New SRO finds for parent on reimbursement claim but reduces the amount for inadequate notice

SRO 10-101: This case may foretell a break from the harsh recent past. IHO awarded full reimbursement to the parent for a private school placement. The new SRO found that the parent had not provided adequate information regarding her concerns about the district recommended program in the 10 day notice of intent to make a reimbursement claim. Rather than knock the parents out of the box on the reimbursement claim as Paul Kelly almost certainly would have done, the SRO reduced the award by 10%, thus granting the parent 90% reimbursement.

SRO finds for parent on summer school reimbursement claim

SRO 10-095: This appears to be the first reversal in favor of a parent by the new SRO, Justyn Bates. The parents challenged the appropriateness of the district recommended summer program and sought reimbursement for 2 months of a Lindamood Bell program. The IHO found for the parent. In a well reasoned decision, the SRO found that the CSE had failed to discuss or consider privately obtained psychoeducational and speech language evaluations, that the IEP failed to contain adequate information about a good number of the student’s identified needs, that the IEP failed to identify adequate goals to address these needs and that “thus, without an IEP that accurately identified the student's special education needs, the CSE failed to recommend an appropriate placement.” Also of note, the SRO found that the 10 day notice of intent to seek reimbursement requirement was satisfied by the submission more than 10 days prior to the start of the summer program of the hearing request in which reimbursement was requested.

New SRO?

It appears that there may be a new New York State Review Officer. The latest batch of decisions, posted online today, are all issued over the signature of Justyn Bates.

Amendments to New York State Special Education Regulations

The following are the most significant of the amendments to the New York State special education regulations, effective December 8, 2010. For full text of the amendments, see here.

1. Part 200.13 previously required that “Instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.” It is amended to now require that “Instructional services shall be provided to meet the individual language needs of a student with autism.”
2. Part 200.6 has eliminated the minimum level of speech services for students with disabilities determined to need speech and language services. Previously, there was a 2x30 per week minimum requirement.
3. Part 200.6 has been amended to allow for more than 12 students with disabilities in an integrated co-taught class.

Supreme Court to Consider 'Miranda' Rights of Juveniles at School

See School Law Blog for this interesting article. Note that the student at issue was a 13 year old special education student when he was questioned at school about a string of burglaries.

SRO holds that IHO exceeded authority in awarding interim relief

SRO 10-083: In what is an interesting and potentially very important case, the SRO sustained the district’s appeal of an IHO pendency decision that had ordered the provision of a 1:1 health paraprofessional for a child parentally placed in a private school. The IHO had initially determined that the child was not entitled to the 1:1 health para pursuant to pendency, but awarded same reasoning, inter alia, that the child might be precluded from attending school without the service. The SRO held that the award of interim relief was at odds with the statutory and regulatory pendency provisions. The parents argued that the award was an “equitable order” and not one based upon pendency. The SRO rejected this argument reasoning that the order was, on its face, a pendency order. The SRO cast doubt upon whether an IHO has the authority to award interim relief.

3rd Circuit rules that IDEA statute of limitations applies to claims that accrued prior to enactment

STEVEN I. v. CENTRAL BUCKS SCHOOL DISTRICT, (3rd Cir. 2010):

The 3rd Circuit Court of Appeals held that the 2 year IDEA statute of limitations applies to compensatory education claims that are brought after the statute's effective date but that arise from conduct that occurred before the statute's passage. The Court reasoned that the time period between IDEA 2004's enactment and the effective date of its statute of limitations (7 months) gave the parent ample time to become aware of the change in the law and a reasonable opportunity to file a claim based on conduct dating back much further than permitted under the 2 year statute of limitations.

3rd Circuit affirms equitable, non-monetary compensatory education award

FERREN C. v. School Dist. of Philadelphia, 612 F. 3d 712 (3rd Cir. 2010): The student is 24 years old. She had previously been awarded 3 years of compensatory education, the funding of which was to come from a trust that the District had set up. The District, however, disputed the obligation to provide IEPs and serve as the LEA. The private school at which the student was to receive her comp ed required a student's home school district to sign the IEP and serve as the student's LEA. The parent’s requested a hearing to compel the District to provide IEPs and serve as the LEA. The District prevailed at hearing and at the state review level. The District Court, however, ordered the School District for the duration of the student’s three years of compensatory education to annually reevaluate her, provide her with annual IEPs, and serve as her LEA. In affirming the District Court, the Circuit Court found that the Court’s power to award equitable relief is not limited to reimbursement. Rather, the Court has the power to award non-monetary equitable relief and that the non-monetary relief awarded by the Court here was appropriate.

Interesting case regarding mootness and jurisdiction

District of Columbia v. Doe (D.C. Cir. 2010): This case has been litigated for years. It is ostensibly about the suspension and alternative placement of a 6th grader, but the events occurred in 2004. The issue that survived was whether an IDEA hearing officer has the authority to revise district imposed discipline upon finding that an infraction is not a manifestation of a disability. The case went up and down the court system a few times over the years. Not surprisingly, the issue of mootness was raised. The Circuit Court held that the case was not moot, because it was capable of repetition while evading review. What makes this interesting is that the analysis was done without regard to the particular student in this case. The Court concluded that the District was almost certain to encounter the issue again and that it would evade review as the student seeking review of disciplinary matters is often done with school or otherwise ineligible for IDEA protections by the time the review process is concluded.

The Court recognized that a school has an obligation to provide the disciplined child with a FAPE and then concluded that an IDEA hearing officer has the authority to determine whether the District has in fact provided the disciplined child, even one for whom manifestation is not found, with a FAPE.

Review of recent SRO decisions in the post-Kelly era

There are 6 published State Review Office decisions since the resignation of Paul Kelly–3 by Frank Munoz (SRO 10-066,10-072, and 10-074) and 3 by Robert Bentley (SRO 10-069, 10-070 and 10-073). Munoz affirmed each of the 3 IHO decisions that he reviewed, including one in which a parent had prevailed (SRO 10-066). This particular case was affirmed not on the merits, however, but rather because the matter had become moot. Bentley, on the other hand, held for the district in all 3 cases. Two of these decisions reversed IHO decisions which had awarded private school reimbursement to parents (SRO 10-070, 10-073). It’s a strikingly familiar tune thus far, although it is likely premature to draw any definitive conclusions, particularly with respect to Munoz. Of import, it is my understanding that the Munoz–Bentley era is temporary and that there will be a new State Review Officer sometime in the near future.

SDNY reverses the SRO yet again

G.B. and L.B. on behalf of N.B. v. Tuxedo, 09-CV-859, decided September 30, 2010: District sought to remove autistic child from an integrated class. Parents disagreed, removed the child from the school, placed her in a private school and sought reimbursement. The IHO and the SRO ruled against the parent. The District Court reversed in a detailed opinion finding that an integrated class was the least restrictive environment in which the child could receive an appropriate education. In doing so, the Court applied the test adopted by the 2nd Circuit in P. v. Newington. Of note, the Court stated that “boilerplate, conclusory language cannot satisfy the requirement that the CSE seriously consider …including the child in a regular class with such supplementary aids and services as appropriate” and that the Court need only determine that with appropriate support and services, the child could make progress toward her IEP goals in the regular education setting. The Court found that uncontradicted evidence of progress in an integrated setting, expert testimony supporting the appropriateness of the integrated setting, and even testimony from district witnesses strongly supported the conclusion that an integrated class would be far more beneficial for the child than a self contained class.

The Court addresses the deference issue by noting that the IHO and SRO improperly ignored evidence and failed to apply the test for determination of LRE. Also, the Court treated the LRE issue as one for which deference is not owed because it is not a matter of educational policy, but rather the enforcement of a requirement of the IDEA.

