1. The High Court of the Gideon Putnam Argued and Decided on July 19, 2017
__________________________________
J.D. and A.G on behalf of J.D.,
Plaintiffs-Appellants
vs.
The Viking Central School District
Defendant-Appellee
Karen Norlander, Esq.- for Plaintiffs-Appellants
Jay Worona, Esq. – for the Defendant-Appellee
The Honorable Chief Judge Karen Kemp Presiding
Sitting Judges: NYCASE Conference Attendees
Prepared by Karen Norlander with Jay Worona and Karen Kemp 2017©

2. PROCEDURAL VIOLATIONS
Procedural violations shall not constitute a basis to find a denial of the right to FAPE unless they:
Impede the student’s right to FAPE.
Significantly impede the parents’ opportunity to participate in the decision making process regarding the provision of FAPE.
Cause a deprivation of educational benefits.
20 U.S.C. § 1415(f)(3)(E)(ii)
“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.”
R.E v. N.Y. City Dept of Educ., 694F3d at 190(2d Cir. 2015).

3. PREDETERMINATIONS
GENERAL RULE: “Predetermination is not synonymous with preparation.”
As long as the CSE retains “an open mind,” preparation is permitted: “IDEA regulations allow school districts to engage in ‘preparatory activities ... to develop a proposal or response to a parent proposal that will be discussed at a later meeting’ with the parents’ full participation.
T.P v. Mamaroneck UFSD., 554 F3d 247, 253(2d Cir. 2009).
Change color on the citation and remove underlining

4. Predetermination Found
When the CSE refused to consider a more restrictive ratio than the public offerings it had available, the court concluded that “it amounted to a predetermination of the student’s education program regardless of what the student ultimately needed or what the parent contributed to the process.”
J.E. v. N.Y. City Dep't of Educ., 229 F. Supp. 3d 219 (S.D.N.Y. 2017).
S.Y. v. N.Y. City Dep't of Educ., 210 F. Supp. 3d 556, 572–73 (S.D.N.Y. 2016).

5. Prior Written Notice (PWN)
A PWN is required whenever a district proposes a change in placement within a reasonable time BEFORE any change is made and whenever a district refuses a parent’s request for a change in placement or program.
20 U.S.C (b)(3)(A) & (B)
The failure to share with parents the reason for rejecting their proposal to change JD’s placement is not only a procedural violation, but in a similar case was found to have significantly impeded the parents’ opportunity to participate in decision making and, in turn, denied the student a FAPE.
S.Y. v NY City Dept. of Educ., 210 F. Supp. 3d 556 (2016)

6. METHODOLOGY
GENERAL RULE: Nothing in the IDEA requires a school district to identify a methodology in an IEP.
But when the reports and evaluative materials presented at a CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefit.”
A.M. v NYCity Dept of Educ., 845 F3d 523 (2d Cir 2017).
R.E v. NY City Dept of Educ.l 694 F 3d 167((2d Cir.2012).
When the goals dictate a specific methodology the question of whether the staff is properly trained to implement them becomes a central question.
E.H. v. New York City Dep't of Educ., No , 2015 WL , at *3 (2d Cir. May 8, 2015).

7. Parent Counseling
GENERAL RULE: New York regulations require that an IEP for students with autism include “parent counseling and training ... to enable [them]… to acquire the necessary skills… to support the implementation of their child’s [IEP].”
8 NYCRR 200.1(kk);
According to the Second Circuit, parent counseling and training omissions are “less serious” procedural violations “because the presence or absence of a parent-counseling provision does not necessarily have a direct effect on the substantive adequacy of the [IEP].” Thus, while its absence in IEPs in N.Y. constitutes a violation of the procedures of the IDEA, evidence that the school actually offered parental counseling and training services has not been considered a procedural violation that deprives a student FAPE to date.
LO v. NY City Dept. of Educ. 822 F 3d 95, 112 (2d Cir. 2016) 

8. PROGRESS REPORTS
Although the failure to issue Progress Reports is a procedural violation that could result in a denial of the parents’ right to participate in the development and implementation of their daughter’s IEP, in this case the record reveals that the parents received their daughter’s progress reports throughout 5th grade and reviewed them at her Annual Review where the IEP under review was developed.

