Failure to offer particular placement is a denial of FAPE

SRO 11-149: This arose in the context of a reimbursement case. The school district recommended a residential placement and sent out packets, but failed to follow up and failed to secure a placement prior to the start of the school year. The SRO made a point of noting that the school year starts on July 1 and that the district failed to have a placement in effect prior to July 1. Note also that the fact that the district had placed the child on home instruction while looking for a residential placement did not absolve the district of its violation. Note also that the SRO denied reimbursement to the parents finding that they had not established the appropriateness of the unilateral placement.

Timeline to appeal IHO decision runs from date of decision

SRO 11-151: Pracitioners take note. The IHO sent the decision to the attorneys and the parties two days after the date of the decision. The SRO held that the 35 day timeline for filing an appeal commenced on the date of the decision, not the date of receipt of the decision.

NY State Ed. proposes regulatory changes to impartial hearing process

This is a must read for New York State special education attorneys. As practitioners of special ed law are aware, State Ed. has heightened enforcement efforts with respect to timeline requirements for the conduct of impartial hearings. Most recently, the SRO has come down hard on a number of IHOs who have done little more than what just about every IHO does – i.e. schedule hearings on dates that work for the parties and the attorneys and grant extensions when it makes sense to do so (see SRO 11-091 and 11-112). What was ordinary course of procedure may be and certainly was perceived to have been at odds, however, with the statutory and regulatory timeline requirements. Now, State Ed. has proposed significant changes to the regulations governing the conduct of hearings. The proposed changes address:

1. Certification and appointment of IHOs;
2. Consolidation of multiple due process requests for the same student ( subsequent hearing requests assigned to same IHO if original complaint is still pending) ;
3. Prehearing conferences (if the proposed changes are to go into effect, these changes could dramatically restrict the scope of and evidence permitted at hearing);
4. Withdrawals of requests for due process hearings (withdrawal without prejudice permitted as a matter of course only prior to the commencement of the hearing or prehearing conference; resubmission of a similar hearing request within one year will result in the assignment of the same IHO)
5. Extensions to the timelines for an impartial hearing decision (one 30 extension would now be permitted for settlement negotiations);and
6. Timeline to render a decision.

There are some very positive changes proposed including:

1. The proposed regulations would expressly authorize IHOs to issue consent orders, something that is presently routine across New York State, but which has been fiercely resisted in NYC.
2. The regs governing the granting of extensions would now permit an extension to allow for negotiations as noted above. Also, the factors to be considered by the IHO in determining whether to grant the extension include “whether the delay in the hearing will facilitate other matters that will positively contribute to the child’s educational interest or well-being.”

The proposed amendments are presently before the P-12 Education Committee for discussion in January 2012 after which there will be a period of public comment. They are scheduled to be submitted for action at the April Board of Regents meeting with a proposed effective date of May 16, 2012.

WDNY reaffirms 3 year statute of limitations on Attorney fee claims

P.M. v. EVANS-BRANT CEN. SCH. DIST. (W.D.N.Y. 1-9-2012): In what might be the first case post–2007 amendments to the IDEA to closely consider this issue, the Court determined that the statute of limitations for an attorney fee claim in a special education matter is 3 years.

NY Court of Appeals addresses responsibility for costs of educating kids living in child care institution

Board of Education of the Garrison Union Free School District v. St. Basil (decided January 5, 2012): The New York Court of Appeals addressed the question of whether a school district is obligated to pay for the educational costs of the children living in a child care institution located within district boundaries. The Court held that a school district is not obligated to provide a tuition-free education to those children residing within the institution and determined to be nonresidents of the school district.

SRO upholds award of reimbursement

SRO 11-126: Parent placed student at a private school and sought reimbursement. IHO ruled in parent’s favor. SRO affirmed the decision. Of note, the SRO found that the parent’s 10 day notice of intent to seek reimbursement was timely because it was submitted more than 10 days prior to when the student started at the private school.

