Parents defective notice does not preclude reimbursement

SRO 08-062: Parents prevailed at hearing on reimbursement claim. On appeal, district conceded prong 1 and contested prongs 2 and 3. Of note, the district argued that the parent should be denied reimbursement on equitable grounds for having provided inadequate notice of intent to make a reimbursement claim. SRO Paul Kelly agreed that the parent “failed to state her concerns regarding the proposed public placement and was therefore not in compliance with notification requirements.” But, Kelly excused the violation because the district promptly inquired as to what the parent’s concerns were; the parent left two messages for the district and the district did nothing in response.

Unsuccessful attempt to observe proposed placement was not a FAPE violation

SRO 08-097: SRO Paul Kelly held that a school’s refusal to allow a parent to observe the particular classroom identified by the district did not rise to the level of a deprivation of a FAPE.

While encouraging school districts to work with parents and offer opportunities to observe classroom and placement options, OSEP has opined that the IDEA does not entitle parents of children with disabilities to observe their children in any current classroom or proposed educational placement (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see Application of a Child with a Disability, Appeal No. 07-049; Application of a Child with a Disability, Appeal No. 07-013).

SRO finds that parental placement supplemented by related services was inappropriate

SRO 08-119: The parent appealed an IHO denial of reimbursement. SRO Paul Kelly found for the parent on prong 1, but it turned out to be a pyrrhic victory. Kelly ruled that the parent's unilateral placement of the student at the Aaron School was inappropriate to meet the student's needs because the Aaron School did not provide the level of related services identified in the IEP as appropriate to meet his needs. The parent supplemented the program at the Aaron School with private services, but that was not sufficient for the SRO.

SRO reverses another reimbursement award

SRO 08-122: IHO awarded reimbursement for a private school placement. SRO Paul Kelly once again reversed. While finding that the CSE was improperly constituted, Kelly excused the district’s failure to have a regular ed or special ed teacher of the child or teachers who would be teaching the child at the CSE noting that the hearing record failed to demonstrate how this procedural deficiency resulted in the denial of a FAPE to the student. Kelly also excused the failure to perform a classroom observation and the failure to conduct an FBA, reasoning that the child had not yet attended the proposed placement and that therefore, it was unknown whether the child would exhibit interfering behaviors. Kelly then approved of the district’s development of the goals prior to the CSE meeting, followed by a cursory, less than complete review at the CSE, implying agreement by the parent based upon her presence and the absence of stated disagreement.

SRO upholds reimbursement claim rejecting district argument regarding enrollment contract

SRO 08-123: In a rare parent victory at SRO, SRO Paul Kelly upheld a reimbursement award for a private school placement rejecting the district argument that the parent entered into the enrollment contract with the private school prior to the annual review, and that the parent never seriously intended to send the student to the district's recommended class. Kelly reasoned that the evidence showed that it was unlikely that the parent would be held responsible for any remaining tuition if she decided to withdraw the student from the private school and place the student in a district school.

SRO strikes down another reimbursement award

SRO 08-137: Congress granted parents to right to seek reimbursement for an appropriate private school placement when the public school fails to offer an appropriate program. SRO Paul Kelly continues to abort that right. Once again, an IHO awards reimbursement to a parent–this time for ABA services. Once again, in a case in which the NYC school district conceded that it had failed to offer the child a FAPE for the time period in question, SRO Paul Kelly reversed, highlighting a variety of evidentiary deficiencies and utterly disregarding the evidence in favor of the award. Will it never end.

SRO reverses award of reimbursement again

SRO 08-140: This case is notable for the extent to which SRO Paul Kelly goes to excuse the infirmities on an IEP. When evaluating the appropriateness of the district recommended program, Kelly relies upon and almost always(perhaps always) credits what a district says it is doing and what it says it will do. Thus districts can almost always overcome the obvious infirmities in their programs through testimony at a hearing and they can know that even if an IHO discredits the testimony, Kelly will rely on it.

Here, the impartial hearing officer found that the district failed to offer an appropriate educational program to the child and ordered it to pay for their daughter's tuition costs at the Manhattan Children's Center (MCC) for the 2008-09 school year. The determination was, at least in part, based upon the district’s failure to conduct an FBA or develop a BIP for this autistic child. Not surprisingly, Paul Kelly reversed the IHO finding that there was “no persuasive evidence in the hearing record that the student demonstrated a need for either an FBA or a BIP” and that, essentially, the school could have and would have adequately addressed the child’s behavioral needs without an FBA or a BIP. Kelly then noted that “[e]ven if an FBA or BIP was required by State regulation in this instance, the district's failure to do so here did not, procedurally or substantively, rise to the level of a denial of a FAPE to the student.”

Caution to parent attorneys–Kelly pointed out the following in a footnote: “the impartial hearing officer's finding that the district failed to conduct an FBA or BIP and thus "failed to satisfy 'Prong I' of the Burlington/Carter test" (IHO Decision at p. 22), the impartial hearing officer did not determine whether the district's failure to do so impeded the student's right to a FAPE,
significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits”. It is imperative that IHOs make such findings and it is incumbent upon us to do our best to make sure that they do so.

Kelly then went on to excuse, inter alia, the district’s failure to adequately indicate how the child’s progress would be reported finding that information regarding the child’s progress would be readily available to the parents.

SDNY reverses SRO on reimbursement claim

T.P. ex rel. S.P. v. Mamaroneck Union Free School Dist. (S.D.N.Y. May 10, 2007)

NOTE: This case was reversed by the 2nd Circuit on February 03, 2009 at 554 F.3d 247.

This case with a decision date of May 10, 2007, but just now publicly reported, is of major importance in New York State where the State Review Office has found against parents in the great majority of cases from 2006 to the present. In this case, the parent lost at hearing and at SRO(05-076). This is a must read for parent attorneys and autism advocates. In sum, the Court found that:

1. the district had improperly predetermined the child’s placement


2. the child was entitled to extended day services


3. the IEP which failed to include any transitional provisions for at-home ABA services, was not reasonably calculated to enable the child to receive an educational benefit and deprived him of a FAPE.

The District had knowledge of the Child's difficulty with transitions, and the IEP containing no at-home ABA therapy failed to address the Child's individual needs. Examining the evidence of record and giving due weight to the proceedings below, the Court cannot conclude that the child was likely to make progress under a plan that would bluntly change his routine, and in which no at home ABA therapy was provided, despite his being accustomed for the prior years provided with 30-35 hours per week of at home ABA services, and under which program he made meaningful advances.

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.