Derek S., Individually and as Guardian Ad Litem of His Minor Child, J. S., et ux. v. Ballston Spa Central School District, et al.

In Fry v Napoleon, 580 U.S. 154 (2017) this Court stated that the Individuals with Disabilities in Education Act (IDEA) exhaustion requirement does not apply to claims under Title II of the Americans with Disabilities Act (Title II of the ADA) or Section 504 of the Rehabilitation Act (Section 504) requesting accommodation or changes to a special education program merely because the claim could relate in some way to education. The Ninth and Fourth Circuits found that claims under Title II of the ADA and Section 504 for the provision of Applied Behavior Analysis (ABA) services to students with autism in school are not claims for educational services and not subject to the IDEA administrative exhaustion requirement. The Second Circuit found that claims under the ADA and Section 504 for the provision of ABA in school are claims for educational services that are subject to the IDEA exhaustion requirement. The question presented is: Whether claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act for the provision of ABA therapy to students with autism in school are standalone claims of discrimination not subject to the IDEA exhaustion requirement, as the Ninth and Fourth circuits held, applying Fry v. Napoleon, 580 U.S. 154 (2017), or are they claims for educational services that are subject to the IDEA exhaustion requirement, as the Second Circuit held.