Law Offices of H. Jeffrey Marcus P.C.
Tuesday, December 9, 2008
Monday, December 8, 2008
Tuesday, December 2, 2008
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.
Friday, November 21, 2008
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.
Thursday, November 20, 2008
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)
Tuesday, November 18, 2008
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.
Wednesday, October 22, 2008
Tuesday, October 21, 2008
Thursday, 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.
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.
Wednesday, September 17, 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).
Thursday, September 11, 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.
Tuesday, September 9, 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.
Friday, September 5, 2008
Thursday, August 28, 2008
Tuesday, August 26, 2008
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.
- the district had improperly predetermined the child’s placement
- the child was entitled to extended day services
- 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.
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.
Monday, August 25, 2008
- failure to provide “sufficient particulars as to the reasons why she challenges the impartial hearing officer's decision”;
- raising of issues in the memorandum of law rather than the petition;
- failure to include record cites in the petition; and perhaps the most stunning of all,
- the failure to include a table of contents in the memorandum of law.
Tuesday, August 19, 2008
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.
Monday, August 18, 2008
Friday, August 15, 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”.
Sunday, August 10, 2008
hearing per permission given by an impartial hearing officer at least five days prior to the hearing (20 U.S.C. § 1415[c][E][i][II]; 34 C.F.R. § 300.507[d][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.
Saturday, August 9, 2008
Thursday, August 7, 2008
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.
Tuesday, August 5, 2008
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.
Saturday, August 2, 2008
Thursday, July 31, 2008
Wednesday, July 23, 2008
NY State Ed issues memo explaining new law authorizing provision of special ed services to home schooled kids
Friday, July 18, 2008
Thursday, July 17, 2008
Wednesday, July 16, 2008
Failure to include transition plan for child in residential placement renders district program inappropriate
Monday, July 14, 2008
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.
Wednesday, July 9, 2008
Friday, June 27, 2008
Thursday, June 26, 2008
Thursday, June 19, 2008
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.
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.
Wednesday, June 18, 2008
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.
Tuesday, June 17, 2008
Saturday, June 14, 2008
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.
Friday, June 13, 2008
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.
Thursday, June 12, 2008
Wednesday, May 21, 2008
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.
Tuesday, May 13, 2008
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.