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Thursday, February 3, 2011

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.

Tuesday, February 1, 2011

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.