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Sunday, March 22, 2009

SRO affirms IHO decision re denial of FAPE

SRO 08-060: School district attorney David Oakes filed a motion to dismiss the parent’s hearing request. This is a strategy that he used successfully in 08-008 and 07-122 and appears to be using as a matter of course. Here, however, the IHO denied the motion and ultimately ruled in the parent’s favor. The SRO affirmed, rejecting the district argument that the parent’s claims were moot and also finding that the IEP was not appropriate. Of note, the district had identified particular needs for which the IEP did not contain specific goals. Kelly noted that deficiencies in the IEP “may not have risen to the level of denying the student a FAPE on their own, those deficiencies, in concert with the failures to properly implement the IEP ..., did deny the student a FAPE.” He further noted, “The 2007-08 IEP failed in three ways: it did not offer a FAPE at the time it was developed, it was not properly implemented, and it was not revised as appropriate during the year when the student's social, emotional and behavioral needs increased.”

It is interesting to note that Kelly rejected the district’s argument that it was “a violation of the mootness doctrine for the impartial hearing officer to order the district to take several actions during the remainder of the 2007-08 school year when that school year had nearly ended.” In constrast, Kelly has mooted numerous claims where the appeal to the SRO extends past the end of the school year, precisely what occurred here.

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