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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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The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

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Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

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106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. 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