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Tuesday, February 3, 2009

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.

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