District Court vacates SRO home schooling decision

This morning, Judge Hurd in the Northern District of New York vacated SRO decision 08-005, the second of two SRO cases in which Paul Kelly deemed that there was no authority under state or federal law for school districts to provide special education services to home schooled kids. Although Education Law §3602-c has been amended to now expressly afford home schoolers a limited right to special education services, this Court decision is still of importance to those families who were impacted by Kelly’s decisions.
B.C. v. Colton-Pierrepont, 7:08-cv-00362, N.D.N.Y. 11/21/08.

Note that this decision was vacated by the 2nd Circuit on December 21, 2009. The Court found that the matter was moot.

District Court affirms IHO right to rule on issue not raised by parent

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008): In a decision that was otherwise unfavorable to the parent, the Court reversed the SRO and upheld a hearing officer determination that the district must provide the child with transition services. The parent had not raised the issue to the IHO, a fact noted and relied upon by the SRO in his reversal of the IHO. The Court found that the parent had challenged the sufficiency of the IEP and that this was enough for the IHO to order the district to implement a service that was required by law.

The task of the CSE is inherently speculative or predictive

School districts oftentimes argue that a parent position is speculative. I have argued that CSE recommendations are inherently speculative. In a case decided 11/18/08, the NDNY noted that

The requirement that defendant's CSE annually develop an IEP that is reasonably calculated to benefit plaintiff's educational development necessarily implies the CSE must make rational predictions about what will be best for plaintiff in the future. A school district's CSE will never have the benefit of knowing for certain how a student would perform if allowed to continue his education pursuant to an un-modified IEP. Although the IDEA permits the consideration of evidence outside the administrative record, see 20 U.S.C. § 1415(i)(2)(C), the statute is silent as to whether courts may consider a student's performance subsequent to the development of the challenged IEP.

J.S. ex rel. Y.S. v. North Colonie Central School Dist., --- F.Supp.2d ----, 2008 WL 4917881(N.D.N.Y. Nov 18, 2008)

Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.

Court holds against district for failure to evaluate in a timely fashion

Integrated Design and Electronics Academy Public Charter School v. McKinley, 570 F.Supp.2d 28 (D.D.C. Aug 08, 2008): The D.C. District Court held for the parent on a claim that the school failed to evaluate in a timely fashion. The Court also found that the parent was a prevailing party and was thus entitled to attorney fees. This case is of note given a recent history of courts forgiving district violation of procedural obligations. Also, it is of significance that the court awarded attorney fees without an ultimate determination that the child was eligible under the IDEA.

Court allows ADA/504 claim to proceed

Miles v. Cushing Public Schools, Slip Copy, 2008 WL 4619857: A severely disabled child fell twice from a changing table. The parents sued alleging deliberate indifference to the child’s safety. The Court concluded that “the record contains sufficient evidence to create material factual disputes with regard to Plaintiffs' claims that Defendants intentionally discriminated against C.M. by exhibiting deliberate indifference to the likelihood that their actions, or their failure to act, violated his rights under the Rehabilitation Act and the ADA.”

Court requires more detailed analysis

E.M. ex rel. E.M. v. Pajaro Valley Unified School Dist., Slip Copy, 2008 WL 4615436(N.D.Cal. Oct 17, 2008): This case would almost certainly fly under the radar screen, yet it zeroes in on an issue of significance in New York State. Parents in New York State are often subjected to adverse administrative decisions that appear to result from the whim of the SRO or, in some cases, particularly in New York City, an “impartial” hearing officer. Here, the Court remanded the case back to the ALJ finding that the ALJ’s findings were conclusory and failed to “articulate adequately their underlying reasoning.”

Settlement agreement enforceable in federal court

Many special education cases do not fit neatly within the prescribed process. Here, the Court found that the parents had not exhausted the administrative process, but allowed them to proceed in federal court on the basis of a violation of a settlement agreement. The district did not schedule a resolution session. The Court, nevertheless, held that the agreement was enforceable in federal court pursuant to 20 USC §1415(f)(1)(B)(iii), the provision affording Court jurisdiction for resolution agreements. See J.M.C. ex rel. E.G.C. v. Louisiana Bd. of Elementary and Secondary Educ., --- F.Supp.2d ----, 2008 WL 2421108(M.D.La. Jun 13, 2008).

Is the SRO additional services doctrine dead?

