Special Education Case Law Update – February 18, 2013
G.G. v. District of Columbia, 2013 U.S. Dist. LEXIS 22885 (D.D.C. Feb. 20, 2013 (120-day evaluation period)
At the time of this matter, G.G. was a third-grade student diagnosed with Asperger syndrome, severe anxiety, and other issus that qualified him for special education. His parents grew increasingly concerned when in preschool they noticed that G.G. was inflexible and had developed social problems with anger and frustration. G.G. was enrolled in District schools through second grade, though by that year his anxiety had become disabling. In March 2011, G.G. underwent a neuropsychological evaluation after which he was diagnosed with Aspergers.
After the evaluation, G.G.’s parents began researching programs that addressed the condition and discovered the Model Asperger Program at Ivymount, a private school in Maryland. In June 2011, the parents sent a letter to the Principal at G.G.’s District school requesting a meeting to develop an Individualized Education Program (IEP) . During the ensuing meeting, the Principal emphasized the benefits of Section 504 plans. Though the parents agreed to consider a Section 504 plan, the next day they emailed the Principal again requesting that the District continue with the IEP process. There was no followup from the District.
In August 2011, the mother emailed the Principal, informing him that G.G. had been accepted to Ivymount and that she intended to enroll G.G. there during the fall of 2011 at public expense. The mother additionally repeated her intention for the District to continue the IEP process. The Principal responded that G.G. would have to be enrolled in his neighborhood school before the IEP could proceed. After several mistarts regarding the correct forms, G.G. was enrolled in District but heard nothing regarding the scheduling or development of an IEP.
Thereafter, G.G. was enrolled at Ivymount in August 2011 and the parents filed a due process complaint alleging that the District had denied G.G. a free appropriate public education (FAPE) by failing to timely evaluate him. The hearing officer found that the District had violated the Individuals with Disabilities Act (IDEA) by failing to make a timely evaluation of G.G. He concluded, however, that because the deadline for creating an IEP and proposing an appropriate program had not passed at the time of the filing of the due process complaint, the District had not denied G.G. FAPE at the time of the complaint. Further, the hearing officer held that Ivymount was not an appropriate placement because it was not the least restrictive environment. The parents filed this action appealing the hearing officer’s decision and contended that G.G. was not timely evaluated, did not receive a timely eligibility determination, and was denied a FAPE.
In federal court, neither party contested the hearing officer’s finding that the District violated the IDEA by failing to timely evaluate G.G. The court noted that the hearing officer determined that G.G. was referred to the District for assessment on June 13, 2011, the date of the parent’s letter to the Principal. The 120-day period in which the District was required to evaluate G.G. and make an eligibility determination began to run at that time through and expired on October 11, 2011. The hearing officer held, however, that while the District failed to evaluate the G.G. within the 120 day period, this did not amount to a denial of a FAPE because had the District had an additional 30-days, or until November 11, in which to develop the IEP. The parents were therefore premature in filing their due process complaint on October 27.
The court disagreed, holding that the failure to locate and evaluate a potentially disabled child, by itself, constitutes the denial of a FAPE. The District never contended that an IEP was ever in process of being completed before or after the November deadline. With no evaluation having taken place and no IEP having begun by the time of the due process complaint, the court held that it would have been futile for the parents to wait until November 11 because no IEP was going to be begun or completed in that time frame – in fact by the time of the due process hearing in December there had still been no evaluation of G.G. Having therefore failed to offer G.G. a FAPE and failing to articulate an adequate alternate placement within the District, the court held that the parents were to be reimbursed from the date that the eligibility determination should have been made until such time as G.G. is provided with an appropriate placement by the District. That is, the District was ordered to reimburse G.G.’s parents from October 11 through the time that G.G. IEP was, or will be, completed.
