SRO orders reinstatement of related services

SRO 10-011: Child had been placed at a state approved private school with outside related services. District recommended a change to a district school. Parent challenged the changes at hearing and prevailed on the placement, but the IHO did not rule on the elimination of the outside related services. SRO reinstated the related services stating

the district bore the evidentiary burden to show that the reduction in related services, as provided for by the April and May 2009 IEPs (i.e. the elimination of the outside related services), was appropriate. A review of the impartial hearing record reveals that the district did not meet its burden in this regard. In fact, the hearing record is devoid of evidence supporting the appropriateness of such a reduction in services. I will therefore direct the district to reinstate the delivery of such services within two weeks of the date of this decision.

Court encourages civility

G.J. v. MUSCOGEE COUNTY SCHOOL DISTRICT (M.D.Ga. 3-25-2010): I thought that this was worthy of note:

The Court finds that several final observations are appropriate. The record in this action and in the administrative proceeding suggests that counsel have a hostility toward one another that is troubling.[fn15] The briefs and other submissions from both sides contain vituperative language regarding the opposing party and counsel. Common courtesy and civility seem absent from most meetings between counsel and the parties. The emotional strain between Plaintiffs and representatives of MCSD is understandable, but counsels' conduct in aggravating that strain is unprofessional and counterproductive. While contested legal issues require zealous advocacy, the ultimate resolution of a child's right to an adequate education also depends upon collaboration, which requires mutual respect. The Court encourages counsel to lay down their swords, at least temporarily, so that the parties can regain their focus on the fundamental goal at the heart of their dispute: developing an appropriate educational plan for a young child who is depending upon them to do so.

Court orders evaluation and finds that parents did not waive right to IDEA services

G.J. v. MUSCOGEE COUNTY SCHOOL DISTRICT (M.D.Ga. 3-25-2010): The ALJ
found that the Parents withheld their consent to the reevaluation of their son and that this refusal absolved the District from any further responsibility to provide services to their son. The Parents had demanded a variety of conditions and restrictions on the evaluation, some of which were agreeable to the District and others which were not. The Court agreed with the ALJ that the attempt to impose conditions amounted to a refusal of consent to evaluate. The Court disagreed with the ALJ, however, that the refusal to consent relieved the District of its responsibility to provide services to the child. Rather, the Court ordered the Parents to consent to the evaluation with conditions as described in the Court order if they wanted their child to continue to receive services.

9th Circuit affirms child find violation

COMPTON UNIFIED SCHOOL DISTRICT v. ADDISON, 07-55751 (9th Cir. 3-22-2010): The child at issue received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor attributed Addison's poor performance to common "transitional year" difficulties. Remarkably, the counselor did not consider it atypical for a ninth-grader to perform at a fourth-grade level. The District Court held in favor of the parent, finding that the district should have classified the child. The District appealed arguing that the IDEA did not provide for the right to due process under these circumstances–i.e. where a district did not propose or refuse to initiate a change regarding a student's identification, assessment, or placement. The Court affirmed noting that the IDEA must be read as a whole to avoid absurd results. Citing to Forest Grove, the Court explained that a "reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress' acknowledgment of the paramount importance of properly identifying each child eligible for services." Finally, the Court noted that “§1415(b)(6)(A) states that a party may present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child."

In class action, NDNY upholds NYS regulations regarding use of aversives, but enjoins enforcement due to FAPE claims

ALLEYNE v. NEW YORK STATE EDUCATION DEPARTMENT, (N.D.N.Y. 2-24-2010): This class action was filed in 2006. It addresses the use of aversive procedures at the Judge Rotenberg Center (JRC). Much attention on a national level has recently focused on the use of aversive procedures to control the behavior of students with disabilities. The thrust of most of the political activity is to curtail, severely limit or eliminate such procedures. This action, brought on behalf of parents of students at JRC, however, challenged New York State’s attempt to restrict the use of such procedures “when they passed emergency regulations that eliminated or restricted aversive treatments that had been authorized for the student plaintiffs.” In 2006, the Court enjoined NYSED from enforcing the emergency regulations.

The Court held that the regulations reflected an informed policy decision that must be accorded deference.

the regulations represent an informed, rational choice between two opposing schools of thought on the use of aversives. Whether it was the best choice, or one that the court would have made, is irrelevant. The court, with its limited educational expertise, is not the final arbiter in the realm of behavioral modification. As the regulations are neither arbitrary nor capricious, and are consistent with the purposes of the IDEA, plaintiffs' facial attack must be rejected.

The Plaintiffs also claimed that the regulations, as applied to the them, denied them a FAPE. On this point, the Court ruled in their favor. Thus, NYS’s motion to dissolve the preliminary injunction was rejected. The Court reasoned that academic progress is not the sole measure of a FAPE. The Court expressly rejected NYS’s argument that “so long as "a student is making academic progress, related services that address a student's social and/or behavioral issues may be denied even if problematic behaviors continue."

When in doubt, exhaust the administrative process

PAYNE v. PENINSULA SCHOOL DISTRICT, 07-35115 (9th Cir. 3-18-2010): This case, which addresses the use of a “safe” room for an autistic child, is an excellent example of why a parent should exhaust the administrative process unless there is no doubt that she has the right to go directly to court.