Finally, this case is not over. The Court ruled that the amount of reimbursement should be reduced for the parent’s failure to provide proper, timely notice. The Court ordered additional briefing on the extent of reduction.

State agency not subject to the jurisdiction of the IHO

Chavez v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, 10th Circuit 2010: A high functioning autistic child was home schooled for 18 months because the school district refused to address his school refusal or avoidance problems. The parent took the school to hearing and also attempted to take the state education department to hearing. The IHO ruled that there was no jurisdiction over the state agency. The state level review affirmed that decision. The district court, however, held that the IHO had jurisdiction over the state agency and that the state agency was at fault for not providing direct services to the child. The 10th Circuit reversed reasoning that the state agency was not directly involved in the provision of the child's program. It’s an interesting opinion as the Court struggles with the reality that the child had been denied an education, the role that the state is to play in such situations and the potential ramifications of holding the state responsible. The Court makes clear that there could be situations where a state agency may be held responsible for direct provision of a child's services.

SDNY reverses SRO again

E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT (S.D.N.Y. 9-30-2010): The SDNY continues to be the court most willing to pierce through the barriers imposed by the New York State Review Office. This was a two year tuition reimbursement claim at a residential school. The parent went into court having lost at both the impartial hearing and the SRO. The court affirmed the denial of reimbursement for year 1, but reversed in favor of the parent for year 2. The court found that the district failed to adequately take into consideration the child’s progress at the residential placement and that was manifested in the district’s recommendations by:

1. placement with kids who were not of similar needs and abilities
2. by the failure to include an individualized reading program despite the fact that the child had progressed in reading when provided with 1:1 multisensory, individualized reading instruction
3. the replication of the goals and objectives from the previous year’s IEP despite having evidenced progress at the residential placement (“it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S.progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.”)

Parent attorneys should take note of how the Court approached the use of the kid's progress at the parental placement on prong 1, the approach to progress on prong 2, the analysis of LRE–in particular, the Court's view that "the right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement."–and the Court's analysis of the equities.

Court reverses SRO denial of reimbursement claim and holds that late notice warrants reduction rather than denial

WOOD v. KINGSTON CITY SCHOOL DISTRICT (N.D.N.Y. 9-29-2010): Parent placed child at the Kildonan School and sought tuition reimbursement. Parent prevailed at hearing. SRO reversed on the equities finding that the parent’s notice to the District of their dissatisfaction with the IEP and intent to enroll the child in Kildonan was untimely. The District Court held that the fact that the parent had provided notice of intent to make a reimbursement claim 5, rather than 10, business days prior to the start of the school year at Kildonan, warranted a 10% reduction in the award of reimbursement rather than denial of reimbursement.

Update on New York State Review Office situation

I was just advised by the Office of State Review that a replacement for the recently departed Paul Kelly has not yet been named and that in the interim, Frank Munoz, Robert Bentley and Joseph Frey will act as State Review Officers.

School district can not recoup pendency payments

Atlanta v. SF : In this case decided in September 2010, a Georgia court held “that parents of a child awarded private educational services because the IEP offered by the school was deemed to be inappropriate are not required to reimburse the school district for that expenditure, even if the administrative decision is later reversed.” This decision contains an overview of case law addressing this issue from other courts around the country. It is of particular interest here in New York as the New York City Board of Education has made repeated attempts to recoup pendency payments.

New York State Review Officer resigns

Reliable sources have advised that SRO Paul Kelly, the subject of much controversy over the last 4 or 5 years, has resigned and that today is his last day in office. No word yet on a replacement.

SRO awards reimbursement for private placement

SRO 10-050: The parent rejected the district recommended program, placed the child in a private school and sought reimbursement. The IHO ruled in favor of the school district finding that the parents failed to demonstrate that the June 2009 IEP was not reasonably calculated to provide the student with a FAPE. The SRO found that the IHO had improperly shifted the burden of proof to the parents and that that was grounds for annulling the decision. He went on, however, to analyze the merits and he determined that the district had failed to offer a FAPE, that the parental placement was appropriate and that the equities weighed in favor of the parent.

Court refuses to compel district to pay for pendency placement

M.M. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 7-27-2010): Parent placed child in private school for the 2008-2009 school year and made a reimbursement claim. Parent had already prevailed at hearing on a reimbursement claim for the 2007-2008 school. The district did not appeal that decision. Thus, the parent asserted in her hearing request for 08-09 that pendency was the private school placement. The district did not contest the parent’s right to pendency reimbursement. On day one of the hearing, the DOE again did not object to the parent’s pendency request. During the hearing, the parent sought a pendency order from IHO Esther Mora. Mora noted the request but never issued an order requiring the NYCDOE to provide the parents with pendency reimbursement. Mora ultimately ruled against the parents on the reimbursement claim and further stated that "I have examined the
parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." The parents did not appeal the decision.

The DOE then refused to pay for the pendency placement. The parents sought payment in federal court and remarkably, the Court ruled against the parents, reasoning that the parents had not exhausted the administrative process by not appealing Mora’s failure to rule on pendency to the SRO.

This is a very harsh ruling and arguably, a gross miscarriage of justice. A party can only appeal if aggrieved by a ruling. The IHO did not rule on the pendency issue because it was not contested. The parties were in agreement as to pendency. Yet, the Court held that the parents were foreclosed from recovering due to the failure to appeal the Mora non-ruling. Bottom line, the parents don’t get paid for the pendency placment even though the district agreed with them before and during the hearing that they should get paid.

Prevailing party status for IEE

AP v. NORTHERN BURLINGTON COUNTY REGIONAL BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: District Court held that Parents who obtained an order compelling a district to pay for an Independent Educational Evaluation were entitled to prevailing party status for purposes of an attorney fee claim.

Court allows parent to proceed on behalf of child

B.J.S. v. STATE EDUCATION DEPARTMENT (W.D.N.Y. 2-9-2010): Parent appealed the SRO’s denial of her claim that her child’s IEP was inappropriate. She proceeded pro se and brought the claim “individually and on behalf” of her child. The school district sought to have counsel appointed for the child. The Court denied the motion reasoning that the child was not an individual plaintiff in the action. Rather, the parent, who has a right to proceed pro se pursuant to Winkelman, was asserting her own IDEA rights, rights that are “coextensive” with the child’s rights. Thus, the parent was suing to enforce the parent’s individual right to a FAPE for her child.

This case also presents an interesting discussion about confidentiality, the sealing of records and the proper captioning of IDEA cases to preserve the privacy of the child.

SRO annuls inadequate decision and remands for further testimony

SRO 10-035: Parent sought reimbursement for a private school placement. The IHO denied the parent’s claim in a 5 paragraph decision that violated virtually every norm for a hearing officer’s decision. The SRO agreed with the parent’s arguments regarding the inadequacy of the decision. Additionally, this IHO had refused to adjourn the hearing for the taking of testimony of a district witness. The SRO found that to be error. The SRO remanded the matter to the same hearing officer for further testimony and consideration.

SRO affirms award for private school reimbursement

SRO 10-042: Parents prevailed at hearing in New York City private school reimbursement case. NYC appealed to the SRO. For the first time this year, the SRO affirmed on the merits a decision in which an IHO had awarded reimbursement to a parent. The IHO on the case was James Walsh.

Graduation is not necessarily the end of the story

Doe v. MARLBOROUGH PUBLIC SCHOOLS, Dist. Court, D. Massachusetts 2010:

Reimbursement and compensatory education cases live on after a child graduates. This case takes it one step further. Child had an IEP and received special education services. Parent challenged the legitimacy of the child’s graduation. The Court ruled that satisfaction of graduation requirements does not necessarily terminate a school district’s obligations under the IDEA. “ [A] school district may not properly graduate a student with disabilities if the student was not provided with FAPE as required by IDEA (e.g., a student did not receive appropriate transitional services or his IEP was not reasonably calculated to provide him educational benefit).” Pendency during such a challenge is the placement and program that the child was in at the time of the challenge.

