SRO upholds award of reimbursement

SRO 11-126: Parent placed student at a private school and sought reimbursement. IHO ruled in parent’s favor. SRO affirmed the decision. Of note, the SRO found that the parent’s 10 day notice of intent to seek reimbursement was timely because it was submitted more than 10 days prior to when the student started at the private school.

4th Circuit upholds reimbursement for home schooling placement

Sumter v. Heffernan (4th Cir. 2011): Parents pulled their autistic child from the public school system and set up a program for him at home. They then sought reimbursement for the costs of an ABA therapist. In what appeared to be a close decision, one that prompted a dissent in part, the Court ruled in favor of reimbursement. Of particular interest is the 4th Circuit’s rejection of a strict application of the LRE requirement as applied to a parental placement. The 4th Circuit joins the 8th Circuit as Courts recently adopting a looser standard for LRE as a factor in determining the appropriateness of the parental placement.

9th Circuit affirms award of full reimbursement where private school provided only some of services student needed

C.B. v. Garden Grove (9th Cir. 2011): Guardian placed the child privately and sought reimbursement. The ALJ found that the district had not provided the child with a FAPE. The ALJ awarded only partial reimbursement reasoning that the private placement did not provide a program designed to address all of the child’s needs. The District Court rejected the ALJ’s conclusion and the District's argument, that reimbursement is warranted only when a private placement provides the full range of educational services that a disabled student requires. The District Court held that “because [the child] received educational benefits from all services that the Center provided, the district court awarded full reimbursement to Guardian for the cost of obtaining those services, along with transportation.” The 9th Circuit affirmed the District Court rejecting the school district’s argument that “because the Center could not meet some of C.B.'s additional needs (such as instruction in arithmetic), the placement was not "proper" within the meaning of the IDEA.” Interestingly, the 9th Circuit adopted the 2nd Circuit standard from Frank G.,
       

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d. Cir. 2006)

The Court then applied the standard to the facts of the case and found that the fact that the private placement delivered “many, but not all, of the special education services that [the student] needed” was sufficient to satisfy the standard.

SDNY once again reverses SRO

R.E. v. NYC: Once again the SDNY has reversed an adverse SRO decision (SRO 09-114) in a reimbursement case. R.E. v. NYC was decided yesterday. Initially, the Court noted that none of the public school personnel on the CSE knew the child. The only members of the CSE who were knowledgeable about the child were from the private school that the child had attended for many years.

The Court rejected the SRO's ex post facto rationalization and support of a CSE's recommendations through use of testimony at a hearing (“The SRO's reliance upon the teacher's testimony to remedy the deficits found by the IHO in the IEP was unwarranted....The SRO was not present at the hearing, and as such, should not have substituted his own credibility determinations for those of the IHO, who experienced the testimony of witnesses present at the hearing.

The Court found that the SRO was not due the usual deference because “nothing in the SRO's decision suggests that it is based on "educational policy," particularly given that it relies so heavily on the testimony individuals who lacked personal knowledge of J.E.”

OSEP: Notice of intent to seek reimbursement not required in subsequent years

For the parent who seeks reimbursement for a private placement, the general rule is that she must provide written notice of the intent to seek reimbursement from the public school district 10 days prior to removal of the child from the public school district or must advise the district of the same at the last CSE meeting prior to removal. OSEP, in a recent memo, stated that a parent who provides notice of intent to seek reimbursement in year one, does not have to provide such notice again in subsequent years.

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.

SDNY reverses SRO again

E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT (S.D.N.Y. 9-30-2010): The SDNY continues to be the court most willing to pierce through the barriers imposed by the New York State Review Office. This was a two year tuition reimbursement claim at a residential school. The parent went into court having lost at both the impartial hearing and the SRO. The court affirmed the denial of reimbursement for year 1, but reversed in favor of the parent for year 2. The court found that the district failed to adequately take into consideration the child’s progress at the residential placement and that was manifested in the district’s recommendations by:

1. placement with kids who were not of similar needs and abilities
2. by the failure to include an individualized reading program despite the fact that the child had progressed in reading when provided with 1:1 multisensory, individualized reading instruction
3. the replication of the goals and objectives from the previous year’s IEP despite having evidenced progress at the residential placement (“it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S.progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.”)

Parent attorneys should take note of how the Court approached the use of the kid's progress at the parental placement on prong 1, the approach to progress on prong 2, the analysis of LRE–in particular, the Court's view that "the right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement."–and the Court's analysis of the equities.

