Rialto Nonpublic School Student Gets Compensatory Hours for COVID Distance Learning Failures

A 12-year-old student with autism placed at a nonpublic school (Bliss Academy) through Rialto Unified received no direct instructional services from April through summer 2020 when his school reopened during COVID-19 closures. The district also failed to implement his full IEP minutes during the 2020-2021 school year. While the ALJ found the district had no obligation to provide in-person services during the pandemic, it was found to have denied FAPE by failing to provide accommodations for distance learning and by materially under-implementing the IEP, resulting in an award of 234 total compensatory service hours.

What Happened

The student was a 12-year-old boy with autism who had significant needs: he was mostly nonverbal, used an iPad communication device, required a full-time one-to-one behavioral aide, and engaged in self-injurious behaviors. His IEP placed him at Bliss Academy, a nonpublic school contracted by Rialto Unified, where he had been educated since 2018. His operative IEP, dated September 27, 2019 and consented to by his mother, offered 1,450 minutes per week of specialized academic instruction (SAI) in a group setting with a full-time behavioral aide, plus individual speech therapy, occupational therapy, and adapted physical education.

When COVID-19 forced school closures in March 2020, Bliss Academy initially closed entirely, then reopened on approximately April 16, 2020 — but provided no direct instruction to the student through the end of the 2019-2020 school year or through ESY. Only packets of worksheets (initially non-individualized) and occasional phone calls with his mother were offered. In the 2020-2021 school year, Bliss improved significantly by offering daily Zoom sessions and individualized materials, but only made three hours per day available rather than the five hours the IEP required, and offered no group instruction despite the IEP calling for SAI in a group setting. His mother filed a due process complaint in February 2021, raising issues of in-person services, assessments, accommodations, IEP implementation, goals, aide services, and learning-loss remediation.

What the ALJ Found

The outcome was mixed — the student won on some issues but the district prevailed on most. Here is what the ALJ decided on each front:

District prevailed — no duty to provide in-person services (Issues 1 and 3): Under Governor Newsom's executive orders, state public health orders, OSERS guidance, and California's SB 98, distance learning was legally authorized during the pandemic. San Bernardino County remained in the most restrictive "purple tier" throughout the relevant period. The ALJ found that Rialto was not required to provide in-person services to deliver FAPE during this time, and no individual health determination had been made requiring in-person services for this student specifically.

District prevailed — no duty to re-assess before distance learning (Issues 2a and 4a): No law or guidance required a reassessment before transitioning to distance learning. None of the three triggers for reassessment applied: the district had not determined reassessment was necessary, the parent had not formally requested one, and fewer than three years had elapsed since the triennial evaluation. Although the mother expressed concerns at IEP meetings, she never formally requested an assessment or reported specific new behaviors to school staff.

Student prevailed — failure to provide accommodations for distance learning, spring and summer 2020 (Issue 2b): From April 16 through the end of the 2019-2020 school year and ESY, Bliss provided no direct online instruction to the student whatsoever. The only contact was phone calls with his mother, optional non-individualized worksheet packets, and two telehealth speech appointments the family missed. California Department of Education guidance required individualized accommodations for distance learning. The student showed documented regression on goals he had previously met, and the district failed to establish that more was not feasible — because Bliss clearly did more in the following school year.

Student prevailed — IEP not implemented, spring and summer 2020 (Issue 2c): Because no instructional or related services were delivered to the student at all during this period, the IEP was wholly unimplemented. This was a material failure going far beyond a minor discrepancy.

District prevailed — accommodations were adequate in 2020-2021 school year (Issue 4b): Beginning August 24, 2020, Bliss provided Zoom-based SAI, related services, individualized weekly packets, and a dedicated one-to-one aide via videoconference. The student's aide McCoy worked with him on all IEP goals every day, and related services providers attended full-duration online sessions. The ALJ found the accommodations for distance learning in the second year were adequate.

