OSEP says file a State Complaint to address the wrongful revelation of confidential information

See http://www.ed.gov/policy/speced/guid/idea/letters/2008-1/anderson030708confidentiality1q2008.pdf for an analysis of the Part 300 confidentiality requirements and the use of FERPA vs. State complaint to address violations.

SRO negates partial award of reimbursement for failure to provide notice

SRO 08-110: SRO Paul Kelly reversed another reimbursement award, this time for the parent’s failure to provide the district with notice of intent to make the reimbursement claim. While the result is not surprising, it is nonetheless notable. Once again, Paul Kelly gives the school district a free pass despite the failure to offer the child a FAPE and then punishes the parent by taking away reimbursement awarded by an IHO.

Class action against NYC Dept. of Ed settled

D.S. et al v. NYC Dept of Ed, --- F.Supp.2d ----, 2008 WL 5024911(EDNY 11/25/08):
Minority students and their parents at Boys & Girls High School (“B & G”) filed a class action contending that they and many others were deliberately denied a high school education. The Court found merit to the lawsuit and the parties entered into a settlement agreement. This is a good read for those interested in class action litigation to address special education problems.

Important new federal regulations

The federal special education regulations were revised effective 12/31/08 to permit parents to revoke consent for the provision of special education and related services. Additionally, whether parents have the right to be “represented” (as opposed to accompanied and advised) by lay advocates at due process hearings is now left to the discretion of the states. See http://edocket.access.gpo.gov/2008/E8-28175.htm

District Court vacates SRO home schooling decision

This morning, Judge Hurd in the Northern District of New York vacated SRO decision 08-005, the second of two SRO cases in which Paul Kelly deemed that there was no authority under state or federal law for school districts to provide special education services to home schooled kids. Although Education Law §3602-c has been amended to now expressly afford home schoolers a limited right to special education services, this Court decision is still of importance to those families who were impacted by Kelly’s decisions.
B.C. v. Colton-Pierrepont, 7:08-cv-00362, N.D.N.Y. 11/21/08.

Note that this decision was vacated by the 2nd Circuit on December 21, 2009. The Court found that the matter was moot.

District Court affirms IHO right to rule on issue not raised by parent

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008): In a decision that was otherwise unfavorable to the parent, the Court reversed the SRO and upheld a hearing officer determination that the district must provide the child with transition services. The parent had not raised the issue to the IHO, a fact noted and relied upon by the SRO in his reversal of the IHO. The Court found that the parent had challenged the sufficiency of the IEP and that this was enough for the IHO to order the district to implement a service that was required by law.

The task of the CSE is inherently speculative or predictive

School districts oftentimes argue that a parent position is speculative. I have argued that CSE recommendations are inherently speculative. In a case decided 11/18/08, the NDNY noted that

The requirement that defendant's CSE annually develop an IEP that is reasonably calculated to benefit plaintiff's educational development necessarily implies the CSE must make rational predictions about what will be best for plaintiff in the future. A school district's CSE will never have the benefit of knowing for certain how a student would perform if allowed to continue his education pursuant to an un-modified IEP. Although the IDEA permits the consideration of evidence outside the administrative record, see 20 U.S.C. § 1415(i)(2)(C), the statute is silent as to whether courts may consider a student's performance subsequent to the development of the challenged IEP.

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008)

Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.

Court holds against district for failure to evaluate in a timely fashion

Integrated Design and Electronics Academy Public Charter School v. McKinley, 570 F.Supp.2d 28 (D.D.C. Aug 08, 2008): The D.C. District Court held for the parent on a claim that the school failed to evaluate in a timely fashion. The Court also found that the parent was a prevailing party and was thus entitled to attorney fees. This case is of note given a recent history of courts forgiving district violation of procedural obligations. Also, it is of significance that the court awarded attorney fees without an ultimate determination that the child was eligible under the IDEA.

Court allows ADA/504 claim to proceed

Miles v. Cushing Public Schools, Slip Copy, 2008 WL 4619857: A severely disabled child fell twice from a changing table. The parents sued alleging deliberate indifference to the child’s safety. The Court concluded that “the record contains sufficient evidence to create material factual disputes with regard to Plaintiffs' claims that Defendants intentionally discriminated against C.M. by exhibiting deliberate indifference to the likelihood that their actions, or their failure to act, violated his rights under the Rehabilitation Act and the ADA.”

