Location, Location, Location

The Second Circuit, in T.Y. v. New York City Department of Education, has held that the failure of an IEP to name a specific school as the placement for a child does not render the IEP procedurally deficient. While the statute, 29 U.S.C. 1414(d)(1)(A) requires that an IEP provide a location, the Court noted that the United States Department of Education had concluded that "[t]he location of services in the context of an IEP generally refers t the type of environment that is the appropriate place for provision of the service. For example, is the related service to be provided in the child's regular classroom or resource room?" It held that this conclusion comported with the Senant's commentary, which stats that "[t]he location where special education and related services will be provided to a child influences decisions about the nature and amount of these services and when they should be provided to a child. For example, the appropriate place for the related service may be the regular classroom, os tha thte child does not have to choose between a needed service and the regular educational program. For this reason, in the bill the committee has added location to the porivision in the IEP that includes 'the prjected date for the beginning of services and modifications, and the anticipated frequency, location and duration of those services.

The Court also noted that improper omissions from the IEP, which are corrected in the administrative process does not render an IEP, as a whole, substantively deficient.

The decision can be found here.

Milwaukee Appeals!

Milwaukee is appealing from an order requiring it to come up with a plan for compensating students who had been denied FAPE during the years 2000-2003. The City claims that the order is overly broad.

For more information, read the article located here.

What's the deal?

What is the deal with the Charlotte-Mecklenberg school?

Reimbursement

IDEA authorizes reimbursement for private special-education services when a public school fails to provide FAPE and the private school placement is appropriate. regardless of whether the child previously received services through the public school.

It's true. The Supreme Court said so. Right here.

Non-custodial parent. A non-custodial parent had challenged certain decisions made as to the special educational services being provided to his child. The District Court dismissed the action, holding that the plaintiff, as the non-custodial parent, lacked standing. The Second Circuit certified a question to the New York State Court of Appeals as to whether a non-custodial parent had the right to participate in the educational decisions relalating to his child. In the case at issue, the custodial parent had exclusive custody and the divorce decree was silent on this issue. The Court of Appeals, modified the question slightly (changing the right to participate in educational decisions to decision-making authority) and answered the question in the negative. Based on this answer, the Second Circuit affirmed the District Court's order, dismissing the complaint for lack of standing.

The decision of the Court of Appeals in Fuentes v. Board of Education of the City of New York can be found here.

The decision of the Second Circuit affirming the District Court's dismissal of the case, can be found here.

Certified question.

In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action. The Second Circuit held that standing turned on an unsettled issue of New York state law and certified the question for decision by the New York State Court of Appeals.

The certified question is:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decision pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions?

The Second Circuit noted that two departments of the Appellate Division, New York's intermediate appellate court, have held that non-custodial parent does not retain such a right, but it "was reluctant to take that final step [considering the Appellate Division decisions as determinative] in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial relationships in New York -- a matter of paramount concern."

The decision in Fuentes v. New York City Department of Education can be found here.

No Attorneys Fees

The Third Circuit has held that a parent-attorney is not entitled to attorneys' fees in a federal action brought under IDEA for the benefit of his child. The Court believed that the purpose of awarding attorneys' fees is to create an incentive to hire independent counsel.

The decision in Pardini v. Allegheny Intermediate Unit can be found here.