Federal Court Require School Districts to Provide In-Person Services for Students With IEPs
This has been a challenging year for the parents of children who require intensive, hands-on services such as occupational therapy, physical therapy, speech therapy, or ABA therapy in order to access their education. Even if the parents have worked collaboratively with their school district to create an IEP that will provide these services, the COVID-related school closures have led some districts to only offer those services remotely. Unfortunately, for many children, remote services may be inadequate to provide them with sufficient support to permit learning. As this situation has never arisen in the past, it has been difficult to predict whether the courts will find that the provision of remote services may be deemed to adequately fulfill the school district’s obligations under IDEA in all circumstances.
Recently, however, at least one federal court has found that there may be circumstances that warrant requiring the district to provide in-person services. Last week, on July 17, the U.S. District Court for the Southern District of New York ruled that in circumstances where the IEP clearly contemplated that services would be provided in person, and the District cannot establish that its remote learning option is sufficient to meet the unique needs of the child in question, then the court may order that the school district provide in-person services through collaboration with independent providers who are currently available and willing to provide these therapies.
In this case, LV on behalf of J.V.2 v. NYC Dept. of Education, SDNY, July 17, 2020 – No. 19-CV-05451 (AT) (KHP), the parent was seeking implementation of her child’s “stay put” placement which included 10 hours each week of ABA therapy; 180 minutes per week of speech therapy; 180 minutes per week of occupational therapy; and 135 weekly minutes of physical therapy. When the pandemic led to school closures, the New York Department of Education offered to provide these services remotely through an iPad program. The parent, however, was not able to “effectively use the device…for his remote learning sessions, as [the student] would not sit still and the device’s internet connection was not reliable.” As a result, the parent was forced to locate private therapists who were able to provide these required services to her child in person. Having thereby discovered that in-person services were available elsewhere, the parent brought a claim requesting that the court order the Department of Education to utilize these independent therapists to provide in-person services to her child, where possible, for the duration of the 2020-2021 school year.
The court found that “[t]here can be no dispute that occupational therapy, physical therapy, and speech therapy for a child who is not yet in kindergarten cannot be provided through a computer as well as they can be in person…” Even though the Department of Education argued that thousands of other special education students were receiving their services remotely via iPad, the court still found that they “did not make an argument regarding the sufficiency of remote learning for [this student] specifically” (emphasis added). The court continues, “Nowhere in the DOE’s opposition papers does it explain how certain services that appear inherently subject to in-person delivery, such as physical therapy, could be appropriately and remotely delivered…” In summary, “DOE has not adequately explained how its computer-based services are a satisfactory substitute for [this student] during the COVID-19 pandemic, nor conducted an evaluation of how remote services can be delivered to [the student] to meet his individual needs.”
The court, therefore, ordered the Department of Education to:
1) provide in-person services to this student, to the degree it is possible to do so safely and in compliance with current health and safety regulations;
2) work with independent service providers identified by a parent who is willing to provide these in-person services, to the extent they are qualified and charge appropriate rates;
3) “ …immediately conduct an independent assistive technology evaluation to assess [student’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.”
This decision may provide us with some useful guidance on how to collaborate with districts on the provision of certain services during the school closure period. First, it may be useful to provide your school district with the names of any local independent service providers who are currently able and willing to provide in-person services. Second, ask your IEP team to consider conducting an assistive technology assessment to determine what type of remote learning tools can provide the best substitute for any in-person services that are currently unavailable. Combined, these two tools can provide the entire IEP team with more tools to assure successful educational access this fall.
 Portions of this article also refer to the supporting Report and Recommendation of July 8, 2020, published by the same court under the same case number.