Second Circuit Court of Appeals affirms appropriateness of IEP despite failure to specify school placement

Makes no sense for parents

The Second Circuit Court of Appeals affirmed that an IEP developed for a child with autism was procedurally appropriate despite the IEP failure to name a specific school placement. The Court held that the IDEA provision requiring an IEP to state the "location" of a child's services refers to the child's placement on the Least Restrictive Environment continuum.

Our Second Circuit court differs with the opinion of the Fourth Circuit Court of Appeals which holds that failure to name a specific placement amounted to denial of FAPE. These differences suggest that the issue may be ripe for review by the Supreme Court.

The Second Circuit court explained that the term "educational placement", as used in the IDEA, refers to the type of program a student should attend rather than a specific school.

Nevertheless, the Second Circuit court emphasized that it was not holding that school districts can assign students with disabilities to schools that were unable to implement their IEPs. Rather, the court explained it was simply holding that the failure to identify a specific school in an IEP is not in itself an IDEA procedural violation.

The Second Circuit court ruling does bring up an interesting point. Assuming that each school has its own "flavor" of a specific program, how is the parent supposed to judge the value of a program without knowing the specific "flavor" at a particular location? Obviously, these judges are not immediately faced with selection of a program for their own child with disabilities.

November 11, 2009
Failure to name specific school location in IEP did not violate IDEA

The U.S. Court of Appeals for the Second Circuit has ruled that an individualized educational plan (IEP) that failed to name the particular school at which a student was to receive services did not the violate the procedural requirements of the Individuals with Disabilities Education Act (IDEA). T.Y., a student with autism, attended public school in New York City, where he received special education services. When his Committee on Special Education (CSE) met to develop a new IEP for the 2006-07 school year, it did not name the particular school that he would be attending. His parents subsequently received a notice recommending a specific school placement. When they objected to the school, the New York City Department of Education (NYCDE) recommended another school, which the parents also rejected. They then enrolled T.Y. in a private school and notified NYCDE that they would be seeking reimbursement. At the administrative hearing, the parents raised two issues: (1) the IEP materially violated T.Y.’s right to a free and appropriate public education (FAPE), in part because the IEP did not provide adequate speech services or sufficient parent training; and (2) the IEP was procedurally deficient because it did not include a specific school placement. The IHO rejected the parents’ claim that T.Y. had been denied a FAPE, but ordered additional speech and language therapy. The IHO also rejected the parents’ argument that the IEP was procedurally deficient because it failed to name a specific school placement. A state review officer (SRO) upheld the IHO’s decision, except to conclude that parent counseling and training should have been specifically included in T.Y.’s IEP. The parents then sought review in federal district court. The district court granted summary judgment to the NYCDE.

The Second Circuit affirmed the lower court’s decision. It quickly disposed of the claims of substantive violations of IDEA. It stated: “In short, we see no reason to second guess the reasonable, professional determinations of the IHO and SRO in this case.” The appeals court then turned to the parents’ claim that the CSE’s failure to name a particular school for T.Y.’s placement violated the procedural requirements of IDEA because they were deprived of their right to meaningful participation in the development of the IEP. It rejected the parents’ contention that the language of IDEA and its implementing regulations require parents be “afforded meaningful participation in the decision-making process as to the location and placement of their child’s school and classroom.” Citing the U.S. Department of Education’s (ED) comments to IDEA’s 1997 amendments, it found “the requirement that an IEP specify the ‘location’ does not mean that the IEP must specify a specific school site.” It pointed out that ED had concluded “[t]he location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service.” It, therefore, concluded there is no procedural requirement that the IEP name a specific school location and, thus, failure to do so does not constitute a per se violation of IDEA.

T.Y. v. New York City Dept. of Educ., 08-3527 (2d Cir. Oct. 9, 2009)

[Editor’s Note: The Second Circuit’s opinion is at odds with the Fourth Circuit’s opinion in A.K. v. Alexandria City Sch. Bd., which held that a Virginia school district failed to provide FAPE because the district’s IEP did not identify a particular school at which it anticipated the student would be educated. A summary of that decision is available at the first link below. The school district filed a petition for certiorari asking the U.S. Supreme Court to review the Fourth Circuit’s decision. NSBA, along with the American Association of School Administrators and the National Association of State Directors of Special Education, filed an amicus brief supporting the petition. However, the Supreme Court denied review. A summary of the brief, including a link to it, is available at the second like below.]

NSBA School Law pages on A.K. v. Alexandria City Sch. Bd.
NSBA School Law pages on NSBA brief in A.K.