Another decision in which the Court rejects district effort to save deficient IEP through testimony at hearing

N.S. v. DISTRICT OF COLUMBIA (D.C. 5-4-2010): It is utterly remarkable what some parents must go through these days to get an appropriate program for their child. In this case, the parents rejected the district’s proposed IEP, placed their child privately and requested reimbursement. The IHO ruled in favor of the school district despite the that, inter alia, the IEP did not include a statement of the child's present levels of academic achievement and performance, it was undisputed that the child required a multitude of supplementary aids and services in the classroom and the IEP failed to identify any such aids and services, the IEP failed to include specific goals and objectives to address the child's significant deficits in written language, the IEP failed to contain speech and language goals despite evidentiary support for the need, the IEP failed to include OT services despite the documented need and subsequent OT evaluation recommending services in response to which the district did not amend the IEP, and the IEP recommended inclusion despite the need for pullout services.

The IHO ruled in favor of the district reasoning that because the parents pulled the child prior to the implementation of the proposed IEP, the parents concerns were “speculative.” The Court rejected this position reasoning that “parents are not required to wait and see a proposed IEP in action before concluding that it is inadequate and choosing to enroll their child in an appropriate private school.” The district argued that the alleged defects were “merely procedural or technical and that they did not deprive N.S. or his parents of any substantive rights under the IDEA.” The Court rejected this argument and distinguished between harmless procedural flaws such as “failures to meet statutory deadlines” from serious procedural flaws such as here–“failures to include required information in an IEP about the services to be provided a disabled student.” The district argued that “as long as [the proposed placement] was "willing and able" to provide N.S. with appropriate services to meet his educational needs, any errors or deficiencies in the IEP are harmless.” The Court soundly rejected that argument reasoning that “the IDEA requires that a school district do more than simply provide services adequate to meet the needs of disabled students; it requires school districts to involve parents in the creation of individualized education programs tailored to address the specific needs of each disabled student…The IEP must be specific enough to allow parents to understand what services will be provided and make a determination about whether the proposed placement is adequate.” The IHO further erred by relying “on evidence about what services could have been provided by … instead of considering what services were actually called for by the IEP or adequately discussed at the IEP meeting. Because the purpose of the due process hearing is to contest the adequacy of the IEP and the placement, the Hearing Officer should not consider evidence about services not prescribed by the IEP or discussed at the IEP meeting.”

New York attorneys should take note of this decision as the SRO routinely permits school districts to cure significant defects in IEPS through testimony at hearing.

Supreme Court denies cert in 11 special education cases

The Supreme Court denied cert in 11 special education cases during the 2009 term including 3 cases from the 2nd Circuit: E.H. and K.H. v. Shenendehowa, T.Y. and K.Y. v. NYC Board of Ed. and Levine v. Greece (links are to the 2nd Circuit cases).

District Court rejects school district attempt to remedy deficient IEP through testimony at hearing

DUMONT BOARD OF EDUCATION v. J.T. (N.J. 5-10-2010): The New York State Review Office (SRO) often excuses inadequate IEPS by crediting the impartial hearing testimony of school district personnel as to what the district would have done for a child. Thus, district personnel have been able to, in effect, supplement an IEP and remedy its defects at hearing. In this New Jersey case, the Court refused to countenance such a tactic noting that

[w]ith respect to the sensory diet or sensory program, Dumont asserts that any deficiency in the IEP was obviated by testimony at trial that Tri-Valley would provide an adequate sensory
program for I.T.'s needs. (Def. Br. at 17.) Under the IDEA, however, "in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined." Lascari v. Board of Educ., 560 A.2d 1180, 1189 (N.J. 1989). See also D.C. v. Montgomery Twp. Bd. of Educ., No. 04-2851, 2005 WL 1229827, at *2 (D.N.J. 2005) (quoting Lascari). Whether or not Dumont would have offered I.T. additional sensory education services at a later date, the substance of the IEP with regard to her sensory education was limited to "sensory activities, tickles, hugging, deep pressure, physical touch," without any indication the numerous sensory stimulation techniques used at Tri-Valley and discussed in Dumont's brief, or any detailed program or reference to I.T.'s home sensory diet.

Pendency in charter school case

ELYSIAN CHARTER SCHOOL v. BAYONNE BD. OF ED., 09-3741 (3rd Cir. 6-10-2010): This is an interesting case out of New Jersey. Parents placed their child in a charter school outside their school district. Charter schools in New Jersey have administrative control over the special education process. The charter school is responsible for development and implementation of the IEP. The charter school recommended placement in a private school for the following school year and the parents agreed. The home school district objected and requested a hearing, maintaining that they could offer the child a FAPE. The parents asserted that pendency was the private school arguing alternatively that it was the current educational placement and that they and the school (i.e. the charter school) had agreed to the placement. The Third Circuit disagreed and held that the child’s pendency placement was the charter school, the last school the child had actually attended at the time the hearing request had been submitted. The Third Circuit also reasoned that to allow the parents and the charter school to agree on the child’s pendency placement would conflict with the home district’s right under New Jersey law to object to the private school placement recommendation.

Admission of additional evidence in federal court IDEA actions

H.M. v. HADDON HEIGHTS BOARD OF EDUCATION (N.J. 6-22-2010): This case provides a good summary of how some circuit courts have analyzed a party’s right to submit additional evidence on an IDEA case in federal court.

New York State Board of Regents approves controversial proposals

The New York State Board of Regents supported the following special education cost containment proposals and directed State Education Department (SED) staff to develop proposed regulatory language that would:
● Authorize school districts to add up to two additional students to integrated co-teaching classes, upon documented educational justification;
● Repeal the minimum service delivery requirements for speech and language; and
● Repeal the requirement that each student with autism receive instructional services to meet his/her individual language needs at a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.

In addition, the Regents also endorsed the following legislative proposals:
● Establish a one-year statute of limitations to request an impartial hearing and that requests for tuition reimbursement for unilateral parent placements in private schools be presented not more than 180 days from the placement by the parent; and
● Repeal the authority of the Commissioner to appoint students to State-supported schools

The Regents did not support legislative action that would repeal the requirement for dissemination of copies of students’ individualized education programs (IEPs) to each regular education teacher, special education teacher, related service provider and other service provider who is responsible for the implementation of the IEP. Rather, the Regents asked SED staff to provide more information on the number of districts currently providing electronic access to IEPs rather than providing paper copies.

For more information, the complete Regents discussion item can be found at:
http://www.regents.nysed.gov/meetings/2010Meetings/June2010/0610vesidd2.htm

Court denies District's motion to dismiss teacher's retaliation claim

CORRALES v. MORENO VALLEY UNIFIED SCHOOL DISTRICT (C.D.Cal. 6-10-2010): Special education teacher repeatedly sought to have certain students evaluated and provided with more intensive services. School district either failed to respond or denied these requests. District ultimately terminated the teacher and she sued alleging retaliation in response to her advocacy efforts. District’s motion to dismiss the retaliation claim was denied.

New York State Ed. continues assault on rights

State Ed. has proposed certain “cost containment” statutory and regulatory changes impacting upon the rights of students with disabilities and their parents. The Board of Regents will consider these changes at their next meeting which is scheduled for June 21st. The memo from State Ed to the Board of Regents can be found here. Proposed changes include shortening the statute of limitations from 2 years to 1 year in most circumstances and 6 months for reimbursement claims. State Ed would also remove that requirement that all personnel working with a child be provided with that child’s IEP. There are a number of other proposed changes. I suggest reading the memo and submitting comments to the Board of Regents at this address.

