In a decision involving review of three separate due process decisions, a three-judge panel of the U.S. Court of Appeals for the Second Circuit has ruled that the appropriateness of an IEP is determined prospectively at the time the IEP is developed, and should not take into consideration retrospective testimony about services that the district might have offered and were not included in the IEP. See R.E. v. New York City Dep’t of Educ., 59 IDELR 241 (2nd Cir. September 20, 2012). In reaching this conclusion, however, the 2nd Circuit was clear that it was not rejecting the admissibility of all retrospective testimony, as would had been the case had it adopted a strict “four corners” rule proposed by the parents, but rather only such testimony that would “support a modification that is materially different from the IEP.” In its decision, the court was clear to note that it would continue to be appropriate and permissible to permit testimony offered to explain or justify what was in the IEP.

Each of three cases under review involved district proposed programs for students with autism which had been rejected by parents in favor of private school placements. In addition to the issue of the role of retrospective testimony, the 2nd Circuit also ruled on common questions related to procedural issues in these cases. One of these issues included the parents’ collective challenge to the district’s failure to identify the specific school where the IEP would be implemented at the time the IEP was drafted. On this issue, the 2nd Circuit ruled that an IEP’s failure to identify a specific school placement did not constitute a denial of FAPE, and that the district “may select the specific school without advice of the parents so long as it conforms to the program offered in the IEP.”

In addition, in each case there had been an allegation that the district had failed to comply with state regulations requiring an FBA and BIP, as well as the inclusion of parent counseling in the IEP. On these procedural issues, the 2nd Circuit ruled that while failing to include parent counseling/training was a procedural violation insufficient to deny FAPE, the failure to conduct the required FBA in such manner as dictated by regulations was substantive enough to constitute a denial of FAPE.

It is worth noting that in each of the underlying cases, an independent hearing officer had initially ruled in favor of the parents, thus granting reimbursement for their private placements. Following a state-level appeal, as well as subsequent appeals to the federal district court, the 2nd Circuit ultimately concluded that the school district had offered FAPE in two of the cases, but not the third. Thus, the IEPs developed by the New York City Department of Education offering placement within the public schools were deemed appropriate in two of the cases, and in the third the Department was ordered to reimburse the parents for the costs of private school placement.