D.C. Court holds that IHO decision must be implemented during an appeal

Friendship Edison Public Charter School Chamberlain Campus v. Suggs, 562 F. Supp. 2d 141, 143 (D.D.C. 2008).

A student is entitled to pendency during the course of litigation. In this case, the student was awarded compensatory education in the form of supplemental tutoring. The Court held that the implementation of a hearing officer decision is not automatically stayed by the filing of an appeal.

Nowhere in the IDEA ... is there a corresponding right of an education provider to decline to implement a Hearing Officer Decision in a student's favor automatically, without seeking a stay of that Decision from either the Hearing Office or the Court in which further proceedings have been commenced under 20 U.S.C. § 1415(i)(2).

Moving from district did not moot attorney fee claim

Kingsport City School System v. J.R., ex rel. Rentz, Slip Copy, (E.D.Tenn. Sep 04, 2008)

In this case, the parents moved from the district prior to the implementation of relief won during the administrative process. The court determined that the parent was the prevailing party and that the fact that they had moved did not negate the right to attorney fees.

Court orders funding of independent FBA

Harris v. District of Columbia, 561 F. Supp. 2d 63, 69 (D.D.C. 2008)

Parent sought an independent functional, behavioral assessment(FBA). District failed to act upon the request in a timely fashion. First, the Court found that an FBA is an educational evaluation, thus giving rise to a parental right to an Independent Educational Evaluation(IEE). Next, the Court slapped the District by finding that

failure to act on a request for an independent evaluation is certainly not a mere procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress' objectives in enacting the IDEA. See Part II C 1-2, supra. Nevertheless, even accepting defendant's assertion that plaintiff's complaint describes a procedural violation, its argument still fails. D.H. has languished for over two years with an IEP that may not be sufficiently tailored to her special needs. The intransigence of DCPS as exhibited in its failure to respond quickly to plaintiff's simple request has certainly compromised the effectiveness of the IDEA as applied to D.H., and it thereby constitutes a deprivation of FAPE. Plaintiff is accordingly entitled to full relief under the statute.

District can not satisfy obligation to evaluate by referring parents to outside evaluator

N.B v. Hellgate Elementary School District, ex rel. Bd. of Directors, Missoula County, Mont., –F.3d– (9th Cir.(Mont.) Sep 04, 2008): A school district is obligated to evaluate a child in all suspected areas of disability. Here, the school district was aware that the child might be autistic. The school district suggested that the parents obtain an evaluation and referred the parents to a testing center. The 9th Circuit reversed the District and found that the school district “did not fulfill its statutory obligations by simply referring C.B.'s parents to the CDC. Such an action does not “ensure that the child is assessed,” as required by 20 U.S.C. § 1414(b)(3)(C).”

Federal Court Vacates SRO home schooling decision

H.C. v. Colton-Pierrepont: This is a case of particular interest to home schoolers in New York State. The case was originally a parent challenge to the district’s recommended reduction in frequency of related services. The parent prevailed at hearing. On appeal, the district prevailed, but more importantly, the SRO advised that districts were not permitted to provide special education services to home schooled kids. This issue had not been raised, briefed or argued by either of the parties. Federal District Court Judge Hurd vacated the SRO decision. Although he decided the case on other grounds, he criticized the SRO for “depriv[ing] both parties of due process because he failed to inform them that he intended to rule on the rights of home-schooled students to receive special education services – an issue that neither party raised nor briefed.” Judge Hurd noted that “[t]he SRO also exceeded the scope of his authority because “[t]he decision of the State Review Officer shall be based solely upon the record before the State Review Officer . . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 279.12(a) (2008). Neither party mentioned or submitted evidence concerning the ability of home-schooled students to receive special education services.“

On August 25, 2008, the district filed a notice of appeal to the 2nd Circuit.

Does a non-custodial parent have due process rights?

Fuentes v. Bd. of Education of City of New York

Jesus Fuentes is a non-custodial parent. In 2000, he requested an impartial hearing, which request was denied by the NYC impartial hearing office. In 2008, he is still fighting for the right to a hearing and the battle is long from over. The Second Circuit recently addressed but did not decide the issue, instead certifying the issue of the father’s standing to the New York Court of Appeals. The Court framed the issue as follows:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are
silent as to the right to control such decisions.

