Special Education Case Law Update – Week of December 23, 2012
K.O. v. New York City Dept’ Of Education, 2012 U.S. Dist. LEXIS 182305 (S.D.N.Y. Dec. 26, 2012)
K.O. is a 9-year-old child with autism who exhibits deficits in her sensory processing, sensory integration, and fine motor skills. She began attending the Rebecca School, a private special education school, as a kindergartner in February 2009 through an agreement with the Department of Education (DOE). The curriculum at the Rebecca School provided K.O. with a variety of sensory integration services.
In January 2010, an Individualized Education Program (IEP) meeting was held to develop an educational program for K.O. and the IEP arising out of that meeting included a number of services and therapies. However, the IEP did not propose a specific placement. When the DOE had not proposed a specific placement for K.O. by the beginning of June 2010, K.O.’s mother signed an enrollment contract with the Rebecca School which obligated her to pay the Rebecca School’s $92,100 tuition. Then, on June 14, 2010, the mother received notice of an offer from the DOE for a public school placement for K.O. K.O.’s mother visited the proposed placement, but decided that the placement was unable to carry out K.O.’s IEP. K.O.’s mother kept K.O. enrolled at the Rebecca School and requested an Impartial Hearing seeking to require the DOE to reimburse K.O.’s tuition for the Rebecca School. The Impartial Hearing Officer (IHO) found that the DOE had failed to demonstrate that it had offered a genuine free appropriate public education to K.O. because the DOE could not implement the IEP’s occupational therapy recommendations and because the proposed teacher was not a “highly qualified special education teacher” as defined by federal regulations. The IHO additionally found that the Rebecca School was an appropriate program for K.O. and that equitable factors weighed in favor of requiring the DOE to reimburse K.O.’s tuition. The DOE appealed to a State Review Officer (SRO), who overturned the IHO’s decision. K.O.’ mother appealed the SRO’s decision to this federal Court seeking tuition reimbursement and attorney’s fees and costs.
A parent’s right to tuition reimbursement in New York is reviewed under a three-step procedure. First, the parent must establish that the educational program recommended by the IEP is inadequate, or alternatively, that the District is unable to implement an otherwise adequate IEP. Second, the parent must establish that the alternative placement selected by the parent is appropriate. Third, equitable factors must weigh in favor of reimbursement.
In this case, the parent did not dispute the programmatic adequacy of the IEP, but rather challenged the placement of K.O. at the public school proposed by the DOE, contending that the proposed school does not satisfy the requirements outlined in the IEP. Specifically, K.O.’s parent argued that the proposed placement could not provide K.O. with the one-on-one occupational therapy, at the school but outside the classroom, as required by her IEP. Previous testimony at the Impartial Hearing showed that the proposed placement had in fact been issuing Related Service Authorization (RSA) vouchers for students to receive occupational therapy outside the school. The federal Court found that the decision of the SRO, which concluded such vouchers were adequate to properly implement the IEP, to be full of “conclusory generalities and unsupported assertions.” The Court further noted that both the IHO and SRO had relied on retrospective testimony from the District that it would have provided additional services beyond those identified in the IEP so as to render the proposed placement adequate. However, so-called retrospective testimony cannot be relied upon to rehabilitate a deficient IEP or a deficient placement.. Parents must be able to make placement decisions solely on the information provided to them at the time of the placement decision.
Finding the SRO decision conclusory and erroneous, which decisions are ordinarily accorded deference by federal courts, the Court performed it own detailed evaluation of the administrative record and found that K.O. would not have received the IEP mandated one-on-one occupational therapy.
As for the second prong of the tuition reimbursement factors, the Court found that the IHO had determined that Rebecca School was an appropriate placement, and because the DOE had not appealed that decision to the SRO, that determination was final and binding on the DOE. With regard to the third prong and equitable issues, the Court noted that while the parent made clear her desire to return K.O. to the Rebecca School, the parent cooperated with the DOE at every step of the placement process. Finding that there was no evidence of bad faith in the parent’s actions, the Court awarded the parent tuition reimbursement for the 2010-11 school year. Additionally, because the parent was the prevailing party, the Court indicated it would award the parent her reasonable attorney’s fees and costs in pursuing this challenge against the DOE and directed the parent to submit a fee and cost request to the Court.
