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New York

SPECIAL EDUCATION C A S E L AW D I G E S T A publication of the New York Special Education Task Force in collaboration with Disability Rights New York.

Vol.1 - October 2021.


ACKNOWLEDGMENTS: This publication was prepared by Lewis Steele, Esq. Attorney Emeritus Volunteer with assistance from Disability Rights New York, the Protection and Advocacy agency for people with disabilities in New York. This publication is funded in part by Disability Rights New York. DRNY is supported at taxpayer expense by the U.S. Department of Health & Human Services, The Administration for Community Living; Center for Mental Health Services, Substance Abuse & Mental Health Services Administration; U.S. Department of Education, Rehabilitation Services Administration; and, the Social Security Administration.

DISCLAIMER: This report was prepared by staff and volunteers of Disability Rights New York. The information in the Digest is based on the law at the time of writing. This Digest contains general information and does not constitute individual legal advice about your situation. You should consult with an attorney for individual legal advice about your situation and to find out how this information applies to your situation. © 2021 New York Special Education Task Force Duplication of this Digest for educational, non-commercial use is encouraged. When quoting or duplicating material taken from this Digest, please credit the New York Special Education Task Force. i


INTRODUCTION The mission of the New York State Special Education Task Force (“State Task Force”) is to improve educational access and outcomes for students with disabilities through a collaborative statewide network of stakeholders representing a variety of roles in addressing the special education needs of students in New York State. The Task Force was originally formed in 2004 as a local, grassroots task force focused on improving the educational outcomes of students with disabilities. Activities of the original task force emphasized training, issue identification and discussion, and networking. Most importantly, the task force purposefully promoted participation and collaboration among all stakeholders, including parents, advocates, attorneys, school personnel, service providers, educators, government representatives, and individuals with disabilities. Because of the outstanding success of the model and requests for replication in other parts of the State, the executive board of the original task force unanimously agreed to promote the development of task forces in other regions across the State while establishing a statewide special education task force to support, facilitate and represent regional task forces. At the same time, Disability Rights New York (DRNY) was designated the federally-funded Protection and Advocacy System in New York. With substantial resource support from DRNY, the State Task Force was formally established in 2014. Several Regional Affiliate task forces have been established across upstate New York State. For additional information, see https://www.nyspecialedtaskforce.org/. The New York Special Education Case Law Digest provides information for special education stakeholders about cases involving special education laws. Understanding decisions of federal and state judges and New York’s Office of State Review in special education cases is essential to navigating the rights of students with disabilities and the obligations of school districts. This publication is a resource for all stakeholders involved in special education including students, families, school professionals, advocates, attorneys, and others. This Digest provides summaries of cases involving a wide range of special education legal issues. It will be updated with new cases periodically. Most summaries focus on recent administrative and judicial cases in New York, but in some instances, older but important special education cases decided by the U.S Court of Appeals for the Second Circuit and other jurisdictions are included. Our hope is that through the use of this publication, parents, families and school districts will collaborate together to protect student rights and improve educational outcomes. Suggestions for case summaries, feedback, and questions can be sent to SpecialEd.Digest@drny.org. We want to empower special education stakeholders through knowledge. Lewis Steele, Esq. Volunteer, Disability Rights New York New York State Attorney Emeritus Program

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____________ The New York Special Education Case Law Digest work is designed to provide practical and useful information on the subject matter covered. However, it is provided with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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TABLE OF CONTENTS BY TOPIC AMERICANS WITH DISABILITIES ACT (ADA) ........................................................................................ 1 APPEALS TO THE STATE REVIEW OFFICER (SRO) ................................................................................ 1 Evidence ............................................................................................................................................... 1 Procedures ........................................................................................................................................... 1 Scope of Review ................................................................................................................................... 2

APPEALS OF FEDERAL AND STATE COURTS ........................................................................................ 3 Deference – Office of Special Education Programs (OSEP) Letters .......................................................... 3

ATTORNEY FEES .................................................................................................................................. 3 BEHAVIOR ........................................................................................................................................... 5 Applied Behavior Analysis (ABA) ........................................................................................................... 5 Functional Behavior Assessments (FBA) and/or Behavior Intervention Plan (BIP) .................................. 6

