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Friday, March 26, 2010

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

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.

Wednesday, March 24, 2010

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."

Monday, March 22, 2010

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.”