Court rules in favor of parent on right to independent evaluation (IEE)

KB v. HALEDON BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: Court holds that parent is entitled to an independent evaluation at district expense (IEE) where the request for such an evaluation was properly made and where the district failed to utilize the appropriate procedural route to avoid the obligation of financing an independent evaluation–i.e. commence a due process hearing.

Supreme Court denies cert in No Child Left Behind case

see Mark Walsh’s blog entry for more details

EDNY denies NYS motion to dismiss claim of illegal practice; private school has standing to bring 504 claim

Kalliope R. v. New York State Department of Education (EDNY 6/1/10): Plaintiffs in this action are the parents of four minor children with disabilities and the private school that they attend. Plaintiffs alleged that the New York State Education Department ("NYSED") unlawfully promulgated a policy prohibiting the use of a particular student-teacher ratio. The private school in question had implemented a 12:2:2 program, a program for which they had sought and received state approval, and for placement into which a child’s CSE had to recommend the 12:2:2. Subsequently, state ed allegedly contacted the various CSEs of the kids in the program and advised them to stop placing kids into the 12:2:2 program, thus prompting the parents’ legal action. NYS filed a motion to dismiss.

The Court denied the district’s motion to dismiss agreeing initially with the parents that exhaustion of the administrative process should be excused reasoning that exhaustion “is deemed futile when the conduct alleged to have violated IDEA affected all students in a given program.” The Court then reasoned that the parents had stated a viable claim that the “policy could constitute a "predetermination" that is a procedural violation of IDEA” and that “NYSED's interference with the IEP process has hampered the progress of the individual plaintiffs' children and the other children attending SLCD, and thereby substantively violated IDEA.”

The Court then went on to find that the private school had standing to sue under the Rehabilitation Act (504) as it had allegedly “incurred over $22,000.00 in expenses as a result of the NYSED's alleged policy.” The Court declined to dismiss the plaintiff’s 504 claim reasoning that “gross misjudgment or bad faith may be found when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary.” Here, the Court held that plaintiffs had satisfied that standard by alleging “that NYSED, despite the fact that students' CSEs had recommended the 12:2:2 class size, instituted a policy prohibiting use of that class size.”

SDNY slams NYC in attorney fee action

B.W. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 6-3-2010):

Parent sought reimbursement for private placement. IHO denied reimbursement, instead ordering that the CSE reconvene to develop an appropriate IEP for the child. NYC reconvened the CSE and recommended the same IEP for the upcoming school year. Parent placed privately again, sought reimbursement, submitted and a hearing request and settled the case. Parent sought attorney fees for the first hearing. NYC argued that the parent was not a prevailing party in the first hearing. The Court thought otherwise. The following is an extensive quote from the decision:

It is clear, however, that IHO Joyner's order for the CSE to
reconvene and draft a new IEP providing for an appropriate
education would have benefitted K.S. if the CSE had complied with
the order by recommending a more substantial IEP that actually
provided K.S. a FAPE. A largely unsuccessful defendant in an IDEA
case may not use its own failure to comply with an IHO order to
escape paying attorney's fees.

Defendant claims that it did not contravene IHO Joyner's order
and that her decision should not necessarily have resulted in
benefit to K.S., because it did not require that the new IEP
establish a different program (Def.'s Mem. in Opp. at 7-8). This
argument borders on the absurd. IHO Joyner found that defendant
failed to provide K.S. with a FAPE and remanded the matter to the
CSE to remedy this deficiency, an outcome clearly intended to
benefit K.S.

To suggest that the CSE could have recommended the same
deficient IEP a second time (as it inexplicably did) is logically
indefensible. In the absence of a change in the student's
condition (and the defendants cite no evidence of such a change
here), an IEP that is deficient in January is necessarily going
to continue to be deficient in December. Defendant's argument to
the contrary would effectively render the fair hearing process
meaningless.

If the initial IEP had provided K.S. with a FAPE, there would
have been no reason for IHO Joyner to have directed the CSE
to reconvene. The new IEP that the CSE issued obviously failed
to achieve what IHO Joyner ordered — an appropriate education
for K.S. — as evidenced by its failure to make any enhancements
to the deficient recommendations. Defendant cites no evidence of
any development after IHO Joyner's decision that would have made
it appropriate for defendant to adhere to the original IEP.
Rather, defendant argues that the CSE did not violate IHO
Joyner's order because the new IEP, although it contained the
same provisions as the old one, applied to the upcoming school
year, and one cannot determine "the appropriateness of a
placement for a school year that has not yet happened, because
progress (or lack thereof) cannot yet be measured" (Def.'s Mem.
in Opp. at 7; see Def.'s Mem. in Opp. at 8). By this logic,
however, all IEPs would be unchallengeable until they had been
implemented and there was empirical evidence on their effects.
IHO Joyner declined to order the requested payment of private
tuition in order to give defendant the initial opportunity to
remedy the deficient IEP, not in order to allow more time to pass
under the deficient IEP in the hope that it might become
sufficient. Defendant's argument would justify the maintenance of
all IEPs found to deny a disabled child a FAPE, relegating
students and their parents to an indefinite plight of waiting it                                                        out to see if the child improves under the deficient IEP.

SRO slaps NYC district for failure to provide proper due process notice

SRO 10-023: The district (NYC) provided the parent with a 1991 notice of parental rights. The SRO ordered the district to review and correct its policy and procedures pertaining to provision of the mandatory procedural safeguards notice to the parents of students with disabilities.

SRO addresses failure to give proper notice for manifestation meeting

SRO 10-028: Student was suspended on 12/2/09 for his role in an altercation that occurred on 11/30/09. District(NYC) twice scheduled manifestation review meetings, but each time did not notify the parent ahead of time. The second time the district proceeded with the meeting and found no manifestation. The district suspended the student for one calendar year. The IHO found that the parent had not been provided with proper notice, annulled the manifestation determination and ordered that the child be returned to school. SRO Paul Kelly agreed that the parent had not received proper notice, ordered that the MDR team reconvene with proper notice to the parent, but annulled without explanation the IHO decision ordering that the student be returned to school. And, remarkably, the SRO gave the district 30 days from the date of the decision (May 7, 2010) to reconvene the MDR team despite the fact that the law requires the MDR team to meet within 10 school days of a decision to impose a long term suspension.

Court considers more than academic progress in determination of whether child has received educational benefit

COMPTON UNIFIED SCHOOL DISTRICT v. A.F. (C.D.Cal. 4-26-2010): The appropriateness of a child’s program is determined, at least in part, by whether it is designed for the child to receive educational benefit. There have been a number of recent cases in which the Courts have addressed the boundaries of “educational benefit”. Compton is the most recent of these cases. The child was getting good grades, but was only “accessing” about 50% of his classroom activities and instruction due to interfering behaviors. The child was also suffering with respect to social skills and work habits.The Court held that calculation of educational benefit encompasses more than just academics; the decisionmaker must also look at social and emotional needs that impact academic progress.

3rd Circuit finds for district on reimbursement claim despite failure to have IEP in place prior to start of school year

C.H. v. CAPE HENLOPEN SCHOOL DISTRICT, 08-3630 (3rd Cir. 5-25-2010): Parent placed the child at the Gow School, but did not give the requisite notice of intent to make a reimbursement claim. The district proceeded with the evaluation process and the CSE met prior to the start of the school year. The CSE process was not completed prior to the start of the school year, however. The Court attributed the delay to the parents and declined “to hold that a school district is liable for procedural violations that are thrust upon it by uncooperative parents.” Further, in rejecting the parents’ claim of inadequate notice of the CSE meeting, the Court stated that “the Parents have been their own greatest impediment to participation in the evaluation of C.H.'s disabilities and the development of an appropriate IEP.” Finally, the Court also denied the parents’ claim on equitable grounds for failure to give proper notice of the intent to make a reimbursement claim and for disregarding “their obligation to cooperate and assist in the formulation of an IEP.”