Court requires more detailed analysis

E.M. ex rel. E.M. v. Pajaro Valley Unified School Dist., Slip Copy, 2008 WL 4615436(N.D.Cal. Oct 17, 2008): This case would almost certainly fly under the radar screen, yet it zeroes in on an issue of significance in New York State. Parents in New York State are often subjected to adverse administrative decisions that appear to result from the whim of the SRO or, in some cases, particularly in New York City, an “impartial” hearing officer. Here, the Court remanded the case back to the ALJ finding that the ALJ’s findings were conclusory and failed to “articulate adequately their underlying reasoning.”

Settlement agreement enforceable in federal court

Many special education cases do not fit neatly within the prescribed process. Here, the Court found that the parents had not exhausted the administrative process, but allowed them to proceed in federal court on the basis of a violation of a settlement agreement. The district did not schedule a resolution session. The Court, nevertheless, held that the agreement was enforceable in federal court pursuant to 20 USC §1415(f)(1)(B)(iii), the provision affording Court jurisdiction for resolution agreements. See J.M.C. ex rel. E.G.C. v. Louisiana Bd. of Elementary and Secondary Educ., --- F.Supp.2d ----, 2008 WL 2421108(M.D.La. Jun 13, 2008).

Is the SRO additional services doctrine dead?

P. v. Newington, 2nd Cir., decided October 9, 2008.

For a number of years, the New York SRO has distinguished between compensatory education services and additional services. Hopefully, this 2nd circuit decision will put an end to this rather silly distinction.
The Court reasoned that

The IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. Mrs. C. v.Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). The remedy’s mandates in this case – that an inclusion consultant be retained for a year, requiring the school to keep Dr. Majure on for at least that long,and completion of an FBA – appropriately addressed the problems with the IEP, especially when considered in light of the fact that P. is now included in at least 80% of regular-classroom activities, in part due to Dr. Majure’s recommendations. See Parents of Student W. v. PuyallupSch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (“Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.”). We therefore see no infirmity in the hearing officer’s chosen remedy.

2nd Circuit adopts Oberti test for determination of LRE(least restrictive environment

P. v. Newington(2nd Circuit, decided October 9, 2008): The 2nd Circuit today adopted a case- and fact-specific test for determining whether a student has been placed in the least restrictive environment, considering whether, with the aid of appropriate supplemental aids and services, full-time education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has mader easonable efforts to accommodate the child in a regular classroom; (2) thee ducational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in aspecial education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

D.C. Court holds that IHO decision must be implemented during an appeal

Friendship Edison Public Charter School Chamberlain Campus v. Suggs, 562 F. Supp. 2d 141, 143 (D.D.C. 2008).

A student is entitled to pendency during the course of litigation. In this case, the student was awarded compensatory education in the form of supplemental tutoring. The Court held that the implementation of a hearing officer decision is not automatically stayed by the filing of an appeal.

Nowhere in the IDEA ... is there a corresponding right of an education provider to decline to implement a Hearing Officer Decision in a student's favor automatically, without seeking a stay of that Decision from either the Hearing Office or the Court in which further proceedings have been commenced under 20 U.S.C. § 1415(i)(2).

Moving from district did not moot attorney fee claim

Kingsport City School System v. J.R., ex rel. Rentz, Slip Copy, (E.D.Tenn. Sep 04, 2008)

In this case, the parents moved from the district prior to the implementation of relief won during the administrative process. The court determined that the parent was the prevailing party and that the fact that they had moved did not negate the right to attorney fees.

Court orders funding of independent FBA

Harris v. District of Columbia, 561 F. Supp. 2d 63, 69 (D.D.C. 2008)

Parent sought an independent functional, behavioral assessment(FBA). District failed to act upon the request in a timely fashion. First, the Court found that an FBA is an educational evaluation, thus giving rise to a parental right to an Independent Educational Evaluation(IEE). Next, the Court slapped the District by finding that

failure to act on a request for an independent evaluation is certainly not a mere procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress' objectives in enacting the IDEA. See Part II C 1-2, supra. Nevertheless, even accepting defendant's assertion that plaintiff's complaint describes a procedural violation, its argument still fails. D.H. has languished for over two years with an IEP that may not be sufficiently tailored to her special needs. The intransigence of DCPS as exhibited in its failure to respond quickly to plaintiff's simple request has certainly compromised the effectiveness of the IDEA as applied to D.H., and it thereby constitutes a deprivation of FAPE. Plaintiff is accordingly entitled to full relief under the statute.

