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U.S. DOE Issues Q&A on Endrew F. Case

By on December 19, 2017 in Special Education/504 with 0 Comments

On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District in which it revised the national standard for determining whether a special education student has received a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). On December 7, 2017, the United States Department of Education (“DOE”) issued a Questions and Answers (“Q&A”) document on this important case.

In short, the Endrew F. Court held, “To meet its substantive obligation under the IDEA, a school must offer an [individualized education program] reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” For a full analysis of Endrew F., please see our previous article here.

The DOE’s Q&A provides an overview of the case, clarifies the IDEA’s FAPE requirement, and offers considerations for implementation.

The DOE emphasized that prior to Endrew F., the Federal District Courts and Circuit Courts disagreed on the substantive standard of FAPE. The Tenth Circuit, the Circuit Court from which Endrew F. arose, had previously applied a “de minimis” standard, which the Supreme Court clearly rejected. Importantly, the Third Circuit, which applies to New Jersey, Pennsylvania, Delaware and the Virgin Islands, never applied a de minimis standard. In fact, it can be argued that the “meaningful educational benefit” standard used in the Third Circuit was already congruent with the Supreme Court’s ruling in Endrew F.

In explaining the “reasonably calculated” standard, the DOE stated that the IEP team for the student should consider the following factors: the progress of the child and previous rate of academic gains, child’s potential for growth, views of the child’s parents, effectiveness of specific instructional strategies, supports, and services provided to the child in the past, whether the child is achieving grade-level expectations, and whether the child exhibits any behaviors that are interfering with progress. The DOE echoed the Court’s sentiment that the standard is not whether an IEP is ideal, but whether the student will likely make progress.

The DOE did not set forth any specific factors in interpreting the Court’s requirement that an IEP enable a student to make “progress appropriate in light of the child’s circumstances.” Instead, the DOE emphasized language from the Court’s decision that the IEP team consider the student’s present levels of achievement, disability, and potential for growth.

In advising on best practices, the DOE stated that IEP teams must implement policies, procedures, and practices relating to:

(1) identifying present levels of academic achievement and functional performance;

(2) the setting of measurable annual goals, including academic and functional goals; and

(3) how a child’s progress toward meeting annual goals will be measured and reported.

You can review the complete Q&A here.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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