The Lawletter Vol 37 No 9
Steve Friedman, Senior Attorney, National Legal Research Group
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, is a federal law designed to ensure that children with disabilities have the same opportunity to receive a free appropriate public education ("FAPE") as nondisabled children do. See id. § 1400(d). Once a child has been identified as being disabled within the meaning of the IDEA, see id. § 1401(3), a school district must create an individualized education program ("IEP") for the child in order to provide the requisite FAPE, see id. § 1414(d). If the school district fails to supply a FAPE, the child's parents may seek tuition reimbursement for the child's placement in a private school. See id. § 1412(a)(10)(C).
An IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). If a parent does not believe that the school district's proposed IEP meets this standard, the parent may file a due process complaint with the appropriate state agency and ultimately may seek judicial review of the administrative decision. See 20 U.S.C. § 1415(b)(6).
Given the nature of the IDEA and its review process, IDEA cases tend to be quite fact-intensive. See Haw. Dep't of Educ. v. M.F. ex rel. R.F., 840 F. Supp. 2d 1214, 1225 (D. Haw. 2011). Accordingly, the evidence presented in the administrative hearings is crucial to the outcome of a disputed IDEA matter. See J.L. v. Mercer Is. Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010) (judicial review under the IDEA is less deferential than in most administrative cases).
In a recent IDEA case, the U.S. Court of Appeals for the Second Circuit was faced with the question of whether what it termed "retrospective testimony"—testimony that certain services not expressly listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement in the public school system—could be used to rehabilitate an allegedly deficient IEP. See R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167 (2d Cir. 2012).
Although this case was a matter of first impression in the Second Circuit, the court noted that three other circuit courts of appeals had addressed similar issues in the IDEA context and that all three had expressed a distaste for retrospective evidence. See id. at 185 (citing Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) ("[W]e examine the adequacy of [the IEPs] at the time the plans were drafted."); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) (holding that an IEP must be judged prospectively from the time of its drafting); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) ("[A]ctions of school systems cannot . . . be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective.")).
Ultimately, the Second Circuit agreed with the majority view on the issue.
[W]e hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.
. . . .
We now adopt the majority view that the IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered [in the due process] proceeding.
Id. But cf. id. at 188 (excepting any amendments made to the IEP during the statutory 30-day resolution period once a due process complaint has been filed).
The Second Circuit observed that in order for parents to make an informed decision about a school district's proposed IEP, as contemplated by the IDEA, it is necessary for them to have sufficient information about the IEP; because the written IEP is the only source of information for parents, it creates "considerable reliance interests for the parents." Id. at 186. "By requiring school districts to put their efforts into creating adequate IEPs at the outset, IDEA prevents a school district from effecting this type of 'bait and switch,' even if the baiting is done unintentionally." Id.
In so ruling, however, the court rejected the parents' proposed "four corners" rule, which would strictly prohibit any testimony that goes beyond the face of the written IEP; rather, the court adopted a rule that would permit evidence to explain and/or justify the services expressly listed in the IEP.
For example, if an IEP states that a specific teaching method will be used to instruct a student, the school district may introduce testimony at the subsequent hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used. Similarly, if a student is offered a staffing ratio of 6:1:1, a school district may introduce evidence explaining how this structure operates and why it is appropriate. It may not introduce evidence that modifies this staffing ratio (such as testimony from a teacher that he would have provided extensive 1:1 instruction to the student).
The prospective nature of the IEP also forecloses the school district from relying on evidence that a child would have had a specific teacher or specific aide. At the time the parents must decide whether to make a unilateral placement based on the IEP, they may have no guarantee of any particular teacher. Indeed, even the Department cannot guarantee that a particular teacher or aide will not quit or become otherwise unavailable for the upcoming school year. Thus, it is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that [a] specific teacher would have taken beyond what was listed in the IEP.
Id. at 186-87.