Court reverses SRO denial of reimbursement claim and holds that late notice warrants reduction rather than denial

WOOD v. KINGSTON CITY SCHOOL DISTRICT (N.D.N.Y. 9-29-2010): Parent placed child at the Kildonan School and sought tuition reimbursement. Parent prevailed at hearing. SRO reversed on the equities finding that the parent’s notice to the District of their dissatisfaction with the IEP and intent to enroll the child in Kildonan was untimely. The District Court held that the fact that the parent had provided notice of intent to make a reimbursement claim 5, rather than 10, business days prior to the start of the school year at Kildonan, warranted a 10% reduction in the award of reimbursement rather than denial of reimbursement.

SRO affirms award for private school reimbursement

SRO 10-042: Parents prevailed at hearing in New York City private school reimbursement case. NYC appealed to the SRO. For the first time this year, the SRO affirmed on the merits a decision in which an IHO had awarded reimbursement to a parent. The IHO on the case was James Walsh.

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.”

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.

Cert denied on reimbursement claim

HOUSTON SCH. DIST. v. V.P., 582 F.3d 576 (5th Cir. 2009), cert denied 3/22/10, Docket No. 09-841: The opinion in this case is rather torturous, but the upshot is that the 5th Circuit awarded year 2 of a reimbursement claim on a pendency theory. The 5th Circuit also found that the parent had prevailed on the year 2 claim for purposes of attorney fees. The Supreme Court rejected the District’s petition for review.

SRO rejects reimbursement claim based upon failure to provide related services

SRO 09-119: IHO found for district in reimbursement claim. SRO reversed on prong 1, but held for the district nevertheless, finding that the parent had failed to establish the appropriateness of the private placement. The SRO reasoned that the private placement was not appropriate because it failed to address the child’s need for related services. Notably, the parents had RSAs (related services authorizations) from the district for the provision of related services. The SRO provided no analysis as to why the parent should not be able to supplement the private program through external provision of related services. I have no doubt that the appropriateness of a district program would be assessed by the SRO taking into consideration all components–i.e. services provided by school district personnel and services for which the school has contracted. I see no reason why the appropriateness of a parental placement should be assessed by a more exacting standard.

Failure to provide prior notice does not justify granting of motion to dismiss

Erin K. v. Naperville School Dist. No. 203, 2009 WL 3271954, N.D.Ill.,2009: Parents did not give prior notice of intent to make reimbursement claim prior to placing their daughter at a residential facility. The hearing officer dismissed the parents’ hearing request for failure to give proper notice. The district court reversed. The Court explained that “section 1412(a)(10)(C)(iii) provides that reimbursement may be reduced if proper notice was not given. It is not an automatic denial, as a matter of law, as the Hearing Officer concluded in this case. Rather, a hearing officer is permitted to consider all of the circumstances and then fashion an equitable result based on his or her discretion.”

SRO rejects Connors claim and reimbursement claim

SRO 09-079: This case was litigated as both a reimbursement case and a Connors prospective funding case. First, SRO Paul Kelly rejected the parent’s reimbursement claim noting that although there was contract language purportedly obligating the parent to pay the school in full, no payments had been made and there was no evidence that the school would seek payment. Kelly also found that the notice of intent to make a reimbursement claim was defective in that the parent utilized a form that did not provide specific details of the parent’s concerns.

As for the Connors claim, Kelly found that it was the private school that incurred the financial burden for the child’s education going forward, that the private school has no entitlement to relief, and that the parent cannot assert a claim on behalf of a private entity that lacks standing under the IDEA to maintain a claim against a school district in its own right.

SRO rejects NYC argument that placement into for profit school precludes the right to reimbursement

see SRO 09-085. More importantly, the EDNY just rejected this argument in AD v. NYC, 110 LRP 9168 (EDNY, 2/9/10) (Judge Cote) (kudos to Steve Goldstein, with a tad bit of help by me).

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.

SDNY reverses SRO again

G.R. v. New York City Dept. of Educ., 2009 WL 2432369(S.D.N.Y. Aug 07, 2009): Parent sought reimbursement for private placement at Winston Preparatory School. NYC had conceded on prong one as they had failed to offer the student a placement. The IHO ruled against the parent on prong two finding that there was insufficient proof at that time of R.R.'s progress at WPS and that WPS was not providing speech and language therapy to R.R. She left open the possibility of plaintiff renewing her request for reimbursement once more evidence of R.R.'s progress was available, and therefore denied the application without prejudice. SRO Paul Kelly denied the parent’s appeal and sustained the district’s appeal, holding that it was error to dismiss without prejudice–i.e. the dismissal was final. In a very common sense opinion, the SDNY (Judge Griesa) reversed the SRO finding that there was sufficient proof of the appropriateness of WPS.

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 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.