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Wednesday, April 28, 2010

New York State Ed continues to hammer away at parent and student rights

NYSED is pushing the Board of Regents to support legislation and regulatory changes to, among other things, shorten the statute of limitations from the present 2 years to 180 days for reimbursement claims and 1 year for all other claims. See NYSUT memo at http://www.nysut.org/bulletins_15009.htm for a complete listing of the issues as well as NYSUT’s position on the issues.

Court affirms order allowing classroom observation as part of independent evaluation


Parents contended that implementation of an unwritten policy prevented them from obtaining an independent psychological evaluation; that without the completed evaluation, the parents did not have the information they needed to effectively participate in the development of an IEP for their child; and that the parents’ right to obtain an independent educational evaluation (IEE) under the IDEA included the right to have their private psychologist conduct in-school observations of their child. The Court agreed with the parents citing to an OSEP memo, Letter to Mamas, 42 IDELR 10. The Court thus affimed the ALJ’s order allowing the psychologist retained by the parents to conduct an in-school observation of at least two hours.

Monday, April 26, 2010

Court denies motion to dismiss complaint seeking audio-visual surveillance

C.S. v. STATE (E.D.Mo. 9-8-2009):

Child suffers from multiple severe disabilities and is placed by the school district in a state school for the severely handicapped. Parents alleged that the child was neglected and abused and that the school failed to implement the child’s IEP. Parents sought compensatory services and audio/visual surveillance. The school district moved to dismiss the parents’ complaint. The Court examined the request for surveillance and held that it could be necessary for a child to receive an appropriate education. Therefore, the Court refused to dismiss the complaint.

Circuit Court rules in favor of parents on private school claim despite good grades

D.S. v. BAYONNE BOARD OF EDUCATION, 08-4730 (3rd Cir. 4-22-2010): Parents sought placement for their son at a private school for learning disabled kids. CSE recommended public school placement. Child achieved good grades at the public school. Parents nevertheless challenged the appropriateness of the program. Parents prevailed at the hearing. The hearing was a state level hearing in New Jersey, a single tier state. The District implemented the decision placing the child at the private school, but appealed the decision to the District Court. The District Court reversed in favor of the school district. The parents appealed and the 3rd Circuit reversed back in favor of the parents relying primarily on deference to the hearing officer’s findings.
        This case is of particular importance because so often schools will rely on good grades to justify the appropriateness of placement/program recommendations. Yet, the validity of grades achieved in a self contained setting is often suspect. Here, the ALJ weighed the results of standardized tests and the testimony of experts against the surface appeal of the good grades buttressed by the testimony of school district personnel and concluded that the child was not receiving a FAPE despite the good grades. The 3rd Circuit noted that

we think that it is clear that a court should not place conclusive significance on special education classroom scores, a conclusion that we believe is reinforced by the circumstance that, as here, there may be a disconnect between a school's assessment of a student in a special education setting and his achievements in that setting and the student's achievements in standardized testing.[fn8] When there is such a disconnect we think that there should be an especially close examination of the appropriateness of the student's education.

Sunday, April 25, 2010

Virginia State Court holds that insurance policy provided coverage to school district in special education tuition reimbursement case

School Board of the City of Newport News v. Commonwealth of Virginia: Parent filed a hearing request seeking reimbursement for a private placement. District sought coverage under a policy administered by the Commonwealth of Virginia. Coverage was denied. Parent was awared reimbursement at hearing. The District filed a State level appeal in response to which, the award to the parent was reduced. The parent then appealed to federal court. The federal district court reinstated the hearing officer award and that determination was affirmed by the 4th Circuit Court of Appeals.
        The school district then filed an action in state court challenging the denial of coverage. The Virginia supreme court held that an action filed in state or federal court pursuant to IDEA, following exhaustion of state administrative procedures, was an independent civil action, not an administrative action, and that such an action constituted a valid claim under the school board's insurance policy, thus triggering coverage. The court held that the claim could not be excluded on the grounds that it was an administrative action.

NYS Education Department seeks to reduce Statute of Limitations

State Ed. is once again attempting to get the NYS Board of Regents on board in its effort to get the New York State legislature to reduce the statute of limitations for filing an impartial hearing request from two years down to one year. State Ed is seeking other changes as follows:

  • Amend regulations relating to integrated co-teaching to authorize a variance to the maximum number of students with disabilities (12) in an integrated co-teaching class upon notification to the Commissioner that includes documented educational justification.  
  • Amend §200.13 to repeal the minimum daily frequency and duration for instructional services to address a student with autism's individual needs, while retaining the general requirement that the IEP of the student include instructional services to meet the individual student's language needs.  
  • Repeal the minimum frequency/duration requirements for speech and language related services  
  • Repeal the requirement in law that every teacher of the student be provided a copy of the student's individualized education program (IEP), while retaining the requirement that each teacher have access to the IEP and be informed of his/her responsibilities to implement the IEP.  
see http://www.regents.nysed.gov/meetings/2010Meetings/April2010/0410vesidd2.htm for memo from Rebecca Cort (NYSED) to the Board of Regents.