Additional Evidence

The pendulum swings back and forth in Court decisions regarding the admissibility of additional evidence in IDEA actions. There appears to be a trend towards admissibility, however. Most recently, the SDNY allowed affidavits from private school personnel in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F.Supp.2d 420, SDNY(2008).

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.

Attorney fees for due process violation

The focus of this blog is generally on currently decided cases and legislative developments. Although not just decided, this case is of great import with respect to district strategies that deny parents due process rights. In Engwiller v. Pine Plains, 110 F. Supp. 2d 236(SDNY 2000), the Parent prevailed on her claim that SED did not assure the provision of the hearing decision within 45 days. The SDNY awarded fees, stating that “Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on [the child’s] IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys' fees expended on SED administrative proceedings and this litigation.” Note that the award of fees was made without regard to the merits of the underlying proceeding; in fact, the attorney fee award was made prior to the issuance of the hearing officer’s decision.

Important case to counter district motions to dismiss hearing requests

Somoza v. NYC,__F.3d__(2nd Cir. 2008):

Parent sought compensatory services for her 23 year old alleging a denial of FAPE for the entire time she had been in the NYC school system. NYC had “voluntarily” agreed to an extra year of private schooling in exchange for a release of all claims. That year was due to expire in June of 2006. The parent argued that the claim should have survived because there was no relief available that was not already being provided(because the child was at the private school at district expense). The District Court agreed reasoning that claim did not accrue until after the year in the private school. The Second Circuit reversed holding that the claim accrued during the 02-03 school and that, therefore, the claim was barred under any of the various possible statutes of limitation.

Most importantly for ongoing purposes, the Second Circuit stated that 

the fact the DOE voluntarily provided the requested educational services beyond the term of plaintiff's statutory entitlement does not “deprive a federal court [or administrative agency] of its power to determine” the nature of the entitlement at issue. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000); see also New York Pub. Int. Res. Group, Inc. v. Johnson, 427 F.3d 172, 185 (2d Cir.2005). Plaintiff's allegations that, in the past, the DOE had denied her the FAPE to which she was entitled presented a live and “concrete dispute affecting cognizable current concerns of the parties” at the time that plaintiff arrived at this understanding. Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.2007) (internal quotation marks omitted).

As previously noted in this blog, in a number of cases, districts have been successful in convincing hearing officers to dismiss hearing requests based upon their representations of willingness to do what the parents are requesting. The cases were dismissed despite that there was no settlement agreement, no consent decree and no order of the IHO compelling the relief.  Not surprisingly, SRO Paul Kelly affirmed each of these decisions(SRO 07-122, 08-008, 06-109). I have appealed SRO 07-122 and 08-008 to federal court, but we are at the very early stages of the litigation. The Somoza case is very strong authority in favor of our position that the parents were wrongfully deprived of due process and that the IHO had the “power to determine the nature of the entitlement at issue”.

New York SRO reverses yet another reimbursement award

SRO 08-051: Hearing officer awarded reimbursement to parents for private residential placement for severely behaviorally disordered child. SRO agreed that the district failed to offer an appropriate placement. Once again, however, as has been the pattern for the last 3 years, the SRO reversed the IHO award of reimbursement by finding that the parent had failed to establish the appropriateness of the parental placement. This is a detailed decision that on the one hand highlights the child’s behavioral progress at the placement, but ultimately weighs against the parent ostensibly for the child’s failure to make academic progress and for the failure to of the program to address the child’s behavioral needs in the way that SRO Kelly thinks they should be addressed. It is a harsh and I’m sure very disheartening decision to the family. Hopefully, the parent will appeal and the federal court will look more favorably upon what appeared to be a very reasonable placement choice by the parents.

No statute of limitations for pre-2004 compensatory education claims

Tereance D. v. School Dist. of Philadelphia: In the 3rd Circuit, prior to the 2004 amendments of the IDEA, there was no statute of limitations on compensatory education claims. In this case, the Court did an extensive analysis of whether the new IDEA 2 year statute of limitations should be applied to a case in which the complained of conduct occurred prior to the 2004 amendments, but the hearing request was filed after. The Court held that the 2 year year statute of limitations would not be applied retroactively.

SRO finds district program inappropriate

SRO 08-052: This is one of the few cases in which SRO Paul Kelly has sided with the parent and affirmed a favorable IHO decision. Kelly found that the IEP did not accurately reflect the student’s actual present levels of performance and needs, that the IEP’s goals and objectives were flawed and inadequate, and that the placement was inadequate without 1:1 assistance. This is a must read, particularly for attorneys or others doing hearings.

Issues raised at hearing but not included in hearing request survive

SRO-08-052: Generally, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint notice is amended prior to the impartial
hearing per permission given by an impartial hearing officer at least five days prior to the hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; see SRO 06-065, 06-139). Here, the parents raised an issue during the course of the hearing, an issue that they had failed to raise in their hearing request. The district, however, did not object and therefore, the SRO treated it as having been properly raised.

