SDNY reverses SRO again

E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT (S.D.N.Y. 9-30-2010): The SDNY continues to be the court most willing to pierce through the barriers imposed by the New York State Review Office. This was a two year tuition reimbursement claim at a residential school. The parent went into court having lost at both the impartial hearing and the SRO. The court affirmed the denial of reimbursement for year 1, but reversed in favor of the parent for year 2. The court found that the district failed to adequately take into consideration the child’s progress at the residential placement and that was manifested in the district’s recommendations by:

1. placement with kids who were not of similar needs and abilities
2. by the failure to include an individualized reading program despite the fact that the child had progressed in reading when provided with 1:1 multisensory, individualized reading instruction
3. the replication of the goals and objectives from the previous year’s IEP despite having evidenced progress at the residential placement (“it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S.progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.”)

Parent attorneys should take note of how the Court approached the use of the kid's progress at the parental placement on prong 1, the approach to progress on prong 2, the analysis of LRE–in particular, the Court's view that "the right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement."–and the Court's analysis of the equities.

Court reverses SRO denial of reimbursement claim and holds that late notice warrants reduction rather than denial

WOOD v. KINGSTON CITY SCHOOL DISTRICT (N.D.N.Y. 9-29-2010): Parent placed child at the Kildonan School and sought tuition reimbursement. Parent prevailed at hearing. SRO reversed on the equities finding that the parent’s notice to the District of their dissatisfaction with the IEP and intent to enroll the child in Kildonan was untimely. The District Court held that the fact that the parent had provided notice of intent to make a reimbursement claim 5, rather than 10, business days prior to the start of the school year at Kildonan, warranted a 10% reduction in the award of reimbursement rather than denial of reimbursement.

Update on New York State Review Office situation

I was just advised by the Office of State Review that a replacement for the recently departed Paul Kelly has not yet been named and that in the interim, Frank Munoz, Robert Bentley and Joseph Frey will act as State Review Officers.

School district can not recoup pendency payments

Atlanta v. SF : In this case decided in September 2010, a Georgia court held “that parents of a child awarded private educational services because the IEP offered by the school was deemed to be inappropriate are not required to reimburse the school district for that expenditure, even if the administrative decision is later reversed.” This decision contains an overview of case law addressing this issue from other courts around the country. It is of particular interest here in New York as the New York City Board of Education has made repeated attempts to recoup pendency payments.