Important development regarding attorney fees in special education cases

In 2007, the 2nd Circuit decided Arbor Hill Concerned Citizens Neighborhood v. County of Albany. In Arbor Hill, the Court abandoned the use of the lodestar method for determination of attorney fee awards in favor of the “presumptively reasonable rate,” which was based upon a variety of factors including “the rate a paying client would be willing to pay.” Although not a special education case, its impact has been felt in the special education arena. The 2nd Circuit in Millea v. Metro-North Railroad Co. essentially abandoned Arbor Hill and reverted back to the lodestar approach. For an excellent discussion of the relevant cases and the policy issues underlying the decisions, see Attorney Fees: The Death of Arbor Hill.

District failure to satisfy burden of proof results in SRO decision in favor of the parent

SRO 12-006: In this case where the Parent was represented by the Law Offices of H. Jeffrey Marcus, the Parent alleged, inter alia, that the student required the services of a 1:1 aide during adapted physical education (APE). The IHO did not rule on the issue. The District offered no evidence on the issue. The Parent claimed on appeal to the SRO that the District failed to satisfy its burden of establishing that the student did not require the services of a 1:1 aide during APE. The SRO agreed holding that the “District did not establish that the student did not require aide services during APE, and in the absence of any evidence in the hearing record that the student did not require them,” he ordered the District to provide aide services during APE.

8th Circuit upholds discipline for off campus speech

D.J.M. v. Hannibal Pub. Sch. Dist., ___F.3d____(8th Cir. Aug. 1, 2011): Student sent off-campus instant messages to a classmate in which “he talked about getting a gun and shooting some other students at school.” School authorities notified the police and subsequently suspended the student for the remainder of the year. The parents commenced an action claiming violations of their son’s right to free speech. The student claimed that “his messages were not serious expressions of intent to harm…that his speech was not student speech because it was online outside of school…[and] that the school's decision to suspend him was a content based restriction violating the First Amendment.” The 8th Circuit held that the suspension did not violate the student’s free speech rights because the student’s speech constituted unprotected “true threats.” The panel ruled also that “it was reasonably foreseeable that D.J.M.'s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment.” The panel thus concluded that the school district was justified in disciplining the student citing to the substantial disruption standard articulated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”)

NYC fails to provide special education services to over 70,000 students

NYC Controller John Liu concluded after reviewing a recent audit that the New York City Department of Education failed to provide services to over one fourth of the students eligible to receive such services in the 2009-2010 school year (see article). If you are a parent of a child who has been denied or who has not received the services to which he or she is entitled, the Law Offices of H. Jeffrey Marcus may be able to help. Please feel free to contact one of our attorneys at specialedlaw@mac.com or 716-634-2753.

Failure to offer particular placement is a denial of FAPE

SRO 11-149: This arose in the context of a reimbursement case. The school district recommended a residential placement and sent out packets, but failed to follow up and failed to secure a placement prior to the start of the school year. The SRO made a point of noting that the school year starts on July 1 and that the district failed to have a placement in effect prior to July 1. Note also that the fact that the district had placed the child on home instruction while looking for a residential placement did not absolve the district of its violation. Note also that the SRO denied reimbursement to the parents finding that they had not established the appropriateness of the unilateral placement.

Timeline to appeal IHO decision runs from date of decision

SRO 11-151: Pracitioners take note. The IHO sent the decision to the attorneys and the parties two days after the date of the decision. The SRO held that the 35 day timeline for filing an appeal commenced on the date of the decision, not the date of receipt of the decision.

NY State Ed. proposes regulatory changes to impartial hearing process

This is a must read for New York State special education attorneys. As practitioners of special ed law are aware, State Ed. has heightened enforcement efforts with respect to timeline requirements for the conduct of impartial hearings. Most recently, the SRO has come down hard on a number of IHOs who have done little more than what just about every IHO does – i.e. schedule hearings on dates that work for the parties and the attorneys and grant extensions when it makes sense to do so (see SRO 11-091 and 11-112). What was ordinary course of procedure may be and certainly was perceived to have been at odds, however, with the statutory and regulatory timeline requirements. Now, State Ed. has proposed significant changes to the regulations governing the conduct of hearings. The proposed changes address:

1. Certification and appointment of IHOs;
2. Consolidation of multiple due process requests for the same student ( subsequent hearing requests assigned to same IHO if original complaint is still pending) ;
3. Prehearing conferences (if the proposed changes are to go into effect, these changes could dramatically restrict the scope of and evidence permitted at hearing);
4. Withdrawals of requests for due process hearings (withdrawal without prejudice permitted as a matter of course only prior to the commencement of the hearing or prehearing conference; resubmission of a similar hearing request within one year will result in the assignment of the same IHO)
5. Extensions to the timelines for an impartial hearing decision (one 30 extension would now be permitted for settlement negotiations);and
6. Timeline to render a decision.

