EDNY denies NYS motion to dismiss claim of illegal practice; private school has standing to bring 504 claim

Kalliope R. v. New York State Department of Education (EDNY 6/1/10): Plaintiffs in this action are the parents of four minor children with disabilities and the private school that they attend. Plaintiffs alleged that the New York State Education Department ("NYSED") unlawfully promulgated a policy prohibiting the use of a particular student-teacher ratio. The private school in question had implemented a 12:2:2 program, a program for which they had sought and received state approval, and for placement into which a child’s CSE had to recommend the 12:2:2. Subsequently, state ed allegedly contacted the various CSEs of the kids in the program and advised them to stop placing kids into the 12:2:2 program, thus prompting the parents’ legal action. NYS filed a motion to dismiss.

The Court denied the district’s motion to dismiss agreeing initially with the parents that exhaustion of the administrative process should be excused reasoning that exhaustion “is deemed futile when the conduct alleged to have violated IDEA affected all students in a given program.” The Court then reasoned that the parents had stated a viable claim that the “policy could constitute a "predetermination" that is a procedural violation of IDEA” and that “NYSED's interference with the IEP process has hampered the progress of the individual plaintiffs' children and the other children attending SLCD, and thereby substantively violated IDEA.”

The Court then went on to find that the private school had standing to sue under the Rehabilitation Act (504) as it had allegedly “incurred over $22,000.00 in expenses as a result of the NYSED's alleged policy.” The Court declined to dismiss the plaintiff’s 504 claim reasoning that “gross misjudgment or bad faith may be found when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary.” Here, the Court held that plaintiffs had satisfied that standard by alleging “that NYSED, despite the fact that students' CSEs had recommended the 12:2:2 class size, instituted a policy prohibiting use of that class size.”

504 eligibility case regarding ameliorative effects of medication

CENTENNIAL SCHOOL DISTRICT v. L. (E.D.Pa. 3-26-2010): The hearing officer determined that a child with ADHD was eligible for services under §504. The District Court remanded to the hearing officer to consider “the mitigating effect of Matthew's ADHD medication.” This decision appears to be blatantly wrong. In support of its decision, the Court cites to Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 482 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002). The erroneous reasoning in these cases was expressly addressed by Congress in recent amendments to the ADA (ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008)). The Court ignored the amendments, the most pertinent of which states that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication.”

Court grants TRO to enforce 504 plan

L.G. v. Port Townsend School Dist. No. 50, Slip Copy, 2009 WL 4730840, W.D.Wash.,2009: Student had a 504 plan pursuant to which the school was required to scan all written materials for use in a text to speech program. For 2009, the school advised that it would only scan certain subject matter material. The parents sought a temporary restraining order to compel the school to continue to scan all materials.
That Court recognized that a plaintiff seeking any remedy also available under the IDEA must exhaust the administrative process prior to commencing a court action. The Court rejected the district’s argument that the parent should be required to exhaust, finding instead that enforcement of a 504 plan is not relief available under the IDEA. The Court then employed a traditional TRO analysis and found that the student would suffer irreparable harm if the 504 plan was not continued. The Court ordered the district to implement the 504 plan.

This case is of interest and some significance because there is no pendency provision under §504 as there is in the IDEA. Thus, if a district proposes changes to a child’s 504 plan, those changes can ordinarily be implemented even if a parent disagrees.

10th Circuit rules that eligibility under IDEA does not necessarily make a student eligible under 504

Ellenberg v. New Mexico Military Institute, 2009 WL 1977486 (10th Cir. 2009): According to the 10th Circuit Court of Appeals, eligibility for special education and having an individualized education program under the IDEA demonstrates a child's disability, but not necessarily that the disability “substantially limits” the major life activity of learning. Therefore, IDEA eligibility does not necessarily yield 504 eligibility.

Court allows ADA/504 claim to proceed

Miles v. Cushing Public Schools, Slip Copy, 2008 WL 4619857: A severely disabled child fell twice from a changing table. The parents sued alleging deliberate indifference to the child’s safety. The Court concluded that “the record contains sufficient evidence to create material factual disputes with regard to Plaintiffs' claims that Defendants intentionally discriminated against C.M. by exhibiting deliberate indifference to the likelihood that their actions, or their failure to act, violated his rights under the Rehabilitation Act and the ADA.”