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.

Supreme Court denies cert in 11 special education cases

The Supreme Court denied cert in 11 special education cases during the 2009 term including 3 cases from the 2nd Circuit: E.H. and K.H. v. Shenendehowa, T.Y. and K.Y. v. NYC Board of Ed. and Levine v. Greece (links are to the 2nd Circuit cases).

District Court rejects school district attempt to remedy deficient IEP through testimony at hearing

DUMONT BOARD OF EDUCATION v. J.T. (N.J. 5-10-2010): The New York State Review Office (SRO) often excuses inadequate IEPS by crediting the impartial hearing testimony of school district personnel as to what the district would have done for a child. Thus, district personnel have been able to, in effect, supplement an IEP and remedy its defects at hearing. In this New Jersey case, the Court refused to countenance such a tactic noting that

[w]ith respect to the sensory diet or sensory program, Dumont asserts that any deficiency in the IEP was obviated by testimony at trial that Tri-Valley would provide an adequate sensory
program for I.T.'s needs. (Def. Br. at 17.) Under the IDEA, however, "in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined." Lascari v. Board of Educ., 560 A.2d 1180, 1189 (N.J. 1989). See also D.C. v. Montgomery Twp. Bd. of Educ., No. 04-2851, 2005 WL 1229827, at *2 (D.N.J. 2005) (quoting Lascari). Whether or not Dumont would have offered I.T. additional sensory education services at a later date, the substance of the IEP with regard to her sensory education was limited to "sensory activities, tickles, hugging, deep pressure, physical touch," without any indication the numerous sensory stimulation techniques used at Tri-Valley and discussed in Dumont's brief, or any detailed program or reference to I.T.'s home sensory diet.

Pendency in charter school case

ELYSIAN CHARTER SCHOOL v. BAYONNE BD. OF ED., 09-3741 (3rd Cir. 6-10-2010): This is an interesting case out of New Jersey. Parents placed their child in a charter school outside their school district. Charter schools in New Jersey have administrative control over the special education process. The charter school is responsible for development and implementation of the IEP. The charter school recommended placement in a private school for the following school year and the parents agreed. The home school district objected and requested a hearing, maintaining that they could offer the child a FAPE. The parents asserted that pendency was the private school arguing alternatively that it was the current educational placement and that they and the school (i.e. the charter school) had agreed to the placement. The Third Circuit disagreed and held that the child’s pendency placement was the charter school, the last school the child had actually attended at the time the hearing request had been submitted. The Third Circuit also reasoned that to allow the parents and the charter school to agree on the child’s pendency placement would conflict with the home district’s right under New Jersey law to object to the private school placement recommendation.

Admission of additional evidence in federal court IDEA actions

H.M. v. HADDON HEIGHTS BOARD OF EDUCATION (N.J. 6-22-2010): This case provides a good summary of how some circuit courts have analyzed a party’s right to submit additional evidence on an IDEA case in federal court.