The case involved a student with severe disabilities, including epilepsy, autism, global developmental delays, and other conditions. Under her IEP, the student was entitled to specialized instruction and related services, including three thirty‑minute sessions per week of speech‑language therapy and occupational therapy (OT), and one thirty‑minute session per week of physical therapy (PT) and physical education. In December 2020, the IEP team modified the IEP to reflect the shift to remote instruction.

The revised IEP provided for Zoom sessions five days per week, with optional Google Classroom assignments four days per week. Two days per week, the student’s mother elected to have the student participate in group “circle time” rather than OT due to a scheduling conflict. One behavioral goal related to following schedules was placed on hold because it could not be appropriately monitored in a virtual setting, and monitoring of task completion throughout the day was slightly reduced for similar reasons. The student’s mother agreed to each of these revisions. Id. at 62.

During the period of remote instruction, the student received the full amount of PT and speech‑language therapy, as well as some additional services, but she received less one‑to‑one instruction. On some days, instruction was provided by an aide, and the student received approximately fifteen minutes per day each of math and reading instruction. The student struggled with remote instruction and regressed in some areas. The district offered compensatory education, but the student’s mother declined because the student was enrolled in another program for the summer.

Deferring to the hearing officer’s factual findings, the court concluded that the modified program satisfied the standard for FAPE and was implemented adequately. The student received behavioral technician and behavioral analyst services, the full amount of PT and speech services, and most related services overall. The court noted that OT sessions were missed because the mother opted for circle time, not because the district failed to provide the service. The court further found that the student’s instructional time was only slightly reduced, that she received equipment to support independent activities, and that there was no failure by the district to implement substantial or significant provisions of the IEP. Id. at 66.

The court rejected the argument that remote instruction during the pandemic was a per se violation of the Individuals with Disabilities Education Act (IDEA). It emphasized that while a school district is never relieved of its legal obligations under IDEA, it must continue to offer an educational program reasonably calculated to confer meaningful educational benefits in light of the child’s individual circumstances, which may be affected by a global pandemic. Id. at 66–67.

The decision reflects that modified IEPs implemented during extraordinary circumstances such as the COVID‑19 pandemic may satisfy FAPE where the record supports that services were largely delivered as revised, parental input was incorporated, and the student continued to receive educational benefit in light of her individual circumstances.

In response, the parents enrolled the student at a private special-needs school, Keswell, and elected remote instruction because of concerns related to COVID-19. The parents then filed a due process complaint seeking tuition reimbursement. An impartial hearing officer (IHO) concluded that Keswell was generally an appropriate placement but awarded only partial tuition reimbursement based on the limited number of hours of remote live instruction provided each day.

On administrative appeal, the state review officer (SRO) determined that Keswell was not an appropriate placement and denied tuition reimbursement entirely. The parents sought judicial review, and the district court reinstated the IHO’s award of partial reimbursement. On further appeal, the Second Circuit held that the district court failed to meaningfully weigh the equities in connection with the tuition award and vacated the judgment.

The court of appeals explained that the IHO and district court misapplied the Burlington–Carter framework governing tuition reimbursement. In analyzing the second prong—whether the parents’ unilateral placement was appropriate—the IHO improperly calculated a reimbursement percentage based on the number of instructional hours provided. The court emphasized that the appropriateness inquiry requires a binary determination of whether the placement is appropriate, not a calculation of proportional reimbursement. 2024 WL 763386, at *2.

The court further explained that once parents satisfy the first two prongs of the Burlington–Carter test, Supreme Court precedent establishes a presumption of full reimbursement, subject to reduction only if equitable considerations warrant such a result. Citing Forest Grove School District v. T.A., 557 U.S. 230, 247 (2009), and 20 U.S.C. § 1412(a)(10)(C)(ii), the court noted that reimbursement for the cost of private enrollment is the ordinary remedy when a student is denied FAPE, unless equities justify a reduction. Id.

Although the IHO found that the equities favored the parents, the IHO nonetheless awarded only partial reimbursement without identifying or explaining any equitable factors supporting the reduction. The court held that this failure required vacatur and remand. It concluded that the district court erred in affirming the partial award without addressing the absence of articulated equitable findings. Id.