SDNY reverses SRO on reimbursement claim

T.P. ex rel. S.P. v. Mamaroneck Union Free School Dist. (S.D.N.Y. May 10, 2007)

NOTE: This case was reversed by the 2nd Circuit on February 03, 2009 at 554 F.3d 247.

This case with a decision date of May 10, 2007, but just now publicly reported, is of major importance in New York State where the State Review Office has found against parents in the great majority of cases from 2006 to the present. In this case, the parent lost at hearing and at SRO(05-076). This is a must read for parent attorneys and autism advocates. In sum, the Court found that:

1. the district had improperly predetermined the child’s placement


2. the child was entitled to extended day services


3. the IEP which failed to include any transitional provisions for at-home ABA services, was not reasonably calculated to enable the child to receive an educational benefit and deprived him of a FAPE.

The District had knowledge of the Child's difficulty with transitions, and the IEP containing no at-home ABA therapy failed to address the Child's individual needs. Examining the evidence of record and giving due weight to the proceedings below, the Court cannot conclude that the child was likely to make progress under a plan that would bluntly change his routine, and in which no at home ABA therapy was provided, despite his being accustomed for the prior years provided with 30-35 hours per week of at home ABA services, and under which program he made meaningful advances.

Are attorney fees available on settlement agreements after all?

Jankey v. Poop Deck: This is a 9th Circuit ADA case in which attorney fees were an issue. The parties had entered into a settlement agreement. The District Court denied attorney fees; the Court of Appeals reversed in a case that could have significant impact in the special education arena. Of relevance,

In a case pursued under the ADA, a court, “in its discre-
tion, may allow the prevailing party . . . a reasonable attor-
ney’s fee.” 42 U.S.C. § 12205. “[F]or a litigant to be a
‘prevailing party’ for the purpose of awarding attorneys’ fees,
he must meet two criteria: he must achieve a material alter-
ation of the legal relationship of the parties, and that alteration
must be judicially sanctioned.” P.N. v. Seattle Sch. Dist. No.
1, 474 F.3d 1165, 1172 (9th Cir. 2007) (internal quotation
marks omitted). In other words, the alteration must have a “ju-
dicial imprimatur.” Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).

Here, the district court dismissed Plaintiff’s case pursu-
ant to a settlement agreement between the parties under which
the court retained jurisdiction to enforce the settlement.
Defendants argue that those actions by the district court do
not constitute a sufficient judicial imprimatur. That argument
is foreclosed by Skaff v. Meridien North America Beverly
Hills, LLC, 506 F.3d 832 (9th Cir. 2007) (per curiam). There,
we held that a “settlement agreement and the district court’s
order dismissing the case[, which] provided that the district
court would retain jurisdiction to enforce the agreement,” sat-
isfied the requirements of Buckhannon to render the plaintiff
a prevailing party under the ADA. Id. at 844 & n.12. The set-
tlement agreement in this case both authorized judicial
enforcement of its terms and expressly referred resolution of
the issue of attorney fees to the district court.

The IDEA by its terms makes resolution agreements enforceable in federal court. This should be sufficient to give rise to the right to fees, assuming that the terms of the agreement otherwise make the parent a prevailing party. This theory will soon be tested. Stay tuned.

SRO pounds parent attorney for procedural infirmities

SRO 08-053: Parent alleged that the district(presumably NYC) failed to provide her child with a FAPE. She placed her child in a private school and requested a hearing. After 3 days of testimony, the IHO found for the district. The parent appealed. SRO Paul Kelly, always tough on parents and disabled children, did not even address the issues in this one. Rather, he tossed the appeal citing counsel’s:

1. failure to provide “sufficient particulars as to the reasons why she challenges the impartial hearing officer's decision”;


2. raising of issues in the memorandum of law rather than the petition;


3. failure to include record cites in the petition; and perhaps the most stunning of all,


4. the failure to include a table of contents in the memorandum of law.