District can not satisfy obligation to evaluate by referring parents to outside evaluator

N.B v. Hellgate Elementary School District, ex rel. Bd. of Directors, Missoula County, Mont., –F.3d– (9th Cir.(Mont.) Sep 04, 2008): A school district is obligated to evaluate a child in all suspected areas of disability. Here, the school district was aware that the child might be autistic. The school district suggested that the parents obtain an evaluation and referred the parents to a testing center. The 9th Circuit reversed the District and found that the school district “did not fulfill its statutory obligations by simply referring C.B.'s parents to the CDC. Such an action does not “ensure that the child is assessed,” as required by 20 U.S.C. § 1414(b)(3)(C).”

Federal Court Vacates SRO home schooling decision

H.C. v. Colton-Pierrepont: This is a case of particular interest to home schoolers in New York State. The case was originally a parent challenge to the district’s recommended reduction in frequency of related services. The parent prevailed at hearing. On appeal, the district prevailed, but more importantly, the SRO advised that districts were not permitted to provide special education services to home schooled kids. This issue had not been raised, briefed or argued by either of the parties. Federal District Court Judge Hurd vacated the SRO decision. Although he decided the case on other grounds, he criticized the SRO for “depriv[ing] both parties of due process because he failed to inform them that he intended to rule on the rights of home-schooled students to receive special education services – an issue that neither party raised nor briefed.” Judge Hurd noted that “[t]he SRO also exceeded the scope of his authority because “[t]he decision of the State Review Officer shall be based solely upon the record before the State Review Officer . . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 279.12(a) (2008). Neither party mentioned or submitted evidence concerning the ability of home-schooled students to receive special education services.“

On August 25, 2008, the district filed a notice of appeal to the 2nd Circuit.

Does a non-custodial parent have due process rights?

Fuentes v. Bd. of Education of City of New York

Jesus Fuentes is a non-custodial parent. In 2000, he requested an impartial hearing, which request was denied by the NYC impartial hearing office. In 2008, he is still fighting for the right to a hearing and the battle is long from over. The Second Circuit recently addressed but did not decide the issue, instead certifying the issue of the father’s standing to the New York Court of Appeals. The Court framed the issue as follows:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are
silent as to the right to control such decisions.

SDNY reverses SRO on reimbursement claim

T.P. ex rel. S.P. v. Mamaroneck Union Free School Dist. (S.D.N.Y. May 10, 2007)

NOTE: This case was reversed by the 2nd Circuit on February 03, 2009 at 554 F.3d 247.

This case with a decision date of May 10, 2007, but just now publicly reported, is of major importance in New York State where the State Review Office has found against parents in the great majority of cases from 2006 to the present. In this case, the parent lost at hearing and at SRO(05-076). This is a must read for parent attorneys and autism advocates. In sum, the Court found that:

1. the district had improperly predetermined the child’s placement


2. the child was entitled to extended day services


3. the IEP which failed to include any transitional provisions for at-home ABA services, was not reasonably calculated to enable the child to receive an educational benefit and deprived him of a FAPE.

The District had knowledge of the Child's difficulty with transitions, and the IEP containing no at-home ABA therapy failed to address the Child's individual needs. Examining the evidence of record and giving due weight to the proceedings below, the Court cannot conclude that the child was likely to make progress under a plan that would bluntly change his routine, and in which no at home ABA therapy was provided, despite his being accustomed for the prior years provided with 30-35 hours per week of at home ABA services, and under which program he made meaningful advances.

Are attorney fees available on settlement agreements after all?

Jankey v. Poop Deck: This is a 9th Circuit ADA case in which attorney fees were an issue. The parties had entered into a settlement agreement. The District Court denied attorney fees; the Court of Appeals reversed in a case that could have significant impact in the special education arena. Of relevance,

In a case pursued under the ADA, a court, “in its discre-
tion, may allow the prevailing party . . . a reasonable attor-
ney’s fee.” 42 U.S.C. § 12205. “[F]or a litigant to be a
‘prevailing party’ for the purpose of awarding attorneys’ fees,
he must meet two criteria: he must achieve a material alter-
ation of the legal relationship of the parties, and that alteration
must be judicially sanctioned.” P.N. v. Seattle Sch. Dist. No.
1, 474 F.3d 1165, 1172 (9th Cir. 2007) (internal quotation
marks omitted). In other words, the alteration must have a “ju-
dicial imprimatur.” Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).

