August 2024: 

The MLO Minute: “KEY TAKEAWAYS FROM MLO’S RECENT THIRD CIRCUIT WIN: Attorneys Michael Connolly and Jacqueline Lembeck Share the Lessons from the Opinion” 

By Michael Connolly, Esq., Supervising Partner of The Special Education Department, and Jacqueline Lembeck, Esq., Lead Wyomissing, Pa Special Education Attorney — 

 

On August 14, 2024, the Third Circuit Court of Appeals affirmed McAndrews Law Offices’ (MLO) District Court victory in the matter of Upper Darby School District v. K.W.  The opinion affirms an award of over $128,000 of compensatory education to the family of a child with disabilities for a denial of a Free Appropriate Public Education (“FAPE”) that spanned more than two school years. The Opinion is not binding precedent, but it is highly instructive on several hot topics in special education law.

 

Key Takeaways:

 

• A student’s right to FAPE may be denied if the student lacks an individualized positive behavior support plan. A school-wide plan may not be sufficient, particularly where the school district or charter school knows that the child should have an individualized plan and fails to provide it.

 

• District Courts review administrative due process hearing officers’ findings under a modified de novo standard. This Opinion reaffirmed that District Courts can depart from hearing officers’ findings provided they discuss the departure and bolster the conclusions with authority and citations. Families can thus access a meaningful review of administrative due process hearing officer decisions in the federal courts.

 

• Behavioral challenges can pervade a child’s school day. The Third Circuit affirmed the District Court’s finding that the family was entitled to full days of compensatory education because the District knew of the unmet behavioral needs, did not address them, and they impacted the student throughout his school day.

 

• Just because a child is attending a private school does not mean he or she is receiving a FAPE. In this case, K.W. attended a private school with district funding, via an IEP and Notice of Recommended Educational Placement (“NOREP”), but the federal courts determined that he was not receiving a FAPE. Compensatory education is still available when FAPE is denied to a child who is attending private school through a placement from his/her IEP team.

 

Do you have questions about how this Opinion may relate to your child? Our initial special education consultations are free, and the majority of our cases are handled on a contingency basis without hourly charges to our clients. We look forward to working with your family! Click here to contact us today!