SRO upholds award of reimbursement

SRO 11-126: Parent placed student at a private school and sought reimbursement. IHO ruled in parent’s favor. SRO affirmed the decision. Of note, the SRO found that the parent’s 10 day notice of intent to seek reimbursement was timely because it was submitted more than 10 days prior to when the student started at the private school.

Improper reduction in related services

The frequency and duration of related services for a particular child is determined by the CSE and is required by law to be indicated on the student’s IEP. The school district must provide special education and related services to a student with a disability in accordance with the student's IEP. A student’s IEP can not be changed outside the CSE process without the express agreement of the parent. Therefore, a school can not reduce the frequency of provision of related services without going through the CSE process unless the school secures the agreement of the parent. It has come to our attention that schools – particularly schools in New York City – have been reducing the frequency of provision of related services without going through the CSE. If this has happened to your child or if you know of someone to whom this has happened, please feel free to contact us.

OSEP comments on CSE composition

The composition of the CSE is oftentimes questionable. Some school districts – e.g. New York City – will oftentimes convene meetings without including those individuals that have the best knowledge of the child. OSEP recently issued a policy letter in which they stated that “if a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting.” Furthermore, “[i]f the child’s disability is a speech impairment and the only service the child receives is speech-language pathology, and speech-language pathology is also considered special education rather than a related service under State standards, then the special education provider on the IEP Team for the child should be the speech-language pathologist …OSEP believes that it is critically important to the provision of FAPE that the public agency require individuals to attend IEP Team meetings who are in the best position to address the educational program for, and the unique needs of, each child with a disability … OSEP expects that each public agency will ensure that each child’s IEP Team is composed of persons knowledgeable about the child and the child’s full range of educational needs, including the amount and type of special education and related services that the child needs in order to receive FAPE.”

Supreme Court denies cert in 8th Circuit IDEA discipline case

Doe v. Todd: The Supreme Court denied cert in a case in which a South Dakota high school student with learning disabilities was placed in an alternative school for 38 days without a formal hearing. Parent chose to seek recourse through the school board rather than through IDEA due process.

Saranac Lake School District sued for failure to appropriately address bullying

Parents have filed a $6 million dollar lawsuit against the Saranac Lake Central School District to address allegations that their young daughter was bullied, harassed and assaulted in school because of her race. See article.

Guidance on physical education for students with disabilities

The federal government recently issued guidance on physical education for students with disabilities. The report can be found here.

4th Circuit Court of Appeals issues important internet bullying decision

Kowalski v. BERKLEY COUNTY SCHOOLS (4th Cir. 2011): Student K.K. set up a My Space page targeting a fellow student at her high school. She did so on her home computer. The Court determined that the student used the internet “ to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.”” The Court, thus, upheld the suspension of K.K.

Private evaluator can observe student in the classroom

SRO 11-074: Parents have the right to have the evaluator of their choice, for whose services they have not sought reimbursement from the district, observe the student in his district classroom.

Attorney fees

The issue of attorney fees has been in the forefront of late. Today’s case of note is not a special education case, but is one that is of interest in the special ed lawyer’s world, as it addresses a court’s decision to award negligible fees in light of the small monetary award achieved by the plaintiff. The case, MILLEA v. METRO NORTH RAILROAD COMPANY, decided by the 2nd Circuit on August 8, 2011, was brought pursuant to the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to the IDEA fee provision. There are a few things of note in the decision. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.”

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. It was not a derisory or contemptuous rejection by the jury. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.”

EDNY affirms reimbursement award and addresses mootness and justiciability

NYC v. V.S. (E.D.N.Y. 7-29-2011): Parents disagreed with the NYC DOE recommendations, placed their autistic child at the Rebecca School and sought reimbursement. The IHO ruled in favor of the parents; the SRO dismissed the DOE appeal on mootness grounds as the DOE had paid the full year of tuition as pendency. The DOE appealed to federal court. The EDNY held that the case was not moot, given that the child’s continued pendency placement would turn on the court’s ruling. Next, the DOE sought remand to the SRO; the Court declined to remand reasoning that while remand is permissible under some circumstances, the drawbacks outweigh the benefits, particularly since the IHO had issued a well reasoned decision. The court than deferred to the judgment of the IHO finding that her conclusions were well supported by the record. In particular, the court affirmed the IHO’s conclusions regarding methodology (while the Rebecca School administrator testified “in some detail as to why TEACCH would be unable to teach V.S. the basic skills he needs to learn, the DOE has cited no evidence that TEACCH would be an effective method for educating V.S.”) and the size and mixed-use nature of the school building (“the general education school in which the self-contained 6:1:1 class would be housed would create a sensory overload for [V.S.] which would interfere with not only his learning but the learning of his classmates as well”).

