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The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

District’s failure to continue to develop student’s program while parents litigated a previous IEP denied student FAPE.

Anchorage School District v. M.P., 59 IDELR 91 (9th Cir. 2012):  A federal appeals court held that a school district denied a student with autism a free appropriate public education (FAPE) when the district failed to continue developing the student’s program while his parents litigated his previous IEP.

The court noted that a school district’s compliance with the IDEA is not conditioned on “parental cooperation or acquiescence in the [district’s] preferred course of action.”  Here, the parents challenged the student’s second grade IEP.  However, when the student moved to third grade, the district relied on the student’s second grade IEP, except for providing third grade lessons and materials.  The district court concluded that the failure to develop an updated IEP flowed from the parents’ “litigious approach.”  However, the appeals court disagreed, noting that such conclusion improperly shifted the burden of substantive compliance with the IDEA from the district to the parents.

The appeals court held that updating a student’s present levels of performance, and establishing corresponding goals and objectives does not qualify as a “change in placement” (which would violate the student’s stay-put rights), provided the academic setting in which the student is placed does not change.  Accordingly, the district had an obligation to continue developing the student’s IEP during the litigation to that extent.  Its failure to so develop the student’s IEP denied him a FAPE.

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