New York State Ed. continues assault on rights

State Ed. has proposed certain “cost containment” statutory and regulatory changes impacting upon the rights of students with disabilities and their parents. The Board of Regents will consider these changes at their next meeting which is scheduled for June 21st. The memo from State Ed to the Board of Regents can be found here. Proposed changes include shortening the statute of limitations from 2 years to 1 year in most circumstances and 6 months for reimbursement claims. State Ed would also remove that requirement that all personnel working with a child be provided with that child’s IEP. There are a number of other proposed changes. I suggest reading the memo and submitting comments to the Board of Regents at this address.

Court rules in favor of parent on right to independent evaluation (IEE)

KB v. HALEDON BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: Court holds that parent is entitled to an independent evaluation at district expense (IEE) where the request for such an evaluation was properly made and where the district failed to utilize the appropriate procedural route to avoid the obligation of financing an independent evaluation–i.e. commence a due process hearing.

Supreme Court denies cert in No Child Left Behind case

see Mark Walsh’s blog entry for more details

EDNY denies NYS motion to dismiss claim of illegal practice; private school has standing to bring 504 claim

Kalliope R. v. New York State Department of Education (EDNY 6/1/10): Plaintiffs in this action are the parents of four minor children with disabilities and the private school that they attend. Plaintiffs alleged that the New York State Education Department ("NYSED") unlawfully promulgated a policy prohibiting the use of a particular student-teacher ratio. The private school in question had implemented a 12:2:2 program, a program for which they had sought and received state approval, and for placement into which a child’s CSE had to recommend the 12:2:2. Subsequently, state ed allegedly contacted the various CSEs of the kids in the program and advised them to stop placing kids into the 12:2:2 program, thus prompting the parents’ legal action. NYS filed a motion to dismiss.

The Court denied the district’s motion to dismiss agreeing initially with the parents that exhaustion of the administrative process should be excused reasoning that exhaustion “is deemed futile when the conduct alleged to have violated IDEA affected all students in a given program.” The Court then reasoned that the parents had stated a viable claim that the “policy could constitute a "predetermination" that is a procedural violation of IDEA” and that “NYSED's interference with the IEP process has hampered the progress of the individual plaintiffs' children and the other children attending SLCD, and thereby substantively violated IDEA.”

The Court then went on to find that the private school had standing to sue under the Rehabilitation Act (504) as it had allegedly “incurred over $22,000.00 in expenses as a result of the NYSED's alleged policy.” The Court declined to dismiss the plaintiff’s 504 claim reasoning that “gross misjudgment or bad faith may be found when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary.” Here, the Court held that plaintiffs had satisfied that standard by alleging “that NYSED, despite the fact that students' CSEs had recommended the 12:2:2 class size, instituted a policy prohibiting use of that class size.”

SDNY slams NYC in attorney fee action

B.W. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 6-3-2010):

Parent sought reimbursement for private placement. IHO denied reimbursement, instead ordering that the CSE reconvene to develop an appropriate IEP for the child. NYC reconvened the CSE and recommended the same IEP for the upcoming school year. Parent placed privately again, sought reimbursement, submitted and a hearing request and settled the case. Parent sought attorney fees for the first hearing. NYC argued that the parent was not a prevailing party in the first hearing. The Court thought otherwise. The following is an extensive quote from the decision:

It is clear, however, that IHO Joyner's order for the CSE to
reconvene and draft a new IEP providing for an appropriate
education would have benefitted K.S. if the CSE had complied with
the order by recommending a more substantial IEP that actually
provided K.S. a FAPE. A largely unsuccessful defendant in an IDEA
case may not use its own failure to comply with an IHO order to
escape paying attorney's fees.

Defendant claims that it did not contravene IHO Joyner's order
and that her decision should not necessarily have resulted in
benefit to K.S., because it did not require that the new IEP
establish a different program (Def.'s Mem. in Opp. at 7-8). This
argument borders on the absurd. IHO Joyner found that defendant
failed to provide K.S. with a FAPE and remanded the matter to the
CSE to remedy this deficiency, an outcome clearly intended to
benefit K.S.

To suggest that the CSE could have recommended the same
deficient IEP a second time (as it inexplicably did) is logically
indefensible. In the absence of a change in the student's
condition (and the defendants cite no evidence of such a change
here), an IEP that is deficient in January is necessarily going
to continue to be deficient in December. Defendant's argument to
the contrary would effectively render the fair hearing process
meaningless.

