OAH Grants Decision Against LAUSD Regarding Distance Learning

08.31.2020

On August 24, 2020, the Office of Administrative Hearings (“OAH”) issued a Decision in the Matter of: Parent on Behalf of Student v. Los Angeles Unified School District, OAH Case No. 2020050465.

Relevant Facts:

On May 18, 2020, Student filed for due process against the Los Angeles Unified School District (“LAUSD”) alleging the following issues:

Did LAUSD deny Student a free appropriate public education (“FAPE”) from March 16, 2020, through the filing of the complaint, by changing Student’s educational program to a distance learning program that did not adequately implement Student’s operative May 23, 2019, individualized education program (“IEP”)?
Did LAUSD deny Student a FAPE from March 16, 2020, through the filing of the complaint, by failing to assist Student’s search for an adult day program, and ensure Student’s transition to such a program?

At the time of the hearing student was 22 years old, in 12^th grade, and enrolled at a nonpublic school. Student alleged that the distance learning program implemented by LAUSD through Student’s nonpublic school was inadequate to implement her IEP and provide her with a FAPE. Specifically, Student alleged that the virtual instruction time provided in distance learning was far less than the in-class instruction provided for in Student’s IEP, and that she was unable to participate in community-based instruction necessary to develop her life skills and vocational training to support her transition to life after high school.

Student’s operative IEP was dated May 23, 2019, and provided that Student continued to be eligible for special education and related services due to her autism. Her education was also adversely impacted by intellectual disability, and deficits in speech and language, social emotional functioning, and adaptive behavior necessary for independent living. Student’s IEP included nine goals in the areas of expressive language, pragmatic language, behavior, functional reading, functional writing, functional math, vocational skills, social skills and community skills, each of which were directed towards preparing Student to live independently and function in daily life after high school. Student’s IEP team determined that she required a small, structured, therapeutic learning environment with immediate response to her behavior, communication, and academic needs to make progress on her goals. As a result, the IEP team offered her continued placement at a nonpublic school, an alternative curriculum focused on vocational and independent living skills, including 1,570 minutes per week in a special day class (“SDC”), 60 minutes per week of in-class small group speech and language services, and extended school year (“ESY”). 630 minutes per week of Student’s schedule was devoted to community based instruction.

On or around March 13, 2020, LAUSD and Student’s nonpublic school notified their students that they would be closing on March 16, 2020, in order to prevent the spread of COVID-19. Between March 16-18, 2020, LAUSD and Student’s nonpublic school provided Student with a lesson plan and materials to work on at home, but no instruction or services were provided to general education or special education students. On March 19, 2020, Student’s instruction resumed using distance learning, including watching videos and completing assignments electronically, and her teacher was available via telephone. For the first six school days of distance learning, Student’s distance learning did not include videoconferencing or any interactive instruction.

On March 27, 2020, LAUSD provided Student access to videoconferencing, and she began receiving virtual speech and language services via Zoom on April 25, 2020.

Beginning the week of March 30, 2020, Student’s teacher began implementing a new distance learning schedule for Student’s class. The new schedule included activities each day from 10:30a.m. to 3:00p.m. with scheduled 30 minutes breaks at 11:45a.m. and 1:00p.m. During the breaks, Student watched and worked out with a body movement video. From 11:15-11:45a.m., the students completed a non-interactive online activity and assignment posted in the Google Classroom, in the areas of functional reading, writing and math, independent living, career development, and virtual community-based instruction (watching videos of visits to interesting places). From 12:15-1:00p.m., each day except Wednesday, the class met virtually for job club, personal fitness, career development and music. On Wednesdays, Student received 60 minutes of group speech services. From 1:30-2:30p.m. every day except Wednesdays, Student met virtually with her teacher to review the day’s assignments. From 2:30-3:00p.m. on Tuesdays, Student and her parents met with her teacher for individualized attention and to address any issues and concerns.

Throughout distance learning Student made some progress on her functional academic goals and in speech and language, but minimal progress on her vocational, social skills, or community skills goals. In these areas, Student’s progress depended heavily on in-person participation in job training, or personal interaction with peers and others in her community, which were not possible under Student’s distance learning program due to COVID-19.

On April 28, 2020, a virtual IEP team meeting was held for Student to prepare for her to age out of special education at the conclusion of the 2020 ESY. There were no changes made to Student’s IEP at the time. Further, the IEP noted that Student would “continue to receive educational services by participating in distance learning until July 31, 2020.” LAUSD provided prior written notice to all special education students stating that the distance learning was “not an amendment or alteration of [Student’s] IEP. Rather, it is a means to implement that IEP while [Student] is ‘Safer at Home.’ Parent did not object to Student’s distance learning program, but did not consent to the IEP.