The court declined to order that G.G. be placed at Ivymount, noting that the hearings officer’s decision ordered the District to convene an IEP meeting within 10 days, and the court felt that it was likely an IEP had been developed. On this background, the court ruled that the IEP team should address G.G.’s prospective placement, and to the extent that the parents might be dissatisfied with the District’s proposed placement, they must bring a new and separate action to address that issue.
S.S. v. State of Hawaii, Dep’t of Education, 2013 U.S. Dist. LEXIS 21232 (D. Haw. Feb., 13 2013) (statute of limitations for tuition reimbursement; issues identified for the hearing officer)
S.S. was a high school student eligible for special education under the Individuals with Disabilities Education Act (IDEA). This eligibility is not in dispute in this case, however, after S.S. had attended a private school at state expenses for the 2009-10 school year, her Individualized Education Program (IEP) was modified to place S.S. in public school. Though S.S.’s mother requested that S.S. remain in private school, the Department of Education (DOE) refused this request, stating that S.S.’s need could be met at her home school in a less restrictive setting.
Though the DOE prepared for S.S.’s arrival at her home school for the 2010-11 school year, when S.S. did not show up for school, the DOE made several efforts inviting her to contact the principal of her home school to receive special education services. S.S. did not respond to thoses letters. S.S.’s mother stated that she understood the letters to require that she remove S.S. from private school and enroll her in S.S.’s home school, without having an IEP, to give her the services that she needed. In August 2011, S.S. requested a due process hearing asserting that: (1) S.S. should enjoy the protection of the ‘stay put’ provisions of the Individuals with Disabilties Education Act (IDEA) ; (2) that S.S. was denied her rights when the DOE offered S.S. a free appropriate pubic education (FAPE) on the condition that she receive it at a public school; and (3) that if the DOE held an IEP meeting, they did so without the participation of S.S.’s parents.
The hearing officer at the due process hearing ruled that S.S. had been denied a FAPE for the 2011-12 school year because her IEP had expired in May 2011, and prior to the 2011-12 school year, S.S. had received no further offers of a FAPE. Nevertheless, the hearing officer denied S.S.’s request for tuition for the 2011-12 school year because the due process complaint was not filed within 180 days of S.S’s parents’ unilateral placement decision as required by Hawaii statute. The sole issue on appeal to the federal court was whether the hearing officer’s conclusion that the parents were barred from obtaining tuition reimburse due to the statute of limitations was in error.
While noting that under Hawaii law a parent seeking tuition reimbursement must make a due process complaint within 180 of a unilateral placement by the parent, the court found that the timeliness of the IEP was not a matter included in the hearing request for the hearing officer to decide. Even if the issue were before the hearing officer, the court in dicta determined that the hearing officer erred in interpreting the statute which requires a parent to request a hearing “within one hundred and eighty calendar days of a unilateral special education placement, where the request is for reimbursement of the costs of the placement.” The court held the word placement in each subsection of the section referred to the same placement – therefore, with the parent seeking only reimbursement for the 2011-12 school year, the “unilateral special education placement” at issue must also concern the placement for the 2011-12 school year. Because the request for the hearing was submitted on August 26, 2011, which was not more than 180 days from any placement of S.S. for the 2011-12 school year, the request was not untimely.
However, the court found that the issue whether the DOE denied S.S. a FAPE for the 2011-12 school year was not raised in the parent’s request for a due process hearing and was therefore not properly before the hearing officer. The court reversed this portion of the hearing officer’s decision.
Along those lines, the court found that the hearing office had not determined an issue properly before him on the issue of whether the DOE offered to provide S.S. a FAPE only on the condition that she receive the FAPE in a public school. The court remanded this issue for further determination by the hearing officer.