There are some very positive changes proposed including:

1. The proposed regulations would expressly authorize IHOs to issue consent orders, something that is presently routine across New York State, but which has been fiercely resisted in NYC.
2. The regs governing the granting of extensions would now permit an extension to allow for negotiations as noted above. Also, the factors to be considered by the IHO in determining whether to grant the extension include “whether the delay in the hearing will facilitate other matters that will positively contribute to the child’s educational interest or well-being.”

The proposed amendments are presently before the P-12 Education Committee for discussion in January 2012 after which there will be a period of public comment. They are scheduled to be submitted for action at the April Board of Regents meeting with a proposed effective date of May 16, 2012.

WDNY reaffirms 3 year statute of limitations on Attorney fee claims

P.M. v. EVANS-BRANT CEN. SCH. DIST. (W.D.N.Y. 1-9-2012): In what might be the first case post–2007 amendments to the IDEA to closely consider this issue, the Court determined that the statute of limitations for an attorney fee claim in a special education matter is 3 years.

NY Court of Appeals addresses responsibility for costs of educating kids living in child care institution

Board of Education of the Garrison Union Free School District v. St. Basil (decided January 5, 2012): The New York Court of Appeals addressed the question of whether a school district is obligated to pay for the educational costs of the children living in a child care institution located within district boundaries. The Court held that a school district is not obligated to provide a tuition-free education to those children residing within the institution and determined to be nonresidents of the school district.

SRO upholds award of reimbursement

SRO 11-126: Parent placed student at a private school and sought reimbursement. IHO ruled in parent’s favor. SRO affirmed the decision. Of note, the SRO found that the parent’s 10 day notice of intent to seek reimbursement was timely because it was submitted more than 10 days prior to when the student started at the private school.

Improper reduction in related services

The frequency and duration of related services for a particular child is determined by the CSE and is required by law to be indicated on the student’s IEP. The school district must provide special education and related services to a student with a disability in accordance with the student's IEP. A student’s IEP can not be changed outside the CSE process without the express agreement of the parent. Therefore, a school can not reduce the frequency of provision of related services without going through the CSE process unless the school secures the agreement of the parent. It has come to our attention that schools – particularly schools in New York City – have been reducing the frequency of provision of related services without going through the CSE. If this has happened to your child or if you know of someone to whom this has happened, please feel free to contact us.

OSEP comments on CSE composition

The composition of the CSE is oftentimes questionable. Some school districts – e.g. New York City – will oftentimes convene meetings without including those individuals that have the best knowledge of the child. OSEP recently issued a policy letter in which they stated that “if a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting.” Furthermore, “[i]f the child’s disability is a speech impairment and the only service the child receives is speech-language pathology, and speech-language pathology is also considered special education rather than a related service under State standards, then the special education provider on the IEP Team for the child should be the speech-language pathologist …OSEP believes that it is critically important to the provision of FAPE that the public agency require individuals to attend IEP Team meetings who are in the best position to address the educational program for, and the unique needs of, each child with a disability … OSEP expects that each public agency will ensure that each child’s IEP Team is composed of persons knowledgeable about the child and the child’s full range of educational needs, including the amount and type of special education and related services that the child needs in order to receive FAPE.”

Supreme Court denies cert in 8th Circuit IDEA discipline case

Doe v. Todd: The Supreme Court denied cert in a case in which a South Dakota high school student with learning disabilities was placed in an alternative school for 38 days without a formal hearing. Parent chose to seek recourse through the school board rather than through IDEA due process.

Saranac Lake School District sued for failure to appropriately address bullying

Parents have filed a $6 million dollar lawsuit against the Saranac Lake Central School District to address allegations that their young daughter was bullied, harassed and assaulted in school because of her race. See article.

Guidance on physical education for students with disabilities

The federal government recently issued guidance on physical education for students with disabilities. The report can be found here.