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Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs.  Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP’s to include the anticipated location of a child’s services does not mean that the IEP must name a specific school, just a general type of educational program.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays.  He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff.  Related services and a paraprofessional for “crisis management” were also proposed.  The IEP specified that the placement would be in “District 75”, the city’s special education district, but did not name a school.  A month after the IEP was prepared, the parents received a placement notice from the districts central placement office.  The parents visited the program and rejected it as unsuitable.  The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program.  The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that “the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service”, the court concluded that the IDEA reference to a “location” of service does not mean a specific school, but the “general environment of the overall program”.

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA.  The court also noted that it appeared the parents were seeking “veto power” over the placement decision rather than input, which the IDEA “clearly does not grant them”.