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Legal Updates for Special Education Law

Legal Update for Special Education Law – Results*

Legal Update for Special Education Law – August 2024

August 1, 2024

Thomas Specht and William McPartland (both of Scranton, PA) were successful before the Third Circuit Court of Appeals, which found that the District provided FAPE to the plaintiff during virtual instruction. The court found that the IEP, and its implementation, were reasonably calculated to enable the student to make progress in light of both her educational needs and the significant public health concerns presented by the COVID-19 pandemic. Abigail P. through Sarah F. v. Old Forge Sch. Dist., 105 F.4th 57 (3d Cir. 2024).

During the 2020–2021 school year, Abigail P. was a nine-year-old student in the defendant school district who suffered from severe disabilities, including epilepsy, autism and global developmental delays. As a result, Abigail required speech and language therapy, occupational therapy, physical therapy, applied behavioral analysis, aided language output and a full-time autism support program. 

The school district began the 2020–2021 school year in-person but transitioned to remote instruction in late November 2020 due to the COVID-19 pandemic. It provided remote instruction until February 16, 2021. Although the school district acknowledged that in-person instruction was optimal for Abigail and other at-risk students, it denied specific requests by Abigail’s mother for her to return to in-person learning, citing public health concerns. An individualized education program (IEP) remained in place for Abigail during this period and was modified with Abigail’s mother’s consent in December 2020 to reflect the school district’s shift to remote instruction. 

While Abigail made some progress toward her academic goals, she also experienced some emotional regression while subject to remote instruction. Therefore, in March 2021, Abigail filed an administrative complaint with the Pennsylvania Department of Education, claiming she had been denied a free appropriate public education (FAPE) under the IDEA and that the school district had violated both Section 504 of the Rehabilitation Act and Pennsylvania state law. The administrative hearing officer denied all requested relief following a hearing on the basis that the school district had not denied Abigail a FAPE. The U.S. District Court for the Middle District of Pennsylvania affirmed the administrative hearing officer’s decision. 

In June of this year, the Third Circuit Court of Appeals affirmed the Middle District’s disposition of Abigail’s claim. First, the court determined that the district court properly found that the administrative hearing officer had applied the correct FAPE standard, i.e. whether Abigail’s IEP was “reasonably calculated to confer meaningful education benefit in light of the student’s unique individual circumstances at the time that it was written.” 

Next, the court determined that the school district had provided Abigail with a FAPE during its period of remote instruction. Initially, the court found that her IEP, as written, met the standard for providing a FAPE because it adopted many of the recommendations contained in Abigail’s educational evaluations and incorporated suitable academic and behavioral goals, as well as appropriate related services. Further, looking to the factual record before the administrative hearing officer, the court found that the education Abigail actually received did not significantly deviate from the requirements in her IEP. Specifically, Abigail continued to receive the full amount of physical and speech therapy during remote instruction, and she only missed occupational therapy sessions when her mother opted to have her attend alternate programming instead. Further, the amount of daily instructional time she received was only slightly decreased from that which she received while learning in-person. 

Notably, the court acknowledged that Abigail’s remote instruction program was not ideal and was inferior to in-person instruction. However, it emphasized that an IEP need not provide the optimal level of services that parents may desire for their child, so long as it is reasonably calculated to enable a child to make progress appropriate in light of her circumstances. Because Abigail’s IEP, and its implementation, were reasonably calculated to enable her to make progress appropriate in light of both her educational needs and the significant public health concerns presented by the COVID-19 pandemic, the school district sufficiently provided her with a FAPE. 

*Prior Results Do Not Guarantee a Similar Outcome

 

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Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

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Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.