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Vol. 22-001, November 9, 2022

(United States District Court Case No. 21-9135 DSF (MARx) (2022).)

The Gist

  • District “can only offer participation;” a lack of parent cooperation does not equate to a denial of meaningful participation.
  • Family waived right to prior written notice (“PWN”) when they signed a Settlement Agreement waiving claims. Also, IEP fulfilled the PWN requirements, and any lack of a PWN did not deny student FAPE or impede the family’s ability to meaningfully participate.
  • Recreational therapy (“RT”) is a therapy, not a disability. Failure to conduct an RT assessment was not a denial of a FAPE because District assessed the underlying disability related to social skills.
  • District offered an educational program that would meet student’s unique needs and provide meaningful educational benefit.

The Details
On August 25, 2021, the Office of Administrative Hearings (“OAH”), issued an 85-page decision finding the District prevailed on all issues, did not deny Student FAPE, and Parents were not entitled to reimbursement for Student’s private school tuition and fees.

Parents appealed the OAH decision alleging, among other things, that procedural violations of the Individuals with Disabilities Education Act (“IDEA”) denied them meaningful participation in the IEP development process; the District failed to assess in all areas of suspected disability; and Student’s IEP failed to offer him a FAPE. On November 3, 2022, the United States District Court issued its Order denying Parents’ requests for a reversal of the OAH decision, reimbursement for private school tuition, and attorneys’ fees and costs.

The Court found that Parents meaningfully participated in the IEP process. Specifically, the IEP team meeting notes reflected Parents attended the meeting and actively participated, and for any concerns raised, the District was receptive and responsive. Parents were “afforded the opportunity to meaningfully participate in this process and be a part of the IEP team,” and the District “can only offer participation … lack of cooperation does not equate to a denial of meaningful participation.”

The Court further found: 1) Parents waived their right to assert procedural violations through the terms of a prior Settlement Agreement, 2) the IEP fulfilled the PWN requirements, and 3) any failure to provide a PWN did not deny Student FAPE or impede Family’s ability to meaningfully participate. In concluding the IEP fulfilled the PWN requirement, the Court noted the IEP provided reasonable notice of the District’s offerings and even if the IEP did not meet all the requirements of a PWN, Parents failed to show how any failure by the District to comply with a PWN obligation significantly impeding their participation in educational decision making.

Notably, Parents failed to demonstrate the District denied Student FAPE by failing to assess Student’s need for recreational therapy.  Specifically, the Court concluded that recreational therapy is “just that- therapy” and not itself a disability. The Court explained that the District assessed the underlying disability.

The Court also found the District offered appropriate goals, placement in the least restrictive environment, and appropriate accommodations. Accordingly, the Court affirmed the OAH decision in its entirety and Student was awarded no relief.

Practice Pointers
Thorough notes are imperative when summarizing an IEP meeting to show parents are given the opportunity to meaningfully participate. The IEP notes can also be used to meet the PWN requirements.

Recreational therapy is not a disability, rather it is a possible therapy to treat an underlying disability. Ensure that the underlying disability is evaluated and addressed appropriately.

Please note, nothing contained in this summary is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any specific matters.