SDNY rules in part for parents on reimbursement claim; interesting equities analysis

R.B. and H.Z., on behalf of C.Z., 09-CV-7758, decided May 5, 2010 (SDNY 2010): Parent placed the child privately and sought reimbursement. The private placement was a general education program supplemented by a separately paid for special education program. The IHO ruled in favor the parent awarding reimbursement for the whole shot. The SRO reversed. The SRO found that the parent had failed to demonstrate the appropriateness of the general education portion of the program. The SRO also found against the parent on the equities for failure to give proper notice. The SDNY reversed in favor of the parents, but only with respect to the private school special education component of the claim. Thus reimbursement was limited to a fraction of the total claim. The Court’s analysis of the equities is worthy of some exposure. The Court held that

Plaintiffs’ obligations under the IDEA’s notice requirement were not triggered because the DOE never provided plaintiffs with a Final Notice of Recommendation (FNR). Indeed, Plaintiffs could not have informed the DOE that they were “rejecting the placement proposed by the public agency” because the DOE never made a placement recommendation for Plaintiffs to reject.

The DOE had also advised the Plaintiffs in writing that the child had a right to continue in the current placement pending receipt of an FNR. Of note, the Plaintiffs did not challenge the IEP; rather, they only challenged the failure to offer a placement in which the child could receive the recommended services.
        Finally, and of particular interest, the Court found that the parent’s willingness to cooperate with the DOE was evidenced by their purchase of tuition insurance at a cost of $2000, “an expense they are unlikely to have made had they been determined to reject a public placement.”

IMPORTANT MESSAGE FOR PARENTS OF KIDS ATTENDING PRIVATE SCHOOLS

For parents who place their kids in private schools and want them to get special education services from the public schools, New York State Education Law §3602-c requires that the parent submit a written request for special education services by June 1st. This is a must do! Note that this does not generally apply to situations where parents place their kids in private schools and make a claim for reimbursement from their public school.

SRO 10-02: inadequate notice, impact of settlement agreement on pendency and more

SRO 10-02: This is an interesting case for reasons other than those raised by the parent to attempt to justify an award of private school reimbursement. On the surface, this is no different than any reimbursement case. Parent disagrees with the placement recommendation, places the child in a private school and seeks reimbursement. Here, however, notice of intent to seek reimbursement was submitted to the district in a letter with subject line “Re: Transportation Request”. This letter included a list of 30 names of students represented by the parent’s attorney and was a sparse, generic letter that did not particularize the parent’s concerns with the district’s recommendations. The text of the letter follows:

Our office represents the following children, who will start the school year in the private schools listed below. The proposed placements were either inappropriate to meet their education needs, as the District's recommended classes failed to offer sufficient individualized attention or were not in the least restrictive environment, etc., or the parents did not receive the notice of placement until it was too late to visit the proposed class, and have not yet been provided with sufficient information to judge the appropriateness of the recommendation without visiting the proposed program. We will be filing requests for impartial hearings for each of these students in the fall, as necessary, seeking tuition reimbursement, transportation and related services. Where applicable, each I.E.P. will be challenged on substantive grounds; however, the parents are not waiving any procedural arguments they may have.

        The hearing officer ruled in favor of the parent on prongs 1(absence of parent member at CSE meeting) and 2, but against the parent on prong 3, finding that the notice of intent to seek reimbursement was inadequate.
        The SRO very predictably reversed in favor of the school district on prong 1, did not address prong 2 and agreed with the IHO, again not surprisingly, that the notice of intent to seek reimbursement was inadequate. There is certainly a lesson here that parent attorneys should take note of.
        Finally, the IHO ruled in favor of the parent on pendency, a ruling that was reversed by the SRO. There is a discussion of the impact of a prior settlement agreement on the determination of pendency that’s worth a read. Assuming that the SRO has presented the facts correctly, it is hard to figure how the IHO could have ruled in favor of the parent, finding that pendency was the private school placement, when the agreement appears to have specifically precluded such a finding. One caveat though; although Kelly annulled the pendency determination, he did not make an alternative pendency ruling.

School district’s obligations under the IDEA are triggered by residence, not by enrollment of the student.

DISTRICT OF COLUMBIA v. WEST (D.C. 3-30-2010) and D.S. v. DISTRICT OF COLUMBIA (D.C. 3-30-2010): In the first action, the district sought recovery of attorney fees from the attorneys for the parents, a claim which was rejected by the Court. Of interest, the Court found that a district’s obligations under the IDEA are triggered by residence, not by enrollment of the student. In the second action, the IHO dismissed the parent's complaint as frivolous because the parent challenged the recommendations of the MDT despite the fact that her child was not enrolled. As in the first case, the Court held that a district’s obligations under the IDEA are triggered by residence, not by enrollment of the student.

Court holds in favor of parent on IDEA retaliation claim

C.O. v. PORTLAND PUBLIC SCHOOLS (Or. 3-31-2010):

An Oregon District Court held that a parent can assert a claim for for nominal damages for retaliation under the IDEA and under §1983 for a violation of the IDEA despite the absence of an explicit provision authorizing such a claim. Authority for this holding is found in a line of Supreme Court cases finding an implied cause of action for retaliation in civil rights statutes. To prevail, the parent must prove 1) that the plaintiff engaged in protected activity; 2) an adverse action; and 3) a causal relationship between the two.

Parent alleged that the attorney for the district refused to engage in informal discovery as required by state Oregon state law and for refusal to allow communication with district personnel in advance of the hearing. The Court found that the attorney’s actions were taken in retaliation for Oman's decision to pursue to hearing her parental right to advocate for her child’s educational rights and that these actions were intended to and did deter Oman from asserting her rights. The Court then awarded $1 in nominal damages against the attorney and the school district.      

Court awards pre and post-judgement interest on reimbursement award

B.P. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (W.D.N.C. 4-1-2010): Court awarded pre and post-judgment interest on reimbursement award–the prejudgment interest ran from the date of submission of the hearing request. The Court also awarded post-judgment interest on the attorney fee award.

2nd Circuit upholds finding of liability against school district in ADA case

CELESTE v. E. MEADOW UNION FREE SCHOOL(2nd Cir. April 21, 2010): The student plaintiff in this ADA case had cerebral palsy. Architectural barriers in the school forced him to take a ten minute detour each way in order to reach and return from the athletic fields behind the school. Not only did this total twenty minute detour detract from the student’s participation as a manager of the football team, but it cut almost in half his time to participate in a typical forty-five minute physical education class.The 2nd Circuit affirmed the district court's determination of liability for denial of access to school programs conducted on the athletic fields, but vacated the award of damages and remanded to the district court for a new trial with respect to damages arising out of the denial of access to programs conducted on the athletic fields, as well as from the construction of a bus depot, and for a new trial on liability and damages, if any, arising from the construction of a sidewalk.

New York State Ed continues to hammer away at parent and student rights

NYSED is pushing the Board of Regents to support legislation and regulatory changes to, among other things, shorten the statute of limitations from the present 2 years to 180 days for reimbursement claims and 1 year for all other claims. See NYSUT memo at http://www.nysut.org/bulletins_15009.htm for a complete listing of the issues as well as NYSUT’s position on the issues.

