Adam Dayan, Esq.
A.M. v. New York City Department of Education
I am excited to write about an important case that was just decided by the 2nd Circuit U.S. Court of Appeals -- A.M. v. New York City Department of Education (DOE).
This case involved a child with autism for whom there seemed to be a consensus that 1:1 ABA services were necessary based on private evaluative materials. The school district had not conducted its own evaluations and did not have any materials suggesting that some other methodology should be used for this student. The school district's IEP team, however, while it may have relied on the parent's private evaluations and professionals to better understand the child's needs, did not follow their recommendations. This scenario may sound familiar to parents who have gone through the special education process expecting their team to follow the recommendations from the private professionals they have consulted.
One question presented in this case is, To what extent does an IEP team have to follow the recommendations of private evaluators and professionals with respect to the program and services that a child requires? A related and broader question is, To what extent is a school district obligated to consider "methodology" in making recommendations for a child with special needs? For example, in this case, where the child at issue was a child with autism for whom 1:1 ABA services were recommended, to what extent is a school district required to recommend the specific methodology of Applied Behavior Analysis, as opposed to a more eclectic instructional approach or a different one entirely?
A three-judge panel consisting of Judges Kearse, Wesley, and Droney agreed with the parent's argument that the IEP team's 6:1:1 classroom recommendation and its failure to guarantee any 1:1 ABA therapy in the IEP "went against the consensus of the evaluative materials present at the CSE meeting," which demonstrated that the child required ABA and a significant amount of 1:1 instruction. The Court articulated the following principle:
[W]hen the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. . . . This remains true whether the issue relates to the content, methodology, or delivery of instruction in a child's IEP.
This is great language and parents should rely on this principle when advocating for specific programs and methodologies that have been recommended by private professionals.
Lots of good nuggets in this decision. I want to highlight one more.
Parents familiar with the special education process who have had their children enrolled in private placements may have been told by their IEP team, "Well, your child is progressing so nicely at his/her private placement, it's time to transition him/her to a less restrictive setting." The A.M. decision pointed out the flaws in this reasoning. The Court stated that the logical inference that a child has made gains while attending a private placement "would suggest that the more restrictive academic setting in which he was learning adequately addressed his needs and should thus be continued; not that the program should be discontinued and that he should be transitioned to a less restrictive learning environment. . . ."
A great decision for parents of children with special needs.