Court refuses to compel district to pay for pendency placement

M.M. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 7-27-2010): Parent placed child in private school for the 2008-2009 school year and made a reimbursement claim. Parent had already prevailed at hearing on a reimbursement claim for the 2007-2008 school. The district did not appeal that decision. Thus, the parent asserted in her hearing request for 08-09 that pendency was the private school placement. The district did not contest the parent’s right to pendency reimbursement. On day one of the hearing, the DOE again did not object to the parent’s pendency request. During the hearing, the parent sought a pendency order from IHO Esther Mora. Mora noted the request but never issued an order requiring the NYCDOE to provide the parents with pendency reimbursement. Mora ultimately ruled against the parents on the reimbursement claim and further stated that "I have examined the
parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." The parents did not appeal the decision.

The DOE then refused to pay for the pendency placement. The parents sought payment in federal court and remarkably, the Court ruled against the parents, reasoning that the parents had not exhausted the administrative process by not appealing Mora’s failure to rule on pendency to the SRO.

This is a very harsh ruling and arguably, a gross miscarriage of justice. A party can only appeal if aggrieved by a ruling. The IHO did not rule on the pendency issue because it was not contested. The parties were in agreement as to pendency. Yet, the Court held that the parents were foreclosed from recovering due to the failure to appeal the Mora non-ruling. Bottom line, the parents don’t get paid for the pendency placment even though the district agreed with them before and during the hearing that they should get paid.

Prevailing party status for IEE

AP v. NORTHERN BURLINGTON COUNTY REGIONAL BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: District Court held that Parents who obtained an order compelling a district to pay for an Independent Educational Evaluation were entitled to prevailing party status for purposes of an attorney fee claim.

Court allows parent to proceed on behalf of child

B.J.S. v. STATE EDUCATION DEPARTMENT (W.D.N.Y. 2-9-2010): Parent appealed the SRO’s denial of her claim that her child’s IEP was inappropriate. She proceeded pro se and brought the claim “individually and on behalf” of her child. The school district sought to have counsel appointed for the child. The Court denied the motion reasoning that the child was not an individual plaintiff in the action. Rather, the parent, who has a right to proceed pro se pursuant to Winkelman, was asserting her own IDEA rights, rights that are “coextensive” with the child’s rights. Thus, the parent was suing to enforce the parent’s individual right to a FAPE for her child.

This case also presents an interesting discussion about confidentiality, the sealing of records and the proper captioning of IDEA cases to preserve the privacy of the child.

SRO annuls inadequate decision and remands for further testimony

SRO 10-035: Parent sought reimbursement for a private school placement. The IHO denied the parent’s claim in a 5 paragraph decision that violated virtually every norm for a hearing officer’s decision. The SRO agreed with the parent’s arguments regarding the inadequacy of the decision. Additionally, this IHO had refused to adjourn the hearing for the taking of testimony of a district witness. The SRO found that to be error. The SRO remanded the matter to the same hearing officer for further testimony and consideration.

SRO affirms award for private school reimbursement

SRO 10-042: Parents prevailed at hearing in New York City private school reimbursement case. NYC appealed to the SRO. For the first time this year, the SRO affirmed on the merits a decision in which an IHO had awarded reimbursement to a parent. The IHO on the case was James Walsh.

Graduation is not necessarily the end of the story

Doe v. MARLBOROUGH PUBLIC SCHOOLS, Dist. Court, D. Massachusetts 2010:

Reimbursement and compensatory education cases live on after a child graduates. This case takes it one step further. Child had an IEP and received special education services. Parent challenged the legitimacy of the child’s graduation. The Court ruled that satisfaction of graduation requirements does not necessarily terminate a school district’s obligations under the IDEA. “ [A] school district may not properly graduate a student with disabilities if the student was not provided with FAPE as required by IDEA (e.g., a student did not receive appropriate transitional services or his IEP was not reasonably calculated to provide him educational benefit).” Pendency during such a challenge is the placement and program that the child was in at the time of the challenge.

Another decision in which the Court rejects district effort to save deficient IEP through testimony at hearing

N.S. v. DISTRICT OF COLUMBIA (D.C. 5-4-2010): It is utterly remarkable what some parents must go through these days to get an appropriate program for their child. In this case, the parents rejected the district’s proposed IEP, placed their child privately and requested reimbursement. The IHO ruled in favor of the school district despite the that, inter alia, the IEP did not include a statement of the child's present levels of academic achievement and performance, it was undisputed that the child required a multitude of supplementary aids and services in the classroom and the IEP failed to identify any such aids and services, the IEP failed to include specific goals and objectives to address the child's significant deficits in written language, the IEP failed to contain speech and language goals despite evidentiary support for the need, the IEP failed to include OT services despite the documented need and subsequent OT evaluation recommending services in response to which the district did not amend the IEP, and the IEP recommended inclusion despite the need for pullout services.

