&R at 3. The September 2019 PO remains in force, and constitutes J.V.2’s “current educational placement” under 20 U.S.C. §1415(j). Id. at 7-8. The September 2019 PO requires:

(1) Ten (10) hours per week of 1:1 ABA therapy;

(2) Three (3) 45-minute sessions of Individual (1:1) Occupational Therapy per week;

(3) Four (4) 45-minute sessions of Individual (1:1) Speech and Language Therapy per week;

(4) Three (3) 45-minute sessions of Individual (1:1) Physical Therapy per week;

(5) Door-to-door car service transportation of J.V.2 to and from all special education instruction and related services mandated in the PO; and

(6) An appropriately trained transportation aide to supervise J.V.2 during transport to and from special education instruction and related services delivered outside of J.V.2’s home; and

(7) Prompt payment of providers within thirty (30) days of its receipt of monthly invoices of services rendered to J.V.2 by the providers.

R&R at 7-8; see ECF No. 67-1.

The Court holds that the September 2019 PO contemplated delivery of in-person services, and that Dedfendant has not adequately explained how its computer-based services are a satisfactory substitute for J.V.2 during the COVID-19 pandemic, nor conducted an evaluation of how remote services can be delivered to J.V.2 to meet his individual needs. R&R at 10.

Accordingly, Plaintiff’s request for an order enforcing the terms of the September 2019 PO pursuant to 20 U.S.C. § 1415(j) is GRANTED.

It is ORDERED that:

1. Defendant shall provide the in-person services described in the September 2019 PO to the extent that they can be performed safely in light of the current COVID-19 pandemic, in compliance with guidance from health authorities.

2. Plaintiff shall provide to Defendant the names of the service providers who have indicated a willingness to provide in-person services to J.V.2 notwithstanding the current COVID-19 crisis.

3. Defendant shall utilize these service providers to provide the services described in the September 2019 PO, provided that they are qualified and accept DOE rates, or shall locate otherwise qualified service providers willing to provide in-person services to J.V.2 at this time.

4. Defendant shall immediately conduct an independent assistive technology evaluation to assess J.V.2’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.

5. This order shall remain in effect for the duration of the 2020-2021 school year, until final judgment is entered, or until further order of the Court.

See R&R at 10-11, 13.

Plaintiff’s request for an order requiring Defendant to establish a fund on J.V.2’s behalf from which L.V. could withdraw funds to pay for services directly is DENIED. See R&R at 11-13.

The Clerk of Court is directed to terminate the motion at ECF No. 67.

SO ORDERED.

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