Court supports parent right to independent functional behavioral assessment(FBA)

The district argued that the FBA was not an educational evaluation and therefore, the parent had no right to an independent evaluation(IEE). In Harris v. District of Columbia decided June 23, 2008, the Court found otherwise and additionally held that the district’s failure to perform an FBA for over 2 years was sufficient to confer upon the parent the right to an IEE.

Parental Consent for the Use of Public Benefits or Insurance Pursuant to the IDEA

New York State Ed. just issued a memorandum explaining that Federal and State regulations require school districts to obtain parental consent each time that access to public benefits or insurance is sought. For complete details, see Medicaid Parental Consent. 

Important case addressing exceptions to IDEA 2 year statute of limitations

D.G. v. Somerset Hills School District: The IDEA prescribes a 2 year statute of limitations. In this recently decided D.C. case, the federal court held that the 2 year limit did not apply because the district failed to provide the parent with written notice of procedural safeguards and due process rights. Additionally, the court held that the continuing violation doctrine applied making the parent’s claim timely finding that the district’s “alleged actions and omissions were part of a continuing practice and the last act evidencing the continuing practice occurred in June 2006, a date within the IDEA's two-year statute of limitations period”.

Placement vs. location of services

OSEP addresses this issue in Letter to Trigg(11/30/2007) noting that historically “placement” is the “points along the continuum of placement options available for a child with a disability” and "location" is “the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services.”

Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child's special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided.

Enforcement of hearing officer orders: SRO says go to federal court, federal court says go away

The NYS SRO has repeatedly stated that school district failure to implement a hearing officer’s order can only be enforced via complaint to state ed or in federal court. For example, in SRO 06-130, SRO Paul Kelly stated that:

The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

The federal courts are not so amenable to such complaints, however. A number of courts have held that the IDEA does not grant a district court jurisdiction to enforce a hearing officer's order because a party who prevails at a due process hearing is not aggrieved by the decision. Rather, the party is aggrieved by the later failure to implement the decision and that does not give rise to federal court jurisdiction(see e.g. Brennan v. Reg'l Sch. Dist. No. Bd. of Educ., 531 F.Supp.2d 245, 261 (D.Conn.2008)). For a more complete discussion of the issue, see James S. ex rel. Thelma S. v. School Dist. of Philadelphia--- F.Supp.2d ----, E.D.Pa.,2008.

Supreme Court denies cert in IDEA damages case

Burke v. Brookline Sch. Dist.: Supreme Court denies cert in this 1st circuit case in which the Court held that the parents could not make a claim for monetary damages for alleged denial of FAPE.

Use of additional evidence in federal court

For those of you who subscribe to LRP’s Special Ed Connection, there is an excellent summary of the law on the use of additional evidence in federal court. The article is entitled What factors does a court consider in admitting 'additional evidence' in IDEA disputes, beyond that introduced at administrative hearing(s)?

District responsibility for services when child is involved in multiple service systems

M.K. v. Sergi: This case is of particular interest because the child was in and out of various psychiatrict facilities and at the time of the original hearing(1995!), there was multiple system involvement--educational, mental health and juvenile court. The district court addresses various issues pertaining to the school district’s responsibility for services delivered outside of the school.

Medication monitoring services are not the responsibility of the district

In a companion case to M.K. v. Sergi discussed below, the district court held that medication monitoring services are not a “related service” for which the district would bear responsibility.

Determination of attorney fees in the Second Circuit

Federal court determination of attorney fees in special ed cases has recently become much more complex. The Second Circuit recently abandoned the use of the term “lodestar” in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 189 (2d Cir. Apr.10, 2008). The Court explained that the “better course” was for the district court, in the exercise of its “considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate.” Id. (emphasis in original). These factors include those set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974),abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), as well as the factors that other courts have applied in determining what “a reasonable, paying client would be willing to pay.”

The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of this case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Arbor Hill, 522 F.3d at 187 n. 3 (citing Johnson, 488 F.2d at 717-19).

The Arbor Hill Court held that, in determining what a reasonable, paying client would be willing to pay, the district court should consider, inter alia, the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively, the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might have initiated the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected little or no remuneration), and other returns (such as reputation) that an attorney might expect to gain from the representation. Arbor Hill, 522 F.3d at 184.

Determination of attorney fees in the 2nd Circuit

M.K. v. Sergi: Remarkably, this Connecticut district court case addresses matters that date back in part to 1995! It is of significance beyond the parties mainly for its restatement of the 2nd Circuit’s abandonment of the lodestar approach and the reiteration of the notion that attorney fees are to be determined at current market rates, not historical rates.

SRO orders 1:1 reading instruction

08-017: The SRO ordered a district to provide 1:1 reading instruction for 10 hours per week for the remainder of the 2007-08 school year, summer 2008 and the 2008-2009 school year and ordered that the district offer the parent training to enable her to acquire the necessary skills in multisensory reading strategies so that she could “support the implementation of her son's IEP”. The district was ordered to provide this service through the summer of 2008 and to consider it for the 2009 school year.

SRO denies district effort to remove child from the Judge Rotenberg Center

SRO 08-015: The child attended the Judge Rotenberg Center, a private residential school in Massachusetts. The JRC has come under a great deal of heat in recent times for its use of aversive behavioral techniques.
The school district wanted to move the child to a different residential placement. The parent wanted the child to stay at the JRC. The IHO ruled in favor of the district. In a rare victory at SRO for a parent, the SRO reversed saying that the district recommendations were based upon out of date evaluations. Interestingly, the SRO on this case was Robert Bentley, rather than Paul Kelly.

CSE must identify specific school placement on IEP

In this important Virginia case, A.K. v. Alexandria, the district court upon remand from the 4th circuit awarded reimbursement to the parents for a private school placement finding that the school district's failure to identify a particular school on the IEP deprived the child of a FAPE.

NYS SRO Paul Kelly continues the trend of reversing parent friendly hearing officer decisions

In the most recent batch of posted SRO decisions, SRO Paul Kelly continued his extraordinarily harsh treatment of parents and kids and his disrespect for hearing officers, by reversing every IHO reimbursement decision favorable to parents.

SRO 08-018: Kelly jumped through hoops to reverse a hearing officer’s award of reimbursement to a parent for a private school placement.

SRO 08-029: Kelly reversed IHO award of reimbursement to parent finding that district program was appropriate, that Kildonan was "inappropriately restrictive"(i.e. kid did not need residential) and that Kildonan did not address the child’s social skills deficits.

SRO 08-021: Not surprisingly, Kelly affirmed IHO denial of reimbursement based upon parent failure on prong 2.