Court grants TRO to enforce 504 plan

L.G. v. Port Townsend School Dist. No. 50, Slip Copy, 2009 WL 4730840, W.D.Wash.,2009: Student had a 504 plan pursuant to which the school was required to scan all written materials for use in a text to speech program. For 2009, the school advised that it would only scan certain subject matter material. The parents sought a temporary restraining order to compel the school to continue to scan all materials.
That Court recognized that a plaintiff seeking any remedy also available under the IDEA must exhaust the administrative process prior to commencing a court action. The Court rejected the district’s argument that the parent should be required to exhaust, finding instead that enforcement of a 504 plan is not relief available under the IDEA. The Court then employed a traditional TRO analysis and found that the student would suffer irreparable harm if the 504 plan was not continued. The Court ordered the district to implement the 504 plan.

This case is of interest and some significance because there is no pendency provision under §504 as there is in the IDEA. Thus, if a district proposes changes to a child’s 504 plan, those changes can ordinarily be implemented even if a parent disagrees.

SRO allows for provision of services by private provider

SRO 09-111: State Ed declared in a recent memo to school folks that school districts “do not have the authority to contract with independent contractors for instructional services which are the very core and function of a school district.” Some school districts are now refusing to contract with private reading instructors even when there are no school staff capable of providing the intensive reading services required by dyslexic kids. Hopefully, this recently published SRO decision will help to clarify school district obligations. In 09-111, Paul Kelly held that if the district is unable to provide the required reading services through a district provider, the district must use a private provider who may or may not be a certified teacher, but who is qualified to provide instruction in reading.

Court awards attorney fees after parent rejected settlement offer for inadequacy of attorney fees

Y.B. v. Williamson County Bd. of Educ., Slip Copy, 2009 WL 4061311 (M.D.Tenn.,2009): Parent rejected settlement proposals that initially contained no fees and subsequently contained inadequate fees. The matter went to hearing and the state level hearing officer ordered the enforcement of the terms of settlement to which the parties had agreed at the resolution session. The parent sued for attorney fees. The district argued that the parent was not a prevailing party–an argument rejected by the Court– and that even if the parent was a prevailing party, the fees should be limited to the amounts previously offered by the district on the theory that the district had offered the ultimately obtained relief prior to hearing.

Consistent with every court that has looked at this issue in the last few years, this court found that attorney fees are a legitimate consideration for a parent when assessing the adequacy of a settlement offer.

neither the Offer of Judgment nor the June 13, 2007 settlement offer make any mention of attorneys' fees or contain any proviso indicating who is the “prevailing party.” Moreover, even if either of these proposed agreements would have, at some point, acquired the “necessary judicial imprimatur” that would allow the plaintiff to seek attorneys' fees in this proceeding, both of these documents contain language clearly stating that the proposed settlement would be the “full and final agreement of all issues raised in the due process complaint in this matter.”

This language would have presented significant challenges to the plaintiff in terms of recovering attorneys' fees in a subsequent proceeding such as this one. Therefore, the relief that the plaintiff obtained from the AJ, whose Final Order did not foreclose further litigation on the attorneys' fees issue and explicitly deemed the plaintiff the “prevailing party,” was plainly “more favorable” than the offers of settlement, which were silent on the “prevailing party” issue, would have arguably foreclosed future litigation, and certainly put the issue of attorneys' fee recovery into significant question.

Virginia district court makes substantial attorney fee award and grants interest to parents

JP ex rel. Peterson v. County School Bd. of Hanover County, Va., 641 F.Supp.2d 499 (E.D.Va. 2009): Parents lost at hearing on their private school reimbursement claim. The district court reversed in favor of the parents; the 4th Circuit Court of Appeals vacated and remanded for reconsideration finding that the district court had failed to accord sufficient deference to the hearing officer’s decision. Upon reconsideration, the district court again found for the parents. The court awarded interest and credit card transaction fees to compensate for tuition payments made on their credit cards. The court also found that the parents were substantially justified in rejecting the district’s offer of judgment due to the inadequacy of the amount of attorney fees offered. The court ultimately awarded the attorneys over $300,000 in fees. The court’s attorney fee analysis is worth reading.

Failure to provide prior notice does not justify granting of motion to dismiss

Erin K. v. Naperville School Dist. No. 203, 2009 WL 3271954, N.D.Ill.,2009: Parents did not give prior notice of intent to make reimbursement claim prior to placing their daughter at a residential facility. The hearing officer dismissed the parents’ hearing request for failure to give proper notice. The district court reversed. The Court explained that “section 1412(a)(10)(C)(iii) provides that reimbursement may be reduced if proper notice was not given. It is not an automatic denial, as a matter of law, as the Hearing Officer concluded in this case. Rather, a hearing officer is permitted to consider all of the circumstances and then fashion an equitable result based on his or her discretion.”

Rule 56.1 statements not required in IDEA cases

T.Y. v. NYC, 2nd Circuit, decided 10/9/09, 08-3527-cv: In the course of affirming the District Court’s ruling in favor of the NYC Board of Ed., the 2nd Circuit addressed the role of the summary judgment motion in IDEA cases and in particular, the rule 56.1 statement of material facts not in dispute. The parent’s attorney argued that the 56.1 statement was not required and that it was improper for the district to have submitted a 56.1 statement. The district court castigated the parent’s attorney for not filing a 56.1 statement and not responding to the district’s 56.1 statement. The District Court characterized the 56.1 statement as “necessary” stating that “it goes to the heart of the Court’s determination of whether or not summary judgment is appropriate.” The 2nd Circuit disagreed stating that:

[a] Rule 56.1 statement, while not required, may assist the court’s inquiry into whether IDEA procedures were followed and whether the result was reasonably designed to confer educational benefits. But while a Rule 56.1 statement may assist the court in reviewing
particular issues, it is not in and of itself dispositive. The district court's characterization of Appellee’s Rule 56.1 statement as "necessary" was therefore not entirely correct. The court's error was of no consequence, however, because we are satisfied that the court conducted an independent review and carefully reviewed the record, as is required by the statute.

SRO rejects Connors claim and reimbursement claim

SRO 09-079: This case was litigated as both a reimbursement case and a Connors prospective funding case. First, SRO Paul Kelly rejected the parent’s reimbursement claim noting that although there was contract language purportedly obligating the parent to pay the school in full, no payments had been made and there was no evidence that the school would seek payment. Kelly also found that the notice of intent to make a reimbursement claim was defective in that the parent utilized a form that did not provide specific details of the parent’s concerns.

As for the Connors claim, Kelly found that it was the private school that incurred the financial burden for the child’s education going forward, that the private school has no entitlement to relief, and that the parent cannot assert a claim on behalf of a private entity that lacks standing under the IDEA to maintain a claim against a school district in its own right.

Education Law §3602-c places obligations upon public school, not private school

In re Pelose, --- N.Y.S.2d ----, 2009 WL 3152988, N.Y.A.D. 4 Dept.,2009: Parent challenged the private school’s decision to expel their child. The New York State Appellate Division 4th Department, an intermediate level appellate court, determined that the private school has no obligation to provide services to a child with a disability. Rather, the obligation falls on the public school district. Further, the appeal procedures afforded to parents of kids with disabilities apply to public schools, not private and therefore, the private school “was not required either to undertake or to await the outcome of a manifestation review prior to expelling” the child.

Parent was justified in rejecting settlement agreement

As previously noted in this blog, certain attorneys in New York State have successfully moved to dismiss parents’ hearing requests by offering to settle without attorney fees or in one case, by offering to have the CSE revisit the issues raised by the parents (SRO 06-109, 07-122, 08-008). SRO Paul Kelly has uniformly sided with the districts on these cases. The federal courts that have addressed the issue have sided with the parent. In the latest and strongest worded of such decisions, the Western District of Texas federal court last week decided Ruben A. v. El Paso Independent School Dist., 657 F.Supp.2d 778, 2009 WL 3094859(W.D.Tex. Sep 25, 2009). The relevant section follows:

Ruben A.'s purpose in filing his administrative due process complaint was to compel EPISD to undertake actions it was already legally bound to take. EPISD had failed to evaluate R.A. more than ten months after it was informed such evaluations were necessary. Only Ruben A.'s administrative action compelled the evaluations. By failing to properly evaluate R.A., R.A.'s IEP was based on inadequate information, which meant he was not receiving a FAPE. EPISD's settlement offers never acknowledge its failure to evaluate R.A. The numerous proposed settlement agreements variously required Ruben A. to waive his right to a due process hearing; to “acquit” EPISD of any claims; to dismiss his due process complaint with prejudice; to release EPISD from paying any of Ruben A.'s attorney's fees; or to accept only $750.00 in attorney's fees.