Additional Evidence

The pendulum swings back and forth in Court decisions regarding the admissibility of additional evidence in IDEA actions. There appears to be a trend towards admissibility, however. Most recently, the SDNY allowed affidavits from private school personnel in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F.Supp.2d 420, SDNY(2008).

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.

Attorney fees for due process violation

The focus of this blog is generally on currently decided cases and legislative developments. Although not just decided, this case is of great import with respect to district strategies that deny parents due process rights. In Engwiller v. Pine Plains, 110 F. Supp. 2d 236(SDNY 2000), the Parent prevailed on her claim that SED did not assure the provision of the hearing decision within 45 days. The SDNY awarded fees, stating that “Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on [the child’s] IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys' fees expended on SED administrative proceedings and this litigation.” Note that the award of fees was made without regard to the merits of the underlying proceeding; in fact, the attorney fee award was made prior to the issuance of the hearing officer’s decision.

Important case to counter district motions to dismiss hearing requests

Somoza v. NYC,__F.3d__(2nd Cir. 2008):

Parent sought compensatory services for her 23 year old alleging a denial of FAPE for the entire time she had been in the NYC school system. NYC had “voluntarily” agreed to an extra year of private schooling in exchange for a release of all claims. That year was due to expire in June of 2006. The parent argued that the claim should have survived because there was no relief available that was not already being provided(because the child was at the private school at district expense). The District Court agreed reasoning that claim did not accrue until after the year in the private school. The Second Circuit reversed holding that the claim accrued during the 02-03 school and that, therefore, the claim was barred under any of the various possible statutes of limitation.

Most importantly for ongoing purposes, the Second Circuit stated that 

the fact the DOE voluntarily provided the requested educational services beyond the term of plaintiff's statutory entitlement does not “deprive a federal court [or administrative agency] of its power to determine” the nature of the entitlement at issue. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000); see also New York Pub. Int. Res. Group, Inc. v. Johnson, 427 F.3d 172, 185 (2d Cir.2005). Plaintiff's allegations that, in the past, the DOE had denied her the FAPE to which she was entitled presented a live and “concrete dispute affecting cognizable current concerns of the parties” at the time that plaintiff arrived at this understanding. Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.2007) (internal quotation marks omitted).

As previously noted in this blog, in a number of cases, districts have been successful in convincing hearing officers to dismiss hearing requests based upon their representations of willingness to do what the parents are requesting. The cases were dismissed despite that there was no settlement agreement, no consent decree and no order of the IHO compelling the relief.  Not surprisingly, SRO Paul Kelly affirmed each of these decisions(SRO 07-122, 08-008, 06-109). I have appealed SRO 07-122 and 08-008 to federal court, but we are at the very early stages of the litigation. The Somoza case is very strong authority in favor of our position that the parents were wrongfully deprived of due process and that the IHO had the “power to determine the nature of the entitlement at issue”.

New York SRO reverses yet another reimbursement award

SRO 08-051: Hearing officer awarded reimbursement to parents for private residential placement for severely behaviorally disordered child. SRO agreed that the district failed to offer an appropriate placement. Once again, however, as has been the pattern for the last 3 years, the SRO reversed the IHO award of reimbursement by finding that the parent had failed to establish the appropriateness of the parental placement. This is a detailed decision that on the one hand highlights the child’s behavioral progress at the placement, but ultimately weighs against the parent ostensibly for the child’s failure to make academic progress and for the failure to of the program to address the child’s behavioral needs in the way that SRO Kelly thinks they should be addressed. It is a harsh and I’m sure very disheartening decision to the family. Hopefully, the parent will appeal and the federal court will look more favorably upon what appeared to be a very reasonable placement choice by the parents.

No statute of limitations for pre-2004 compensatory education claims

Tereance D. v. School Dist. of Philadelphia: In the 3rd Circuit, prior to the 2004 amendments of the IDEA, there was no statute of limitations on compensatory education claims. In this case, the Court did an extensive analysis of whether the new IDEA 2 year statute of limitations should be applied to a case in which the complained of conduct occurred prior to the 2004 amendments, but the hearing request was filed after. The Court held that the 2 year year statute of limitations would not be applied retroactively.