Special Education Case Law Update – Week of January 7, 2013

Posted on January 16, 2013

H.L. v. New York City Dep’t of Education, 2013 U.S. Dist. LEXIS 3474 (S.D.N.Y. Jan 2, 2013)

The parents of H.L. successfully sought tuition reimbursement for their son pursuant to the Individuals with Disabilities Act (IDEA) in this case arising in New York City. At the time of the events giving rise to the dispute, H.L. was a 14-year-old child diagnosed with autism and Landau-Kleffner syndrome, a neurological disorder affecting language and executive functioning. H.L.’s language, reading and writing skills were at a roughly first-grade level, and his mathematics skills were at roughly a kindergarten level. He could not use a pen or pencil. H.L.’s neurological problems additionally contributed to behavioral problems that impeded his learning. H.L. had never attended public school, and since 2002, H.L. had attended the McCarton School where he received a significant amount of 1:1 instruction as well as 1:1 occupational therapy approximately nine times a week.

In April and May of 2010, the Department of Education (DOE) convened a Committee on Special Education (CSE) to develop an Individualized Education Program (IEP) for H.L. The final IEP recommended that H.L. be placed in a 6:1:1 classroom (students : teacher : paraprofessional) over the objections of McCarton teachers and H.L.’s father. In June 2010, the DOE sent H.L.’s Final Notice of Recommendation which identified Public School 811 as H.L.’s proposed placement. When H.L.’s father visited the school, he was informed by the teacher of the proposed class that she generally provided about 15-20 minutes of 1:1 instruction to each of her students per day. Additionally, the teacher later testified that four of her students’ reading was  between 2nd and 4th grade levels and writing was at 3rd to 5th grade levels. Most follow a third grade math curriculum.

After visiting 811, the parents promptly informed the DOE that they would be re-enrolling H.L. at McCarton and seeking tuition reimbursement for the 2010-11 school year. An Impartial Hearing Officer (IHO) award the parents tuition reimbursement, though that decision was later overturned by the State Review Office (SRO). H.L.’s parents then brought this case in federal district court.

Federal review of tuition reimbursement cases in all federal courts proceeds according to the Burlington-Carter test formulated by the U.S. Supreme Court. Under this 3-part test, a parent prevails if (1) the school district fails to show that its IEP was appropriate to the child’s needs; (2) the parent shows that the alternative private school placement was appropriate for the child’s needs; and (3) the balance of equitable factors weighs in favor of reimbursement. In reviewing determinations by the IHO and SRO, when the IHO and SRO disagree as here, the federal court must defer to the SRO’s decision, but only when that decision is well reasoned and based in a substantially greater familiarity with the evidence and witnesses than the federal court.

After outlining the standard of review, the court turned to the first Burlington-Carter step. While noting that the DOE was not required to “maximize the potential” of each disabled student and must only offer a “basic floor of opportunity,” the court held that here that DOE failed to show that the proposed 6:1:1 class would enable H.L. to learn new material and receive education benefits as required by the IDEA.

The court reviewed the testimony of a Dr. Gerhardt, a nationally recognized expert on adolescent autism, and who runs the upper school attended by H.L.  Dr. Gerhardt testified that H.L.’s curriculum included some group work in which he could practice skills learned through individual instruction. He further testified that a paraprofessional was not an adequate substitute for 1:1 instruction. Testimony from H.L.’s teachers at McCarton supported this conclusion. The court compared that testimony to that of Kathy Kauffman, a DOE psychologist, who observed H.L. at McCarton for 75 minutes on one occasion, who stated that she observed H.L. performing well in a group setting. While the court noted that the SRO found that H.L. would have been able to receive educational benefits and learn new skills in the proposed 6:1:1 class, the court found the basis of this decision unclear and unsupported by testimony. The SRO gave no reason in its decision why it credited the unfounded assertions of the DOE psychologist, who had observed H.L. for only 75 minutes, over the cogent testimony of multiple highly credentialed professionals who had worked closely with H.L. for a full school year. The court did not find that the SRO’s decision on this issue to be “well-reasoned” nor “based on a substantially greater familiarity with the evidence and witnesses.” The SRO’s decision therefore merited no deference and the court turned to the IHO’s decision in favor of the parents and reimbursement.

The IHO found that the DOE had failed to carry its burden of showing that the 6:1:1 placement would enable H.L. to make educational progress given his particularly intense education needs and behavioral issues. The IHO based his findings on the credibility of the McCarton witnesses. Based on its own review of the administrative record, the court agreed with the IHO that H.L. required 1:1 instruction to learn new skills and that the IEP was not appropriate to H.L.’s needs under the first prong of the Burlington-Carter test.