Sam K. v. Dep’t of Education, Hawaii, 2013 U.S. Dist. LEXIS 21168 (D. Haw. Feb., 13 2013) (distinquishing unilateral and bilateral placements; cross-appeal not required)
Sam K. is a 17-year-old special education student with anxiety, depression, language issues, speech issues, and social issues. He attended private Loveland Academy from 2003 through the time of this lawsuit. Sam’s parents brought a previous lawsuit the outcome of which required the Department of Education (DOE) to reimburse Sam’s parents for the Loveland Academy tuition. Despite this ruling, the DOE failed to pay as ordered. Afterwards, the parents and the DOE reached a settlement agreement to resolve this issue as well as the DOE’s failure to provide Sam with free appropriate public education (FAPE) between 2007 to 2010.
In March 2010, the DOE contacted the parents to arrange an Individualized Education Program (IEP) meeting. Sometime in August 2010, the DOE began to consider a placement at the Windward Intensive Learning Center (ILC). The parents did not have a chance to examine ILC or express objections before the DOE presented the parents with a completed IEP identifying ILC as Sam’s placement. Testimony showed that the ILC is a facility for special education facility for students with behavioral and emotional issues often attended by students referred from juvenile court.
The parents disputed the finality of the IEP and in October 2011, filed a due process complaint alleging that the DOE failed to provide an appropriate IEP. An Administrative Hearing Officer (AHO) largely agreed with the parents, finding that (1) the DOE predetermined Sam’s placement; (2) the DOE’s proposed placement failed to provide an educational placement that met Sam’s needs; and (3) Loveland was an appropriate placement. However, the AHO declined to grant the parents the requested tuition reimbursement finding that 180-day statute of limitations in Hawaii for a unilateral placement barred the reimbursement claim. Parents appealed the reimbursement determination.
The court reversed the AHO regarding the reimbursement, finding that Hawaii statute imposed a 180-day limitation on unilateral placements, but not bilateral placements. The court reasoned that the replacement was bilateral because the favorable administrative ruling for the parents renders a placement bilateral, as it represented an agreement between the State and the parents. Therefore, because the AHO determined both that the DOE had denied Sam a FAPE and that the Loveland placement was appropriate, the placement was bilateral and the 180-day limitations period did not apply. The parents’ claim for reimbursement was timely.
Additionally at issue was whether the DOE could challenge the AHO’s placement conclusion without a cross-appeal. The court determined that in these circumstances the DOE could challenge that ruling because the DOE contested the AHO’s findings in order to defend the judgment that the parents were not entitled to reimbursement. Given that if the court decided the placement issue in the DOE’s favor – thus not enlarging the rights of the DOE because of the denial of reimbursement below, the DOE’s challenge was allowed.
Though the DOE argued that the ILC placement would have offered Sam a “basic floor of opportunity,” the court disagreed. Sam’s primary disorders were not behavioral, but were rather with anxiety, depression, and speech and language problems. The court agreed with the AHO’s findings that ILC focused more on behavioral issues rather than Sam’s unique needs. Moreover, the court noted that the turnover and clientele at ILC made for a tumultuous proposed placement ill fitted to Sam’s unique need for a stable environment. Because the ILC placement proposed by the DOE was likely to cause Sam to regress, the court held that Sam was denied a “basic floor of opportunity.”
The court likewise found that the DOE had predetermined Sam’s proposed placement at ILC. Evidence showed that the program director for the proposed placement was the only director from a potential placement to attend IEP meetings. Further, a handwritten note written months before the final IEP supported the conclusion that the DOE had already chosen the public placement without the parents’ input.
In arguing that Loveland was not an appropriate placement, the DOE pointed to the fact that Loveland could not help Sam earn a high school diploma. The court found that whether a diploma was available was not the litmus test for an appropriate placement, but rather the test was if Sam received an actual educational benefit. The court looked to Sam’s progress at Loveland as well as the curriculum and support for Sam’s past educational failures due to auditory processing and memory deficits, and found Loveland appropriate.
