Autistic Triplets Can’t Challenge IEPs

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By Patrick L. Gregory

A mother suing on behalf of her autistic triplets lacked standing to sue a school board over their individual education plans, the U.S. Court of Appeals for the Eleventh Circuit held Jan. 19.

The Individuals with Disabilities Education Act requires states to provide disabled children with a “free appropriate education” by offering them special education under an IEP, the court said in a decision by District Judge Roger W. Titus.

L.M.P., the mother, alleged that the Broward County School Board’s refusal to include a certain type of applied behavioral analysis in her children’s plans violated the act, the court said.

The board’s decision reflected an impermissible “policy of never including any ABA-based method” in IEPs, L.M.P. alleged.

But the court said applied behavioral analysis is “an applied science whose purpose is to produce socially significant changes in behavior,” and is “a broad umbrella under which numerous intervention strategies fall.”

And the triplets’ plans did include a type of ABA-based therapy, the court said.

L.M.P. therefore lacked standing to challenge her children’s IEPs on the procedural ground of an alleged policy not to include such therapies in students’ plans, the court ruled.

The mother could have challenged the plans on substantive grounds if she didn’t think the ABA method included wasn’t comprehensive enough, but she failed to do so, the court said.

Judge Titus heard the case by designation from the U.S. District Court for the District of Maryland. Judges Charles Reginald Wilson and Robin S. Rosenbaum joined the decision.

Neil D. Kodsi of Miami Shores, Fla., argued for L.M.P.

Johnson Anselmo Murdoch Burke Piper & Hochman represented the school board.

The case is L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cty. , 2018 BL 18070, 2018 BL 18070, 11th Cir., No. 16-16418, 1/19/18 .

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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