Impact of legislative stalemate on special education law in New York State

As those of us in New York State are aware, legislative activity in Albany appears to have ground to a halt. Unfortunately, many state laws governing special education expired today. There is no indication that the legislature took action to extend these provisions. Of particular note, Education Law §4404(3)(a) expressly provided a 4 month statute of limitations for appealing an adverse State Review Office decision. This section expired today. In its stead is a provision that does not include a period of time during which an appeal must be commenced, thus adding an element of uncertainty as to whether the 4 month period contemplated by Article 78 or the 3 month Statute of Limitations provided by the IDEA would apply.

Next, students with IEPs who attend private schools are presently entitled to special education services from the district of location of the private school. As of July 1, it appears that the district of residence will be the responsible district.

SRO orders provision of ESY services and test accommodations

SRO 09-052: CSE recommended ESY services for 06-07 and 07-08 school years. The March 14, 2008 CSE removed ESY services from the student's IEP for the 2008-09 school year. SRO Paul Kelly stated that “[n]either the March 14, 2008 IEP nor the testimony and evaluations presented at the impartial hearing demonstrated that the student's needs changed such that he was no longer at risk of substantial regression during the summer months. Based on the above, I find that the district did not provide sufficient evidence to meet its burden to support the March 2008 CSE's determination to remove ESY services from the student's 2008-09 program proposed in the March 2008 IEP. Accordingly, the hearing record does not demonstrate that ESY services were properly removed from the student's program, thereby denying the student a FAPE.”

Kelly also rejected the district’s effort to remove testing accommodations, Kelly stated similarly that “ the district did not present sufficient evidence to support its decision to change the student's testing accommodations.”

Supreme Court finds for parents in Forest Grove Case

Forest Grove v. T.A. : The following is a summary prepared by the Supreme Court’s reporter of decisions.

After a private specialist diagnosed respondent with learning disabilities, his parents unilaterally removed him from petitioner public school district (School District), enrolled him in a private academy, and requested an administrative hearing on his eligibility for special-education services under the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §1400 et seq. The School District found respondent ineligible for such services and declined to offer him an individualized education program (IEP). Concluding that the School District had failed to provide respondent a “free appropriate public education” as required by IDEA, §1412(a)(1)(A), and that respondent’s private-school placement was appropriate, the hearing officer ordered the School District to reimburse his parents for his private-school tuition. The District Court set aside the award, holding that the IDEA Amendments of 1997 (Amendments) categorically bar reimbursement unless a child has “previously received special education or related services under the [school’s] authority.” §1412(a)(10)(C)(ii). Reversing, the Ninth Circuit concluded that the Amendments did not diminish the authority of courts to grant reimbursement as “appropriate” relief pursuant to §1415(i)(2)(C)(iii). See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370.

Held: IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school. Pp. 6-17.

(a) This Court held in Burlington and Florence County School Dist. Four v. Carter, 510 U. S. 7, that §1415(i)(2)(C)(iii) authorizes courts to reimburse parents for the cost of private-school tuition when a school district fails to provide a child a FAPE and the private-school placement is appropriate. That Burlington and Carter involved the deficiency of a proposed IEP does not distinguish this case, nor does the fact that the children in Burlington and Carter had previously received special-education services; the Court’s decision in those cases depended on the Act’s language and purpose rather than the particular facts involved. Thus, the reasoning of Burlington and Carter applies unless the 1997 Amendments require a different result. Pp. 6-8.

(b) The 1997 Amendments do not impose a categorical bar to reimbursement. The Amendments made no change to the central purpose of IDEA or the text of §1415(i)(2)(C)(iii). Because Congress is presumed to be aware of, and to adopt, a judicial interpretation of a statute when it reenacts that law without change, Lorillard v. Pons, 434 U. S. 575, 580, this Court will continue to read §1415(i)(2)(C)(iii) to authorize reimbursement absent a clear indication that Congress intended to repeal the provision or abrogate Burlington and Carter. The School District’s argument that §1412(a)(10)(C)(ii) limits reimbursement to children who have previously received public special-education services is unpersuasive for several reasons: It is not supported by IDEA’s text, as the 1997 Amendments do not expressly prohibit reimbursement in this case and the School District offers no evidence that Congress intended to supersede Burlington and Carter; it is at odds with IDEA’s remedial purpose of “ensur[ing] that all children with disabilities have available to them a [FAPE] that emphasizes special education … designed to meet their unique needs,” §1400(d)(1)(A); and it would produce a rule bordering on the irrational by providing a remedy when a school offers a child inadequate special-education services but leaving parents remediless when the school unreasonably denies access to such services altogether. Pp. 8-15.

