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Rochelle’s Special Education Tips

Happy Days Are Here Again – A Great Decision From the Fourth Circuit Court of Appeals

The Fourth Circuit Court of Appeals just issued a significant special education decision involving the Cecil County Public Schools (CCPS): R.F. v. Cecil County Public Schools, 4th Cir. No. 18-1780 (March 25, 2019). In a published, unanimous opinion, the Court held that while certain procedural requirements of the IDEA were violated, those violations did not substantively deny the student a FAPE. This is a well-written opinion and was decided after the Supreme Court’s issuance of its decision in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988 (2017). In fact Endrew F. was issued in the middle of the trial and highlights so many of the issues that confront IEP teams that Tips will spend the next couple of Tips focusing on the decision.


The student has a severe autism spectrum disorder and a rare genetic disorder. She was one of only two people in the world diagnosed with the disorder at the time. She engages in aggressive behaviors, has physical limitations, and requires adult supervision and assistance at all times. The parents wanted her placed in the Benedictine School, a private school, but the IEP team placed her in its intensive communication support classroom (ICSC) for children with communicative difficulties. The parents filed a due process complaint seeking placement at the Benedictine School or another private school at CCPS’ expense.


Typical of these cases, the parents’ contended that the school system had committed procedural violations and should therefore be required to pay for private school. The Court held that while CCPS did violate certain procedural requirements of the IDEA, most notably by changing the student’s placement without notifying her parents or modifying her IEP, such violations did not deny the student a FAPE. But hold the wedding. This does not mean that IEP teams can just go around having secret placement meetings. In this case the student’s hours were increased in the ICSC class beyond those specified in her IEP in order to enable her to make progress appropriate in light of her circumstances. Her special educator recognized she was struggling in the general education classroom and determined she would make more progress with more one-on-one instruction in the ICSC. He did so on a gradual and individualized basis, based on close attention to her performance in a general education setting and in the ICSC. The IEP meeting formalizing the change in placement was held 4 months later, but because the student was provided with more special education services, not less, there was no significant impediment to the parent’s participation rights when the CCPS failed to inform them that it was gradually changing her placement in line with the parents’ expressed wishes to have more special education. When the meeting was held 4 months after the fact, the parents had their opportunity to participate meaningfully in the creation of an IEP for their child. The Court held that the CCPS’ procedural violation of the parents’ right to participate in decisions about the child’s placement did not rise to the level of a substantive IDEA violation that could be cured by private placement.


Moral of the story: Not all procedural violations result in a FAPE violation. But the violation must not have a negative impact on the child. Better yet, the child should be better off because of the action taken.


Another moral: When there has been a violation, fix it at an IEP team meeting.

Rochelle’s Special Education Tips (“Tips”) Are Designed To Be Helpful And Thought Provoking, But Should Not Be Considered Legal Advice As They May Not Be Accurate For Use In All Situations. Tips Are Based On My Opinions And Positions In Accordance With Federal And Maryland Law And My Over 35 Years Of Experience In The Special Education Legal Field. – Rochelle S. Eisenberg, Esquire
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