WIll the State Review Office be eliminated?

The effort to eliminate the New York State Review Office continues. Here’s a link to the bill introduced in the Assembly on January 5, 2011. There was a legislative effort to eliminate the SRO last year. This bill is evidence of at least some sentiment in favor of the elimination of the office. The climate is certainly ripe. Putting aside any considerations of the absence in fairness at the SRO, the SRO is an unnecessary expenditure. It is not mandated by federal law and thus, it should be an easy target and a sensible one for cost cutting in these tough economic times.

SDNY awards retroactive direct tuition relief

MR. and MRS. A, o/b/o D.A. v. NYC: By decision dated February 1st, 2011, SRO 09-001 was reversed by the SDNY federal court. The Court held that where parents lack the financial resources to “front” the costs of private school tuition and "where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." The original blog post follows.

SRO 09-001: This case is probably the most controversial SRO decision in years. In brief, the parent prevailed at hearing on her private school reimbursement claim. On appeal, SRO Paul Kelly found that the district failed to provide a FAPE and that the parental placement was appropriate. With respect to equities, although he did not expressly find for the parents, he stated that “I agree with the impartial hearing officer's findings that the parents cooperated with the district, participated at the CSE meeting, visited proposed placements, and notified the district in writing that they were re-enrolling the student at the Rebecca School when no placement was offered by the district.” In the hearing request, the parents apparently sought “funding” for the private placement rather than reimbursement. The IHO awarded the requested funding of the placement. The evidence cited by Kelly establishes that the parents had entered into a contract that obligated them to pay the entire freight and that they had in fact made payments. Kelly reversed the IHO award stating that “[u]nder the circumstances of this case, where the parents are not requesting reimbursement for out-of-pocket costs or direct payment for compensatory education services, I find that the parents are not entitled to funding of the student's tuition.” Kelly cites to two SRO cases in which Connors prospective funding was at issue; here, however, he does not cite to Connors. He does note, however, that the 2nd Circuit has, in fact, found that school districts may be required to directly fund pendency placements and that “courts have awarded "prospective payment" to afford access to compensatory education.” One would think that in light of the fact that the 2nd Circuit has touched on the issue of prospective payment and that a district court (Connors) has strongly suggested the availability of such relief, the SRO ought to have examined the issue more closely and provided a rationale for approving or disapproving of the right to relief. There is a dearth of analysis on the issue, however; Kelly merely laid out his version of the facts and just put the kabosh on the parents’ claim.

see also, NSBA blog article.

Review of recent SRO decisions in the post-Kelly era

There are 6 published State Review Office decisions since the resignation of Paul Kelly–3 by Frank Munoz (SRO 10-066,10-072, and 10-074) and 3 by Robert Bentley (SRO 10-069, 10-070 and 10-073). Munoz affirmed each of the 3 IHO decisions that he reviewed, including one in which a parent had prevailed (SRO 10-066). This particular case was affirmed not on the merits, however, but rather because the matter had become moot. Bentley, on the other hand, held for the district in all 3 cases. Two of these decisions reversed IHO decisions which had awarded private school reimbursement to parents (SRO 10-070, 10-073). It’s a strikingly familiar tune thus far, although it is likely premature to draw any definitive conclusions, particularly with respect to Munoz. Of import, it is my understanding that the Munoz–Bentley era is temporary and that there will be a new State Review Officer sometime in the near future.

New York State Review Officer resigns

Reliable sources have advised that SRO Paul Kelly, the subject of much controversy over the last 4 or 5 years, has resigned and that today is his last day in office. No word yet on a replacement.

