Special Education Case Law Update – April 22, 2013

Posted on May 1, 2013

I.S. v. West Lake Special Education Cooperative, 2013 U.S. Dist LEXIS 54208 (N.D. Ind., April 16, 2013) (compelling Rule 35 evaluation of student)

Student I.S. had received special education services from the District for six years, however in October 2010, his parents filed a due process complaint against the District. An Independent Hearing Officer (IHO) ruled against I.S., and afterwards, his parents moved I.S. to Hyde Park, a private school focuing on the needs of students with learning disabilities. In this lawsuit, parents seek judicial review of the IHO’s decision and, among other things, seek reimbursement from the District for tuition and expenses associated with the placement of I.S. at Hyde Park.

With regard to this particular order issued by the Court, the District argued that the parents had placed I.S.’s current academic capabilities at issue by submitting performance assessment tests conducted by Hyde Park into the administrative record. As such, and pursuant to Federal Rule of Civil Procedure 35, the District sought to compel I.S. to submit to the District’s own educational evaluation. The parents opposed this request, and before a court may order a Rule 35 exam, the party requesting the exam must show both that the mental or physical condition of the examinee is actually in controversy and that there is good cause for the examination.

The additional assessments submitted by the parents consisted of (1) documents showing I.S.’s improved performance on assessment tests administered by Hyde Park; and (2) an affidavit from Hyde Park’s principal describing I.S.’s curriculum at Hyde Park and describing I.S.’s academic progress. The District argued that the parent’s placed I.S.’s current academic capabilities at issue and the District sought to compel its own evaluation to rebut the additional evidence. The Court agreed that the admission of the additional evidence placed I.S.’s academic capabilities in controversy because I.S.’s parents are entitled to reimbursement only if Hyde Park were found to be an appropriate placement.  I.S.’s progress at Hyde Park directly addressed this key issue.

Additionally, the Court found that the District demonstrated good cause for the evaluation. The District argued that in order to mount a defense, it needed to gather its own evidence regarding I.S.’s current academic capabilities that could be compared with I.S.’s capabilities prior to his attendance at Hype park. Because Hyde Park did not use standardized assessments, the Court found that the District was entitled to new assessments that were capable of comparison with previously completed assessments. Though the Court noted that any Rule 35 evaluation will impose some burden on the examinee, in this case it found those burdens outweighed by the District’s interest in being able to adequately address whether I.S. had made academic progress since enrolling at Hyde Park.

The Court approved the District’s request for a Rule 35 evaluation, but denied its request for costs in filing its motion.

D.L. et al. v. District of Columbia, 2013 U.S. App. LEXIS 7375 (D.D.C. April 12, 2013) (decertifying class action against District of Columbia)

In this appellate opinion, the District of Columbia (“District”) appeals a structural injunction issued by the lower district court. The District additional appeals the lower court’s certification of a class action suit challenging the policies of the District’s “child find” system under the Individuals with Disabilities Education Act (IDEA).

In July 2005, six named plaintiffs, on behalf of themselves and others, sued the District alleging that the District’s policy and practices resulted in systemic failures to identify, locate, evaluate, and offer special education and related services to disabled pre-school age children. The named plaintiffs requested certification of a class action in addition to an order enjoining the District to provide compensatory education to the plaintiffs. In August 2006, the lower district court certified the class. Additionally, the court enjoined the District from further violations of the IDEA and issued a structural injunction ordering the District to comply with various programatic requirements and numerical goals that were to remain in effect until the District demonstrated sustained IDEA compliance.

While the case continued in the lower court, in July 2011, the U.S. Supreme Court issued its decision in Walmart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) clarifying the requirements of class certification under the federal rules of civil procedure. Relying on Walmart, the District appealed seeking to decertify the class.

The Court of Appeals held that after Walmart, it was clear that defining the class by sole reference to the District’s pattern and practices was too broad a measure by which to define the plaintiff class because it simply constitutes an allegation that the class members have suffered a violation of the same provision of law. Along that line, the Court noted that the harms alleged to have been suffered by the plaintiffs here involved different policies and practices at different stages of the District’s “child find” obligations – the district court did not identify any specific single or uniform policy or practice that bridged all the claims. For example, for some plaintiffs the harm suffered was due to an allegedly ineffective intake process, while others alleged failure to offer adequate and timely educational placements. To certify a class pursuant to Walmart, there must be at least one single ruling, or declaratory judgment, if entered by the court, that would provide relief to each member of the class.

The plaintiffs responded by seeking to add subclasses, and the Court of Appeals remanded to the district court to determine whether the proposed subclasses would meet the requirements of federal rule and Walmart. The Court of Appeals additionally vacated the structural injunction so that liability and any appropriate relief could be determine by the district court after consideration of the subclasses.

Petersen et al. v. Mt. Diablo Unified School District, 2013 U.S. Dist. LEXIS 54038 (N.D. Cal. April 15, 2013) (dismissing RICO claim for failure to state a claim)

Plaintiffs in this lawsuit are two brothers suing the Mt. Diablo Unified School District (MDUSD). Plaintiff Michael was diagnosed with autism and severe sensory integration disorder. Plaintiff Ryan is hearing impaired. The mother brought this suit pro se (without an attorney) on the brothers’ behalf alleging that the brothers did not receive special education accommodations while attending MDUSD schools. These Plaintiffs had previously brought suit against MDUSD in 2002, 2004, 2005, and 2007.