SRO holds that regents diploma does not moot compensatory education claim

see SRO 11-044

D.C. Circuit reverses award of attorney fees to district

DISTRICT OF COLUMBIA v. IJEABUONWU, 09-7092 (D.C. Cir. 6-28-2011): Parent filed a hearing request alleging failure to timely evaluate. District fairly quickly offered a comprehensive independent evaluation. IHO dismissed the hearing request as moot. The District then sued for attorney fees. The District Court awarded fees to the school district. The Circuit Court reversed, finding that

If the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover [attorneys'] fees from the parents' lawyers. Straus, 590 F.3d at 902. To allow this practice would deter lawyers from taking IDEA cases and thereby deprive parents of their most effective means of enforcing the statute.

SRO reverses IHO and awards partial reimbursement to parent

SRO 11-041: The IHO found against the parent on a private school reimbursement case. In what is an extraordinarily rare occurrence, the SRO reversed in favor of the parent holding that the CSE had inadequate evaluative information from which to develop the IEP, that the private placement was appropriate, and that the equities weighed in favor of a partial reimbursement award. The equities section is the most interesting. The SRO held that the parent had not provided adequate prior notice of the intent to seek reimbursement for the private placement, the SRO only docked the parent 25% for said failure. The SRO then found that the parents had not adequately established that they lacked the resources to front the student’s tuition costs. Thus, it appears that the SRO denied the parents request for an order that the DOE pay the private school directly; rather the SRO ordered that the DOE reimburse the parent 75% upon proof of payment of the tuition.

3rd Circuit upholds reimbursement for supplemental home based services

NEW MILFORD BOARD OF EDUCATION v. CR (3rd Cir. 2011): Parents supplemented the school program for their autistic child with two hours of nightly in-home education at their own expense. The parents alleged that the district failed to provide a FAPE asserting that an appropriate IEP required substantial in-home instruction to curb their child’s aggression and self-stimulation. The parents sought reimbursement for two hours of nightly in-home education secured at their own expense. The ALJ, district court and 3rd Cir. all ruled for the parent. The 3rd Circuit reasoned:

T.R.'s IEP was inadequate because the "complementary nature of the home program was required for [him] to receive the meaningful educational benefit mandated by the IDEA." New Milford Bd. of Educ. v. C.R., 2010 WL 2571343, at *6 (D.N.J. June 22, 2010). If a mentally disabled child continuously presents an adverse behavior that genuinely interferes with his ability to garner any real benefit from the education provided and the IEP does not adequately remedy this behavior, it stands to reason that the school district has failed to provide even a "basic floor of opportunity," much less the meaningful benefit required by our Court. D.S., 602 F.3d at 557. Here, the record included substantial evidence that T.R.'s behaviors were not only detrimental to his home life, but also interfered with his learning. For example, T.R.'s aggressive behavior resulted in his avoidance of educational tasks during his IEP program. For this reason, we agree that T.R. did not receive the meaningful educational benefit required by the IDEA.

4th Circuit upholds reimbursement for home schooling placement

Sumter v. Heffernan (4th Cir. 2011): Parents pulled their autistic child from the public school system and set up a program for him at home. They then sought reimbursement for the costs of an ABA therapist. In what appeared to be a close decision, one that prompted a dissent in part, the Court ruled in favor of reimbursement. Of particular interest is the 4th Circuit’s rejection of a strict application of the LRE requirement as applied to a parental placement. The 4th Circuit joins the 8th Circuit as Courts recently adopting a looser standard for LRE as a factor in determining the appropriateness of the parental placement.

