This summer, the Vermont Agency of Education released a memo outlining the implications of the United States Supreme Court decision Endrew F. v. Douglas County School District RE-1, 69 IDELR 174 (2017) (2017). This post will help parents and families in Vermont understand how administers and special education staff will apply the Court’s unanimous decision from March 22, 2017. Specifically, how school districts will meet its obligation to provide students with a free and appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), in light of the standard to “offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The case revolved around a central question: Must schools provide a meaningful education in which children show significant progress and are given substantially equal opportunities as typical children, or can they provide an education that results in just some improvement?

The parents of Endrew F. removed him from his local public school, where he made little progress, and placed him in a private school, where they said he made “significant” academic and social improvement. Endrew F. was diagnosed with autism at age two and qualified as a child with a disability under the IDEA who is entitled to a FAPE. He attended public school from preschool through fourth grade and each year his IEP team drafted an IEP that addressed his educational and functional needs. In fourth grade, his parents became dissatisfied with his progress in that he still exhibited behaviors that limited his ability to access learning in the classroom.They ultimately removed Endrew and placed him in a private school.

In 2012, Drew’s parents filed a complaint with the Colorado Department of Education to recover the cost of tuition at the school, which is now about $70,000 per year. The lower courts ruled on behalf of the school district on the grounds that the intent of the Individuals with Disabilities Education Act (IDEA) is to ensure handicapped kids have access to public education—not to guarantee any particular level of education once inside. But the parents appealed, with the case eventually landing at the Supreme Court.

This sets a new standard that diverges from what was established in Board of Education of the Hendrick Hudson Central School District v. Rowley, 553 IDELR 656 (U.S. 1982), and rejects the 10th Circuit Court of Appeals’ opinion that FAPE is met if an educational program provides “merely more than de minimis” benefit.

This decision can be viewed as a monumental result that empowers parents and will provide more opportunities for millions of students. For the 2013-14 school year, 6.5 million students—or 13 percent of the public- school population—received an Individual Education Plan (IEP). However, as the VT AOE points out the Court did not elaborate on what “appropriate” progress will look like from case to case, noting that adequacy of a given IEP will depend upon the unique circumstances of the child for whom it was created.

Regardless of the broad nature of the decision parents should understand that Vermont schools must provide educational programs that provide “merely more than de minimis” benefit. In particular, IEP teams are directed by AOE to meet their obligations under this new standard by doing the following:

  • Avoid procedural violations that could constitute a denial of FAPE. For example, in order to avoid some of the most frequent violations:
    • Give parents the opportunity to participate in any decision making related to their student’s disability. 

    • Placement decisions must be made based on the student’s unique needs and circumstances and must never be pre-determined by the IEP team. 

    • All members of the IEP team must be present during an IEP meeting unless other arrangements are made prior to the meeting. 

    • Understand that FAPE and educational benefit/progress are assessed based upon an individual student’s unique needs and abilities and offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 

  • When developing the content of a student’s IEP and subsequently reviewing it, must be sure that the present levels of performance and annual goals are based upon data and needs that are current. 

  • IEP teams must ensure that the annual IEP goals are appropriate and measurable. 

  • Measure progress on annual goals (and objectives/benchmarks, if applicable) and have specific data available to demonstrate that progress has been made.
  • Reconvene if the student is not making sufficient progress on a regular basis.
  • Do not recycle or reuse present levels or goals, particularly where the student has not made progress on the goals. 


Do not rely only on grades or advancement from grade to grade as evidence of a FAPE or educational benefit. Careful progress monitoring of IEP goals through specific data collection and analysis will provide an additional and more reliable measure of a student’s progress and evidence of a FAPE.

The suggestions listed above may provide a useful framework for IEP team members in their development of an IEP. In the end, Endrew F. v. Douglas County School District requires that the IEP team must be able to “offer a cogent and responsive explanation for their decisions that shows a disabled child’s individual education plan (IEP) is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

What is a 10-Day Notice — and What Happens Next?


In tuition reimbursement cases, there is a requirement that parents provide notice to the school district at least ten business days before unilaterally placing their child in a private school. That notice outlines the due process and placement complaints the parents are making. We commonly refer to these statutory notices as “10-day notices.”

In most cases, in order for parents to get public reimbursement after a unilateral placement to a private residential therapeutic program they must properly notify the school district. The school district is not required to pay for the cost of your child’s education at an independent school, if the school district offered to make a FAPE available with an appropriate placement and you elect to place your child at an independent school. It is required that the school district be provided the opportunity to develop an appropriate IEP for your child which includes its offer for an appropriate placement.

For purposes of developing an IEP, including an appropriate placement, it is also required that prior to removing your child from school, they be made available for testing following the School District’s proper notification (including a statement of the purpose of the evaluation that is appropriate and reasonable) of its intent to evaluate and develop an IEP.

Alternatively, if you enroll your child in an independent school without the consent of, or referral from the school district, a hearing officer may require the school to reimburse you for the cost of the enrollment if they find that the school had not made a FAPE available to in a timely manner prior to that enrollment and that the independent placement is appropriate.


In addition, the 10-day notice letter can be one of your most important evidentiary exhibits, helping or hurting your case. The 10-day notice letter, lays out the theme of the case. The letter is an important step in preparing a case for trial. If the notice letter is used appropriately during a hearing the Hearing Officer will likely go back and re-read it. In many cases, the factual history of a successful ruling tracks the content of the letter.

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