On May 14, 2020, Student’s parent responded to the April 28, 2020, IEP in writing and noted that the “stay-at-home learning [was] inadequate to fulfill the mandate of providing a FAPE…to special needs students.” Student’s parents asked LAUSD to allow Student to continue in school with her existing placement and services after the end of the 2020 ESY through the fall/winter semester of the 2020-2021 regular school year. The District continued to provide Student with distance learning through Student’s last day of school on July 31, 2020, but did not offer any compensatory services to Student to make up for the differences between the offer of FAPE in Student’s May 23, 2019 IEP, and the educational program provided to Student through distance learning.

Applicable Law/Guidance:

In reaching its decision, OAH relied on guidance from the Office of Special Education and Rehabilitative Services (“OSERS”) and the California Department of Education (“CDE”) regarding the provision of special education and related services during the COVID-19 pandemic, which expressly made no change to existing law regarding requirements and standards for providing students a FAPE. Thus, the Administrative Law Judge (“ALJ”) reasoned that the only relevant inquiry was whether LAUSD adequately implemented Student’s IEP and provided her with a FAPE under the pre-COVID-19 standards set forth in Van Duyn v. Baker Sch. Dist. 5J (9th Cir. 2007) 502 F.3d 811, 821. Van Duyn provides as follows:

To provide a student a FAPE, a school district must deliver special education and related services “in conformity with” the student’s IEP. (20 U.S.C. § 1401(9)(D).) “IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute – not to decide on its own no longer to implement part or all of the IEP.” As school district that fails to implement an IEP exactly does not violate the IDEA “unless it is shown to have materially failed to implement the child’s IEP. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Van Duyn, 502 F.3d at pg. 815)

Additionally, the ALJ determined that CDE did not indicate that there was any waiver of existing IDEA or Education Code requirements for providing FAPE to students with disabilities. While CDE acknowledged that the unprecedented situation caused by COVID-19 may lead to learning being provided that did not mirror the offer of FAPE in a student’s IEP, in such situations, CDE stated that “once the regular school session resumes,,” [districts] should plan to make individualized determinations, in collaboration with the IEP team, regarding whether or not compensatory services may be needed for a student.” (CDE March 20, 2020 Guidance, Frequently Asked Question 3.)

The ALJ determined that guidance to districts that they should “do their best in adhering to IDEA requirements to the maximum extent possible,” and insure “to the greatest extent possible,” that students with disabilities were provided the special education and related services identified in their IEP were goals, but there was no suggestion that complying with them was sufficient to establish that Student received a FAPE.

Discussion:

In this case, applying the Van Duyn and N.D. v. Hawaii Dept. of Education standards, OAH concluded that the distance learning program provided to Student between March 16, 2020 and May 18, 2020, fell materially short of adequately implementing Student’s IEP. Based on the testimony and evidence presented at the hearing, the ALJ concluded that Student actually received, at most, 600 minutes of instruction per week, plus 60 minutes of speech and language services. From March 16, 2020, to the first week of April, Student received less than 10% of the instructional minutes included in her IEP, and she received three days of no instruction. Student also missed one group speech and language session that was not made up.

The ALJ also concluded that Student’s weekly participation in in-person community based instruction and vocational training was reduced from 870 minutes to zero, and she received none of the hands-on job training that allowed her to make progress before LAUSD implemented distance learning. As a result, it was determined that LAUSD’s distance learning program constituted a material failure to implement Student’s May 23, 2019 IEP, and denied her a FAPE. LAUSD was also found to have committed a procedural violation by failing to invite outside agencies, like the Regional Center and the Department of Rehabilitation to Student’s IEP meeting, but determined that this procedural violation did not deny Student a FAPE. Finally, the ALJ reasoned that LAUSD did not deny Student a FAPE by failing to identify any specific postsecondary adult programs for Student because it was not required under the IDEA or Education Code.

Because Student successfully established that LAUSD denied her a FAPE by materially failing to implement her IEP, the ALJ awarded her compensatory education for eight school weeks of distance learning, including 40 hours of postsecondary transition counseling by an appropriately-credentialed counselor of Parent’s choice, to assist Parent with coordinating with Westside Regional Center, the Department of Rehabilitation, and other agencies and programs, as appropriate; and one hour of group speech and language services.

What Does This Mean:

It is likely that you have already started to receive due process filings challenging the sufficiency of the distance learning plans provided to special education students during the COVID-19 school closures. As demonstrated by this decision, there is substantial risk that OAH may determine that you owe compensatory education to your special education students in cases where their distance learning plan was materially different from the educational placement and services, including the duration and intensity of those services.