5th Circuit: Failure to attend meeting subsequent to resolution session does not defeat parents attorney fee claim

ECTOR CTY. INDEPENDENT SCHOOL DIST. v. VB (5th Cir. 2011): Parent requested an impartial hearing. At the resolution session, the school district offered to schedule another CSE meeting to address the parent’s concerns. The district did in fact schedule such a meeting and, on the advice of counsel, the parent refused to attend. The matter went to hearing and the parent prevailed. The school district appealed. The district court held in favor of the parent, rejecting the school district’s argument that the parent had “unreasonably and needlessly protracted the litigation by refusing to attend the [CSE] meeting that would have implemented an alleged agreement made at the meetings.” The district court also awarded attorney fees to the parent. The 5th Circuit affirmed. The Court reasoned that alleged protraction of litigation is irrelevant with respect to the analysis as to whether a party has prevailed. It may, however, be relevant to whether a fee award should be reduced. Here, however, the Court rejected the district’s argument that a fee reduction was warranted. The Court refused to read into the law a requirement that the parent participate in a meeting subsequent to the resolution session.

EDNY addresses whether bullying could result in the denial of FAPE

T.K. v. NYC (EDNY 2011): This case presents the interesting and timely issue of whether bullying can result in a denial of FAPE. Parent placed child privately and sought reimbursement. The IHO and the SRO ruled against the parent. Judge Weinstein of the EDNY examined the issues from a variety of different angles, ultimately denying the District’s motion for summary judgement and adopting a test as follows: “under IDEA the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.” Judge Weinstein determined that “the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.”

Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. Id. Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. Id. The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. Compare, DOE Bullying and Harassment Letter, supra, to Werth v. Bd. of Dirs. of Pub. Schs., 472 F. Supp.2d 1113, 1127 (E.D. Wisc. 2007); K.M. v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 (S.D.N.Y. 2005) (citing Davis, 526 U.S. at 640-53). It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.

To be denied educational benefit a student need not regress, but need only have her educational benefit adversely affected. Academic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by IDEA. In New York, IEP's are required to give children more than an opportunity for just "trivial advancement." Mamaroneck Union Free Sch. Dist., 554 F.3d at 254. The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by IDEA. Where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder.

8th Circuit holds that private placement need not satisfy a least-restrictive environment requirement

CB v. Special School District No. 1 (8th Circuit 2011): IHO awarded reimbursement to parents for the costs of a private placement. The district court reversed the IHO finding that although the public school had not provided the student with a FAPE, the private school was not appropriate because the student body was comprised mostly of students with disabilities. The 8th Circuit reinstated the IHO’s ruling.

We conclude that the mainstreaming preference of the IDEA does not make Groves an inappropriate private placement under the circumstances. The statute calls for educating children with disabilities together with children who are not disabled "[t]o the maximum extent appropriate." Id. (emphasis added). Here, the School District failed to develop an IEP that made available a free appropriate public education. At that point, C.B.'s parents had a "right of unilateral withdrawal," Florence Cnty., 510 U.S. at 13, and a right to reimbursement for private tuition, so long as the placement was "proper under the Act," Burlington, 471 U.S. at 369, and the award "furthers the purposes of the Act." Forest Grove, 129 S. Ct. at 2493 n.9.

The overriding purpose of the Act is to provide an education for disabled children that is both free and appropriate. The Act was designed, as the hearing officer noted, "to open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. But once the School District failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for C.B.'s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.

The parents were not required to allow the District another opportunity to try yet again with a different IEP that featured the CLASS program when the District did not propose that alternative in any of the IEPs that preceded C.B.'s withdrawal. Reimbursement for the costs of enrollment in a private school is authorized if the hearing officer finds that the District "had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii)(emphasis added). A less restrictive environment is the ideal, but C.B.'s move to Groves after years of frustration in the public schools is a far cry from "the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes" that concerned Congress. See Burlington, 471 U.S. at 373. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be "proper" under the Act. See Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998).

