SRO strikes down another reimbursement award

SRO 08-137: Congress granted parents to right to seek reimbursement for an appropriate private school placement when the public school fails to offer an appropriate program. SRO Paul Kelly continues to abort that right. Once again, an IHO awards reimbursement to a parent–this time for ABA services. Once again, in a case in which the NYC school district conceded that it had failed to offer the child a FAPE for the time period in question, SRO Paul Kelly reversed, highlighting a variety of evidentiary deficiencies and utterly disregarding the evidence in favor of the award. Will it never end.

SRO declines to excuse late service

SRO 08-139: The parent dodged a bullet on this one. Parent prevailed at hearing. The district attempted unsuccessfully to serve its appeal papers on the final day of the 35 day window. Service was not completed until 2 days later. The SRO declined to excuse the late service and thus, affirmed the IHO ruling.

SRO reverses award of reimbursement again

SRO 08-140: This case is notable for the extent to which SRO Paul Kelly goes to excuse the infirmities on an IEP. When evaluating the appropriateness of the district recommended program, Kelly relies upon and almost always(perhaps always) credits what a district says it is doing and what it says it will do. Thus districts can almost always overcome the obvious infirmities in their programs through testimony at a hearing and they can know that even if an IHO discredits the testimony, Kelly will rely on it.

Here, the impartial hearing officer found that the district failed to offer an appropriate educational program to the child and ordered it to pay for their daughter's tuition costs at the Manhattan Children's Center (MCC) for the 2008-09 school year. The determination was, at least in part, based upon the district’s failure to conduct an FBA or develop a BIP for this autistic child. Not surprisingly, Paul Kelly reversed the IHO finding that there was “no persuasive evidence in the hearing record that the student demonstrated a need for either an FBA or a BIP” and that, essentially, the school could have and would have adequately addressed the child’s behavioral needs without an FBA or a BIP. Kelly then noted that “[e]ven if an FBA or BIP was required by State regulation in this instance, the district's failure to do so here did not, procedurally or substantively, rise to the level of a denial of a FAPE to the student.”

Caution to parent attorneys–Kelly pointed out the following in a footnote: “the impartial hearing officer's finding that the district failed to conduct an FBA or BIP and thus "failed to satisfy 'Prong I' of the Burlington/Carter test" (IHO Decision at p. 22), the impartial hearing officer did not determine whether the district's failure to do so impeded the student's right to a FAPE,
significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits”. It is imperative that IHOs make such findings and it is incumbent upon us to do our best to make sure that they do so.

Kelly then went on to excuse, inter alia, the district’s failure to adequately indicate how the child’s progress would be reported finding that information regarding the child’s progress would be readily available to the parents.

No claim for damages from State for placement at Judge Rotenberg Center

Nicholson v. State:(2008 WL 5568155, 2008 N.Y. Slip Op. 28540(N.Y.Ct.Cl. Dec 15, 2008))
Plaintiff sued New York State alleging that their son was subjected to electric shock punishment while a student at the Judge Rotenberg Center, a Massachusetts private residential school for children with mental or emotional disabilities, due to defendant's negligence in failing to properly investigate and/or regulate the school while keeping the school on a list of approved out-of-state residential educational facilities. The State’s motion for summary judgment was granted.

BOCES is not immune to suit

Gorton v. Gettel: This is a 2nd Circuit case decided January 28, 2009. It is not a special education case, but is of interest in its analysis of whether BOCES is a state or local agency and whether it is immune to suit. The Court held that “BOCES is not an arm of New
York State entitled to Eleventh Amendment immunity.”

State Complaint process and stay put

Millay v. Surry School Dept., 584 F.Supp.2d 219 (D.Me. Oct 28, 2008): In this procedurally complex case in which the parent filed a state complaint, a due process hearing request and a federal court lawsuit, the court found that a state complaint finding in the parent’s favor constituted an agreement between the state and parent for purposes of establishing the child’s stay put placement.

