JUNE 2024:
The MLO Minute: “Special Education Cutting Edge Decision on Predetermination of IEP, Prospective Tuition Reimbursement, and More!”
By Dennis McAndrews, Esq., Founder and Managing Partner Emeritus, and Caitlin McAndrews, Esq., Senior Partner Delaware/D.C. Metro —
Our special education attorneys have attended hundreds of Individualized Education Program (IEP) meetings over the past four decades, and perhaps one of the most frustrating aspects of these meetings is where the content of an IEP has been “predetermined” by school officials, rather than involving a collaborative discussion among all participants, including parents and their representatives and professions. While this type of predetermination is expressly forbidden by federal special education law, it is always difficult, and often impossible, to prove it has occurred. However, a recent federal court decision handed down on April 24, 2024, addresses this issue head-on, and ordered tuition reimbursement at a private school, not only for the school year litigated before the Administrative Law Judge, but for two additional years through the most recently completed school year. Finally, the court also ordered payment for Related Services received by the student at parental cost, together with transportation costs to the school selected by the family. K.O. v. San Dieguito Union High School District.
The court’s opinion is both groundbreaking and informative in identifying not only the considerations used in identifying when “predetermination” has occurred, but also in expressly stating that because “predetermination” violates a parent’s right to actively and fully participate in the development of a child’s special education program, it is not a mere “procedural” violation, but constitutes a substantive denial of the fundamental right to a Free Appropriate Public Education (FAPE). The court’s language is instructive as set out below.
“Predetermination occurs when an educational agency has made a determination prior to an IEP meeting, including when it presents one educational placement option at the IEP meeting and is unwilling to consider other alternatives. In other words, there must be evidence the state has an open mind and might possibly be swayed by the parents’ opinions and support for the IEP provisions they believe are necessary for their child. A school district cannot arrive at an IEP meeting with a “take it or leave it” offer. However, a parent’s “right to provide meaningful input is simply not the right to dictate an outcome.”
The Court agreed with the Administrative Law Judge’s (ALJ’s) decision below, finding that the record before the Court supported the ALJ’s conclusion that the District predetermined its offer of SDCC. The ALJ “reasonably inferred that [the case manager] decided before the [IEP] meeting to offer placement at [a restrictive therapeutic program] because no one beside [the case manager] mentioned the need for an embedded therapeutic program for K.O. The ALJ further supported her conclusion regarding predetermination with the fact that when the IEP team unanimously expressed the opinion that SDCC was an inappropriate NPS for Plaintiff, Molina did not offer or suggest other placements for the team’s consideration. This fact reasonably supports the conclusion that the District was impermissibly wedded to placing K.O. at the [restrictive therapeutic program]. Further, at the IEP meeting, [the lead case manager] failed to respond to the IEP team’s concerns regarding Plaintiff’s anxiety and the fact that [the offered program] may increase her anxiety. [The case manager] did not waiver on his decision…when confronted with these facts regarding K.O.’s disabilities. Accordingly, the ALJ properly found that the District’s offer [of the restrictive therapeutic program] was a “take it or leave it” offer and constituted a procedural violation of the IDEA.”
“A child is denied a FAPE when procedural inadequacies result in the loss of an educational opportunity, or seriously infringe on the parents’ opportunity to participate in the IEP formulation process. Here, the Court affirms the ALJ’s determination that the District seriously infringed on Parents’ opportunity to participate in the IEP formulation process when it’s [case manager] predetermined its offer of placement at [a restrictive setting] before the IEP meeting. The preponderance of the evidence supported the conclusion that [the case manager] effectively shut down discussion about which school program could provide K.O. with a FAPE. This procedural violation resulted in denying K.O. a FAPE in violation of the IDEA.”
Our Special Education Department stays current with important legal developments across the nation. We welcome the opportunity to provide you with our free initial consultation and record review in most special education matters, and note that the great majority of our special education cases are handled without hourly charge to the families we represent. We look forward to hearing from you. Click here to CONTACT US TODAY!