Aside from the concern that Groves educates primarily children with disabilities, there is no doubt that it was a proper placement for C.B. As the hearing officer summarized:

Groves offers the Student teaching methods and programs that the School District has not provided. In addition to these methods and programs, the ability to group and re-group students throughout the day to ensure reading skills are reinforced across subjects sets Grove[s] apart. Moreover, the District's own teachers thought that Groves is an appropriate place for the Student. His mother has seen an "explosion" of learning since the Student entered Groves.
We conclude that the placement at Groves was proper under the Act, and that reimbursement for tuition paid by C.B.'s parents to Groves for the 2008-2009 academic year is not precluded by the statute's preference for education in the least restrictive environment.

Can a parent sue a district for negligently failing to classify her child?

see School Law Blog

Damages case for wrongful use of timeout room lives on

Schafer v. HICKSVILLE UNION FREE SCHOOL DISTRICT, Dist. Court, ED New York 2011: Parents alleged that their 14 year old son had been wrongfully confined numerous times and without good cause in a 4 x 5 foot, dark, possibly windowless, locked timeout room. Upon discovery that this was occurring, they pulled their son from the Nassau BOCES program and refused to send him back to the school. The child was placed on home instruction. Parents brought legal claims arising out of their son’s confinement as well as FAPE claims against numerous defendants and based upon a garden variety of theories. The Court granted summary judgement in favor of all defendants except for BOCES. With respect to BOCES, the Court allowed the following claims to go forward:

1. §1983 claim based upon a 4th Amendment unreasonable seizure theory
2. false imprisonment
3. negligence
4. intentional infliction of emotional distress
5. negligent infliction of emotional distress

Court upholds ruling upholding denial of recognition of prosthetic arm as AT device

J. C. THROUGH HER PARENTS v. NEW FAIRFIELD BD. OF ED. (Conn. 3-31-2011): Parents sought recognition of their daughter’s myoelectric prosthetic arm as an assistive technology device necessary to secure a free appropriate public education ("FAPE") within the meaning of the Individuals with Disabilities Education Act (IDEA). The IHO and Court found otherwise, holding instead that it was a medical device and alternatively, that it was not necessary for the child to receive a FAPE.

9th Circuit affirms award of full reimbursement where private school provided only some of services student needed

C.B. v. Garden Grove (9th Cir. 2011): Guardian placed the child privately and sought reimbursement. The ALJ found that the district had not provided the child with a FAPE. The ALJ awarded only partial reimbursement reasoning that the private placement did not provide a program designed to address all of the child’s needs. The District Court rejected the ALJ’s conclusion and the District's argument, that reimbursement is warranted only when a private placement provides the full range of educational services that a disabled student requires. The District Court held that “because [the child] received educational benefits from all services that the Center provided, the district court awarded full reimbursement to Guardian for the cost of obtaining those services, along with transportation.” The 9th Circuit affirmed the District Court rejecting the school district’s argument that “because the Center could not meet some of C.B.'s additional needs (such as instruction in arithmetic), the placement was not "proper" within the meaning of the IDEA.” Interestingly, the 9th Circuit adopted the 2nd Circuit standard from Frank G.,
       

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d. Cir. 2006)

The Court then applied the standard to the facts of the case and found that the fact that the private placement delivered “many, but not all, of the special education services that [the student] needed” was sufficient to satisfy the standard.

Interesting failure to implement case out of D.C.

WILSON v. DISTRICT OF COLUMBIA (D.C. 3-18-2011): District recommended ESY services, but failed to arrange transportation until the program was nearly over. Thus, the child never attended. The parent brought a claim for failure to implement. The IHO found that there was "no evidence as to any educational harm that resulted from the deprivation of these services." The Court held that the IHO had applied the wrong standard; the Court held that a “material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.”... “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail on a failure to implement claim.” The Court then had little difficulty in finding that the fact that the child had apparently matured and made academic progress during the following school year “while fortunate, does not excuse DCPS's failure to provide a service that [the child’s] IEP team felt was "required" for his continued development. DCPS's failure to transport A.W. to the ESY program was neither a "procedural" IDEA violation, nor a "minor discrepancy" between the IEP as written and as implemented. Because DCPS almost entirely failed to provide a service that A.W.'s IEP team determined was necessary for his educational development, it denied him the education that the law requires” (citations omitted).
        That was not the end of the story, however. The Court went on to address the question of whether compensatory services were warranted. The Court concluded that “the record lacks sufficient information for it to make an informed decision as to the proper amount, if any, of compensatory education to which [the child] is entitled.” The Court denied the District’s motion for summary judgment, however, holding that “[o]nce a student has established a denial of the education guaranteed by the IDEA, the Court or the hearing officer must undertake "a fact-specific exercise of discretion" designed to identify those services that will compensate the student for that denial.…Where the record does not allow for that inquiry, remand or additional fact-finding is necessary. The Court thus remanded the case to the IHO.
       

