WIll the State Review Office be eliminated?

The effort to eliminate the New York State Review Office continues. Here’s a link to the bill introduced in the Assembly on January 5, 2011. There was a legislative effort to eliminate the SRO last year. This bill is evidence of at least some sentiment in favor of the elimination of the office. The climate is certainly ripe. Putting aside any considerations of the absence in fairness at the SRO, the SRO is an unnecessary expenditure. It is not mandated by federal law and thus, it should be an easy target and a sensible one for cost cutting in these tough economic times.

Bloomberg goes after publicly funded private placements

Mayor Bloomberg addressed the NYS legislature yesterday and called upon the legislature to make it harder for public school students to attend private schools at taxpayer expense. Specifically, he noted that students should be required to attend public schools prior to their parents’ having a right to make a reimbursement claim. Hmm, didn’t the Supreme Court just have something to say about this?

I expect that the shit may hit the fan in the next month or two. There’s a maelstrom brewing–Governor Cuomo’s budget cuts, the State Ed proposals that continue to chip away at the rights of students with disabilities and their parents, Mayor Bloomberg’s comments, …

District Court awards attorney fees to prevailing school district; 9th Circuit reverses

R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT, __ F. 3d. __, #09-15651 (9th Cir. 2-4-2011): The IDEA authorizes a court to award attorney fees to a prevailing school district “against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation” and “against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” (20 USC §1415(i)(3)(B)).

In this case, the District Court saddled the parents and their lawyer with a $140,000 fee award to the district. The 9th Circuit Court of Appeals reversed and made clear that a District Court must be very careful about awarding attorney fees against a parent or the parent’s attorney for “lawyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument.” Specifically, the 9th Circuit held that the parents’ claim was not “without foundation” as they had sought compensatory education, they had made plausible arguments as to why they should have prevailed, and “the fact that the arguments were not successful does not make them frivolous.” The Court also held that “the district court erred in holding that anger is an improper purpose that could justify an award of attorney's fees” noting that “anger is a legitimate reaction by parties who believe that their rights have been violated or ignored. One of the roles of the adversarial system is to peaceably resolve disputes that give rise to personal animosity by channeling that indignation into a lawful resolution in lieu of feuding or personal violence.”

NYS State Ed Dept. recommends important changes to special education laws and regulations

State Ed. continues to push the Board of Regents to make changes to the special education regulations. In a memo dated February 1, 2011, State Ed. recommends, inter alia, the following:
        * “Simplify and clarify some of the requirements for service provision and billing for students with disabilities who are residents of the State attending nonpublic schools located in the State and are dually enrolled in public schools for purposes of special education and receive services pursuant to an individualized education service program (IESP) developed by the CSE of the school district of location in the same manner and with the same contents as an IEP.” (I note that in the effort to “simplify and clarify”, it is entirely unclear what State Ed. proposes here).
        * “Reduce the two year statute of limitations on commencement of an impartial hearing to the federal standard of one year.” (This one is crystal clear, but buried in the long list of recommendations and not highlighted in the introductory summary paragraphs).
        * “Eliminate requirements that go beyond federal law of having the school psychologist and an additional parent member as members of the CSE and the requirement for a physician to be a member of the CSE if requested by the school or parent 3 days before the meeting.”
        * Eliminate sub-CSEs
        * “Eliminate the requirement that an individual evaluation include specific assessments to be conducted as part of the initial evaluation: physical examination, individual psychological evaluation, social history, observation, other appropriate evaluations and functional behavioral assessment (FBA) when behavior impedes learning.”
        * “Eliminate the requirements that BOEs have plans and policies for appropriate declassification of students with disabilities – regular consideration for declassifying students when appropriate and the provision of educational and support services upon declassification.” (Again, State Ed. speaks of the need to “simplify and clarify” and yet, it is unclear what State Ed. is recommending).
        * “Eliminate the requirement that the CSE/CPSE must provide a copy of the State's handbook for parents of students with disabilities or a locally approved handbook when a student is referred for special education.”
        * “Eliminate the requirement that membership of the CPSE includes an additional parent member and a municipality representative, except that the parent can decline the participation of the additional parent member and the attendance of the municipality representative is not required for a quorum.”
        * “Eliminate the requirement that the parent selects the preschool evaluator from list of approved evaluators.” (Is state ed. proposing that the parent no longer selects the evaluator or just that the evaluator would no longer have to be selected from the list?)
        * “ Repeal procedures for the appointment of students to State‐ supported schools.”
        * “Phase out Academic Intervention Services while phasing in Response to Intervention programs”
       
and the biggie “Eliminate the requirement that school districts observe Conservation Day”.