CHILD FIND.......................................................................................................................................... 9 COMPENSATORY EDUCATION .......................................................................................................... 10 CONSENT .......................................................................................................................................... 11 COVID-19 .......................................................................................................................................... 11 Compensatory Education ..................................................................................................................... 11 Implementation of IEP ......................................................................................................................... 14 Miscellaneous...................................................................................................................................... 21

COMMITTEE ON SPECIAL EDUCATION (CSE) .................................................................................... 27 Parent Submitted Evaluations and Data ............................................................................................... 27

DECLASSIFICATION & TERMINATION OF SERVICES........................................................................... 29 iv


DISCIPLINE OF STUDENTS ................................................................................................................. 29 DUE PROCESS IMPARTIAL HEARINGS................................................................................................ 29 Impartial Hearing Officers (IHO) ........................................................................................................... 29 Scope of Review .................................................................................................................................. 30 Sufficiency of Decision ......................................................................................................................... 30 Telephonic Hearings/In-Person Hearings .............................................................................................. 31

ELIGIBILITY FOR SPECIAL EDUCATION SERVICES ............................................................................... 32 Classification ....................................................................................................................................... 32

EVALUATION AND REEVALUATION ................................................................................................... 33 EXHAUSTION OF ADMINISTRATIVE REMEDIES ................................................................................. 33 EXTENDED SCHOOL YEAR ................................................................................................................. 34 FREE APPROPRIATE PUBLIC EDUCATION (FAPE) ............................................................................... 35 INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE)............................................ 35 INDIVIDUALIZED EDUCATION PROGRAM (IEP) ................................................................................. 36 Amendment ........................................................................................................................................ 36 Miscellaneous...................................................................................................................................... 37 Placement ........................................................................................................................................... 38 Transition Services ............................................................................................................................... 42 Transportation .................................................................................................................................... 45

LEAST RESTRICTIVE ENVIRONMENT (LRE) ........................................................................................ 47 MEDIATION ....................................................................................................................................... 49 MOOTNESS ....................................................................................................................................... 50 v


PENDENCY PLACEMENT .................................................................................................................... 51 PRIOR WRITTEN NOTICE ................................................................................................................... 58 REMEDIES ......................................................................................................................................... 58 Direct Payment .................................................................................................................................... 58 Injunctive Relief................................................................................................................................... 59 Prospective Relief ................................................................................................................................ 62

SECTION 504 OF THE REHABILITATION ACT OF 1973 ....................................................................... 64 SERVICE ANIMALS ............................................................................................................................. 64 STATUTE OF LIMITATIONS ................................................................................................................ 64 Tolling ................................................................................................................................................. 64 Miscellaneous...................................................................................................................................... 65

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS ................................................................ 65 Appropriateness of Placement ............................................................................................................. 65 Burden of Proof ................................................................................................................................... 68 Equitable Considerations ..................................................................................................................... 68

TABLE OF CASES APPEALS TO THE STATE REVIEW OFFICER (SRO) ................................................................................ 1 Evidence ............................................................................................................................................... 1 Application of the New York City Department of Education, 20-108 (8/10/20)....................................................... 1 Procedures ........................................................................................................................................... 1 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) ......................................................................... 1 Scope of Review ................................................................................................................................... 2 Application of a Student with a Disability, Appeal No. 20-083, (June 26, 2020) ...................................................... 2 Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) ............................................. 3

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APPEALS OF FEDERAL AND STATE COURTS ........................................................................................ 3 Deference – Office of Special Education Programs (OSEP) Letters .......................................................... 3 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) ...................................................................................................... 3

ATTORNEY FEES .................................................................................................................................. 3 H.C. v. New York City Dept of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195 (S.D.N.Y. June 17, 2021) .................. 3

BEHAVIOR ........................................................................................................................................... 5 Applied Behavior Analysis (ABA) ........................................................................................................... 5 Application of the New York City Department of Education, 20-108 (8/10/20)....................................................... 5 Functional Behavior Assessments (FBA) and/or Behavior Intervention Plan (BIP) .................................. 6 Application of a Student with a Disability, Appeal No. 20-083 (June 26, 2020) ....................................................... 6 In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 .................................................... 8

