SRO holds that IHO exceeded authority in awarding interim relief

SRO 10-083: In what is an interesting and potentially very important case, the SRO sustained the district’s appeal of an IHO pendency decision that had ordered the provision of a 1:1 health paraprofessional for a child parentally placed in a private school. The IHO had initially determined that the child was not entitled to the 1:1 health para pursuant to pendency, but awarded same reasoning, inter alia, that the child might be precluded from attending school without the service. The SRO held that the award of interim relief was at odds with the statutory and regulatory pendency provisions. The parents argued that the award was an “equitable order” and not one based upon pendency. The SRO rejected this argument reasoning that the order was, on its face, a pendency order. The SRO cast doubt upon whether an IHO has the authority to award interim relief.

3rd Circuit rules that IDEA statute of limitations applies to claims that accrued prior to enactment

STEVEN I. v. CENTRAL BUCKS SCHOOL DISTRICT, (3rd Cir. 2010):

The 3rd Circuit Court of Appeals held that the 2 year IDEA statute of limitations applies to compensatory education claims that are brought after the statute's effective date but that arise from conduct that occurred before the statute's passage. The Court reasoned that the time period between IDEA 2004's enactment and the effective date of its statute of limitations (7 months) gave the parent ample time to become aware of the change in the law and a reasonable opportunity to file a claim based on conduct dating back much further than permitted under the 2 year statute of limitations.

3rd Circuit affirms equitable, non-monetary compensatory education award

FERREN C. v. School Dist. of Philadelphia, 612 F. 3d 712 (3rd Cir. 2010): The student is 24 years old. She had previously been awarded 3 years of compensatory education, the funding of which was to come from a trust that the District had set up. The District, however, disputed the obligation to provide IEPs and serve as the LEA. The private school at which the student was to receive her comp ed required a student's home school district to sign the IEP and serve as the student's LEA. The parent’s requested a hearing to compel the District to provide IEPs and serve as the LEA. The District prevailed at hearing and at the state review level. The District Court, however, ordered the School District for the duration of the student’s three years of compensatory education to annually reevaluate her, provide her with annual IEPs, and serve as her LEA. In affirming the District Court, the Circuit Court found that the Court’s power to award equitable relief is not limited to reimbursement. Rather, the Court has the power to award non-monetary equitable relief and that the non-monetary relief awarded by the Court here was appropriate.

Interesting case regarding mootness and jurisdiction

District of Columbia v. Doe (D.C. Cir. 2010): This case has been litigated for years. It is ostensibly about the suspension and alternative placement of a 6th grader, but the events occurred in 2004. The issue that survived was whether an IDEA hearing officer has the authority to revise district imposed discipline upon finding that an infraction is not a manifestation of a disability. The case went up and down the court system a few times over the years. Not surprisingly, the issue of mootness was raised. The Circuit Court held that the case was not moot, because it was capable of repetition while evading review. What makes this interesting is that the analysis was done without regard to the particular student in this case. The Court concluded that the District was almost certain to encounter the issue again and that it would evade review as the student seeking review of disciplinary matters is often done with school or otherwise ineligible for IDEA protections by the time the review process is concluded.

The Court recognized that a school has an obligation to provide the disciplined child with a FAPE and then concluded that an IDEA hearing officer has the authority to determine whether the District has in fact provided the disciplined child, even one for whom manifestation is not found, with a FAPE.

Review of recent SRO decisions in the post-Kelly era

There are 6 published State Review Office decisions since the resignation of Paul Kelly–3 by Frank Munoz (SRO 10-066,10-072, and 10-074) and 3 by Robert Bentley (SRO 10-069, 10-070 and 10-073). Munoz affirmed each of the 3 IHO decisions that he reviewed, including one in which a parent had prevailed (SRO 10-066). This particular case was affirmed not on the merits, however, but rather because the matter had become moot. Bentley, on the other hand, held for the district in all 3 cases. Two of these decisions reversed IHO decisions which had awarded private school reimbursement to parents (SRO 10-070, 10-073). It’s a strikingly familiar tune thus far, although it is likely premature to draw any definitive conclusions, particularly with respect to Munoz. Of import, it is my understanding that the Munoz–Bentley era is temporary and that there will be a new State Review Officer sometime in the near future.

SDNY reverses the SRO yet again

G.B. and L.B. on behalf of N.B. v. Tuxedo, 09-CV-859, decided September 30, 2010: District sought to remove autistic child from an integrated class. Parents disagreed, removed the child from the school, placed her in a private school and sought reimbursement. The IHO and the SRO ruled against the parent. The District Court reversed in a detailed opinion finding that an integrated class was the least restrictive environment in which the child could receive an appropriate education. In doing so, the Court applied the test adopted by the 2nd Circuit in P. v. Newington. Of note, the Court stated that “boilerplate, conclusory language cannot satisfy the requirement that the CSE seriously consider …including the child in a regular class with such supplementary aids and services as appropriate” and that the Court need only determine that with appropriate support and services, the child could make progress toward her IEP goals in the regular education setting. The Court found that uncontradicted evidence of progress in an integrated setting, expert testimony supporting the appropriateness of the integrated setting, and even testimony from district witnesses strongly supported the conclusion that an integrated class would be far more beneficial for the child than a self contained class.

The Court addresses the deference issue by noting that the IHO and SRO improperly ignored evidence and failed to apply the test for determination of LRE. Also, the Court treated the LRE issue as one for which deference is not owed because it is not a matter of educational policy, but rather the enforcement of a requirement of the IDEA.

Finally, this case is not over. The Court ruled that the amount of reimbursement should be reduced for the parent’s failure to provide proper, timely notice. The Court ordered additional briefing on the extent of reduction.

