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  • Writer's pictureAdam Dayan, Esq.

R.E., R.K., E.Z.-L.

For those of you trying to decipher the alphabet soup in the title of this blog post, it refers to a recent decision from the Second Circuit Court of Appeals regarding the combined matters of:

R.E. v. NYC Department of Education

R.K. v. NYC Department of Education

E.Z.-L. v. NYC Department of Education

This post will summarize some of the legal issues involved. It is not intended to be comprehensive by any means, and will not review the particular facts of each case. Those who would like to read the full decision with all its nuances should be able to do so here:

In brief, the Second Circuit decided to hear these three cases jointly due to common issues of law. Some parts of the decision contain clear, strong language. Other parts of the decision leave some question marks. Here are three of the main issues they addressed and some language/thoughts from the Court which I am presenting in a somewhat bare-bones fashion without in-depth legal analysis at this time:

1) Retrospective testimony

Can a school district rely on "retrospective testimony" about additional services that would have been provided at the public school placement (even if that information was not known to the parents at decision making time)?

"[T]estimony 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."

"[T]he IEP ust be evaluated prospectively as of the time of its drafting and . . . retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding."

"[P]arents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision." [emphasis added]

"[I]t is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that specific teacher would have taken beyond what was listed in the IEP."

"This rule recognizes the critical nature of the IEP as the centerpiece of the system, ensure that parents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of the services they intend to provide in the written plan." [emphasis added]

2) Deference

What deference must a reviewing court give to the State Review Officer (SRO)?

"[T]he deference owed to an SRO's decision depends on the quality of the opinion."

Relevant factors include "whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court."

3) Procedural violations

At what point do violations of state regulations rise to the level of a denial of FAPE?

The Court considered the importance of FBA's, BIP's, and services such as parent counseling and training, and discussed when a failure to provide any of the above might result in a deprivation of FAPE.

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not."

"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 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 an FBA would have yielded and whether that information would be consistent with the student's IEP."

"[T]he failure to conduct an FBA at the proper time cannot be rectified by doing so at a later date."

Note: Dicta from the Court's discussion of the above-enumerated issues have been omitted from this post but can be read in the decision itself.

This decision, in several ways, reinforces child and parental rights in the special education process. However, as noted above, there are some areas of the decision whose implications are not yet clear. It's a 58-page decision but worth skimming for those who are interested to know more.


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