If the initial IEP had provided K.S. with a FAPE, there would
have been no reason for IHO Joyner to have directed the CSE
to reconvene. The new IEP that the CSE issued obviously failed
to achieve what IHO Joyner ordered — an appropriate education
for K.S. — as evidenced by its failure to make any enhancements
to the deficient recommendations. Defendant cites no evidence of
any development after IHO Joyner's decision that would have made
it appropriate for defendant to adhere to the original IEP.
Rather, defendant argues that the CSE did not violate IHO
Joyner's order because the new IEP, although it contained the
same provisions as the old one, applied to the upcoming school
year, and one cannot determine "the appropriateness of a
placement for a school year that has not yet happened, because
progress (or lack thereof) cannot yet be measured" (Def.'s Mem.
in Opp. at 7; see Def.'s Mem. in Opp. at 8). By this logic,
however, all IEPs would be unchallengeable until they had been
implemented and there was empirical evidence on their effects.
IHO Joyner declined to order the requested payment of private
tuition in order to give defendant the initial opportunity to
remedy the deficient IEP, not in order to allow more time to pass
under the deficient IEP in the hope that it might become
sufficient. Defendant's argument would justify the maintenance of
all IEPs found to deny a disabled child a FAPE, relegating
students and their parents to an indefinite plight of waiting it                                                        out to see if the child improves under the deficient IEP.

SRO slaps NYC district for failure to provide proper due process notice

SRO 10-023: The district (NYC) provided the parent with a 1991 notice of parental rights. The SRO ordered the district to review and correct its policy and procedures pertaining to provision of the mandatory procedural safeguards notice to the parents of students with disabilities.

SRO addresses failure to give proper notice for manifestation meeting

SRO 10-028: Student was suspended on 12/2/09 for his role in an altercation that occurred on 11/30/09. District(NYC) twice scheduled manifestation review meetings, but each time did not notify the parent ahead of time. The second time the district proceeded with the meeting and found no manifestation. The district suspended the student for one calendar year. The IHO found that the parent had not been provided with proper notice, annulled the manifestation determination and ordered that the child be returned to school. SRO Paul Kelly agreed that the parent had not received proper notice, ordered that the MDR team reconvene with proper notice to the parent, but annulled without explanation the IHO decision ordering that the student be returned to school. And, remarkably, the SRO gave the district 30 days from the date of the decision (May 7, 2010) to reconvene the MDR team despite the fact that the law requires the MDR team to meet within 10 school days of a decision to impose a long term suspension.

Court considers more than academic progress in determination of whether child has received educational benefit

COMPTON UNIFIED SCHOOL DISTRICT v. A.F. (C.D.Cal. 4-26-2010): The appropriateness of a child’s program is determined, at least in part, by whether it is designed for the child to receive educational benefit. There have been a number of recent cases in which the Courts have addressed the boundaries of “educational benefit”. Compton is the most recent of these cases. The child was getting good grades, but was only “accessing” about 50% of his classroom activities and instruction due to interfering behaviors. The child was also suffering with respect to social skills and work habits.The Court held that calculation of educational benefit encompasses more than just academics; the decisionmaker must also look at social and emotional needs that impact academic progress.

3rd Circuit finds for district on reimbursement claim despite failure to have IEP in place prior to start of school year

C.H. v. CAPE HENLOPEN SCHOOL DISTRICT, 08-3630 (3rd Cir. 5-25-2010): Parent placed the child at the Gow School, but did not give the requisite notice of intent to make a reimbursement claim. The district proceeded with the evaluation process and the CSE met prior to the start of the school year. The CSE process was not completed prior to the start of the school year, however. The Court attributed the delay to the parents and declined “to hold that a school district is liable for procedural violations that are thrust upon it by uncooperative parents.” Further, in rejecting the parents’ claim of inadequate notice of the CSE meeting, the Court stated that “the Parents have been their own greatest impediment to participation in the evaluation of C.H.'s disabilities and the development of an appropriate IEP.” Finally, the Court also denied the parents’ claim on equitable grounds for failure to give proper notice of the intent to make a reimbursement claim and for disregarding “their obligation to cooperate and assist in the formulation of an IEP.”

SDNY rules in part for parents on reimbursement claim; interesting equities analysis

R.B. and H.Z., on behalf of C.Z., 09-CV-7758, decided May 5, 2010 (SDNY 2010): Parent placed the child privately and sought reimbursement. The private placement was a general education program supplemented by a separately paid for special education program. The IHO ruled in favor the parent awarding reimbursement for the whole shot. The SRO reversed. The SRO found that the parent had failed to demonstrate the appropriateness of the general education portion of the program. The SRO also found against the parent on the equities for failure to give proper notice. The SDNY reversed in favor of the parents, but only with respect to the private school special education component of the claim. Thus reimbursement was limited to a fraction of the total claim. The Court’s analysis of the equities is worthy of some exposure. The Court held that

Plaintiffs’ obligations under the IDEA’s notice requirement were not triggered because the DOE never provided plaintiffs with a Final Notice of Recommendation (FNR). Indeed, Plaintiffs could not have informed the DOE that they were “rejecting the placement proposed by the public agency” because the DOE never made a placement recommendation for Plaintiffs to reject.