(c) The School District’s argument that any conditions on accepting IDEA funds must be stated unambiguously is clearly satisfied here, as States have been on notice at least since Burlington that IDEA authorizes courts to order reimbursement. The School District’s claims that respondent’s reading will impose a heavy financial burden on public schools and encourage parents to enroll their children in private school without first trying to cooperate with public-school authorities are also unpersuasive in light of the restrictions on reimbursement awards identified in Burlington and the fact that parents unilaterally change their child’s placement at their own financial risk. See , e.g., Carter, 510 U. S., at 15 . Pp. 15-16.

523 F. 3d 1078, affirmed.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

SRO encourages use of video conferencing instead of home instruction

SRO 09-054: This case is interesting in good part because of a footnote in which SRO Paul Kelly states:

I note that the use of videoconferencing between the school and the student's home may enhance the student's academic program, eliminate the need for the district to maintain home instructors for the student in each
academic content area, and allow the student and his classmates to share a common learning environment. Therefore, I encourage the district to consider providing this form of assistive technology to the student when
the CSE next convenes.

This footnote could be of significance in future home schooling cases as it appears to embrace modern technology in a way that could result in a win/win situation for students and school districts.

SRO upholds IHO decision despite no answer from district on appeal

SRO 09-049: The parent appealed; the district failed to answer. The SRO upheld the IHO determination for the district. In SRO 09-048, the SRO considered a cross-appeal by a parent despite the failure by the parent to file an answer to the district's cross-appeal. The SRO cited to Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dep't 2002], for the proposition that the SRO is required examine the entire hearing record and make an independent decision based on the entire hearing record.

NYS: legislative developments

http://assembly.state.ny.us/leg/?bn=A08398(memo); http://assembly.state.ny.us/leg/?bn=A08398&sh=t(text)

A bill has been introduced that includes a number of significant changes affecting the rights of parents of kids in special education. The following are highlights:

1. Section 8 would amend S 4404(1)(a) of the Education Law to create an exception to the two year statute of limitations for due process for tuition reimbursement claims for unilateral parental placements. The bill would require that a complaint seeking tuition reimbursement for the unilateral parental placement of a student in a private school be presented not more than one hundred and eighty days from the unilateral placement by the parent or person in parental relation in the private school. This section would take effect September 1, 2009.

2. elimination of the separate consent requirement for the initial provision of the summer component of a 12 month program

The following proposed changes affect privately placed kids and their parents:

1. the Education Law 3602-c deadline for written request for services would be changed to April 1 for parents of kids who have already had an IEP developed and implemented
2. mandatory mediation prior to hearing; where a due process complaint involveschild find requirements, the federal rules would apply and mediation would continue to be optional.
3. school district of location would now be able to provide a 12 month program(privately placed kids)
4. This bill would also add language to clarify, both for July and August services and services provided during the regular school year, that a student parentally placed in a nonpublic school has no entitlement under S 3602-c to the provision of a special class or integrated co-teaching services. Section 3602-c is intended to authorize the provision of special education programs and services to supplement the regular educa- tion instruction provided by the nonpublic school. Unlike related services, resource room services, consultant teacher services and supplementary aids and services, which are designed to supplement regu- lar education instruction, a special class or integrated co-teaching services necessarily involves a teacher providing a portion of the core regular educational program of the student. Such core instruction should be provided by the nonpublic school, and would be both costly and burdensome for the school district of location to provide.
5. S4402(4)(d) of the Education Law would be amended to provide thatwhere the board of education of a student’s school district of residence provides transportation up to a distance of fifty miles to and from a nonpublic school which a student identified with a disability attends for the purpose of receiving services or programs from the nonpublic school which are similar to special education programs and services recommended for the student by the district of residence, the student would not be entitled to special education programs and services from the school district of location pursuant to S 3602-c of the Education Law . As a condition of eligibility for such transportation, the parent or person in parental relation to the student would be required to consent to the provision of notice by the school district of residence to the chairperson of the committee on special education of the school district in which the nonpublic school is located. Such notice must be provided by the district of residence no later than thirty days after commencing transportation services.

