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Courts Must Evaluate the Adequacy of an IEP Prospectively as of the Time of the Parents’ Placement Decision

Posted By admin, Wednesday, October 10, 2012
On September 20, 2012, the Second Circuit Court of Appeals issued a decision in R.E v. New York City Dept. of Educ. (Case No. 11-1266) which held: "courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider ‘retrospective’ testimony regarding services not listed in the IEP.” Retrospective testimony is "testimony that certain services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement.” This type of testimony cannot be used to try and alter a deficient IEP. While the court declined to adopt a rigid "four-corners rule, ” which would prohibit any testimony about what is not written in the IEP, it limited this testimony to that which will explain or justify the services written in the IEP. A deficient IEP may not be rehabilitated or amended by testimony regarding services not listed in the IEP. The district may however, adjust the IEP without penalty, after a parent files for due process, during the 30-day resolution period provided for by IDEA. If the district fails to adjust the IEP, the adequacy of the content of the IEP will be judged at the end of the 30-day resolution period. The court also ruled that the failure to provide an appropriate functional behavioral assessment ("FBA”), while a procedural violation, will not necessarily rise to the level of a denial of FAPE if the IEP adequately identifies problem behaviors and prescribes ways to manage them. On October 4, 2012, Attorney Mayerson, on behalf of the students, filed a petition for a panel rehearing, or alternatively a rehearing en banc for five specific rulings encapsulated in the court’s opinion.

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