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Tuesday, March 3, 2009

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.