March 2009

Case of the Month: T.P. and S.P. v. Mamaroneck School District (2nd Circuit)
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This Second Circuit case from New York addresses the recurrent theme of "predetermination".

Here's the story: In preschool, the district provides this child with autism a regular preschool program for ten hours per week with an adult assistant, 30 hours of ABA services at home, and speech and occupational therapy. Now the child is transitioning to kindergarten. The parents want to continue home-based ABA services (25 hours per week) along with a full-time adult assistant at school and private OT and speech five times per week.

Not surprisingly, the June IEP team does not agree and the parents bring in an outside expert who supports their position. In July, the IEP team meets again to consider the expert's report and recommendations and modifies the IEP to include 10 hours of school-based ABA and various transition services during the summer. Just before the July IEP meeting, the district's behavior consultant reviews the expert's report and makes recommendations for services. The ultimate IEP reflects the behavior consultant's recommendations.

Parents request a hearing, and the district prevails through the two-tier hearing process. The federal district court rules for the parents, but the 2nd Circuit disagreed, supporting the hearing officer/ALJ decisions. In sum, the 2nd Circuit found the district did not "predetermine" placement by developing proposals in advance of the meeting. The district's actions at the meeting reflected a responsive posture, where the district made changes to the June IEP to add ABA services (at school) and transition services over the summer. The staff did not have a "take it or leave it" attitude, and the parents had a meaningful opportunity to participate in the decision-making process.

Substantively, the court quoted from Rowley that school districts are not required to "furnish[] every special service necessary to maximize each handicapped child's potential". The court deferred to the well-reasoned findings of the hearing officer/ALJ that the IEP appropriately addressed the student's needs.

Lessons learned: The lessons here are pretty clear. Evidence of a good faith "give and take" over an IEPs contents suggests an open mind even if the results are not what the parents want for the child. Parents and district personnel alike are allowed to prepare for IEP meetings. Such preparation will not be considered "predetermination" as long as the preparation sessions are not decision-making venues, and IEP participants approach IEP meetings with some level of flexibility.
When the team does not reach consensus, the school must offer a reasonable solution that addresses the student's educational needs.