SRO finds that parental placement supplemented by related services was inappropriate

SRO 08-119: The parent appealed an IHO denial of reimbursement. SRO Paul Kelly found for the parent on prong 1, but it turned out to be a pyrrhic victory. Kelly ruled that the parent's unilateral placement of the student at the Aaron School was inappropriate to meet the student's needs because the Aaron School did not provide the level of related services identified in the IEP as appropriate to meet his needs. The parent supplemented the program at the Aaron School with private services, but that was not sufficient for the SRO.

SRO reverses another reimbursement award

SRO 08-122: IHO awarded reimbursement for a private school placement. SRO Paul Kelly once again reversed. While finding that the CSE was improperly constituted, Kelly excused the district’s failure to have a regular ed or special ed teacher of the child or teachers who would be teaching the child at the CSE noting that the hearing record failed to demonstrate how this procedural deficiency resulted in the denial of a FAPE to the student. Kelly also excused the failure to perform a classroom observation and the failure to conduct an FBA, reasoning that the child had not yet attended the proposed placement and that therefore, it was unknown whether the child would exhibit interfering behaviors. Kelly then approved of the district’s development of the goals prior to the CSE meeting, followed by a cursory, less than complete review at the CSE, implying agreement by the parent based upon her presence and the absence of stated disagreement.

SRO upholds reimbursement claim rejecting district argument regarding enrollment contract

SRO 08-123: In a rare parent victory at SRO, SRO Paul Kelly upheld a reimbursement award for a private school placement rejecting the district argument that the parent entered into the enrollment contract with the private school prior to the annual review, and that the parent never seriously intended to send the student to the district's recommended class. Kelly reasoned that the evidence showed that it was unlikely that the parent would be held responsible for any remaining tuition if she decided to withdraw the student from the private school and place the student in a district school.

SRO says that amendments to IEP can be oral

SRO 08-129: This is a case that on the surface is addressing reimbursement for the expenses associated with a cheerleading program. The district had agreed to assume responsibility for the costs of the program, but the specifics were not incorporated into the IEP. The SRO, in this case Robert Bentley, held for the parent reasoning that

In making changes to a student's IEP after the annual IEP
meeting for a school year, the parent and the district may agree not to convene a CSE meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the student's current IEP (20 U.S.C. § 1414 [d][3][D]). Similarly, changes to the student's IEP may be made by either the entire CSE or as provided above by amending the IEP (20 U.S.C. § 1414 [d][3][F]). The Official Analysis of Comments to the revised IDEA regulations indicates that an agreement to change a student's IEP need not be in writing in order to be binding:

[T]he Act does not require the agreement between the parent and
the public agency to be in writing . . . However, it would be
prudent for the public agency to document the terms of the
agreement in writing, in the event that questions arise at a later
time.

Agreement, 71 Fed. Reg. 46685 (Aug. 14, 2006).

Pendency does not commence until a hearing request is submitted

08-130: Parent prevailed on a challenge to the 2006-2007 IEP and the district did not appeal the decision which was issued in September of 2007. In August of 2007, the parent submitted a notice of intent to seek reimbursement based upon disagreements with the 07-08 IEP, but the parent did not submit a hearing request until February of 2008. The IHO awarded reimbursement based upon a pendency theory. SRO Joseph Frey held that that was error. Pendency did not start until the submission of the hearing request.

This case is also notable for the tactics at hearing by the parent attorney, the IHO’s harsh rulings with respect to those tactics and the SRO’s rigid application of procedural rules to limit the parent’s challenges of the IHO rulings. The case contains an unusually good prong 1 analysis followed by a typically harsh prong 2 analysis that resulted in the usual SRO denial of reimbursement. It is unclear why Paul Kelly was not the SRO of record.

District can not recoup pendency payments

SRO 09-008, 09-010 and 08-134: Here, the SRO addresses an issue which is arising with increasing frequency, particularly in New York City cases. The SRO held that the district can not recoup payments made pursuant to pendency if it is ultimately determined that the district offered a FAPE to the student.

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.