New SRO finds for parent on reimbursement claim but reduces the amount for inadequate notice

SRO 10-101: This case may foretell a break from the harsh recent past. IHO awarded full reimbursement to the parent for a private school placement. The new SRO found that the parent had not provided adequate information regarding her concerns about the district recommended program in the 10 day notice of intent to make a reimbursement claim. Rather than knock the parents out of the box on the reimbursement claim as Paul Kelly almost certainly would have done, the SRO reduced the award by 10%, thus granting the parent 90% reimbursement.

SRO finds for parent on summer school reimbursement claim

SRO 10-095: This appears to be the first reversal in favor of a parent by the new SRO, Justyn Bates. The parents challenged the appropriateness of the district recommended summer program and sought reimbursement for 2 months of a Lindamood Bell program. The IHO found for the parent. In a well reasoned decision, the SRO found that the CSE had failed to discuss or consider privately obtained psychoeducational and speech language evaluations, that the IEP failed to contain adequate information about a good number of the student’s identified needs, that the IEP failed to identify adequate goals to address these needs and that “thus, without an IEP that accurately identified the student's special education needs, the CSE failed to recommend an appropriate placement.” Also of note, the SRO found that the 10 day notice of intent to seek reimbursement requirement was satisfied by the submission more than 10 days prior to the start of the summer program of the hearing request in which reimbursement was requested.

New SRO?

It appears that there may be a new New York State Review Officer. The latest batch of decisions, posted online today, are all issued over the signature of Justyn Bates.

Amendments to New York State Special Education Regulations

The following are the most significant of the amendments to the New York State special education regulations, effective December 8, 2010. For full text of the amendments, see here.

1. Part 200.13 previously required that “Instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.” It is amended to now require that “Instructional services shall be provided to meet the individual language needs of a student with autism.”
2. Part 200.6 has eliminated the minimum level of speech services for students with disabilities determined to need speech and language services. Previously, there was a 2x30 per week minimum requirement.
3. Part 200.6 has been amended to allow for more than 12 students with disabilities in an integrated co-taught class.

Supreme Court to Consider 'Miranda' Rights of Juveniles at School

See School Law Blog for this interesting article. Note that the student at issue was a 13 year old special education student when he was questioned at school about a string of burglaries.

SRO holds that IHO exceeded authority in awarding interim relief

SRO 10-083: In what is an interesting and potentially very important case, the SRO sustained the district’s appeal of an IHO pendency decision that had ordered the provision of a 1:1 health paraprofessional for a child parentally placed in a private school. The IHO had initially determined that the child was not entitled to the 1:1 health para pursuant to pendency, but awarded same reasoning, inter alia, that the child might be precluded from attending school without the service. The SRO held that the award of interim relief was at odds with the statutory and regulatory pendency provisions. The parents argued that the award was an “equitable order” and not one based upon pendency. The SRO rejected this argument reasoning that the order was, on its face, a pendency order. The SRO cast doubt upon whether an IHO has the authority to award interim relief.

3rd Circuit rules that IDEA statute of limitations applies to claims that accrued prior to enactment

STEVEN I. v. CENTRAL BUCKS SCHOOL DISTRICT, (3rd Cir. 2010):

The 3rd Circuit Court of Appeals held that the 2 year IDEA statute of limitations applies to compensatory education claims that are brought after the statute's effective date but that arise from conduct that occurred before the statute's passage. The Court reasoned that the time period between IDEA 2004's enactment and the effective date of its statute of limitations (7 months) gave the parent ample time to become aware of the change in the law and a reasonable opportunity to file a claim based on conduct dating back much further than permitted under the 2 year statute of limitations.

3rd Circuit affirms equitable, non-monetary compensatory education award

FERREN C. v. School Dist. of Philadelphia, 612 F. 3d 712 (3rd Cir. 2010): The student is 24 years old. She had previously been awarded 3 years of compensatory education, the funding of which was to come from a trust that the District had set up. The District, however, disputed the obligation to provide IEPs and serve as the LEA. The private school at which the student was to receive her comp ed required a student's home school district to sign the IEP and serve as the student's LEA. The parent’s requested a hearing to compel the District to provide IEPs and serve as the LEA. The District prevailed at hearing and at the state review level. The District Court, however, ordered the School District for the duration of the student’s three years of compensatory education to annually reevaluate her, provide her with annual IEPs, and serve as her LEA. In affirming the District Court, the Circuit Court found that the Court’s power to award equitable relief is not limited to reimbursement. Rather, the Court has the power to award non-monetary equitable relief and that the non-monetary relief awarded by the Court here was appropriate.

Interesting case regarding mootness and jurisdiction

District of Columbia v. Doe (D.C. Cir. 2010): This case has been litigated for years. It is ostensibly about the suspension and alternative placement of a 6th grader, but the events occurred in 2004. The issue that survived was whether an IDEA hearing officer has the authority to revise district imposed discipline upon finding that an infraction is not a manifestation of a disability. The case went up and down the court system a few times over the years. Not surprisingly, the issue of mootness was raised. The Circuit Court held that the case was not moot, because it was capable of repetition while evading review. What makes this interesting is that the analysis was done without regard to the particular student in this case. The Court concluded that the District was almost certain to encounter the issue again and that it would evade review as the student seeking review of disciplinary matters is often done with school or otherwise ineligible for IDEA protections by the time the review process is concluded.

