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Friday, October 15, 2010

SDNY reverses the SRO yet again

G.B. and L.B. on behalf of N.B. v. Tuxedo, 09-CV-859, decided September 30, 2010: District sought to remove autistic child from an integrated class. Parents disagreed, removed the child from the school, placed her in a private school and sought reimbursement. The IHO and the SRO ruled against the parent. The District Court reversed in a detailed opinion finding that an integrated class was the least restrictive environment in which the child could receive an appropriate education. In doing so, the Court applied the test adopted by the 2nd Circuit in P. v. Newington. Of note, the Court stated that “boilerplate, conclusory language cannot satisfy the requirement that the CSE seriously consider …including the child in a regular class with such supplementary aids and services as appropriate” and that the Court need only determine that with appropriate support and services, the child could make progress toward her IEP goals in the regular education setting. The Court found that uncontradicted evidence of progress in an integrated setting, expert testimony supporting the appropriateness of the integrated setting, and even testimony from district witnesses strongly supported the conclusion that an integrated class would be far more beneficial for the child than a self contained class.

The Court addresses the deference issue by noting that the IHO and SRO improperly ignored evidence and failed to apply the test for determination of LRE. Also, the Court treated the LRE issue as one for which deference is not owed because it is not a matter of educational policy, but rather the enforcement of a requirement of the IDEA.

Finally, this case is not over. The Court ruled that the amount of reimbursement should be reduced for the parent’s failure to provide proper, timely notice. The Court ordered additional briefing on the extent of reduction.

Thursday, October 14, 2010

State agency not subject to the jurisdiction of the IHO

Chavez v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, 10th Circuit 2010: A high functioning autistic child was home schooled for 18 months because the school district refused to address his school refusal or avoidance problems. The parent took the school to hearing and also attempted to take the state education department to hearing. The IHO ruled that there was no jurisdiction over the state agency. The state level review affirmed that decision. The district court, however, held that the IHO had jurisdiction over the state agency and that the state agency was at fault for not providing direct services to the child. The 10th Circuit reversed reasoning that the state agency was not directly involved in the provision of the child's program. It’s an interesting opinion as the Court struggles with the reality that the child had been denied an education, the role that the state is to play in such situations and the potential ramifications of holding the state responsible. The Court makes clear that there could be situations where a state agency may be held responsible for direct provision of a child's services.