District Court rejects school district attempt to remedy deficient IEP through testimony at hearing

DUMONT BOARD OF EDUCATION v. J.T. (N.J. 5-10-2010): The New York State Review Office (SRO) often excuses inadequate IEPS by crediting the impartial hearing testimony of school district personnel as to what the district would have done for a child. Thus, district personnel have been able to, in effect, supplement an IEP and remedy its defects at hearing. In this New Jersey case, the Court refused to countenance such a tactic noting that

[w]ith respect to the sensory diet or sensory program, Dumont asserts that any deficiency in the IEP was obviated by testimony at trial that Tri-Valley would provide an adequate sensory
program for I.T.'s needs. (Def. Br. at 17.) Under the IDEA, however, "in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined." Lascari v. Board of Educ., 560 A.2d 1180, 1189 (N.J. 1989). See also D.C. v. Montgomery Twp. Bd. of Educ., No. 04-2851, 2005 WL 1229827, at *2 (D.N.J. 2005) (quoting Lascari). Whether or not Dumont would have offered I.T. additional sensory education services at a later date, the substance of the IEP with regard to her sensory education was limited to "sensory activities, tickles, hugging, deep pressure, physical touch," without any indication the numerous sensory stimulation techniques used at Tri-Valley and discussed in Dumont's brief, or any detailed program or reference to I.T.'s home sensory diet.

SDNY reverses SRO again

Bougades v. Pine Plains,______ (SDNY August 24, 2009): In a fact intensive and well reasoned decision, the SDNY held for the parent in this tuition reimbursement case despite rulings by the SRO and IHO in favor of the district. The Court defined the issues as whether

(1) the IHO and SRO decisions are entitled to deference even though they are premised on a faulty understanding of a key aspect of the factual record; and (2) M.B.'s 2003-04 IEP can be considered adequate when it did not suggest any method for addressing M.B.'s educational needs other than through the provision of the same services and program modifications (or lack thereof) that had proven inadequate the previous year.

SRO upholds reimbursement award to parent of home schooled student

SRO 09-033: District failed to offer a placement. Soon after the school year began, Parent notified the District(NYC) that she intended to home school her child. She then cobbled together a program that included 1:1 services from Lindamood-Bell among other things. IHO awarded reimbursement to parent despite the failure to provide notice of intent to seek reimbursement. SRO affirmed emphasizing that Parent’s ongoing efforts to work with the District significantly factored into his decision.

SDNY reverses SRO yet again on reimbursement claim

N.R., on behalf of T.R. v. NYC Bd of Ed., 07-CV-9648, 2009 WL 874061(SDNY, decided 3/31/09)(Judge Jones): At hearing, the district conceded on prong 1, that it failed to offer a FAPE. The IHO found against the parents on prong 2 and thus, rejected the parents claim for reimbursement for a private placement at the Rebecca School. The IHO did not make a determination on the equities. SRO Paul Kelly reversed on prong 2 in favor of the parents, but denied the claim on the equities(SRO 07-038). In a very well reasoned decision, the SDNY granted the parents motion for summary judgment. The Court found that the parents had cooperated throughout the placement process. The denial of FAPE was premised in part on the district failure to offer a site specific placement prior to the start of the school year. The Court noted that there are no cases supporting the denial of reimbursement on the equities where the district has failed to offer the child a placement.

SDNY rejects parent appeal of SRO decision in Connors type case

S.W. v. NYC Bd. of Ed., 2009 WL 857549 (SDNY March 30, 2009): In affirming SRO 07-032, the SDNY(Judge Koeltl) held that the parent failed to give notice of her claim for funding of the private placement. The parents sought direct payment to the private school as opposed to reimbursement. As such, this was what is colloquially referred to in N.Y. as a “Connors” case. By deciding the case on the equities, the Court avoided having to decide the issue of whether a parent may be entitled to prospective relief in the form of direct payment to a private school, but the Court does discuss the issue and concludes that “ In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.” This case is a must read for attorneys litigating Connors cases. There is extensive treatment of whether the parent has standing to bring such a claim. Here, the Court answered in the affirmative.

SDNY reverses SRO again on reimbursement claim

Eschenasy v. New York City Dept. of Educ., Slip Copy, 2009 WL 804120
S.D.N.Y.,2009: IHO found for the parent on this reimbursement claim for a private placement at the Elan School. SRO reversed in case number 06-077 finding that she was not emotionally disturbed despite the child’s history of social maladjustment, cutting behavior, lying, stealing, inappropriate sexual conduct, purging, and a variety of other serious behavioral and emotional problems. The SDNYdisagreed and reversed the SRO. Note that the SRO just recently decided the next chapter in this same case in SRO 08-099, again reversing an IHO determination of eligibility and an award of reimburement at the Elan School.

