Special Education Case Law Update – Week of December 2, 2012
S.D. v. Joshua P. Starr, 2012 U.S. Dist. LEXIS 170294 (D. Md. Nov. 30, 2012)
On behalf of S.D., his parents brought this case against Joshua Starr in his official capacity as superintendent of the Montgomery County Public Schools (MCPS) alleging violations of the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400., et seq. The parents had participated in a due process hearing under the IDEA claiming MCPS had failed to provide S.D. a free appropriate public education (FAPE) as required by the IDEA, and MCPS should therefore place and fund S.D. at the Katherine Thomas School for the 2011-12 school year. Katherine Thomas is a private school certified by the state for special education placements. At the conclusion of the due process hearing, a state administrative law judge (ALJ) determined that MCPS had provided a FAPE to S.D. and MCPS had no obligation to pay for S.D.’s tuition at Katherine Thomas. The parents filed this civil action in federal court seeking reversal of the ALJ’s decision.
S.D. was born prematurely and suffered from multiple health impairments, including a susceptibility to contracting viruses and infections. MCPS found S.D. eligible to receive services under the IDEA, and for the 2009-10 school year S.D.’s parents and MCPS agreed that S.D. would attend classes at Little Bennett Elementary. However, in November 2009 S.D. was withdrawn by his parents from Little Bennett due to a “respiratory flare-up.” He received educational services at home after that time. For the 2011-12 school year, through an individualized education plan (IEP), MCPS proposed full-time enrollment at Little Bennett, and the parents thereafter filed a due process hearing request to have S.D. placed at Katherine Thomas and for reimbursement for this placement from MCPS. After a hearing, the ALJ denied the reimbursement.
Pursuant to the IDEA, a school provides a FAPE when a student’s IEP provides access to an educational program that confers some educational benefit to the student in the least restrictive environment. The least restrictive environment is one that places students with and without disabilities into the same classroom to the maximum extent appropriate. However, in those cases where a general education environment may not be appropriate due to the nature or severity of a child’s disabilities, a FAPE may require placement of the child into a private school with full funding by the public school district. A school district is not required to pay for tuition at a private school if it has satisfied its obligation to provide a FAPE to the child. Nevertheless, parents may recover the cost of private education if the proposed IEP is inadequate in its provision of a FAPE and the private educational services obtained by the parent are appropriate based on the child’s needs.
In reviewing the particular facts of this case, the federal Court noted that the ALJ weighed the testimony of S.D.’s mother, the expert retained on S.D.’s behalf along with all the expert witnesses in special education, nursing, and related therapy services presented by MCPS. The Court noted that many of the MCPS witnesses had worked with and had observed S.D. both at home and at Little Bennett, and testimony showed that MCPS was easily able to manage S.D.’s health issues when he attended Little Bennett. In contrast, the Court noted that the parents’ sole expert witness had never observed S.D. in a classroom setting. In sum, the federal Court found that the ALJ followed standard methods of legal analysis and there was sufficient factual evidence in the record to support the ALJs conclusion that MCPS did provide a FAPE to S.D. Having decided that MCPS offered a FAPE, the Court found it unnecessary to reach the issue of whether Katherine Thomas was an appropriate private placement. The parents’ request for tuition reimbursement was denied.
N.F. v. New York City Dep’t of Education, 2012 U.S. Dist LEXIS 170637 (S.D.N.Y. Nov. 27, 2012)
N.F.’s parents sought judicial review of a State Review Officer’s (SRO) denial of tuition reimbursement for the 2010-11 school year. N.F. is a student with speech and language impediments and his eligibility under the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400., et seq. was not in dispute in this case. N.F. received special education services at home until age 3, at which point he began attending a special education pre-school during the 2008-09 school year. With the approval of a Committee on Special Education (CSE), N.F. was placed at Aaron School for the 2009-10 school year and the parents were reimbursed for N.F.’s tuition for that year. Progress reports indicated progression for N.F. at the Aaron School during 2009-10.
For the 2010-11 school year, N.F.’s parents re-enrolled him at Aaron School and made an $8,000 non-refundable deposit in January 2010. In May 2010, the parents were informed that the CSE was scheduled to construct N.F.’s individualized education program (IEP) in June 2010. At the June 2010 meeting, the CSE reviewed a variety of reports and progress indicators for N.F, including progress and observation reports from the Aaron School. The result of the CSE was a suggested placement for N.F. in a community school with a 12:1+1 (student:teacher+aide) ratio. In August 2010, the district notified the parents of N.F.’s specific classroom placement offer with a 12:1+1 ratio. The parents made repeated efforts, but were unable to visit the classroom and later in August expressed concerns regarding the placement. In September, the parents made another deposit to Aaron School for the upcoming 2010-11 school year.
