SRO finds district program inappropriate

SRO 08-052: This is one of the few cases in which SRO Paul Kelly has sided with the parent and affirmed a favorable IHO decision. Kelly found that the IEP did not accurately reflect the student’s actual present levels of performance and needs, that the IEP’s goals and objectives were flawed and inadequate, and that the placement was inadequate without 1:1 assistance. This is a must read, particularly for attorneys or others doing hearings.

Issues raised at hearing but not included in hearing request survive

SRO-08-052: Generally, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint notice is amended prior to the impartial
hearing per permission given by an impartial hearing officer at least five days prior to the hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; see SRO 06-065, 06-139). Here, the parents raised an issue during the course of the hearing, an issue that they had failed to raise in their hearing request. The district, however, did not object and therefore, the SRO treated it as having been properly raised.

District must identify a specific site for child's placement

SRO 08-058: In a case in which SRO Paul Kelly once again negated a reimbursement award, Kelly found for the parent on prong one ruling that the district’s failure to identify a school site in which the IEP could be implemented denied the child a FAPE. Kelly found for the district on prong two, however.

Drug use and disability

The SDNY affirmed an SRO decision denying reimbursement for a private placement in a case in which the parents argued that the child’s drug use and his emotional disturbance were inextricably intertwined.

plaintiffs argue that P.K.'s disability and substance abuse were 'intertwined.' This argument could plausibly be advanced in most, if not all cases in which a student has both a disability and a substance-abuse problem. To accept it would be to hold that school districts must provide (or pay for) substance-abuse treatment for students who happen to be disabled. Nothing in the text of the IDEA suggests that Congress intended this result, which would add a significant financial burden to already heavily burdened public-school systems. Plaintiffs have not cited any case holding that the IDEA requires a school district to pay for private substance-abuse treatment, and we are not aware of any. Courts that have addressed the issue have reached the opposite conclusion, as do we.

P.K. v. Bedford Cent. School Dist., --- F. Supp. 2d ----(S.D.N.Y. Aug. 1, 2008).

Note, however, that there is an inconsistency in the treatment of similar issues by the federal courts. For example, a Texas federal court ordered reimbursement for a variety of services stating that the child's "doctors recognized that extensive counseling was critical to treat the psychological and behavioral problems underlying her academic difficulties." Richardson Independent School Dist. v. Michael Z., — F. Supp. 2d — (N.D. Tex. Apr. 22, 2008).
Although, this is not a drug abuse case, the analysis is analogous. Unlike the SDNY, the Texas court found that the child's

academic difficulties were inextricably intertwined with her emotional and behavioral problems. The Court does not provide an exhaustive recital of the arguments and evidence previously presented, but rather distills the key facts. [The child] suffered from numerous debilitating conditions, including bipolar disorder, separation anxiety disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and pervasive developmental disorder. Defiant and aggressive, [The child] lashed out at teachers, skipped class, and was generally unreceptive to instruction. Repeated outbursts also limited her ability to focus, to absorb lessons, and to complete assignments in a timely manner. As a result, [The child] struggled academically in the approximately twelve schools she attended.

Id.

Pendency when a child is transitioning from preschool to Kindergarden

It is not unusual for a school district to radically reduce a child’s services or even declassify the child upon entering kindergarden. For a child who has been receiving services as a preschooler, the parent can request a hearing and assert the right to pendency. The SRO in appeal number 01-023 stated that

[t]he pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir. 1996]).

Note that this does not mean that the child must remain in the preschool program, but rather that the district is obligated to continue the program prescribed in the IEP in a school age environment. If the child is school age eligible, but not of compulsory school age, the child may be able to continue in the preschool environment if the program is certified for school age kids.

Home Schooling alert: URGENT

Pursuant to the new law, any parent who wants her school district to provide special education services to her home schooled child must submit a written request by Wednesday August 6th. Please feel free to contact my office if you have any questions.

Right to attorney fees on settled cases

The Supreme Court in the Buckhannon case significantly limited the right to attorney fees in special education cases. There is an extensive and useful discussion of Buckhannon in the recently decided 1st Circuit case, Aronov v. Chertoff. This is not a special education case, but the reach of Buckhannon is extensive. Courts are applying its restrictive view to all fee recovery statutes. The court in the Aronov case discusses in detail the difference between and requirements for a consent decree that would give rise to fees and a private settlement that would not.