9. FBAs and BIPs
The “[f]ailure to conduct a FBA ... does not render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a student's behavioral impediments and implements strategies to address that behavior,” [However, the Second Circuit cautions that] “[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their behaviors being addressed in the IEP inadequately or not at all. [S]uch a failure seriously impairs substantive review of the IEP because courts cannot determine exactly what information a FBA would have yielded and whether that information would be consistent with the student's IEP.”
L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 112 (2d Cir. 2016).

10. CLASS PROFILES
Although a class profile may be a useful tool for demonstrating how a student has been properly grouped in accordance with NY regulations, the Second Circuit has determined that, unlike an IEP, districts are not expressly required to provide parents with class profiles.
Cerra v. Pawling Central School District, 427 F.3d 186, 194 (2d Cir. 2005).

11. PROCEDURAL VIOLATIONS: LESSONS LEARNED
PREDETERMINATIONS
The failure to address Parental Concerns (i.e. placement/program options) will be fatal!
Document! Document! Document!
The PWN is your friend for documenting all options considered, rejected, reasons why! Not a form response individualize.
Never say “We don’t offer X”. “We don’t do that here”!
FUNCTIONAL BEHAVIORAL ASSESSMENTS
Where a student’s behavior interferes with learning involving self or others – conduct an FBA to ensure that your BIP identifies targeted behaviors, is based on objective data, identifies underlying causes and develops hypotheses to provide critical information to develop a defensible BIP and/or positive behavioral strategies and ultimately FAPE!

12. IT’S NEVER TOO LATE to:
Review your policies and procedures, and revise them, if needed.
Use your computerized programs to INDIVIDUALIZE AND UPDATE
your IEPs and PWNs.
Provide staff with the time and training necessary to develop
individualized, up to date and meaningful IEPs.
Identify your difficult cases and plan early.
Identify parentally placed students and arrange
evaluation update.
Strive toward consensus – don’t table meetings, make a plan and
schedule another meeting. In the meantime, finalize an IEP with
recommendations for follow up on issues that may be resolved.
Get those IEPs out well before the first day of school and
be sure everyone involved in implementation has access to them
and reviewed them!

13. HISTORY OF ENDREW F. 10th Circuit Misconstrues FAPE Parents’ Appeal to the US Supreme Court
On March 22, 2017, the United States Supreme Court vacated and remanded the decision issued by the 10th Circuit Court of Appeals that Endrew F. was not denied a FAPE on grounds that, in accordance with the Rowley standard, a student with a disability was entitled to some educational benefit [noting that] it had long interpreted this language to mean that a child's IEP is adequate as long as it is calculated to confer an “educational benefit [that is] merely ... more than de minimis.
Endrew F. v. Douglas Cty. School District, 798 F 3d 1329 (10th Cir. August 2015).

14. SUPREME COURT DEFINES FAPE
“[A] school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.”
“A focus on the particular child is at the core of the IDEA. The instruction offered must be ‘specially designed’ to meet a child's ‘unique needs’ through an ‘[i]ndividualized education program.’”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist, 137 S. Ct. 988, 996 (March 2017).

15. DEFINING FAPE
The IEP provisions reflect Rowley's expectation that, for most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.
Observing that the Act requires States to “educate a wide spectrum” of children with disabilities and that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end,” we declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist, 137 S. Ct. 988, 996 (March 2017).

16. Lessons Learned: Endrew F.
“An IEP is not a form document. It is constructed only after careful consideration of the child's present levels of achievement, ….including explaining ‘how the child's disability affects the child's involvement and progress in the general education curriculum.’ … It then sets out “a statement of measurable annual goals ... designed to ... enable the child to be involved in and make progress in the general education curriculum,” along with a description of specialized instruction and services that the child will receive…. The instruction and services must likewise be provided with an eye toward “progress in the general education curriculum.” (IDEA citations are omitted).
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist, 137 S. Ct. 988 (March 2017).

17. LESSONS LEARNED from ENDREW F DEFINING FAPE
What is New?
What is Different?
What, if anything should I do differently?

18. Thank You For Being A Great Audience!!