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David J. Mongillo


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COVID-19 Does Not Excuse Special Education Duties

David J. Mongillo,, (412) 594-5598

A.N. v. Upper Merion Area School District, 2022 WL 3371612 (E.D. Pa. Aug. 16, 2022).  The United States District Court for the Eastern District of Pennsylvania upheld a hearing officer’s award of 5.5 hours of compensatory education per day, including during days when the district offered only remote instruction during the COVID-19 Pandemic.


A special education due process hearing officer determined that, between December 24, 2018 and February 11, 2021, Upper Merion Area School District did not follow student J.H.’s IEP, which required special education classes for the following subjects: English, Math, Social Studies and Study Skills.  The hearing officer held the District placed J.H. in classes well-above his ability level, and without the necessary individualized attention from teachers.  The hearing officer awarded J.H.’s family 5.5 hours of compensatory education for each school day during the period the District did not provide appropriate services.

During a portion of the time period in question, the Upper Merion Area School District offered only remote instruction, in response to the COVID-19 pandemic.  The District argued it should not be responsible for the full 5.5 hours of compensatory education during this time period because education for all students was curtailed in an emergency response to the pandemic. 


In support of its argument, the District cited March, 2020 guidance from the United States Department of Education that “[i]f a[ District] 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 [it] … would not be required to provide services to students with disabilities during that same period of time.”

However, the Court pointed out the Department of Education issued new guidance on March 21, 2020 “to correct the ‘serious misunderstanding’ that ‘federal disability law presents insurmountable barriers to remote education.’”  The updated guidance stated, “ensuring compliance with the Individuals with [IDEA, Section 504, and the ADA] … should not prevent any school from offering educational programs through distance instruction.”  The Court explained “we understand that the Department of Education required schools, to the greatest extent possible, to provide FAPEs to students with IEPs even during time periods of curtailed instruction during the COVID-19 Pandemic.”

The Court also held, in agreement with a previous federal court decision, that the Individuals with Disabilities Education Act (IDEA) provides no exception to special education responsibilities in time of emergency.  The Court upheld the hearing officer’s compensatory education award and held Upper Merion Area School District was responsible for providing a free and appropriate education for special education students, as required under IDEA, throughout any period of remote or curtailed instruction due to the COVID-19 Pandemic.

For more information, contact David Mongillo at or at (412) 594-5598.

December 07, 2022

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