Two recent decisions make it clear that a school district may not avoid its responsibility to provide learning disabled students with a free appropriate public education, commonly known as “FAPE,” merely by agreeing upon an individualized educational program or “IEP.” Rather, a school district must take steps to ensure that the IEP is timely and properly implemented.
Generally, a parent who contends that a school district has failed to provide his child with FAPE must exhaust his administrative remedies, meaning that if he disagrees with actions taken by the district’s Committee on Special Education (or “CSE”), he first must seek an impartial hearing (often referred to as “due process”), and, if he loses, seek relief from the Commissioner of Education in Albany before going to federal court. However, a recent decision by the United States Court of Appeals for the Second Circuit, Stropkay v. Garden City School District, decided December 3, 2014, held that a parent could proceed directly to federal court on the allegation that the school district was not implementing the services provided for in his child’s IEP. Three months earlier, in In re Student with a Disability, 114 LRP 46721 (SEA NY 9/9/14), New York’s Commissioner of Education similarly found in favor of a parent on the ground that the child’s IEP had not been properly and timely implemented.
In Stropkay, parents of four children with disabilities who were current or former students in the Garden City Union Free School District asserted claims for discrimination in violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Civil Rights Law, as well as claims for retaliation in violation of the ADA and the Rehabilitation Act. Although all of the parents’ claims had been dismissed by the lower court on the basis that they had failed to exhaust their administrative remedies, and, thus, the court lacked jurisdiction, the Second Circuit reversed and found that the federal court did have jurisdiction over the claim that the school district failed to implement certain clearly-stated requirements in one child’s IEP.
The court found that most of the parents’ claims, including their claims of retaliation, were subject to the requirement that they first exhaust their administrative remedies before going to court, “even if their claims are formulated under a statute other than the IDEA (such as the ADA or the Rehabilitation Act).” Here, however, the parents argued that certain of their claims were not subject to the exhaustion requirement because that requirement is excused where exhaustion would be futile.
To demonstrate futility, a plaintiff must show that adequate remedies are not reasonably available or that the alleged wrongs could not or would not have been corrected by resort to the administrative hearing process. The plaintiffs in Stropkay claimed that exhaustion was futile in their case because they alleged systematic violations that the administrative process had no power to correct and also because their complaint alleged that the district had failed to implement clearly-stated requirements set forth in the IEPs of their children.
While rejecting their first reason why their claims was futile on the ground that no systematic violation had, in fact, been pled, the federal appellate court agreed that parents have no duty to exhaust their claim that the school district failed to implement specific IEP requirements. The court held that one plaintiff had met this requirement by alleging that the district failed to provide his son with occupational therapy and speech services (also known as “related services”) from January to June 2013, although such clearly was required by that child’s IEP.
Just a few months before Stropkay was decided, New York State’s Commissioner of Education also grappled with the issue of implementation of an IEP in In re Student with a Disability. In that administrative proceeding, the parents of a student who was returning to a school district special education placement from a private school had not been advised by the school district where the placement was located prior to the first day of classes, even though they had received a copy of the child’s IEP. Not knowing where to send their child in district, the parents re-enrolled their child in the private school, and filed a due process demand in which they contended that the school district deprived their child of FAPE, and that, as a result, they were entitled to reimbursement of the cost of the private school placement.
The Commissioner of Education upheld the impartial hearing officer’s finding that the school district did fail to offer FAPE, thus, entitling the parents to reimbursement. The Commissioner found that the IDEA requires school districts to implement IEPs, and because the school district failed to ensure implementation of the IEP by providing these parents with some notice of where the school was located before the school year began (when the child would be entitled to access the special education services) it had denied this child FAPE.
The long-term effect of these decisions is unclear. Stropkay may open the floodgates to numerous federal court cases alleging failure to implement clearly stated requirements in IEPs. It bears noting, however, that the court recognized that claims of failure to implement IEPs must be closely examined by the federal courts “lest the futility exception swallow the exhaustion requirement.” In addition, the decision itself was issued as a “summary order,” which, pursuant to court rules, do not have precedential effect. The court’s decision also leaves open the question of how long a school district has to implement an IEP before a parent can successfully allege that he is exempt from the general requirement that his administrative remedies be exhausted. This case does, however, serve as a warning to school districts that if they fail to timely and properly implement IEPs, they may be subject to suit in federal court far sooner than they might have expected. In re Student with a Disability similarly demonstrates that school districts must go further than merely agree to an IEP; they must properly and timely implement the services provided therein, or risk a finding that they have denied a child FAPE.