In light of EPISD's failures, Ruben A. was justified in rejecting EPISD's efforts to deny liability or to make Ruben A. waive any right to attorney's fees under the IDEA. He was entitled to proceed to an impartial due process hearing. Furthermore, the Administrative Record reveals EPISD rejected Ruben A.'s proposed consent order, which could have otherwise ended this matter earlier, prior to the due process hearing. Likewise, EPISD rebuffed Ruben A.'s efforts to enter into mediation. When viewing these facts in isolation, just as EPISD asks the Court to view Ruben A.'s rejections of EPISD's proposed settlement offers, EPISD appears to be the one protracting this litigation. In fact, one could reasonably conclude it was only EPISD's refusal to enter into Ruben A.'s proposed consent order or into mediation, which led to the due process hearing and the instant litigation. Similarly, had EPISD refrained from filing an untimely counterclaim; asserting issues, which the Court had already decided, such as subject matter jurisdiction; filing frivolous motions, such as its motion to strike Ruben A.'s Motion for Attorney's Fees, this litigation may have ended much sooner.

A parent, whose child has suffered as a result of a school district's failings, should not be strong-armed into compromising a valid claim, for which the parent has had to seek legal counsel, because a school district purports to offer all the proposed relief listed in the administrative due process complaint. Not only does the IDEA provision setting forth the procedure for filing a due process complaint envision that there can be relief or remedies available that are not alleged in a due process complaint, courts have recognized this to be the case.FN49 Ruben A. did not protract this litigation and he was justified in rejecting a settlement offer, for which the parties could not reach an agreement.

In rejecting EPISD's proposed settlement offers and pursuing his administrative due process claim to its procedural end, Ruben A. secured a judgment, which bears judicial imprimatur. It holds EPISD accountable for its statutory violations, including finding EPISD failed to properly and adequately evaluate R.A. and EPISD denied R.A. a FAPE; orders EPISD to properly evaluate R.A.; requires EPISD to conduct an additional evaluation, which only became apparent after Ruben A. filed his administrative due process complaint, which compelled EPISD to undertake the overdue evaluation; and forces EPISD to convene an ARD Committee to consider the new evaluations and develop a new IEP for R.A. Likewise, Ruben A. did not have to waive his statutory right to attorney's fees in obtaining the warranted relief. Hence, Ruben A. received more relief than what was offered to him in EPISD's proposed settlement agreements, and therefore, IDEA'S bar for attorney's fees does not apply to him.

SRO rejects NYC argument that placement into for profit school precludes the right to reimbursement

see SRO 09-085. More importantly, the EDNY just rejected this argument in AD v. NYC, 110 LRP 9168 (EDNY, 2/9/10) (Judge Cote) (kudos to Steve Goldstein, with a tad bit of help by me).

Pendency in neighboring district

George A. v. Wallingford Swarthmore School Dist., 2009 WL 2837717, E.D.Pa.,2009: S resided in district A, but for many years had been placed at Strath Haven in district B. S’s 08-09 IEP placed him again in District B. In October of 2008, S was involved in an altercation and as a result, he was placed in an alternative school. The parent reluctantly agreed to this 45 day placement, but at all times thereafter sought his return to Strath Haven in District B. S’s 09-10 IEP recommended placement in a district A school. The parent filed a hearing request apparently against district B and asserted that pendency was Strath Haven. The Court agreed rejecting all district arguments including that district B was not the agency responsible for S’s education.

SRO holds that pendency can be applied retroactively

SRO 09-076: Parents sought reimbursement each year over a multi-year period. SRO rules against parent on the equities in year 1. Parents appeal to district court. Parents and district settle year 2 but agree that the settlement agreement will not be used to establish pendency. Parents submit hearing request for year 3. Hearing is delayed until spring at which time the district court rules in the parents’ favor, thus awarding reimbursement for year 1(see N.R. v. NYC). IHO determines that the district court decision establishes pendency at the private school and dates it back to the beginning of the school year including the summer. District appeals to the SRO contending that pendency should not attach until the date of the district court decision or alternatively, that it should not date back prior to submission of the hearing request. SRO Paul Kelly upheld the decision of the IHO reasoning first that although he had denied the parents year 1 claim on equitable grounds, he had ruled in the parents’ favor on prong 2; i.e. he had agreed that the parental placement was appropriate. Next, Kelly cited to the 2nd Circuit decision in Mackey which dealt with similar although not identical circumstances. The Mackey Court applied pendency retroactively. Then, without coming right out and saying it, he basically said that had he not gotten it wrong, there would have been no dispute that pendency would have been the private placement from July forward.

...but for the denial of tuition reimbursement in July 2007 and the passage of time that elapsed while the parent ultimately secured the relief she sought in District Court, the parties would have concluded that the student's "then current placement" after July 2007 was the Rebecca School while the parent pursued her claims for tuition reimbursement for the 2007-08 and 2008-09 school years.

SDNY reverses SRO again

Bougades v. Pine Plains,______ (SDNY August 24, 2009): In a fact intensive and well reasoned decision, the SDNY held for the parent in this tuition reimbursement case despite rulings by the SRO and IHO in favor of the district. The Court defined the issues as whether

(1) the IHO and SRO decisions are entitled to deference even though they are premised on a faulty understanding of a key aspect of the factual record; and (2) M.B.'s 2003-04 IEP can be considered adequate when it did not suggest any method for addressing M.B.'s educational needs other than through the provision of the same services and program modifications (or lack thereof) that had proven inadequate the previous year.

SDNY reverses SRO again

G.R. v. New York City Dept. of Educ., 2009 WL 2432369(S.D.N.Y. Aug 07, 2009): Parent sought reimbursement for private placement at Winston Preparatory School. NYC had conceded on prong one as they had failed to offer the student a placement. The IHO ruled against the parent on prong two finding that there was insufficient proof at that time of R.R.'s progress at WPS and that WPS was not providing speech and language therapy to R.R. She left open the possibility of plaintiff renewing her request for reimbursement once more evidence of R.R.'s progress was available, and therefore denied the application without prejudice. SRO Paul Kelly denied the parent’s appeal and sustained the district’s appeal, holding that it was error to dismiss without prejudice–i.e. the dismissal was final. In a very common sense opinion, the SDNY (Judge Griesa) reversed the SRO finding that there was sufficient proof of the appropriateness of WPS.

9th Circuit rejects attack on Rowley

J.L. v. Mercer Island, --- F.3d ----, 2009 WL 2393323, C.A.9 (Wash.),2009: This case is the latest unsuccessful parent effort to convince a court that Congress superceded the Rowley standard by amending the IDEA. Of particular note, the Court found that

three omissions suggest that Congress intended to keep Rowley intact. First, Congress did not change the definition of a free appropriate public education in any material respect. If Congress desired to change the free appropriate public education standard, the most logical way to do so would have been to amend the free appropriate public education definition itself. Second, Congress did not indicate in its definition of “transition services,” or elsewhere, that a disabled student could not receive a free appropriate public education absent the attainment of transition goals. Third, Congress did not express disagreement with the “educational benefit” standard or indicate that it sought to supersede Rowley. In fact, Congress did not even mention Rowley.

District failure to properly serve appeal papers results in SRO affirmance of reimbursement award

SRO 09-062 and 09-075: Parents prevailed at hearing on private school reimbursement claim. NYC attorneys served appeal papers on parent’s attorney despite requirment that papers be personally served upon the parent. SRO held that service was improper and thus, refused to consider the district’s appeals.