C.L. v. Scarsdale Union Free School District, 2012 U.S. Dist. LEXIS 181261 (S.D.N.Y. Dec. 21, 2012)
In this case, C.L.’s parents bring claims under the Individuals With Disabilities Act (IDEA) and Section 504 of Rehabilitation Act. C.L. attended Greenacres Elementary School in the Scarsdale District through the end of his third grade year in 2007-08. During that time, Scarsdale provided C.L. with an accommodation plan pursuant to Section 504 of the Rehabilitation Act, but did not provide CL with an Individualized Education Program (IEP). Because of Scarsdale’s failure to provide an IEP, combined with the parent’s view that the Section 504 plan was insufficient, his parents unilaterally enrolled CL at Eagle Hill, a private school, for the 2008-09 school year. For the 2009-10 school year, C.L. parents re-enrolled him at Eagle Hill based on Scarsdale having denied C.L. a free appropriate public education (FAPE). In denying C.L. a FAPE, the fact of which denial was not in dispute in this case, Scarsdale erroneously believed that because C.L. was not enrolled in the Scarsdale District, but rather in another district where Eagle Hill was located, that it had no obligation to evaluate C.L. for services under the IDEA.
For theundisputed failure to provide a FAPE, the parents brought a claim under the IDEA to be reimbursed by Scarsdale for C.L.’s Eagle Hill tuition. As required by the IDEA, the claim proceed through New York state administrative levels. Both an Impartial Hearing Officer (IHO), and then on appeal, a State Review Officer (SRO), found that the parents had failed to establish that Eagle School was an appropriate placement for purposes of IDEA tuition reimbursement (see the summary immediately above of K.O. v. New York City Dept’ Of Education for a discussion of the factors for tuition reimbursement). The IHO determined that C.L. could benefit from attending mainstream classes with modifications and accommodations, and that the specialized instruction received at Eagle Hill was not necessary for his academic and social progress. The SRO concurred with the IHO’s decision, finding that among other things, the parents had failed to establish that Eagle Hill provided C.L. with instruction specially designed to meet his unique needs.
Regarding these IDEA issues, the federal Court agreed with the IHO and SRO. The Court noted that the parents bear the burden of demonstrating that a private placement is appropriate for the purposes of reimbursement. Though evidence seemed to show that C.L. was successful at Eagle Hill, the Court held that it was inappropriate to overturn a state’s denial of tuition reimbursement where the chief benefits of the chosen school are the kinds of advantages that might be preferred by the parents of any child, disabled or not. Neither the parents’ presentation of testimony from representatives of Eagle Hill nor progress reports established that Eagle Hill provided services tailored to C.L.’s unique needs that required total removal from a mainstream environment. While the Court acknowledged the parents argument that finding Scarsdale had denied C.L. a FAPE, without ordering tuition reimbursement for Eagle Hill, a “remedy without teeth,” the Court reaffirmed the state-level decisions that the burden was on the parents to additionally show that the placement at Eagle Hill was appropriate. The parents failed to meet this burden.
To prevail on their Section 504 of the Rehabilitation Act claim, parents had to show that (1) C.L. is an individual with a disability; (2) he was otherwise qualified to participate in a particular program; (3) he was denied participation in the program based on his disability; and (4) the program receives federal funds. Additionally in New York federal Courts, when a parent asserts a Section 504 claim in conjunction with an IDEA claim on the theory a child has been denied a FAPE, as compared to the education non-disabled children receive, the parent must additionally show that the District acted “with bad faith or gross misjudgment.” Noting overwhelming evidence that Scarsdale reasonably believed the district of location – that is to say Eagle Hill – bore the responsibility for evaluating C.L. and providing him with an IEP – the Court held that there was no evidence Scarsdale acted in bad faith or with gross misjudgment. The parent’s Section 504 claim was dismissed along with the IDEA claims.