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Legal Updates from KLO

New York District Court says LEA must provide in-person services during pandemic, safety permitting

Posted on November 17, 2020

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By: Lily Crespo Esq.

What happened? The U.S. District Court, Southern District of New York ordered a district to provide in-person services to a 5-year-old with autism to the extent it can safely do so during the COVID-19 pandemic. The court reasoned that the district failed to explain how delivering the child’s applied behavior analysis therapy and other services via a tablet would provide him FAPE. The court also ordered the district to conduct an independent assistive technology evaluation to assess the child’s individual needs and the software required to deliver his required services remotely.

What does this mean for educators in Montana? In deciding whether to provide a child’s special education services remotely during the pandemic, a district should address whether the method of delivering instruction will enable the child to receive FAPE. This may require conducting an assistive technology evaluation and considering whether the child’s disability-related characteristics will make the proposed method of providing remote instruction unfeasible. This district allegedly provided the child a tablet to receive his one-to-one services. Before doing so, the district should have addressed the effectiveness of this delivery method, given the child’s autism and difficulty sitting still in front of a screen.

What was the procedural background of the case? In granting the parent’s request for an injunction, a federal District Court remarked that the district failed to establish that computer-based services would be an effective substitute for the in-person services outlined in an IDEA hearing officer’s stay-put order.

  • The September 2019 pendency order required the district to provide the child in-person services, including 10 hours per week of one-to-one ABA therapy, occupational therapy, physical therapy, and a dedicated aide.
  • When COVID-19 began to severely impact New York City in March 2019, the child was not consistently receiving the services, according to the parent. The parent obtained a tablet device from the district, but the child reportedly had trouble sitting still long enough to use it.
  • The IDEA’s FAPE requirement demands that a child’s special education and related services be tailored to his individual needs. The District Court first noted that the pendency order contemplated that the district would provide the listed services on an in-person, rather than a remote, basis.

Moreover, “[the district] has not adequately explained how its computer-based services are a satisfactory substitute for [the child] during the COVID-19 pandemic, nor conducted an evaluation of how remote services can be delivered to [the child] to meet his individual needs,” U.S. District Judge Analisa Torres wrote.

  • In granting the parent’s request, Judge Torres ordered the district to provide the services “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 court also ordered the district to conduct an independent assistive technology evaluation to assess the child’s individual needs and the software required to deliver his required services remotely.

What is the name of the case and where can you read it? The name of the case is L.V. v. New York City Department of Education, 120 LRP 21449 (S.D.N.Y. 2020). Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

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