Student prevailed — IEP not fully implemented in 2020-2021 school year (Issue 4c): Despite the improved delivery of services, Bliss scheduled only three hours of daily instruction rather than the roughly five hours the IEP required. This shortfall — driven by a misreading of SB 98's funding-related minimum instructional hours as a ceiling rather than a floor — was a material failure to implement the IEP's SAI and behavioral minutes. Additionally, no group instruction was offered despite the IEP requiring SAI in a group setting, meaning Behavioral Goal 11 (requesting attention from peers) could not be implemented at all.

District prevailed — goals were adequate (Issue 5b): The ALJ found a procedural defect in the behavioral present levels of performance (behavioral frequency data was measured against truncated Zoom sessions of as little as 15 minutes but reported as "per day"), but found this did not rise to a denial of FAPE because it did not impede the mother's participation or cause educational harm. Academic and related service goals were appropriate, measurable, and grounded in reliable observations.

District prevailed — aide services offer was appropriate (Issue 5c): The student's IEP already offered a full-time one-to-one behavioral aide. When the mother requested in-home aide services at the February 2021 IEP meeting, the district agreed — conditioned only on a reasonable COVID-19 liability waiver. The mother chose not to sign the waiver, which was her right, but the offer itself was not deficient.

Issue not ripe — regression/learning loss (Issue 6): OSERS and California Department of Education guidance both directed IEP teams — not hearing officers — to assess and address COVID-related learning loss once schools resumed normal operations. The ALJ found this issue premature for due process adjudication. The student had partially returned to in-person instruction at Bliss in May 2021 and his triennial assessments were underway at the time of hearing.

What Was Ordered

87 hours of specialized academic instruction (SAI) as compensatory education — calculated at a one-to-five ratio of compensatory individual instruction for group SAI minutes the student missed across the spring/summer 2020 and 2020-2021 shortfall periods.
87 hours of behavior intervention services to accompany the SAI hours (reflecting the full-time aide component that should have accompanied instruction).
20 hours of related services — to be used at the mother's discretion for any combination of speech therapy, adapted physical education, and/or occupational therapy — compensating for the complete absence of those services during spring/summer 2020.
20 hours of social skills instruction in a group setting by a nonpublic agency, to address the failure to provide any group instruction as called for by the IEP, plus 20 additional hours of behavior intervention services to be used in conjunction with the group social skills sessions.
All services must be provided by a certified nonpublic agency of the parent's choosing, with Rialto paying the agency directly. All hours must be used by the last day of the 2022-2023 regular school year or they expire.
All other relief requested by the student — including nearly 1,000 hours of compensatory services and an in-home ABA program at 30 hours per week sought by the family's expert — was denied as excessive, unsupported by evidence, and based on opinion from an expert who had never observed or assessed the student.

Why This Matters for Parents

During COVID, "no in-person services" was not automatically a FAPE violation — but "no services at all" was. The law gave districts flexibility to use distance learning during the pandemic. However, that flexibility did not excuse a complete failure to deliver any instruction or services. If your child's school went fully dark — no Zoom sessions, no meaningful individualized materials, no direct staff contact with your child — that is a FAPE denial regardless of COVID. Document every week your child received nothing.
Districts cannot cut your child's IEP minutes to match a state funding formula. Rialto's nonpublic school misread SB 98's minimum instructional hours (which relate to school finance) as a cap on how much instruction a special education student could receive. California Department of Education explicitly stated that IEP SAI minutes must be implemented even under distance learning rules. If your child's school shortened his or her instructional day during COVID without an IEP team decision to do so, that may be a compensatory education claim.
You do not have to request an assessment to trigger district accountability — but formally requesting one is still important. The ALJ found no duty to assess here partly because the mother never formally submitted an assessment request, even though she raised concerns at IEP meetings. If you believe your child's needs have changed significantly, put your assessment request in writing so it creates a legal obligation the district must respond to within required timelines.
A district's COVID liability waiver for in-home services is not automatically unreasonable. When the district offered in-home aide support conditioned on a liability waiver, the ALJ found the waiver reasonable and the offer legally sufficient. If you decline a district's offer of services based on waiver terms, be aware that a hearing officer may find the offer was appropriate and your child's claim for that remedy fails. Consult an advocate or attorney before declining any formal offer.
COVID-related learning loss and regression are meant to be resolved through the IEP process first — not due process. The ALJ dismissed the family's regression claim as premature because federal and state guidance directed IEP teams, not hearing officers, to assess COVID learning loss once schools fully reopened. If you believe your child lost skills during distance learning, push your IEP team to conduct a formal learning loss analysis and document it in writing. If the team refuses to address it, that refusal itself may become a future FAPE claim.