Improper reduction in related services

The frequency and duration of related services for a particular child is determined by the CSE and is required by law to be indicated on the student’s IEP. The school district must provide special education and related services to a student with a disability in accordance with the student's IEP. A student’s IEP can not be changed outside the CSE process without the express agreement of the parent. Therefore, a school can not reduce the frequency of provision of related services without going through the CSE process unless the school secures the agreement of the parent. It has come to our attention that schools – particularly schools in New York City – have been reducing the frequency of provision of related services without going through the CSE. If this has happened to your child or if you know of someone to whom this has happened, please feel free to contact us.

OSEP comments on CSE composition

The composition of the CSE is oftentimes questionable. Some school districts – e.g. New York City – will oftentimes convene meetings without including those individuals that have the best knowledge of the child. OSEP recently issued a policy letter in which they stated that “if a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting.” Furthermore, “[i]f the child’s disability is a speech impairment and the only service the child receives is speech-language pathology, and speech-language pathology is also considered special education rather than a related service under State standards, then the special education provider on the IEP Team for the child should be the speech-language pathologist …OSEP believes that it is critically important to the provision of FAPE that the public agency require individuals to attend IEP Team meetings who are in the best position to address the educational program for, and the unique needs of, each child with a disability … OSEP expects that each public agency will ensure that each child’s IEP Team is composed of persons knowledgeable about the child and the child’s full range of educational needs, including the amount and type of special education and related services that the child needs in order to receive FAPE.”

Supreme Court denies cert in 8th Circuit IDEA discipline case

Doe v. Todd: The Supreme Court denied cert in a case in which a South Dakota high school student with learning disabilities was placed in an alternative school for 38 days without a formal hearing. Parent chose to seek recourse through the school board rather than through IDEA due process.

Saranac Lake School District sued for failure to appropriately address bullying

Parents have filed a $6 million dollar lawsuit against the Saranac Lake Central School District to address allegations that their young daughter was bullied, harassed and assaulted in school because of her race. See article.

Guidance on physical education for students with disabilities

The federal government recently issued guidance on physical education for students with disabilities. The report can be found here.

4th Circuit Court of Appeals issues important internet bullying decision

Kowalski v. BERKLEY COUNTY SCHOOLS (4th Cir. 2011): Student K.K. set up a My Space page targeting a fellow student at her high school. She did so on her home computer. The Court determined that the student used the internet “ to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.”” The Court, thus, upheld the suspension of K.K.

Private evaluator can observe student in the classroom

SRO 11-074: Parents have the right to have the evaluator of their choice, for whose services they have not sought reimbursement from the district, observe the student in his district classroom.

Attorney fees

The issue of attorney fees has been in the forefront of late. Today’s case of note is not a special education case, but is one that is of interest in the special ed lawyer’s world, as it addresses a court’s decision to award negligible fees in light of the small monetary award achieved by the plaintiff. The case, MILLEA v. METRO NORTH RAILROAD COMPANY, decided by the 2nd Circuit on August 8, 2011, was brought pursuant to the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to the IDEA fee provision. There are a few things of note in the decision. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.”

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. It was not a derisory or contemptuous rejection by the jury. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.”

EDNY affirms reimbursement award and addresses mootness and justiciability

NYC v. V.S. (E.D.N.Y. 7-29-2011): Parents disagreed with the NYC DOE recommendations, placed their autistic child at the Rebecca School and sought reimbursement. The IHO ruled in favor of the parents; the SRO dismissed the DOE appeal on mootness grounds as the DOE had paid the full year of tuition as pendency. The DOE appealed to federal court. The EDNY held that the case was not moot, given that the child’s continued pendency placement would turn on the court’s ruling. Next, the DOE sought remand to the SRO; the Court declined to remand reasoning that while remand is permissible under some circumstances, the drawbacks outweigh the benefits, particularly since the IHO had issued a well reasoned decision. The court than deferred to the judgment of the IHO finding that her conclusions were well supported by the record. In particular, the court affirmed the IHO’s conclusions regarding methodology (while the Rebecca School administrator testified “in some detail as to why TEACCH would be unable to teach V.S. the basic skills he needs to learn, the DOE has cited no evidence that TEACCH would be an effective method for educating V.S.”) and the size and mixed-use nature of the school building (“the general education school in which the self-contained 6:1:1 class would be housed would create a sensory overload for [V.S.] which would interfere with not only his learning but the learning of his classmates as well”).