Court affirms order allowing classroom observation as part of independent evaluation

SCHOOL BOARD OF MANATEE COUNTY, FLORIDA v. L.H. (M.D.Fla. 9-30-2009):

Parents contended that implementation of an unwritten policy prevented them from obtaining an independent psychological evaluation; that without the completed evaluation, the parents did not have the information they needed to effectively participate in the development of an IEP for their child; and that the parents’ right to obtain an independent educational evaluation (IEE) under the IDEA included the right to have their private psychologist conduct in-school observations of their child. The Court agreed with the parents citing to an OSEP memo, Letter to Mamas, 42 IDELR 10. The Court thus affimed the ALJ’s order allowing the psychologist retained by the parents to conduct an in-school observation of at least two hours.

Court denies motion to dismiss complaint seeking audio-visual surveillance

C.S. v. STATE (E.D.Mo. 9-8-2009):

Child suffers from multiple severe disabilities and is placed by the school district in a state school for the severely handicapped. Parents alleged that the child was neglected and abused and that the school failed to implement the child’s IEP. Parents sought compensatory services and audio/visual surveillance. The school district moved to dismiss the parents’ complaint. The Court examined the request for surveillance and held that it could be necessary for a child to receive an appropriate education. Therefore, the Court refused to dismiss the complaint.

Circuit Court rules in favor of parents on private school claim despite good grades

D.S. v. BAYONNE BOARD OF EDUCATION, 08-4730 (3rd Cir. 4-22-2010): Parents sought placement for their son at a private school for learning disabled kids. CSE recommended public school placement. Child achieved good grades at the public school. Parents nevertheless challenged the appropriateness of the program. Parents prevailed at the hearing. The hearing was a state level hearing in New Jersey, a single tier state. The District implemented the decision placing the child at the private school, but appealed the decision to the District Court. The District Court reversed in favor of the school district. The parents appealed and the 3rd Circuit reversed back in favor of the parents relying primarily on deference to the hearing officer’s findings.
        This case is of particular importance because so often schools will rely on good grades to justify the appropriateness of placement/program recommendations. Yet, the validity of grades achieved in a self contained setting is often suspect. Here, the ALJ weighed the results of standardized tests and the testimony of experts against the surface appeal of the good grades buttressed by the testimony of school district personnel and concluded that the child was not receiving a FAPE despite the good grades. The 3rd Circuit noted that

we think that it is clear that a court should not place conclusive significance on special education classroom scores, a conclusion that we believe is reinforced by the circumstance that, as here, there may be a disconnect between a school's assessment of a student in a special education setting and his achievements in that setting and the student's achievements in standardized testing.[fn8] When there is such a disconnect we think that there should be an especially close examination of the appropriateness of the student's education.

Virginia State Court holds that insurance policy provided coverage to school district in special education tuition reimbursement case

School Board of the City of Newport News v. Commonwealth of Virginia: Parent filed a hearing request seeking reimbursement for a private placement. District sought coverage under a policy administered by the Commonwealth of Virginia. Coverage was denied. Parent was awared reimbursement at hearing. The District filed a State level appeal in response to which, the award to the parent was reduced. The parent then appealed to federal court. The federal district court reinstated the hearing officer award and that determination was affirmed by the 4th Circuit Court of Appeals.
        The school district then filed an action in state court challenging the denial of coverage. The Virginia supreme court held that an action filed in state or federal court pursuant to IDEA, following exhaustion of state administrative procedures, was an independent civil action, not an administrative action, and that such an action constituted a valid claim under the school board's insurance policy, thus triggering coverage. The court held that the claim could not be excluded on the grounds that it was an administrative action.

NYS Education Department seeks to reduce Statute of Limitations

State Ed. is once again attempting to get the NYS Board of Regents on board in its effort to get the New York State legislature to reduce the statute of limitations for filing an impartial hearing request from two years down to one year. State Ed is seeking other changes as follows:

• Amend regulations relating to integrated co-teaching to authorize a variance to the maximum number of students with disabilities (12) in an integrated co-teaching class upon notification to the Commissioner that includes documented educational justification.  

• Amend §200.13 to repeal the minimum daily frequency and duration for instructional services to address a student with autism's individual needs, while retaining the general requirement that the IEP of the student include instructional services to meet the individual student's language needs.  

• Repeal the minimum frequency/duration requirements for speech and language related services  

• Repeal the requirement in law that every teacher of the student be provided a copy of the student's individualized education program (IEP), while retaining the requirement that each teacher have access to the IEP and be informed of his/her responsibilities to implement the IEP.  

see http://www.regents.nysed.gov/meetings/2010Meetings/April2010/0410vesidd2.htm for memo from Rebecca Cort (NYSED) to the Board of Regents.

"Furlough friday" did not result in change of placement

N. D. v. STATE, 09-17543 (9th Cir. 4-5-2010): In response to a fiscal crisis, Hawaii decided to shut down its public school system on seventeen Fridays. Plaintiffs complained that this was a change of placement. They filed a hearing request and invoked stay put. Hawaii ignored the request for stay put and the parents sued. The Court held that the furlough was not violative of the IDEA stating that:

When Congress enacted the IDEA, Congress did not intend for the
IDEA to apply to system wide administrative decisions. Hawaii's
furloughs affect all public schools and all students, disabled and
non-disabled alike. An across the board reduction of school days
such as the one here does not conflict with Congress's intent of
protecting disabled children from being singled out.

District Court overrules SRO on determination of Statute of Limitations

C.B. v. PITTSFORD CENTRAL SCHOOL DISTRICT (W.D.N.Y. 4-15-2010): Parents sought reimbursement for two years at a private school. The IHO denied the claim. The SRO affirmed the denial as did the District Court. The parents also sought additional services for the failure to provide a FAPE in the year prior to the unilateral placement. This claim had been dismissed by the IHO and SRO as being beyond the applicable statute of limitations. Plaintiff parent sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP. SRO Paul Kelly held that that triggered the accrual of the claim. The Court disagreed stating that “[t]he fact that Plaintiff sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP does not support the conclusion that she knew about the injury of which she now complains.” Plaintiff alleged that the 2005-2006 IEP was deficient, because it did not provide "support for [EB's] deficits in executive functioning." Plaintiff maintained that she first became aware of such deficiency in March 2006. The Court found that the 2005-2006 claim for additional services accrued in March 2006 and that thus, the parents claim was timely filed.

SRO reverses IHO and awards reimbursement

SRO 10-007: This case is worth reading. The child presents as multiply disabled with significant behavioral difficulties. After much ado, the parents placed the child into a private school and sought reimbursement. The IHO wrote a cursory one and a half page decision denying reimbursement. Even Paul Kelly, who finds merit in virtually everything pro-district, would not save this one. After castigating the IHO for failing to follow requirements for proper decision writing, SRO Kelly then found for the parent on a number of different grounds including 1) the district failed to sufficiently evaluate the student's extensive behavioral needs before making program and placement recommendations in the June 2009 IEP, therefore the recommendation was based upon insufficient evaluative data, 2) the specific BOCES placement did not have the recommended 12:1+1 program, 3) the district's failed to meet its burden to show that a 6:1+1 program was substantively appropriate for the student and was in the LRE, and 4) the district's recommendation for a 6:1+1 program was made with insufficient parent participation. The SRO then went on to find that the private placement (West Hills) was appropriate although the child had only been there for a few weeks at the conclusion of the hearing.

Significantly, the SRO denied reimbursement for related services. West Hills is operated under the auspices of the Gersh Academy. The related service providers are Gersh employees who are "available everyday" but are only on-site at West Hills two to three days per week providing services to their assigned students unless they are providing additional student consultations, training or participating in team meetings. SRO Kelly found that it was unclear what needs were being addressed by the related services providers and that thus “the parents have not met their burden to show that the therapy sessions and counseling sessions were appropriate to meet the student's unique needs in these areas.”