Unless otherwise indicated in the statute, the changes would take effect on June 30, 2009. Some of the changes to 3602-c would take effect in 2010.

IMPORTANT MESSAGE FOR HOME SCHOOLERS AND PARENTS WHO HAVE ENROLLED THEIR KIDS IN PRIVATE SCHOOLS

For families that want their kids to get special education services, the revised Education Law §3602-c requires that the parent submit a written request for special education services by June 1st. This is a must do!

Supreme Court nominee Sotomayor

President Obama has nominated Judge Sonia Sotomayor to replace Judge Souter on the Supreme Court. Not only would she be just the third female Supreme Court justice and the first Hispanic, she also appears to have a good track record on disability issues. As a sitting judge on the 2nd Circuit, she authored the 2002 Murphy v. Arlington decision(affirming the notion that SRO decision awarding reimbursement to parent establishes pendency and also excusing parent proceeding on behalf of child in federal court). She was also the author of the Bartlett v. NYS Bd. of Law Examiners case in which the court found that a learning disabled law student had been wrongfully deprived of accommodations on the bar exam. Notably, she has not been the author of any of the recent decisions, most of which are overly deferential to the State Review Officer.

She was on the panel of a number of 2nd Circuit disability related special education cases. Somoza is very important for the proposition that district’s volutary provision of services does not deprive a court or hearing officer of jurisdiction to “determine the nature of the entitlement at issue”. In State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Bd. of Ed, the court allowed an agency access to student records to allow the agency to carry out an investigation of abuse claims. In Frank G., the court affirmed the right of a parent to seek reimbursement for a private placement when the child had not previously received special ed services. This case also has a very well reasoned prong 2 analyis. In A.R. v. NYC, the 2nd Circuit held that hearing officer decisions and consent decrees give rise to prevailing party status and thus, attorney fees are not barred by Buckhannon.

SRO upholds reimbursement award to parent of home schooled student

SRO 09-033: District failed to offer a placement. Soon after the school year began, Parent notified the District(NYC) that she intended to home school her child. She then cobbled together a program that included 1:1 services from Lindamood-Bell among other things. IHO awarded reimbursement to parent despite the failure to provide notice of intent to seek reimbursement. SRO affirmed emphasizing that Parent’s ongoing efforts to work with the District significantly factored into his decision.

Counterclaim is not subject to IDEA statute of limitations

Jonathan H. v. The Souderton Area School Dist., 562 F.3d 527 (3rd Cir. 2009): School district's counterclaim, challenging award of compensatory education in IDEA action, was not “action” within meaning of limitations period applicable to party bringing civil action under IDEA, and, thus, counterclaim could be brought beyond IDEA's 90-day limitations period.

SDNY reverses SRO yet again on reimbursement claim

N.R., on behalf of T.R. v. NYC Bd of Ed., 07-CV-9648, 2009 WL 874061(SDNY, decided 3/31/09)(Judge Jones): At hearing, the district conceded on prong 1, that it failed to offer a FAPE. The IHO found against the parents on prong 2 and thus, rejected the parents claim for reimbursement for a private placement at the Rebecca School. The IHO did not make a determination on the equities. SRO Paul Kelly reversed on prong 2 in favor of the parents, but denied the claim on the equities(SRO 07-038). In a very well reasoned decision, the SDNY granted the parents motion for summary judgment. The Court found that the parents had cooperated throughout the placement process. The denial of FAPE was premised in part on the district failure to offer a site specific placement prior to the start of the school year. The Court noted that there are no cases supporting the denial of reimbursement on the equities where the district has failed to offer the child a placement.