Federal legislation introduced to restore right to recover expert fees

On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX). In Arlington v. Murphy, the Supreme Court decided that parents who prevail in an IDEA case cannot recover expert witness fees. This legislation would undo the Arlington v. Murphy decision. The following is the full text of the bill:


A BILL
To amend the Individuals with Disabilities Education Act to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain other expenses.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the `IDEA Fairness Restoration Act'.
SEC. 2. INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES.

(a) In General- Section 615(i)(3) of the Individuals with Disabilities Education Act (20 U.S.C. 1415(i)(3)) is amended by adding at the end the following:
`(H) INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES- In this paragraph, the term `attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding.'.
(b) Effective Date- The amendment made by subsection (a) shall apply to any action or proceeding brought under section 615 of the Individuals with Disabilities Education Act (20 U.S.C. 1415) that has not been finally adjudicated as of the date of enactment of this Act.

SDNY once again reverses SRO

R.E. v. NYC: Once again the SDNY has reversed an adverse SRO decision (SRO 09-114) in a reimbursement case. R.E. v. NYC was decided yesterday. Initially, the Court noted that none of the public school personnel on the CSE knew the child. The only members of the CSE who were knowledgeable about the child were from the private school that the child had attended for many years.

The Court rejected the SRO's ex post facto rationalization and support of a CSE's recommendations through use of testimony at a hearing (“The SRO's reliance upon the teacher's testimony to remedy the deficits found by the IHO in the IEP was unwarranted....The SRO was not present at the hearing, and as such, should not have substituted his own credibility determinations for those of the IHO, who experienced the testimony of witnesses present at the hearing.

The Court found that the SRO was not due the usual deference because “nothing in the SRO's decision suggests that it is based on "educational policy," particularly given that it relies so heavily on the testimony individuals who lacked personal knowledge of J.E.”

Board of Regents to consider change in statute of limitations

Presently, Federal law applies a two-year statute of limitation, except where the state prescribes an explicit time limitation for requesting a hearing. At its Monday meeting, the NYS Board of Regents will consider a State Ed proposal to shorten the statute of limitation. State Ed seeks to “[a]mend Education law to provide that a due process hearing must be requested within one year of the date the parent or district had knowledge of the issue, with exceptions as required by federal law and with an exception that for parents seeking tuition reimbursement, such request must be made within 180 days of the date the parent placed his/her child in the private school.” State Ed reasons that “[a] statute of limitations of more than one year to request an impartial hearing is programmatically inappropriate since IEPs are developed for one year. IDEA due process procedures should be designed to resolve disputes within one year so that any resulting changes needed to assure that the student receives a free appropriate public education are made in time to benefit the student.” I’m sure that State Ed also reasons that shortening the statute of limitations on reimbursement claims would be a much easier way to nip in the bud the financial cost of private school reimbursement, rather than focusing on the rampant problems in school districts, NYC in particular, which problems have given rise to these reimbursement claims.

See here for a list of the many items that the Board of Regents will be considering changing on Monday. Items include CSE composition, evaluation of preschoolers, 3602-c services and notice timelines. Note also that some of these items would require legislative change. The proposed change to the statute of limitations is one of the items that would require legislative action.

Update (3/7/11): Due to inclement weather, the Board of Regents postponed discussion of the above items until its April meeting.

Counterclaim filed after expiration of statute of limitations is permitted by 5th Circuit

RUBEN v. EL PASO (5th Cir. 2011): Parent appealed the decision of the state administrative agency on the last day of the 90 day period in which an appeal was permitted. District then filed a counterclaim. District Court dismissed the counterclaim reasoning that it was filed after the expiration of the statute of limitations. The 5th Circuit reinstated the claim reasoning that the statute of limitations applies to the filing of an “action” and that a counterclaim is not an “action.”

