Special Education Case Law Update — Week of May 17, 2010

Posted on May 21, 2010

It was a quiet week for special education cases in the federal courts.  Only two decisions were announced, one out of the District of Hawaii and one from the Southern District of New York.  Both cases involved tuition reimbursement for unilateral private school placement by the parents.  In the Hawaii case, the court affirmed the hearing officer’s denial of tuition reimbursement, ruling in favor of the school district.  In the New York case, where the school district admitted it had not provided the student a timely FAPE, the court nevertheless, found that the the private placement was not appropriate and denied tuition reimbursement (it granted reimbursement for another program the student was in — the Jump Start Program).  Here’s a brief summary of these decisions:

C.P. v. Dept’ of Educ., 2010 U.S. Dist. LEXIS 48501 (D. Haw. May 17, 2010)

This case involved a nine-year old boy in second grade with an undisclosed disability (presumably autism and a hearing impairment based on the facts).  The student was attending regular education classes until his behaviors started escalating which prompted a modification of his education placement.  For example, in October 2008, the student’s problematic behaviors intensified at home and at school. Student exhibited aggressive and inappropriate behaviors toward teachers and peers in several ways.  Student  apparently engaged in these behaviors to gain attention from the adults in the room.  Such behavior included: hitting or slapping at peers in the regular education classroom on several occasions; throwing a stapler and hitting an individual on the head; scratching the eye of one of the class room paraprofessionals and periodically attempting to hurt the same eye again; knocking over furniture; and kicking, pinching, scratching, and pulling hair.

By January 2009, the student’s behaviors had escalated.  Student apparently began “targeting” fragile students in the special education classroom, at one point tipping over a wheelchair and targeting the child who used that wheelchair. Student engaged in inappropriate touching, disrobing, and public urination. Student also began to purposefully defecate in his pants and then smear the feces, in order to gain attention. 

Due to these behaviors, the IEP Team changed the student’s individual education plan (“IEP”) and placed the student in an intensive applied behavior analysis (“ABA”)  program, which took place in a self-contained classroom.  The school district’s IEP called for Student to be placed in a self-contained classroom, to be “re-integrated into general population as he is able.”  Parents objected on the grounds that Student was placed in a self-contained classroom without an explicit guarantee that Student would be reintegrated in the classroom with other students. Parents believed that the IEP, as worded, would not actually allow Student to be re-integrated until an entirely new IEP was created.  Parents further believed that, because the IEP team acknowledged that Student would benefit from reintegration, and because staff testified that they would begin reintegrating Student slowly, the IEP was more restrictive than Student’s actual placement and therefore must not provide the LRE.  Because Parents did not believe the IEP guaranteed reintegration, they unilaterally removed Student from the school district and placed him at Horizons Academy, a private school.  

The court disagreed with Parents’ interpretation of the IEP, and determined that it provided Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE).  According to the court, the IEP said that Student would integrate when he was able to. This IEP properly took into account his behaviors toward his peers. The court reasoned that whether Student’s progress would improve such that an IEP could modify his placement to be permanently with the general student population is a question for a later time, and does not necessarily mean that the IEP itself deprived Student of FAPE.  According to the court, the evidence showed that the teachers were in fact planning on integrating Student when possible. 

In announcing its decision, the court gave a fmiliar rejoinder:  “The Court acknowledges Parents’ laudable wish to have the very best services provided to their child. This Court’s own ruling,  however, is bound by the actual terms of the IDEA, which do not require the ‘best’ services, but rather, a FAPE that provides access to specialized instruction and related services and produces more than merely minimal academic achievement.

R.B. v. New York City Dep’t of Educ., 2010 U.S. Dist. LEXIS 47045 (S.D.N.Y. May 5, 2010)

This case involved a twelve year old girl with a central auditory processing disorder and a speech and language impairment.  During the 2006 – 2007 school year, Parents became concerned that the school district was not going to be able to provide their daughter with an appropriate educational placement for the next school year.  In February 2007, Parents signed a contract enrolling Student at York Preparatory School, a private, regular education school for the 2007 – 2008 school year.  Parents also enrolled student York Prep’s Jump Start Program which was a supplemental program that provides extra support for special education students.  

The school district did not timely propose an educational placement for Student for the 2007 – 2008 school year.  At the due process hearing, the school district conceded that, by not offering Student a placement for the 2007-2008 school year, it had failed to provide Student with a FAPE.   The scope of the hearing, therefore, was the adjudication of: (1) whether Student’s unilateral private placement at York Prep was reasonable, and (2) whether the equities weighed in favor of reimbursement.

The hearing officer decided in favor of the Parents, concluding that they entitled to full reimbursement of the cost of Student’s placement at York Prep, in the amount of $ 48,154.20.  The IHO found that the combined York Prep/Jump Start program met Student’s special education needs and, therefore, was an appropriate private placement.   Specifically, the IHO concluded that the Jump Start program was an adequate supplement to the general education curriculum and that the two “integrally related” programs constituted a comprehensive educational program for Student.  

The IHO also found that equitable factors supported Plaintiffs’ claim for reimbursement: “But for the Parent having signed the February 2007 contract with York Prep, [Student] might not have had any placement for the 2007-2008 school year.”  The IHO further found that Plaintiffs were not required to notify the DOE of their private placement because (i) there was no allegation that Plaintiffs were informed of the notice requirement, and (ii) the DOE never recommended a placement for Plaintiffs to reject. (IHO Decision at 10.)

Defendants appealed the decision of the IHO to the SRO.  The SRO issued a decision reversing the IHO in part and concluding that Plaintiffs were not entitled to reimbursement for the cost of York Prep’s tuition. Specifically, the SRO found that (i) the general education portion of York Prep’s program was not appropriate to meet Student’s special education needs and that (ii) equitable considerations weighed against reimbursement.

The Parents appealed to the United States District Court.  The district court affirmed the SRO’s decision that York Prep was not an appropriate educational placement for Student because it did not adequately address her special education needs.  However, the district court found that the supplemental Jump Start Program did provide student appropriate special education services and, thus, awarded parents tuition reimbursement for this program.  The district court also determined that the equitable factors weighed in favor of awarding Parents this portion of tuition reimbursement.

By Jack Robinson

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