SDNY rejects parent appeal of SRO decision in Connors type case

S.W. v. NYC Bd. of Ed., 2009 WL 857549 (SDNY March 30, 2009): In affirming SRO 07-032, the SDNY(Judge Koeltl) held that the parent failed to give notice of her claim for funding of the private placement. The parents sought direct payment to the private school as opposed to reimbursement. As such, this was what is colloquially referred to in N.Y. as a “Connors” case. By deciding the case on the equities, the Court avoided having to decide the issue of whether a parent may be entitled to prospective relief in the form of direct payment to a private school, but the Court does discuss the issue and concludes that “ In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.” This case is a must read for attorneys litigating Connors cases. There is extensive treatment of whether the parent has standing to bring such a claim. Here, the Court answered in the affirmative.

SDNY reverses SRO again on reimbursement claim

Eschenasy v. New York City Dept. of Educ., Slip Copy, 2009 WL 804120
S.D.N.Y.,2009: IHO found for the parent on this reimbursement claim for a private placement at the Elan School. SRO reversed in case number 06-077 finding that she was not emotionally disturbed despite the child’s history of social maladjustment, cutting behavior, lying, stealing, inappropriate sexual conduct, purging, and a variety of other serious behavioral and emotional problems. The SDNYdisagreed and reversed the SRO. Note that the SRO just recently decided the next chapter in this same case in SRO 08-099, again reversing an IHO determination of eligibility and an award of reimburement at the Elan School.

After finding that the child met two of the five categories in the definition of emotionally disturbed, the Court then determined that her symptoms had adversely affected educational performance. The Court highlighted that SRO Kelly had essentially mischaracterized the evidence in the record in concluding that the child’s emotional problems had not adversely impacted her educational performance stating:

Despite acknowledging testimony in the record that Ann failed several courses in high school, the SRO stated that there was no documentary evidence of failing grades nor was there any testimony from her teachers or any indication that she had been held back a grade. Based on this lack of evidence, the SRO found that Ann had not shown that her emotional problems adversely affected her educational performance.

The Court allowed a transcript as additional evidence reasoning that

the documents are relevant and useful to the analysis of whether Ann's emotional problems have affected her educational performance. This is especially true in light of the SRO's confusing statements about Ann's failing grades and his suggestion that there was insufficient documentary evidence that her school work had been adversely affected. In addition, this evidence directly contradicts defendants' argument that Ann has been able to obtain passing grades despite her emotional problems. I therefore conclude that the usefulness of these transcripts outweighs any procedural considerations weighing against their admission.

Finally, while ruling that the equities favored reimbursement, the equities weighed against an award of attorney fees because the parents were partially to blame for the district’s failure to conduct an evaluation and classroom observation prior to the unilateral placement.

Pendency does not absolve the district of obligation to develop IEP

SRO 08-026: SRO found that district was not relieved of its obligation to develop an IEP during the course of hearing. SRO Paul Kelly rejected the district's contention that it did not have to develop an IEP for the student because he was receiving services through pendency. Kelly noted that “[c]onducting CSE meetings and formulating and offering new IEPs during the course of pending litigation is not prohibited under the IDEA provided that there is adherence to pendency requirements (Letter to Watson, 48 IDELR 284 [OSEP 2007]; see Application of a Child with a Disability, Appeal No. 07-122).”

SRO reverses IHO in unusual Kildonan case

SRO 08-055: This case started out as a reimbursement case. By the time the hearing rolled around, the parents decided to continue the child in the district placement and to request prospective placement at Kildonan while challenging the appropriateness of the placement. On the last day of hearing, the parents withdrew their request for placement at Kildonan, but still sought a ruling from the IHO on the appropriateness of Kildonan, reasoning that it could give them pendency in the future. The IHO ruled for the parent; SRO Kelly reversed. He found for the parent on prong 1, but found that the parent had not established the appropriateness of Kildonan. He employed the 3 prong reimbursement analysis with no discussion as to why he was doing so in a case that had become something other than a reimbursement case. Nor did he mention or discuss Connors.