After finding that the child met two of the five categories in the definition of emotionally disturbed, the Court then determined that her symptoms had adversely affected educational performance. The Court highlighted that SRO Kelly had essentially mischaracterized the evidence in the record in concluding that the child’s emotional problems had not adversely impacted her educational performance stating:

Despite acknowledging testimony in the record that Ann failed several courses in high school, the SRO stated that there was no documentary evidence of failing grades nor was there any testimony from her teachers or any indication that she had been held back a grade. Based on this lack of evidence, the SRO found that Ann had not shown that her emotional problems adversely affected her educational performance.

The Court allowed a transcript as additional evidence reasoning that

the documents are relevant and useful to the analysis of whether Ann's emotional problems have affected her educational performance. This is especially true in light of the SRO's confusing statements about Ann's failing grades and his suggestion that there was insufficient documentary evidence that her school work had been adversely affected. In addition, this evidence directly contradicts defendants' argument that Ann has been able to obtain passing grades despite her emotional problems. I therefore conclude that the usefulness of these transcripts outweighs any procedural considerations weighing against their admission.

Finally, while ruling that the equities favored reimbursement, the equities weighed against an award of attorney fees because the parents were partially to blame for the district’s failure to conduct an evaluation and classroom observation prior to the unilateral placement.

Pendency does not absolve the district of obligation to develop IEP

SRO 08-026: SRO found that district was not relieved of its obligation to develop an IEP during the course of hearing. SRO Paul Kelly rejected the district's contention that it did not have to develop an IEP for the student because he was receiving services through pendency. Kelly noted that “[c]onducting CSE meetings and formulating and offering new IEPs during the course of pending litigation is not prohibited under the IDEA provided that there is adherence to pendency requirements (Letter to Watson, 48 IDELR 284 [OSEP 2007]; see Application of a Child with a Disability, Appeal No. 07-122).”

SRO reverses IHO in unusual Kildonan case

SRO 08-055: This case started out as a reimbursement case. By the time the hearing rolled around, the parents decided to continue the child in the district placement and to request prospective placement at Kildonan while challenging the appropriateness of the placement. On the last day of hearing, the parents withdrew their request for placement at Kildonan, but still sought a ruling from the IHO on the appropriateness of Kildonan, reasoning that it could give them pendency in the future. The IHO ruled for the parent; SRO Kelly reversed. He found for the parent on prong 1, but found that the parent had not established the appropriateness of Kildonan. He employed the 3 prong reimbursement analysis with no discussion as to why he was doing so in a case that had become something other than a reimbursement case. Nor did he mention or discuss Connors.

SRO excuses parent failures in awarding reimbursement

SRO 08-088: SRO Paul Kelly reversed an IHO denial of reimbursement. Kelly excused the failure by the parent to allege in the hearing request that the district’s proposed placement was unavailable at the start of the school year. He found that the issue had been litigated at hearing without objection by the district, and that that thus excused the failure by the parent to raise the issue in the hearing request. He then excused the parent’s failure to adequately inform the district of her concerns in the notice of intent to seek reimbursement. His rationale was that it was reasonable for the parents to place their child in 07-08 after the district failed to offer a placement in 07-08 and that the failure by the parent to detail their concerns did not prevent the district from addressing their concerns.

Can district take positions not raised in response to hearing request

The short answer is yes, they probably can. At least in New York State where SRO Paul Kelly holds court. But, in SRO 08-145, the parent argued that the district should be foreclosed from arguing the inadequacy of the parent’s notice of intent to seek reimbursement because the district had not raised this argument in their response to the hearing request. Kelly left open the possibility of holding for the parent in the future on this issue by stating

The parents argue that the district did not properly raise the issue of whether the parents
provided notice under 20 U.S.C. § 1412(a)(10)(C)(iii)(I) because it was not raised in the district's
response to the parents' due process complaint notice (see 8 NYCRR 200.5[i][4][i]). However,
the hearing record shows and the parents admit in their petition (Pet. ¶¶ 26-27, 30, 46), that at the impartial hearing the district's counsel cross-examined the student's mother on this issue and the parents did not object to that line of questioning (Tr. pp. 124-25). Furthermore, the district's
counsel reiterated this argument during closing statements (Tr. pp. 147-48) and the impartial
hearing officer appropriately made a determination on the issue.

