Another decision in which the Court rejects district effort to save deficient IEP through testimony at hearing

N.S. v. DISTRICT OF COLUMBIA (D.C. 5-4-2010): It is utterly remarkable what some parents must go through these days to get an appropriate program for their child. In this case, the parents rejected the district’s proposed IEP, placed their child privately and requested reimbursement. The IHO ruled in favor of the school district despite the that, inter alia, the IEP did not include a statement of the child's present levels of academic achievement and performance, it was undisputed that the child required a multitude of supplementary aids and services in the classroom and the IEP failed to identify any such aids and services, the IEP failed to include specific goals and objectives to address the child's significant deficits in written language, the IEP failed to contain speech and language goals despite evidentiary support for the need, the IEP failed to include OT services despite the documented need and subsequent OT evaluation recommending services in response to which the district did not amend the IEP, and the IEP recommended inclusion despite the need for pullout services.

The IHO ruled in favor of the district reasoning that because the parents pulled the child prior to the implementation of the proposed IEP, the parents concerns were “speculative.” The Court rejected this position reasoning that “parents are not required to wait and see a proposed IEP in action before concluding that it is inadequate and choosing to enroll their child in an appropriate private school.” The district argued that the alleged defects were “merely procedural or technical and that they did not deprive N.S. or his parents of any substantive rights under the IDEA.” The Court rejected this argument and distinguished between harmless procedural flaws such as “failures to meet statutory deadlines” from serious procedural flaws such as here–“failures to include required information in an IEP about the services to be provided a disabled student.” The district argued that “as long as [the proposed placement] was "willing and able" to provide N.S. with appropriate services to meet his educational needs, any errors or deficiencies in the IEP are harmless.” The Court soundly rejected that argument reasoning that “the IDEA requires that a school district do more than simply provide services adequate to meet the needs of disabled students; it requires school districts to involve parents in the creation of individualized education programs tailored to address the specific needs of each disabled student…The IEP must be specific enough to allow parents to understand what services will be provided and make a determination about whether the proposed placement is adequate.” The IHO further erred by relying “on evidence about what services could have been provided by … instead of considering what services were actually called for by the IEP or adequately discussed at the IEP meeting. Because the purpose of the due process hearing is to contest the adequacy of the IEP and the placement, the Hearing Officer should not consider evidence about services not prescribed by the IEP or discussed at the IEP meeting.”

New York attorneys should take note of this decision as the SRO routinely permits school districts to cure significant defects in IEPS through testimony at hearing.

Circuit Court rules in favor of parents on private school claim despite good grades

D.S. v. BAYONNE BOARD OF EDUCATION, 08-4730 (3rd Cir. 4-22-2010): Parents sought placement for their son at a private school for learning disabled kids. CSE recommended public school placement. Child achieved good grades at the public school. Parents nevertheless challenged the appropriateness of the program. Parents prevailed at the hearing. The hearing was a state level hearing in New Jersey, a single tier state. The District implemented the decision placing the child at the private school, but appealed the decision to the District Court. The District Court reversed in favor of the school district. The parents appealed and the 3rd Circuit reversed back in favor of the parents relying primarily on deference to the hearing officer’s findings.
        This case is of particular importance because so often schools will rely on good grades to justify the appropriateness of placement/program recommendations. Yet, the validity of grades achieved in a self contained setting is often suspect. Here, the ALJ weighed the results of standardized tests and the testimony of experts against the surface appeal of the good grades buttressed by the testimony of school district personnel and concluded that the child was not receiving a FAPE despite the good grades. The 3rd Circuit noted that

we think that it is clear that a court should not place conclusive significance on special education classroom scores, a conclusion that we believe is reinforced by the circumstance that, as here, there may be a disconnect between a school's assessment of a student in a special education setting and his achievements in that setting and the student's achievements in standardized testing.[fn8] When there is such a disconnect we think that there should be an especially close examination of the appropriateness of the student's education.

