New York State Ed continues to hammer away at parent and student rights

NYSED is pushing the Board of Regents to support legislation and regulatory changes to, among other things, shorten the statute of limitations from the present 2 years to 180 days for reimbursement claims and 1 year for all other claims. See NYSUT memo at http://www.nysut.org/bulletins_15009.htm for a complete listing of the issues as well as NYSUT’s position on the issues.

Court affirms order allowing classroom observation as part of independent evaluation

SCHOOL BOARD OF MANATEE COUNTY, FLORIDA v. L.H. (M.D.Fla. 9-30-2009):

Parents contended that implementation of an unwritten policy prevented them from obtaining an independent psychological evaluation; that without the completed evaluation, the parents did not have the information they needed to effectively participate in the development of an IEP for their child; and that the parents’ right to obtain an independent educational evaluation (IEE) under the IDEA included the right to have their private psychologist conduct in-school observations of their child. The Court agreed with the parents citing to an OSEP memo, Letter to Mamas, 42 IDELR 10. The Court thus affimed the ALJ’s order allowing the psychologist retained by the parents to conduct an in-school observation of at least two hours.

Court denies motion to dismiss complaint seeking audio-visual surveillance

C.S. v. STATE (E.D.Mo. 9-8-2009):

Child suffers from multiple severe disabilities and is placed by the school district in a state school for the severely handicapped. Parents alleged that the child was neglected and abused and that the school failed to implement the child’s IEP. Parents sought compensatory services and audio/visual surveillance. The school district moved to dismiss the parents’ complaint. The Court examined the request for surveillance and held that it could be necessary for a child to receive an appropriate education. Therefore, the Court refused to dismiss the complaint.

Circuit Court rules in favor of parents on private school claim despite good grades

D.S. v. BAYONNE BOARD OF EDUCATION, 08-4730 (3rd Cir. 4-22-2010): Parents sought placement for their son at a private school for learning disabled kids. CSE recommended public school placement. Child achieved good grades at the public school. Parents nevertheless challenged the appropriateness of the program. Parents prevailed at the hearing. The hearing was a state level hearing in New Jersey, a single tier state. The District implemented the decision placing the child at the private school, but appealed the decision to the District Court. The District Court reversed in favor of the school district. The parents appealed and the 3rd Circuit reversed back in favor of the parents relying primarily on deference to the hearing officer’s findings.
        This case is of particular importance because so often schools will rely on good grades to justify the appropriateness of placement/program recommendations. Yet, the validity of grades achieved in a self contained setting is often suspect. Here, the ALJ weighed the results of standardized tests and the testimony of experts against the surface appeal of the good grades buttressed by the testimony of school district personnel and concluded that the child was not receiving a FAPE despite the good grades. The 3rd Circuit noted that

we think that it is clear that a court should not place conclusive significance on special education classroom scores, a conclusion that we believe is reinforced by the circumstance that, as here, there may be a disconnect between a school's assessment of a student in a special education setting and his achievements in that setting and the student's achievements in standardized testing.[fn8] When there is such a disconnect we think that there should be an especially close examination of the appropriateness of the student's education.

Virginia State Court holds that insurance policy provided coverage to school district in special education tuition reimbursement case

School Board of the City of Newport News v. Commonwealth of Virginia: Parent filed a hearing request seeking reimbursement for a private placement. District sought coverage under a policy administered by the Commonwealth of Virginia. Coverage was denied. Parent was awared reimbursement at hearing. The District filed a State level appeal in response to which, the award to the parent was reduced. The parent then appealed to federal court. The federal district court reinstated the hearing officer award and that determination was affirmed by the 4th Circuit Court of Appeals.
        The school district then filed an action in state court challenging the denial of coverage. The Virginia supreme court held that an action filed in state or federal court pursuant to IDEA, following exhaustion of state administrative procedures, was an independent civil action, not an administrative action, and that such an action constituted a valid claim under the school board's insurance policy, thus triggering coverage. The court held that the claim could not be excluded on the grounds that it was an administrative action.

