Education Law

Lack of Plan to Move Student to LRE Denied FAPE

By Charles Fox

A very intersting case that I became aware of from the blog of Jeff Marcus, a parents' attorney in New York State is A.Y. and B.Y. v. Cumberland School District case which was decided on July 7, 2008 by District Court Judge Smyser of Pennsylvania. This case involved a young child with autism who had been in private placement. The school district wrote an IEP attempting to move the student back to the district's autism program. The parents challenged this change in placement on a variety of grounds. The court on review ruled that the IEP denied a FAPE. One of the court's reasons for its ruling in favor of the parents was:

" Lastly, the district knew that B.Y. had extensive behavioral, emotional, and academic difficulties in prior placements in both the District and at Janus. The District also knew that B.Y. required help with transitions. In fact, the District included the recommendations of advanced preparation for transitions and comprehensive planning for major transitions, including transitions from school to school in both the ER and IEP. Knowing that transitions were difficult for B.Y. and that transition planning was necessary for him to successfully return to the District from Janus, the only mention of transition planning that the District included in the IEP was a transition note that stated the once B.Y.'s parents had visited the autistic support classroom in the District and "If [B.Y.'s parents] approve his placement a transition plan will be developed ..." As B.Y.'s parents' attorney noted, this is merely a promise of a transition plan, not an actual transition plan. I must agree. When a school district knows that a child requires a transition plan to return to that district from a private school placement and that school district does not include a transition plan in the IEP, the IEP is not appropriate. In Re the Educational Assignment of S.K., Spec. Educ. Op. 1769 (2006).

This case is interesting since this fact pattern arises for a lot students both within a placement and between placements, as in this case.  Difficulty with transitions is a common issue but it is rare that schools make the effort to actively plan for this need and certainly not as part of the IEP. I have many students who have had significant behaviors when transitioning between activities. Failing to actively plan for known difficulties in transition can be a denial of FAPE can be most useful argument to parents and attorneys as they are defending their child's difficulties related to transition.  It may also prompt schools to be more proactive in how they address difficulties with transitional issues. I have not seen another case like this one with such a ruling. There may another case like it but it has not come across my desk.

It should be noted that the use of the word "transition" in this case is different than the "Transition Plan" dealing with moving students to productive post-IEP lives.

Full post as published by Special Education Law Blog on July 18, 2008 (boomark / email).