MDUSD moved to dismiss this lawsuit for failure to state a claim. Finding and that most of the claims were barred by res judicata, did not state a cause of action, and “incomprehensible,” the Court granted the motion. However, the brothers were given leave to amend their single Racketeering Influenced and Corrupt Organizations (“RICO”) claim.

The brothers amended the RICO claim, and added alleged violations of Section 504 of the Rehabilitation Act, and various U.S. Constitutional and state law claims. On review of the RICO claims, the Court held that the brothers continued to fail to allege a required element of a RICO claim – direct financial injury. Disposing of the brothers’ claim that they didn’t have sufficient time to amend because of delays in receiving the Court’s order on the MDUSD motion, the Court granted MDUSD’s motion to dismiss and denied the brothers any further leave to amend.

On the issue of the alleged violations of Section 504 of the Rehabilitation Act, and various U.S. Constitutional and state law claims first raised in the amended complaint, the Court found these outside of the scope of the leave to amend first granted.  Court additionally found these claims barred by res judicata as arising out of the same nucleus of facts alleged in the previous four lawsuits. All claims were dismissed, without leave to amend.

A. v. Hartford Board of Education and New Britain Board of Education, 2013 U.S. Dist. LEXIS 54323 (D. Conn. April 1, 2013) (amended complaint timely)

Plaintiff “A” received special education services under the disability category of autism. During the time relvant to the case, he was enrolled at Classical Magnet School outside of his home district of New Britain. Classical Magnet School is in the Hartford District, and the parties agree that Hartford and New Britain were jointly responsible for providing “A” with a free appropriate public education (FAPE).

“A”s parents challenged both Districts for failure to provide a FAPE and were successful after a 13-day due process hearing. The parents then initiated this action seeking an award of attorneys fees and costs for the due process hearing. The complaint for fees was amended twice, and the second amendment added a contest to the hearing officer’s determination that there was insufficient evidence that “A” would benefit from an in-home program coordinated by a behavioral analyst. New Britain now moves to dismiss this challenge on the grounds that it was untimely filed.

Under federal regulations, a party is generally allowed 90 days from a due process decision to appeal. However, in Connecticut, state law requires appeals be taken with 45 days. The Court denied New Britain’s motion because the parents filed their Motion seeking leave of the court  to amend the complaint 44 days after the administrative decision. Without leave of the Court, the parents could not have filed the Second Amended Complaint and the Court noted that the parents had no control over when the Court would address or approve the Motion to amend. The Court held that for purposes of the statute of limitations, because the Motion to Amend was timely filed, the Second Amended Complaint was deemed timely, even though the Second Amended Complaint was not actually filed until after the Court’s grant on the Motion, which occurred outside of the statute of limitations.

T.L. v. The New York City Department of Education, 2013 U.S. Dist. LEXIS 53090 (E.D.N.Y. Apr. 12, 2013) (remand to consider whether public placement appropriate in light of student’s severe PICA; site visit of school by the Court).

T.L. is a student diagnosed with Autism Spectrum Disorder, major delays in speech, language, and cognitive functions, and suffers from severe PICA, a neurological disorder that causes her to frequently grab inedible objects and place them in her mouth. From 1999 through June 2009, T.L. attended public schools in a 6:1:1 classroom ratio (students:teacher:paraprofessional). The Department of Education (DOE) concedes that by 2009, T.L. was not progressing in this placement.

In May, 2011, a Committee on Special Education (CSE) was convened to draft an IEP for T.L. The outcome of that and subsequent meetings was that the DOE offered T.L. a year-round placement at the Kennedy School, a specialized public school for children with autism and other special needs. The parents notified the DOE that they thought the placement was inappropriate and intended to re-enroll T.L. at the private Rebecca School, where T.L. had been since 2009. Her parents then filed an administrative complaint seeking tuition reimbursement.  An impartial hearing officer (IHO) largely agreed with the parents that the Kennedy School did not provide an appropriate educational environment. The DOE appealed to a state review officer (SRO) who reversed the IHO’s decision. The SRO found that the because the adequacy of the IEP was not challenged in the administrative complaint, that those claims must be reversed, and that the SRO’s review be confined only to the implementation of IEP. Regarding the parents concerns for the Kennedy School placement, the SRO found those concerns unsupported by the evidence and that the school “provided a supportive and structured environment.” The parents appealed the SRO’s decision to federal court in this action.

Notably, the judge in this case conducted a site visit to both the Kennedy School and Rebecca School to understand the nature of the facilities described in the administrative record. After a lengthy discussion of federal review of IDEA claims, the Court came to the conclusion that despite the known severity of T.L.’s PICA, the administrative record was unacceptably sparse in details about how the Kennedy School placement would provide a supportive educational environment. While the Court noted that the SRO’s decision discussed educational techniques, it lacked discussion of the physical environment and held that the SRO’s conclusion that the Kennedy School “provided a supportive and structured environment” was not supported by evidence.  Fidning that the physical environment of the school and its facilities can have a dramatic impact on T.L.’s PICA challenges, the Court remanded the case to the SRO to consider these needs.

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