In A.D. v. Upper Merion Area School District, No. CV 21-5468, 2022 WL 16553379, 122 LRP 42812 (E.D. Pa. Oct. 28, 2022), the court considered the case of a student who experienced a loss of free, appropriate public education during the Covid-19 pandemic. Overturning in part a decision by a hearing officer, the court granted judgment in favor of the great-grandparent-guardians of the student on a denial-of-FAPE claim for the first two weeks of the 2020-21 school year and the period from November 17, 2020, until January 2021. The court’s approach may offer guidance to impartial hearing officers confronting similar cases in which parents seek compensatory services for periods in which the pandemic disrupted special education classes.

The student was born with serious health problems and conditions that affected brain development. The great-grandparents had legal custody. As of the beginning of the 2019-20 school year, the student spent half the day in general education kindergarten and half in the special education classroom, assisted throughout the day by a personal care assistant. The student received significant pull-out services and had a Positive Behavior Support Plan, which used a token economy approach to keep the student on task, reinforce appropriate behavior, and increase motivation. All schools in the state closed pursuant to the Governor’s order from mid-March 2020 through the end of the 2019-20 school year. From March 30 to April 3 and April 14 to April 17, the schools offered asynchronous instruction as students adapted to learning online. Synchronous instruction over Zoom began April 20, 2020, and continued until the last day of the term on May 28, 2020.

The instruction made use of a school-issued iPad, technology the student had used at school. But the technology proved unsuccessful when implemented at home. The great-grandparents had trouble mastering use of the iPad and in some instances rejected it. The special education teacher and other personnel tried to help, with the teacher even making a home visit, but the great-grandparents were more comfortable with their home computer, which was unsatisfactory because it had no camera. They also rejected the offer of a laptop with an integrated camera. The student would run or walk away from the screen, scream, and refuse redirection. The district’s personal care attendant tried to retain the attention of the student over the screen, but a personal care attendant provided in the home by a behavioral health agency had no training in the behavior plan and used techniques that conflicted with the IEP and did not provide effective support for learning. The techniques instead reinforced the student’s avoidance of instruction. The great-grandparents did not follow instructions for reinforcing appropriate behavior pursuant to the plan and kept the in-home attendant from trying to do so. The great-grandparents repeatedly requested in-home instruction and related services, but the district said no.

The school district and the great-grandparents agreed to have the student repeat kindergarten when the IEP team convened in June 2020 to develop plans for 2020-21. The district offered only virtual instruction the first two weeks of that school year, but offered in-school instruction to the student as of September 14, 2020. The great-grandparents declined the offer over concerns about the student’s health. As Covid cases mounted, the district returned to all-virtual instruction from Thanksgiving until the New Year. It offered in-school instruction again from January 25, 2021 forward, although the student’s family and about 35 percent of district families opted to remain virtual for the semester. The technical and behavior problems with instructing the student virtually continued throughout the school year, interfering with academic progress. At IEP meetings during the school year, the district recommended in-school programming for periods in which it was offered.

The great-grandparents filed for due process in December 2020, alleging FAPE denials during the 2019-20 and 2020-21 school years. A hearing in the summer of 2021 resulting in a decision in favor of the school district. In its partial reversal, the court reasoned that the need to rely on parents to implement virtual instruction “muddies the waters between the typical IDEA case, where the school fully controls IEP implementation, and cases in which parents prevented IEP implementation by not bringing the child to school for instruction.” Id. at *4. The court declared that in light of the challenges presented by the pandemic:

The proper inquiry under the unique circumstances of this case remains whether (1) the instructional plan was reasonably calculated to allow D.A. to make appropriate progress, and (2) the District could reasonably expect the family to be able to implement the IEP in light of the resources and coaching available to them, allowing for a reasonable adjustment period.

Id. at *5.

The court said that as of March 2020, a reasonable educator could believe that the student would be able to learn virtually after an adjustment period, with the instructional scaffolding it offered. However, “Once it became obvious that D.A.’s guardians would not implement the virtual instruction plan, it was no longer a FAPE.” Id. at *6. Nevertheless, virtual synchronous instruction in the spring of 2020 lasted only six weeks, and the school system tried to make adaptations. “By the time it became clear that virtual instruction could not be successfully implemented for D.A., the school year was ending, and any change in course would have to wait until the next academic session.” Id. (The great-grandparents abandoned a claim for extended school year services.) The court found the great-grandparents’ reluctance to allow the student to attend in-school services during the time they were offered understandable, but said it was not reasonable in light of the precautions the school district was taking to make in-school instruction safe. FAPE was denied, however, during periods of the 2020-21 school year when only virtual instruction was offered: “[T]he District should have been aware by the end of the 2019–2020 academic year that virtual instruction would not produce a meaningful educational benefit for D.A. . . . Because D.A. was deprived of a FAPE while nondisabled peers received virtual instruction, the student is entitled to relief regardless of whether the deprivation was caused by the District’s inaction or a pandemic.” Id. at *7.

The court said that the period of deprivation of special education services to be used in calculating a compensatory services award should exclude time reasonably needed for the school district to fix the problem after the school knows or should have known that the student is not receiving FAPE. For this student, the period began on the first day of the 2020-21 school year, since the district knew since the end of the previous school year that virtual instruction did not offer the student FAPE. The period ran for two weeks until the district offered in-school instruction as a option. The period of deprivation also included November 17, 2020, until January, when all in-school education was suspended before resuming in the new year. Further hearings would yield a precise determination.

The overall approach of the court placed responsibility on the great-grandparents for unreasonably failing to take advantage of in-school instruction when it was offered. But it put responsibility on the district to work around the problems with virtual instruction that the great-grandparents’ own limits presented. The court cited a holding that there is no emergency exception to the FAPE requirement, Aja N. v. Upper Merion Area Sch. Dist., No. 21-4234, 2022 WL 3371612, at *5 (E.D. Pa. Aug. 16, 2022). Its reasoning is consistent with the idea that a district takes the student as it finds the student. It approached the difficulties with the home environment as a problem to be addressed by the district by offering in-school instruction, rather than blaming guardians for their weaknesses in adapting to virtual education.