Issues remained live for hearing when there is no agreement at the resolution session

EL PASO INDEP. SCHOOL DIST. V. RICHARD R.,591 F.3d 417 (5th Cir. 2009): This is a potentially very important case. Some school district attorneys have aggressively resisted resolving cases in a fashion that could give rise to the right to attorney fees for the parent. The effect of this strategy is to infringe upon the parents’ right to counsel, at least for those parents that can not afford an attorney. In New York State, the SRO has, on a number of occasions, upheld district motions to dismiss in cases where there were no settlement agreements, but where the district had purportedly expressed a willingness to address the parents’ concerns. These NY decisions have perpetuated a doctrine depriving the parents and kids of due process. Two of these cases are presently on appeal in the Western District of New York. In this Texas case, the federal court held that a hearing officer properly refused to dismiss the hearing request. The court vindicated the parents’ right to reject a settlement offer and proceed to hearing. The rationale of the court’s decision was twofold. First that the proposed agreement did not confer federal court jurisdiction and was thus unenforceable in federal court by the parents and second, that the proposed agreement did not give rise to prevailing party status, and would have precluded the parents’ right to attorney fees. The court upheld the hearing officer’s decision in favor of the parents, thus conferring prevailing party status upon the parents.

NY State Ed issues memo explaining new law authorizing provision of special ed services to home schooled kids

The State Education Department (SED) has issued a memo notifying parents and school districts of the new law authorizing special ed services for home-educated children.  The memo explains the new law and highlights that parents seeking special ed services must have an approved IHIP and must submit a request in writing to the board of education by August 6, 2008 for the '08-'09 school year, and by June 1 in future years. The memo further addresses location of services--i.e. districts are empowered to determine the location of services and that can include provision in the home. There is no guidance as to how that determination should be made. The location of services issue has been hotly contested for the better part of two decades, but it should be noted that current 3602-c case law addressing this issue dictates that services be provided on site at a private school if that is necessary for the child to receive an appropriate education. There is no reason to believe that home schoolers will be treated by the SRO and courts any differently than private schoolers on this issue.

Parents of home schoolers who disagree with the CSE’s recommendations are entitled to due process and thus, can request an impartial hearing. The memo further states that “special education services must be provided to home-schooled students on an equitable basis as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools within the district.” It remains to be seen how this will be interpreted, but on its face, I’d say that it means that there should be no reduction of services to a home schooler as compared to a child attending the public schools or a child attending a private school and receiving services pursuant to 3602-c.

Court reverses ALJ and finds child with ADHD eligible for special education

M.P. v. Santa Monica,(WL 2783194 for those with Westlaw): This case addresses a common theme--whether a child’s less than able performance results from ADHD or a lack of motivation. There is an excellent analysis of expert testimony, credited by the Court in contravention of the ALJ’s determination. This is a hidden gem of a case and one which I will likely write in more detail about at a later point.

Responsibility for implementation of the IEP

Oftentimes, school personnel are oblivious to the specifics in a child’s IEP. Sometimes, school personnel are not even aware that a child has an IEP. This is an unacceptable practice. New York State regulations require that “the chairperson of the committee on special education designates for each student one, or as appropriate, more than one professional employee of the school district with knowledge of the student’s disability and education program to, prior to the implementation of the IEP, inform each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel, as defined in section 200.1(hh) of this Part, and other provider and support staff person of his or her responsibility to implement the recommendations on a student’s IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP”(8 NYCRR §200.2(b)(11)(iii); see also $200.4(e)(3)).

EXTENDED SCHOOL YEAR PROGRAMS AND SERVICES in New York State

See here for state ed Q and A document on extended school year(i.e. summer) programs.

Failure to include transition plan for child in residential placement renders district program inappropriate

The district knew that this autistic child had difficulty with major transition plans, yet it merely promised to develop a plan if the parents agreed to the district placement. In A.Y. v. Cumberland Valley School District(2008 WL 2704626, M.D.Pa. 2008), the court said that that was not enough. “When a school district knows that a child requires a transition plan to return to that district from a private school placement and that school district does not include a transition plan in the IEP, the IEP is not appropriate.”

New York State Home Schooling Update: IMPORTANT

State Ed. issued this advisory today.

Pursuant to Chapter 217 of the Laws of 2008, which was signed into law
by the Governor on July 8, 2008, students with disabilities who are in
home instruction programs pursuant to section 100.10 of the Regulations
of the Commissioner of Education are eligible to receive special
education services from their public school districts.

School districts should notify all parents of students with disabilities
who are in home instruction programs pursuant to section 100.10 of the
Regulations of the Commissioner of Education that, if the parent is
seeking special education services to be provided to their child by the
public school district, the parent must submit a written request for
such services to the school district where they reside by August 7 of
this year (which is 30 days after this new law takes effect).

Further guidance on Chapter 217 will be issued next week.

NYS restores the provision of special education services to home schooled kids

Until recently, New York State had for many years provided special education services to home schooled children. In January of 2008, State Ed. issued a directive ordering school districts to terminate special education services to home schooled children. State Ed. relied upon the State Review Office decision in Appeal number 07-043, a decision which is presently being appealed by the Law Offices of H. Jeffrey Marcus, P.C., and Joyce Berkowitz, Esq. In June, the Assembly and the Senate agreed upon language to restore services and sent a bill to the governor. On Monday July 7, 2008, Governor Paterson signed the bill and it is effective immediately. The full text of the bill can be found here.