Here, the district court dismissed Plaintiff’s case pursu-
ant to a settlement agreement between the parties under which
the court retained jurisdiction to enforce the settlement.
Defendants argue that those actions by the district court do
not constitute a sufficient judicial imprimatur. That argument
is foreclosed by Skaff v. Meridien North America Beverly
Hills, LLC, 506 F.3d 832 (9th Cir. 2007) (per curiam). There,
we held that a “settlement agreement and the district court’s
order dismissing the case[, which] provided that the district
court would retain jurisdiction to enforce the agreement,” sat-
isfied the requirements of Buckhannon to render the plaintiff
a prevailing party under the ADA. Id. at 844 & n.12. The set-
tlement agreement in this case both authorized judicial
enforcement of its terms and expressly referred resolution of
the issue of attorney fees to the district court.

The IDEA by its terms makes resolution agreements enforceable in federal court. This should be sufficient to give rise to the right to fees, assuming that the terms of the agreement otherwise make the parent a prevailing party. This theory will soon be tested. Stay tuned.

SRO pounds parent attorney for procedural infirmities

SRO 08-053: Parent alleged that the district(presumably NYC) failed to provide her child with a FAPE. She placed her child in a private school and requested a hearing. After 3 days of testimony, the IHO found for the district. The parent appealed. SRO Paul Kelly, always tough on parents and disabled children, did not even address the issues in this one. Rather, he tossed the appeal citing counsel’s:

1. failure to provide “sufficient particulars as to the reasons why she challenges the impartial hearing officer's decision”;


2. raising of issues in the memorandum of law rather than the petition;


3. failure to include record cites in the petition; and perhaps the most stunning of all,


4. the failure to include a table of contents in the memorandum of law.

Additional Evidence

The pendulum swings back and forth in Court decisions regarding the admissibility of additional evidence in IDEA actions. There appears to be a trend towards admissibility, however. Most recently, the SDNY allowed affidavits from private school personnel in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F.Supp.2d 420, SDNY(2008).

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.

Attorney fees for due process violation

The focus of this blog is generally on currently decided cases and legislative developments. Although not just decided, this case is of great import with respect to district strategies that deny parents due process rights. In Engwiller v. Pine Plains, 110 F. Supp. 2d 236(SDNY 2000), the Parent prevailed on her claim that SED did not assure the provision of the hearing decision within 45 days. The SDNY awarded fees, stating that “Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on [the child’s] IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys' fees expended on SED administrative proceedings and this litigation.” Note that the award of fees was made without regard to the merits of the underlying proceeding; in fact, the attorney fee award was made prior to the issuance of the hearing officer’s decision.

Important case to counter district motions to dismiss hearing requests

Somoza v. NYC,__F.3d__(2nd Cir. 2008):

Parent sought compensatory services for her 23 year old alleging a denial of FAPE for the entire time she had been in the NYC school system. NYC had “voluntarily” agreed to an extra year of private schooling in exchange for a release of all claims. That year was due to expire in June of 2006. The parent argued that the claim should have survived because there was no relief available that was not already being provided(because the child was at the private school at district expense). The District Court agreed reasoning that claim did not accrue until after the year in the private school. The Second Circuit reversed holding that the claim accrued during the 02-03 school and that, therefore, the claim was barred under any of the various possible statutes of limitation.

Most importantly for ongoing purposes, the Second Circuit stated that 

the fact the DOE voluntarily provided the requested educational services beyond the term of plaintiff's statutory entitlement does not “deprive a federal court [or administrative agency] of its power to determine” the nature of the entitlement at issue. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000); see also New York Pub. Int. Res. Group, Inc. v. Johnson, 427 F.3d 172, 185 (2d Cir.2005). Plaintiff's allegations that, in the past, the DOE had denied her the FAPE to which she was entitled presented a live and “concrete dispute affecting cognizable current concerns of the parties” at the time that plaintiff arrived at this understanding. Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.2007) (internal quotation marks omitted).

As previously noted in this blog, in a number of cases, districts have been successful in convincing hearing officers to dismiss hearing requests based upon their representations of willingness to do what the parents are requesting. The cases were dismissed despite that there was no settlement agreement, no consent decree and no order of the IHO compelling the relief.  Not surprisingly, SRO Paul Kelly affirmed each of these decisions(SRO 07-122, 08-008, 06-109). I have appealed SRO 07-122 and 08-008 to federal court, but we are at the very early stages of the litigation. The Somoza case is very strong authority in favor of our position that the parents were wrongfully deprived of due process and that the IHO had the “power to determine the nature of the entitlement at issue”.

