11th Cir. affirms parent's right to independent evaluation at district expense

PHILLIP C. v. JEFFERSON COUNTY BOARD OF EDUCATION (11th Cir., decided 11/21/12): The Court rejected the district’s argument that the federal regulation authorizing a parent's right to an independent evaluation at district expense exceeded the scope of the IDEA. The District argued that the IDEA did not specify that state and local agencies must finance a parent's IEE and thus, although the parent had a right to an IEE, the district did not have to pay for it.

Right to evaluation under §504

A school can not condition the right to an evaluation under §504 on allegations by the parent of discrimination based upon disability. OCR stated that: “ [t]he regulation implementing Section 504 requires a school district to conduct an evaluation of any student it has reason to believe needs or may need special education and/or related services because of a disability. The failure to conduct an evaluation of a student suspected of having a disability is an act of discrimination under the regulation implementing Section 504; no other proof of discrimination is needed or required under the regulation prior to initiation of the evaluation.”

Important new 2nd Circuit cases: G.B. v. Tuxedo

The 2nd Circuit has decided at least 6 special education cases of importance in recent months. I will be writing about these cases over the course of the next few days. The most recently decided of these cases is G.B. v. Tuxedo. There is nothing much interesting about this 2nd Circuit decision on its face as it simply affirms the District Court case for reasons stated by the District Court. It is the District Court case that is worthy of attention initially because the parent lost at both the hearing level and at State Review. Rare is the case that a parent prevails in court after losing throughout the administrative process. At issue in this case was the district’s effort to place the child in a self contained class vs. the parent’s desire to have the child in an integrated environment with appropriate support. Given the district’s refusal to provide an appropriate placement recommendation in an integrated environment with sufficient support services, the parent chose to place the child privately and seek reimbursement. Notwithstanding the IHO and SRO rulings to the contrary, the District Court found that “the record evidence convincingly demonstrates that placing N.B. in a self-contained classroom, both in 2006 and 2007, violated IDEA's requirement that she be educated with non-disabled children "to the maximum extent appropriate." The Court found that “ boilerplate, conclusory language cannot satisfy the requirement that the CSE "serious[ly] consider[ ] ... including the child in a regular class with such supplementary aids and services [as appropriate]." The Court noted that “a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming" and “the appropriate yardstick is whether [the child], with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting."

The Court carefully applied the Newington factors and went on to characterize the mainstreaming requirement as a rebuttable presumption: “the District has failed to rebut the presumption that an integrated class is appropriate. See A.S., 183 F.Supp.2d at 548 ("Even were the court to assume that the Board's proposed plan would be a viable and effective placement for [the student], in that she could make progress [there] ..., what would still be missing from the Board's argument is evidence that A. could not, with appropriate supplemental aids and services, make the same or even more progress in the regular education setting.”)”

Worthy of note is the Court’s take on the testimony of the parent: “While Mrs. B. does not have the academic credentials of someone like Dr. DeFina, she is an expert when it comes to the development and learning style of her own daughter, and nothing to which she testified was inconsistent with the experts' testimony. See Phillips, supra, at 1815-16 (noting that, under IDEA, parents play "the role of the child-specific expert," because they are "uniquely situated to provide a global understanding of the child's abilities," and are able to "report on a child's progress in ways a teacher cannot.””

The Court declined to accord deference to the IHO and SRO rulings citing a number of rationales: overwhelming evidence in the record to the contrary, that the “IHO incorrectly placed the burden of demonstrating that an integrated class was appropriate on N.B.'s parents,” that the IHO and SRO failed to “thoroughly address IDEA's mainstreaming requirement,” and most importantly, that when a Court reviews whether a school district violated the IDEA's "mainstreaming" requirement, “it does not impose its own views of proper educational policies and methods, rather, it enforces the statute enacted by Congress.” Thus, the rule requiring deference to the administrative decision maker on matters of educational policy did not apply.

The Court observed also that because the district recommendations violated IDEA's mainstreaming requirements, it need not determine whether those placements also violated IDEA's more general requirement that each student receive a FAPE.

Having found that the District violated the requirement that the child be educated with non-disabled peers to the maximum extent appropriate, the Court went on to find that the parental placement was appropriate. This section of the decision is most definitely worthy of a read by practitioners as it refines what is oftentimes a rather murky prong 2 analysis (recall, the rationale of this decision has the imprimatur of the 2nd Circuit). The Court states that as long as “the private placement remedies a significant deficiency in the public placement, and the student progresses in the private placement” the placement is appropriate even if the parents “chose a school that has other appealing features as well” such as features that may not be special education like in nature.

Finally, the Court looked at the equities. Of note, despite the failure to provide proper notice of the intent to make a reimbursement claim, the Court did not deny the claim; rather the Court found that it should be reduced in an amount to be determined. And, the Court emphasized that “a refusal to submit to a public evaluation will only result in a reduction of reimbursement where "prior to the parents' removal of the child from the public school, the public agency informed the parents ... of its intent to evaluate the child.” The refusal to submit the child for evaluation after removal from the public school will not result in a reduction of reimbursement.