CHILD FIND.......................................................................................................................................... 9 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ................................................................................................................................................................... 9

COMPENSATORY EDUCATION .......................................................................................................... 10 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) ....................................................................... 10 Application of the New York City Department of Education, 20-108 (8/10/20)..................................................... 10

COVID-19 .......................................................................................................................................... 11 Compensatory Education ..................................................................................................................... 11 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) ................................................................... 11 In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 ............................................. 12 In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) ................................................................................................................................................................................ 13 Implementation of IEP ......................................................................................................................... 14 In Re Eastern Howard Sch. Corp. State of Indiana Education Agency, Feb. 26. 2021 (121 LRP 9941) ....................14 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) ................................................................... 15 In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 .................................................. 16 In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 ............................................. 17 In Re Long Beach Unified School District /California State Agency/10-12-20; 120 LRP 33840 ............................... 17 In Re Student with a Disability North Dakota State Agency 11-10-20;120 LRP 36828 ........................................... 18 In re Mahwah Twp. Pub. Sch. Dist. (State of New Jersey Education Agency, May 4, 2021 (78 IDELR 236) ............19 In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) ................................................................................................................................................................................ 20 Miscellaneous...................................................................................................................................... 21 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) ................................................................... 21

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Application of a Child with a Disability, Appeal No, 20-195 at pp.13-20 ................................................................ 22 Provision of Educational Services: L.V. v New York City Dep’t of Educ., No. 19-CV-05451 (AT)(KHP) 2020 WL 6782234 .................................................................................................................................................................. 24 SETSS Services at Home: Application of a Student with a Disability, Appeal No. 20-122 (Sept. 17, 2020).............24 Pendency Placement – Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020)...................................................................................................................... 25 Prospective Relief: Application of the New York City Department of Education, 20-108 (8/10/2020) ..................26 Tuition Reimbursement Equitable Considerations: Application of the New York City Bd. of Educ. Appeal No. 20131 (Sept. 10, 2020) ................................................................................................................................................ 26

COMMITTEE ON SPECIAL EDUCATION (CSE) .................................................................................... 27 Parent Submitted Evaluations and Data ............................................................................................... 27 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ................................................................................................................................................................................ 27 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ................................................................................................................................................................................ 27 Application of the New York City Department of Education, 20-108 (8/10/20)..................................................... 28

DECLASSIFICATION & TERMINATION OF SERVICES........................................................................... 29 Kevin T. v. Elmhurst Community Sch. Dist., No. 205, No. 01 C 0005, 2002 WL 433061 at *14 (U.S.D.C. Northern District of Ill. Eastern Division, Mar 20, 2002) ........................................................................................................ 29

DUE PROCESS IMPARTIAL HEARINGS................................................................................................ 29 Impartial Hearing Officers (IHO) ........................................................................................................... 29 Bias - SRO: Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 ..................................... 29 Scope of Review .................................................................................................................................. 30 Application of a Student with a Disability, Appeal No. 20-101, (8/3/20)................................................................ 30 Application of a Student with a Disability, Appeal No. 20-101 (8/3/20)................................................................. 30 Sufficiency of Decision ......................................................................................................................... 30 Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 ....................................................... 30 Telephonic Hearings/In-Person Hearings .............................................................................................. 31 “After Hours”: Application of a Student with a Disability, Appeal No. 20-009 (March 19, 2020) ..........................31

ELIGIBILITY FOR SPECIAL EDUCATION SERVICES ............................................................................... 32 Classification ....................................................................................................................................... 32 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) ....................................................................... 32

EXHAUSTION OF ADMINISTRATIVE REMEDIES ................................................................................. 33 Ventura de Paulino v New York City Dep’t of Educ. 959 F.3d 519 (2d Cir. 2020) ................................................... 33

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G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----Fed.Appx. --- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) ........................................................................................................................................................... 33

EXTENDED SCHOOL YEAR ................................................................................................................. 34 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ................................................................................................................................................................. 34 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. February 26, 2021) ...34

INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE)............................................ 35 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) .................................................................................................... 35

