NY State Ed issues memo explaining new law authorizing provision of special ed services to home schooled kids

The State Education Department (SED) has issued a memo notifying parents and school districts of the new law authorizing special ed services for home-educated children.  The memo explains the new law and highlights that parents seeking special ed services must have an approved IHIP and must submit a request in writing to the board of education by August 6, 2008 for the '08-'09 school year, and by June 1 in future years. The memo further addresses location of services--i.e. districts are empowered to determine the location of services and that can include provision in the home. There is no guidance as to how that determination should be made. The location of services issue has been hotly contested for the better part of two decades, but it should be noted that current 3602-c case law addressing this issue dictates that services be provided on site at a private school if that is necessary for the child to receive an appropriate education. There is no reason to believe that home schoolers will be treated by the SRO and courts any differently than private schoolers on this issue.

Parents of home schoolers who disagree with the CSE’s recommendations are entitled to due process and thus, can request an impartial hearing. The memo further states that “special education services must be provided to home-schooled students on an equitable basis as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools within the district.” It remains to be seen how this will be interpreted, but on its face, I’d say that it means that there should be no reduction of services to a home schooler as compared to a child attending the public schools or a child attending a private school and receiving services pursuant to 3602-c.

Court reverses ALJ and finds child with ADHD eligible for special education

M.P. v. Santa Monica,(WL 2783194 for those with Westlaw): This case addresses a common theme--whether a child’s less than able performance results from ADHD or a lack of motivation. There is an excellent analysis of expert testimony, credited by the Court in contravention of the ALJ’s determination. This is a hidden gem of a case and one which I will likely write in more detail about at a later point.

Responsibility for implementation of the IEP

Oftentimes, school personnel are oblivious to the specifics in a child’s IEP. Sometimes, school personnel are not even aware that a child has an IEP. This is an unacceptable practice. New York State regulations require that “the chairperson of the committee on special education designates for each student one, or as appropriate, more than one professional employee of the school district with knowledge of the student’s disability and education program to, prior to the implementation of the IEP, inform each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel, as defined in section 200.1(hh) of this Part, and other provider and support staff person of his or her responsibility to implement the recommendations on a student’s IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP”(8 NYCRR §200.2(b)(11)(iii); see also $200.4(e)(3)).

EXTENDED SCHOOL YEAR PROGRAMS AND SERVICES in New York State

See here for state ed Q and A document on extended school year(i.e. summer) programs.

Failure to include transition plan for child in residential placement renders district program inappropriate

The district knew that this autistic child had difficulty with major transition plans, yet it merely promised to develop a plan if the parents agreed to the district placement. In A.Y. v. Cumberland Valley School District(2008 WL 2704626, M.D.Pa. 2008), the court said that that was not enough. “When a school district knows that a child requires a transition plan to return to that district from a private school placement and that school district does not include a transition plan in the IEP, the IEP is not appropriate.”

New York State Home Schooling Update: IMPORTANT

State Ed. issued this advisory today.

Pursuant to Chapter 217 of the Laws of 2008, which was signed into law
by the Governor on July 8, 2008, students with disabilities who are in
home instruction programs pursuant to section 100.10 of the Regulations
of the Commissioner of Education are eligible to receive special
education services from their public school districts.

School districts should notify all parents of students with disabilities
who are in home instruction programs pursuant to section 100.10 of the
Regulations of the Commissioner of Education that, if the parent is
seeking special education services to be provided to their child by the
public school district, the parent must submit a written request for
such services to the school district where they reside by August 7 of
this year (which is 30 days after this new law takes effect).

Further guidance on Chapter 217 will be issued next week.

NYS restores the provision of special education services to home schooled kids

Until recently, New York State had for many years provided special education services to home schooled children. In January of 2008, State Ed. issued a directive ordering school districts to terminate special education services to home schooled children. State Ed. relied upon the State Review Office decision in Appeal number 07-043, a decision which is presently being appealed by the Law Offices of H. Jeffrey Marcus, P.C., and Joyce Berkowitz, Esq. In June, the Assembly and the Senate agreed upon language to restore services and sent a bill to the governor. On Monday July 7, 2008, Governor Paterson signed the bill and it is effective immediately. The full text of the bill can be found here.

Court supports parent right to independent functional behavioral assessment(FBA)

The district argued that the FBA was not an educational evaluation and therefore, the parent had no right to an independent evaluation(IEE). In Harris v. District of Columbia decided June 23, 2008, the Court found otherwise and additionally held that the district’s failure to perform an FBA for over 2 years was sufficient to confer upon the parent the right to an IEE.

Parental Consent for the Use of Public Benefits or Insurance Pursuant to the IDEA

New York State Ed. just issued a memorandum explaining that Federal and State regulations require school districts to obtain parental consent each time that access to public benefits or insurance is sought. For complete details, see Medicaid Parental Consent. 

Important case addressing exceptions to IDEA 2 year statute of limitations

D.G. v. Somerset Hills School District: The IDEA prescribes a 2 year statute of limitations. In this recently decided D.C. case, the federal court held that the 2 year limit did not apply because the district failed to provide the parent with written notice of procedural safeguards and due process rights. Additionally, the court held that the continuing violation doctrine applied making the parent’s claim timely finding that the district’s “alleged actions and omissions were part of a continuing practice and the last act evidencing the continuing practice occurred in June 2006, a date within the IDEA's two-year statute of limitations period”.

Placement vs. location of services

OSEP addresses this issue in Letter to Trigg(11/30/2007) noting that historically “placement” is the “points along the continuum of placement options available for a child with a disability” and "location" is “the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services.”

Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child's special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided.

Enforcement of hearing officer orders: SRO says go to federal court, federal court says go away

The NYS SRO has repeatedly stated that school district failure to implement a hearing officer’s order can only be enforced via complaint to state ed or in federal court. For example, in SRO 06-130, SRO Paul Kelly stated that:

The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

The federal courts are not so amenable to such complaints, however. A number of courts have held that the IDEA does not grant a district court jurisdiction to enforce a hearing officer's order because a party who prevails at a due process hearing is not aggrieved by the decision. Rather, the party is aggrieved by the later failure to implement the decision and that does not give rise to federal court jurisdiction(see e.g. Brennan v. Reg'l Sch. Dist. No. Bd. of Educ., 531 F.Supp.2d 245, 261 (D.Conn.2008)). For a more complete discussion of the issue, see James S. ex rel. Thelma S. v. School Dist. of Philadelphia--- F.Supp.2d ----, E.D.Pa.,2008.

Supreme Court denies cert in IDEA damages case

Burke v. Brookline Sch. Dist.: Supreme Court denies cert in this 1st circuit case in which the Court held that the parents could not make a claim for monetary damages for alleged denial of FAPE.

Use of additional evidence in federal court

For those of you who subscribe to LRP’s Special Ed Connection, there is an excellent summary of the law on the use of additional evidence in federal court. The article is entitled What factors does a court consider in admitting 'additional evidence' in IDEA disputes, beyond that introduced at administrative hearing(s)?

District responsibility for services when child is involved in multiple service systems

M.K. v. Sergi: This case is of particular interest because the child was in and out of various psychiatrict facilities and at the time of the original hearing(1995!), there was multiple system involvement--educational, mental health and juvenile court. The district court addresses various issues pertaining to the school district’s responsibility for services delivered outside of the school.