May 12, 2016
M.S. by J.S. v. Utah Schs. for the Deaf and Blind, 116 LRP 19237 (10th
Cir. 05/10/16), the 10th Circuit Court of Appeals ruled that the
District Court cannot delegate the responsibility to determine the
appropriate placement for a deaf/blind student to the IEP team.
M.S. Had been a student in the residential program at the Utah School
for the Deaf and Blind (USDB) since 2004. In 2010 USDB announced it was
closing its residential program. M.H.'s parents opposed that decision
as did other parents. After intervention by an advocacy group, USDB
relented and continued the residential program. However, there remained
other disputes regarding M.S.'s placement. Eventually, the case was
heard by the Utah federal district court. The case had numerous issued,
but, most importantly here, the Court determined USDB and the Provo
School District were not appropriate placements for M.S. The parents
sought placement at the Perkins School for the Blind, a private
program. Rather than order that placement, the District Court sent the
case back to the IEP team to determine the future placement. The case
was appealed to the 10th Circuit Court of Appeals.
The 10th Circuit overruled the district court. The Court noted that a
school district employee cannot be a hearing officer under the IDEA.
Similarly, since most members of the IEP team were school district
employees, the Court determined that the IEP team could not be the
entity responsible for determining the remedial placement for the
student. The Court stated:
"Allowing the educational agency that failed or refused to provide
the covered student with FAPE to determine the remedy for that violation
is simply at odds with the review scheme set out at [20 USC
1415(i)(2)(C)]," U.S. Circuit Judge Michael R. Murphy wrote. The panel
further noted that such an approach could create an "endless cycle" of
litigation, requiring the parent to seek a due process hearing each time
she disagreed with the proposed remedy."