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.