OSEP issues policy letter regarding work placements in IEPS

OSEP recently issued a policy letter providing guidance on a number of issues related to transition work placements. In sum:

1. if the CSE determines that work placement is an appropriate transition service, it must be included on the IEP;


2. initiating or changing a student’s work placement triggers prior writtten notice requirements;


3. LRE requirements apply to work placements; and


4. the CSE must consider supplementary aids and services necessary to enable the student to participate with other disabled and non-disabled students in the work place and the LEA must provide any supplementary aids and services as identified by the CSE on the IEP.

NYS Education Department proposes "compensatory" diploma option for students with disabilities

State Ed. has proposed a modification of the “safety net” for students with disabilities. The proposed amendment would expand the safety net options to also authorize a school district to award a local diploma to a student with a disability if the student:

1. scores between 45-54 on one or more of the five required Regents exams, other than the English or mathematics exam, but scores higher than 65 on one or more of the required Regents exams, in which case the lower score(s) can be compensated by the higher score(s); and

2. obtains a passing score in the subject area of the Regents examination in which he or she received a score of 45-54;

3. has an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences; provided that

4. a student may not use the compensatory score option if the student is using a passing score on one or more RCTs to graduate with a local diploma.

Significant proposed regulations regarding the impartial hearing process in New York State

The State Education Department has proposed some significant revisions to the regulations governing the impartial process in New York State. The proposed rules address the following:

The proposed rule addresses six procedural issues relating to impartial hearings:

        1.        Certification and appointment of IHOs;

        2.        Consolidation of multiple due process requests for the same student;

        3.        Prehearing conferences;

        4.        Withdrawals of requests for due process hearings;

        5.        Extensions to the timelines for an impartial hearing decision;

and 6. Timeline to render a decision.

These proposed regulations will now go through a period of public comment prior to reconsideration by the Board of Regents.         

Significant NYS Court of Appeals case

In a 4-3 split decision (June 12, 2012), the New York State Court of Appeals has determined that the New York State Division of Human Rights does not have jurisdiction to investigate complaints against public school districts pursuant to New York State Executive Law §296(4). Certain students had filed complaints with the State Division of Human Rights alleging unlawful discriminatory practices based upon race and/or disability. Executive Law § 296 (4) provides that "[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant . . . to permit the harassment of any student or applicant, by reason of his race . . . [or] disability . . ." The Court held that a public school district is not an “education corporation or association” for purposes of this statute. Rather, the Court found that “education corporation or association” refers to private, non-sectarian, non-profit entities. The Court held as such despite that, as noted by the dissent, “public school districts are corporations organized for educational purposes (see NY Const, art X, § 5) and public schools hold themselves out to the public as non-sectarian and are exempt from taxation pursuant to article 4 of the RPTL.”

The Court acknowledged that “The vicious attacks to which these students were subjected are deplorable, and our holding is not to be interpreted as indifference to their plight.” The Court advised that public school students “may file a complaint with the Commissioner of Education (see Education Law § 310)” and also advised of “potential remedies under federal law” and of the "Dignity for All Students

Act.”

Accessible instructional materials

Students with disabilities for whom the printed text of instructional materials is a barrier to their participation in the general education curriculum and who thus need accessible instructional materials have a right to receive these materials in a timely manner. Here is a link to a good article addressing legalities of the school’s obligation to assure provision of and access to such materials to those who qualify.

U.S. Dept. of Education issues document addressing Restraint and Seclusion

The U.S. Department of Education developed this document describing 15 principles to consider when developing or revising policies and procedures on the use of restraint and seclusion. The document is targeted to States, school districts, schools, parents, and other stakeholders. The 15 principles “stress that every effort should be made to prevent the need for the use of restraint and seclusion and that any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse. The principles make clear that restraint or seclusion should never be used except in situations where a child’s behavior poses imminent danger of serious physical harm to self or others, and restraint and seclusion should be avoided to the greatest extent possible without endangering the safety of students and staff. The goal in presenting these principles is to help ensure that all schools and learning environments are safe for all children and adults.”

Important development regarding attorney fees in special education cases

In 2007, the 2nd Circuit decided Arbor Hill Concerned Citizens Neighborhood v. County of Albany. In Arbor Hill, the Court abandoned the use of the lodestar method for determination of attorney fee awards in favor of the “presumptively reasonable rate,” which was based upon a variety of factors including “the rate a paying client would be willing to pay.” Although not a special education case, its impact has been felt in the special education arena. The 2nd Circuit in Millea v. Metro-North Railroad Co. essentially abandoned Arbor Hill and reverted back to the lodestar approach. For an excellent discussion of the relevant cases and the policy issues underlying the decisions, see Attorney Fees: The Death of Arbor Hill.

District failure to satisfy burden of proof results in SRO decision in favor of the parent

SRO 12-006: In this case where the Parent was represented by the Law Offices of H. Jeffrey Marcus, the Parent alleged, inter alia, that the student required the services of a 1:1 aide during adapted physical education (APE). The IHO did not rule on the issue. The District offered no evidence on the issue. The Parent claimed on appeal to the SRO that the District failed to satisfy its burden of establishing that the student did not require the services of a 1:1 aide during APE. The SRO agreed holding that the “District did not establish that the student did not require aide services during APE, and in the absence of any evidence in the hearing record that the student did not require them,” he ordered the District to provide aide services during APE.

