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Friday, April 16, 2010

"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.

Tuesday, April 13, 2010

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.”

Monday, April 12, 2010

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.