What Happened

What the ALJ Found

The outcome was mixed — the student won on some issues but the district prevailed on most. Here is what the ALJ decided on each front:

What Was Ordered

87 hours of specialized academic instruction (SAI) as compensatory education — calculated at a one-to-five ratio of compensatory individual instruction for group SAI minutes the student missed across the spring/summer 2020 and 2020-2021 shortfall periods.
87 hours of behavior intervention services to accompany the SAI hours (reflecting the full-time aide component that should have accompanied instruction).
20 hours of related services — to be used at the mother's discretion for any combination of speech therapy, adapted physical education, and/or occupational therapy — compensating for the complete absence of those services during spring/summer 2020.
20 hours of social skills instruction in a group setting by a nonpublic agency, to address the failure to provide any group instruction as called for by the IEP, plus 20 additional hours of behavior intervention services to be used in conjunction with the group social skills sessions.
All services must be provided by a certified nonpublic agency of the parent's choosing, with Rialto paying the agency directly. All hours must be used by the last day of the 2022-2023 regular school year or they expire.
All other relief requested by the student — including nearly 1,000 hours of compensatory services and an in-home ABA program at 30 hours per week sought by the family's expert — was denied as excessive, unsupported by evidence, and based on opinion from an expert who had never observed or assessed the student.

Why This Matters for Parents

During COVID, "no in-person services" was not automatically a FAPE violation — but "no services at all" was. The law gave districts flexibility to use distance learning during the pandemic. However, that flexibility did not excuse a complete failure to deliver any instruction or services. If your child's school went fully dark — no Zoom sessions, no meaningful individualized materials, no direct staff contact with your child — that is a FAPE denial regardless of COVID. Document every week your child received nothing.
Districts cannot cut your child's IEP minutes to match a state funding formula. Rialto's nonpublic school misread SB 98's minimum instructional hours (which relate to school finance) as a cap on how much instruction a special education student could receive. California Department of Education explicitly stated that IEP SAI minutes must be implemented even under distance learning rules. If your child's school shortened his or her instructional day during COVID without an IEP team decision to do so, that may be a compensatory education claim.
You do not have to request an assessment to trigger district accountability — but formally requesting one is still important. The ALJ found no duty to assess here partly because the mother never formally submitted an assessment request, even though she raised concerns at IEP meetings. If you believe your child's needs have changed significantly, put your assessment request in writing so it creates a legal obligation the district must respond to within required timelines.
A district's COVID liability waiver for in-home services is not automatically unreasonable. When the district offered in-home aide support conditioned on a liability waiver, the ALJ found the waiver reasonable and the offer legally sufficient. If you decline a district's offer of services based on waiver terms, be aware that a hearing officer may find the offer was appropriate and your child's claim for that remedy fails. Consult an advocate or attorney before declining any formal offer.
COVID-related learning loss and regression are meant to be resolved through the IEP process first — not due process. The ALJ dismissed the family's regression claim as premature because federal and state guidance directed IEP teams, not hearing officers, to assess COVID learning loss once schools fully reopened. If you believe your child lost skills during distance learning, push your IEP team to conduct a formal learning loss analysis and document it in writing. If the team refuses to address it, that refusal itself may become a future FAPE claim.