Finally, after having earlier reversed the AHO on the limitations issue, the court found that the equities favored reimbursement to the parents. The court noted the DOE had sufficient notice that Sam would be continuing his enrollment at Loveland, that DOE had predetermined placement, and that the parents acted reasonably in securing private placement to ensure that Sam progressed. The court awarded tuition reimbursement subject to the parents’ submittal of bills and invoices showing the reasonableness of the amount sought.
G.B.L. v. Bellevue School District, 2013 U.S. Dist. LEXIS 21490 (W.D. Wash. Feb. 15, 2013) (educational failure alone insufficient to show denial of a FAPE; exhaustion)
In the view of the court, the Plaintiffs’ main contention in this case was that the student was failing in his education program and therefore the District had necessary denied the student a FAPE. The court determined, however, that it must evaluate the reasons behind the lack of success,to determine if G.B.L. had been denied a free appropriate public education (FAPE), as the fact of educational failure alone was insufficient evidence to show denial of a FAPE.
G.B.L. attended school in the District during the 2010-11 school year. Prior to that year, G.B.L. had been diagnosed with ADHD and sensoineural hearing loss, which qualified him for special education services. For the 2010-11 year, G.B.L. was accepted into the District’s PRISM program, a track for gifted students, and during the summer of 2010, G.B.L.’s IEP team met to create a new IEP to go into effect at the time G.B.L. began the PRISM program. The resulting IEP contained numerous accommodations, modifications, services and goals. Although G.B.L. started the school year well, his grades and mood quickly declined. The parents and District were unsuccessul in resolving the underlying IEP and placement issues which led to a due process hearing.
The parents challenged the implementation of the IEP, first arguing that the goals identified in the IEP were not implemented. The court found that though G.B.L.’s daily progress report did not fully use the measurements for each goal as specified in the goal attachment to the IEP, this did not rise to the level of a material failure to implement the IEP. The failure to implement every measurement was a minor discrepancy between the services provided by the District and the services required in the IEP that did not deny G.B.L. a FAPE. The parents’ second challenge asserted that the District failed to consult with an outside speech language pathologist as required by the IEP, however, the court declined to consider this argument as the parents did not raise the issue in their administrative due process complaint, and thus did not exhaust their administrative remedies on the issue. The parents’ third argument involved the effectiveness of the para-educator support that G.B.L. was to receive. Though there was testimony at the due process hearing that the para-educators’ skills ranged from adequate to very good, the court found that these alleged inconsistencies did not deny G.B.L. a FAPE. Finally, although the parents believed that an assistive technology evaluation was to be conducted, the court found there was no such evaluation referenced in the IEP and the District had timely responded to the parents request for an evaluation. In any event, because the IEP did not state a requirement for an evaluation, the failure to provide one was not a failure to implement the IEP.
Additionally, though the parents alleged that the District failed to allow them full participate in G.B.L.’s education, the federal court disagreed. The court found the parents had participated in and were very involved with multiple IEP meetings, that the parents separately had individuals meetings with each of G.B.L.’s teachers in the Fall of 2010, and that the District promptly respnded to various records requests by the parents. The parents thus failed to meet their burden of showing that the District denied them full participation.
The parents additionally, for the first time, raised claims under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The court found that the Individuals with Disabilities Education Act (IDEA) (the statute under which the IEP claims were asserted) does not preclude parents from seeking other relief. However, the parents must still exhaust their administrative remedies for any relief sought by other claims that is also available under the IDEA. Thus, there are three situations where exhaustion is required: (1) when the parents seeks an IDEA remedy or its functional equivalent; (2) when a parent seeks prospective injunctive relief to alter an IEP or the educational placement of a child; and (3) when a parent is seeking to enforce rights that arise as a result of a denial of a FAPE, whether pled as an IDEA claim or another claim that relies on the denial of a FAPE to provide the basis for the cause of action.