New York SRO reverses yet another reimbursement award

SRO 08-051: Hearing officer awarded reimbursement to parents for private residential placement for severely behaviorally disordered child. SRO agreed that the district failed to offer an appropriate placement. Once again, however, as has been the pattern for the last 3 years, the SRO reversed the IHO award of reimbursement by finding that the parent had failed to establish the appropriateness of the parental placement. This is a detailed decision that on the one hand highlights the child’s behavioral progress at the placement, but ultimately weighs against the parent ostensibly for the child’s failure to make academic progress and for the failure to of the program to address the child’s behavioral needs in the way that SRO Kelly thinks they should be addressed. It is a harsh and I’m sure very disheartening decision to the family. Hopefully, the parent will appeal and the federal court will look more favorably upon what appeared to be a very reasonable placement choice by the parents.

No statute of limitations for pre-2004 compensatory education claims

Tereance D. v. School Dist. of Philadelphia: In the 3rd Circuit, prior to the 2004 amendments of the IDEA, there was no statute of limitations on compensatory education claims. In this case, the Court did an extensive analysis of whether the new IDEA 2 year statute of limitations should be applied to a case in which the complained of conduct occurred prior to the 2004 amendments, but the hearing request was filed after. The Court held that the 2 year year statute of limitations would not be applied retroactively.

SRO finds district program inappropriate

SRO 08-052: This is one of the few cases in which SRO Paul Kelly has sided with the parent and affirmed a favorable IHO decision. Kelly found that the IEP did not accurately reflect the student’s actual present levels of performance and needs, that the IEP’s goals and objectives were flawed and inadequate, and that the placement was inadequate without 1:1 assistance. This is a must read, particularly for attorneys or others doing hearings.

Issues raised at hearing but not included in hearing request survive

SRO-08-052: Generally, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint notice is amended prior to the impartial
hearing per permission given by an impartial hearing officer at least five days prior to the hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; see SRO 06-065, 06-139). Here, the parents raised an issue during the course of the hearing, an issue that they had failed to raise in their hearing request. The district, however, did not object and therefore, the SRO treated it as having been properly raised.

District must identify a specific site for child's placement

SRO 08-058: In a case in which SRO Paul Kelly once again negated a reimbursement award, Kelly found for the parent on prong one ruling that the district’s failure to identify a school site in which the IEP could be implemented denied the child a FAPE. Kelly found for the district on prong two, however.

Drug use and disability

The SDNY affirmed an SRO decision denying reimbursement for a private placement in a case in which the parents argued that the child’s drug use and his emotional disturbance were inextricably intertwined.

plaintiffs argue that P.K.'s disability and substance abuse were 'intertwined.' This argument could plausibly be advanced in most, if not all cases in which a student has both a disability and a substance-abuse problem. To accept it would be to hold that school districts must provide (or pay for) substance-abuse treatment for students who happen to be disabled. Nothing in the text of the IDEA suggests that Congress intended this result, which would add a significant financial burden to already heavily burdened public-school systems. Plaintiffs have not cited any case holding that the IDEA requires a school district to pay for private substance-abuse treatment, and we are not aware of any. Courts that have addressed the issue have reached the opposite conclusion, as do we.

P.K. v. Bedford Cent. School Dist., --- F. Supp. 2d ----(S.D.N.Y. Aug. 1, 2008).

Note, however, that there is an inconsistency in the treatment of similar issues by the federal courts. For example, a Texas federal court ordered reimbursement for a variety of services stating that the child's "doctors recognized that extensive counseling was critical to treat the psychological and behavioral problems underlying her academic difficulties." Richardson Independent School Dist. v. Michael Z., — F. Supp. 2d — (N.D. Tex. Apr. 22, 2008).
Although, this is not a drug abuse case, the analysis is analogous. Unlike the SDNY, the Texas court found that the child's

academic difficulties were inextricably intertwined with her emotional and behavioral problems. The Court does not provide an exhaustive recital of the arguments and evidence previously presented, but rather distills the key facts. [The child] suffered from numerous debilitating conditions, including bipolar disorder, separation anxiety disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and pervasive developmental disorder. Defiant and aggressive, [The child] lashed out at teachers, skipped class, and was generally unreceptive to instruction. Repeated outbursts also limited her ability to focus, to absorb lessons, and to complete assignments in a timely manner. As a result, [The child] struggled academically in the approximately twelve schools she attended.

Id.

Pendency when a child is transitioning from preschool to Kindergarden

It is not unusual for a school district to radically reduce a child’s services or even declassify the child upon entering kindergarden. For a child who has been receiving services as a preschooler, the parent can request a hearing and assert the right to pendency. The SRO in appeal number 01-023 stated that

[t]he pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir. 1996]).