P. v. Newington, 2nd Cir., decided October 9, 2008.

For a number of years, the New York SRO has distinguished between compensatory education services and additional services. Hopefully, this 2nd circuit decision will put an end to this rather silly distinction.
The Court reasoned that

The IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. Mrs. C. v.Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). The remedy’s mandates in this case – that an inclusion consultant be retained for a year, requiring the school to keep Dr. Majure on for at least that long,and completion of an FBA – appropriately addressed the problems with the IEP, especially when considered in light of the fact that P. is now included in at least 80% of regular-classroom activities, in part due to Dr. Majure’s recommendations. See Parents of Student W. v. PuyallupSch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (“Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.”). We therefore see no infirmity in the hearing officer’s chosen remedy.

2nd Circuit adopts Oberti test for determination of LRE(least restrictive environment

P. v. Newington(2nd Circuit, decided October 9, 2008): The 2nd Circuit today adopted a case- and fact-specific test for determining whether a student has been placed in the least restrictive environment, considering whether, with the aid of appropriate supplemental aids and services, full-time education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has mader easonable efforts to accommodate the child in a regular classroom; (2) thee ducational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in aspecial education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

D.C. Court holds that IHO decision must be implemented during an appeal

Friendship Edison Public Charter School Chamberlain Campus v. Suggs, 562 F. Supp. 2d 141, 143 (D.D.C. 2008).

A student is entitled to pendency during the course of litigation. In this case, the student was awarded compensatory education in the form of supplemental tutoring. The Court held that the implementation of a hearing officer decision is not automatically stayed by the filing of an appeal.

Nowhere in the IDEA ... is there a corresponding right of an education provider to decline to implement a Hearing Officer Decision in a student's favor automatically, without seeking a stay of that Decision from either the Hearing Office or the Court in which further proceedings have been commenced under 20 U.S.C. § 1415(i)(2).

Moving from district did not moot attorney fee claim

Kingsport City School System v. J.R., ex rel. Rentz, Slip Copy, (E.D.Tenn. Sep 04, 2008)

In this case, the parents moved from the district prior to the implementation of relief won during the administrative process. The court determined that the parent was the prevailing party and that the fact that they had moved did not negate the right to attorney fees.

Court orders funding of independent FBA

Harris v. District of Columbia, 561 F. Supp. 2d 63, 69 (D.D.C. 2008)

Parent sought an independent functional, behavioral assessment(FBA). District failed to act upon the request in a timely fashion. First, the Court found that an FBA is an educational evaluation, thus giving rise to a parental right to an Independent Educational Evaluation(IEE). Next, the Court slapped the District by finding that

failure to act on a request for an independent evaluation is certainly not a mere procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress' objectives in enacting the IDEA. See Part II C 1-2, supra. Nevertheless, even accepting defendant's assertion that plaintiff's complaint describes a procedural violation, its argument still fails. D.H. has languished for over two years with an IEP that may not be sufficiently tailored to her special needs. The intransigence of DCPS as exhibited in its failure to respond quickly to plaintiff's simple request has certainly compromised the effectiveness of the IDEA as applied to D.H., and it thereby constitutes a deprivation of FAPE. Plaintiff is accordingly entitled to full relief under the statute.

District can not satisfy obligation to evaluate by referring parents to outside evaluator

N.B v. Hellgate Elementary School District, ex rel. Bd. of Directors, Missoula County, Mont., –F.3d– (9th Cir.(Mont.) Sep 04, 2008): A school district is obligated to evaluate a child in all suspected areas of disability. Here, the school district was aware that the child might be autistic. The school district suggested that the parents obtain an evaluation and referred the parents to a testing center. The 9th Circuit reversed the District and found that the school district “did not fulfill its statutory obligations by simply referring C.B.'s parents to the CDC. Such an action does not “ensure that the child is assessed,” as required by 20 U.S.C. § 1414(b)(3)(C).”

Federal Court Vacates SRO home schooling decision

H.C. v. Colton-Pierrepont: This is a case of particular interest to home schoolers in New York State. The case was originally a parent challenge to the district’s recommended reduction in frequency of related services. The parent prevailed at hearing. On appeal, the district prevailed, but more importantly, the SRO advised that districts were not permitted to provide special education services to home schooled kids. This issue had not been raised, briefed or argued by either of the parties. Federal District Court Judge Hurd vacated the SRO decision. Although he decided the case on other grounds, he criticized the SRO for “depriv[ing] both parties of due process because he failed to inform them that he intended to rule on the rights of home-schooled students to receive special education services – an issue that neither party raised nor briefed.” Judge Hurd noted that “[t]he SRO also exceeded the scope of his authority because “[t]he decision of the State Review Officer shall be based solely upon the record before the State Review Officer . . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 279.12(a) (2008). Neither party mentioned or submitted evidence concerning the ability of home-schooled students to receive special education services.“

On August 25, 2008, the district filed a notice of appeal to the 2nd Circuit.