It’s a familiar scenario. A student, perhaps one with behavioral issues, is identified as being in need of special education.  The parties get together and draft an individual education plan [“IEP”] for the student.  The school, in an attempt to help the student who is still struggling, provides additional services to the student – perhaps additional one-on-one instruction, or counseling sessions with the school’s social worker.  These services, however, are not documented in the student’s IEP and the district treats them as extra benefits being given to the student.  The parents decide the student is not being successful at the school and enroll him in an expensive out-of-town private program and then file due process to request reimbursement.  What happens at the hearing when the district attempts to introduce all the extra services that were actually being provided to the student?  The United States Court of Appeals for the Second Circuit (the appellate court that covers Connecticut) once again answered that question in Board of Education of the Mamaroneck Union Free School District v. J.D. — if it is not written in the IEP, it does not exist.

In that case, the seventeen year old student had Attention Deficit Disorder and was identified as needing special education services. One of the main concerns was his behavior.  The IEP recommended a resource room program but did not formally recommend any type of counseling.  The parents were dissatisfied with the IEP and enrolled their child in a residential program in Ohio, whereupon they promptly filed a request for due process demanding that the district fund this placement.  The district attempted to introduce evidence that counseling was meant to be in the IEP and what counseling they were planning on providing the student as part of his program.

The hearing officer ruled in the district’s favor. The parents appealed the decision to the state review officer (New York has a two-tiered hearing process where decisions of individual hearing officers can be appealed to a state review officer), who determined that the IEP was inadequate because there was no formal recommendation for counseling and ordered the district to pay for the non-residential portions of the program in Ohio.  The school appealed to the United States District Court, claiming that the failure to have the counseling in the IEP was a clerical error.  The District Court, however, affirmed the state review officer, and the school again appealed.

In an unpublished decision, the Second Circuit held that because the counseling recommendations did not appear in the IEP and because the record was devoid of any contemporaneous evidence such as meeting notes spelling out the services that would have supported the district’s claim of “clerical error,” the IEP was insufficient. The Second Circuit, therefore, upheld the order that the district fund the out-of-district private placement for the student.

What lessons can be learned from this? (1) Make sure your IEPs document all of the services that are actually being provided to the student; (2) keep contemporaneous notes of what occurs in IEP meetings, and (3) if services are being increased beyond what is in the IEP, then the IEP needs to be amended to reflect what is actually occurring.