State agency not subject to the jurisdiction of the IHO

Chavez v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, 10th Circuit 2010: A high functioning autistic child was home schooled for 18 months because the school district refused to address his school refusal or avoidance problems. The parent took the school to hearing and also attempted to take the state education department to hearing. The IHO ruled that there was no jurisdiction over the state agency. The state level review affirmed that decision. The district court, however, held that the IHO had jurisdiction over the state agency and that the state agency was at fault for not providing direct services to the child. The 10th Circuit reversed reasoning that the state agency was not directly involved in the provision of the child's program. It’s an interesting opinion as the Court struggles with the reality that the child had been denied an education, the role that the state is to play in such situations and the potential ramifications of holding the state responsible. The Court makes clear that there could be situations where a state agency may be held responsible for direct provision of a child's services.

SDNY reverses SRO again

E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT (S.D.N.Y. 9-30-2010): The SDNY continues to be the court most willing to pierce through the barriers imposed by the New York State Review Office. This was a two year tuition reimbursement claim at a residential school. The parent went into court having lost at both the impartial hearing and the SRO. The court affirmed the denial of reimbursement for year 1, but reversed in favor of the parent for year 2. The court found that the district failed to adequately take into consideration the child’s progress at the residential placement and that was manifested in the district’s recommendations by:

1. placement with kids who were not of similar needs and abilities
2. by the failure to include an individualized reading program despite the fact that the child had progressed in reading when provided with 1:1 multisensory, individualized reading instruction
3. the replication of the goals and objectives from the previous year’s IEP despite having evidenced progress at the residential placement (“it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S.progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.”)

Parent attorneys should take note of how the Court approached the use of the kid's progress at the parental placement on prong 1, the approach to progress on prong 2, the analysis of LRE–in particular, the Court's view that "the right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement."–and the Court's analysis of the equities.

Court reverses SRO denial of reimbursement claim and holds that late notice warrants reduction rather than denial

WOOD v. KINGSTON CITY SCHOOL DISTRICT (N.D.N.Y. 9-29-2010): Parent placed child at the Kildonan School and sought tuition reimbursement. Parent prevailed at hearing. SRO reversed on the equities finding that the parent’s notice to the District of their dissatisfaction with the IEP and intent to enroll the child in Kildonan was untimely. The District Court held that the fact that the parent had provided notice of intent to make a reimbursement claim 5, rather than 10, business days prior to the start of the school year at Kildonan, warranted a 10% reduction in the award of reimbursement rather than denial of reimbursement.

Update on New York State Review Office situation

I was just advised by the Office of State Review that a replacement for the recently departed Paul Kelly has not yet been named and that in the interim, Frank Munoz, Robert Bentley and Joseph Frey will act as State Review Officers.

School district can not recoup pendency payments

Atlanta v. SF : In this case decided in September 2010, a Georgia court held “that parents of a child awarded private educational services because the IEP offered by the school was deemed to be inappropriate are not required to reimburse the school district for that expenditure, even if the administrative decision is later reversed.” This decision contains an overview of case law addressing this issue from other courts around the country. It is of particular interest here in New York as the New York City Board of Education has made repeated attempts to recoup pendency payments.

New York State Review Officer resigns

Reliable sources have advised that SRO Paul Kelly, the subject of much controversy over the last 4 or 5 years, has resigned and that today is his last day in office. No word yet on a replacement.

SRO awards reimbursement for private placement

SRO 10-050: The parent rejected the district recommended program, placed the child in a private school and sought reimbursement. The IHO ruled in favor of the school district finding that the parents failed to demonstrate that the June 2009 IEP was not reasonably calculated to provide the student with a FAPE. The SRO found that the IHO had improperly shifted the burden of proof to the parents and that that was grounds for annulling the decision. He went on, however, to analyze the merits and he determined that the district had failed to offer a FAPE, that the parental placement was appropriate and that the equities weighed in favor of the parent.

Court refuses to compel district to pay for pendency placement

M.M. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 7-27-2010): Parent placed child in private school for the 2008-2009 school year and made a reimbursement claim. Parent had already prevailed at hearing on a reimbursement claim for the 2007-2008 school. The district did not appeal that decision. Thus, the parent asserted in her hearing request for 08-09 that pendency was the private school placement. The district did not contest the parent’s right to pendency reimbursement. On day one of the hearing, the DOE again did not object to the parent’s pendency request. During the hearing, the parent sought a pendency order from IHO Esther Mora. Mora noted the request but never issued an order requiring the NYCDOE to provide the parents with pendency reimbursement. Mora ultimately ruled against the parents on the reimbursement claim and further stated that "I have examined the
parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." The parents did not appeal the decision.

The DOE then refused to pay for the pendency placement. The parents sought payment in federal court and remarkably, the Court ruled against the parents, reasoning that the parents had not exhausted the administrative process by not appealing Mora’s failure to rule on pendency to the SRO.

This is a very harsh ruling and arguably, a gross miscarriage of justice. A party can only appeal if aggrieved by a ruling. The IHO did not rule on the pendency issue because it was not contested. The parties were in agreement as to pendency. Yet, the Court held that the parents were foreclosed from recovering due to the failure to appeal the Mora non-ruling. Bottom line, the parents don’t get paid for the pendency placment even though the district agreed with them before and during the hearing that they should get paid.

Prevailing party status for IEE

AP v. NORTHERN BURLINGTON COUNTY REGIONAL BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: District Court held that Parents who obtained an order compelling a district to pay for an Independent Educational Evaluation were entitled to prevailing party status for purposes of an attorney fee claim.