NYS Education Department seeks to reduce Statute of Limitations

State Ed. is once again attempting to get the NYS Board of Regents on board in its effort to get the New York State legislature to reduce the statute of limitations for filing an impartial hearing request from two years down to one year. State Ed is seeking other changes as follows:

• Amend regulations relating to integrated co-teaching to authorize a variance to the maximum number of students with disabilities (12) in an integrated co-teaching class upon notification to the Commissioner that includes documented educational justification.  

• Amend §200.13 to repeal the minimum daily frequency and duration for instructional services to address a student with autism's individual needs, while retaining the general requirement that the IEP of the student include instructional services to meet the individual student's language needs.  

• Repeal the minimum frequency/duration requirements for speech and language related services  

• Repeal the requirement in law that every teacher of the student be provided a copy of the student's individualized education program (IEP), while retaining the requirement that each teacher have access to the IEP and be informed of his/her responsibilities to implement the IEP.  

see http://www.regents.nysed.gov/meetings/2010Meetings/April2010/0410vesidd2.htm for memo from Rebecca Cort (NYSED) to the Board of Regents.

"Furlough friday" did not result in change of placement

N. D. v. STATE, 09-17543 (9th Cir. 4-5-2010): In response to a fiscal crisis, Hawaii decided to shut down its public school system on seventeen Fridays. Plaintiffs complained that this was a change of placement. They filed a hearing request and invoked stay put. Hawaii ignored the request for stay put and the parents sued. The Court held that the furlough was not violative of the IDEA stating that:

When Congress enacted the IDEA, Congress did not intend for the
IDEA to apply to system wide administrative decisions. Hawaii's
furloughs affect all public schools and all students, disabled and
non-disabled alike. An across the board reduction of school days
such as the one here does not conflict with Congress's intent of
protecting disabled children from being singled out.

District Court overrules SRO on determination of Statute of Limitations

C.B. v. PITTSFORD CENTRAL SCHOOL DISTRICT (W.D.N.Y. 4-15-2010): Parents sought reimbursement for two years at a private school. The IHO denied the claim. The SRO affirmed the denial as did the District Court. The parents also sought additional services for the failure to provide a FAPE in the year prior to the unilateral placement. This claim had been dismissed by the IHO and SRO as being beyond the applicable statute of limitations. Plaintiff parent sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP. SRO Paul Kelly held that that triggered the accrual of the claim. The Court disagreed stating that “[t]he fact that Plaintiff sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP does not support the conclusion that she knew about the injury of which she now complains.” Plaintiff alleged that the 2005-2006 IEP was deficient, because it did not provide "support for [EB's] deficits in executive functioning." Plaintiff maintained that she first became aware of such deficiency in March 2006. The Court found that the 2005-2006 claim for additional services accrued in March 2006 and that thus, the parents claim was timely filed.

SRO reverses IHO and awards reimbursement

SRO 10-007: This case is worth reading. The child presents as multiply disabled with significant behavioral difficulties. After much ado, the parents placed the child into a private school and sought reimbursement. The IHO wrote a cursory one and a half page decision denying reimbursement. Even Paul Kelly, who finds merit in virtually everything pro-district, would not save this one. After castigating the IHO for failing to follow requirements for proper decision writing, SRO Kelly then found for the parent on a number of different grounds including 1) the district failed to sufficiently evaluate the student's extensive behavioral needs before making program and placement recommendations in the June 2009 IEP, therefore the recommendation was based upon insufficient evaluative data, 2) the specific BOCES placement did not have the recommended 12:1+1 program, 3) the district's failed to meet its burden to show that a 6:1+1 program was substantively appropriate for the student and was in the LRE, and 4) the district's recommendation for a 6:1+1 program was made with insufficient parent participation. The SRO then went on to find that the private placement (West Hills) was appropriate although the child had only been there for a few weeks at the conclusion of the hearing.

Significantly, the SRO denied reimbursement for related services. West Hills is operated under the auspices of the Gersh Academy. The related service providers are Gersh employees who are "available everyday" but are only on-site at West Hills two to three days per week providing services to their assigned students unless they are providing additional student consultations, training or participating in team meetings. SRO Kelly found that it was unclear what needs were being addressed by the related services providers and that thus “the parents have not met their burden to show that the therapy sessions and counseling sessions were appropriate to meet the student's unique needs in these areas.”