Note that this does not mean that the child must remain in the preschool program, but rather that the district is obligated to continue the program prescribed in the IEP in a school age environment. If the child is school age eligible, but not of compulsory school age, the child may be able to continue in the preschool environment if the program is certified for school age kids.

Home Schooling alert: URGENT

Pursuant to the new law, any parent who wants her school district to provide special education services to her home schooled child must submit a written request by Wednesday August 6th. Please feel free to contact my office if you have any questions.

Right to attorney fees on settled cases

The Supreme Court in the Buckhannon case significantly limited the right to attorney fees in special education cases. There is an extensive and useful discussion of Buckhannon in the recently decided 1st Circuit case, Aronov v. Chertoff. This is not a special education case, but the reach of Buckhannon is extensive. Courts are applying its restrictive view to all fee recovery statutes. The court in the Aronov case discusses in detail the difference between and requirements for a consent decree that would give rise to fees and a private settlement that would not.

Issues remained live for hearing when there is no agreement at the resolution session

EL PASO INDEP. SCHOOL DIST. V. RICHARD R.,591 F.3d 417 (5th Cir. 2009): This is a potentially very important case. Some school district attorneys have aggressively resisted resolving cases in a fashion that could give rise to the right to attorney fees for the parent. The effect of this strategy is to infringe upon the parents’ right to counsel, at least for those parents that can not afford an attorney. In New York State, the SRO has, on a number of occasions, upheld district motions to dismiss in cases where there were no settlement agreements, but where the district had purportedly expressed a willingness to address the parents’ concerns. These NY decisions have perpetuated a doctrine depriving the parents and kids of due process. Two of these cases are presently on appeal in the Western District of New York. In this Texas case, the federal court held that a hearing officer properly refused to dismiss the hearing request. The court vindicated the parents’ right to reject a settlement offer and proceed to hearing. The rationale of the court’s decision was twofold. First that the proposed agreement did not confer federal court jurisdiction and was thus unenforceable in federal court by the parents and second, that the proposed agreement did not give rise to prevailing party status, and would have precluded the parents’ right to attorney fees. The court upheld the hearing officer’s decision in favor of the parents, thus conferring prevailing party status upon the parents.

NY State Ed issues memo explaining new law authorizing provision of special ed services to home schooled kids

The State Education Department (SED) has issued a memo notifying parents and school districts of the new law authorizing special ed services for home-educated children.  The memo explains the new law and highlights that parents seeking special ed services must have an approved IHIP and must submit a request in writing to the board of education by August 6, 2008 for the '08-'09 school year, and by June 1 in future years. The memo further addresses location of services--i.e. districts are empowered to determine the location of services and that can include provision in the home. There is no guidance as to how that determination should be made. The location of services issue has been hotly contested for the better part of two decades, but it should be noted that current 3602-c case law addressing this issue dictates that services be provided on site at a private school if that is necessary for the child to receive an appropriate education. There is no reason to believe that home schoolers will be treated by the SRO and courts any differently than private schoolers on this issue.

Parents of home schoolers who disagree with the CSE’s recommendations are entitled to due process and thus, can request an impartial hearing. The memo further states that “special education services must be provided to home-schooled students on an equitable basis as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools within the district.” It remains to be seen how this will be interpreted, but on its face, I’d say that it means that there should be no reduction of services to a home schooler as compared to a child attending the public schools or a child attending a private school and receiving services pursuant to 3602-c.

Court reverses ALJ and finds child with ADHD eligible for special education

M.P. v. Santa Monica,(WL 2783194 for those with Westlaw): This case addresses a common theme--whether a child’s less than able performance results from ADHD or a lack of motivation. There is an excellent analysis of expert testimony, credited by the Court in contravention of the ALJ’s determination. This is a hidden gem of a case and one which I will likely write in more detail about at a later point.

Responsibility for implementation of the IEP

Oftentimes, school personnel are oblivious to the specifics in a child’s IEP. Sometimes, school personnel are not even aware that a child has an IEP. This is an unacceptable practice. New York State regulations require that “the chairperson of the committee on special education designates for each student one, or as appropriate, more than one professional employee of the school district with knowledge of the student’s disability and education program to, prior to the implementation of the IEP, inform each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel, as defined in section 200.1(hh) of this Part, and other provider and support staff person of his or her responsibility to implement the recommendations on a student’s IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP”(8 NYCRR §200.2(b)(11)(iii); see also $200.4(e)(3)).

