Another decision in which the Court rejects district effort to save deficient IEP through testimony at hearing

N.S. v. DISTRICT OF COLUMBIA (D.C. 5-4-2010): It is utterly remarkable what some parents must go through these days to get an appropriate program for their child. In this case, the parents rejected the district’s proposed IEP, placed their child privately and requested reimbursement. The IHO ruled in favor of the school district despite the that, inter alia, the IEP did not include a statement of the child's present levels of academic achievement and performance, it was undisputed that the child required a multitude of supplementary aids and services in the classroom and the IEP failed to identify any such aids and services, the IEP failed to include specific goals and objectives to address the child's significant deficits in written language, the IEP failed to contain speech and language goals despite evidentiary support for the need, the IEP failed to include OT services despite the documented need and subsequent OT evaluation recommending services in response to which the district did not amend the IEP, and the IEP recommended inclusion despite the need for pullout services.

The IHO ruled in favor of the district reasoning that because the parents pulled the child prior to the implementation of the proposed IEP, the parents concerns were “speculative.” The Court rejected this position reasoning that “parents are not required to wait and see a proposed IEP in action before concluding that it is inadequate and choosing to enroll their child in an appropriate private school.” The district argued that the alleged defects were “merely procedural or technical and that they did not deprive N.S. or his parents of any substantive rights under the IDEA.” The Court rejected this argument and distinguished between harmless procedural flaws such as “failures to meet statutory deadlines” from serious procedural flaws such as here–“failures to include required information in an IEP about the services to be provided a disabled student.” The district argued that “as long as [the proposed placement] was "willing and able" to provide N.S. with appropriate services to meet his educational needs, any errors or deficiencies in the IEP are harmless.” The Court soundly rejected that argument reasoning that “the IDEA requires that a school district do more than simply provide services adequate to meet the needs of disabled students; it requires school districts to involve parents in the creation of individualized education programs tailored to address the specific needs of each disabled student…The IEP must be specific enough to allow parents to understand what services will be provided and make a determination about whether the proposed placement is adequate.” The IHO further erred by relying “on evidence about what services could have been provided by … instead of considering what services were actually called for by the IEP or adequately discussed at the IEP meeting. Because the purpose of the due process hearing is to contest the adequacy of the IEP and the placement, the Hearing Officer should not consider evidence about services not prescribed by the IEP or discussed at the IEP meeting.”

New York attorneys should take note of this decision as the SRO routinely permits school districts to cure significant defects in IEPS through testimony at hearing.