The decision reflects that determinations regarding the appropriateness of a unilateral placement must remain distinct from any subsequent equitable analysis of the amount of reimbursement, and that reductions from full reimbursement must be supported by clearly identified and explained equitable considerations.

The student attended kindergarten under a 2018 IEP that placed him in general education for approximately 98 percent of the school day, with speech and language services provided the remaining time. When the IEP expired in 2019, the parties were unable to agree on a new program, and the 2018 IEP remained in effect. In January 2020, the district proposed a new IEP recommending placement in a special day class at a different school site, supported by a one‑to‑one behavior aide, with general education participation reduced to approximately 32 percent. The parents disagreed, and both parties filed due process complaints.

The parents challenged the proposed IEP on several grounds. First, they argued that the IEP failed to specify the frequency, duration, and setting of occupational therapy services. The court agreed, reversing the administrative law judge (ALJ) on this issue. The court held that the lack of specificity constituted a procedural violation because it impeded the parents’ ability to monitor whether the IEP was being properly implemented. The court also found that the IEP inadequately addressed the student’s social skills and that the amount of occupational therapy offered was inconsistent with uncontested expert recommendations, resulting in a denial of a free appropriate public education (FAPE).

With respect to placement, the court upheld the ALJ’s determination that the proposed special day class with partial general education inclusion satisfied the LRE requirement. Applying the factors set forth in Sacramento City Unified School District v. Rachel H., the court concluded that the evidence supported the district’s placement decision based on educational benefit, non‑educational benefit, and the impact of the student’s behavior on the general education classroom.

The court reversed the ALJ, however, on the issue of ABA services. Although the ALJ concluded that the student’s one‑to‑one aide did not need to be trained in ABA, the court held that where the record demonstrates consensus among experts that a specific methodology is required, that methodology must be expressly included in the IEP. The court found that the evidence overwhelmingly supported the consistent use of ABA by trained staff and that the failure to specify this methodology in the IEP denied the student FAPE.

Finally, the court affirmed the ALJ’s determination that the district denied FAPE by failing to implement the student’s prior IEP during COVID‑19 school closures. Given the student’s inability to access virtual instruction, the district was required to convene an IEP meeting to consider alternative instructional options. The failure to do so, combined with the absence of adequate prior written notice, significantly impeded parental participation. The court reiterated that while pandemic‑related adjustments were permissible, districts remained obligated to provide teacher‑led instruction and meaningful educational access.

The decision underscores that IEPs must include specific methodologies when supported by consensus in the record, must clearly define related services, and must be revisited when circumstances materially affect a student’s ability to access instruction. It also reaffirms that COVID‑19 disruptions did not eliminate a district’s core IDEA obligations.

The case involved a student with developmental disabilities. The parent and the district began arranging special education services in May 2019. After the parent filed a due process complaint on October 2, 2019, the parties reached a settlement the following month. Disputes later arose, and the parent again requested due process. On December 23, 2020, an administrative law judge (ALJ) issued a decision finding that the district had denied the student a free appropriate public education (FAPE) and imposing a stay-put IEP.

During 2020 and 2021, the student experienced significant medical issues, including multiple hospitalizations. The same period was marked by widespread educational disruptions caused by the COVID-19 pandemic. On March 16, 2021, the parent filed suit alleging violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. On September 10, 2021, the parent moved for a preliminary injunction to enforce the stay-put IEP, alleging that the district was not fully implementing the ordered services. The court granted the injunction on November 30, 2021.

On February 10, 2022, the parent moved for civil contempt sanctions, asserting that the district continued to fail to comply with the stay-put IEP and the court’s injunction. In the decision at issue, the court granted the motion, found the district in civil contempt, and imposed sanctions.

The court detailed the extensive services required under the stay-put IEP, including substantial weekly hours of home-based academic instruction, nursing services, vision services, orientation and mobility services, physical therapy, occupational therapy, speech and language services, and multiple consultation services. 2023 WL 3177796, at *2.