4th Circuit holds that partial reimbursement must be considered

M.S. v. Fairfax, 553 F.3d 315(2009): Parents made a multi-year reimbursement claim for private placement. IHO found that the district’s IEPs were not appropriate but that the private placement was also not appropriate. The district court affirmed.

year by year analysis
The 4th Circuit held that the district court erred by not separately considering the appropriateness of each year at the private placement reasoning that “what is reasonably calculated to confer some educational benefit on the child may change over time”.

Court must consider partial reimbursement
The district court further erred by not considering whether partial reimbursement might be appropriate. The 4th Circuit held that the district court “must also consider whether, given the equitable nature of the IDEA, see *325 Burlington, 471 U.S. at 374, 105 S.Ct. 1996 (noting that “equitable considerations are relevant in fashioning relief”), some partial reimbursement is appropriate for any given year.” The Court further stated that

[t]he Supreme Court has instructed that “[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (emphasis added). In determining whether partial reimbursement is appropriate, “the district court may consider the following factors, among others: the existence of other, perhaps more appropriate, substitute placements, the effort expended by [the] parents in securing alternative placements[,] and the general cooperative or uncooperative position of [the school board].” Adams, 195 F.3d at 1151.

equities and statute of limitations
The 4th Circuit rejected the school district’s complaint “that any equitable considerations weighing in favor of the parents' request for reimbursement are outweighed by the parents' delay in filing this suit until 2004, after M.S. had already spent two years at Lindamood-Bell” stating that

[w]e decline the opportunity to impose filing deadlines not issued by Congress when authorizing these equitable remedies. First, the parents have presented evidence that the delay was due to their unsuccessful efforts to negotiate with Fairfax County to resolve their concerns out of court. Second, the Supreme Court has recognized that “the review process is ponderous,” and held reimbursement to be an appropriate remedy for precisely that reason. Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Even if the administrative review process had been completed within Virginia's 45-day statutory window, “[a] final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed.

findings of fact, legal conclusions and deference
Both the hearing officer and district court made findings that Lindamood-Bell had fallen short in several significant respects, namely in the failure to provide the life skills and vocational training and the group interaction needed by M.S. for his instruction.

The 4th Circuit recognized, as do all the Circuit Courts, the principle of deference, however, the Court distinguished between deference to findings of fact and the legal conclusions drawn from those findings of fact. This is of extreme importance in New York where the SRO appears committed to the eradication or extreme limitation of the federally prescribed right to reimbursement. The Court stated

We accord great deference to such findings under our precedent. See MM ex rel. DM, 303 F.3d at 531 (holding that “findings of fact made in administrative proceedings are considered to be prima facie correct,” and that “where a district court has heard and considered additional evidence, ... we review its findings of fact for clear error”). Whether the identified shortcomings of Lindamood-Bell were of such a nature as to preclude the realization of an educational benefit for M.S. is, of course, for the trier of fact to determine on remand. However, they do not preclude as a matter of law the possibility that the one-on-one instruction provided by Lindamood-Bell warranted some reimbursement. Therefore, if the district court, on remand, again determines that full reimbursement for Lindamood-Bell is inappropriate for one or more school years, it must nonetheless consider whether partial reimbursement is appropriate in any year for the one-on-one services that Lindamood-Bell provided to M.S. Here, the HO and the district court concluded that M.S. needed significant one-on-one instruction that Fairfax County failed to provide for 2002-2005. M.S. v. Fairfax County Sch. Bd., No. 1:05cv1476, 2007 WL 1378545, at *10-*11, 2007 U.S. Dist. LEXIS 33735, at *32-*33 (E.D.Va.2007). Lindamood-Bell provided thirty hours per week of one-on-one instruction in the “building blocks” of communication. If the district court determines that any time spent at Lindamood-Bell during any or all of the 2002-2005 school years was “reasonably calculated to enable [M.S.] to receive educational benefits,” M.S.'s parents may be reimbursed for such period as the district court deems appropriate. Carter, 950 F.2d at 163 (internal quotation marks omitted); see also Burlington, 471 U.S. at 369, 105 S.Ct. 1996.

least restrictive environment for private placement
The restrictive nature of a private placement may be considered as a factor in the determination of appropriateness of the parental placement, but not as a dispositive requirement.