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Wednesday, March 31, 2010

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.

Tuesday, March 30, 2010

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 In support of its decision, the Court cites to Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 482 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).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.”

Monday, March 29, 2010

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.