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Friday, June 4, 2010

SDNY slams NYC in attorney fee action


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

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.