The COVID-19 pandemic put new attention on the challenges of virtual learning and students with disabilities. Many schools were forced to close without being adequately prepared or capable of handling the transition to remote learning. The Disabilities Education Act has established standards of instruction for those with learning challenges, and violations of the law are often referred to as failure to educate. In addition to the interruption caused by the pandemic, educators, school boards, and systems across the country continue to face threats of litigation in light of online learning modalities.

The Basis for Claims

As a broad term, claims of a failure to educate will often fall into one of two categories. They are as follows:

• Claims arise out of a failure to diagnose the existence of special education needs and establish the proper resources and support for the student.
• Claims can be brought against the educator or systems for providing instruction that was not adequate or did not meet the expectations for the student with a disability.

While these seem to be straightforward occurrences, claimants have a heavy burden of proof that must be presented for the case to succeed. Claimants must show that there was incompetence on the part of the educator or institution to achievement that ran contrary to the standards of normal expectations.

The Impact of COVID

As school systems were forced to quickly address the threat of COVID in the midst of a school year, there was a reasonable expectation that there would be some challenges with the transition for students of all backgrounds and abilities. However, there was a significant concern on account of insurers that would increase the risk of failure to educate claims. Hybrid and virtual learning platforms present a steep learning curve to many individuals with special education needs. Still, it is possible for school systems to get out in front of these concerns to complete the school’s academic mission.

The initial transition period to online learning didn’t see many claims, but as time went on and children were confined to remote learning for an extended length of time, claims rose in August and September of 2020. However, allegations in litigation extend as far back as the springtime, where children were unable to receive needed therapies and services to support their education. Failure to educate concerns stem from special needs children who cannot be educated through virtual learning platforms, and parents feel that access to in-person learning is more conducive to the child’s needs.

The Protection Against Claims

As COVID continues to be a concern for school systems, preventing claims can start with goodwill efforts of establishing special education circumstances for special needs students and thoroughly documenting all student and parent engagement in presented learning opportunities. As an agent, presenting risk mitigation strategies should be as important as advising on comprehensive insurance policies.

About PGUI

Professional Governmental Underwriters, Inc., is a full-service risk management company dedicated to assisting public, educational and non-profit entities in the management of their professional liability exposures including educators liability insurance. We are dedicated to providing state-of-the-art professional underwriting management and loss control advisory services on behalf of our designated carriers. For more information, call us toll-free at (800) 586-6502.