The substantive adequacy of individual education programs continues to be a controversial topic two years after the Supreme Court rendered its decision in Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22, 2017). A recent case on substantive adequacy that may be instructive for impartial hearing officers is Board of Education of Uniondale Union Free School District v. J.P., No. CV-18-1038, 2019 WL 4315975, 119 LRP 33121 (E.D.N.Y. Aug. 23, 2019 ) (magistrate judge recommendation).

The case involved a student diagnosed with dyslexia, attention deficit hyperactivity disorder, autism spectrum disorder, and reading and language disorders. She repeated kindergarten in general education, but was subsequently identified in September of 2011 as eligible for special education services. From that date through her completion of fifth grade in spring of 2016, her programs called for her to be in general education with one period per day of group resource room and group speech therapy. Her academic achievement was limited, however, on account of difficulties in speech and language, and a 2013 psychological report said that she was not progressing academically. An additional evaluation from 2013 recommended placement in a small, specialized class. For 2016-17, the student was offered one 43-minute period per day of resource room services with a ratio of five students to one teacher and two 30-minute sessions per week of speech and language therapy, with a ratio of 5:1, which was reduction from previous year. The IEP did not offer Academic Intervention Services, nor parent training or counseling.

Her parents invoked due process over the 2016-17 program and placed her at a private school, which gave her a class with four students as well as one-on-one support and individual program modifications. The impartial hearing officer found in favor of the school district, but the state review officer (SRO) overturned that decision. The SRO agreed with the IHO that the district complied with various procedural requirements and that the amount of speech therapy was adequate and that parent counseling was not needed. But the SRO reversed the IHO on the substance of the program otherwise, ruling that the district’s failure to recommend a specialized reading program denied free, appropriate public education. Agreeing with findings of the IHO, the SRO also ruled that the private school was an appropriate placement and the equities supported reimbursement.

The district appealed to federal court; the parents obtained a preliminary injunction to require the district to reimburse and pay the student’s tuition through the conclusion of the case. Ruling on the merits, the magistrate judge recommended affirmance of the SRO decision in its entirety. The court recited the Second Circuit’s holdings about the standard of review, noting that courts generally defer to the final state administrative decision, and that where an SRO decision conflicts with the IHO decision the decision of the IHO may be afforded diminished weight, but SRO factual findings must be reasoned and supported to warrant deference. The magistrate judge affirmed the determination that the district did not engage in predetermination of the program, that the district considered adequate evaluative material, and that the IEP goals were sufficiently individualized to the student’s needs; moreover, although the program reduced speech services and did not offer counseling, the decision in favor of the district on those issues would be given deference, as would the rejection of parent counseling and training services, in light of the child not being classified as autistic and evidence that the services were not needed.

But the magistrate judge agreed with the SRO that the program was not reasonably calculated to enable the child to receive educational benefits. The IEP failed to include Academic Intervention Services, a form of specialized reading instruction that the student had received in previous years. The court found that deference to the SRO was particularly apt on issues of substantive adequacy of the program, and stressed the SRO’s thorough review of the hearing record as to the student’s weaknesses in reading and memory and the SRO’s conclusion that general education instruction and dialing resource room services were not enough when it was not even clear the resource room services would be devoted to reading instruction. The court rejected the district’s position that AIS services would have been offered though not specified in the IEP, reasoning that Second Circuit precedent rejected reliance on that sort of retrospective testimony in  R.E. v. New York City Department of Education, 694 F.3d 167, 185 (2d Cir. 2012). The magistrate judge pointed out that a United States Department of Education guidance document indicated that services falling in the realm of special education are required to be listed on an IEP, quoting Letter to Chambers, 59 IDELR 170 (OSEP 2012). The small class size at the private school and the richness of the reading program there supported the conclusion that the private program was appropriate, and evidence indicated that the student made excellent academic progress. The equities further supported reimbursement. The district court adopted the magistrate judge report and recommendation in its entirety. 2019 WL 4933576, 119 LRP 38753 (E.D.N.Y. Oct. 7, 2019).

Any decision on the substantive adequacy of a child’s program will be limited by the specific facts that relate to the child. What may be of most interest to impartial hearing officers from this case is the stress that both the SRO and the court placed on the IEP’s failure to specify a program of intensive reading instruction for a student who lacked basic reading abilities despite being about to enter sixth grade. Another important takeaway is that the SRO and the courts will take seriously the R.E. court’s admonition that if services are not listed adequately on the IEP, the schools will not be heard to say that they will be offered despite their absence on the IEP.  As the R.E. court noted, a contrary rule would place the parents in an impossible position in determining whether to rely on promises that cannot be enforced or exercise due process rights that may not need to be invoked.