Why the Office of Administrative Hearings Just Ruled Against LAUSD (Hint: It’s All About FAPE)
Key takeaway: In a recent court case, Parent on behalf of student v. Los Angeles Unified School District No. 2020050465, a student's parents brought the suit because their high school senior received less than half the number of minutes required by her IEP during distance learning, and she also received none of the transition services required by her IEP to prepare her for life after high school. She was also unable to benefit from virtual instruction. For these reasons, the Office of Administrative Hearings awarded her with compensatory education. This ruling is important because it sets a precedent for other cases in which a student is denied FAPE because a school's distance learning program falls short of the rights the student is due under the IDEA.
Below, special education attorney Grace Clark breaks down the reasons behind the hearing request, and what it means for our families.
On May 18, 2020, the Office of Administrative Hearings (OAH) received a due process hearing request from a student against the Los Angeles Unified School District (LAUSD). The student, who had been diagnosed with autism and an intellectual disability, was in the middle of her senior year of high school when her school closed due to Covid-19. Her parents were particularly concerned that she was not receiving the services required by her IEP that would help her transition to independent living after high school. This case is particularly important because the student was nearing the point of aging out of her high school program, and would graduate without having received crucial services that would enable her to achieve a level of independence after graduation. It also offers insight into how the OAH views a situation where a district is doing all it can to comply with the IEP during distance learning, but still falls short.
The hearing was conducted through video conference on July 7, 8, 14, and 15, 2020. The case concluded on August 3, 2020, and the OAH published its decision on August 24, 2020. The parents raised two separate legal issues at the due process hearing. Both issues claim the student was denied a free, appropriate public education (FAPE), but for very different reasons.
Issue 1: Did LAUSD deny the student a FAPE by changing the student’s educational program to a distance learning program that did not adequately implement the IEP?
- The parent on behalf of the student contended that the distance learning program initiated by LAUSD through the student’s nonpublic school in March 2020 was not adequate to implement her IEP and provide her with FAPE. Her virtual instruction time was far less than her previous classroom instruction; she was not able to meaningfully benefit from virtual, as opposed to in-class, instruction; and she was unable to participate in community-based instruction that was critical to developing life skills and vocational training that she required to transition to life after high school.
- OAH ruled that if schools continued to provide education to the general student population during the school closure, they also needed to provide special education and related services to each student with a disability. If schools could not provide FAPE to some students, they would need to evaluate whether those students required compensatory education as a result. The U.S. Department of Education indicated it would offer flexibility where possible, but reiterated that there is no waiver or relaxation of the IDEA, or any other law governing the provision of FAPE to disabled students.
- Likewise, the California Department of Education advised schools to do their best to adhere to IDEA requirements to the greatest extent possible, and to consider ways to use distance technology to meet these obligations.
- The Administrative Law Judge [ALJ] determined that the school provided less than half the number of instructional minutes required by the IEP, and provided none of the in-person, hands-on community life skills and vocational instruction that are necessary for the student to make meaningful progress toward her goals, and which are also necessary for her transition to life after high school. The ALJ found this was a material failure to implement the IEP, which denied the student FAPE.
Issue 2: Did LAUSD deny FAPE to the student by failing to help her search for an adult day program and ensure her transition to such a program?
- The student contended she was denied FAPE when LAUSD failed to invite outside agencies involved in post–high school transition to her IEP meeting and by failing to identify specific adult programs that would be suitable for her after high school.
- Beginning at age 16, a student’s IEP must include a statement of needed transition services for the child, in addition to post secondary goals based upon tradition assessments related to training, education, employment and independent living skills. Failure to invite a representative of an agency that is likely to be responsible for providing or paying for transition services to the IEP meeting is a procedural violation of the IDEA.
- A procedural violation of the IDEA only results in a denial of FAPE if it impedes the child’s right to FAPE, causes a deprivation of educational benefits, or significantly impedes the parents’ opportunity to participate in the decision-making process.
- The ALJ determined that evidence in this case did not prove that LAUSD’s failure to invite outside agencies to the IEP deprived the team of important information, or significantly impeded the parent's opportunity to participate in the decision-making process, or deprived the student of educational benefit. Further, it did not deny the student FAPE by failing to identify specific postsecondary adult programs because it was not required to provide such information under the IDEA of the Education Code.
- The student’s proposed remedy of an additional semester at her nonpublic school was not available because she aged out of the eligibility for special education at the close of LAUSD’s extended school year on July 31, 2020, having turned 22 in March 2020. So instead, the ALJ awarded compensatory education. It rejected the idea of providing additional virtual vocational and community skills training services, since those did not benefit the student in the first place. It also rejected the idea of waiting until in-person services were available because there was no evidence of when that would occur, and the student required an immediate remedy to avoid regression. It decided to award the student with transition services in the form of transition counseling that will immediately assist her in reaching her postsecondary goals. This would primarily involve assisting the parent in coordinating with agencies and locating appropriate adult programs for the student, rather than training the student herself.
- The ALJ did not find it appropriate to replace the 116 hours of vocational and community skills training that were lost with an equal amount of transition counseling, but instead provided the student five hours per week of transition counseling for each of the eight weeks in which she did not receive hands-on vocational and community skills training.
- The ALJ also ordered LAUSD to fund a total of 40 hours of postsecondary transition counseling by an appropriately-credentialed counselor of the parent’s choice. It decided that compensatory education included the missed group speech and language sessions, so added one hour of group speech and language by a provider of the student’s choice to be funded by LAUSD.
Do you think the Office of Administrative Hearing's award of transition counseling plus one hour (!) of speech therapy was fair? We'd love to know.