Legal Update for Special Education Law – Results*

Thomas Specht and William McPartland (both of Scranton, PA) were successful before the Third Circuit Court of Appeals, which found that the District provided FAPE to the plaintiff during virtual instruction. The court found that the IEP, and its implementation, were reasonably calculated to enable the student to make progress in light of both her educational needs and the significant public health concerns presented by the COVID-19 pandemic. Abigail P. through Sarah F. v. Old Forge Sch. Dist., 105 F.4th 57 (3d Cir. 2024).

During the 2020–2021 school year, Abigail P. was a nine-year-old student in the defendant school district who suffered from severe disabilities, including epilepsy, autism and global developmental delays. As a result, Abigail required speech and language therapy, occupational therapy, physical therapy, applied behavioral analysis, aided language output and a full-time autism support program. 

The school district began the 2020–2021 school year in-person but transitioned to remote instruction in late November 2020 due to the COVID-19 pandemic. It provided remote instruction until February 16, 2021. Although the school district acknowledged that in-person instruction was optimal for Abigail and other at-risk students, it denied specific requests by Abigail’s mother for her to return to in-person learning, citing public health concerns. An individualized education program (IEP) remained in place for Abigail during this period and was modified with Abigail’s mother’s consent in December 2020 to reflect the school district’s shift to remote instruction. 

While Abigail made some progress toward her academic goals, she also experienced some emotional regression while subject to remote instruction. Therefore, in March 2021, Abigail filed an administrative complaint with the Pennsylvania Department of Education, claiming she had been denied a free appropriate public education (FAPE) under the IDEA and that the school district had violated both Section 504 of the Rehabilitation Act and Pennsylvania state law. The administrative hearing officer denied all requested relief following a hearing on the basis that the school district had not denied Abigail a FAPE. The U.S. District Court for the Middle District of Pennsylvania affirmed the administrative hearing officer’s decision. 

In June of this year, the Third Circuit Court of Appeals affirmed the Middle District’s disposition of Abigail’s claim. First, the court determined that the district court properly found that the administrative hearing officer had applied the correct FAPE standard, i.e. whether Abigail’s IEP was “reasonably calculated to confer meaningful education benefit in light of the student’s unique individual circumstances at the time that it was written.” 

Next, the court determined that the school district had provided Abigail with a FAPE during its period of remote instruction. Initially, the court found that her IEP, as written, met the standard for providing a FAPE because it adopted many of the recommendations contained in Abigail’s educational evaluations and incorporated suitable academic and behavioral goals, as well as appropriate related services. Further, looking to the factual record before the administrative hearing officer, the court found that the education Abigail actually received did not significantly deviate from the requirements in her IEP. Specifically, Abigail continued to receive the full amount of physical and speech therapy during remote instruction, and she only missed occupational therapy sessions when her mother opted to have her attend alternate programming instead. Further, the amount of daily instructional time she received was only slightly decreased from that which she received while learning in-person. 

Notably, the court acknowledged that Abigail’s remote instruction program was not ideal and was inferior to in-person instruction. However, it emphasized that an IEP need not provide the optimal level of services that parents may desire for their child, so long as it is reasonably calculated to enable a child to make progress appropriate in light of her circumstances. Because Abigail’s IEP, and its implementation, were reasonably calculated to enable her to make progress appropriate in light of both her educational needs and the significant public health concerns presented by the COVID-19 pandemic, the school district sufficiently provided her with a FAPE. 

*Prior Results Do Not Guarantee a Similar Outcome