U.S signs the U.N. Convention on the rights of persons with disabilities

On July 30, 2009, the United States became one of 142 countries that have signed the UN Convention on the Rights of Persons with Disabilities. The purpose of this convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” Notable with respect to the rights of students with disabilities is the following:

*In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. Article 7, §2.

*States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to “the full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity” and
the “development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential.” Article 24, §1.

*Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion. Article 24, §2.

*Signatory nations (i.e. the U.S. and others) agree to “adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention” and “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”

Thus, our country has made a commitment to the world at large that we will engage in a course of conduct that, inter alia, maximizes the academic development of children with disabilities. Therefore, arguably, any decision made, subsequent to the signing of this convention, that enforces the traditional, overly restrictive, access only interpretation of Rowley, would be at odds with this commitment that we as a nation have made to maximize, rather than to merely provide an opportunity to acquire meaningful benefit.

Assessment of whether offer was more favorable than results obtained at hearing

Hawkins v. Berkeley: A school district can limit its ultimate exposure to attorney fees by making a settlement offer that exceeds that which the parent ultimately obtains after all legal proceedings have been completed. The evaluation of whether the district’s offer is more favorable than the relief obtained can be quite complex. There is a very helpful discussion in this case. Although the case is a California case, the Court cites to the 2nd Circuit.

To be sure, the difference between the kinds of relief obtained
and offered is like comparing apples and oranges, and so there is
some difficulty in evaluating whether this aspect of the
settlement agreement was more or less favorable. Therefore, the
Court must determine who bears the burden of proof — i.e., is it
the District's burden to show that the agreement was less
favorable or Mr. Hawkins's burden to show that the agreement was
more favorable? In the context of Rule 68, courts have held that
it is the burden on the defendant to show that the settlement
offer was more favorable than the judgment. See Reiter v. MTA
N.Y. City Transit Auth., 457 F.3d 224, 231 (2d Cir. 2005) (stating
that, "[i]n determining the value of the relief, the defendant
bears the burden of showing that the Rule 68 offer was more
favorable than the judgment"); Milton v. Rosicki, Rosicki &
Assocs., P.C., No. 02 CV 3052 (NG), 2007 U.S. Dist. LEXIS 56872,
at *8-9 (E.D.N.Y. Aug. 3, 2007) (noting the same); Jankey v.
Beach Hut, CV 05-3856 SVW (JTLx), 2006 U.S. Dist. LEXIS 96365, at
*23 (C.D. Cal. Dec. 19, 2006) (noting the same). As explained in
one legal treatise, it is often difficult to compare nonmonetary
forms of relief but,

[a]s a guiding principle ..., it would be best to
view the defendant as having the burden of
demonstrating that the offer was superior. Although it
is true that the rule itself makes the cost-shifting
consequences apply unless the judgment is more
favorable, suggesting that the burden to show that the
judgment is more favorable should be on the plaintiff,
that wording assumes the comparison is not difficult to
make. Rule 68 is actually a tool for defendant to use,
and defendant alone determines the provisions of the
offer. Since defendant has drafted those provisions,
the courts generally interpret the offer against
defendant. Consistent with that, the burden should be
on defendant to demonstrate that those provisions are
in fact more favorable than what plaintiff obtained by
judgment.

Wright, et al., 12 Fed. Prac. & Proc. Civ. 2d § 3006.1. The
settlement offer provision in the IDEA is modeled on Rule 68, and
therefore the Court concludes that the burden is on the District,
as the defendant in the case, to show that the settlement
agreement was less favorable. In light of the discussion above,
the District has failed to meet that burden.[fn8]

fn 8: That the burden is appropriately placed on the District is also
supported by the legislative history for the Handicapped
Children's Protection Act, the IDEA's predecessor. See 132 Cong.
Rec. S. 9277 (1986) (co-sponsor Sen. Simon) (stating that a
"court should not ... enter into difficult attempts to make
complex or arbitrary comparisons of different forms of relief"
and that, "[f]or a court to deny an award of fees on the basis of
a rejection of an offer, it must be manifestly clear that the
relief offered was as favorable as that obtained") (emphasis
added).

Parent justified in rejecting settlement offer for failure to include reasonable attorney fees

Hawkins v. Berkeley: In this California district court case, the Court held that the parent was substantially justified in rejecting a prehearing district settlement offer for failure to include adequate attorney fees.

Bullying

This excellent document from the Department of Justice addresses the problem of bullying in the school environment.

Pendency determined by state complaint process

Millay v. Surry, 584 F. Supp. 2d 219 (D.C. Maine 2008): A Maine District Court held that a decision rendered by the State of Maine Education Department in response to a complaint filed by the parent through the complaint resolution process established the child’s pendency placement during subsequent proceedings.

10th Circuit rules that eligibility under IDEA does not necessarily make a student eligible under 504

Ellenberg v. New Mexico Military Institute, 2009 WL 1977486 (10th Cir. 2009): According to the 10th Circuit Court of Appeals, eligibility for special education and having an individualized education program under the IDEA demonstrates a child's disability, but not necessarily that the disability “substantially limits” the major life activity of learning. Therefore, IDEA eligibility does not necessarily yield 504 eligibility.

OSERS on Discipline

OSERS Q and A on discipline, revised June 2009.

4th Circuit allows parent to proceed on unreasonable restraint claim

H.H. ex rel. H.F. v. Moffett, 2009 WL 1931203 (4th Cir. 2009): Parent alleged that school district personnel “maliciously kept [her child] restrained in her wheelchair for hours at a time during the school day, while they ignored her, verbally abused her, and schemed to deprive her of educational services.” This case is in the preliminary stages. The Circuit Court found that the evidence demonstrated that the alleged conduct violated the child's clearly established right to freedom from undue restraint under the Fourteenth Amendment, and that therefore, the teacher was not entitled to qualified immunity as a matter of law.

Impact of legislative stalemate on special education law in New York State

As those of us in New York State are aware, legislative activity in Albany appears to have ground to a halt. Unfortunately, many state laws governing special education expired today. There is no indication that the legislature took action to extend these provisions. Of particular note, Education Law §4404(3)(a) expressly provided a 4 month statute of limitations for appealing an adverse State Review Office decision. This section expired today. In its stead is a provision that does not include a period of time during which an appeal must be commenced, thus adding an element of uncertainty as to whether the 4 month period contemplated by Article 78 or the 3 month Statute of Limitations provided by the IDEA would apply.

Next, students with IEPs who attend private schools are presently entitled to special education services from the district of location of the private school. As of July 1, it appears that the district of residence will be the responsible district.

SRO orders provision of ESY services and test accommodations

SRO 09-052: CSE recommended ESY services for 06-07 and 07-08 school years. The March 14, 2008 CSE removed ESY services from the student's IEP for the 2008-09 school year. SRO Paul Kelly stated that “[n]either the March 14, 2008 IEP nor the testimony and evaluations presented at the impartial hearing demonstrated that the student's needs changed such that he was no longer at risk of substantial regression during the summer months. Based on the above, I find that the district did not provide sufficient evidence to meet its burden to support the March 2008 CSE's determination to remove ESY services from the student's 2008-09 program proposed in the March 2008 IEP. Accordingly, the hearing record does not demonstrate that ESY services were properly removed from the student's program, thereby denying the student a FAPE.”

Kelly also rejected the district’s effort to remove testing accommodations, Kelly stated similarly that “ the district did not present sufficient evidence to support its decision to change the student's testing accommodations.”

Supreme Court finds for parents in Forest Grove Case

Forest Grove v. T.A. : The following is a summary prepared by the Supreme Court’s reporter of decisions.

