Special Education Case Law Update — Week of June 6, 2011

Posted on June 10, 2011

Aileen Y. v. Dep’t of Educ., 2011 U.S. Dist. LEXIS 60576, 1-3 (D. Haw. June 6, 2011)

Student turned twenty in the middle of the 2007—08 school year.  He has Prader-Willi Syndrome, and received special education services from the School District under the Individuals with Disabilities Education Act (IDEA) until the endof the extended 2007—08 school year.  At an IEP team meeting on April 8, 2008, Student’s mother, requested that the School District provide Student with special education services under the IDEA until his twenty-second birthday; that is, until he was no longer “between the ages of 3 and 21, inclusive.” 20 U.S.C. § 1412(a)(1)(A).  The School District refused to provide continued services on the basis that Student had aged out of eligibility for special education.  On July 31, 2009, Plaintiff requested another IEP team meeting in light of the decision in B.T. v. Dep’t of Educ., 637 F. Supp. 2d 856 (D. Haw. 2009), which construed the IDEA’s age-out requirement to extend through the student’s 21st year.  The School District denied that request in a letter dated August 4, 2009.

On April 8, 2010, at 4:48 p.m., via fax, Student and his Parents filed a request for a due process hearing concerning both the denial of continued services at the April 2008 IEP team meeting and the denial of an additional IEP team meeting in 2009.  This case arises out of the administrative hearings officer’s dismissal of that request and the officer’s alternative grant of summary judgment in favor  of the School District.  The dismissal was based on a finding that the request for a due process hearing was untimely because it had been filed after the close of business on the last day of the statute of limitations (the due process complaint was faxed at 4:48 p.m. and the agency closed at 4:30 p.m. — 18 minutes late).  The grant of summary judgment was based on a finding that the School District had not applied an age-out rule, standing alone, to deny continued special education services to Student.

The Court reversed the grant of dismissal holding that there was nothing in the IDEA or the State’s statute/regulations that required the due process complaint to be filed before the close of business on the statutory deadline.  The statute of limitations for IDEA disputes merely states that the complaint must be filed within 2 years after the dispute was known or should have been known.  The Court also held that the Student should not have been aged out of special education before his 22nd birthday, if that was the sole basis for terminating special education services.  The Court, however, remanded the issue concerning the termination of special education services because there was a factual issue that had not been developed at the hearing about whether the Student had plateaued and could no longer benefit from special education.

Drake P. v. Council Rock Sch. Dist., 2011 U.S. Dist. LEXIS 59967, 1-5 (E.D. Pa. June 2, 2011)

In this case, an 11-year-old child with autism, Drake P. (“Drake”), alleges that he was denied a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and suffered discrimination because of his disability under Section 504 of the Rehabilitation Act of 1973 (“Section 504″), 29 U.S.C. § 794. Drake and his mother, Maria P. (“Maria”), seek tuition reimbursement from Council Rock School District (“Council Rock” or “the district”) for a six-month period during which, they allege, Drake would have been unable to transition back to public school because his family’s house had recently burned down, and a few days later his father passed away.

Drake was diagnosed with autism in March 2003.  In 2007, when he was 7 years old, Drake’s family moved from New Jersey into a home in the Council Rock School District in Pennsylvania. The primary motivation for the move was to give Drake access to the programming offered by Council Rock, which his parents felt would better serve his needs. Drake was initially enrolled at Richboro Elementary School (“Richboro”) for a summer program, then moved to Goodnoe Elementary School (“Goodnoe”) for the beginning of the 2007-08 school year. 

As the school year progressed, Maria came to believe that the program at Goodnoe was not meeting Drake’s needs. She requested he be transferred back to Richboro; the district complied. By the end of the year, however, Maria remained dissatisfied with the district’s program for Drake. As a result, Drake’s parents removed him from public school in July 2008 and  enrolled him at the Comprehensive Learning Center (“CLC”) in Southampton, PA, a private school that serves children with autism.