OSEP says that RTI can not be used to delay or deny evaluation under the IDEA

In a recently issued policy letter, the federal Office of Special Education Programs (OSEP) advised that a response-to-intervention (RTI) process cannot delay the initial evaluation for special education services of a child suspected of having a disability. The federal special education regulations allow a parent to request an evaluation at any time to determine whether her child is a child with a disability. Apparently, schools have been delaying or denying the requests to evaluate pointing to the use of RTI procedures as justification. OSEP concludes that if a parent requests an evaluation and the district agrees that the child may be eligible for special education, the district must evaluate the child. If the district denies the request for the evaluation, the district must provide notice to the parent explaining why they refuse to evaluate and the information that was used as a basis for the decision. The parent can then challenge the refusal to evaluate through the impartial hearing process.

SDNY awards retroactive direct tuition relief

MR. and MRS. A, o/b/o D.A. v. NYC: By decision dated February 1st, 2011, SRO 09-001 was reversed by the SDNY federal court. The Court held that where parents lack the financial resources to “front” the costs of private school tuition and "where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." The original blog post follows.

SRO 09-001: This case is probably the most controversial SRO decision in years. In brief, the parent prevailed at hearing on her private school reimbursement claim. On appeal, SRO Paul Kelly found that the district failed to provide a FAPE and that the parental placement was appropriate. With respect to equities, although he did not expressly find for the parents, he stated that “I agree with the impartial hearing officer's findings that the parents cooperated with the district, participated at the CSE meeting, visited proposed placements, and notified the district in writing that they were re-enrolling the student at the Rebecca School when no placement was offered by the district.” In the hearing request, the parents apparently sought “funding” for the private placement rather than reimbursement. The IHO awarded the requested funding of the placement. The evidence cited by Kelly establishes that the parents had entered into a contract that obligated them to pay the entire freight and that they had in fact made payments. Kelly reversed the IHO award stating that “[u]nder the circumstances of this case, where the parents are not requesting reimbursement for out-of-pocket costs or direct payment for compensatory education services, I find that the parents are not entitled to funding of the student's tuition.” Kelly cites to two SRO cases in which Connors prospective funding was at issue; here, however, he does not cite to Connors. He does note, however, that the 2nd Circuit has, in fact, found that school districts may be required to directly fund pendency placements and that “courts have awarded "prospective payment" to afford access to compensatory education.” One would think that in light of the fact that the 2nd Circuit has touched on the issue of prospective payment and that a district court (Connors) has strongly suggested the availability of such relief, the SRO ought to have examined the issue more closely and provided a rationale for approving or disapproving of the right to relief. There is a dearth of analysis on the issue, however; Kelly merely laid out his version of the facts and just put the kabosh on the parents’ claim.

see also, NSBA blog article.

8th Circuit finds that student with adhd, bipolar disorder and conduct disorder is eligible under IDEA

Hansen v. Republic R-III Sch. Dist. (8th Cir., Jan. 21, 2011): This is one of the latest in the rather familiar category of cases addressing whether a child who engages in unacceptable conduct should be classified and provided with special education services. Here, the hearing officer said no, the district court said yes and the 8th Circuit Court of Appeals agreed with the District Court. For more details, see this article on the NSBA blog.

7th Circuit clarifies that physician can not prescribe special education

Marshall Joint School District No. 2 v. C.D.: It should go without saying that the CSE, not a child’s physician, is responsible for the development of a child’s special education program. The role of the physician has, however, been a source of endless confusion. The 7th Circuit noted that

a physician’s diagnosis and input on a child’s medical condition is
important and bears on the team’s informed decision on a student’s needs. See 20 U.S.C. § 1414(c)(1)(A)(iii). But a physician cannot simply prescribe special education.

ALJ misapplied governing standard in determining whether student suffering from Ehlers-Danlos syndrome was eligible for special education services.