After a private specialist diagnosed respondent with learning disabilities, his parents unilaterally removed him from petitioner public school district (School District), enrolled him in a private academy, and requested an administrative hearing on his eligibility for special-education services under the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §1400 et seq. The School District found respondent ineligible for such services and declined to offer him an individualized education program (IEP). Concluding that the School District had failed to provide respondent a “free appropriate public education” as required by IDEA, §1412(a)(1)(A), and that respondent’s private-school placement was appropriate, the hearing officer ordered the School District to reimburse his parents for his private-school tuition. The District Court set aside the award, holding that the IDEA Amendments of 1997 (Amendments) categorically bar reimbursement unless a child has “previously received special education or related services under the [school’s] authority.” §1412(a)(10)(C)(ii). Reversing, the Ninth Circuit concluded that the Amendments did not diminish the authority of courts to grant reimbursement as “appropriate” relief pursuant to §1415(i)(2)(C)(iii). See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370.

Held: IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school. Pp. 6-17.

(a) This Court held in Burlington and Florence County School Dist. Four v. Carter, 510 U. S. 7, that §1415(i)(2)(C)(iii) authorizes courts to reimburse parents for the cost of private-school tuition when a school district fails to provide a child a FAPE and the private-school placement is appropriate. That Burlington and Carter involved the deficiency of a proposed IEP does not distinguish this case, nor does the fact that the children in Burlington and Carter had previously received special-education services; the Court’s decision in those cases depended on the Act’s language and purpose rather than the particular facts involved. Thus, the reasoning of Burlington and Carter applies unless the 1997 Amendments require a different result. Pp. 6-8.

(b) The 1997 Amendments do not impose a categorical bar to reimbursement. The Amendments made no change to the central purpose of IDEA or the text of §1415(i)(2)(C)(iii). Because Congress is presumed to be aware of, and to adopt, a judicial interpretation of a statute when it reenacts that law without change, Lorillard v. Pons, 434 U. S. 575, 580, this Court will continue to read §1415(i)(2)(C)(iii) to authorize reimbursement absent a clear indication that Congress intended to repeal the provision or abrogate Burlington and Carter. The School District’s argument that §1412(a)(10)(C)(ii) limits reimbursement to children who have previously received public special-education services is unpersuasive for several reasons: It is not supported by IDEA’s text, as the 1997 Amendments do not expressly prohibit reimbursement in this case and the School District offers no evidence that Congress intended to supersede Burlington and Carter; it is at odds with IDEA’s remedial purpose of “ensur[ing] that all children with disabilities have available to them a [FAPE] that emphasizes special education … designed to meet their unique needs,” §1400(d)(1)(A); and it would produce a rule bordering on the irrational by providing a remedy when a school offers a child inadequate special-education services but leaving parents remediless when the school unreasonably denies access to such services altogether. Pp. 8-15.

(c) The School District’s argument that any conditions on accepting IDEA funds must be stated unambiguously is clearly satisfied here, as States have been on notice at least since Burlington that IDEA authorizes courts to order reimbursement. The School District’s claims that respondent’s reading will impose a heavy financial burden on public schools and encourage parents to enroll their children in private school without first trying to cooperate with public-school authorities are also unpersuasive in light of the restrictions on reimbursement awards identified in Burlington and the fact that parents unilaterally change their child’s placement at their own financial risk. See , e.g., Carter, 510 U. S., at 15 . Pp. 15-16.

523 F. 3d 1078, affirmed.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

SRO encourages use of video conferencing instead of home instruction

SRO 09-054: This case is interesting in good part because of a footnote in which SRO Paul Kelly states:

I note that the use of videoconferencing between the school and the student's home may enhance the student's academic program, eliminate the need for the district to maintain home instructors for the student in each
academic content area, and allow the student and his classmates to share a common learning environment. Therefore, I encourage the district to consider providing this form of assistive technology to the student when
the CSE next convenes.

This footnote could be of significance in future home schooling cases as it appears to embrace modern technology in a way that could result in a win/win situation for students and school districts.

SRO upholds IHO decision despite no answer from district on appeal

SRO 09-049: The parent appealed; the district failed to answer. The SRO upheld the IHO determination for the district. In SRO 09-048, the SRO considered a cross-appeal by a parent despite the failure by the parent to file an answer to the district's cross-appeal. The SRO cited to Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dep't 2002], for the proposition that the SRO is required examine the entire hearing record and make an independent decision based on the entire hearing record.

NYS: legislative developments

http://assembly.state.ny.us/leg/?bn=A08398(memo); http://assembly.state.ny.us/leg/?bn=A08398&sh=t(text)

A bill has been introduced that includes a number of significant changes affecting the rights of parents of kids in special education. The following are highlights:

1. Section 8 would amend S 4404(1)(a) of the Education Law to create an exception to the two year statute of limitations for due process for tuition reimbursement claims for unilateral parental placements. The bill would require that a complaint seeking tuition reimbursement for the unilateral parental placement of a student in a private school be presented not more than one hundred and eighty days from the unilateral placement by the parent or person in parental relation in the private school. This section would take effect September 1, 2009.

2. elimination of the separate consent requirement for the initial provision of the summer component of a 12 month program

The following proposed changes affect privately placed kids and their parents:

1. the Education Law 3602-c deadline for written request for services would be changed to April 1 for parents of kids who have already had an IEP developed and implemented
2. mandatory mediation prior to hearing; where a due process complaint involveschild find requirements, the federal rules would apply and mediation would continue to be optional.
3. school district of location would now be able to provide a 12 month program(privately placed kids)
4. This bill would also add language to clarify, both for July and August services and services provided during the regular school year, that a student parentally placed in a nonpublic school has no entitlement under S 3602-c to the provision of a special class or integrated co-teaching services. Section 3602-c is intended to authorize the provision of special education programs and services to supplement the regular educa- tion instruction provided by the nonpublic school. Unlike related services, resource room services, consultant teacher services and supplementary aids and services, which are designed to supplement regu- lar education instruction, a special class or integrated co-teaching services necessarily involves a teacher providing a portion of the core regular educational program of the student. Such core instruction should be provided by the nonpublic school, and would be both costly and burdensome for the school district of location to provide.
5. S4402(4)(d) of the Education Law would be amended to provide thatwhere the board of education of a student’s school district of residence provides transportation up to a distance of fifty miles to and from a nonpublic school which a student identified with a disability attends for the purpose of receiving services or programs from the nonpublic school which are similar to special education programs and services recommended for the student by the district of residence, the student would not be entitled to special education programs and services from the school district of location pursuant to S 3602-c of the Education Law . As a condition of eligibility for such transportation, the parent or person in parental relation to the student would be required to consent to the provision of notice by the school district of residence to the chairperson of the committee on special education of the school district in which the nonpublic school is located. Such notice must be provided by the district of residence no later than thirty days after commencing transportation services.

Unless otherwise indicated in the statute, the changes would take effect on June 30, 2009. Some of the changes to 3602-c would take effect in 2010.

IMPORTANT MESSAGE FOR HOME SCHOOLERS AND PARENTS WHO HAVE ENROLLED THEIR KIDS IN PRIVATE SCHOOLS

For families that want their kids to get special education services, the revised Education Law §3602-c requires that the parent submit a written request for special education services by June 1st. This is a must do!

Supreme Court nominee Sotomayor

President Obama has nominated Judge Sonia Sotomayor to replace Judge Souter on the Supreme Court. Not only would she be just the third female Supreme Court justice and the first Hispanic, she also appears to have a good track record on disability issues. As a sitting judge on the 2nd Circuit, she authored the 2002 Murphy v. Arlington decision(affirming the notion that SRO decision awarding reimbursement to parent establishes pendency and also excusing parent proceeding on behalf of child in federal court). She was also the author of the Bartlett v. NYS Bd. of Law Examiners case in which the court found that a learning disabled law student had been wrongfully deprived of accommodations on the bar exam. Notably, she has not been the author of any of the recent decisions, most of which are overly deferential to the State Review Officer.

She was on the panel of a number of 2nd Circuit disability related special education cases. Somoza is very important for the proposition that district’s volutary provision of services does not deprive a court or hearing officer of jurisdiction to “determine the nature of the entitlement at issue”. In State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Bd. of Ed, the court allowed an agency access to student records to allow the agency to carry out an investigation of abuse claims. In Frank G., the court affirmed the right of a parent to seek reimbursement for a private placement when the child had not previously received special ed services. This case also has a very well reasoned prong 2 analyis. In A.R. v. NYC, the 2nd Circuit held that hearing officer decisions and consent decrees give rise to prevailing party status and thus, attorney fees are not barred by Buckhannon.