8th Circuit upholds discipline for off campus speech

D.J.M. v. Hannibal Pub. Sch. Dist., ___F.3d____(8th Cir. Aug. 1, 2011): Student sent off-campus instant messages to a classmate in which “he talked about getting a gun and shooting some other students at school.” School authorities notified the police and subsequently suspended the student for the remainder of the year. The parents commenced an action claiming violations of their son’s right to free speech. The student claimed that “his messages were not serious expressions of intent to harm…that his speech was not student speech because it was online outside of school…[and] that the school's decision to suspend him was a content based restriction violating the First Amendment.” The 8th Circuit held that the suspension did not violate the student’s free speech rights because the student’s speech constituted unprotected “true threats.” The panel ruled also that “it was reasonably foreseeable that D.J.M.'s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment.” The panel thus concluded that the school district was justified in disciplining the student citing to the substantial disruption standard articulated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”)

NYC fails to provide special education services to over 70,000 students

NYC Controller John Liu concluded after reviewing a recent audit that the New York City Department of Education failed to provide services to over one fourth of the students eligible to receive such services in the 2009-2010 school year (see article). If you are a parent of a child who has been denied or who has not received the services to which he or she is entitled, the Law Offices of H. Jeffrey Marcus may be able to help. Please feel free to contact one of our attorneys at specialedlaw@mac.com or 716-634-2753.

Failure to offer particular placement is a denial of FAPE

SRO 11-149: This arose in the context of a reimbursement case. The school district recommended a residential placement and sent out packets, but failed to follow up and failed to secure a placement prior to the start of the school year. The SRO made a point of noting that the school year starts on July 1 and that the district failed to have a placement in effect prior to July 1. Note also that the fact that the district had placed the child on home instruction while looking for a residential placement did not absolve the district of its violation. Note also that the SRO denied reimbursement to the parents finding that they had not established the appropriateness of the unilateral placement.

Timeline to appeal IHO decision runs from date of decision

SRO 11-151: Pracitioners take note. The IHO sent the decision to the attorneys and the parties two days after the date of the decision. The SRO held that the 35 day timeline for filing an appeal commenced on the date of the decision, not the date of receipt of the decision.

NY State Ed. proposes regulatory changes to impartial hearing process

This is a must read for New York State special education attorneys. As practitioners of special ed law are aware, State Ed. has heightened enforcement efforts with respect to timeline requirements for the conduct of impartial hearings. Most recently, the SRO has come down hard on a number of IHOs who have done little more than what just about every IHO does – i.e. schedule hearings on dates that work for the parties and the attorneys and grant extensions when it makes sense to do so (see SRO 11-091 and 11-112). What was ordinary course of procedure may be and certainly was perceived to have been at odds, however, with the statutory and regulatory timeline requirements. Now, State Ed. has proposed significant changes to the regulations governing the conduct of hearings. The proposed changes address:

1. Certification and appointment of IHOs;
2. Consolidation of multiple due process requests for the same student ( subsequent hearing requests assigned to same IHO if original complaint is still pending) ;
3. Prehearing conferences (if the proposed changes are to go into effect, these changes could dramatically restrict the scope of and evidence permitted at hearing);
4. Withdrawals of requests for due process hearings (withdrawal without prejudice permitted as a matter of course only prior to the commencement of the hearing or prehearing conference; resubmission of a similar hearing request within one year will result in the assignment of the same IHO)
5. Extensions to the timelines for an impartial hearing decision (one 30 extension would now be permitted for settlement negotiations);and
6. Timeline to render a decision.

There are some very positive changes proposed including:

1. The proposed regulations would expressly authorize IHOs to issue consent orders, something that is presently routine across New York State, but which has been fiercely resisted in NYC.
2. The regs governing the granting of extensions would now permit an extension to allow for negotiations as noted above. Also, the factors to be considered by the IHO in determining whether to grant the extension include “whether the delay in the hearing will facilitate other matters that will positively contribute to the child’s educational interest or well-being.”

The proposed amendments are presently before the P-12 Education Committee for discussion in January 2012 after which there will be a period of public comment. They are scheduled to be submitted for action at the April Board of Regents meeting with a proposed effective date of May 16, 2012.

WDNY reaffirms 3 year statute of limitations on Attorney fee claims

P.M. v. EVANS-BRANT CEN. SCH. DIST. (W.D.N.Y. 1-9-2012): In what might be the first case post–2007 amendments to the IDEA to closely consider this issue, the Court determined that the statute of limitations for an attorney fee claim in a special education matter is 3 years.

NY Court of Appeals addresses responsibility for costs of educating kids living in child care institution

Board of Education of the Garrison Union Free School District v. St. Basil (decided January 5, 2012): The New York Court of Appeals addressed the question of whether a school district is obligated to pay for the educational costs of the children living in a child care institution located within district boundaries. The Court held that a school district is not obligated to provide a tuition-free education to those children residing within the institution and determined to be nonresidents of the school district.