SDNY awards attorney fees to parent who prevailed via pendency; denial of attorneys fees as denial of FAPE

J.S. and S.S. v. Carmel Central School District: Parents privately placed and filed a hearing request in which they sought reimbursement. Pendency was the private placement. Due to protracted proceedings, the District had to pay for the placement as pendency for a two year period. Parents then made a claim for attorney fees and the District filed a motion to dismiss. Prior case law (O’Shea v. Bd. of Educ., 521 F. Supp. 2d 284 (S.D.N.Y. 2007)) had rejected an attorney fee claim in similar, albeit not the same circumstances. In O’Shea, the litigation of the prior and present claims overlapped; here, the prior action had concluded. The Court found that this was sufficient to distinguish the present case. But, in any event, the Court viewed O’Shea as wrongly decided. Thus, the Court denied the District’s motion to dismiss the Parents’ claim for attorney fees. Of import, the Court noted that the denial of attorneys fees “would effectively deny plaintiffs the free appropriate education guaranteed by the IDEIA. After all, if plaintiffs must pay thousands of dollars in attorneys fees to secure appropriate public education, then that education can hardly be called free.” (Note that this is a SDNY case outsourced to a Maryland judge).

OSEP: Notice of intent to seek reimbursement not required in subsequent years

For the parent who seeks reimbursement for a private placement, the general rule is that she must provide written notice of the intent to seek reimbursement from the public school district 10 days prior to removal of the child from the public school district or must advise the district of the same at the last CSE meeting prior to removal. OSEP, in a recent memo, stated that a parent who provides notice of intent to seek reimbursement in year one, does not have to provide such notice again in subsequent years.

WIll the State Review Office be eliminated?

The effort to eliminate the New York State Review Office continues. Here’s a link to the bill introduced in the Assembly on January 5, 2011. There was a legislative effort to eliminate the SRO last year. This bill is evidence of at least some sentiment in favor of the elimination of the office. The climate is certainly ripe. Putting aside any considerations of the absence in fairness at the SRO, the SRO is an unnecessary expenditure. It is not mandated by federal law and thus, it should be an easy target and a sensible one for cost cutting in these tough economic times.

Bloomberg goes after publicly funded private placements

Mayor Bloomberg addressed the NYS legislature yesterday and called upon the legislature to make it harder for public school students to attend private schools at taxpayer expense. Specifically, he noted that students should be required to attend public schools prior to their parents’ having a right to make a reimbursement claim. Hmm, didn’t the Supreme Court just have something to say about this?

I expect that the shit may hit the fan in the next month or two. There’s a maelstrom brewing–Governor Cuomo’s budget cuts, the State Ed proposals that continue to chip away at the rights of students with disabilities and their parents, Mayor Bloomberg’s comments, …

District Court awards attorney fees to prevailing school district; 9th Circuit reverses

R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT, __ F. 3d. __, #09-15651 (9th Cir. 2-4-2011): The IDEA authorizes a court to award attorney fees to a prevailing school district “against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation” and “against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” (20 USC §1415(i)(3)(B)).

In this case, the District Court saddled the parents and their lawyer with a $140,000 fee award to the district. The 9th Circuit Court of Appeals reversed and made clear that a District Court must be very careful about awarding attorney fees against a parent or the parent’s attorney for “lawyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument.” Specifically, the 9th Circuit held that the parents’ claim was not “without foundation” as they had sought compensatory education, they had made plausible arguments as to why they should have prevailed, and “the fact that the arguments were not successful does not make them frivolous.” The Court also held that “the district court erred in holding that anger is an improper purpose that could justify an award of attorney's fees” noting that “anger is a legitimate reaction by parties who believe that their rights have been violated or ignored. One of the roles of the adversarial system is to peaceably resolve disputes that give rise to personal animosity by channeling that indignation into a lawful resolution in lieu of feuding or personal violence.”