SRO upholds reimbursement award to parent of home schooled student

SRO 09-033: District failed to offer a placement. Soon after the school year began, Parent notified the District(NYC) that she intended to home school her child. She then cobbled together a program that included 1:1 services from Lindamood-Bell among other things. IHO awarded reimbursement to parent despite the failure to provide notice of intent to seek reimbursement. SRO affirmed emphasizing that Parent’s ongoing efforts to work with the District significantly factored into his decision.

Counterclaim is not subject to IDEA statute of limitations

Jonathan H. v. The Souderton Area School Dist., 562 F.3d 527 (3rd Cir. 2009): School district's counterclaim, challenging award of compensatory education in IDEA action, was not “action” within meaning of limitations period applicable to party bringing civil action under IDEA, and, thus, counterclaim could be brought beyond IDEA's 90-day limitations period.

SDNY reverses SRO yet again on reimbursement claim

N.R., on behalf of T.R. v. NYC Bd of Ed., 07-CV-9648, 2009 WL 874061(SDNY, decided 3/31/09)(Judge Jones): At hearing, the district conceded on prong 1, that it failed to offer a FAPE. The IHO found against the parents on prong 2 and thus, rejected the parents claim for reimbursement for a private placement at the Rebecca School. The IHO did not make a determination on the equities. SRO Paul Kelly reversed on prong 2 in favor of the parents, but denied the claim on the equities(SRO 07-038). In a very well reasoned decision, the SDNY granted the parents motion for summary judgment. The Court found that the parents had cooperated throughout the placement process. The denial of FAPE was premised in part on the district failure to offer a site specific placement prior to the start of the school year. The Court noted that there are no cases supporting the denial of reimbursement on the equities where the district has failed to offer the child a placement.

SDNY rejects parent appeal of SRO decision in Connors type case

S.W. v. NYC Bd. of Ed., 2009 WL 857549 (SDNY March 30, 2009): In affirming SRO 07-032, the SDNY(Judge Koeltl) held that the parent failed to give notice of her claim for funding of the private placement. The parents sought direct payment to the private school as opposed to reimbursement. As such, this was what is colloquially referred to in N.Y. as a “Connors” case. By deciding the case on the equities, the Court avoided having to decide the issue of whether a parent may be entitled to prospective relief in the form of direct payment to a private school, but the Court does discuss the issue and concludes that “ In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.” This case is a must read for attorneys litigating Connors cases. There is extensive treatment of whether the parent has standing to bring such a claim. Here, the Court answered in the affirmative.

SDNY reverses SRO again on reimbursement claim

Eschenasy v. New York City Dept. of Educ., Slip Copy, 2009 WL 804120
S.D.N.Y.,2009: IHO found for the parent on this reimbursement claim for a private placement at the Elan School. SRO reversed in case number 06-077 finding that she was not emotionally disturbed despite the child’s history of social maladjustment, cutting behavior, lying, stealing, inappropriate sexual conduct, purging, and a variety of other serious behavioral and emotional problems. The SDNYdisagreed and reversed the SRO. Note that the SRO just recently decided the next chapter in this same case in SRO 08-099, again reversing an IHO determination of eligibility and an award of reimburement at the Elan School.

After finding that the child met two of the five categories in the definition of emotionally disturbed, the Court then determined that her symptoms had adversely affected educational performance. The Court highlighted that SRO Kelly had essentially mischaracterized the evidence in the record in concluding that the child’s emotional problems had not adversely impacted her educational performance stating:

Despite acknowledging testimony in the record that Ann failed several courses in high school, the SRO stated that there was no documentary evidence of failing grades nor was there any testimony from her teachers or any indication that she had been held back a grade. Based on this lack of evidence, the SRO found that Ann had not shown that her emotional problems adversely affected her educational performance.

The Court allowed a transcript as additional evidence reasoning that

the documents are relevant and useful to the analysis of whether Ann's emotional problems have affected her educational performance. This is especially true in light of the SRO's confusing statements about Ann's failing grades and his suggestion that there was insufficient documentary evidence that her school work had been adversely affected. In addition, this evidence directly contradicts defendants' argument that Ann has been able to obtain passing grades despite her emotional problems. I therefore conclude that the usefulness of these transcripts outweighs any procedural considerations weighing against their admission.

Finally, while ruling that the equities favored reimbursement, the equities weighed against an award of attorney fees because the parents were partially to blame for the district’s failure to conduct an evaluation and classroom observation prior to the unilateral placement.

Pendency does not absolve the district of obligation to develop IEP

SRO 08-026: SRO found that district was not relieved of its obligation to develop an IEP during the course of hearing. SRO Paul Kelly rejected the district's contention that it did not have to develop an IEP for the student because he was receiving services through pendency. Kelly noted that “[c]onducting CSE meetings and formulating and offering new IEPs during the course of pending litigation is not prohibited under the IDEA provided that there is adherence to pendency requirements (Letter to Watson, 48 IDELR 284 [OSEP 2007]; see Application of a Child with a Disability, Appeal No. 07-122).”

SRO reverses IHO in unusual Kildonan case

SRO 08-055: This case started out as a reimbursement case. By the time the hearing rolled around, the parents decided to continue the child in the district placement and to request prospective placement at Kildonan while challenging the appropriateness of the placement. On the last day of hearing, the parents withdrew their request for placement at Kildonan, but still sought a ruling from the IHO on the appropriateness of Kildonan, reasoning that it could give them pendency in the future. The IHO ruled for the parent; SRO Kelly reversed. He found for the parent on prong 1, but found that the parent had not established the appropriateness of Kildonan. He employed the 3 prong reimbursement analysis with no discussion as to why he was doing so in a case that had become something other than a reimbursement case. Nor did he mention or discuss Connors.

SRO excuses parent failures in awarding reimbursement

SRO 08-088: SRO Paul Kelly reversed an IHO denial of reimbursement. Kelly excused the failure by the parent to allege in the hearing request that the district’s proposed placement was unavailable at the start of the school year. He found that the issue had been litigated at hearing without objection by the district, and that that thus excused the failure by the parent to raise the issue in the hearing request. He then excused the parent’s failure to adequately inform the district of her concerns in the notice of intent to seek reimbursement. His rationale was that it was reasonable for the parents to place their child in 07-08 after the district failed to offer a placement in 07-08 and that the failure by the parent to detail their concerns did not prevent the district from addressing their concerns.

Can district take positions not raised in response to hearing request

The short answer is yes, they probably can. At least in New York State where SRO Paul Kelly holds court. But, in SRO 08-145, the parent argued that the district should be foreclosed from arguing the inadequacy of the parent’s notice of intent to seek reimbursement because the district had not raised this argument in their response to the hearing request. Kelly left open the possibility of holding for the parent in the future on this issue by stating

The parents argue that the district did not properly raise the issue of whether the parents
provided notice under 20 U.S.C. § 1412(a)(10)(C)(iii)(I) because it was not raised in the district's
response to the parents' due process complaint notice (see 8 NYCRR 200.5[i][4][i]). However,
the hearing record shows and the parents admit in their petition (Pet. ¶¶ 26-27, 30, 46), that at the impartial hearing the district's counsel cross-examined the student's mother on this issue and the parents did not object to that line of questioning (Tr. pp. 124-25). Furthermore, the district's
counsel reiterated this argument during closing statements (Tr. pp. 147-48) and the impartial
hearing officer appropriately made a determination on the issue.

SRO affirms denial of reimbursement claim despite unavailability of district recommended placement

SRO 08-157: No surprise that the SRO Kelly affirmed the denial of reimbursement, but the case is notable for Kelly permitting a recommendation for placement into a class for which there were no openings. And the recommendation was made 2 weeks prior to the start of school. See SRO 08-088 for case in which the SRO found that the IHO "should have considered wheterh the district had a classroom seat available for the student at the beginning of the 2007-2008 school year, and if not, he should have determined whether the failure to do so rose to the level of denying the student a FAPE".

