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Saturday, March 21, 2009

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.”

Friday, March 20, 2009

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.