NYS restores the provision of special education services to home schooled kids

Until recently, New York State had for many years provided special education services to home schooled children. In January of 2008, State Ed. issued a directive ordering school districts to terminate special education services to home schooled children. State Ed. relied upon the State Review Office decision in Appeal number 07-043, a decision which is presently being appealed by the Law Offices of H. Jeffrey Marcus, P.C., and Joyce Berkowitz, Esq. In June, the Assembly and the Senate agreed upon language to restore services and sent a bill to the governor. On Monday July 7, 2008, Governor Paterson signed the bill and it is effective immediately. The full text of the bill can be found here.

Court supports parent right to independent functional behavioral assessment(FBA)

The district argued that the FBA was not an educational evaluation and therefore, the parent had no right to an independent evaluation(IEE). In Harris v. District of Columbia decided June 23, 2008, the Court found otherwise and additionally held that the district’s failure to perform an FBA for over 2 years was sufficient to confer upon the parent the right to an IEE.

Parental Consent for the Use of Public Benefits or Insurance Pursuant to the IDEA

New York State Ed. just issued a memorandum explaining that Federal and State regulations require school districts to obtain parental consent each time that access to public benefits or insurance is sought. For complete details, see Medicaid Parental Consent. 

Important case addressing exceptions to IDEA 2 year statute of limitations

D.G. v. Somerset Hills School District: The IDEA prescribes a 2 year statute of limitations. In this recently decided D.C. case, the federal court held that the 2 year limit did not apply because the district failed to provide the parent with written notice of procedural safeguards and due process rights. Additionally, the court held that the continuing violation doctrine applied making the parent’s claim timely finding that the district’s “alleged actions and omissions were part of a continuing practice and the last act evidencing the continuing practice occurred in June 2006, a date within the IDEA's two-year statute of limitations period”.

Placement vs. location of services

OSEP addresses this issue in Letter to Trigg(11/30/2007) noting that historically “placement” is the “points along the continuum of placement options available for a child with a disability” and "location" is “the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services.”

Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child's special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided.

Enforcement of hearing officer orders: SRO says go to federal court, federal court says go away

The NYS SRO has repeatedly stated that school district failure to implement a hearing officer’s order can only be enforced via complaint to state ed or in federal court. For example, in SRO 06-130, SRO Paul Kelly stated that:

The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

The federal courts are not so amenable to such complaints, however. A number of courts have held that the IDEA does not grant a district court jurisdiction to enforce a hearing officer's order because a party who prevails at a due process hearing is not aggrieved by the decision. Rather, the party is aggrieved by the later failure to implement the decision and that does not give rise to federal court jurisdiction(see e.g. Brennan v. Reg'l Sch. Dist. No. Bd. of Educ., 531 F.Supp.2d 245, 261 (D.Conn.2008)). For a more complete discussion of the issue, see James S. ex rel. Thelma S. v. School Dist. of Philadelphia--- F.Supp.2d ----, E.D.Pa.,2008.

Supreme Court denies cert in IDEA damages case

Burke v. Brookline Sch. Dist.: Supreme Court denies cert in this 1st circuit case in which the Court held that the parents could not make a claim for monetary damages for alleged denial of FAPE.