Adam Dayan, Esq.
M.W. v. New York City Department Of Education
Oral arguments in the case of M.W. v. New York City Department of Education were heard by the U.S. Court of Appeals for the Second Circuit yesterday, exactly nine months to the day since the U.S. District Court for the Eastern District of New York (EDNY) ruled in the school district's favor.
Interestingly, this case began with an IHO determination in favor of the parents. This case concerns a child with autism, Tourette's, and ADHD whose parents were initially awarded tuition reimbursement for the Luria Academy of Brooklyn (a private placement), funding for the services of therapists and a paraprofessional, and reimbursement for transportation costs. The IHO determined, in part, that:
the parent had not been given the opportunity to meaningfully participate in the decision-making process,
the decisions of the IEP had been predetermined,
the IEP team did not adequately consider the negative impact of the large size of the recommended classroom, and
other substantive inadequacies existed such as the failure to conduct/recommend a functional behavior assessment, a twelve-month school year, and parent training and counseling.
The SRO's decision acknowledged that a number of the district's actions violated federal law but nevertheless concluded that those violations were not sufficient to rise to the level of a denial of FAPE. Some conclusions reached by the SRO left a question mark, such as the conclusion that a Functional Behavior Assessment (FBA) was not necessary, even though an FBA can be critical in helping a person to understand a child's problematic behaviors and formulate an effective BIP. The EDNY affirmed the decision of the SRO and dismissed the parents' appeal. The Second Circuit will have a stab at it next.