In 2011, the parents filed a due process claim alleging that the district had failed to provide N.F. a free appropriate public education (FAPE) citing procedural and substantive challenges. Initially, an Impartial Hearing Officer (IHO) awarded tuition reimbursement for the 2010-11 school year, but on appeal by the district, the SRO reversed the IHO and denied reimbursement. The parents did not appeal any aspect of the IHO’s decision to the SRO, though the parents filed this case in federal Court to review the SRO’s decision.
Regarding the procedural challenges, the Court found, contrary to the parents’ arguments, that no general education teacher’s presence was required for the IEP meeting. The parents provided no evidence of concerns that arose during the IEP meeting that required the expertise of a general education teacher to resolve. Additionally, the Court found that the CSE had before it and had properly considered numerous reports regarding N.F.’s progress. Parents’ procedural challenges were rejected.
The parents substantively challenged the SRO’s decision on two grounds. First, the parents argued the record did not support the SRO’s finding that a 12:1+1 student ration was appropriate to N.F. After reviewing the evidence submitted during the administrative process, the Court disagreed. Specifically, the Court found ample evidence that the 12:1+1 ratio satisfied the requirements of the IDEA, and that because the student to teacher ratio for a child is a matter of educational policy in which the Court must defer to the SRO’s expertise, the SRO’s decision on that matter was not disturbed.
The parents’ second substantive challenge presented a more complex issue. Parents argued that the specific classroom to which N.F. would have been assigned under his IEP would not have provided an environment reasonably calculated to enable N.F. to receive educational benefits. The IHO did not address this issue and the parents did not cross-appeal this issue to the SRO. The district therefore argued to the federal Court that the parents waived any right to have the federal Court consider this issue.
In this context, N.Y. state and federal law requires a party “aggrieved” by an administrative decision, such as the one here by the IHO, to appeal the finding to a SRO. The Court determined that the parents were not required to appeal the specific classroom issue to the SRO because the parents were not “aggrieved” by the IHO’s decision. The IHO’s failure to decide or address an issue favorably for a party, particularly here when reaching the issue was not necessary due to the otherwise favorable outcome achieved at the IHO level (granting of tuition reimbursement to parents), does not “aggrieve” that party. The failure to cross-appeal against the district to the SRO on the classroom placement issue did not waive the parents’ rights to raise that issue with the federal Court because the parents were not “aggrieved” on that issue by the IHO’s decision.
However, in the absence of any consideration of the classroom placement issue by the IHO or SRO, and because consideration of N.F.’s classroom placement involved questions of state educational policy requiring educational expertise to resolve, the Court remanded the case to the IHO to consider the placement issue. Due to the Court’s dispensing with the parents’ other procedural and substantive challenges, the IHO was to only consider whether the classroom placement contained in the N.F.’s IEP was adequate under the IDEA.
W.B. v. Houston Independent School District, 2012 U.S. Dist. LEXIS 170218 (S.D. Tex. Nov. 30, 2012)
W.B is a child with moderate to severe autism and a speech impairment. He and his family moved from Palo Alto, California to Houston in the summer of 2010. Previously, Palo Alto had prepared an individualized education plan (IEP) for W.B. for the upcoming 2010-11 school year. Upon W.B.’s move to Houston, the Houston Independent School District (HISD) convened an Administrative, Review, and Dismissal Committee (ARD Committee) which placed W.B. into Extended School Year Services. Later, in August 2010, the ARD Committee met to develop W.B.’s for the upcoming school year. The resulting plan adopted many of the details from the Palo Alto IEP, including a note that some services required a range of student to teacher ratios from 1:1 to 6:2.
After numerous other ARD Committee meetings to evaluate W.B.’s progress, W.B.’s parents filed a due process complaint alleging, among other things, that HISD failed to offer W.B. a free appropriate public education (FAPE) in the least restrictive environment. The Special Education Hearing Officer hearing the due process complaint rejected the parents argument, finding among other issues that the W.B.’s program and placement were appropriate and that HISD offered W.B. a FAPE. The parents then filed this suit in federal Court.
The parents alleged that HISD was not implementing the IEP for three quarters of the school year, or until W.B. began receiving one-on-one teaching. The parents alleged that W.B.’s other teachers should have introduced skills in a one-on-one environment. The Court found, however, that there was no evidence that the ratios identified in the IEP were violated. Additionally, testimony showed that W.B.’s teacher made a methodological decision not to teach certain skills to W.B. one-on-one due to the difficulty a child may have in generalizing skills learned in that type of setting into other settings. Though the parents alleged that the teacher was in fact not implementing the IEP at all, the federal Court deferred to the Hearing Officer’s determination that the testimony of W.B.’s teacher, and other school professionals, was credible and that the IEP was implemented as written. Additionally, the Court rejected the implication of the parents’ evidence, that W.B. had regressed on specific academic skills, to show the IEP was not being implemented. The Court held that the lack of progress in advancing in certain areas was not attributable to a failure by the teacher to implement the IEP, and the Court noted that the law guarantees equal opportunity but not equal results.