INDIVIDUALIZED EDUCATION PROGRAM (IEP) ................................................................................. 36 Amendment ........................................................................................................................................ 36 Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., No. 19-270, -- F.3d – 2021 WL 800579 (2d Cir. Mar. 3, 2021) ...36 Miscellaneous...................................................................................................................................... 37 Retrospective Testimony: C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ........................................................................................................................... 37 Placement ........................................................................................................................................... 38 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ................................................................................................................................................................. 38 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) ..........39 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ................................................................................................................................................................................ 39 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) ...40 Application of a Student with a Disability, Appeal No. 20-101, (8/3/2020)............................................................ 41 Application of a Student with a Disability, Appeal No. 20-101 (8/3/2020)............................................................. 41 Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) ........................................... 41 Transition Services ............................................................................................................................... 42 Perkiomen Valley Sch. Dist. V. R.B., 18-3-009, 121 LRP 13443 (U.S. D.C. E.D.PA. (Apr. 13, 2021)) ........................42 R.B. v. New York City Dep’t Educ., No. 16-1952-cv, 689 Fed.Appx. 48 (2d Cir. Apr. 27, 2017) ............................... 44 Transportation .................................................................................................................................... 45 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) ..........45 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ................................................................................................................................................................................ 45 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) ...46

LEAST RESTRICTIVE ENVIRONMENT (LRE) ........................................................................................ 47 Application of a Student with a Disability, Appeal No.20-083 (June 26, 2020) ...................................................... 47 Prospective Relief: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020) ......................48

MOOTNESS ....................................................................................................................................... 49 ix


Pendency Placement: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) ......................................................................................................................................................... 50

PENDENCY PLACEMENT .................................................................................................................... 51 In re student with a disability, Appeal No. 21-075, (June 24, 2021) ....................................................................... 51 Application of a Child with a Disability, Appeal No, 20-195 at pp. 8-11 ................................................................. 51 Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) ......................................................................................................................................................... 52 Mootness: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) ....................................................................................................................................................................... 53 Payment: Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) .............................. 54 Ventura de Paulino v New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) .................................................. 54 Neske v. New York City Dep’t of Educ., --Fed.Appx. – 2020 WL 5868279, No. 19-4068-cv (2d Cir. 2020) .............55 Arelis Araujo et al. v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020) .........................56 Injunctive Relief and Payment: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020)........56 Injunctive Relief: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) .57

REMEDIES ......................................................................................................................................... 58 Direct Payment .................................................................................................................................... 58 Application of a Student with a Disability, Appeal No. 20-122 (9/17/20)............................................................... 58 Injunctive Relief................................................................................................................................... 59 Y.S. v. New York City Bd. of Educ., No. 1:21-cv-00711 (MKV), 2021 WL 1164571 (S.D.N.Y. Mar. 26, 2021) ..........59 EMC v. Ventura Unified Sch. Dist., Case No. 2:20-cv-09024-SVW-PD, 2020 WL 7094071 (C.D. Cal. Oct. 14, 2020) ................................................................................................................................................................................ 60 Payment for Pendency Services: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) .....61 Pendency Placement: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) ....................................................................................................................................................................... 61 Prospective Relief ................................................................................................................................ 62 Impact of COVID-19: Application of the New York City Department of Education, 20-108 (8/10/2020) ...............62 Least Restrictive Environment: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020) ...62 Application of the New York City Department of Education, 20-108 (8/10/2020)................................................. 63

STATUTE OF LIMITATIONS ................................................................................................................ 64 Tolling ................................................................................................................................................. 64 G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----,Fed.Appx. --- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) ........................................................................................................................................................... 64 Miscellaneous...................................................................................................................................... 65 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) .................................................................................................... 65

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS ................................................................ 65 Appropriateness of Placement ............................................................................................................. 65

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Application of a Student with a Disability, Appeal No. 21-024, pp.7-16 (Mar. 17, 2021) ....................................... 65 Application of a Child with a Disability, Appeal No, 20-195 at pp. 20-23 ............................................................... 66 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) ...67 Application of the New York City Bd. of Educ., Appeal No 20-131 (Sept. 10, 2020) ............................................... 67 Burden of Proof ................................................................................................................................... 68 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ................................................................................................................................................................................ 68 Equitable Considerations ..................................................................................................................... 68 Application of a Student with a Disability, Appeal No, 21-024, p. 16 (Mar. 17, 2021) ........................................... 68 Application of a Child with a Disability, Appeal No, 20-195 at pp. 23-24 ............................................................... 69 Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) ............................................... 69 Application of a Student with a Disability, Appeal No. 20-101 (8/3/20)................................................................. 69

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AMERICANS WITH DISABILITIES ACT (ADA)

There is no update at this time, check back for later versions for any update.