The district argued that it had made good-faith efforts to provide the required services but faced persistent difficulties recruiting and retaining qualified personnel, obtaining sufficient service hours from available providers, and coordinating schedules with the parent. Although the court credited the district’s representations regarding its efforts, it concluded that the undisputed record demonstrated pervasive service gaps.

The court found, among other deficiencies, that no academic instruction was provided after November 30, 2021; that the student received far fewer than the required 20 hours per week of nursing services; that occupational therapy services were minimal; that vision services were delivered sporadically based on provider availability; and that similar shortfalls affected other related services.

The court concluded that the district failed to even substantially comply with the stay-put IEP. While acknowledging the extraordinary challenges posed by the COVID-19 pandemic, the court emphasized that staffing shortages and pandemic-related disruptions did not excuse noncompliance. As the court stated, “Even with the present difficulties, Bass Lake must at least substantially comply with the IEP.” Id. at *4.

As a sanction, the parent sought a monetary penalty based on the value of compensatory services previously awarded by the ALJ. The court declined to impose a monetary sanction, finding insufficient evidence regarding actual service costs and concerns about overlap with relief potentially available under the pending ADA and Section 504 claims. Instead, the court ordered the district to pay the parent’s attorneys’ fees and cautioned that additional sanctions could be imposed if compliance with the stay-put IEP was not achieved.

The decision underscores that districts remain obligated to substantially comply with stay-put requirements, even under difficult circumstances, and that persistent failure to do so may result in findings of civil contempt and the imposition of sanctions.

The Second Circuit reversed the district court’s dismissal of a class action complaint alleging violations of the IDEA, Section 504 of the Rehabilitation Act, the Equal Educational Opportunities Act, and state law, with some claims brought under 42 U.S.C. § 1983. The plaintiffs alleged that entities and officials of the New York City Department of Education, the New York City Board of Education, and the State failed to provide a free appropriate public education to thousands of students with disabilities during the period of remote instruction caused by the COVID-19 pandemic.

The plaintiffs conceded that they did not exhaust IDEA due process procedures but alleged that exhaustion should be excused as futile. They argued, in part, that the administrative process could not award the relief they sought—namely, the appointment of a special master to oversee a non-adversarial, streamlined process for obtaining compensatory services independent of the due process system.

The court rejected that argument. Although 20 U.S.C. § 1415(l) requires exhaustion only when plaintiffs seek relief that is also available under the IDEA, the Second Circuit reiterated its longstanding position that the unavailability of a particular remedy in the administrative process does not, by itself, excuse exhaustion. Z.Q., 2023 WL 1486387, at *2.

The court reached a different conclusion, however, with respect to the plaintiffs’ allegations of systemic delay. Systemic violations may excuse exhaustion on futility grounds, and pervasive delay in the adjudication of due process complaints qualifies as such a violation. The plaintiffs alleged that, at the outset of the pandemic, New York City had more than 10,000 open due process complaints, nearly 70 percent of which had exceeded regulatory timelines. Because the IDEA regulations generally contemplate resolution of due process complaints within 75 days of filing, the court concluded that these allegations were sufficient to invoke the futility exception at the pleading stage. Id.

The court acknowledged that pandemic-related disruptions might affect compliance but explained that such considerations would need to be addressed on a fuller evidentiary record, not on a motion to dismiss.

The defendants pointed to a newly implemented program intended to provide compensatory services to students affected by remote learning, including mandatory consideration of compensatory education when developing IEPs for the 2022-23 school year. The plaintiffs responded that critical details about the program—including the scope, duration, and availability of services—had not been disclosed. They further alleged that parents were unaware of any IEPs actually providing such services despite requests, that funding for the program was insufficient, and that disputes concerning the services would still be subject to the same delayed due process system.

The court concluded that the record was insufficient to support dismissal on mootness grounds or to defeat the plaintiffs’ futility allegations.

Although Z.Q. concerns circumstances under which parties may bypass the due process system, the decision ultimately underscores the importance of the hearing process itself. The Second Circuit made clear that pervasive and persistent delays in the due process hearing system may excuse exhaustion, at least where plaintiffs seek compensatory services and allege systemic failure of the administrative framework.