Parents defective notice does not preclude reimbursement

SRO 08-062: Parents prevailed at hearing on reimbursement claim. On appeal, district conceded prong 1 and contested prongs 2 and 3. Of note, the district argued that the parent should be denied reimbursement on equitable grounds for having provided inadequate notice of intent to make a reimbursement claim. SRO Paul Kelly agreed that the parent “failed to state her concerns regarding the proposed public placement and was therefore not in compliance with notification requirements.” But, Kelly excused the violation because the district promptly inquired as to what the parent’s concerns were; the parent left two messages for the district and the district did nothing in response.

SRO affirms IHO decision re denial of FAPE

SRO 08-060: School district attorney David Oakes filed a motion to dismiss the parent’s hearing request. This is a strategy that he used successfully in 08-008 and 07-122 and appears to be using as a matter of course. Here, however, the IHO denied the motion and ultimately ruled in the parent’s favor. The SRO affirmed, rejecting the district argument that the parent’s claims were moot and also finding that the IEP was not appropriate. Of note, the district had identified particular needs for which the IEP did not contain specific goals. Kelly noted that deficiencies in the IEP “may not have risen to the level of denying the student a FAPE on their own, those deficiencies, in concert with the failures to properly implement the IEP ..., did deny the student a FAPE.” He further noted, “The 2007-08 IEP failed in three ways: it did not offer a FAPE at the time it was developed, it was not properly implemented, and it was not revised as appropriate during the year when the student's social, emotional and behavioral needs increased.”

It is interesting to note that Kelly rejected the district’s argument that it was “a violation of the mootness doctrine for the impartial hearing officer to order the district to take several actions during the remainder of the 2007-08 school year when that school year had nearly ended.” In constrast, Kelly has mooted numerous claims where the appeal to the SRO extends past the end of the school year, precisely what occurred here.

SRO Kelly excuses district failure to provide hearing request

SRO 08-039: Can you imagine that SRO Paul Kelly would uphold an IHO decision in the parent’s favor if the parent never filed a hearing request? He recently did so for a district. This case addressed the district’s refusal to pay for an independent evaluation. The IHO went ahead with a hearing despite the fact that the district had never provided the parent with a hearing request. The IHO then ruled for the district and against the parent on her claim for reimbursement for the IEE. The SRO held for the district finding that the parent did not properly initiate the appeal. SRO Kelly nonetheless reviewed the merits of the appeal. He agreed with the parents regarding the district’s failure to provide them with a hearing request, but found that “this procedural irregularity did not rise to the level of a denial of a free appropriate public education (FAPE).” Kelly reasoned that “the parents had actual and constructive notice of the hearing and the issues and failed to make the sufficiency challenge in a timely manner.”

District must provide aide on site at private school

Bay Shore Union Free School District v. Thomas Kain, --- N.Y.S.2d ----, 2009 WL 710577 (N.Y.A.D. 2 Dept.,2009): This 2004 case is creeping through the state court system at a snail’s pace. The appellate division, 2nd department, affirmed the lower court order that the school district must provide a personal aide on site at the private school. Note that the SRO sided with the parent on this issue.

Unappealed IHO decision establishes pendency

SRO 08-009: This case is from early 2008, but is worthy of note for the proposition that an unappealed IHO decision establishes pendency during subsequent proceedings.

SRO closes door tight on reimbursement claim

SRO 08-042: Parents prevailed at hearing. SRO Paul Kelly quickly disposed of the appeal by finding that the IHO improperly placed the burden of proof on the school district on the eligibility issue. “A misapplication of the burden of proof is reversible error (see M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 [8th Cir. 2008]), and as such, the impartial hearing officer's decision regarding the student's eligibility for special education programs and services is annulled.”
Kelly did not stop there, however. He analyzed each of the three prongs and found for the district on each. Of particular note is the equities analysis. Kelly found that the parent never intended to place the child in the public school and that the parents had referred the child to the CSE not for special ed services, but rather to attempt to secure funding for a private school education.

Additional services claim remanded to IHO

SRO 08-074: In his case, the IHO found that the district had failed to provide the student with a FAPE and ordered the CSE to reconvene and to place the child in an appropriate residential setting. The IHO also made an award of additional services. SRO Paul Kelly reversed on the FAPE and placement issues. Kelly vacated the additional services award. He suggested that the parent had not adequately raised the issue, but rather than just reversing and dismissing, he remanded to the IHO for development of a record.

SRO upholds remand to CSE; rejects argument that IHO should have made program determinations

SRO 08-154: Parents sought placement in a less restrictive program for their child. They prevailed on their claim that the CSE was improperly comprised. IHO concluded that the failure to have a regular education teacher at the CSE was a denial of FAPE. He annulled the IEP and remanded for development of a new IEP. But, the parents had raised a number of issues regarding the appropriateness of the CSE recommendations. The parents sought an IHO order compelling the district to provide the program sought by the parents. The parents then sought the same on appeal. In the meantime, the CSE met after the start of the school year and recommended essentially the same program that the parents had previously rejected. SRO Paul Kelly rejected the parents argument. He found that there was insufficient evidence from which to conclude that the parents’ proposed program was appropriate to meet the child’s needs in the LRE.

This case presents a variety of interesting issues not the least of which is the futility of the review process. The parents submitted an amended hearing request in July of 2008. The SRO decision was issued February 18, 2009. The student is effectively punished for the district’s sin–the failure to have a properly comprised CSE. The parents did all they could possibly do within the constraints of the system to address the problems in their child’s program and they are back at the starting point. Kelly ignores that it was the district’s burden to establish the appropriateness of its recommendations and the hearing officer’s obligation to assure the adequacy of the record. Kelly arguably improperly shifted the burden of proof to the parents to establish that their child could be educated in a less restrictive environment. This is very troubling as the law is meant to achieve the opposite.

SRO considers whether claims are properly raised

SRO 08-086: The general rule is that parents are bound by the content of their hearing request. To add claims, the parents must amend the hearing request. Here, the Parents fail to raise certain claims in the hearing request. Parents raise claims at the hearing without objection by the district. On appeal, District objects to any issue that was not raised in the hearing request. SRO Paul Kelly has addressed this in a number of cases(see e.g.08-052, 08-064) and has ruled consistently that if the parent fails to raise an issue in the hearing request, but raises it at hearing without objection by the district, the parent has effectively raised the issue and it will be considered on appeal.

Parent who declines initial provision of services has right to hearing

SRO 08-094: Parent referred child to CSE for initial evaluation during his 1st grade year. Parent objected to the CSE’s recommendations, declined services and requested a hearing to challenge the adequacy of the district’s recommendations. District argued that by declining the initial provision of services, the district was relieved of the obligation to provide a FAPE and thus, the parent had no right to challenge the adequacy of the CSE recommendations. SRO Paul Kelly disagreed reasoning that

the district's failure to produce any evidence to demonstrate that it made "reasonable efforts" to obtain the informed consent of the parent, and the absence of a claim that the district failed to implement the student's IEP or the recommended services, I am not persuaded that the parent's lack of consent bars the instant challenge regarding
the appropriateness of the recommended SETSS services in the student's 2008-09 IEP.

Kelly also noted that the parent had not actually refused to consent to the provision of services, but rather that the parent had disagreed with the particulars of the CSE’s recommendations.

Parent can record CSE meeting but not resolution session

SRO 08-090: SRO Paul Kelly noted that parents have the right to record a CSE meeting, but that “it was not improper for the CSE to refuse to permit the parent to record the resolution sessions.” One might ask, why can a parent record the CSE meeting and not a res session. Kelly does not provide a satisfactory answer.

