4th Circuit upholds reimbursement for home schooling placement

Sumter v. Heffernan (4th Cir. 2011): Parents pulled their autistic child from the public school system and set up a program for him at home. They then sought reimbursement for the costs of an ABA therapist. In what appeared to be a close decision, one that prompted a dissent in part, the Court ruled in favor of reimbursement. Of particular interest is the 4th Circuit’s rejection of a strict application of the LRE requirement as applied to a parental placement. The 4th Circuit joins the 8th Circuit as Courts recently adopting a looser standard for LRE as a factor in determining the appropriateness of the parental placement.

5th Circuit: Failure to attend meeting subsequent to resolution session does not defeat parents attorney fee claim

ECTOR CTY. INDEPENDENT SCHOOL DIST. v. VB (5th Cir. 2011): Parent requested an impartial hearing. At the resolution session, the school district offered to schedule another CSE meeting to address the parent’s concerns. The district did in fact schedule such a meeting and, on the advice of counsel, the parent refused to attend. The matter went to hearing and the parent prevailed. The school district appealed. The district court held in favor of the parent, rejecting the school district’s argument that the parent had “unreasonably and needlessly protracted the litigation by refusing to attend the [CSE] meeting that would have implemented an alleged agreement made at the meetings.” The district court also awarded attorney fees to the parent. The 5th Circuit affirmed. The Court reasoned that alleged protraction of litigation is irrelevant with respect to the analysis as to whether a party has prevailed. It may, however, be relevant to whether a fee award should be reduced. Here, however, the Court rejected the district’s argument that a fee reduction was warranted. The Court refused to read into the law a requirement that the parent participate in a meeting subsequent to the resolution session.

EDNY addresses whether bullying could result in the denial of FAPE

T.K. v. NYC (EDNY 2011): This case presents the interesting and timely issue of whether bullying can result in a denial of FAPE. Parent placed child privately and sought reimbursement. The IHO and the SRO ruled against the parent. Judge Weinstein of the EDNY examined the issues from a variety of different angles, ultimately denying the District’s motion for summary judgement and adopting a test as follows: “under IDEA the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.” Judge Weinstein determined that “the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.”

Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. Id. Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. Id. The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. Compare, DOE Bullying and Harassment Letter, supra, to Werth v. Bd. of Dirs. of Pub. Schs., 472 F. Supp.2d 1113, 1127 (E.D. Wisc. 2007); K.M. v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 (S.D.N.Y. 2005) (citing Davis, 526 U.S. at 640-53). It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.

To be denied educational benefit a student need not regress, but need only have her educational benefit adversely affected. Academic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by IDEA. In New York, IEP's are required to give children more than an opportunity for just "trivial advancement." Mamaroneck Union Free Sch. Dist., 554 F.3d at 254. The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by IDEA. Where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder.

8th Circuit holds that private placement need not satisfy a least-restrictive environment requirement

CB v. Special School District No. 1 (8th Circuit 2011): IHO awarded reimbursement to parents for the costs of a private placement. The district court reversed the IHO finding that although the public school had not provided the student with a FAPE, the private school was not appropriate because the student body was comprised mostly of students with disabilities. The 8th Circuit reinstated the IHO’s ruling.

We conclude that the mainstreaming preference of the IDEA does not make Groves an inappropriate private placement under the circumstances. The statute calls for educating children with disabilities together with children who are not disabled "[t]o the maximum extent appropriate." Id. (emphasis added). Here, the School District failed to develop an IEP that made available a free appropriate public education. At that point, C.B.'s parents had a "right of unilateral withdrawal," Florence Cnty., 510 U.S. at 13, and a right to reimbursement for private tuition, so long as the placement was "proper under the Act," Burlington, 471 U.S. at 369, and the award "furthers the purposes of the Act." Forest Grove, 129 S. Ct. at 2493 n.9.

The overriding purpose of the Act is to provide an education for disabled children that is both free and appropriate. The Act was designed, as the hearing officer noted, "to open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. But once the School District failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for C.B.'s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.

The parents were not required to allow the District another opportunity to try yet again with a different IEP that featured the CLASS program when the District did not propose that alternative in any of the IEPs that preceded C.B.'s withdrawal. Reimbursement for the costs of enrollment in a private school is authorized if the hearing officer finds that the District "had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii)(emphasis added). A less restrictive environment is the ideal, but C.B.'s move to Groves after years of frustration in the public schools is a far cry from "the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes" that concerned Congress. See Burlington, 471 U.S. at 373. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be "proper" under the Act. See Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998).

