Special Education Case Law Update – February 4, 2013

Posted on February 20, 2013

 McCallion v. Mamaroneck Union Free School District, 2013 U.S. Dist. LEXIS 149930 (S.D.N.Y. Jan. 22, 2013) (identification of operative IEP)Parent brought this suit on behalf of her son, I.H. pursuant to the Individuals with Disabilities Education Act (IDEA) seeking review of a State Review Officer’s (SRO) decision in favor of Mamaroneck finding I.H. was offered a free appropriate public education (FAPE) for the 2008-09 school year.

I.H. began attending public school in the Mamaroneck district for the 2005-06 school year, several years after he was identified with a “serious learning disability.” For the 2005-06 year, he was referred to Mamaroneck’s Committee on Special Education (CSE). The CSE created an Individualized Education Program (IEP) at that time specifying various integrated and non-integrated classes. In June 2006, the CSE met again to develop an IEP for I.H.’s seventh grade year and this IEP additionally included biweekly group counseling sessions and refined academic goals. I.H.’s parent later testified that his seventh grade year was the best year I.H. ever had. Additionally, IEP’s for subsequent school years were developed which incorporated minor modifications on the first.

The IEP at issue in this case was the IEP drafted for I.H.’s ninth grade year. The drafting of this IEP began in May 2008 and the parent provided the CSE with testing done on I.H. at New York University (NYU) which made various conclusions regarding I.H.’s academic placements and accommodations. The May 2008 IEP indicated that the parent would visit Mamaroneck High School to determine whether the IEP’s recommended programs would, in her view, meet I.H.’s needs. With the parent having voiced concerns, Mamaroneck emailed the parent with several recommended accommodations based on the NYU conclusions. The parent ultimately decided that Mamaroneck could not provide I.H. with a adequate educational program and that I.H. needed one more year in a more structured and specialized program in order to thrive.  I.H. was then enrolled at the Gow School, a private boarding school. After the parent informed Mamaroneck that she was enrolling I.H. at Gow, the CSE nevertheless met in October 2008 to formalize a new IEP for I.H. The parent later initiated a due process proceeding seeking tuition reimbursement for Gow because Mamaroneck could not provide I.H. with a FAPE.

The impartial hearing officer agreed with the parent. As a threshold matter, the hearing officer determined that the IEP as developed in May 2008, and not the October 2008 IEP, was the operative document. The hearing office found that Mamaroneck had failed to properly weigh I.H.’s academic and emotional problems, particularly in light of the NYU report. The hearing officer additionally found that GOW was an appropriate placement for I.H., though due to the parent’s failure to provide notice to Mamaroneck that she would be seeking tuition reimbursement before unilaterally enrolling I.H. at Gow, the tuition award was reduced by 80%.

The District appealed the finding that it had failed to provide a FAPE and the parent cross-appealed the 80% reduction in the tuition reimbursement. The State Review Officer (SRO) reviewing the appeal found that Mamaroneck had offered I.H. a FAPE. Notably, the SRO found the operative document was the October 2008 IEP because it incorporated substantial modifications to the May 2008 IEP that were proposed to the parent before the start of the school year. Additionally, the SRO determined that the hearing officer gave improper weight to the NYU report because some conclusions in that report were based in inaccurate representations to NYU by the parent. The parent then filed this lawsuit appealing the determination of the SRO.

Noting that the Court was required to give substantial deference to state administrative bodies on matters of educational policy, the Court upheld the decision of the SRO. Agreeing with the reasoning of the SRO, the Court found the October 2008 IEP was the operative document because it incorporated recommendations, accommodations, and goals that were presented to the parent prior to her unilateral decision to enroll I.H. at Gow. The Court further noted that I.H. received passing marks and successfully progressed from grade to grade while in the Mamaroneck district and deferred to the SRO’s credibility determinations on witnesses who testified that I.H. made meaningful academic progress pursuant to past IEP’s. The Court held that to the extent the parent argued that Mamaroneck failed to offer I.H. a FAPE because I.H.’s academic performance drastically improved while he was at Gow, such evidence was improper for the Court’s consideration for this appeal. The Court found in favor of Mamaroneck and the parent’s appeal was dismissed.