4th Circuit holds that partial reimbursement must be considered

M.S. v. Fairfax, 553 F.3d 315(2009): Parents made a multi-year reimbursement claim for private placement. IHO found that the district’s IEPs were not appropriate but that the private placement was also not appropriate. The district court affirmed.

year by year analysis
The 4th Circuit held that the district court erred by not separately considering the appropriateness of each year at the private placement reasoning that “what is reasonably calculated to confer some educational benefit on the child may change over time”.

Court must consider partial reimbursement
The district court further erred by not considering whether partial reimbursement might be appropriate. The 4th Circuit held that the district court “must also consider whether, given the equitable nature of the IDEA, see *325 Burlington, 471 U.S. at 374, 105 S.Ct. 1996 (noting that “equitable considerations are relevant in fashioning relief”), some partial reimbursement is appropriate for any given year.” The Court further stated that

[t]he Supreme Court has instructed that “[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (emphasis added). In determining whether partial reimbursement is appropriate, “the district court may consider the following factors, among others: the existence of other, perhaps more appropriate, substitute placements, the effort expended by [the] parents in securing alternative placements[,] and the general cooperative or uncooperative position of [the school board].” Adams, 195 F.3d at 1151.

equities and statute of limitations
The 4th Circuit rejected the school district’s complaint “that any equitable considerations weighing in favor of the parents' request for reimbursement are outweighed by the parents' delay in filing this suit until 2004, after M.S. had already spent two years at Lindamood-Bell” stating that

[w]e decline the opportunity to impose filing deadlines not issued by Congress when authorizing these equitable remedies. First, the parents have presented evidence that the delay was due to their unsuccessful efforts to negotiate with Fairfax County to resolve their concerns out of court. Second, the Supreme Court has recognized that “the review process is ponderous,” and held reimbursement to be an appropriate remedy for precisely that reason. Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Even if the administrative review process had been completed within Virginia's 45-day statutory window, “[a] final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed.

findings of fact, legal conclusions and deference
Both the hearing officer and district court made findings that Lindamood-Bell had fallen short in several significant respects, namely in the failure to provide the life skills and vocational training and the group interaction needed by M.S. for his instruction.

The 4th Circuit recognized, as do all the Circuit Courts, the principle of deference, however, the Court distinguished between deference to findings of fact and the legal conclusions drawn from those findings of fact. This is of extreme importance in New York where the SRO appears committed to the eradication or extreme limitation of the federally prescribed right to reimbursement. The Court stated

We accord great deference to such findings under our precedent. See MM ex rel. DM, 303 F.3d at 531 (holding that “findings of fact made in administrative proceedings are considered to be prima facie correct,” and that “where a district court has heard and considered additional evidence, ... we review its findings of fact for clear error”). Whether the identified shortcomings of Lindamood-Bell were of such a nature as to preclude the realization of an educational benefit for M.S. is, of course, for the trier of fact to determine on remand. However, they do not preclude as a matter of law the possibility that the one-on-one instruction provided by Lindamood-Bell warranted some reimbursement. Therefore, if the district court, on remand, again determines that full reimbursement for Lindamood-Bell is inappropriate for one or more school years, it must nonetheless consider whether partial reimbursement is appropriate in any year for the one-on-one services that Lindamood-Bell provided to M.S. Here, the HO and the district court concluded that M.S. needed significant one-on-one instruction that Fairfax County failed to provide for 2002-2005. M.S. v. Fairfax County Sch. Bd., No. 1:05cv1476, 2007 WL 1378545, at *10-*11, 2007 U.S. Dist. LEXIS 33735, at *32-*33 (E.D.Va.2007). Lindamood-Bell provided thirty hours per week of one-on-one instruction in the “building blocks” of communication. If the district court determines that any time spent at Lindamood-Bell during any or all of the 2002-2005 school years was “reasonably calculated to enable [M.S.] to receive educational benefits,” M.S.'s parents may be reimbursed for such period as the district court deems appropriate. Carter, 950 F.2d at 163 (internal quotation marks omitted); see also Burlington, 471 U.S. at 369, 105 S.Ct. 1996.

least restrictive environment for private placement
The restrictive nature of a private placement may be considered as a factor in the determination of appropriateness of the parental placement, but not as a dispositive requirement.

Unsuccessful attempt to observe proposed placement was not a FAPE violation

SRO 08-097: SRO Paul Kelly held that a school’s refusal to allow a parent to observe the particular classroom identified by the district did not rise to the level of a deprivation of a FAPE.

While encouraging school districts to work with parents and offer opportunities to observe classroom and placement options, OSEP has opined that the IDEA does not entitle parents of children with disabilities to observe their children in any current classroom or proposed educational placement (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see Application of a Child with a Disability, Appeal No. 07-049; Application of a Child with a Disability, Appeal No. 07-013).

SRO Bentley slams NYC in residential placement case

SRO 08-103: This is a rather extraordinary case. Parent sought a residential placement for their 17 year old son; specifically, they sought placement at the Judge Rotenberg Center. The hearing officer ordered the district to place residentially, but found that JRC was not appropriate. SRO Robert Bentley disagreed stating that

In view of the district's actions in this case as presented in the hearing record as well as the district's unresponsiveness on appeal regarding the provision of educational services to the student in the form of a residential placement, I find that, under the unique facts of this case, there is no justification for allowing the district the flexibility typically accorded to administrative decision making in implementing the student's placement, and therefore, I will examine whether it is appropriate to resort to the extraordinary measure of intervening in the implementation of the student's special education services by ordering the district to provide the
student with a residential placement specifically at JRC.

Bentley further stated that

As a general principle, direct intervention in the administrative aspects of implementation of a student's IEP through the impartial hearing process is a highly inefficient manner of delivering special education services and should be avoided where possible; however, in extreme cases there may be little recourse if there has been a breakdown in a district's administrative process and where, as here, it is demonstrable that the deprivation of special education services is likely to continue as a result.

Bentley then held that the record supported the parent view that JRC was appropriate for the child. He ordered the district to place the child at JRC if they could not place him at an appropriate in- state residential placement within 30 days.

Summer placement is not pendency

SRO 08-107: The parent argued that the summer placement/program recommended by the district was the child’s last agreed upon placement for purposes of pendency. The IHO disagreed as did the SRO. The child’s pendency placement was the last agreed upon school year placement.

Adverse impact upon educational performance entails more than academics

SRO 08-112: In this reimbursement case, SRO Paul Kelly reaffirmed the proposition earlier stated in SRO 07-086 that adverse impact on educational performance entails more than just academic performance.

While consideration of a student's eligibility for special education and related
services should not be limited to a student's academic achievement (34 C.F.R. § 300.101[c]; 8 NYCRR 200.4[c][5]; see Corchado, 86 F. Supp. 2d at 176), evidence of psychological difficulties, considered in isolation, will not itself establish a student's eligibly for classification as a student with an emotional disturbance (N.C., 473 F. Supp. 2d at 546). Moreover, as noted by the U.S. Department of Education's Office of Special Education Programs, "the term 'educational performance' as used in the IDEA and its implementing regulations is not limited to academic performance" and whether an impairment adversely affects educational performance "must be determined on a case-by-case basis, depending on the unique needs of a particular child and not based only on discrepancies in age or grade performance in academic subject areas"
(Letter to Clarke, 48 IDELR 77).

Deadline to file SRO appeal may be one day longer than you thought

SRO 08-116: Generally speaking a party has 35 days to file an appeal plus 4 additional days if the decision was mailed. When does the clock start running? In SRO 08-116, Paul Kelly stated that
“as a general rule, in the absence of evidence in the hearing record identifying the date of mailing, the date of mailing is presumed to be the next day after the date of the decision (see Application of a Student with a Disability, Appeal No. 08-065).” The date of mailing and the following 4 days are then excluded from the calculation(8 NYCRR 279.2(b)).

SRO finds that parental placement supplemented by related services was inappropriate

SRO 08-119: The parent appealed an IHO denial of reimbursement. SRO Paul Kelly found for the parent on prong 1, but it turned out to be a pyrrhic victory. Kelly ruled that the parent's unilateral placement of the student at the Aaron School was inappropriate to meet the student's needs because the Aaron School did not provide the level of related services identified in the IEP as appropriate to meet his needs. The parent supplemented the program at the Aaron School with private services, but that was not sufficient for the SRO.