The IHO ruled in favor of the district reasoning that because the parents pulled the child prior to the implementation of the proposed IEP, the parents concerns were “speculative.” The Court rejected this position reasoning that “parents are not required to wait and see a proposed IEP in action before concluding that it is inadequate and choosing to enroll their child in an appropriate private school.” The district argued that the alleged defects were “merely procedural or technical and that they did not deprive N.S. or his parents of any substantive rights under the IDEA.” The Court rejected this argument and distinguished between harmless procedural flaws such as “failures to meet statutory deadlines” from serious procedural flaws such as here–“failures to include required information in an IEP about the services to be provided a disabled student.” The district argued that “as long as [the proposed placement] was "willing and able" to provide N.S. with appropriate services to meet his educational needs, any errors or deficiencies in the IEP are harmless.” The Court soundly rejected that argument reasoning that “the IDEA requires that a school district do more than simply provide services adequate to meet the needs of disabled students; it requires school districts to involve parents in the creation of individualized education programs tailored to address the specific needs of each disabled student…The IEP must be specific enough to allow parents to understand what services will be provided and make a determination about whether the proposed placement is adequate.” The IHO further erred by relying “on evidence about what services could have been provided by … instead of considering what services were actually called for by the IEP or adequately discussed at the IEP meeting. Because the purpose of the due process hearing is to contest the adequacy of the IEP and the placement, the Hearing Officer should not consider evidence about services not prescribed by the IEP or discussed at the IEP meeting.”

New York attorneys should take note of this decision as the SRO routinely permits school districts to cure significant defects in IEPS through testimony at hearing.

Supreme Court denies cert in 11 special education cases

The Supreme Court denied cert in 11 special education cases during the 2009 term including 3 cases from the 2nd Circuit: E.H. and K.H. v. Shenendehowa, T.Y. and K.Y. v. NYC Board of Ed. and Levine v. Greece (links are to the 2nd Circuit cases).

District Court rejects school district attempt to remedy deficient IEP through testimony at hearing

DUMONT BOARD OF EDUCATION v. J.T. (N.J. 5-10-2010): The New York State Review Office (SRO) often excuses inadequate IEPS by crediting the impartial hearing testimony of school district personnel as to what the district would have done for a child. Thus, district personnel have been able to, in effect, supplement an IEP and remedy its defects at hearing. In this New Jersey case, the Court refused to countenance such a tactic noting that

[w]ith respect to the sensory diet or sensory program, Dumont asserts that any deficiency in the IEP was obviated by testimony at trial that Tri-Valley would provide an adequate sensory
program for I.T.'s needs. (Def. Br. at 17.) Under the IDEA, however, "in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined." Lascari v. Board of Educ., 560 A.2d 1180, 1189 (N.J. 1989). See also D.C. v. Montgomery Twp. Bd. of Educ., No. 04-2851, 2005 WL 1229827, at *2 (D.N.J. 2005) (quoting Lascari). Whether or not Dumont would have offered I.T. additional sensory education services at a later date, the substance of the IEP with regard to her sensory education was limited to "sensory activities, tickles, hugging, deep pressure, physical touch," without any indication the numerous sensory stimulation techniques used at Tri-Valley and discussed in Dumont's brief, or any detailed program or reference to I.T.'s home sensory diet.

Pendency in charter school case

ELYSIAN CHARTER SCHOOL v. BAYONNE BD. OF ED., 09-3741 (3rd Cir. 6-10-2010): This is an interesting case out of New Jersey. Parents placed their child in a charter school outside their school district. Charter schools in New Jersey have administrative control over the special education process. The charter school is responsible for development and implementation of the IEP. The charter school recommended placement in a private school for the following school year and the parents agreed. The home school district objected and requested a hearing, maintaining that they could offer the child a FAPE. The parents asserted that pendency was the private school arguing alternatively that it was the current educational placement and that they and the school (i.e. the charter school) had agreed to the placement. The Third Circuit disagreed and held that the child’s pendency placement was the charter school, the last school the child had actually attended at the time the hearing request had been submitted. The Third Circuit also reasoned that to allow the parents and the charter school to agree on the child’s pendency placement would conflict with the home district’s right under New Jersey law to object to the private school placement recommendation.

Admission of additional evidence in federal court IDEA actions

H.M. v. HADDON HEIGHTS BOARD OF EDUCATION (N.J. 6-22-2010): This case provides a good summary of how some circuit courts have analyzed a party’s right to submit additional evidence on an IDEA case in federal court.

New York State Board of Regents approves controversial proposals

The New York State Board of Regents supported the following special education cost containment proposals and directed State Education Department (SED) staff to develop proposed regulatory language that would:
● Authorize school districts to add up to two additional students to integrated co-teaching classes, upon documented educational justification;
● Repeal the minimum service delivery requirements for speech and language; and
● Repeal the requirement that each student with autism receive instructional services to meet his/her individual language needs at a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.

In addition, the Regents also endorsed the following legislative proposals:
● Establish a one-year statute of limitations to request an impartial hearing and that requests for tuition reimbursement for unilateral parent placements in private schools be presented not more than 180 days from the placement by the parent; and
● Repeal the authority of the Commissioner to appoint students to State-supported schools

The Regents did not support legislative action that would repeal the requirement for dissemination of copies of students’ individualized education programs (IEPs) to each regular education teacher, special education teacher, related service provider and other service provider who is responsible for the implementation of the IEP. Rather, the Regents asked SED staff to provide more information on the number of districts currently providing electronic access to IEPs rather than providing paper copies.

For more information, the complete Regents discussion item can be found at:
http://www.regents.nysed.gov/meetings/2010Meetings/June2010/0610vesidd2.htm

Court denies District's motion to dismiss teacher's retaliation claim

CORRALES v. MORENO VALLEY UNIFIED SCHOOL DISTRICT (C.D.Cal. 6-10-2010): Special education teacher repeatedly sought to have certain students evaluated and provided with more intensive services. School district either failed to respond or denied these requests. District ultimately terminated the teacher and she sued alleging retaliation in response to her advocacy efforts. District’s motion to dismiss the retaliation claim was denied.

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.