SRO dismisses DOE petition for filing administrative record 9 days late

SRO 13-170: Parent prevailed at hearing. The NYC DOE appealed to the SRO. The SRO dismissed the appeal sua sponte finding that the DOE’s nine day delay in filing the administrative record “impeded his ability to issue a timely and thorough decision.”

3rd Circuit issues interesting pendency decision

R.B. v. MASTERY CHARTER SCHOOL, 11-1009 (3rd Cir. 7-25-2013): In response to events that displeased the parent, she stopped sending her child to school. The school dis-enrolled the child after she had not attended for awhile. The parent filed a complaint and sought pendency. The school argued, inter alia, that the parent had no right to pendency as the child was out of school at the time of the filing of the hearing request. The 3rd Circuit disagreed stating that pendency was based upon the last agreed upon IEP and that to rule in the school’s favor would “would render the stay-put provision useless, as schools could implement unilateral changes prior to a parent's suit and then claim that the new change is the status quo.”

SDNY reverses the SRO on reimbursement case

In a case decided on June 4, 2013, the SDNY once again reversed an SRO denial of tuition reimbursement. This case, M.F. v. NYC Bd. of Educ., made it to the Court in a fairly typical posture. The parent prevailed at hearing; the SRO reversed. The NYC DOE conceded that it had failed to provide the child a FAPE and thus, the appropriateness of the DOE’s placement and program recommendations was not at issue. The SRO found that the parental placement, the Aaron School, was not appropriate. The Court held that “[i]n mechanically comparing the IEP's requirements to what the Aaron School provided, the SRO ignored the Second Circuit's instruction that a private placement need not offer every service listed in an IEP” and “that the SRO applied a more rigorous standard than that required by the case law, mischaracterized what the IEP required, and held the Aaron School responsible for a failure to offer summer services that it was not obligated to provide.” With respect to the summer services, the Court found that it was the DOE's responsibility to provide these services in July and August 2010, and it makes no sense to find the Aaron School an inappropriate placement because it offered only a 10–month program.

May 2013: NY State Ed proposes significant changes to special education laws

The following is a summary of proposed changes being pushed by the NYS Education Department. Note that the bill (Assembly bill  A-7060; Senate bill S-5557) was referred to the education committee on 5/20/13:

1. 3602-c:

-moving notice date from June 1 to April 1 for students who already have an IEP

-no entitlement to special class or ICT

-mediation required before impartial hearing except in child find cases

-ESY available

2. abolishes appointment by the commissioner to state supported schools and makes CSE responsible for such placements

3. CSE membership

-eliminates school physician

-parent member only upon request of the parent

-elimination of subcommittees

4. Transportation

-students receiving transportation under the 50 mile rule are not eligible to receive special education services under 3602-c.

5. Statute of Limitations:

-reduce the current S/L from 2 years to 1 year, except in tuition reimbursement cases in which case it would be 6 months from "from the placement by the parent or person in parental relation in the private school, provided that the student shall be deemed placed for such purpose on the first day the student is enrolled in and is liable for tuition in the private school."

6. Preschool

-Parent can no longer choose the evaluator.

-All school districts are deemed to be approved evaluators.

OSEP says IHO can find violation of code of conduct

In a recent memo, OSEP stated that hearing officers determining a student's placement in the wake of a purported disciplinary infraction may decide not only the appropriateness of the district's manifestation determination and the appropriate placement of the student, they may also consider whether the student's conduct actually amounted to a code of conduct violation.