SRO affirms denial of reimbursement claim despite unavailability of district recommended placement

SRO 08-157: No surprise that the SRO Kelly affirmed the denial of reimbursement, but the case is notable for Kelly permitting a recommendation for placement into a class for which there were no openings. And the recommendation was made 2 weeks prior to the start of school. See SRO 08-088 for case in which the SRO found that the IHO "should have considered wheterh the district had a classroom seat available for the student at the beginning of the 2007-2008 school year, and if not, he should have determined whether the failure to do so rose to the level of denying the student a FAPE".

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.

SRO affirms IHO decision re denial of FAPE

SRO 08-060: School district attorney David Oakes filed a motion to dismiss the parent’s hearing request. This is a strategy that he used successfully in 08-008 and 07-122 and appears to be using as a matter of course. Here, however, the IHO denied the motion and ultimately ruled in the parent’s favor. The SRO affirmed, rejecting the district argument that the parent’s claims were moot and also finding that the IEP was not appropriate. Of note, the district had identified particular needs for which the IEP did not contain specific goals. Kelly noted that deficiencies in the IEP “may not have risen to the level of denying the student a FAPE on their own, those deficiencies, in concert with the failures to properly implement the IEP ..., did deny the student a FAPE.” He further noted, “The 2007-08 IEP failed in three ways: it did not offer a FAPE at the time it was developed, it was not properly implemented, and it was not revised as appropriate during the year when the student's social, emotional and behavioral needs increased.”

It is interesting to note that Kelly rejected the district’s argument that it was “a violation of the mootness doctrine for the impartial hearing officer to order the district to take several actions during the remainder of the 2007-08 school year when that school year had nearly ended.” In constrast, Kelly has mooted numerous claims where the appeal to the SRO extends past the end of the school year, precisely what occurred here.

SRO Kelly excuses district failure to provide hearing request

SRO 08-039: Can you imagine that SRO Paul Kelly would uphold an IHO decision in the parent’s favor if the parent never filed a hearing request? He recently did so for a district. This case addressed the district’s refusal to pay for an independent evaluation. The IHO went ahead with a hearing despite the fact that the district had never provided the parent with a hearing request. The IHO then ruled for the district and against the parent on her claim for reimbursement for the IEE. The SRO held for the district finding that the parent did not properly initiate the appeal. SRO Kelly nonetheless reviewed the merits of the appeal. He agreed with the parents regarding the district’s failure to provide them with a hearing request, but found that “this procedural irregularity did not rise to the level of a denial of a free appropriate public education (FAPE).” Kelly reasoned that “the parents had actual and constructive notice of the hearing and the issues and failed to make the sufficiency challenge in a timely manner.”

Unappealed IHO decision establishes pendency

SRO 08-009: This case is from early 2008, but is worthy of note for the proposition that an unappealed IHO decision establishes pendency during subsequent proceedings.

SRO closes door tight on reimbursement claim

SRO 08-042: Parents prevailed at hearing. SRO Paul Kelly quickly disposed of the appeal by finding that the IHO improperly placed the burden of proof on the school district on the eligibility issue. “A misapplication of the burden of proof is reversible error (see M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 [8th Cir. 2008]), and as such, the impartial hearing officer's decision regarding the student's eligibility for special education programs and services is annulled.”
Kelly did not stop there, however. He analyzed each of the three prongs and found for the district on each. Of particular note is the equities analysis. Kelly found that the parent never intended to place the child in the public school and that the parents had referred the child to the CSE not for special ed services, but rather to attempt to secure funding for a private school education.