When Procedural Violations Add Up to a Denial of FAPE


Procedural violations of the IDEA alone are usually not a basis for a court to find a student has been denied a free appropriate public education (FAPE). A recent decision by the United States Court of Appeal for the 2nd Circuit, however, found multiple procedural violations, did deprive a student of educational benefits he was entitled to under the law.

K.T., a now twenty-year old autistic student, began attending a public special education school in the Bronx, New York in 2009. His mother, L.O., filed for due process in December 2011 after K.T. began to refuse to attend school. L.O. claimed the three IEPs developed for her son were inappropriate. The 2nd Circuit Court of Appeals reviewed five of the enumerated deficiencies in the IEPs and found all five were procedural violations, labeling three as “serious” violations and two as “less serious.” The court found the three serious violations: 1) the failure to review evaluative data when developing the IEPs; 2) the failure to conduct a functional behavior analysis (FBA); and 3) the provision of inadequate speech-language instruction to be a pattern of procedural violations of the IDEA that constituted a denial of FAPE. While the court refused to express an opinion as to whether any of the violations, on their own, constituted a denial of FAPE, it reiterated a previous holding that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012).

First, the appeals court disagreed with the state hearing officer’s (SRO) determination, upheld by the district court, that, because the IEPs were “consistent with evaluative material available to the Committee on Special Education (CSE) at the time of these meetings,” the failure to consider evaluations in developing the IEP was not a violation of FAPE. The appeals court determined there was no evidence that the CSE had reviewed any evaluative materials when developing the IEP. The court noted that the SRO had essentially developed a rule allowing “the reviewing body to offer post hoc rationalizations for how the (team) reached its conclusions and refer to documents that may or may not have been in possession of the (team) at the time of the meeting.” The court found this unacceptable as the IDEA, and its implementing regulations, required the team to consider the most recent evaluative data to develop the student’s IEP. Still, the appeals court concluded that, standing alone, this violation was not a denial of FAPE.

The court then addressed the lack of a FBA in the development of the IEPs. New York state law requires that a FBA be conducted whenever a behavior interferes with student’s learning. The FBA must identify the problem behavior as well as develop a hypothesis as to the cause of the behavior. Although the IEPs in question identified problem behaviors, a FBA was never conducted. The 2nd Circuit found determining the cause of the problem behavior was a “minimum requirement” of the state regulations; therefore, the failure to conduct a FBA was a serious procedural violation that impaired the court’s ability to review the adequacy of the IEP.

The appeals court also determined the failure to provide speech instruction services that comported with New York state law at the time the IEP was developed, constituted a serious procedural violation. In 2009, New York State law required autistic children receive speech-language services daily for 30 minutes and in groups of no more than three students. K.T.’s IEP provided for two weekly speech language sessions in a class of three students. The district court concluded there was no denial of FAPE because the IEP contained adequate goals and objectives tailored towards improving K.T.’s speech and language needs. To support its conclusion that K.T.’s needs were being met, the district court relied on testimony by K.T.’s special education teacher that she included language acquisition in the class curriculum. The appeals court stated the lower court could not rely on the teacher’s testimony as it was “impermissibly retrospective” (i.e. not information known at the time the IEP was developed). Furthermore, speech language acquisition in the classroom was not a service provided for in the IEP. The failure to comply with then-current law in 2009 constituted a serious violation of the procedures of the IDEA. The New York legislature removed both the daily speech‐language instruction requirement and the minimum class‐size requirement from the regulations. The IEPs developed in 2010 and 2011, which provided for the same services as in the December 2009 IEP, no longer violated state law. However, the appeals court disagreed with the SRO’s conclusion that the speech language instruction in the two IEPs was adequate, finding that the speech language instruction provided in the IEPs was not frequent enough and in a small enough class size to meet K.T.’s needs. The court characterized the services as “limited and generally applicable sessions” not reasonably calculated to provide an educational benefit.

The appeals court found violations related to the goals and objectives in the three IEPs and parent training to be “less serious violations.” Although the 2011 IEP omitted occupational therapy and physical therapy goals listed in the previous IEP (developed in December 2010), and failed to list the frequency with which progress reports would be provided, the court concluded there was no denial of FAPE because K.T. continued to receive occupational therapy and physical therapy (i.e. he was not deprived of these services). The failure to specify parent training in the IEP was found to be a procedural violation that did not have a direct effect on the substantive adequacy of the IEP.
The majority of FAPE cases continue to be decided on claims of substantive violations of the IDEA. Nevertheless, a review of procedural requirements in an IDEA case is “no mere formality.” Although the 2nd Circuit declined to express an opinion as to whether any of the procedural violation alone denied K.T. FAPE, the court’s decision shows that a “pattern of indifference to the procedural requirements of the IDEA” and “carelessness in formulating” an IEP can add up to a denial of FAPE.

Lisa M. Quartarolo, Esq. is a solo practitioner at the Law Office of Lisa M. Quartarolo, Esq. who consults for the Innisfree Foundation. Ms. Quartarolo concentrates her practice in the area of special education law advocating for the rights of children with disabilities and their families. She devotes a majority of her time to working with low income families to assist them in obtaining appropriate educational services from school districts. Prior to her law career, Ms. Quartarolo spent over twenty years working in international business where she developed strong negotiation, dispute resolution and consensus building skills. Ms. Quartarolo has a B.A. from Lafayette College, a MBA from Rutgers University and a J.D. from Rutgers School of Law – Newark.

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