NYS State Ed Dept. recommends important changes to special education laws and regulations

State Ed. continues to push the Board of Regents to make changes to the special education regulations. In a memo dated February 1, 2011, State Ed. recommends, inter alia, the following:
        * “Simplify and clarify some of the requirements for service provision and billing for students with disabilities who are residents of the State attending nonpublic schools located in the State and are dually enrolled in public schools for purposes of special education and receive services pursuant to an individualized education service program (IESP) developed by the CSE of the school district of location in the same manner and with the same contents as an IEP.” (I note that in the effort to “simplify and clarify”, it is entirely unclear what State Ed. proposes here).
        * “Reduce the two year statute of limitations on commencement of an impartial hearing to the federal standard of one year.” (This one is crystal clear, but buried in the long list of recommendations and not highlighted in the introductory summary paragraphs).
        * “Eliminate requirements that go beyond federal law of having the school psychologist and an additional parent member as members of the CSE and the requirement for a physician to be a member of the CSE if requested by the school or parent 3 days before the meeting.”
        * Eliminate sub-CSEs
        * “Eliminate the requirement that an individual evaluation include specific assessments to be conducted as part of the initial evaluation: physical examination, individual psychological evaluation, social history, observation, other appropriate evaluations and functional behavioral assessment (FBA) when behavior impedes learning.”
        * “Eliminate the requirements that BOEs have plans and policies for appropriate declassification of students with disabilities – regular consideration for declassifying students when appropriate and the provision of educational and support services upon declassification.” (Again, State Ed. speaks of the need to “simplify and clarify” and yet, it is unclear what State Ed. is recommending).
        * “Eliminate the requirement that the CSE/CPSE must provide a copy of the State's handbook for parents of students with disabilities or a locally approved handbook when a student is referred for special education.”
        * “Eliminate the requirement that membership of the CPSE includes an additional parent member and a municipality representative, except that the parent can decline the participation of the additional parent member and the attendance of the municipality representative is not required for a quorum.”
        * “Eliminate the requirement that the parent selects the preschool evaluator from list of approved evaluators.” (Is state ed. proposing that the parent no longer selects the evaluator or just that the evaluator would no longer have to be selected from the list?)
        * “ Repeal procedures for the appointment of students to State‐ supported schools.”
        * “Phase out Academic Intervention Services while phasing in Response to Intervention programs”
       
and the biggie “Eliminate the requirement that school districts observe Conservation Day”.

OSEP says that RTI can not be used to delay or deny evaluation under the IDEA

In a recently issued policy letter, the federal Office of Special Education Programs (OSEP) advised that a response-to-intervention (RTI) process cannot delay the initial evaluation for special education services of a child suspected of having a disability. The federal special education regulations allow a parent to request an evaluation at any time to determine whether her child is a child with a disability. Apparently, schools have been delaying or denying the requests to evaluate pointing to the use of RTI procedures as justification. OSEP concludes that if a parent requests an evaluation and the district agrees that the child may be eligible for special education, the district must evaluate the child. If the district denies the request for the evaluation, the district must provide notice to the parent explaining why they refuse to evaluate and the information that was used as a basis for the decision. The parent can then challenge the refusal to evaluate through the impartial hearing process.

SDNY awards retroactive direct tuition relief

MR. and MRS. A, o/b/o D.A. v. NYC: By decision dated February 1st, 2011, SRO 09-001 was reversed by the SDNY federal court. The Court held that where parents lack the financial resources to “front” the costs of private school tuition and "where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." The original blog post follows.

