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Decided: October 9, 2009
The crux of this Second Circuit special education
decision revolved around whether the Individuals with Disabilities
Improvement Act ("IDEA") requires Individualized Education Plans
("IEP") to identify a specific school location for an individual
student, or whether the IEP must merely describe the general environment
of an overall program for a student. Although this case involved
parents seeking tuition reimbursement for a unilateral private school
placement - the court's decision that the local educational authority
("LEA") need not specifically describe a school name resonates for
all IEP's in the circuit.
In this case, T.Y.'s parents sought specifically designed
instruction and specialized services for their child, who presented
with significant developmental delays and a severe language disorder
as a result of a diagnosis of autism. The key dispute arose over
a May 2006 IEP where the school district indicated that T.Y. would
attend a program specializing in educational opportunities for students
with disabilities, without naming a specific school. After rejecting
two placements offered by the board of education, the parents enrolled
T.Y. in a private school for autistic children and notified the
board of education of their intent to seek reimbursement.
T.Y.'s Due Process complaint rested on two grounds.
First - that the IEP materially violated T.Y.'s right to a free
appropriate public education ("FAPE") in part because the IEP did
not provide T.Y. with adequate speech services and the failure to
provide adequate parent training to T.Y.'s parents. Second - that
the IEP was procedurally deficient because it did not include a
specific school placement.
It is the second claim - the IEP's failure to include
a specific school placement - that provides guidance to LEA's in
the circuit going forward. The parents pointed to the language of
the IDEA's implementing regulations, which state that "the parents
of s child with a disability must be afforded an opportunity to
participate in meetings with respect to …[t]he identification, evaluation,
and educational placement of the child." 34 C.F.R. § 300.501(b)(1)(i)
(emphasis added). The parents also relied on 20 U.S.C. § 1414(d)(1)(A)(i)(VII)
which indicates that an IDP must include "the anticipated frequency,
location, and duration of those services." The court, while finding
the parents' argument somewhat compelling, relied on precedent indicating
that the term "educational placement" refers to the general educational
program - such as the classes, individualized attention and additional
services a child will receive - rather than the "bricks and mortar"
of the specific school. See Concerned
Parents v. N.Y. City Bd. Of Educ., 629 F.2d 751, 756
(2d Cir. 1980). Regarding the term "location," the court found that
the United States Department of Education weighed in on this issue
in its commentary to the IDEA '97 amendments, echoing that the definition
of location does not require the identification of a building where
the IEP is to be provided - but merely the program designed for
the individual student ("location means general setting in which
the services will be provided and not a particular school of facility").
This requirement does not relieve the LEA's responsibility to assign
a school that satisfies the IEP's requirements - but it does not
require a specific location/school/building per se.
This decision may be found on line at
www.ca2.uscourts.gov/decisions/isysquery/d2c95966-48d1-4062-9ca0-7fe952fee509/19/doc/08-3527-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d2c95966-48d1-4062-9ca0-7fe952fee509/19/hilite/
(JES 12/09)
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