Notice Regarding the Confidential Release of Student Records to Class Counsel in a Class Action

Please See the Notice Regarding the Confidential Release of Student Records to Class Counsel in a Class Action Litigation Involving Students with Autism and Students Attending State-Approved Non-Public Schools.

Necessary vs. Appropriate in Reimbursement Case

SRO 13-078: Parents disagreed with the placement and program offered by the NYC DOE for their autistic child. The parents developed a home based program and put the DOE on notice of their intent to hold the DOE financially responsible. There was no disagreement as to the need for ABA services, but the DOE maintained that the student could benefit from 5 hours per week, rather than the 10 hours ordered by the IHO. While the SRO found that while the evidence supported a determination that only 5 hours per week were necessary, “parents were not required to limit the ABA services with exacting precision to the minimum level of services necessary to produce educational benefit.” The SRO went on to order the DOE to fund 8.5 hours per week as that was the level of service that the child was receiving and for which there was evidence of progress.

SRO dismisses DOE petition for filing administrative record 9 days late

SRO 13-170: Parent prevailed at hearing. The NYC DOE appealed to the SRO. The SRO dismissed the appeal sua sponte finding that the DOE’s nine day delay in filing the administrative record “impeded his ability to issue a timely and thorough decision.”

3rd Circuit issues interesting pendency decision

R.B. v. MASTERY CHARTER SCHOOL, 11-1009 (3rd Cir. 7-25-2013): In response to events that displeased the parent, she stopped sending her child to school. The school dis-enrolled the child after she had not attended for awhile. The parent filed a complaint and sought pendency. The school argued, inter alia, that the parent had no right to pendency as the child was out of school at the time of the filing of the hearing request. The 3rd Circuit disagreed stating that pendency was based upon the last agreed upon IEP and that to rule in the school’s favor would “would render the stay-put provision useless, as schools could implement unilateral changes prior to a parent's suit and then claim that the new change is the status quo.”

SDNY reverses the SRO on reimbursement case

In a case decided on June 4, 2013, the SDNY once again reversed an SRO denial of tuition reimbursement. This case, M.F. v. NYC Bd. of Educ., made it to the Court in a fairly typical posture. The parent prevailed at hearing; the SRO reversed. The NYC DOE conceded that it had failed to provide the child a FAPE and thus, the appropriateness of the DOE’s placement and program recommendations was not at issue. The SRO found that the parental placement, the Aaron School, was not appropriate. The Court held that “[i]n mechanically comparing the IEP's requirements to what the Aaron School provided, the SRO ignored the Second Circuit's instruction that a private placement need not offer every service listed in an IEP” and “that the SRO applied a more rigorous standard than that required by the case law, mischaracterized what the IEP required, and held the Aaron School responsible for a failure to offer summer services that it was not obligated to provide.” With respect to the summer services, the Court found that it was the DOE's responsibility to provide these services in July and August 2010, and it makes no sense to find the Aaron School an inappropriate placement because it offered only a 10–month program.

May 2013: NY State Ed proposes significant changes to special education laws

The following is a summary of proposed changes being pushed by the NYS Education Department. Note that the bill (Assembly bill  A-7060; Senate bill S-5557) was referred to the education committee on 5/20/13:

1. 3602-c:

-moving notice date from June 1 to April 1 for students who already have an IEP

-no entitlement to special class or ICT

-mediation required before impartial hearing except in child find cases

-ESY available

2. abolishes appointment by the commissioner to state supported schools and makes CSE responsible for such placements

3. CSE membership

-eliminates school physician

-parent member only upon request of the parent

-elimination of subcommittees

4. Transportation

-students receiving transportation under the 50 mile rule are not eligible to receive special education services under 3602-c.

5. Statute of Limitations:

-reduce the current S/L from 2 years to 1 year, except in tuition reimbursement cases in which case it would be 6 months from "from the placement by the parent or person in parental relation in the private school, provided that the student shall be deemed placed for such purpose on the first day the student is enrolled in and is liable for tuition in the private school."

6. Preschool

-Parent can no longer choose the evaluator.

-All school districts are deemed to be approved evaluators.

OSEP says IHO can find violation of code of conduct

In a recent memo, OSEP stated that hearing officers determining a student's placement in the wake of a purported disciplinary infraction may decide not only the appropriateness of the district's manifestation determination and the appropriate placement of the student, they may also consider whether the student's conduct actually amounted to a code of conduct violation.