EXTENDED SCHOOL YEAR PROGRAMS AND SERVICES in New York State

See here for state ed Q and A document on extended school year(i.e. summer) programs.

Failure to include transition plan for child in residential placement renders district program inappropriate

The district knew that this autistic child had difficulty with major transition plans, yet it merely promised to develop a plan if the parents agreed to the district placement. In A.Y. v. Cumberland Valley School District(2008 WL 2704626, M.D.Pa. 2008), the court said that that was not enough. “When a school district knows that a child requires a transition plan to return to that district from a private school placement and that school district does not include a transition plan in the IEP, the IEP is not appropriate.”

New York State Home Schooling Update: IMPORTANT

State Ed. issued this advisory today.

Pursuant to Chapter 217 of the Laws of 2008, which was signed into law
by the Governor on July 8, 2008, students with disabilities who are in
home instruction programs pursuant to section 100.10 of the Regulations
of the Commissioner of Education are eligible to receive special
education services from their public school districts.

School districts should notify all parents of students with disabilities
who are in home instruction programs pursuant to section 100.10 of the
Regulations of the Commissioner of Education that, if the parent is
seeking special education services to be provided to their child by the
public school district, the parent must submit a written request for
such services to the school district where they reside by August 7 of
this year (which is 30 days after this new law takes effect).

Further guidance on Chapter 217 will be issued next week.

NYS restores the provision of special education services to home schooled kids

Until recently, New York State had for many years provided special education services to home schooled children. In January of 2008, State Ed. issued a directive ordering school districts to terminate special education services to home schooled children. State Ed. relied upon the State Review Office decision in Appeal number 07-043, a decision which is presently being appealed by the Law Offices of H. Jeffrey Marcus, P.C., and Joyce Berkowitz, Esq. In June, the Assembly and the Senate agreed upon language to restore services and sent a bill to the governor. On Monday July 7, 2008, Governor Paterson signed the bill and it is effective immediately. The full text of the bill can be found here.

Court supports parent right to independent functional behavioral assessment(FBA)

The district argued that the FBA was not an educational evaluation and therefore, the parent had no right to an independent evaluation(IEE). In Harris v. District of Columbia decided June 23, 2008, the Court found otherwise and additionally held that the district’s failure to perform an FBA for over 2 years was sufficient to confer upon the parent the right to an IEE.

Parental Consent for the Use of Public Benefits or Insurance Pursuant to the IDEA

New York State Ed. just issued a memorandum explaining that Federal and State regulations require school districts to obtain parental consent each time that access to public benefits or insurance is sought. For complete details, see Medicaid Parental Consent. 

Important case addressing exceptions to IDEA 2 year statute of limitations

D.G. v. Somerset Hills School District: The IDEA prescribes a 2 year statute of limitations. In this recently decided D.C. case, the federal court held that the 2 year limit did not apply because the district failed to provide the parent with written notice of procedural safeguards and due process rights. Additionally, the court held that the continuing violation doctrine applied making the parent’s claim timely finding that the district’s “alleged actions and omissions were part of a continuing practice and the last act evidencing the continuing practice occurred in June 2006, a date within the IDEA's two-year statute of limitations period”.

Placement vs. location of services

OSEP addresses this issue in Letter to Trigg(11/30/2007) noting that historically “placement” is the “points along the continuum of placement options available for a child with a disability” and "location" is “the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services.”

Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child's special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided.

Enforcement of hearing officer orders: SRO says go to federal court, federal court says go away

The NYS SRO has repeatedly stated that school district failure to implement a hearing officer’s order can only be enforced via complaint to state ed or in federal court. For example, in SRO 06-130, SRO Paul Kelly stated that:

The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

The federal courts are not so amenable to such complaints, however. A number of courts have held that the IDEA does not grant a district court jurisdiction to enforce a hearing officer's order because a party who prevails at a due process hearing is not aggrieved by the decision. Rather, the party is aggrieved by the later failure to implement the decision and that does not give rise to federal court jurisdiction(see e.g. Brennan v. Reg'l Sch. Dist. No. Bd. of Educ., 531 F.Supp.2d 245, 261 (D.Conn.2008)). For a more complete discussion of the issue, see James S. ex rel. Thelma S. v. School Dist. of Philadelphia--- F.Supp.2d ----, E.D.Pa.,2008.

Supreme Court denies cert in IDEA damages case

Burke v. Brookline Sch. Dist.: Supreme Court denies cert in this 1st circuit case in which the Court held that the parents could not make a claim for monetary damages for alleged denial of FAPE.

