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.