Court rejects school district effort to recover attorney fees from parent

ALIEF INDEPENDENT SCHOOL DISTRICT v. C. C. (S.D.Tex. 4-7-2010): District sought to reevaluate child. Parent refused consent. District received permission from state agency to evaluate and did so. Parent filed hearing request alleging various violations and district counterclaimed alleging, inter alia, that its recommendations were proper and that the parent had filed the hearing request for “an improper purpose”. The parent subsequently sought dismissal of his own claim and the district’s claim. The district refused to withdraw its claims and the hearing went forward on the district’s claims which were essentially to prove the appropriateness of their recommendations. The district prevailed at hearing except on the issue of whether the parent’s complaint was filed for an improper purpose. The district appealed the adverse determination and sought fees in federal court. The court rejected the district’s claim for fees finding that its counterclaim did not arise under §1415 because it did not allege any violation of the IDEA.

New York Court of Appeals addresses assumption of risk defense in school context

Trupia v. Lake George: Generally the content of this blog is limited to special education issues. This case, while not a special education case, could nonetheless be of interest to folks reading the blog. The case addresses the doctrine of assumption of risk in a school context. The majority opinion is a bit obtuse, thus I quote from the concurring opinion to summarize the gist of the case:

Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy "assumed the risk" that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need.

NY Court of Appeals upholds right to services on site at private school

Bay Shore v. Thomas K.: The issue of the right to on site services at a private school has been hotly litigated since the early 1990s (see, e.g. Russman). This is the most recent case of significance. The situation giving rise to this legal action arose in 2004. The child was attending a private school when he was referred to the district CSE. The CSE recommended that the child be classified as OHI and that he receive resource room and a 1:1 aide, but only if he were to attend the public school. The parents requested a hearing, asserting that he should be able to receive the services of the aide in the private school. The IHO and SRO found for the parent. The school district appealed to federal court. The federal district court affirmed prompting an appeal by the school district to the 2nd Circuit. The 2nd Circuit vacated and dismissed the district court decision for lack of subject matter jurisdiction finding that the issue was one of purely state law. The school district then commenced a state court action to vacate the SRO decision. The courts continue to hold for the parents; first the state supreme court, then the appellate division (60 AD3d 851, 852 [2009]) and now the NY Court of Appeals. The Court of Appeals reasoned that while the language of Education Law §3602-c does not compel on site provision of services, it allows for the provision of services on site at a private school. Here, the child could not have benefitted from the recommended 1:1 aide services unless they were delivered on site.

The school district also argued that an aide was not a “service” under the law. The court also rejected this argument.

504 eligibility case regarding ameliorative effects of medication

CENTENNIAL SCHOOL DISTRICT v. L. (E.D.Pa. 3-26-2010): The hearing officer determined that a child with ADHD was eligible for services under §504. The District Court remanded to the hearing officer to consider “the mitigating effect of Matthew's ADHD medication.” This decision appears to be blatantly wrong. In support of its decision, the Court cites to Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 482 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002). The erroneous reasoning in these cases was expressly addressed by Congress in recent amendments to the ADA (ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008)). The Court ignored the amendments, the most pertinent of which states that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication.”

SRO reviews issue not raised in hearing request

SRO 10-001: Generally, issues on appeal are limited to those raised in a hearing request. In this case, the parent raised an issue on appeal that was not raised in the hearing request. The SRO permitted it stating that

although the parents did not raise this issue in the due process complaint notice, a review of the hearing record reveals that it was addressed during the impartial hearing and the district did not raise any objection as a result thereof. Further review of the hearing record reflects that the district also raised this issue during the impartial hearing. Therefore, the district's claim that the impartial hearing officer exceeded the scope of her review is not persuasive.

Cert denied on reimbursement claim

HOUSTON SCH. DIST. v. V.P., 582 F.3d 576 (5th Cir. 2009), cert denied 3/22/10, Docket No. 09-841: The opinion in this case is rather torturous, but the upshot is that the 5th Circuit awarded year 2 of a reimbursement claim on a pendency theory. The 5th Circuit also found that the parent had prevailed on the year 2 claim for purposes of attorney fees. The Supreme Court rejected the District’s petition for review.

SRO orders reinstatement of related services

SRO 10-011: Child had been placed at a state approved private school with outside related services. District recommended a change to a district school. Parent challenged the changes at hearing and prevailed on the placement, but the IHO did not rule on the elimination of the outside related services. SRO reinstated the related services stating

the district bore the evidentiary burden to show that the reduction in related services, as provided for by the April and May 2009 IEPs (i.e. the elimination of the outside related services), was appropriate. A review of the impartial hearing record reveals that the district did not meet its burden in this regard. In fact, the hearing record is devoid of evidence supporting the appropriateness of such a reduction in services. I will therefore direct the district to reinstate the delivery of such services within two weeks of the date of this decision.

Court encourages civility

G.J. v. MUSCOGEE COUNTY SCHOOL DISTRICT (M.D.Ga. 3-25-2010): I thought that this was worthy of note:

The Court finds that several final observations are appropriate. The record in this action and in the administrative proceeding suggests that counsel have a hostility toward one another that is troubling.[fn15] The briefs and other submissions from both sides contain vituperative language regarding the opposing party and counsel. Common courtesy and civility seem absent from most meetings between counsel and the parties. The emotional strain between Plaintiffs and representatives of MCSD is understandable, but counsels' conduct in aggravating that strain is unprofessional and counterproductive. While contested legal issues require zealous advocacy, the ultimate resolution of a child's right to an adequate education also depends upon collaboration, which requires mutual respect. The Court encourages counsel to lay down their swords, at least temporarily, so that the parties can regain their focus on the fundamental goal at the heart of their dispute: developing an appropriate educational plan for a young child who is depending upon them to do so.

Court orders evaluation and finds that parents did not waive right to IDEA services

G.J. v. MUSCOGEE COUNTY SCHOOL DISTRICT (M.D.Ga. 3-25-2010): The ALJ
found that the Parents withheld their consent to the reevaluation of their son and that this refusal absolved the District from any further responsibility to provide services to their son. The Parents had demanded a variety of conditions and restrictions on the evaluation, some of which were agreeable to the District and others which were not. The Court agreed with the ALJ that the attempt to impose conditions amounted to a refusal of consent to evaluate. The Court disagreed with the ALJ, however, that the refusal to consent relieved the District of its responsibility to provide services to the child. Rather, the Court ordered the Parents to consent to the evaluation with conditions as described in the Court order if they wanted their child to continue to receive services.

9th Circuit affirms child find violation

COMPTON UNIFIED SCHOOL DISTRICT v. ADDISON, 07-55751 (9th Cir. 3-22-2010): The child at issue received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor attributed Addison's poor performance to common "transitional year" difficulties. Remarkably, the counselor did not consider it atypical for a ninth-grader to perform at a fourth-grade level. The District Court held in favor of the parent, finding that the district should have classified the child. The District appealed arguing that the IDEA did not provide for the right to due process under these circumstances–i.e. where a district did not propose or refuse to initiate a change regarding a student's identification, assessment, or placement. The Court affirmed noting that the IDEA must be read as a whole to avoid absurd results. Citing to Forest Grove, the Court explained that a "reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress' acknowledgment of the paramount importance of properly identifying each child eligible for services." Finally, the Court noted that “§1415(b)(6)(A) states that a party may present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child."

