Failure to educate lawsuits another concern for schools in pandemic

Failure to educate lawsuits related to virtual learning and students with disabilities are a growing concern heading into 2021 as K-12 school districts continue to adapt in the pandemic.

Litigation involving the federal Individuals with Disabilities Education Act has long been an area of activity for K-12 schools and several recent class actions specifically allege that online schooling policies implemented during the pandemic violate the law.

The exposure needs to be actively managed as COVID-19 continues to disrupt in-person learning, experts say.

The IDEA guides how states and public agencies provide early intervention, special education and related services to more than 7.5 million children with disabilities.

Failure to educate claims typically involve students with functional needs receiving therapies through schools and those that are on individualized education programs (IEPs), said Doug Manwaring, Cincinnati-based chief underwriting officer, public entity, at Liberty Mutual Insurance Co.

As COVID-19 spread in the spring and schools pivoted to a hybrid or all-virtual learning platform, the insurer expected that the changes could create “challenges and exposures,” so it developed a series of risk mitigation tactics for its policyholders, he said.

“If you can get out in front of these (claims) you can control them better, and then the parents see an effort of goodwill from the schools,” Mr. Manwaring said.

Claims activity initially was low but increased after the summer, as the new school year started, he said.

“It seemed that parents were frustrated with what their children were experiencing and so there was a spike in August and September in claims activity,” Mr. Manwaring said.

Since then claims have “leveled off,” but with COVID-19 cases rising and some big metropolitan public school districts switching to all-remote learning, insurers are concerned about the effect that could have on policyholders over the winter, he said.

In the special education context, the litigation now being filed centers on the services that weren’t provided in the spring, said Lisa Scruggs, partner at Duane Morris LLP in Chicago.

As the pandemic looks likely to continue through the 2021 school year, there are also concerns about potential lack of services, such as students not receiving their expected special education minutes or not being educated at all, she said.

Recent claims ask that special education students who either cannot be served from home virtually, or whose parents feel virtual learning is inadequate, have access to in-person learning, Ms. Scruggs said.

Several federal class-action lawsuits have been filed, including one filed Nov. 23 in the U.S. District Court for the Southern District of New York by parents and the guardian of eight students with disabilities against New York city and state education officials.

This lawsuit seeks redress for the defendants’ “pervasive failure to meet their obligation to provide a free appropriate public education to all New York City students with disabilities during the COVID-19 crisis,” court papers say.

“During the pandemic, defendants have failed to provide services and programs consistent with these students’ IEPs during remote learning. These failures have been compounded by defendants’ additional failures to provide technology, translation, and interpretation services to families of students who need these resources to learn remotely, leaving these students even further behind,” according to the lawsuit.

Another federal class-action lawsuit, filed Oct. 20 in the U.S. District Court for the District of Colorado, alleges that the Boulder Valley School District’s remote learning and limited in-person instruction fail to provide the free appropriate public education required by law to students with disabilities.

Filed by two parents, the lawsuit seeks to require the Boulder Valley district to provide “fully in-person instruction for students with disabilities who need special education and related services pursuant to an IEP.”

It also seeks an injunction barring the district from enforcing its policy not to grant accommodations from its requirement that all students wear masks during in-person instruction for “students with disabilities whose disabilities prevent them from wearing a mask for an extended time.”

According to the lawsuit, the district-wide policies are “unlawful” and “a systemic failure to comply with IDEA.”

The parents named as plaintiffs in the lawsuit each have a student in the Boulder Valley school district, one diagnosed with Down’s syndrome and the other diagnosed with low-functioning, non-verbal autism.

Igor Raykin, an attorney at Kishinevsky & Raykin LLC in Aurora, Colorado, who is representing the plaintiffs, said IDEA and Section 504 of the Rehabilitation Act of 1973 both provide a right to an education for disabled students.

“The reason that we filed our suit is because we know disabled students A) have a right to an education, B) fall behind much more severely than general education kids when they’re not in a classroom, and C) we believe that you can absolutely educate special education students safely in a classroom while maintaining broad social distancing,” he said.

In the Boulder Valley School District 12% of the students have special needs, so the buildings would at most only be populated by 12% of the overall student population, not accounting for those kept home by their parents due to safety concerns, Mr. Raykin said.

“Realistically we’re talking about 5% to 6% of the school population showing up, if that. There’s no reason social distancing could not be maintained in a situation like that. That’s the reason we brought the suit. We want special education students to continue to receive the services that they need,” he said.

Failure to implement a student’s IEP or to meet the substantive Free Appropriate Public Education requirements is where there is a risk for school districts, said Jennifer Smith, partner at Franczek P.C. in Chicago.

School districts can best mitigate the risk by documenting their outreach to parents, she said.

For example, if students are not engaged or not participating in remote instruction “it is critical that school districts keep trying to reach that family and try to reach that student, and that they document those attempts,” Ms. Smith said.

“There should be a log, emails, a paper record showing everything they tried to do to engage that student and get that student back in instruction,” she said.

Bringing in different constituencies at the policy-setting stage that represent diverse learners or students with disabilities is “critical,” Ms. Scruggs said.

Having them at the table when decisions and policies around reopening and allocation of resources are being made “can help inoculate [against] some of those charges that your policies are arbitrary or were not sufficiently inclusive,” she said.

Schools should first establish a process to evaluate student learning concerns and consider assigning that responsibility to a dedicated individual, Mr. Manwaring said.

Then, when learning platforms and teaching environments change, there is a consistent way to identify challenges as they come up, he said.

Schools also need to reach out to families of students with IEPs regularly and to encourage those with issues or concerns to contact the school and school district directly, Mr. Manwaring said.

“It seems to be when families are just frustrated, not getting a response and don’t know what to do next that litigation becomes what they feel like is their last option to address the issue, and that’s not really in anyone’s best interests,” he said.