K.K. v. Alta Loma School District, 2013 U.S. Dist. LEXIS 13781 (C.D. Cal. Jan. 29, 2013) (“some” versus “meaningful” educational benefit; hindsight rule)

Plaintiff student K.K. attended schools in the Alta Loma School District (ALSD) beginning with her kindergarten year. In second grade, K.K. began to struggle academically and her parents and ALDS agreed to have her assessed to see if she qualified for special education services. K.K. scored below average in almost all areas, though her listening comprehension score was substantially higher than her other scores. In January 2010, ALSD convened an Individualized Education Program (IEP) meeting to determine whether K.K. needed special education services. The meeting determined that K.K needed services due to speech and language impairment, and a variety of services were incorporated into a proposed IEP.

K.K.’s parents agreed to the IEP, but also requested that ALSD fund an independent educational evaluation (IEE). The IEE, which used a different testing methodology from that used by ALSD, determined that K.K had a processing disorder in the areas of visual and spatial processing and auditory conceptualization, with mild to moderate brain dysfunction caused by birth trauma. Among other things, the IEE recommended the Lindamood-Bell method for K.K.’s language arts challenges. The psychologist conducting the IEE admitted he was not familiar with the special education methodology used by ALSD. In August 2010, ALSD convened an IEP meeting to review the IEE. IEP members expressed concern about K.K.’s enrollment in off-site Lindamood-Bell classes because that would entail K.K . missing core curriculum at school. Nevertheless, the IEP members scheduled a follow-up meeting so that the members had time to review the IEE assessment. At the subsequent meeting ,the IEP was modified to increase the amount of time K.K. spent in the special education resource room, however ALSD refused to fund the Lindamood-Bell services because K.K. was making progress in ALSD programs. K.K parents decided to remove her from ALSD for 3 hours every morning for the Lindamood-Bell program, and later withdrew their consent for the IEP. After 189 hours of Lindamood-Bell instruction, that program conducted another evaluation of K.K and determined that K.K showed some improvement. However, another 120-160 hours of Lindamood-Bell instruction was recommended. Afterwards, both parents and ALSD requested a due process hearing to determine the procedural and substantive adequacy of K.K.’s IEPs. An Administrative Law Judge (ALJ) found that ALSD had provided K.K. a free appropriate public education.

“Some” versus “meaningful” educational benefit.

K.K.’s parents first contend that the ALJ applied the incorrect legal standard in her decision and considered whether the IEP offered “some educational benefit” to K.K. The parents argue that the correct standard in the Ninth Circuit (of which California is a part) is that an IEP must offer a student a “meaningful educational benefit” and the Court agreed. The “meaningful” standard requires a Court to determine the adequacy of the educational benefit in relation to the potential of the child at issue, determine whether the program is individualized and tailored to the unique needs of the child, and that the program is reasonably calculated to produce benefits that are significantly more than de minimus. However, a school is not required to provide special education that maximizes the potential of a child.

While the Court agreed that the ALJ applied an incorrect standard, this did not lead to an incorrect result. The ALJ’s decision was supported by evidence in the record that showed placement and services sufficient to meet K.K.’s needs. Specifically, the ALJ noted the Voyager Passport intervention program in use by ALSD had been found to be particularly effective for struggling readers. Additionally, none of the parents’ witnesses credibly testified that ALSD’s program was not appropriate for K.K.’s needs. While some witnesses testified that the Lindamood-Bell services would be the best fit for K.K., there was no testimony that ALSD’s services would fail to provide an educational benefit to K.K.

The “hindsight rule.”

K.K.’s parents additionally alleged that the ALJ’s decision ignored evidence that K.K. failed to make meaningful progress under the early IEP’s developed by ALSD. The “hindsight rule,” as applied to IEP’s, requires that a Court consider evidence of subsequent events only in conjunction with what appeared objectively reasonable to school administrators at the time an IEP was developed. Turning to the parents’ evidence, the Court disagreed that K.K made only de minimus progress with her earlier IEPs. Testimony showed that K.K. was meeting many of her grade level standards and making progress in fluency and reading comprehension. Further, any evidence with regard to K.K.’s progress under the Lindamood-Bell method was not weighed by the ALJ because the person who administered the progress tests could not be identified. Additionally, though K.K. showed a decrease on certain reading tests, the Court noted those tests were normed to K.K. age and at best merely showed that K.K. was progressing more slowly than her peers.

Finally, the Court rejected the parents’ argument that ALSD failed to implement the IEP that was actually offered. The parents pointed to resource room logs showing K.K. received between ten to ninety minutes of instruction in the resource room each day and not the thirty minutes per day specified in the IEP. The Court held, however, that perfect adherence to the IEP was not required, and that there was no material failure to implement K.K.’s services. The Court found for ALSD and against the K.K. and her parents on all claims.

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