"Adversely affects" educational performance

Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian D., --- F.Supp.2d ----, 2009 WL 59065(W.D.Wis. Jan 08, 2009): In order to be eligible for services under the IDEA, a child must have a qualifying disability that adversely affects educational performance and by reason thereof, has a need for special education. In this case, the Court found “adverse effect to be any negative impact, however slight, reasoning that the term appears in the regulations without a qualifier such as significant or marked.” The Court also found that the MDT(CSE) should have evaluated the child’s needs without the child having the benefit of modifications or accommodations reasoning that to do otherwise would disqualify most students from eligibility.

OSEP says file a State Complaint to address the wrongful revelation of confidential information

See http://www.ed.gov/policy/speced/guid/idea/letters/2008-1/anderson030708confidentiality1q2008.pdf for an analysis of the Part 300 confidentiality requirements and the use of FERPA vs. State complaint to address violations.

SRO negates partial award of reimbursement for failure to provide notice

SRO 08-110: SRO Paul Kelly reversed another reimbursement award, this time for the parent’s failure to provide the district with notice of intent to make the reimbursement claim. While the result is not surprising, it is nonetheless notable. Once again, Paul Kelly gives the school district a free pass despite the failure to offer the child a FAPE and then punishes the parent by taking away reimbursement awarded by an IHO.

Class action against NYC Dept. of Ed settled

D.S. et al v. NYC Dept of Ed, --- F.Supp.2d ----, 2008 WL 5024911(EDNY 11/25/08):
Minority students and their parents at Boys & Girls High School (“B & G”) filed a class action contending that they and many others were deliberately denied a high school education. The Court found merit to the lawsuit and the parties entered into a settlement agreement. This is a good read for those interested in class action litigation to address special education problems.

Important new federal regulations

The federal special education regulations were revised effective 12/31/08 to permit parents to revoke consent for the provision of special education and related services. Additionally, whether parents have the right to be “represented” (as opposed to accompanied and advised) by lay advocates at due process hearings is now left to the discretion of the states. See http://edocket.access.gpo.gov/2008/E8-28175.htm

District Court vacates SRO home schooling decision

This morning, Judge Hurd in the Northern District of New York vacated SRO decision 08-005, the second of two SRO cases in which Paul Kelly deemed that there was no authority under state or federal law for school districts to provide special education services to home schooled kids. Although Education Law §3602-c has been amended to now expressly afford home schoolers a limited right to special education services, this Court decision is still of importance to those families who were impacted by Kelly’s decisions.
B.C. v. Colton-Pierrepont, 7:08-cv-00362, N.D.N.Y. 11/21/08.

Note that this decision was vacated by the 2nd Circuit on December 21, 2009. The Court found that the matter was moot.

District Court affirms IHO right to rule on issue not raised by parent

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008): In a decision that was otherwise unfavorable to the parent, the Court reversed the SRO and upheld a hearing officer determination that the district must provide the child with transition services. The parent had not raised the issue to the IHO, a fact noted and relied upon by the SRO in his reversal of the IHO. The Court found that the parent had challenged the sufficiency of the IEP and that this was enough for the IHO to order the district to implement a service that was required by law.

The task of the CSE is inherently speculative or predictive

School districts oftentimes argue that a parent position is speculative. I have argued that CSE recommendations are inherently speculative. In a case decided 11/18/08, the NDNY noted that

The requirement that defendant's CSE annually develop an IEP that is reasonably calculated to benefit plaintiff's educational development necessarily implies the CSE must make rational predictions about what will be best for plaintiff in the future. A school district's CSE will never have the benefit of knowing for certain how a student would perform if allowed to continue his education pursuant to an un-modified IEP. Although the IDEA permits the consideration of evidence outside the administrative record, see 20 U.S.C. § 1415(i)(2)(C), the statute is silent as to whether courts may consider a student's performance subsequent to the development of the challenged IEP.

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008)

Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.