The DOE had also advised the Plaintiffs in writing that the child had a right to continue in the current placement pending receipt of an FNR. Of note, the Plaintiffs did not challenge the IEP; rather, they only challenged the failure to offer a placement in which the child could receive the recommended services.
        Finally, and of particular interest, the Court found that the parent’s willingness to cooperate with the DOE was evidenced by their purchase of tuition insurance at a cost of $2000, “an expense they are unlikely to have made had they been determined to reject a public placement.”

IMPORTANT MESSAGE FOR PARENTS OF KIDS ATTENDING PRIVATE SCHOOLS

For parents who place their kids in private schools and want them to get special education services from the public schools, New York State Education Law §3602-c requires that the parent submit a written request for special education services by June 1st. This is a must do! Note that this does not generally apply to situations where parents place their kids in private schools and make a claim for reimbursement from their public school.

SRO 10-02: inadequate notice, impact of settlement agreement on pendency and more

SRO 10-02: This is an interesting case for reasons other than those raised by the parent to attempt to justify an award of private school reimbursement. On the surface, this is no different than any reimbursement case. Parent disagrees with the placement recommendation, places the child in a private school and seeks reimbursement. Here, however, notice of intent to seek reimbursement was submitted to the district in a letter with subject line “Re: Transportation Request”. This letter included a list of 30 names of students represented by the parent’s attorney and was a sparse, generic letter that did not particularize the parent’s concerns with the district’s recommendations. The text of the letter follows:

Our office represents the following children, who will start the school year in the private schools listed below. The proposed placements were either inappropriate to meet their education needs, as the District's recommended classes failed to offer sufficient individualized attention or were not in the least restrictive environment, etc., or the parents did not receive the notice of placement until it was too late to visit the proposed class, and have not yet been provided with sufficient information to judge the appropriateness of the recommendation without visiting the proposed program. We will be filing requests for impartial hearings for each of these students in the fall, as necessary, seeking tuition reimbursement, transportation and related services. Where applicable, each I.E.P. will be challenged on substantive grounds; however, the parents are not waiving any procedural arguments they may have.

        The hearing officer ruled in favor of the parent on prongs 1(absence of parent member at CSE meeting) and 2, but against the parent on prong 3, finding that the notice of intent to seek reimbursement was inadequate.
        The SRO very predictably reversed in favor of the school district on prong 1, did not address prong 2 and agreed with the IHO, again not surprisingly, that the notice of intent to seek reimbursement was inadequate. There is certainly a lesson here that parent attorneys should take note of.
        Finally, the IHO ruled in favor of the parent on pendency, a ruling that was reversed by the SRO. There is a discussion of the impact of a prior settlement agreement on the determination of pendency that’s worth a read. Assuming that the SRO has presented the facts correctly, it is hard to figure how the IHO could have ruled in favor of the parent, finding that pendency was the private school placement, when the agreement appears to have specifically precluded such a finding. One caveat though; although Kelly annulled the pendency determination, he did not make an alternative pendency ruling.

School district’s obligations under the IDEA are triggered by residence, not by enrollment of the student.

DISTRICT OF COLUMBIA v. WEST (D.C. 3-30-2010) and D.S. v. DISTRICT OF COLUMBIA (D.C. 3-30-2010): In the first action, the district sought recovery of attorney fees from the attorneys for the parents, a claim which was rejected by the Court. Of interest, the Court found that a district’s obligations under the IDEA are triggered by residence, not by enrollment of the student. In the second action, the IHO dismissed the parent's complaint as frivolous because the parent challenged the recommendations of the MDT despite the fact that her child was not enrolled. As in the first case, the Court held that a district’s obligations under the IDEA are triggered by residence, not by enrollment of the student.

Court holds in favor of parent on IDEA retaliation claim

C.O. v. PORTLAND PUBLIC SCHOOLS (Or. 3-31-2010):

An Oregon District Court held that a parent can assert a claim for for nominal damages for retaliation under the IDEA and under §1983 for a violation of the IDEA despite the absence of an explicit provision authorizing such a claim. Authority for this holding is found in a line of Supreme Court cases finding an implied cause of action for retaliation in civil rights statutes. To prevail, the parent must prove 1) that the plaintiff engaged in protected activity; 2) an adverse action; and 3) a causal relationship between the two.

Parent alleged that the attorney for the district refused to engage in informal discovery as required by state Oregon state law and for refusal to allow communication with district personnel in advance of the hearing. The Court found that the attorney’s actions were taken in retaliation for Oman's decision to pursue to hearing her parental right to advocate for her child’s educational rights and that these actions were intended to and did deter Oman from asserting her rights. The Court then awarded $1 in nominal damages against the attorney and the school district.      

Court awards pre and post-judgement interest on reimbursement award

B.P. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (W.D.N.C. 4-1-2010): Court awarded pre and post-judgment interest on reimbursement award–the prejudgment interest ran from the date of submission of the hearing request. The Court also awarded post-judgment interest on the attorney fee award.