SRO 09-001: This case is probably the most controversial SRO decision in years. In brief, the parent prevailed at hearing on her private school reimbursement claim. On appeal, SRO Paul Kelly found that the district failed to provide a FAPE and that the parental placement was appropriate. With respect to equities, although he did not expressly find for the parents, he stated that “I agree with the impartial hearing officer's findings that the parents cooperated with the district, participated at the CSE meeting, visited proposed placements, and notified the district in writing that they were re-enrolling the student at the Rebecca School when no placement was offered by the district.” In the hearing request, the parents apparently sought “funding” for the private placement rather than reimbursement. The IHO awarded the requested funding of the placement. The evidence cited by Kelly establishes that the parents had entered into a contract that obligated them to pay the entire freight and that they had in fact made payments. Kelly reversed the IHO award stating that “[u]nder the circumstances of this case, where the parents are not requesting reimbursement for out-of-pocket costs or direct payment for compensatory education services, I find that the parents are not entitled to funding of the student's tuition.” Kelly cites to two SRO cases in which Connors prospective funding was at issue; here, however, he does not cite to Connors. He does note, however, that the 2nd Circuit has, in fact, found that school districts may be required to directly fund pendency placements and that “courts have awarded "prospective payment" to afford access to compensatory education.” One would think that in light of the fact that the 2nd Circuit has touched on the issue of prospective payment and that a district court (Connors) has strongly suggested the availability of such relief, the SRO ought to have examined the issue more closely and provided a rationale for approving or disapproving of the right to relief. There is a dearth of analysis on the issue, however; Kelly merely laid out his version of the facts and just put the kabosh on the parents’ claim.

see also, NSBA blog article.

8th Circuit finds that student with adhd, bipolar disorder and conduct disorder is eligible under IDEA

Hansen v. Republic R-III Sch. Dist. (8th Cir., Jan. 21, 2011): This is one of the latest in the rather familiar category of cases addressing whether a child who engages in unacceptable conduct should be classified and provided with special education services. Here, the hearing officer said no, the district court said yes and the 8th Circuit Court of Appeals agreed with the District Court. For more details, see this article on the NSBA blog.

7th Circuit clarifies that physician can not prescribe special education

Marshall Joint School District No. 2 v. C.D.: It should go without saying that the CSE, not a child’s physician, is responsible for the development of a child’s special education program. The role of the physician has, however, been a source of endless confusion. The 7th Circuit noted that

a physician’s diagnosis and input on a child’s medical condition is
important and bears on the team’s informed decision on a student’s needs. See 20 U.S.C. § 1414(c)(1)(A)(iii). But a physician cannot simply prescribe special education.

ALJ misapplied governing standard in determining whether student suffering from Ehlers-Danlos syndrome was eligible for special education services.

In Marshall Joint School District No. 2 v. C.D., the 7th Circuit Court of Appeals concluded that the Administrative Law Judge (“ALJ”) and the federal district court applied the incorrect standard in determining whether a student suffering from Ehlers-Danlos syndrome (“EDS”) was entitled to special education services under the IDEA. The 7th Circuit held that the student suffering from EDS was not entitled to special education services because his medical condition did not adversely affect his educational performance.

The ALJ concluded that the EDS adversely affects the student’s educational performance because it causes him to experience pain and fatigue and that when he does “experience[] pain and/or fatigue at school, it can affect his educational performance.” Marshall Joint Sch. Dist. No. 2 v. C.D., at * 10 (7th Cir. Aug. 2, 2010). This is a misapplication of the governing standard because “it is not whether something, when considered in the abstract, can adversely affect a student’s educational performance, but whether in reality it does” Id., citing to 34 C.F.R. § 300.8(C)(9)(ii) and A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 310 (E.D.N.Y. 2010). For the student to qualify in this case, his health condition must adversely affect his educational performance and as a result he must need special education. 20 U.S.C. § 1401(3)(A)(ii).

The Court reasoned that while there is evidence that EDS can affect the student’s educational performance, there is no substantial evidence to support the ALJ’s finding that it has an adverse affect. Because the student’s EDS did not adversely affect his educational performance, the panel concluded that both the ALJ and the federal district court had misapplied the standard in determining whether the student’s EDS rendered him eligible for services and reversed the decision.

New SRO finds for parent on interesting pendency claim

SRO 10-112: The child transitioned from preschool to school age. As a preschooler, the child received services from the public school in a private non-state approved private school. The child continued to attend the same private school when she became school age. The parent challenged the last CPSE recommended IEP and the first CSE recommended IEP in an impartial hearing request submitted after the end of the school year during which these IEPs were recommended. The SRO held that “the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.” Thus, the SRO ordered the district to provide SEIT and related services per pendency, rejecting the district’s argument that these services were recommended in conjunction with a 9:1:3 placement to which the parent had objected.