In Marshall Joint School District No. 2 v. C.D., the 7th Circuit Court of Appeals concluded that the Administrative Law Judge (“ALJ”) and the federal district court applied the incorrect standard in determining whether a student suffering from Ehlers-Danlos syndrome (“EDS”) was entitled to special education services under the IDEA. The 7th Circuit held that the student suffering from EDS was not entitled to special education services because his medical condition did not adversely affect his educational performance.

The ALJ concluded that the EDS adversely affects the student’s educational performance because it causes him to experience pain and fatigue and that when he does “experience[] pain and/or fatigue at school, it can affect his educational performance.” Marshall Joint Sch. Dist. No. 2 v. C.D., at * 10 (7th Cir. Aug. 2, 2010). This is a misapplication of the governing standard because “it is not whether something, when considered in the abstract, can adversely affect a student’s educational performance, but whether in reality it does” Id., citing to 34 C.F.R. § 300.8(C)(9)(ii) and A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 310 (E.D.N.Y. 2010). For the student to qualify in this case, his health condition must adversely affect his educational performance and as a result he must need special education. 20 U.S.C. § 1401(3)(A)(ii).

The Court reasoned that while there is evidence that EDS can affect the student’s educational performance, there is no substantial evidence to support the ALJ’s finding that it has an adverse affect. Because the student’s EDS did not adversely affect his educational performance, the panel concluded that both the ALJ and the federal district court had misapplied the standard in determining whether the student’s EDS rendered him eligible for services and reversed the decision.

New SRO finds for parent on interesting pendency claim

SRO 10-112: The child transitioned from preschool to school age. As a preschooler, the child received services from the public school in a private non-state approved private school. The child continued to attend the same private school when she became school age. The parent challenged the last CPSE recommended IEP and the first CSE recommended IEP in an impartial hearing request submitted after the end of the school year during which these IEPs were recommended. The SRO held that “the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.” Thus, the SRO ordered the district to provide SEIT and related services per pendency, rejecting the district’s argument that these services were recommended in conjunction with a 9:1:3 placement to which the parent had objected.

New SRO finds for parent on reimbursement claim but reduces the amount for inadequate notice

SRO 10-101: This case may foretell a break from the harsh recent past. IHO awarded full reimbursement to the parent for a private school placement. The new SRO found that the parent had not provided adequate information regarding her concerns about the district recommended program in the 10 day notice of intent to make a reimbursement claim. Rather than knock the parents out of the box on the reimbursement claim as Paul Kelly almost certainly would have done, the SRO reduced the award by 10%, thus granting the parent 90% reimbursement.

SRO finds for parent on summer school reimbursement claim

SRO 10-095: This appears to be the first reversal in favor of a parent by the new SRO, Justyn Bates. The parents challenged the appropriateness of the district recommended summer program and sought reimbursement for 2 months of a Lindamood Bell program. The IHO found for the parent. In a well reasoned decision, the SRO found that the CSE had failed to discuss or consider privately obtained psychoeducational and speech language evaluations, that the IEP failed to contain adequate information about a good number of the student’s identified needs, that the IEP failed to identify adequate goals to address these needs and that “thus, without an IEP that accurately identified the student's special education needs, the CSE failed to recommend an appropriate placement.” Also of note, the SRO found that the 10 day notice of intent to seek reimbursement requirement was satisfied by the submission more than 10 days prior to the start of the summer program of the hearing request in which reimbursement was requested.

New SRO?

It appears that there may be a new New York State Review Officer. The latest batch of decisions, posted online today, are all issued over the signature of Justyn Bates.

Amendments to New York State Special Education Regulations

The following are the most significant of the amendments to the New York State special education regulations, effective December 8, 2010. For full text of the amendments, see here.

1. Part 200.13 previously required that “Instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.” It is amended to now require that “Instructional services shall be provided to meet the individual language needs of a student with autism.”
2. Part 200.6 has eliminated the minimum level of speech services for students with disabilities determined to need speech and language services. Previously, there was a 2x30 per week minimum requirement.
3. Part 200.6 has been amended to allow for more than 12 students with disabilities in an integrated co-taught class.

Supreme Court to Consider 'Miranda' Rights of Juveniles at School

See School Law Blog for this interesting article. Note that the student at issue was a 13 year old special education student when he was questioned at school about a string of burglaries.