Federal legislation introduced to restore right to recover expert fees

On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX). In Arlington v. Murphy, the Supreme Court decided that parents who prevail in an IDEA case cannot recover expert witness fees. This legislation would undo the Arlington v. Murphy decision. The following is the full text of the bill:


A BILL
To amend the Individuals with Disabilities Education Act to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain other expenses.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the `IDEA Fairness Restoration Act'.
SEC. 2. INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES.

(a) In General- Section 615(i)(3) of the Individuals with Disabilities Education Act (20 U.S.C. 1415(i)(3)) is amended by adding at the end the following:
`(H) INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES- In this paragraph, the term `attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding.'.
(b) Effective Date- The amendment made by subsection (a) shall apply to any action or proceeding brought under section 615 of the Individuals with Disabilities Education Act (20 U.S.C. 1415) that has not been finally adjudicated as of the date of enactment of this Act.

SDNY once again reverses SRO

R.E. v. NYC: Once again the SDNY has reversed an adverse SRO decision (SRO 09-114) in a reimbursement case. R.E. v. NYC was decided yesterday. Initially, the Court noted that none of the public school personnel on the CSE knew the child. The only members of the CSE who were knowledgeable about the child were from the private school that the child had attended for many years.

The Court rejected the SRO's ex post facto rationalization and support of a CSE's recommendations through use of testimony at a hearing (“The SRO's reliance upon the teacher's testimony to remedy the deficits found by the IHO in the IEP was unwarranted....The SRO was not present at the hearing, and as such, should not have substituted his own credibility determinations for those of the IHO, who experienced the testimony of witnesses present at the hearing.

The Court found that the SRO was not due the usual deference because “nothing in the SRO's decision suggests that it is based on "educational policy," particularly given that it relies so heavily on the testimony individuals who lacked personal knowledge of J.E.”

Board of Regents to consider change in statute of limitations

Presently, Federal law applies a two-year statute of limitation, except where the state prescribes an explicit time limitation for requesting a hearing. At its Monday meeting, the NYS Board of Regents will consider a State Ed proposal to shorten the statute of limitation. State Ed seeks to “[a]mend Education law to provide that a due process hearing must be requested within one year of the date the parent or district had knowledge of the issue, with exceptions as required by federal law and with an exception that for parents seeking tuition reimbursement, such request must be made within 180 days of the date the parent placed his/her child in the private school.” State Ed reasons that “[a] statute of limitations of more than one year to request an impartial hearing is programmatically inappropriate since IEPs are developed for one year. IDEA due process procedures should be designed to resolve disputes within one year so that any resulting changes needed to assure that the student receives a free appropriate public education are made in time to benefit the student.” I’m sure that State Ed also reasons that shortening the statute of limitations on reimbursement claims would be a much easier way to nip in the bud the financial cost of private school reimbursement, rather than focusing on the rampant problems in school districts, NYC in particular, which problems have given rise to these reimbursement claims.

See here for a list of the many items that the Board of Regents will be considering changing on Monday. Items include CSE composition, evaluation of preschoolers, 3602-c services and notice timelines. Note also that some of these items would require legislative change. The proposed change to the statute of limitations is one of the items that would require legislative action.

Update (3/7/11): Due to inclement weather, the Board of Regents postponed discussion of the above items until its April meeting.

Counterclaim filed after expiration of statute of limitations is permitted by 5th Circuit

RUBEN v. EL PASO (5th Cir. 2011): Parent appealed the decision of the state administrative agency on the last day of the 90 day period in which an appeal was permitted. District then filed a counterclaim. District Court dismissed the counterclaim reasoning that it was filed after the expiration of the statute of limitations. The 5th Circuit reinstated the claim reasoning that the statute of limitations applies to the filing of an “action” and that a counterclaim is not an “action.”

SDNY awards attorney fees to parent who prevailed via pendency; denial of attorneys fees as denial of FAPE

J.S. and S.S. v. Carmel Central School District: Parents privately placed and filed a hearing request in which they sought reimbursement. Pendency was the private placement. Due to protracted proceedings, the District had to pay for the placement as pendency for a two year period. Parents then made a claim for attorney fees and the District filed a motion to dismiss. Prior case law (O’Shea v. Bd. of Educ., 521 F. Supp. 2d 284 (S.D.N.Y. 2007)) had rejected an attorney fee claim in similar, albeit not the same circumstances. In O’Shea, the litigation of the prior and present claims overlapped; here, the prior action had concluded. The Court found that this was sufficient to distinguish the present case. But, in any event, the Court viewed O’Shea as wrongly decided. Thus, the Court denied the District’s motion to dismiss the Parents’ claim for attorney fees. Of import, the Court noted that the denial of attorneys fees “would effectively deny plaintiffs the free appropriate education guaranteed by the IDEIA. After all, if plaintiffs must pay thousands of dollars in attorneys fees to secure appropriate public education, then that education can hardly be called free.” (Note that this is a SDNY case outsourced to a Maryland judge).

OSEP: Notice of intent to seek reimbursement not required in subsequent years

For the parent who seeks reimbursement for a private placement, the general rule is that she must provide written notice of the intent to seek reimbursement from the public school district 10 days prior to removal of the child from the public school district or must advise the district of the same at the last CSE meeting prior to removal. OSEP, in a recent memo, stated that a parent who provides notice of intent to seek reimbursement in year one, does not have to provide such notice again in subsequent years.

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.