APPEALS TO THE STATE REVIEW OFFICER (SRO) EVIDENCE Application of the New York City Department of Education, 20-108 (8/10/20) Conclusion: The SRO used 8 NYCRR §279.10(b) (said section “permitting a State Review Officer to seek additional evidence if he or she determines that such additional evidence is necessary”) to request additional information from the district. Basis of the SRO’s Decision: The SRO requested additional evidence from the district regarding “whether it conducted a CSE meeting for the student for a (subsequent) school year, and if so, to provide a copy of the IEP.” Upon the receipt of the requested information the SRO learned that “multiple assessments of the student were conducted” “that were not a part of the hearing record and were not available to the IHO”. Based in part on this information, the SRO decided that it would not consider prospective relief in the case but would “limit review of [the] matter to remediation of past harms that” were explored through the development of the underlying hearing record.

PROCEDURES Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Parents assert that they were not properly served. District asserts that proper service should be concluded. Conclusion: The SRO held that the parents were not properly served and dismissed the district’s appeal. Basis of the SRO’s Decision: The practice regulations before the Office of State Review at 8 NYCRR § 279.4(c) provides that in circumstances where the petitioner is a board of education, personal service on respondent parent is made by delivery of a copy of the notice of petition for review and petition for review to the parent. The practice regulations provide alternative ways to effectuate proper service if, upon diligent attempts, service cannot be made as required, including as directed, by a State Review Officer (SRO) (see 8 NYCRR § 279.4(c)). In this case, the district served the notice of petition for review and the petition for review by overnight mail to the attorney for the parent. Petitioner district’s petition for review did not comply with the length requirements of the practice regulations before the Office of State Review and was

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returned by that office. The district thereafter served and filed an amended notice of request for review and request for review upon counsel to the parent. The SRO held that the district did not properly serve the parent. The SRO referenced the parent’s affidavit and concluded, among other things, that the parent was not personally served. Regarding the district’s claim that the parent was not prejudiced, the SRO advised that lack of prejudice did not nullify the requirement for proper service. The SRO pointed out that the district did not deny that it failed to make service as required. Regarding the district’s claim that parents’ counsel had consented to service by delivery to the parent’s attorney, the SRO pointed out that such allegation was conclusory. Additionally, and elsewhere in the decision, the SRO referenced an affidavit of the parent that he did not waive his right to be served or authorize anyone else to accept service. The SRO concluded that the district failed to offer any explanation for its failure to properly serve the parents and that if it was unable to comply with this requirement, it was obligated to explain why it could not do so and, if necessary, pursue alternative service as provided for by the practice regulation including as required by a State Review Officer. With respect to all of the above, the SRO concluded that “[g]iven the absence of any showing that the district served the parent with the request for review, obtained an agreed upon waiver of personal service, or obtained permission from an SRO for service by means other than service upon the parent it is an inescapable conclusion that the district failed to effectuate proper service…either pursuant to Part 279 or in another manner authorized by an SRO… and that the district’s appeal [should be] dismissed”

SCOPE OF REVIEW Application of a Student with a Disability, Appeal No. 20-083, (June 26, 2020) Dispute: Which claims are properly before the State Review Officer (SRO) Conclusion: Two of the claims raised by the parent in the due process complaint notice were not raised in the request for review before an SRO and therefore are outside of the scope of the SRO’s review. Additionally, one claim that was raised in the request for review before the SRO was not raised in the due process complaint notice, and therefore, was also outside of the scope of the SRO’s review. Further, the parent includes claims asserting that the district violated Section 504 and the ADA, which the SRO held were outside its jurisdiction. Basis of the SRO’s Decision: State Regulations governing practice before the Office of State Review (OSR) set forth that any issue raised by a parent in the due process complaint notice but not identified in a party’s request for review, answer, or answer with cross-appeal before an SRO are deemed abandoned. Additionally, and with respect to the second matter, State Regulations governing practice before an SRO also set forth that any issue not raised in the parent’s due process complaint notice may not be raised for the first time on appeal to an SRO. With respect to this, the parent also did not seek the district’s agreement to expand the scope of the impartial hearing or file an amended due process complaint notice to add the claim, Furthermore here, as a matter of 2


