Law Offices of H. Jeffrey Marcus P.C.
Tuesday, June 7, 2016
Wednesday, January 15, 2014
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.
Friday, October 4, 2013
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.”
Friday, July 26, 2013
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.”
Friday, June 7, 2013
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.
Friday, May 24, 2013
Wednesday, April 17, 2013
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.
Monday, November 26, 2012
Thursday, November 8, 2012
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.”
Monday, October 22, 2012
Monday, July 9, 2012
OSEP recently issued a policy letter providing guidance on a number of issues related to transition work placements. In sum:
- if the CSE determines that work placement is an appropriate transition service, it must be included on the IEP;
- initiating or changing a student’s work placement triggers prior writtten notice requirements;
- LRE requirements apply to work placements; and
- 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.
Monday, June 25, 2012
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 that4. 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.
Wednesday, June 13, 2012
Sunday, May 27, 2012
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.