My idea is to explore how other countries around the world are dealing with education and special education issues. I’d like to see different successful schools, wherever they may be, up close. I’d like to sit down with directors and administrators. I’d like to speak with government officials who keep a pulse on the education affairs of their communities. I want to learn more about education around the globe through speaking with locals, seeing the schools, and shaking hands with the people responsible for implementing the systems. If you know of any outstanding (public or private) special needs schools in other parts of the world, I’d love to hear about them. If you know any education experts from around the world, I’d love to be introduced to them. Please do not hesitate to share your thoughts or ideas. Read more about my mission.
Thursday, March 29, 2012
In Board of Ed. of the Garrison Union Free School District v. Greek Archdiocese Institute of St. Basil (a mouthful, I know), the issue concerned foster children and what school district was legally obligated to cover the cost of their education - should it be the district where the foster care home is located, or the district where the child's parents reside? Education law section 3202 states that a child of school age "is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition." The court held that *residence* means the district of the child's last permanent residence - i.e. where the child's parents live - and not the district where the temporary foster placement is located. (In a previous case, Catlin, the Court of Appeals held that it still goes by the parents' district even where the child is living with a family member in another district.) What about cases where the child's parents have passed away or their is no possibility of the child returning to them - should their residence still determine who is responsible for the child's education? Should there be a distinction between biological parents and adoptive parents? The court did not explicitly address these points. Ultimately, it granted the school district a declaratory judgment indicating that St. Basil, which was located in the Garrison school district, could enroll its children in the Garrison public schools for free.
Monday, March 12, 2012
The event is always informative and fun. For anyone who is interested, the next COPAA conference will take place next year in Albuquerque, New Mexico from March 7-10, 2013. To learn more about COPAA, you can visit http://www.copaa.org/.
- "Federal Litigation of IDEA Cases" co-presented by Alice Nelson and Jon Zimring (the latter of Georgia fame)
- "Attorneys' Impartial Due Process Hearing Training" hosted by Jennifer Laviano and friends
- A well-attended Thursday evening wine and cheese reception to get the weekend started
- "Bullying - Protecting Our Kids and Our Clients" presented by Josh Kershenbaum and Dave Frankel
- Key Note presentation by Tracy Thresher and Larry Bissonette, two men with autism and the stars of the acclaimed film Wretches & Jabberers
- "Case Law Review" with Judith Gran, recapping noteworthy special education cases around the country in 2011
- A general session about psychological assessments by Dr. Anne Simun
- "The Business of Special Education Law" by Barbara J. Ebenstein
- "New Regulations of the ADAA & Its Application to Educational Testing" presented by Matthew Dietz
Wednesday, March 7, 2012
The IHO ruled in favor of the school district, holding that it had provided FAPE to the child at issue. Parents appealed. The SRO states that whether the school district did or did not provide FAPE is irrelevant right now because the issue is moot. Why is it moot? Because the 2009-2010 school year is long over and the parents obtained everything they wanted through pendency (i.e. the school district was required to fund the child's private school placement during the course of this protracted litigation and, ultimately, it funded the entire 2009-2010 school year).
The parents got "everything" they wanted? Probably not, otherwise why would they be appealing. The parents were concerned about the effect of the IHO's decision to the extent that it could create a new pendency placement for the child - i.e. the program recommended by the school district would become the new pendency placement, and not the private school. It's an interesting procedural posture. Usually, an IHO decision would become final and binding on the parties if the IHO decision is unappealed. But what happens in a situation like this where the IHO decision is appealed but the SRO decides not to rule on the merits? Is a new pendency placement established?
To put it in more concrete terms, here's an example. Assume the parents continue the child at the private school for the 2012-2013 school year, and the parents file a due process claim on the first day of school - let's say September 8, 2012. By law, the school district would have to fund the child's last agreed upon placement. If the IHO decision is final and binding, that placement would presumably become a public school. Had the IHO ruled in favor of the parents (or had the SRO reversed the IHO), presumably it could have continued to be the private school...and the school district would have had to continue funding the private school until the 2012-2013 litigation concluded.
The SRO understood the implications of his decision. In fact, he cites to a federal decision (NYC Department of Education v. V.S.) which held that a particular SRO appeal "was not moot because the parties required resolution of the merits of their dispute to establish the student's pendency placement in future proceedings" - exactly the situation we have here. The SRO makes a U-turn and takes off in the completely opposite direction, stating that "this rationale regarding future pendency may be read so broadly as to apply to virtually any and all IDEA proceedings involving the educational placement or services to be provided to a student" and then rattles off a series of New York decisions and a 9th circuit one to support his decision to block the parents.
The SRO concluded with a statement that "the speed with which parties may obtain State-level pendency placement reviews on an interlocutory basis under New York's regulatory scheme strongly diminishes the need to establish future pendency placements for future school years. . . ." That statement, however, does not adequately account for the legal ramifications of refusing to rule on the merits of this case.
The parent's compensatory education claim stemmed from an April 2008 IEP meeting where the CSE terminated the child's services and found her ineligible for special education without having conducted formal testing to support those actions. A private psycho-ed evaluation obtained by the parents in August 2009 showed the need for supports. The parents sought make-up occupational therapy and tutoring sessions for 2008-2009 and 2009-2010 school years, since those services had not been provided. With respect to the 2008-2009 school year, the SRO agreed with the IHO that the CSE had improperly declassified the child for two reasons: (a) the district did not provide any evidence that the parent consented in writing to the termination of services, or that the district provided written notice before terminating the services; and (b) the district did not conduct any formal evaluations to determine that the child no longer required special education. With respect to the 2009-2010 school year, the SRO determined that FAPE was denied because the district improperly closed the child's case when the district failed to comply with its obligations under IDEA (i.e. notice of procedural safeguards, obtain consent to evaluate), and the March 2010 IEP was insufficient to address the child's needs. As a result, the SRO ordered the following relief: (1) affirmed the IHO's award of 400 hours of 1:1 multisensory tutoring (reminding the district that "placement decisions must be based on a student's unique needs as reflected in the IEP, rather than IEP's developed on the basis of services already available in the district"); (2) denied the parent's appeal for increased OT make-up hours, holding that the IHO's award was adequate; (3) annulled the IHO's award of additional assistive technology services recommended by the private AT evaluation; and (4) annulled the IHO's reimbursement award for transportation costs necessary to utilize the comp-ed services because of a lack of evidence to support it.
The statute of limitations issue is an interesting one. Generally, a complaining party has two years from the time that he/she knew or should have known of the information forming the basis of the complaint to bring an action. An exception exists for situations in which the school district interfered with the parent's ability to find out that information or follow the process. Here, the IHO determined and the SRO affirmed, that the parent was "prevented from timely requesting an impartial hearing on the basis that the district withheld from her the procedural safeguard notices it was required to provide, and that therefore the exception to the statute of limitation defense applies."
Regarding the independent educational evaluation (IEE), the SRO pointed out that, since no district evaluations were conducted, "the hearing record contains no indication that the parent disagreed with any district evaluation." However, the SRO, quoting OSEP, concluded that in some circumstances, such as these, "it would be consistent with federal regulation to allow reimbursement for an IEE when the district failed to provide an evaluation in compliance with the IDEA." Since the district did not evaluate the child prior to declassification, the SRO held that the parent was entitled to reimbursement for the cost of the private psycho-ed evaluation.