The Court recognized that a school has an obligation to provide the disciplined child with a FAPE and then concluded that an IDEA hearing officer has the authority to determine whether the District has in fact provided the disciplined child, even one for whom manifestation is not found, with a FAPE.

Review of recent SRO decisions in the post-Kelly era

There are 6 published State Review Office decisions since the resignation of Paul Kelly–3 by Frank Munoz (SRO 10-066,10-072, and 10-074) and 3 by Robert Bentley (SRO 10-069, 10-070 and 10-073). Munoz affirmed each of the 3 IHO decisions that he reviewed, including one in which a parent had prevailed (SRO 10-066). This particular case was affirmed not on the merits, however, but rather because the matter had become moot. Bentley, on the other hand, held for the district in all 3 cases. Two of these decisions reversed IHO decisions which had awarded private school reimbursement to parents (SRO 10-070, 10-073). It’s a strikingly familiar tune thus far, although it is likely premature to draw any definitive conclusions, particularly with respect to Munoz. Of import, it is my understanding that the Munoz–Bentley era is temporary and that there will be a new State Review Officer sometime in the near future.

SDNY reverses the SRO yet again

G.B. and L.B. on behalf of N.B. v. Tuxedo, 09-CV-859, decided September 30, 2010: District sought to remove autistic child from an integrated class. Parents disagreed, removed the child from the school, placed her in a private school and sought reimbursement. The IHO and the SRO ruled against the parent. The District Court reversed in a detailed opinion finding that an integrated class was the least restrictive environment in which the child could receive an appropriate education. In doing so, the Court applied the test adopted by the 2nd Circuit in P. v. Newington. Of note, the Court stated that “boilerplate, conclusory language cannot satisfy the requirement that the CSE seriously consider …including the child in a regular class with such supplementary aids and services as appropriate” and that the Court need only determine that with appropriate support and services, the child could make progress toward her IEP goals in the regular education setting. The Court found that uncontradicted evidence of progress in an integrated setting, expert testimony supporting the appropriateness of the integrated setting, and even testimony from district witnesses strongly supported the conclusion that an integrated class would be far more beneficial for the child than a self contained class.

The Court addresses the deference issue by noting that the IHO and SRO improperly ignored evidence and failed to apply the test for determination of LRE. Also, the Court treated the LRE issue as one for which deference is not owed because it is not a matter of educational policy, but rather the enforcement of a requirement of the IDEA.

Finally, this case is not over. The Court ruled that the amount of reimbursement should be reduced for the parent’s failure to provide proper, timely notice. The Court ordered additional briefing on the extent of reduction.

State agency not subject to the jurisdiction of the IHO

Chavez v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, 10th Circuit 2010: A high functioning autistic child was home schooled for 18 months because the school district refused to address his school refusal or avoidance problems. The parent took the school to hearing and also attempted to take the state education department to hearing. The IHO ruled that there was no jurisdiction over the state agency. The state level review affirmed that decision. The district court, however, held that the IHO had jurisdiction over the state agency and that the state agency was at fault for not providing direct services to the child. The 10th Circuit reversed reasoning that the state agency was not directly involved in the provision of the child's program. It’s an interesting opinion as the Court struggles with the reality that the child had been denied an education, the role that the state is to play in such situations and the potential ramifications of holding the state responsible. The Court makes clear that there could be situations where a state agency may be held responsible for direct provision of a child's services.

SDNY reverses SRO again

E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT (S.D.N.Y. 9-30-2010): The SDNY continues to be the court most willing to pierce through the barriers imposed by the New York State Review Office. This was a two year tuition reimbursement claim at a residential school. The parent went into court having lost at both the impartial hearing and the SRO. The court affirmed the denial of reimbursement for year 1, but reversed in favor of the parent for year 2. The court found that the district failed to adequately take into consideration the child’s progress at the residential placement and that was manifested in the district’s recommendations by:

1. placement with kids who were not of similar needs and abilities
2. by the failure to include an individualized reading program despite the fact that the child had progressed in reading when provided with 1:1 multisensory, individualized reading instruction
3. the replication of the goals and objectives from the previous year’s IEP despite having evidenced progress at the residential placement (“it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S.progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.”)

Parent attorneys should take note of how the Court approached the use of the kid's progress at the parental placement on prong 1, the approach to progress on prong 2, the analysis of LRE–in particular, the Court's view that "the right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement."–and the Court's analysis of the equities.

Court reverses SRO denial of reimbursement claim and holds that late notice warrants reduction rather than denial

WOOD v. KINGSTON CITY SCHOOL DISTRICT (N.D.N.Y. 9-29-2010): Parent placed child at the Kildonan School and sought tuition reimbursement. Parent prevailed at hearing. SRO reversed on the equities finding that the parent’s notice to the District of their dissatisfaction with the IEP and intent to enroll the child in Kildonan was untimely. The District Court held that the fact that the parent had provided notice of intent to make a reimbursement claim 5, rather than 10, business days prior to the start of the school year at Kildonan, warranted a 10% reduction in the award of reimbursement rather than denial of reimbursement.

Update on New York State Review Office situation

I was just advised by the Office of State Review that a replacement for the recently departed Paul Kelly has not yet been named and that in the interim, Frank Munoz, Robert Bentley and Joseph Frey will act as State Review Officers.