Friday, March 14, 2014

Waiver rule

As is well known, if you don't raise an issue in your due process complaint, you cannot raise it in the due process hearing absent consent of the other side (and how likely is that?).  The Second Circuit, however, in C.F., by her parents R.F. and G.F. v. New York City Department of Education, stated:

"We hold that the waiver rule is not to be mechanically applied.  The key to the due process procedures is fair notice and preventing parents from 'sandbag[ging] the school district' by raising claims after the expiration of the resolution period.  We note that the IDEA itself contemplates some flexibility.  The statute does not require that alleged deficiencies be detailed in any formulaic manner, and the waiver rule limits only what may be raised 'at the due process hearing.'"

The case was for reimbursement at a unilateral private placement.  The Second Circuit reversed the district court's decision that the parents were not entitled to reimbursement.  The Court held that the child's IEP was procedurally and substantively flawed, that the parent's placement was appropriate and the equities were in the parent's favor.  Accordingly, reimbursement was ordered.

The decision can be found here


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