11th Cir. affirms parent's right to independent evaluation at district expense

PHILLIP C. v. JEFFERSON COUNTY BOARD OF EDUCATION (11th Cir., decided 11/21/12): The Court rejected the district’s argument that the federal regulation authorizing a parent's right to an independent evaluation at district expense exceeded the scope of the IDEA. The District argued that the IDEA did not specify that state and local agencies must finance a parent's IEE and thus, although the parent had a right to an IEE, the district did not have to pay for it.

Right to evaluation under §504

A school can not condition the right to an evaluation under §504 on allegations by the parent of discrimination based upon disability. OCR stated that: “ [t]he regulation implementing Section 504 requires a school district to conduct an evaluation of any student it has reason to believe needs or may need special education and/or related services because of a disability. The failure to conduct an evaluation of a student suspected of having a disability is an act of discrimination under the regulation implementing Section 504; no other proof of discrimination is needed or required under the regulation prior to initiation of the evaluation.”

Important new 2nd Circuit cases: G.B. v. Tuxedo

The 2nd Circuit has decided at least 6 special education cases of importance in recent months. I will be writing about these cases over the course of the next few days. The most recently decided of these cases is G.B. v. Tuxedo. There is nothing much interesting about this 2nd Circuit decision on its face as it simply affirms the District Court case for reasons stated by the District Court. It is the District Court case that is worthy of attention initially because the parent lost at both the hearing level and at State Review. Rare is the case that a parent prevails in court after losing throughout the administrative process. At issue in this case was the district’s effort to place the child in a self contained class vs. the parent’s desire to have the child in an integrated environment with appropriate support. Given the district’s refusal to provide an appropriate placement recommendation in an integrated environment with sufficient support services, the parent chose to place the child privately and seek reimbursement. Notwithstanding the IHO and SRO rulings to the contrary, the District Court found that “the record evidence convincingly demonstrates that placing N.B. in a self-contained classroom, both in 2006 and 2007, violated IDEA's requirement that she be educated with non-disabled children "to the maximum extent appropriate." The Court found that “ boilerplate, conclusory language cannot satisfy the requirement that the CSE "serious[ly] consider[ ] ... including the child in a regular class with such supplementary aids and services [as appropriate]." The Court noted that “a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming" and “the appropriate yardstick is whether [the child], with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting."

The Court carefully applied the Newington factors and went on to characterize the mainstreaming requirement as a rebuttable presumption: “the District has failed to rebut the presumption that an integrated class is appropriate. See A.S., 183 F.Supp.2d at 548 ("Even were the court to assume that the Board's proposed plan would be a viable and effective placement for [the student], in that she could make progress [there] ..., what would still be missing from the Board's argument is evidence that A. could not, with appropriate supplemental aids and services, make the same or even more progress in the regular education setting.”)”

Worthy of note is the Court’s take on the testimony of the parent: “While Mrs. B. does not have the academic credentials of someone like Dr. DeFina, she is an expert when it comes to the development and learning style of her own daughter, and nothing to which she testified was inconsistent with the experts' testimony. See Phillips, supra, at 1815-16 (noting that, under IDEA, parents play "the role of the child-specific expert," because they are "uniquely situated to provide a global understanding of the child's abilities," and are able to "report on a child's progress in ways a teacher cannot.””

The Court declined to accord deference to the IHO and SRO rulings citing a number of rationales: overwhelming evidence in the record to the contrary, that the “IHO incorrectly placed the burden of demonstrating that an integrated class was appropriate on N.B.'s parents,” that the IHO and SRO failed to “thoroughly address IDEA's mainstreaming requirement,” and most importantly, that when a Court reviews whether a school district violated the IDEA's "mainstreaming" requirement, “it does not impose its own views of proper educational policies and methods, rather, it enforces the statute enacted by Congress.” Thus, the rule requiring deference to the administrative decision maker on matters of educational policy did not apply.

The Court observed also that because the district recommendations violated IDEA's mainstreaming requirements, it need not determine whether those placements also violated IDEA's more general requirement that each student receive a FAPE.

