3rd Circuit finds for district on reimbursement claim despite failure to have IEP in place prior to start of school year

C.H. v. CAPE HENLOPEN SCHOOL DISTRICT, 08-3630 (3rd Cir. 5-25-2010): Parent placed the child at the Gow School, but did not give the requisite notice of intent to make a reimbursement claim. The district proceeded with the evaluation process and the CSE met prior to the start of the school year. The CSE process was not completed prior to the start of the school year, however. The Court attributed the delay to the parents and declined “to hold that a school district is liable for procedural violations that are thrust upon it by uncooperative parents.” Further, in rejecting the parents’ claim of inadequate notice of the CSE meeting, the Court stated that “the Parents have been their own greatest impediment to participation in the evaluation of C.H.'s disabilities and the development of an appropriate IEP.” Finally, the Court also denied the parents’ claim on equitable grounds for failure to give proper notice of the intent to make a reimbursement claim and for disregarding “their obligation to cooperate and assist in the formulation of an IEP.”

SDNY rules in part for parents on reimbursement claim; interesting equities analysis

R.B. and H.Z., on behalf of C.Z., 09-CV-7758, decided May 5, 2010 (SDNY 2010): Parent placed the child privately and sought reimbursement. The private placement was a general education program supplemented by a separately paid for special education program. The IHO ruled in favor the parent awarding reimbursement for the whole shot. The SRO reversed. The SRO found that the parent had failed to demonstrate the appropriateness of the general education portion of the program. The SRO also found against the parent on the equities for failure to give proper notice. The SDNY reversed in favor of the parents, but only with respect to the private school special education component of the claim. Thus reimbursement was limited to a fraction of the total claim. The Court’s analysis of the equities is worthy of some exposure. The Court held that

Plaintiffs’ obligations under the IDEA’s notice requirement were not triggered because the DOE never provided plaintiffs with a Final Notice of Recommendation (FNR). Indeed, Plaintiffs could not have informed the DOE that they were “rejecting the placement proposed by the public agency” because the DOE never made a placement recommendation for Plaintiffs to reject.

The DOE had also advised the Plaintiffs in writing that the child had a right to continue in the current placement pending receipt of an FNR. Of note, the Plaintiffs did not challenge the IEP; rather, they only challenged the failure to offer a placement in which the child could receive the recommended services.
        Finally, and of particular interest, the Court found that the parent’s willingness to cooperate with the DOE was evidenced by their purchase of tuition insurance at a cost of $2000, “an expense they are unlikely to have made had they been determined to reject a public placement.”

SRO 10-02: inadequate notice, impact of settlement agreement on pendency and more

SRO 10-02: This is an interesting case for reasons other than those raised by the parent to attempt to justify an award of private school reimbursement. On the surface, this is no different than any reimbursement case. Parent disagrees with the placement recommendation, places the child in a private school and seeks reimbursement. Here, however, notice of intent to seek reimbursement was submitted to the district in a letter with subject line “Re: Transportation Request”. This letter included a list of 30 names of students represented by the parent’s attorney and was a sparse, generic letter that did not particularize the parent’s concerns with the district’s recommendations. The text of the letter follows:

Our office represents the following children, who will start the school year in the private schools listed below. The proposed placements were either inappropriate to meet their education needs, as the District's recommended classes failed to offer sufficient individualized attention or were not in the least restrictive environment, etc., or the parents did not receive the notice of placement until it was too late to visit the proposed class, and have not yet been provided with sufficient information to judge the appropriateness of the recommendation without visiting the proposed program. We will be filing requests for impartial hearings for each of these students in the fall, as necessary, seeking tuition reimbursement, transportation and related services. Where applicable, each I.E.P. will be challenged on substantive grounds; however, the parents are not waiving any procedural arguments they may have.

        The hearing officer ruled in favor of the parent on prongs 1(absence of parent member at CSE meeting) and 2, but against the parent on prong 3, finding that the notice of intent to seek reimbursement was inadequate.
        The SRO very predictably reversed in favor of the school district on prong 1, did not address prong 2 and agreed with the IHO, again not surprisingly, that the notice of intent to seek reimbursement was inadequate. There is certainly a lesson here that parent attorneys should take note of.
        Finally, the IHO ruled in favor of the parent on pendency, a ruling that was reversed by the SRO. There is a discussion of the impact of a prior settlement agreement on the determination of pendency that’s worth a read. Assuming that the SRO has presented the facts correctly, it is hard to figure how the IHO could have ruled in favor of the parent, finding that pendency was the private school placement, when the agreement appears to have specifically precluded such a finding. One caveat though; although Kelly annulled the pendency determination, he did not make an alternative pendency ruling.

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.

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.

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 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.