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Saturday, June 14, 2008

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.

Friday, June 13, 2008

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.

Thursday, June 12, 2008

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.