OSEP says that RTI can not be used to delay or deny evaluation under the IDEA

In a recently issued policy letter, the federal Office of Special Education Programs (OSEP) advised that a response-to-intervention (RTI) process cannot delay the initial evaluation for special education services of a child suspected of having a disability. The federal special education regulations allow a parent to request an evaluation at any time to determine whether her child is a child with a disability. Apparently, schools have been delaying or denying the requests to evaluate pointing to the use of RTI procedures as justification. OSEP concludes that if a parent requests an evaluation and the district agrees that the child may be eligible for special education, the district must evaluate the child. If the district denies the request for the evaluation, the district must provide notice to the parent explaining why they refuse to evaluate and the information that was used as a basis for the decision. The parent can then challenge the refusal to evaluate through the impartial hearing process.

SDNY awards retroactive direct tuition relief

MR. and MRS. A, o/b/o D.A. v. NYC: By decision dated February 1st, 2011, SRO 09-001 was reversed by the SDNY federal court. The Court held that where parents lack the financial resources to “front” the costs of private school tuition and "where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." The original blog post follows.

SRO 09-001: This case is probably the most controversial SRO decision in years. In brief, the parent prevailed at hearing on her private school reimbursement claim. On appeal, SRO Paul Kelly found that the district failed to provide a FAPE and that the parental placement was appropriate. With respect to equities, although he did not expressly find for the parents, he stated that “I agree with the impartial hearing officer's findings that the parents cooperated with the district, participated at the CSE meeting, visited proposed placements, and notified the district in writing that they were re-enrolling the student at the Rebecca School when no placement was offered by the district.” In the hearing request, the parents apparently sought “funding” for the private placement rather than reimbursement. The IHO awarded the requested funding of the placement. The evidence cited by Kelly establishes that the parents had entered into a contract that obligated them to pay the entire freight and that they had in fact made payments. Kelly reversed the IHO award stating that “[u]nder the circumstances of this case, where the parents are not requesting reimbursement for out-of-pocket costs or direct payment for compensatory education services, I find that the parents are not entitled to funding of the student's tuition.” Kelly cites to two SRO cases in which Connors prospective funding was at issue; here, however, he does not cite to Connors. He does note, however, that the 2nd Circuit has, in fact, found that school districts may be required to directly fund pendency placements and that “courts have awarded "prospective payment" to afford access to compensatory education.” One would think that in light of the fact that the 2nd Circuit has touched on the issue of prospective payment and that a district court (Connors) has strongly suggested the availability of such relief, the SRO ought to have examined the issue more closely and provided a rationale for approving or disapproving of the right to relief. There is a dearth of analysis on the issue, however; Kelly merely laid out his version of the facts and just put the kabosh on the parents’ claim.

see also, NSBA blog article.

8th Circuit finds that student with adhd, bipolar disorder and conduct disorder is eligible under IDEA

Hansen v. Republic R-III Sch. Dist. (8th Cir., Jan. 21, 2011): This is one of the latest in the rather familiar category of cases addressing whether a child who engages in unacceptable conduct should be classified and provided with special education services. Here, the hearing officer said no, the district court said yes and the 8th Circuit Court of Appeals agreed with the District Court. For more details, see this article on the NSBA blog.

7th Circuit clarifies that physician can not prescribe special education

Marshall Joint School District No. 2 v. C.D.: It should go without saying that the CSE, not a child’s physician, is responsible for the development of a child’s special education program. The role of the physician has, however, been a source of endless confusion. The 7th Circuit noted that

a physician’s diagnosis and input on a child’s medical condition is
important and bears on the team’s informed decision on a student’s needs. See 20 U.S.C. § 1414(c)(1)(A)(iii). But a physician cannot simply prescribe special education.

ALJ misapplied governing standard in determining whether student suffering from Ehlers-Danlos syndrome was eligible for special education services.

In Marshall Joint School District No. 2 v. C.D., the 7th Circuit Court of Appeals concluded that the Administrative Law Judge (“ALJ”) and the federal district court applied the incorrect standard in determining whether a student suffering from Ehlers-Danlos syndrome (“EDS”) was entitled to special education services under the IDEA. The 7th Circuit held that the student suffering from EDS was not entitled to special education services because his medical condition did not adversely affect his educational performance.

The ALJ concluded that the EDS adversely affects the student’s educational performance because it causes him to experience pain and fatigue and that when he does “experience[] pain and/or fatigue at school, it can affect his educational performance.” Marshall Joint Sch. Dist. No. 2 v. C.D., at * 10 (7th Cir. Aug. 2, 2010). This is a misapplication of the governing standard because “it is not whether something, when considered in the abstract, can adversely affect a student’s educational performance, but whether in reality it does” Id., citing to 34 C.F.R. § 300.8(C)(9)(ii) and A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 310 (E.D.N.Y. 2010). For the student to qualify in this case, his health condition must adversely affect his educational performance and as a result he must need special education. 20 U.S.C. § 1401(3)(A)(ii).

The Court reasoned that while there is evidence that EDS can affect the student’s educational performance, there is no substantial evidence to support the ALJ’s finding that it has an adverse affect. Because the student’s EDS did not adversely affect his educational performance, the panel concluded that both the ALJ and the federal district court had misapplied the standard in determining whether the student’s EDS rendered him eligible for services and reversed the decision.

New SRO finds for parent on interesting pendency claim

SRO 10-112: The child transitioned from preschool to school age. As a preschooler, the child received services from the public school in a private non-state approved private school. The child continued to attend the same private school when she became school age. The parent challenged the last CPSE recommended IEP and the first CSE recommended IEP in an impartial hearing request submitted after the end of the school year during which these IEPs were recommended. The SRO held that “the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.” Thus, the SRO ordered the district to provide SEIT and related services per pendency, rejecting the district’s argument that these services were recommended in conjunction with a 9:1:3 placement to which the parent had objected.

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.