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Friday, August 15, 2008

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”.

Sunday, August 10, 2008

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.