In class action, NDNY upholds NYS regulations regarding use of aversives, but enjoins enforcement due to FAPE claims

ALLEYNE v. NEW YORK STATE EDUCATION DEPARTMENT, (N.D.N.Y. 2-24-2010): This class action was filed in 2006. It addresses the use of aversive procedures at the Judge Rotenberg Center (JRC). Much attention on a national level has recently focused on the use of aversive procedures to control the behavior of students with disabilities. The thrust of most of the political activity is to curtail, severely limit or eliminate such procedures. This action, brought on behalf of parents of students at JRC, however, challenged New York State’s attempt to restrict the use of such procedures “when they passed emergency regulations that eliminated or restricted aversive treatments that had been authorized for the student plaintiffs.” In 2006, the Court enjoined NYSED from enforcing the emergency regulations.

The Court held that the regulations reflected an informed policy decision that must be accorded deference.

the regulations represent an informed, rational choice between two opposing schools of thought on the use of aversives. Whether it was the best choice, or one that the court would have made, is irrelevant. The court, with its limited educational expertise, is not the final arbiter in the realm of behavioral modification. As the regulations are neither arbitrary nor capricious, and are consistent with the purposes of the IDEA, plaintiffs' facial attack must be rejected.

The Plaintiffs also claimed that the regulations, as applied to the them, denied them a FAPE. On this point, the Court ruled in their favor. Thus, NYS’s motion to dissolve the preliminary injunction was rejected. The Court reasoned that academic progress is not the sole measure of a FAPE. The Court expressly rejected NYS’s argument that “so long as "a student is making academic progress, related services that address a student's social and/or behavioral issues may be denied even if problematic behaviors continue."

When in doubt, exhaust the administrative process

PAYNE v. PENINSULA SCHOOL DISTRICT, 07-35115 (9th Cir. 3-18-2010): This case, which addresses the use of a “safe” room for an autistic child, is an excellent example of why a parent should exhaust the administrative process unless there is no doubt that she has the right to go directly to court.

District can not recoup pendency payments

NEW YORK CITY DEPARTMENT OF EDUCATION v. S.S. (S.D.N.Y. 3-17-2010): This case addressed “the allocation of financial responsibility for private school tuition for a student with a disability during the pendency of due process proceedings under the I.D.E.A.” NYC has been arguing in many cases that the district should have a right to recoup pendency payments when and if it is ultimately determined that a parent is not entitled to reimbursement. In a rather stinging decision, Judge McMahon rejects the NYC position, holding that “a school district's responsibility for funding a child's private school education continues until the moment when the child's pendency changes.” Only then does a parent become liable for the child’s private school tuition. Relying on 2nd Circuit case law (Murphy and Schutz), the Court explained that “Second Circuit case law makes it clear that a final determination in the school district's favor on the issue of FAPE does not alter the school district's financial responsibility for maintaining the student's pendency placement” reasoning that to hold otherwise would render the pendency provisions meaningless.

The Court also held that a “claim against a private school for reimbursement under IDEA by an educational agency is unprecedented and beyond the contemplation of the statute.”

Settlement offer does not deprive the hearing officer or the Court of subject matter jurisdiction

A.O. v. EL PASO, 09-50332 (5th Cir. 3-3-2010): District offered parent all requested relief including reasonable attorney fees. Parent declined the offer wanting to go to hearing instead. The IHO dismissed the hearing request. The district court remanded the case for an impartial hearing and the 5th Circuit affirmed citing to its decision in Richard R. The 5th Circuit highlighted that the IDEA allows for limitation of attorney fees for rejection of a settlement offer when ultimately the parent attains relief no greater that that which was offered in settlement, but that the settlement offer does not deprive the IHO or the court of jurisdiction over the claim.

SRO finds for parent for failure to reschedule CSE meeting

SRO 09-124: District scheduled a CSE meeting. Parent advised that she was unavailable but that her schedule was open after a certain date. District refused to reschedule the meeting. Rather, the district had the mother sign a form which stated in pertinent part that the student's mother

w[ould] not attend the Committee meeting. I understand that the meeting will be held in my absence and that I have the opportunity to address the committee in writing. I also understand that I will be informed of the committee's recommendation by mail and that I will request another meeting to follow-up as discussed.

The parent testified that she felt she had no alternative but to sign. The SRO held that it was error for the district to not reschedule the CSE meeting and that the failure to do “significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a [FAPE] to the student” and thus, deprived the student of a FAPE. See also, J.N. v. District of Columbia, 110 LRP 2529 (D.D.C. 01/11/10) (docket #07-665 (RWR)). 

Pendency: preschool to school age

SRO 09-125: Child was placed by the CPSE in an in school program and also received home based services. Parent agreed to the CSE’s recommended placement for kindergarden, but also sought continuation of the home based portion of the program. District cut off the home based portion. Parent sought the home based piece via pendency. IHO sided with the district; SRO reversed in favor of the parent.

SRO refuses to consider parent claims in absence of cross-appeal

In both SRO 09-136 and 09-143, the parent prevailed at hearing and was awarded reimbursement for a private placement. Each of these decisions was reversed on appeal. In each case, the parent did not cross-appeal because the parent was not aggrieved. In the absence of a cross-appeal, the SRO refused to consider claims raised by the parent in the hearing request, not considered by the IHO, and raised in the parent’s papers on appeal.

Denial of a FAPE is Not Required for a Parent to recover fees

Weissburg v. Lancaster School District, ________ (9th Cir. 2010): In a case decided January 14, 2010, the 9th Circuit held that a parent can recover attorney fees even when there is no denial of FAPE (see also cases cited at footnote 2). Here, the parent prevailed on the claim that her child should be classified autistic. The Court found that prevailing on an eligibility determination altered the legal relationship between the parties. Also, of interest, the Court held that the IDEA authorizes attorney fees for legal services provided by a family member who is not a parent of the child at issue.

SRO rejects reimbursement claim based upon failure to provide related services

SRO 09-119: IHO found for district in reimbursement claim. SRO reversed on prong 1, but held for the district nevertheless, finding that the parent had failed to establish the appropriateness of the private placement. The SRO reasoned that the private placement was not appropriate because it failed to address the child’s need for related services. Notably, the parents had RSAs (related services authorizations) from the district for the provision of related services. The SRO provided no analysis as to why the parent should not be able to supplement the private program through external provision of related services. I have no doubt that the appropriateness of a district program would be assessed by the SRO taking into consideration all components–i.e. services provided by school district personnel and services for which the school has contracted. I see no reason why the appropriateness of a parental placement should be assessed by a more exacting standard.

Failure to include the parents at CSE meeting resulted in denial of FAPE

Drobnicki ex rel. Drobnicki v. Poway Unified School Dist., Slip Copy, 2009 WL 4912163, C.A.9 (Cal.),2009: District scheduled a CSE meeting. Parents did not agree to date. District made no further efforts to reschedule the meeting. Rather, the district conducted the CSE meeting, despite parent request to reschedule. The 9th Circuit held that this was a denial of FAPE. They did so without an analysis of whether the IEP substantively complied with the IDEA finding that the “failure to include the persons most knowledgeable about [the student’s] educational levels and needs-namely, ... [the student’s] parents-at the [October 10] IEP meeting ... resulted in lost education opportunity.”

Note that this case could be of significance where a district fails to include in the decision making process other individuals most knowledgeable about a child.

Compensatory education claim

Petrina W. v. City of Chicago Public School Dist. 299, Slip Copy, 2009 WL 5066651, N.D.Ill.,2009: IHO held that comp ed claim was not ripe until the student turned 22. The district court held otherwise finding that “compensatory education can be appropriately sought and granted prospectively-that is, before the student has reached the age of 21.” The Court further held that the proper question in a comp ed case is “how much compensatory education-if any-is necessary to restore [the student] to the position she would have occupied, had the School District provided her with a FAPE during the periods in which she was deprived of one.“