Special Education Case Law Update – October 21, 2013
S.P. v. Scottsdale Unified School District No. 48., 2013 U.S. Dist. LEXIS 150293 (D. Ariz. Oct. 17, 2013) (no pre-determination of placement where District discussed availability of placement options only).
At the time her due process complaint was filed with the District, S.P. was an 8-year-old eligible for special education services based upon a learning disability and speech and language impairment. During the 2008-09 school year, S.P. received special education in the district. In the summer of 2009, S.P.’s parents enrolled him in a private summer program at New Way Learning Academy. Also during the summer, the parents provided that District with speech and psychoeducational evaluations from independent experts. On August 10, 2009, the first day of the 2009-10 academic year, S.P. was enrolled in the District at Redfield Elementary. That same day, S.P.’s IEP team meet to discuss the evaluations of the independent experts and discussed possible programs within the District that might meet S.P.’s needs. Arrangements were made for the parents to tour two possible District placements. At some point, between the August 10 meeting and the parents’ visits, the District Placement Review Committee (“DPRC”) met and discussed S.P.’s placement options. Additionally, around Aug. 14, the parents informed the District that they were concerned that S.P. had not been receiving the necessary speech and language therapy since the start of the school year at Redfield.
On Aug 20. the IEP team met, and according to the hearing officer’s findings of fact from a later due process hearing, discussed the expert reports, various special education environments available in the District, and the New Way Academy. At the end of the meeting, the District’s special education coordinator indicated that the District’s offer of placement would be Laguna Elementary (one of the schools the parents toured). The District declined to place S.P. at New Way as the parents’ wished and S.P. was withdrawn by her parents from the District on Sept. 4 and placed at New Way. The parents filed a due process complaint.
The due process hearing proceeding on the parents claims that the District improperly pre-determined S.P.’s placement, mainly through the DPRC meeting which did not involve the parents, and on whether S.P. was denied a free appropriate public education (FAPE) because she was denied speech/language therapy. On the therapy issue, the hearing officer did not rule on the issue, and when the parents raised it in this federal court, the court determined that the parents had failed to exhaust the issue – as required by the IDEA – at the administrative level. Though the parents’ due process complaint provided background regarding the therapy in the context that S.P.’s 2009 IEP was incomplete (a claim dismissed prior to the hearing as barred by the IDEA’s two-year statute of limitations), the lack of therapy was not sufficiently framed as an independent substantive violation. The parents had thus failed to exhaust the therapy claim by having failed to properly present it to the hearing officer and the federal court refused to consider the claim.
On the pre-detemination claim, the court examined Ninth Circuit precedent and found a placement may be predetermined when an educational agency made the placement determination prior to the IEP meeting and was unwilling to consider other alternatives. The inquiry focuses on the District’s motivation and intent. The federal court found that the hearing officer’s findings supported the conclusion that the parents meaningfully participated in S.P.’s IEP, including the placement decision. Though parents argued that an email exchange between District personnel evidenced pre-determination, the Court found that the email and other evidence merely showed that the DPRC permissibly discussed availability of placement options for S.P. Because the District had not determined a “take it or leave it” option for S.P. prior to the Aug. 20th meeting, S.P.’s claims were dismissed.
J.S. v. New York City Department of Education, 2013 U.S. Dist. LEXIS 151598 (S.D.N.Y. Sept. 24, 2013) (preservation of issues for judicial review; District “opened the door” to appropriateness of TEACCH methodology)
J.S. was a 7-year-old student diagnosed with pervasive development disorder not specified and severe expressive, receptive and pragmatic language disorder. During the 2009-10 school year, J.S. was placed at the Kennedy Center in an 8:1:2 classroom (students: teacher: paraprofessionals) but regressed in that setting. In January 2010, J.S.’s parents removed her from Kennedy and provided her with full-time at home services by Incidental Behavioral for the rest of the school year. In April 2010, a Committee on Special Education (CSE) met and developed an IEP identifying a 12-month 6:1:1 program for J.S. at a specialized in-District school, in addition to various group and individual therapy sessions. The District placed J.S. at P.S. 94, a District school where teachers employed the Treatment and Education of Autistic and Related Communication Handicapped Children (“TEACCH”) methodology. Prior to the placement recommendation, J.S.’s parents had signed an enrollment contract with the private Aaron School and paid a non-refundable deposit. Prior to the District’s placement decision, the parents paid an additional installment. In July, the parents notified the District that they were rejecting the IEP and placing J.S. at the Aaron School and intended to seek reimbursement. At the Aaron School, J.S. was placed in 12:1:2 ratio class. The parents additionally paid for a 1:1 shadow from Incidental Behavioral to accompany J.S.
In September, the parents filed a due process complaint contending that the District had failed to develop an appropriate IEP, that the parents had been denied meaningful participation in the IEP process, that the goals and objectives of the IEP were vague, not measurable and inappropriate, and that the CSE had failed to conduct a functional behavioral assessment and develop a behavioral intervention plan. After proceeding through a hearing (in which the parents were largely successful) and the District’s appeal through a State Review Officer (SRO) (in which the District was largely successful), the parents filed this suit in federal court.
The Court initially addressed arguments the parents had not raised in their due process complaint or their cross-appeal to the SRO and determined that the parents had waived judicial review of a “least restrictive environment” claim. The District additionally argued that the parents had waived their right to question the appropriateness of the TEACCH methodology. However, the Court agreed with the parents that the District “opened the door” issues regarding TEACCH when the District attempted to use testimony on TEACCH methodology to bolster the IEP. Therefore, even though the parents did not raise any TEACCH issues at the due process hearing, because the District raised the issue before the hearing officer, the federal court found the parents had reserved their rights to challenge the appropriateness of TEACCH. However, because the SRO did not review the hearing officer’s determinations regarding TEACCH, the federal court remanded to the SRO for additional findings. Likewise, the District challenged the parents’ right to assert in federal court that the goals of the IEP were vague and inappropriate. The District argued that J.S. had not preserved the issue for judicial review because the issue was not cross-appealed to the SRO. The court found, however, that the parents were not “aggrieved” by the hearing officer’s decision because the hearing officer found for the parents – even though he did not reach the IEP goals issue. As with the TEACCH methodology, because neither the hearing officer or SRO considered the adequacy of the goals, the federal court remanded to the SRO or further determinations.
The parents additionally contended that the IEP did not comply with the IDEA’s procedural requirements because the District failed to perform a functional behavioral assessment (FBA) or behavior intervention plan. The District is required to perform an FBA when a student’s behavior may impede the learning of the student, or others, and failure to conduct an FBA can be a serious procedural violation if it impedes an IEP team from learning necessary information about the student’s behaviors. The SRO determined that the failure to perform an FBA did not deprive J.S. of a free appropriate public education (FAPE) because the IEP both identified the challenging behaviors and these behaviors were addressed in the IEP’s goals. However, the court held that the SRO could not rely on the IEP’s goals as a basis to excuse the District’s failure to conduct an FBA because, as noted above, the SRO never considered the adequacy of the goals themselves. The court remanded this issue to the SRO to reconsider his findings.
The parents substantively challenged the 6:1:1 placement at P.S. 94 as inappropriate because J.S. would not have been “functionally grouped” with other students in his classroom. The SRO relied on testimony that the parents’ suggested alternative placements were inappropriate because J.S. could not follow a general education curriculum. Ultimately, the court declined to choose between the conflicting opinions of education experts and deferred to the SRO’s decision that the placement at P.S. 94 did not deny J.S. a FAPE. The case was remanded to the SRO on the issues identified for further consideration above.