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.

Guidance Documents

The federal educational authorities have issued several documents discussing special education and coronavirus. These documents include:

OSERS, Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, 76 IDELR 77 (OSERS March 12, 2020).

USDOE Office for Civil Rights, Fact Sheet: Addressing the Risk of COVID-19 in Schools  While Protecting the Civil Rights of Students, 76 IDELR 78 (OCR March 16, 2020).

OSERS, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (with attached IDEA Timelines), 120 LRP 10623 (OSERS March 21, 2020).

Impacts on Hearing Procedures

The only document listed above that discuss resolution sessions and hearings are the IDEA Timelines attached to OSERS Fact Sheet. OSERS states that “[w]hile IDEA specifically mentions circumstances in which the 30-day resolution period can be adjusted in 34 C.F.R. § 300.510(c), it does not prevent the parties from mutually agreeing to extend the timeline because of unavoidable delays caused by the COVID-19 pandemic.”

Also, it notes that “although a hearing decision must be issued  and mailed to the parties 45 [calendar] days after the expiration of the 30-day resolution period or an adjusted resolution period, a hearing officer may grant a specific extension of time at the request of either party to the hearing.  34 C.F.R. § 300.515(a) and (c).”  Importantly, any extension must also be addressed in accordance with a state’s various requirements governing the granting and denial of extensions.

It seems obvious that social distancing and shelter-in-place orders impede face-to-face hearings. However, an IHO, in his/her discretion, could hold hearings by telephone.  See Letter to Anonymous, 23 IDELR 1073 (OSEP 1995).

Issues Presented at Hearing

IHOs may confront claims that school districts failed to provide services to children during the outbreak and outbreak related school closings. It is possible to imagine claims based on the failure of a school district to create or carry out a continuity of services plan, as well as claims based simply on the unavailability or inadequacy of services during school closure periods. USDOE opines in its Q and A document, “If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.” It appears that most schools are not closing down completely, however, but rather moving to remote instruction or other ways of providing services to students.

On the subject of schools’ obligations to students with disabilities once some services are offered to students without disabilities, the Office for Civil Rights document states,

Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements. If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

The DOE Q and A document also advises of specific duties when public schools for children with disabilities are selectively closed due to high risk of severe illness if students attend. Remote instruction might be used; if services are not provided compensatory services may be needed. (Question A-3.) The OSERS Fact Sheet of March 21, 2020, reinforces this advice.

Especially salient issues could arise for students who cannot attend once schools reopen or who cannot participate in at-home instruction because they are infected with the disease. The fact sheet from the Office for Civil Rights continues:

If a student who has an individualized education program (IEP) through the Individuals with Disabilities Education Act, or is receiving services under Section 504, is required or advised to stay home by public health authorities or school officials for an extended period of time because of COVID-19, provision should be made to maintain education services.  This also applies if the student is absent from school as advised by the student’s treating physician, consistent with school policy and documentation requirements.  During such absences, if the school is open and serving other students, the school must ensure that the student continues to receive a free appropriate public education (FAPE), consistent with protecting the health and safety of the student and those providing that education to the student.  If feasible, the student’s IEP Team, or the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, can be utilized to assist with the effort to determine if some, or all, of the identified services can be provided through alternate or additional methods.  Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during an extended school closure, especially when continuing education must be provided through distance learning.

The Q and A document also provides that if a child is home for more than ten consecutive school days because of a medical problem there should be an IEP meeting to consider changes to the child’s placement and IEP. Alternative methods of providing instruction need to be considered, and, again, compensatory services may be needed. (Question A-2.)  It is a change of placement to exclude a child at high risk of severe medical complications from school for an extended period once the schools reopen, and full procedural protections must be provided. Temporary emergency measures, generally ten school days or less of exclusion, would not be a change of placement, if opportunities for virtual instruction, telephone instruction, and other curriculum based activities are afforded. (Question A-4.) Claims for compensatory services or other relief could be advanced if these rules are not followed.