As for step two of the Burlington-Carter test, the court found that the IHO had determined the placement at McCarton to be an appropriate placement and the DOE had not appealed that determination to thr SRO. That determination was therefore binding on the DOE.  As for the equitable considerations of the 3rd factor, the court found that the parents had fully cooperated with the CSE by attending CSE meetings, actively participating in those meetings, visiting the CSE’s proposed placement, and providing the CSE with timely notice of their rejection of the IEP. The court held the DOE argument that the parents never seriously considered placing H.L. in a public school to be speculative and unproven. Accordingly, the equitable factors weighed in favor of reimbursing H.L.’s parents for the McCarton School tuition. The court therefore ordered that the DOE reimburse the parents for the tuition, approximately $125,000, and ordered that the DOE pay the parents’ reasonable costs and attorney’s fees in pursuing this reimbursement claim.

Z.F. v. Ripon Unified School District, 2013 U.S. Dist. LEXIS 3595 (S.D. Cal. Jan. 8, 2013)

Z.F. is an 11-year-old boy with autism eligible for special education services under the Individuals with Disabilities Education Act (IDEA) attending Weston Elementary in the Ripon Unified School District (District). When Z.F. began kindergarten in 2006, he was placed in a general education classroom for most of the day; however, he was always accompanied by a one-on-one aide from Genesis, a non-public agency (NPA) under contract with the District to provide behavioral intervention services for a number of District students. Each of Z.F.’s Individualized Education Plans (IEP), including the  IEP at issue in this case, specified that Z.F. was to receive services from any NPA under contract with the District.

The District’s decision to replace Genesis with another NPA, Learning Solutions, is the heart of this dispute. Genesis was Z.F.’s NPA until Genesis’s termination in January 2011, at which time Learning Solutions was to take over as Z.F.’s NPA provider. The District provided for a four-day transition period where a Learning Solutions aide would overlap with the outgoing Genesis aide for Z.F, however, Z.F. did not attend school during two of the four overlap days. In this federal case, and at the administrative hearing below, Z.F.’s parents alleged that the District violated IDEA procedures by predetermining the nature of Z.F.’s transition from Genesis to Learning Solutions.

Parents are provided a remedy for an IDEA procedural violation only when the violation denies the parents meaningful participation in the IEP process. Therefore, a school district violates the IDEA if, among other things, it independently develops an IEP and then simply presents the IEP to the parent for ratification. In evaluating the claim at issue in this case, the California federal court noted that rarely have courts in the Ninth Circuit (of which California is a part) found a school district’s predetermination of a student’s IEP a redressable violation of IDEA procedures. Procedural violations that deprive a student of a free appropriate public education (FAPE) must be “egregious” to successfully assert a legal remedy.

The federal court found that the District’s actions with regard to Z.F.’s transition from Genesis to Learning Solutions were not sufficiently egregious to deny Z.F. a FAPE. The District’s termination of Genesis, an action it indisputably had the right to take, does not mean that the District was unwilling to consider the parents’ or other input on Z.F.’s transition. The court noted that a fair reading of the record suggested that the District and IEP team members other than the parents simply believed that Z.F. did not require an elaborate transition plan. Z.F. had successfully transitioned between ten Genesis aides during his last four years of schooling. The court agreed with the Administrative Law Judge (ALJ) below that Z.F.’s IEP did not require a transition plan.

Additionally, the court found that the District’s actions did not seriously impair the parents’ opportunity to participate in the IEP formation process. Maximum parental participation is not required under the IDEA, rather meaningful participation is the standard. Z.F.’s mother attended the first of three IEP meetings, and though she approved to the scheduling of the second meeting, Z.F.’s mother did not attend the second and never made an issue of her absence. Additionally, the mother participated in email and in-person discussions specifically about the transition. Z.F.’s mother alleged that the District was not receptive to her desires regarding the transition, but the court noted that the parent’s opinions, as only one member of the IEP team, may be overridden. All of the above indicated to the court that the mother was meaningfully active in Z.F.’s IEP process and was simply overridden by the District. The court held that no authority provides that such an action denied Z.F. a FAPE. For these reasons, the federal court affirmed the decision of the ALJ below in favor of the District, holding that the District had provided Z.F. a FAPE, and dismissed the case.

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