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Current developments

Current developments in special education law with a focus on recent federal and New York cases and important legislative and regulatory developments.

SRO awards reimbursement for private placement

SRO 10-050: The parent rejected the district recommended program, placed the child in a private school and sought reimbursement. The IHO ruled in favor of the school district finding that the parents failed to demonstrate that the June 2009 IEP was not reasonably calculated to provide the student with a FAPE. The SRO found that the IHO had improperly shifted the burden of proof to the parents and that that was grounds for annulling the decision. He went on, however, to analyze the merits and he determined that the district had failed to offer a FAPE, that the parental placement was appropriate and that the equities weighed in favor of the parent.

August-10-2010
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Court refuses to compel district to pay for pendency placement

M.M. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 7-27-2010): Parent placed child in private school for the 2008-2009 school year and made a reimbursement claim. Parent had already prevailed at hearing on a reimbursement claim for the 2007-2008 school. The district did not appeal that decision. Thus, the parent asserted in her hearing request for 08-09 that pendency was the private school placement. The district did not contest the parent?s right to pendency reimbursement. On day one of the hearing, the DOE again did not object to the parent?s pendency request. During the hearing, the parent sought a pendency order from IHO Esther Mora. Mora noted the request but never issued an order requiring the NYCDOE to provide the parents with pendency reimbursement. Mora ultimately ruled against the parents on the reimbursement claim and further stated that "I have examined the
parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." The parents did not appeal the decision.

The DOE then refused to pay for the pendency placement. The parents sought payment in federal court and remarkably, the Court ruled against the parents, reasoning that the parents had not exhausted the administrative process by not appealing Mora?s failure to rule on pendency to the SRO.

This is a very harsh ruling and arguably, a gross miscarriage of justice. A party can only appeal if aggrieved by a ruling. The IHO did not rule on the pendency issue because it was not contested. The parties were in agreement as to pendency. Yet, the Court held that the parents were foreclosed from recovering due to the failure to appeal the Mora non-ruling. Bottom line, the parents don?t get paid for the pendency placment even though the district agreed with them before and during the hearing that they should get paid.

July-28-2010
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Prevailing party status for IEE

AP v. NORTHERN BURLINGTON COUNTY REGIONAL BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: District Court held that Parents who obtained an order compelling a district to pay for an Independent Educational Evaluation were entitled to prevailing party status for purposes of an attorney fee claim.

July-25-2010
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SRO annuls inadequate decision and remands for further testimony

SRO 10-035: Parent sought reimbursement for a private school placement. The IHO denied the parent?s claim in a 5 paragraph decision that violated virtually every norm for a hearing officer?s decision. The SRO agreed with the parent?s arguments regarding the inadequacy of the decision. Additionally, this IHO had refused to adjourn the hearing for the taking of testimony of a district witness. The SRO found that to be error. The SRO remanded the matter to the same hearing officer for further testimony and consideration.

July-15-2010
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SRO affirms award for private school reimbursement

SRO 10-042: Parents prevailed at hearing in New York City private school reimbursement case. NYC appealed to the SRO. For the first time this year, the SRO affirmed on the merits a decision in which an IHO had awarded reimbursement to a parent. The IHO on the case was James Walsh.

July-15-2010
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