SRO reverses another reimbursement award

SRO 08-122: IHO awarded reimbursement for a private school placement. SRO Paul Kelly once again reversed. While finding that the CSE was improperly constituted, Kelly excused the district’s failure to have a regular ed or special ed teacher of the child or teachers who would be teaching the child at the CSE noting that the hearing record failed to demonstrate how this procedural deficiency resulted in the denial of a FAPE to the student. Kelly also excused the failure to perform a classroom observation and the failure to conduct an FBA, reasoning that the child had not yet attended the proposed placement and that therefore, it was unknown whether the child would exhibit interfering behaviors. Kelly then approved of the district’s development of the goals prior to the CSE meeting, followed by a cursory, less than complete review at the CSE, implying agreement by the parent based upon her presence and the absence of stated disagreement.

SRO upholds reimbursement claim rejecting district argument regarding enrollment contract

SRO 08-123: In a rare parent victory at SRO, SRO Paul Kelly upheld a reimbursement award for a private school placement rejecting the district argument that the parent entered into the enrollment contract with the private school prior to the annual review, and that the parent never seriously intended to send the student to the district's recommended class. Kelly reasoned that the evidence showed that it was unlikely that the parent would be held responsible for any remaining tuition if she decided to withdraw the student from the private school and place the student in a district school.

SRO says that amendments to IEP can be oral

SRO 08-129: This is a case that on the surface is addressing reimbursement for the expenses associated with a cheerleading program. The district had agreed to assume responsibility for the costs of the program, but the specifics were not incorporated into the IEP. The SRO, in this case Robert Bentley, held for the parent reasoning that

In making changes to a student's IEP after the annual IEP
meeting for a school year, the parent and the district may agree not to convene a CSE meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the student's current IEP (20 U.S.C. § 1414 [d][3][D]). Similarly, changes to the student's IEP may be made by either the entire CSE or as provided above by amending the IEP (20 U.S.C. § 1414 [d][3][F]). The Official Analysis of Comments to the revised IDEA regulations indicates that an agreement to change a student's IEP need not be in writing in order to be binding:

[T]he Act does not require the agreement between the parent and
the public agency to be in writing . . . However, it would be
prudent for the public agency to document the terms of the
agreement in writing, in the event that questions arise at a later
time.

Agreement, 71 Fed. Reg. 46685 (Aug. 14, 2006).

Pendency does not commence until a hearing request is submitted

08-130: Parent prevailed on a challenge to the 2006-2007 IEP and the district did not appeal the decision which was issued in September of 2007. In August of 2007, the parent submitted a notice of intent to seek reimbursement based upon disagreements with the 07-08 IEP, but the parent did not submit a hearing request until February of 2008. The IHO awarded reimbursement based upon a pendency theory. SRO Joseph Frey held that that was error. Pendency did not start until the submission of the hearing request.

This case is also notable for the tactics at hearing by the parent attorney, the IHO’s harsh rulings with respect to those tactics and the SRO’s rigid application of procedural rules to limit the parent’s challenges of the IHO rulings. The case contains an unusually good prong 1 analysis followed by a typically harsh prong 2 analysis that resulted in the usual SRO denial of reimbursement. It is unclear why Paul Kelly was not the SRO of record.

District can not recoup pendency payments

SRO 09-008, 09-010 and 08-134: Here, the SRO addresses an issue which is arising with increasing frequency, particularly in New York City cases. The SRO held that the district can not recoup payments made pursuant to pendency if it is ultimately determined that the district offered a FAPE to the student.

SRO strikes down another reimbursement award

SRO 08-137: Congress granted parents to right to seek reimbursement for an appropriate private school placement when the public school fails to offer an appropriate program. SRO Paul Kelly continues to abort that right. Once again, an IHO awards reimbursement to a parent–this time for ABA services. Once again, in a case in which the NYC school district conceded that it had failed to offer the child a FAPE for the time period in question, SRO Paul Kelly reversed, highlighting a variety of evidentiary deficiencies and utterly disregarding the evidence in favor of the award. Will it never end.

SRO declines to excuse late service

SRO 08-139: The parent dodged a bullet on this one. Parent prevailed at hearing. The district attempted unsuccessfully to serve its appeal papers on the final day of the 35 day window. Service was not completed until 2 days later. The SRO declined to excuse the late service and thus, affirmed the IHO ruling.

SRO reverses award of reimbursement again

SRO 08-140: This case is notable for the extent to which SRO Paul Kelly goes to excuse the infirmities on an IEP. When evaluating the appropriateness of the district recommended program, Kelly relies upon and almost always(perhaps always) credits what a district says it is doing and what it says it will do. Thus districts can almost always overcome the obvious infirmities in their programs through testimony at a hearing and they can know that even if an IHO discredits the testimony, Kelly will rely on it.

Here, the impartial hearing officer found that the district failed to offer an appropriate educational program to the child and ordered it to pay for their daughter's tuition costs at the Manhattan Children's Center (MCC) for the 2008-09 school year. The determination was, at least in part, based upon the district’s failure to conduct an FBA or develop a BIP for this autistic child. Not surprisingly, Paul Kelly reversed the IHO finding that there was “no persuasive evidence in the hearing record that the student demonstrated a need for either an FBA or a BIP” and that, essentially, the school could have and would have adequately addressed the child’s behavioral needs without an FBA or a BIP. Kelly then noted that “[e]ven if an FBA or BIP was required by State regulation in this instance, the district's failure to do so here did not, procedurally or substantively, rise to the level of a denial of a FAPE to the student.”

Caution to parent attorneys–Kelly pointed out the following in a footnote: “the impartial hearing officer's finding that the district failed to conduct an FBA or BIP and thus "failed to satisfy 'Prong I' of the Burlington/Carter test" (IHO Decision at p. 22), the impartial hearing officer did not determine whether the district's failure to do so impeded the student's right to a FAPE,
significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits”. It is imperative that IHOs make such findings and it is incumbent upon us to do our best to make sure that they do so.

Kelly then went on to excuse, inter alia, the district’s failure to adequately indicate how the child’s progress would be reported finding that information regarding the child’s progress would be readily available to the parents.

No claim for damages from State for placement at Judge Rotenberg Center

Nicholson v. State:(2008 WL 5568155, 2008 N.Y. Slip Op. 28540(N.Y.Ct.Cl. Dec 15, 2008))
Plaintiff sued New York State alleging that their son was subjected to electric shock punishment while a student at the Judge Rotenberg Center, a Massachusetts private residential school for children with mental or emotional disabilities, due to defendant's negligence in failing to properly investigate and/or regulate the school while keeping the school on a list of approved out-of-state residential educational facilities. The State’s motion for summary judgment was granted.

BOCES is not immune to suit

Gorton v. Gettel: This is a 2nd Circuit case decided January 28, 2009. It is not a special education case, but is of interest in its analysis of whether BOCES is a state or local agency and whether it is immune to suit. The Court held that “BOCES is not an arm of New
York State entitled to Eleventh Amendment immunity.”

State Complaint process and stay put

Millay v. Surry School Dept., 584 F.Supp.2d 219 (D.Me. Oct 28, 2008): In this procedurally complex case in which the parent filed a state complaint, a due process hearing request and a federal court lawsuit, the court found that a state complaint finding in the parent’s favor constituted an agreement between the state and parent for purposes of establishing the child’s stay put placement.

"Adversely affects" educational performance

Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian D., --- F.Supp.2d ----, 2009 WL 59065(W.D.Wis. Jan 08, 2009): In order to be eligible for services under the IDEA, a child must have a qualifying disability that adversely affects educational performance and by reason thereof, has a need for special education. In this case, the Court found “adverse effect to be any negative impact, however slight, reasoning that the term appears in the regulations without a qualifier such as significant or marked.” The Court also found that the MDT(CSE) should have evaluated the child’s needs without the child having the benefit of modifications or accommodations reasoning that to do otherwise would disqualify most students from eligibility.