A recent federal case of interest is W.M. ex rel. V.M. v. Board of Education of the Harrison Central School District, No. 16-CV-8732, 2017 WL 5157768, 117 LRP 46513 (S.D.N.Y. Nov. 6, 2017). The student, identified as V., who was born in 2002 and spent his first years in an orphanage in Moldova, experienced fetal alcohol exposure and had attention deficit hyperactivity disorder, mood disorder, reactive attachment disorder, developmental coordination disorder, and other conditions. At issue was V’s IEP for the 2012-13 school year. The district proposed a continuation of V’s 8:1+2 (8 students, one full-time special education teacher, two full-time paraprofessionals) class with additional services of counseling, speech-language therapy, and occupational therapy. The parents were not satisfied with this program and placed the child at a private educational provider, Winston Preparatory School. After the district prevailed before the Impartial Hearing Officer (IHO) and the State Review Officer (SRO), the parents filed an appeal in federal court. Judge Griesa granted the district’s motion for summary judgment and denied the parents’ motion for summary judgment.
The judge first determined that the court action was not barred by limitations. The SRO decision was issued on July 8, 2016 but not received until July 11, 2016. The parents filed the case on November 10, 2016. The court held that four-month limitation of section 4404 of the New York Education Law begins to run as of the date of receipt of the decision, so the complaint was timely.
On the merits, however, the court ruled that the IEP proposed by the district was sound. Although the parents argued that the IEP continued a program that had led to only limited progress, the judge said that the IHO and SRO properly considered both negative and positive aspects of the child’s record with the placement and services he had been provided. Although V initially did not make progress at school, the district adjusted his program, and when he was placed in the 8:1+2 class his need for physical interventions due to behavior declined significantly. He made progress in 2010-11 in speech-language, occupational therapy and overall behavior. The following year was also a time of progress, particularly with respect to V’s behavior, and V was successfully “pushed in” several mainstream classes that year. The SRO noted that V had received no formal education before age six, and had no exposure to English before that time, and the judge concurred with the SRO that V made strides with the special education he obtained from the school district. The judge agreed that the evaluative materials in support of the contested June 2012 IEP were sufficient and were adequately considered by the school’s committee. The administrative decision makers sufficiently considered evidence about V’s needs for counseling and other supplemental services. The court concurred with the SRO’s finding that the district should have conducted a functional behavior analysis and created a behavior intervention plan, but agreed that the procedural violation did not amount to a denial of appropriate education when the behavior was adequately addressed by existing assessments and strategies.
The judicial decision showed strong deference to the views of the IHO in her 240-page decision as well as those of the SRO in the affirmance of that decision. The child in the case plainly had serious needs, but the court’s view, matching that of the administrative decision makers, was that the school district addressed the needs sufficiently. Interestingly, the court never mentioned the recent Supreme Court decision interpreting the free, appropriate public education standard of the Individuals with Disabilities Education Act, Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1, 137 S. Ct. 988 (Mar. 22, 2017), even though the administrative decisions were written before the case came down, but applying its understanding of the FAPE duty, the court held the IEP sufficient.