law, the district did not “open the door” to the claim by raising evidence as a defense to a claim that was not identified in the due process complaint notice. With respect to the parent’s 504 and ADA claims, State law, supported by relevant case law, limit the jurisdiction of a State Review Office to consider matters under the IDEA or its counterpart in State law and regulations. Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) Dispute: Which claims are properly before the State Review Officer (SRO). Conclusion: Several of the parent’s claims were outside of the SRO’s review. Basis of the SRO’s Decision: The parent raised a number of claims in her due process complaint notice that were not addressed by the Impartial Hearing Officer (IHO) and the parent did not specifically appeal from the IHO’s failure to address those claims. With regard to this, State Regulations covering practice before the Office of State Review set forth that “any issue not identified in a party’s request for review, answer, or answer with cross-appeal are deemed abandoned and will not be addressed by a State Review Officer”.

APPEALS OF FEDERAL AND STATE COURTS DEFERENCE – OFFICE OF SPECIAL EDUCATION PROGRAMS (OSEP) LETTERS D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: Whether Department of Education (DOE) OSEP policy letters are relevant to the issue of whether an FBA is the “equivalent of evaluations for purposes of triggering the right to an IEE” at public expense. Conclusion: The Court of Appeals concluded that the text of the two OSEP letters cited were not due any deference. Basis of the Court of Appeals’ Decision: The Court of Appeals rejected the relevance of such DOE policy documents because it concluded that the relevant OSEP letters “ignore[] the plain text of the statute and regulations.”

ATTORNEY FEES H.C. v. New York City Dept of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195 (S.D.N.Y. June 17, 2021) Dispute: Whether the requested attorneys’ fees and costs in the amount of $92,521.19 should be approved. Conclusion: The Court approved attorneys’ fees and costs in the amount of $38,951. 3


Basis of the Court’s Decision: This case does not apply to the extent to which a parent has prevailed as both parties admit that the parents did so. The issue here is the amount of attorneys’ fees and costs that should be awarded by the Court to the parents. The court will calculate “a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours”. First, with respect to hourly rates, courts need to consider both the prevailing market rates for such legal services as well as the case-specific factors articulated in Johnson v. Ga Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See also Arbor Hill Concerned Citizens Neighborhood Ass’r v. City of Albany, 522 F.3.d 182, (2d Cir. 2008). Further, the Court pointed to Arbor Hill for the proposition that “a court must step into the shows of the reasonable paying client, who wishes to pay the least amount necessary to litigate the case effectively”. The lead counsel in the two administrative proceedings and who was also the lead counsel in this attorneys’ fee proceeding was admitted to practice in June of 2011 and has practiced “litigation” since that time. The attorney joined the Cuddy Law Firm (CLF) in 2014 and specializes in special education law. The CLF requested $400/hr. for legal time and $200/hour for travel time. The Court considered the Johnson factors and awarded the attorney $300/hr. for legal time and $150/hour for travel time. The parents seek $500/hr. for three “senior attorneys”. The prevailing market rate for experienced special education attorneys in the New York-area circa 2018 is between $350 and $475/hr. Given that the administrative proceedings here were minimally contested, in accordance with the Johnson factors, the Court ordered an hourly rate of $360/hr. For associates with three or fewer years of special education experience courts have typically approved rates of $150-$275/hr. In this case, fees were requested for the work of an “associate” who was admitted to practice law in 2009, and who practiced general litigation from 2009 until joining CLF in 2018. Consistent with the Johnson factors, the court ordered payment for the work of this CLF associate of $200/hour. Regarding a second associate, both parties agreed that her work should be paid on the basis of $100/hr. The parents also seek fees for work performed by several paralegals. The court found that $100/hour to be a “reasonable” hourly rate. Second, regarding hours spent, a court should compensate only for hours that were “reasonably expended”. It “should exclude excessive, redundant or otherwise unnecessary hours”; whether it was “particularly complicated” or “involved any significant legal issues”. Courts have “ample discretion. They should not become “green-eye accounts. To calibrate an appropriate award the court may either attempt to identify “specific hours that should be eliminated or it may simply reduce the award by a reasonable percentage”. For the first administrative proceeding, the Court reduced the number of attorneys’ fees hours requested by 20%. With respect to the first administrative proceeding, the Court found that a 20% reduction in the amount of time requested by the parents was appropriate. This was based on the fact that the hours spent preparing the DPCN were excessive, several hours billed were for tasks that were “administrative and/or secretarial in nature”, and time spent reviewing and editing billing statements for “clarity” was not compensable. With respect to travel time” from Auburn to Brooklyn, the Court awarded 2.5 hours in each direction. Regarding the second administrative proceeding, the district requested a 20% reduction in the fee hours and the Court agreed. This represented a reduction in the hours billed due to the 4