Use of additional evidence in federal court

For those of you who subscribe to LRP’s Special Ed Connection, there is an excellent summary of the law on the use of additional evidence in federal court. The article is entitled What factors does a court consider in admitting 'additional evidence' in IDEA disputes, beyond that introduced at administrative hearing(s)?

District responsibility for services when child is involved in multiple service systems

M.K. v. Sergi: This case is of particular interest because the child was in and out of various psychiatrict facilities and at the time of the original hearing(1995!), there was multiple system involvement--educational, mental health and juvenile court. The district court addresses various issues pertaining to the school district’s responsibility for services delivered outside of the school.

Medication monitoring services are not the responsibility of the district

In a companion case to M.K. v. Sergi discussed below, the district court held that medication monitoring services are not a “related service” for which the district would bear responsibility.

Determination of attorney fees in the Second Circuit

Federal court determination of attorney fees in special ed cases has recently become much more complex. The Second Circuit recently abandoned the use of the term “lodestar” in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 189 (2d Cir. Apr.10, 2008). The Court explained that the “better course” was for the district court, in the exercise of its “considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate.” Id. (emphasis in original). These factors include those set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974),abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), as well as the factors that other courts have applied in determining what “a reasonable, paying client would be willing to pay.”

The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of this case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Arbor Hill, 522 F.3d at 187 n. 3 (citing Johnson, 488 F.2d at 717-19).

The Arbor Hill Court held that, in determining what a reasonable, paying client would be willing to pay, the district court should consider, inter alia, the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively, the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might have initiated the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected little or no remuneration), and other returns (such as reputation) that an attorney might expect to gain from the representation. Arbor Hill, 522 F.3d at 184.

Determination of attorney fees in the 2nd Circuit

M.K. v. Sergi: Remarkably, this Connecticut district court case addresses matters that date back in part to 1995! It is of significance beyond the parties mainly for its restatement of the 2nd Circuit’s abandonment of the lodestar approach and the reiteration of the notion that attorney fees are to be determined at current market rates, not historical rates.

SRO orders 1:1 reading instruction

08-017: The SRO ordered a district to provide 1:1 reading instruction for 10 hours per week for the remainder of the 2007-08 school year, summer 2008 and the 2008-2009 school year and ordered that the district offer the parent training to enable her to acquire the necessary skills in multisensory reading strategies so that she could “support the implementation of her son's IEP”. The district was ordered to provide this service through the summer of 2008 and to consider it for the 2009 school year.

SRO denies district effort to remove child from the Judge Rotenberg Center

SRO 08-015: The child attended the Judge Rotenberg Center, a private residential school in Massachusetts. The JRC has come under a great deal of heat in recent times for its use of aversive behavioral techniques.
The school district wanted to move the child to a different residential placement. The parent wanted the child to stay at the JRC. The IHO ruled in favor of the district. In a rare victory at SRO for a parent, the SRO reversed saying that the district recommendations were based upon out of date evaluations. Interestingly, the SRO on this case was Robert Bentley, rather than Paul Kelly.

CSE must identify specific school placement on IEP

In this important Virginia case, A.K. v. Alexandria, the district court upon remand from the 4th circuit awarded reimbursement to the parents for a private school placement finding that the school district's failure to identify a particular school on the IEP deprived the child of a FAPE.

NYS SRO Paul Kelly continues the trend of reversing parent friendly hearing officer decisions

In the most recent batch of posted SRO decisions, SRO Paul Kelly continued his extraordinarily harsh treatment of parents and kids and his disrespect for hearing officers, by reversing every IHO reimbursement decision favorable to parents.

SRO 08-018: Kelly jumped through hoops to reverse a hearing officer’s award of reimbursement to a parent for a private school placement.

SRO 08-029: Kelly reversed IHO award of reimbursement to parent finding that district program was appropriate, that Kildonan was "inappropriately restrictive"(i.e. kid did not need residential) and that Kildonan did not address the child’s social skills deficits.

SRO 08-021: Not surprisingly, Kelly affirmed IHO denial of reimbursement based upon parent failure on prong 2.

Private Placement plus privately provided related service is appropriate

SRO 06-076

The SRO held that the private program offered at Sterling supplemented by speech-language therapy through an independent provider was appropriate to meet the student's needs in the LRE. The SRO has held on other occasions that a private placement was not appropriate for lack of a related service needed by the child despite that the parents were providing it privately.