According to Maria, Drake began to flourish at CLC. Then, in one three-day period in December 2008, Drake suffered two tragedies. First, on December 13, 2008, the family’s house “completely burned down” while Drake stood outside in his pajamas and bare feet. Then, just two days later, as the family began to look for new permanent housing, Drake’s father passed away. Maria moved her family to a nearby townhouse while their house was rebuilt, and she made sure Drake did not miss any school.  There is no evidence in the record that she contacted the district about re-enrolling Drake in public schools at that time. To the contrary, Maria believed the program at CLC was working well for Drake, and was of the opinion that Drake’s “need for consistency” would have made transferring back to Council Rock difficult for him.

On April 1, 2009, plaintiffs, through counsel, notified the district of their intent to seek a due process hearing under the IDEA and Section 504, both  of which protect the rights of special education students to obtain a FAPE from their public schools. Plaintiffs alleged that the district had failed to offer Drake a FAPE for the 2008-09 school year and sought, inter alia, reimbursement for the cost of tuition at CLC for the entire academic year.  A hearing officer conducted the due process hearing over the course of six days between September 2009 and May 2010. On June 9, 2010, the hearing officer issued a 20-page opinion in which he ruled that the district had offered Drake a FAPE for the 2008-09 school year and therefore did not have to pay the cost of Drake’s tuition at CLC. 

Plaintiffs appealed the hearing officer’s decision by filing their Complaint in this action on September 7, 2010.  In this case, plaintiffs seek only reimbursement for Drake’s CLC tuition for the period from early January 2009 — immediately following the twin tragedies — to the end of the school year. Plaintiffs allege that even if the district offered Drake a FAPE in July 2008, that offer no longer constituted a FAPE for the second half of the school year because Drake could not have  transitioned back into the public school system after the tragic events of December 2008.

The district argues that, because the final IEP offered before Drake’s parents withdrew him from public school constituted a FAPE, it cannot be held liable for tuition reimbursement. More specifically, the district contends that, absent some indication from Maria that she wished to re-enroll Drake in the public schools, the district was under no obligation to craft a new IEP for Drake mid-year to take into account his changed circumstances and his resulting inability to transition back to public school. The district is correct.

The Court recognized that the IDEA provides that where parents withdraw their child from public school without the consent of or a referral from the school district, the parents can only be reimbursed for their tuition if the district “had not made a free appropriate public education available to the child in a timely manner prior to . .  . enrollment [in the private school].” 20 U.S.C. § 1412(a)(10)(C)(ii); see also 34 C.F.R. § 300.148(c).  Accordingly, the Court found that in evaluating whether the district’s offer constituted a FAPE, the Court must examine the adequacy of the IEP “as of the time it is offered to the student, and not at some later date. . . . Neither the statute nor reason countenance ‘Monday Morning Quarterbacking’ in evaluating the appropriateness of a child’s placement.” Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993).  The Court found that because the plaintiffs did not contest the hearing officer’s decision that, as of July 2008, the district offered Drake a FAPE for the 2008-09 school year, there is no basis under the IDEA or Section 504 for plaintiffs to collect reimbursement for Drake’s tuition at CLC.  

A.A. v. Houston Indep. Sch. Dist., 2011 U.S. Dist. LEXIS 59907 (S.D. Tex. May 12, 2011)

This decision involves the Parents request to the court for a court-appointed attorney to pursue their special education dsipute with the School District.  The main plaintiff in this case is A.A., a minor child, who is represented by his parents, Plaintiffs R.A. and P.A., as next friends, and who also bring the claims on behalf of themselves. Plaintiffs filed this lawsuit against Houston Independent School District (“Defendant HISD” or “HISD”) and Suzy Walker (“Defendant Walker”), principal of Travis Elementary School, on August 26, 2010.  