Aside from the concern that Groves educates primarily children with disabilities, there is no doubt that it was a proper placement for C.B. As the hearing officer summarized:

Groves offers the Student teaching methods and programs that the School District has not provided. In addition to these methods and programs, the ability to group and re-group students throughout the day to ensure reading skills are reinforced across subjects sets Grove[s] apart. Moreover, the District's own teachers thought that Groves is an appropriate place for the Student. His mother has seen an "explosion" of learning since the Student entered Groves.
We conclude that the placement at Groves was proper under the Act, and that reimbursement for tuition paid by C.B.'s parents to Groves for the 2008-2009 academic year is not precluded by the statute's preference for education in the least restrictive environment.

Can a parent sue a district for negligently failing to classify her child?

see School Law Blog

Damages case for wrongful use of timeout room lives on

Schafer v. HICKSVILLE UNION FREE SCHOOL DISTRICT, Dist. Court, ED New York 2011: Parents alleged that their 14 year old son had been wrongfully confined numerous times and without good cause in a 4 x 5 foot, dark, possibly windowless, locked timeout room. Upon discovery that this was occurring, they pulled their son from the Nassau BOCES program and refused to send him back to the school. The child was placed on home instruction. Parents brought legal claims arising out of their son’s confinement as well as FAPE claims against numerous defendants and based upon a garden variety of theories. The Court granted summary judgement in favor of all defendants except for BOCES. With respect to BOCES, the Court allowed the following claims to go forward:

1. §1983 claim based upon a 4th Amendment unreasonable seizure theory
2. false imprisonment
3. negligence
4. intentional infliction of emotional distress
5. negligent infliction of emotional distress

Court upholds ruling upholding denial of recognition of prosthetic arm as AT device

J. C. THROUGH HER PARENTS v. NEW FAIRFIELD BD. OF ED. (Conn. 3-31-2011): Parents sought recognition of their daughter’s myoelectric prosthetic arm as an assistive technology device necessary to secure a free appropriate public education ("FAPE") within the meaning of the Individuals with Disabilities Education Act (IDEA). The IHO and Court found otherwise, holding instead that it was a medical device and alternatively, that it was not necessary for the child to receive a FAPE.

9th Circuit affirms award of full reimbursement where private school provided only some of services student needed

C.B. v. Garden Grove (9th Cir. 2011): Guardian placed the child privately and sought reimbursement. The ALJ found that the district had not provided the child with a FAPE. The ALJ awarded only partial reimbursement reasoning that the private placement did not provide a program designed to address all of the child’s needs. The District Court rejected the ALJ’s conclusion and the District's argument, that reimbursement is warranted only when a private placement provides the full range of educational services that a disabled student requires. The District Court held that “because [the child] received educational benefits from all services that the Center provided, the district court awarded full reimbursement to Guardian for the cost of obtaining those services, along with transportation.” The 9th Circuit affirmed the District Court rejecting the school district’s argument that “because the Center could not meet some of C.B.'s additional needs (such as instruction in arithmetic), the placement was not "proper" within the meaning of the IDEA.” Interestingly, the 9th Circuit adopted the 2nd Circuit standard from Frank G.,
       

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d. Cir. 2006)

The Court then applied the standard to the facts of the case and found that the fact that the private placement delivered “many, but not all, of the special education services that [the student] needed” was sufficient to satisfy the standard.

Interesting failure to implement case out of D.C.

WILSON v. DISTRICT OF COLUMBIA (D.C. 3-18-2011): District recommended ESY services, but failed to arrange transportation until the program was nearly over. Thus, the child never attended. The parent brought a claim for failure to implement. The IHO found that there was "no evidence as to any educational harm that resulted from the deprivation of these services." The Court held that the IHO had applied the wrong standard; the Court held that a “material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.”... “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail on a failure to implement claim.” The Court then had little difficulty in finding that the fact that the child had apparently matured and made academic progress during the following school year “while fortunate, does not excuse DCPS's failure to provide a service that [the child’s] IEP team felt was "required" for his continued development. DCPS's failure to transport A.W. to the ESY program was neither a "procedural" IDEA violation, nor a "minor discrepancy" between the IEP as written and as implemented. Because DCPS almost entirely failed to provide a service that A.W.'s IEP team determined was necessary for his educational development, it denied him the education that the law requires” (citations omitted).
        That was not the end of the story, however. The Court went on to address the question of whether compensatory services were warranted. The Court concluded that “the record lacks sufficient information for it to make an informed decision as to the proper amount, if any, of compensatory education to which [the child] is entitled.” The Court denied the District’s motion for summary judgment, however, holding that “[o]nce a student has established a denial of the education guaranteed by the IDEA, the Court or the hearing officer must undertake "a fact-specific exercise of discretion" designed to identify those services that will compensate the student for that denial.…Where the record does not allow for that inquiry, remand or additional fact-finding is necessary. The Court thus remanded the case to the IHO.
       

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.