The court found that each of the three situations above applied to this case. The parents sought reimbursement of private school tuition, provision of speech and language therapy, and the creation of a new IEP, all of which were available under the IDEA. Second, the parents were requesting injunctive relief to alter the existing IEP by requesting that the court order specific services and placement parameters. Finally, the denial of a FAPE was the basis for the parents claims under the IDEA, ADA, and Section 504. Because all these situations applied (though only one by itself would bar the ADA and 504 claims), the court held the parents were required to exhaust their administrative remedies and that they had failed to do so. All of the parents’ claims were dismissed.
L.B. v. New York City Dep’t of Education, 2013 U.S. Dist. LEXIS 20221 (S.D.N.Y. Feb. 14, 2013) (failure to perform FBA or BIP, nor failure to include parent counseling in IEP not per se denial of FAPE)
L.B. was a nine-year-old student classified with autism. Since his kindergarten year beginning Fall 2008, L.B. has been enrolled at the Rebecca School, a private therapeutic educational school. In February of 2010, a Committee on Special Education (CSE) meeting was held to formulate L.B.’s IEP for the 2010-11 school year. Principally at issue in this case are the documents that the CSE consulted in formulating the resulting IEP. The parents argue that the CSE failed to consider a 2009 psychoeducational update. Additionally, the parents argued that the Districts failure to develop a behavioral intervention plan (BIP), or a functional behavioral assessment (FBA) is denial of a free appropriate public education (FAPE). After filing a due process complaint, the parents received a favorable decision from an impartial hearing officer (IHO) who determined that the CSE had not considered sufficient evaluative material on which to base the IEP (in particular the 2009 update), that the CSE had not conducted a BIP and FBA, and that the IEP improperly failed to provide for parent training and counseling. The IHO additionally held that the parents’ unilateral placement at the Rebecca School for the 2010-11 school year was appropriate.
On appeal to a state review officer (SRO), the District argued that it had based the IEP on sufficient data (including the 2009 update), the absence of a BIP and FBA did not result in the denial of a FAPE, and that the IEP’s failure to provide for parent counseling did not rise to the level of denial of a FAPE. In what the federal court found to be a well-reasoned decision, the SRO overturned the IHO and determined that the District had offered L.B. a FAPE as to all issues. The parents then filed this appeal in federal court.
Deferring to the SRO’s decision, the court agreed with the SRO on the issued identified above. With regard to consideration of the evaluative data, the court deferred to the SRO’s credibility determination of a District CSE member testifying that she “must have” considered the 2009 update. In any event, the Court held that the IDEA does not require that the CSE team consider every single item of data available, and that the parents had not identified any facts or reasoning in the update that were not additionally reflected in the other substantive materials considered by the CSE.
Regarding the failure to conduct a BIP or a FBA, the Court found that the CSE was familiar with L.B.’s behavioral needs and took these into account in formulating the IEP. While the failure to conduct an FBA can be a procedural violation of the IDEA, such a violation does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it. In this case the IEP did so. The Court additionally applied the same logic to the lack of prescribed parent counseling in the IEP, finding that the SRO reasonably determined that despite a lack of express IEP provisions to the contrary, L.B.s parents would have received such services and L.B. was thus not denied a FAPE.
However, the Court determined that the SRO had incorrectly excluded challenges brought by the parents but that were not addressed by the IHO because the IHO was not required to reach those issues. The Court rejected the District’s argument that the parents had waived the issues by not cross-appealing the issues to the SRO. The Court agreed with the parents that they were not required to cross-appeal on the issues because they were not “aggrieved” by the IHO’s decision given that the IHO ruled in the parents’ favor in deciding that the District had denied L.B. a FAPE. That the IHO did not reach the issues did not harm the parents in light of their overall success and was merely a “failure to help.” This did not prevent the additionally issues from being preserved for appeal to the SRO. Because these issues were not considered by the SRO, the federal Court found that it was ill-equipped to consider these various educational issues in the first instance. The Court therefore remanded the case to the SRO to consider these unaddressed challenges while entering judgment for the District on the three claims discussed specifically above.