Court rejects school district effort to recover attorney fees from parent

ALIEF INDEPENDENT SCHOOL DISTRICT v. C. C. (S.D.Tex. 4-7-2010): District sought to reevaluate child. Parent refused consent. District received permission from state agency to evaluate and did so. Parent filed hearing request alleging various violations and district counterclaimed alleging, inter alia, that its recommendations were proper and that the parent had filed the hearing request for “an improper purpose”. The parent subsequently sought dismissal of his own claim and the district’s claim. The district refused to withdraw its claims and the hearing went forward on the district’s claims which were essentially to prove the appropriateness of their recommendations. The district prevailed at hearing except on the issue of whether the parent’s complaint was filed for an improper purpose. The district appealed the adverse determination and sought fees in federal court. The court rejected the district’s claim for fees finding that its counterclaim did not arise under §1415 because it did not allege any violation of the IDEA.

New York Court of Appeals addresses assumption of risk defense in school context

Trupia v. Lake George: Generally the content of this blog is limited to special education issues. This case, while not a special education case, could nonetheless be of interest to folks reading the blog. The case addresses the doctrine of assumption of risk in a school context. The majority opinion is a bit obtuse, thus I quote from the concurring opinion to summarize the gist of the case:

Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy "assumed the risk" that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need.

NY Court of Appeals upholds right to services on site at private school

Bay Shore v. Thomas K.: The issue of the right to on site services at a private school has been hotly litigated since the early 1990s (see, e.g. Russman). This is the most recent case of significance. The situation giving rise to this legal action arose in 2004. The child was attending a private school when he was referred to the district CSE. The CSE recommended that the child be classified as OHI and that he receive resource room and a 1:1 aide, but only if he were to attend the public school. The parents requested a hearing, asserting that he should be able to receive the services of the aide in the private school. The IHO and SRO found for the parent. The school district appealed to federal court. The federal district court affirmed prompting an appeal by the school district to the 2nd Circuit. The 2nd Circuit vacated and dismissed the district court decision for lack of subject matter jurisdiction finding that the issue was one of purely state law. The school district then commenced a state court action to vacate the SRO decision. The courts continue to hold for the parents; first the state supreme court, then the appellate division (60 AD3d 851, 852 [2009]) and now the NY Court of Appeals. The Court of Appeals reasoned that while the language of Education Law §3602-c does not compel on site provision of services, it allows for the provision of services on site at a private school. Here, the child could not have benefitted from the recommended 1:1 aide services unless they were delivered on site.

The school district also argued that an aide was not a “service” under the law. The court also rejected this argument.

504 eligibility case regarding ameliorative effects of medication

CENTENNIAL SCHOOL DISTRICT v. L. (E.D.Pa. 3-26-2010): The hearing officer determined that a child with ADHD was eligible for services under §504. The District Court remanded to the hearing officer to consider “the mitigating effect of Matthew's ADHD medication.” This decision appears to be blatantly wrong. In support of its decision, the Court cites to Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 482 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002). The erroneous reasoning in these cases was expressly addressed by Congress in recent amendments to the ADA (ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008)). The Court ignored the amendments, the most pertinent of which states that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication.”

SRO reviews issue not raised in hearing request

SRO 10-001: Generally, issues on appeal are limited to those raised in a hearing request. In this case, the parent raised an issue on appeal that was not raised in the hearing request. The SRO permitted it stating that

although the parents did not raise this issue in the due process complaint notice, a review of the hearing record reveals that it was addressed during the impartial hearing and the district did not raise any objection as a result thereof. Further review of the hearing record reflects that the district also raised this issue during the impartial hearing. Therefore, the district's claim that the impartial hearing officer exceeded the scope of her review is not persuasive.

Cert denied on reimbursement claim

HOUSTON SCH. DIST. v. V.P., 582 F.3d 576 (5th Cir. 2009), cert denied 3/22/10, Docket No. 09-841: The opinion in this case is rather torturous, but the upshot is that the 5th Circuit awarded year 2 of a reimbursement claim on a pendency theory. The 5th Circuit also found that the parent had prevailed on the year 2 claim for purposes of attorney fees. The Supreme Court rejected the District’s petition for review.