Having found that the District violated the requirement that the child be educated with non-disabled peers to the maximum extent appropriate, the Court went on to find that the parental placement was appropriate. This section of the decision is most definitely worthy of a read by practitioners as it refines what is oftentimes a rather murky prong 2 analysis (recall, the rationale of this decision has the imprimatur of the 2nd Circuit). The Court states that as long as “the private placement remedies a significant deficiency in the public placement, and the student progresses in the private placement” the placement is appropriate even if the parents “chose a school that has other appealing features as well” such as features that may not be special education like in nature.

Finally, the Court looked at the equities. Of note, despite the failure to provide proper notice of the intent to make a reimbursement claim, the Court did not deny the claim; rather the Court found that it should be reduced in an amount to be determined. And, the Court emphasized that “a refusal to submit to a public evaluation will only result in a reduction of reimbursement where "prior to the parents' removal of the child from the public school, the public agency informed the parents ... of its intent to evaluate the child.” The refusal to submit the child for evaluation after removal from the public school will not result in a reduction of reimbursement.

OSEP issues policy letter regarding work placements in IEPS

OSEP recently issued a policy letter providing guidance on a number of issues related to transition work placements. In sum:

1. if the CSE determines that work placement is an appropriate transition service, it must be included on the IEP;


2. initiating or changing a student’s work placement triggers prior writtten notice requirements;


3. LRE requirements apply to work placements; and


4. the CSE must consider supplementary aids and services necessary to enable the student to participate with other disabled and non-disabled students in the work place and the LEA must provide any supplementary aids and services as identified by the CSE on the IEP.

NYS Education Department proposes "compensatory" diploma option for students with disabilities

State Ed. has proposed a modification of the “safety net” for students with disabilities. The proposed amendment would expand the safety net options to also authorize a school district to award a local diploma to a student with a disability if the student:

1. scores between 45-54 on one or more of the five required Regents exams, other than the English or mathematics exam, but scores higher than 65 on one or more of the required Regents exams, in which case the lower score(s) can be compensated by the higher score(s); and

2. obtains a passing score in the subject area of the Regents examination in which he or she received a score of 45-54;

3. has an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences; provided that

4. a student may not use the compensatory score option if the student is using a passing score on one or more RCTs to graduate with a local diploma.

Significant proposed regulations regarding the impartial hearing process in New York State

The State Education Department has proposed some significant revisions to the regulations governing the impartial process in New York State. The proposed rules address the following:

The proposed rule addresses six procedural issues relating to impartial hearings:

        1.        Certification and appointment of IHOs;

        2.        Consolidation of multiple due process requests for the same student;

        3.        Prehearing conferences;

        4.        Withdrawals of requests for due process hearings;

        5.        Extensions to the timelines for an impartial hearing decision;

and 6. Timeline to render a decision.

These proposed regulations will now go through a period of public comment prior to reconsideration by the Board of Regents.         

Significant NYS Court of Appeals case

In a 4-3 split decision (June 12, 2012), the New York State Court of Appeals has determined that the New York State Division of Human Rights does not have jurisdiction to investigate complaints against public school districts pursuant to New York State Executive Law §296(4). Certain students had filed complaints with the State Division of Human Rights alleging unlawful discriminatory practices based upon race and/or disability. Executive Law § 296 (4) provides that "[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant . . . to permit the harassment of any student or applicant, by reason of his race . . . [or] disability . . ." The Court held that a public school district is not an “education corporation or association” for purposes of this statute. Rather, the Court found that “education corporation or association” refers to private, non-sectarian, non-profit entities. The Court held as such despite that, as noted by the dissent, “public school districts are corporations organized for educational purposes (see NY Const, art X, § 5) and public schools hold themselves out to the public as non-sectarian and are exempt from taxation pursuant to article 4 of the RPTL.”

The Court acknowledged that “The vicious attacks to which these students were subjected are deplorable, and our holding is not to be interpreted as indifference to their plight.” The Court advised that public school students “may file a complaint with the Commissioner of Education (see Education Law § 310)” and also advised of “potential remedies under federal law” and of the "Dignity for All Students

Act.”

Accessible instructional materials

Students with disabilities for whom the printed text of instructional materials is a barrier to their participation in the general education curriculum and who thus need accessible instructional materials have a right to receive these materials in a timely manner. Here is a link to a good article addressing legalities of the school’s obligation to assure provision of and access to such materials to those who qualify.