On October 4, 2010, A.A.’s parents withdrew him from HISD and placed in him a private school without notice to HISD because they were concerned for his  safety. Plaintiffs list eight reasons leading to this decision to suddenly withdraw A.A.: (1) HISD failed to properly evaluate A.A. and provide him with necessary services; (2) HISD had A.A. privately evaluated but failed to undertake its own full evaluation of A.A.; (3) HISD failed to provide A.A. with appropriate speech therapy services leading to satisfactory progress; (4) HISD failed to adequately supervise A.A., who was hurt by other students and who received additional unexplained injuries; (5) other students and staff bullied A.A.; (6) A.A.’s speech therapist and other staff inappropriately and unnecessarily used restraints on A.A.; (7) Defendant Walker harassed R.A. and P.A. when they sought to observe their son, interfered with the R.A. and P.A.’s communication with A.A.’s teachers and related service personnel; and prohibited A.A.’s attendance at school and field trips on multiple occasions; and (8) HISD interfered with ARD meetings held on behalf of A.A., in that an HISD attorney intimidated A.A.’s parents and took over the ARD process, and in that A.A.’s parents were not permitted to have their opinions accurately stated or allowed to make corrections to the false information and factual inaccuracies that permeated the ARD deliberations.

Plaintiffs make eight requests of in their complaint: (1) an order directing HISD to provide compensatory services for the eighteen months that A.A. went without a FIE with respect to all services he had been or was subsequently found eligible for, including eighteen months of one-on-one occupational therapy services; (2) an order directing HISD to provide compensatory services for the “inappropriate and ineffective” speech services it gave A.A.; (3) an order directing HISD to provide private educational placement for the rest of this academic year; (4) an order directing HISD to reimburse A.A.’s parents for A.A.’s private placement and related special education services from the date of his withdrawal through the date of the court’s order for the continuation of such services; (5) an order directing HISD to provide A.A. with speech andother related services found to be necessary for A.A. on an ongoing basis, including an appropriate assistive technology device; (6) an order directing HISD to reimburse A.A.’s parents for all outside third-party evaluations undertaken on behalf of A.A. and  that were provided to HISD; (7) a finding that A.A. has been denied Free Appropriate Public Education (“FAPE”); and (8) an order that A.A. be awarded his attorney’s fees.

First, with respect to exceptional circumstances, Plaintiffs allege that HISD is operating without accreditation for general education and that the Texas Education Agency (“TEA”) has placed a special monitor on HISD for special education. Plaintiffs aver that they contacted nearly one hundred other parents who did not previously know this information. Plaintiffs attempted to advertise in the Travis Elementary School newspaper about the formation of a support group for parents  with children in special education, but, they allege, the principal pulled the advertisement without Plaintiffs’ prior knowledge. Plaintiffs contacted the TEA, which notified them that they did not have the power to ask HISD to notify parents about the group. Plaintiffs aver that HISD had an obligation to notify the parents of children in general education so they could seek help for their children, if needed. Plaintiffs also allege that HISD has one of the highest student drop-out rates of any school district in the nation. Plaintiffs ask the court to appoint counsel to protect the education and safety of the children of HISD and “to expose the injustice [and] cover up of well[-]paid educational bandits who leave our children naked without the benefit of good education.”

Second, the student’s father asserts that: (1) he visited or spoke to five local attorneys, who each required between $12,000 and $30,000, plus costs, to take his case; (2) he contacted all known agencies that may have been of help, but  each claimed they were short of funds and could not help; (3) he worked as an apartment manager with an annual salary of $42,000, without commission, his wife was a housewife, and he had two children; (4) he anticipated that his apartment complex would soon be defaulting on a loan, putting him out of a job; (5) he placed both children in private school, utilizing emergency funds, because of safety concerns at school; and (6) he could not transfer his children to another school district because their home was zoned to HISD.

The Court found that Plaintiffs had not followed any of the requirements ordered by the court to qualify for court-appointed counsel.   The Court reasoned that the materials that Plaintiffs submitted in support of their motion were “sorely lacking in the requisite detail” needed to show that they meet the financial threshold for in forma pauperis status. Furthermore, the Court decided that the facts  alleged by Plaintiffs did not show that there were “exceptional circumstances” that would warrant appointment of counsel, which, according to the Court is a highly unusual step in an civil matter and reserved for truly exceptional cases.

By Jack D. Robinson

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