District must identify a specific site for child's placement

SRO 08-058: In a case in which SRO Paul Kelly once again negated a reimbursement award, Kelly found for the parent on prong one ruling that the district’s failure to identify a school site in which the IEP could be implemented denied the child a FAPE. Kelly found for the district on prong two, however.

Drug use and disability

The SDNY affirmed an SRO decision denying reimbursement for a private placement in a case in which the parents argued that the child’s drug use and his emotional disturbance were inextricably intertwined.

plaintiffs argue that P.K.'s disability and substance abuse were 'intertwined.' This argument could plausibly be advanced in most, if not all cases in which a student has both a disability and a substance-abuse problem. To accept it would be to hold that school districts must provide (or pay for) substance-abuse treatment for students who happen to be disabled. Nothing in the text of the IDEA suggests that Congress intended this result, which would add a significant financial burden to already heavily burdened public-school systems. Plaintiffs have not cited any case holding that the IDEA requires a school district to pay for private substance-abuse treatment, and we are not aware of any. Courts that have addressed the issue have reached the opposite conclusion, as do we.

P.K. v. Bedford Cent. School Dist., --- F. Supp. 2d ----(S.D.N.Y. Aug. 1, 2008).

Note, however, that there is an inconsistency in the treatment of similar issues by the federal courts. For example, a Texas federal court ordered reimbursement for a variety of services stating that the child's "doctors recognized that extensive counseling was critical to treat the psychological and behavioral problems underlying her academic difficulties." Richardson Independent School Dist. v. Michael Z., — F. Supp. 2d — (N.D. Tex. Apr. 22, 2008).
Although, this is not a drug abuse case, the analysis is analogous. Unlike the SDNY, the Texas court found that the child's

academic difficulties were inextricably intertwined with her emotional and behavioral problems. The Court does not provide an exhaustive recital of the arguments and evidence previously presented, but rather distills the key facts. [The child] suffered from numerous debilitating conditions, including bipolar disorder, separation anxiety disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and pervasive developmental disorder. Defiant and aggressive, [The child] lashed out at teachers, skipped class, and was generally unreceptive to instruction. Repeated outbursts also limited her ability to focus, to absorb lessons, and to complete assignments in a timely manner. As a result, [The child] struggled academically in the approximately twelve schools she attended.

Id.

Pendency when a child is transitioning from preschool to Kindergarden

It is not unusual for a school district to radically reduce a child’s services or even declassify the child upon entering kindergarden. For a child who has been receiving services as a preschooler, the parent can request a hearing and assert the right to pendency. The SRO in appeal number 01-023 stated that

[t]he pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir. 1996]).

Note that this does not mean that the child must remain in the preschool program, but rather that the district is obligated to continue the program prescribed in the IEP in a school age environment. If the child is school age eligible, but not of compulsory school age, the child may be able to continue in the preschool environment if the program is certified for school age kids.

Home Schooling alert: URGENT

Pursuant to the new law, any parent who wants her school district to provide special education services to her home schooled child must submit a written request by Wednesday August 6th. Please feel free to contact my office if you have any questions.

Right to attorney fees on settled cases

The Supreme Court in the Buckhannon case significantly limited the right to attorney fees in special education cases. There is an extensive and useful discussion of Buckhannon in the recently decided 1st Circuit case, Aronov v. Chertoff. This is not a special education case, but the reach of Buckhannon is extensive. Courts are applying its restrictive view to all fee recovery statutes. The court in the Aronov case discusses in detail the difference between and requirements for a consent decree that would give rise to fees and a private settlement that would not.

Issues remained live for hearing when there is no agreement at the resolution session

EL PASO INDEP. SCHOOL DIST. V. RICHARD R.,591 F.3d 417 (5th Cir. 2009): This is a potentially very important case. Some school district attorneys have aggressively resisted resolving cases in a fashion that could give rise to the right to attorney fees for the parent. The effect of this strategy is to infringe upon the parents’ right to counsel, at least for those parents that can not afford an attorney. In New York State, the SRO has, on a number of occasions, upheld district motions to dismiss in cases where there were no settlement agreements, but where the district had purportedly expressed a willingness to address the parents’ concerns. These NY decisions have perpetuated a doctrine depriving the parents and kids of due process. Two of these cases are presently on appeal in the Western District of New York. In this Texas case, the federal court held that a hearing officer properly refused to dismiss the hearing request. The court vindicated the parents’ right to reject a settlement offer and proceed to hearing. The rationale of the court’s decision was twofold. First that the proposed agreement did not confer federal court jurisdiction and was thus unenforceable in federal court by the parents and second, that the proposed agreement did not give rise to prevailing party status, and would have precluded the parents’ right to attorney fees. The court upheld the hearing officer’s decision in favor of the parents, thus conferring prevailing party status upon the parents.

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.