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Tuesday, May 11, 2010

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.