A.K. v. Alexandria City Sch. Bd., No. 06-1130

NSBA, (October 2007)

The U.S. Court of Appeals for the Fourth Circuit, in a two to one split, has ruled that a Virginia school district failed to provide a special education student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA) because the district’s individualized education plan (IEP) did not identify a particular school at which it anticipated the student would be educated. A.K., a special education student, attended Alexandria City Public Schools (ACPS) until eighth grade, at which time his parents enrolled him at a private residential school. Pursuant to a settlement between the parents and ACPS, the school district agreed to fund the portion of Riverview tuition that was equivalent to private day school placement that it had initially proposed. The following school year A.K.’s IEP team proposed private day school placement. However, the IEP did not identify any particular school but simply listed A.K.’s placement as "Level II — Private Day School placement." Based on their objection to that placement, the parents refused to sign the IEP. Eventually, the IEP team whittled the choices down to two schools. However, the parents found both the choices unacceptable and requested a due process hearing to determine if ACPS had offered A.K. a FAPE. The hearing officer denied the parents’ claim. Addressing the issue of ACPS’ failure to specify a particular private day school in the IEP, he concluded that "the fact that [the parents] found none of the possibilities attractive does not mean that the ACPS approach was not in accordance with the FAPE mandates." He found, therefore. that the private school placement offered provided a FAPE. The parents then brought suit in federal district court to overturn the hearing officer’s ruling. The district court upheld the hearing officer’s decision. Regarding the issue of whether there was substantive compliance with IDEA’s requirements, the court concluded that ACPS’s mentioning of the two schools during the final IEP meeting constituted a "placement offer" in accordance with FAPE’s mandates.

The Fourth Circuit reversed and remanded. It held that "as a matter of law that because [ACPS] failed to identify a particular school, the IEP was not reasonably calculated to enable A.K. to receive educational benefits." It found that the lower court had erroneously relied on the premise that ACPS had made a placement offer at both schools when the schools were mentioned by name during the IEP meeting. The appeals court stated: "Expanding the scope of a district’s offer to include a comment made during the IEP development process would undermine the important policies served by the requirement of a formal written offer, namely, ‘creating a clear record of the educational placement and other services offered to the parents’ and ‘assist[ing] parents in presenting complaints with respect to any matter relating to the educational placement of the child.’" It emphasized that it was not holding that a school district "could never offer a FAPE without identifying a particular location at which the special education services are expected to be provided." However, the Fourth Circuit found, based on the facts of the instant case, that when "parents express doubt concerning the existence of a particular school that can satisfactorily provide the level of services that the IEP describes, the IEP must identify such a school to offer a FAPE."

The dissent in essence took the majority to task for creating a mountain out of a molehill by "mistakenly conclud[ing] that an inconsequential procedural error denied a disabled student of the opportunity for a FAPE." While conceding A.K.’s IEP failed to comply with IDEA’s requirements, it found that the failure to identify the "location" at which A.K. would receive his educational services was nothing more than a procedural error. The dissent pointed out that "[m]ore than once the majority acknowledges that the failure to identify the location of the provision of special

education services on a student’s IEP need not always result in the denial of a FAPE. As a result, it contended that "[t]his concession supports the conclusion that the requirement that a school district give an anticipated location on the IEP is only procedural." The dissent also took issue with the majority’s failure to give the hearing officer’s findings the presumption of correctness to which it is entitled.

A.K. v. Alexandria City Sch. Bd., No. 06-1130

Editor’s Note: ACPS filed a petition with the Fourth Circuit seeking rehearing and rehearing en banc. The petition was denied, with only Judge Gregory, who filed the dissent in the 2-1 panel decision, filing an opinion dissenting from the rejection of the petition. Judge Gregory stated: "The IDEA was written to ensure the fair treatment of disabled students by the educational system, a noble goal that is worthy of our vigilance, but not to punish a school district’s good faith efforts to comply with the statute, even if those efforts sometimes entail technical but harmless errors." To view his dissent to denial of the petition for rehearing, see below.
A.K. v. Alexandria City Sch. Bd. denial of petition for rehearing

Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP
Posted on October 20, 2009 by Michelle C. Laubin
LINK

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs. Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP's to include the anticipated location of a child's services does not mean that the IEP must name a specific school, just a general type of educational program.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays. He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff. Related services and a paraprofessional for "crisis management" were also proposed. The IEP specified that the placement would be in "District 75", the city's special education district, but did not name a school. A month after the IEP was prepared, the parents received a placement notice from the districts central placement office. The parents visited the program and rejected it as unsuitable. The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program. The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that "the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service", the court concluded that the IDEA reference to a "location" of service does not mean a specific school, but the "general environment of the overall program".

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA. The court also noted that it appeared the parents were seeking "veto power" over the placement decision rather than input, which the IDEA "clearly does not grant them".