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Wednesday, April 1, 2009

SDNY reverses SRO yet again on reimbursement claim

N.R., on behalf of T.R. v. NYC Bd of Ed., 07-CV-9648, 2009 WL 874061(SDNY, decided 3/31/09)(Judge Jones): At hearing, the district conceded on prong 1, that it failed to offer a FAPE. The IHO found against the parents on prong 2 and thus, rejected the parents claim for reimbursement for a private placement at the Rebecca School. The IHO did not make a determination on the equities. SRO Paul Kelly reversed on prong 2 in favor of the parents, but denied the claim on the equities(SRO 07-038). In a very well reasoned decision, the SDNY granted the parents motion for summary judgment. The Court found that the parents had cooperated throughout the placement process. The denial of FAPE was premised in part on the district failure to offer a site specific placement prior to the start of the school year. The Court noted that there are no cases supporting the denial of reimbursement on the equities where the district has failed to offer the child a placement.

SDNY rejects parent appeal of SRO decision in Connors type case

S.W. v. NYC Bd. of Ed., 2009 WL 857549 (SDNY March 30, 2009): In affirming SRO 07-032, the SDNY(Judge Koeltl) held that the parent failed to give notice of her claim for funding of the private placement. The parents sought direct payment to the private school as opposed to reimbursement. As such, this was what is colloquially referred to in N.Y. as a “Connors” case. By deciding the case on the equities, the Court avoided having to decide the issue of whether a parent may be entitled to prospective relief in the form of direct payment to a private school, but the Court does discuss the issue and concludes that “ In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.” This case is a must read for attorneys litigating Connors cases. There is extensive treatment of whether the parent has standing to bring such a claim. Here, the Court answered in the affirmative.

SDNY reverses SRO again on reimbursement claim

Eschenasy v. New York City Dept. of Educ., Slip Copy, 2009 WL 804120
S.D.N.Y.,2009: IHO found for the parent on this reimbursement claim for a private placement at the Elan School. SRO reversed in case number 06-077 finding that she was not emotionally disturbed despite the child’s history of social maladjustment, cutting behavior, lying, stealing, inappropriate sexual conduct, purging, and a variety of other serious behavioral and emotional problems. The SDNYdisagreed and reversed the SRO. Note that the SRO just recently decided the next chapter in this same case in SRO 08-099, again reversing an IHO determination of eligibility and an award of reimburement at the Elan School.

After finding that the child met two of the five categories in the definition of emotionally disturbed, the Court then determined that her symptoms had adversely affected educational performance. The Court highlighted that SRO Kelly had essentially mischaracterized the evidence in the record in concluding that the child’s emotional problems had not adversely impacted her educational performance stating:

Despite acknowledging testimony in the record that Ann failed several courses in high school, the SRO stated that there was no documentary evidence of failing grades nor was there any testimony from her teachers or any indication that she had been held back a grade. Based on this lack of evidence, the SRO found that Ann had not shown that her emotional problems adversely affected her educational performance.

The Court allowed a transcript as additional evidence reasoning that

the documents are relevant and useful to the analysis of whether Ann's emotional problems have affected her educational performance. This is especially true in light of the SRO's confusing statements about Ann's failing grades and his suggestion that there was insufficient documentary evidence that her school work had been adversely affected. In addition, this evidence directly contradicts defendants' argument that Ann has been able to obtain passing grades despite her emotional problems. I therefore conclude that the usefulness of these transcripts outweighs any procedural considerations weighing against their admission.

Finally, while ruling that the equities favored reimbursement, the equities weighed against an award of attorney fees because the parents were partially to blame for the district’s failure to conduct an evaluation and classroom observation prior to the unilateral placement.

Tuesday, March 31, 2009

Pendency does not absolve the district of obligation to develop IEP

SRO 08-026: SRO found that district was not relieved of its obligation to develop an IEP during the course of hearing. SRO Paul Kelly rejected the district's contention that it did not have to develop an IEP for the student because he was receiving services through pendency. Kelly noted that “[c]onducting CSE meetings and formulating and offering new IEPs during the course of pending litigation is not prohibited under the IDEA provided that there is adherence to pendency requirements (Letter to Watson, 48 IDELR 284 [OSEP 2007]; see Application of a Child with a Disability, Appeal No. 07-122).”

SRO reverses IHO in unusual Kildonan case

SRO 08-055: This case started out as a reimbursement case. By the time the hearing rolled around, the parents decided to continue the child in the district placement and to request prospective placement at Kildonan while challenging the appropriateness of the placement. On the last day of hearing, the parents withdrew their request for placement at Kildonan, but still sought a ruling from the IHO on the appropriateness of Kildonan, reasoning that it could give them pendency in the future. The IHO ruled for the parent; SRO Kelly reversed. He found for the parent on prong 1, but found that the parent had not established the appropriateness of Kildonan. He employed the 3 prong reimbursement analysis with no discussion as to why he was doing so in a case that had become something other than a reimbursement case. Nor did he mention or discuss Connors.

Monday, March 30, 2009

SRO excuses parent failures in awarding reimbursement

SRO 08-088: SRO Paul Kelly reversed an IHO denial of reimbursement. Kelly excused the failure by the parent to allege in the hearing request that the district’s proposed placement was unavailable at the start of the school year. He found that the issue had been litigated at hearing without objection by the district, and that that thus excused the failure by the parent to raise the issue in the hearing request. He then excused the parent’s failure to adequately inform the district of her concerns in the notice of intent to seek reimbursement. His rationale was that it was reasonable for the parents to place their child in 07-08 after the district failed to offer a placement in 07-08 and that the failure by the parent to detail their concerns did not prevent the district from addressing their concerns.