District can not recoup pendency payments

NEW YORK CITY DEPARTMENT OF EDUCATION v. S.S. (S.D.N.Y. 3-17-2010): This case addressed “the allocation of financial responsibility for private school tuition for a student with a disability during the pendency of due process proceedings under the I.D.E.A.” NYC has been arguing in many cases that the district should have a right to recoup pendency payments when and if it is ultimately determined that a parent is not entitled to reimbursement. In a rather stinging decision, Judge McMahon rejects the NYC position, holding that “a school district's responsibility for funding a child's private school education continues until the moment when the child's pendency changes.” Only then does a parent become liable for the child’s private school tuition. Relying on 2nd Circuit case law (Murphy and Schutz), the Court explained that “Second Circuit case law makes it clear that a final determination in the school district's favor on the issue of FAPE does not alter the school district's financial responsibility for maintaining the student's pendency placement” reasoning that to hold otherwise would render the pendency provisions meaningless.

The Court also held that a “claim against a private school for reimbursement under IDEA by an educational agency is unprecedented and beyond the contemplation of the statute.”

Settlement offer does not deprive the hearing officer or the Court of subject matter jurisdiction

A.O. v. EL PASO, 09-50332 (5th Cir. 3-3-2010): District offered parent all requested relief including reasonable attorney fees. Parent declined the offer wanting to go to hearing instead. The IHO dismissed the hearing request. The district court remanded the case for an impartial hearing and the 5th Circuit affirmed citing to its decision in Richard R. The 5th Circuit highlighted that the IDEA allows for limitation of attorney fees for rejection of a settlement offer when ultimately the parent attains relief no greater that that which was offered in settlement, but that the settlement offer does not deprive the IHO or the court of jurisdiction over the claim.

SRO finds for parent for failure to reschedule CSE meeting

SRO 09-124: District scheduled a CSE meeting. Parent advised that she was unavailable but that her schedule was open after a certain date. District refused to reschedule the meeting. Rather, the district had the mother sign a form which stated in pertinent part that the student's mother

w[ould] not attend the Committee meeting. I understand that the meeting will be held in my absence and that I have the opportunity to address the committee in writing. I also understand that I will be informed of the committee's recommendation by mail and that I will request another meeting to follow-up as discussed.

The parent testified that she felt she had no alternative but to sign. The SRO held that it was error for the district to not reschedule the CSE meeting and that the failure to do “significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a [FAPE] to the student” and thus, deprived the student of a FAPE. See also, J.N. v. District of Columbia, 110 LRP 2529 (D.D.C. 01/11/10) (docket #07-665 (RWR)). 

Pendency: preschool to school age

SRO 09-125: Child was placed by the CPSE in an in school program and also received home based services. Parent agreed to the CSE’s recommended placement for kindergarden, but also sought continuation of the home based portion of the program. District cut off the home based portion. Parent sought the home based piece via pendency. IHO sided with the district; SRO reversed in favor of the parent.

SRO refuses to consider parent claims in absence of cross-appeal

In both SRO 09-136 and 09-143, the parent prevailed at hearing and was awarded reimbursement for a private placement. Each of these decisions was reversed on appeal. In each case, the parent did not cross-appeal because the parent was not aggrieved. In the absence of a cross-appeal, the SRO refused to consider claims raised by the parent in the hearing request, not considered by the IHO, and raised in the parent’s papers on appeal.

Denial of a FAPE is Not Required for a Parent to recover fees

Weissburg v. Lancaster School District, ________ (9th Cir. 2010): In a case decided January 14, 2010, the 9th Circuit held that a parent can recover attorney fees even when there is no denial of FAPE (see also cases cited at footnote 2). Here, the parent prevailed on the claim that her child should be classified autistic. The Court found that prevailing on an eligibility determination altered the legal relationship between the parties. Also, of interest, the Court held that the IDEA authorizes attorney fees for legal services provided by a family member who is not a parent of the child at issue.

SRO rejects reimbursement claim based upon failure to provide related services

SRO 09-119: IHO found for district in reimbursement claim. SRO reversed on prong 1, but held for the district nevertheless, finding that the parent had failed to establish the appropriateness of the private placement. The SRO reasoned that the private placement was not appropriate because it failed to address the child’s need for related services. Notably, the parents had RSAs (related services authorizations) from the district for the provision of related services. The SRO provided no analysis as to why the parent should not be able to supplement the private program through external provision of related services. I have no doubt that the appropriateness of a district program would be assessed by the SRO taking into consideration all components–i.e. services provided by school district personnel and services for which the school has contracted. I see no reason why the appropriateness of a parental placement should be assessed by a more exacting standard.

Failure to include the parents at CSE meeting resulted in denial of FAPE

Drobnicki ex rel. Drobnicki v. Poway Unified School Dist., Slip Copy, 2009 WL 4912163, C.A.9 (Cal.),2009: District scheduled a CSE meeting. Parents did not agree to date. District made no further efforts to reschedule the meeting. Rather, the district conducted the CSE meeting, despite parent request to reschedule. The 9th Circuit held that this was a denial of FAPE. They did so without an analysis of whether the IEP substantively complied with the IDEA finding that the “failure to include the persons most knowledgeable about [the student’s] educational levels and needs-namely, ... [the student’s] parents-at the [October 10] IEP meeting ... resulted in lost education opportunity.”

Note that this case could be of significance where a district fails to include in the decision making process other individuals most knowledgeable about a child.

Compensatory education claim

Petrina W. v. City of Chicago Public School Dist. 299, Slip Copy, 2009 WL 5066651, N.D.Ill.,2009: IHO held that comp ed claim was not ripe until the student turned 22. The district court held otherwise finding that “compensatory education can be appropriately sought and granted prospectively-that is, before the student has reached the age of 21.” The Court further held that the proper question in a comp ed case is “how much compensatory education-if any-is necessary to restore [the student] to the position she would have occupied, had the School District provided her with a FAPE during the periods in which she was deprived of one.“