similarity in the due process complaint notices in the two proceedings, attorney billing for tasks that were “seemingly administrative or secretarial”; and the narrowed scope of the second hearing compared to the first. Regarding travel time, this was limited to five hours or two- and one-half hours in either direction. With respect to the federal court attorneys’ fees litigation, the Court found that the hours billed to prepare the complaint was excessive and that a reduction of 20% was appropriate. The Court also found that no fees should be awarded for work done after October 7, 2020 because of the district’s $40,000 October 7, 2020 offer of settlement and the fact that the plaintiffs were entitled to $37,984.40 in attorneys’ fees and costs through October 7, 2020. Regarding costs and expenses a prevailing party is entitled to reasonable costs. The Court declined to award any lodging expenses. The Court rejected the parent’s request for transportation costs. The Court concluded that “legal counsel attending a hearing in Brooklyn would likely take public transit, commuter rail, or a short car ride”. The Court held that $50 each way to be reasonable transportation costs. The Court also denied the parent’s request for payment of parking costs. Regarding copying costs, the Court found the parent’s request for 50 cents per page “excessive” and ordered payment of 10 cents, which it found was ”entirely reasonable”. The Court also found that the requested fax costs to be “unreasonable” as “modern copy machines” have the ability to scan documents so that they can be e-mailed, a procedure that costs “virtually nothing”. Finally, and with respect to “post-judgment interest” the Court pointed out that “the award of postjudgment interest is mandatory on awards in civil cases as of the date judgment is entered”

BEHAVIOR APPLIED BEHAVIOR ANALYSIS (ABA) Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent submitted evaluative data to the CSE including a neuropsychological evaluation. The parent contended that, among other things, one of the submitted reports recommended, “’a therapeutic setting that specialized in the education of students with autism’” and that “the student needed to receive instruction ‘using a research and evidence based program such as ABA’ and “that the program needed to be provided in ‘a structured and predicable environment’”. The parent asserted that such a program ‘could only be found in a nonpublic school”. The parent also wanted ten hours a week of at-home ABA. The district contends that its IEP conforms “in practice” with the parent’s neurophysiological evaluation and sets out a program that is “functionally equivalent” to the recommendations in the neuropsychological report. The district asserts that the purpose of the home-based ABA was to generalize skills to the home environment and was therefore not appropriate in the IEP. There was no dispute that the student needed a 12-month program. 5


Conclusion: The SRO concluded that the evidence in the hearing record supported the IHO’s finding that the district’s IEP did not offer the student a FAPE. Basis of the SRO’s Decision: The SRO reviewed the evaluative data submitted to the CSE by the parent. Specific recommendations therein stated that the student needed a program “such as ABA” or ABA instruction for, among other things, academics, skills and skill acquisition, prevocational skills and goals relating to academic and language skills. The SRO concluded that the district failed to explain how its IEP addressed the student’s documented need for 1:1 intensive instruction throughout the day for skill acquisition and to achieve, among other things, academic and language skill goals. The SRO concluded that while the district might argue that its recommended paraprofessional may assist the student with respect to behavior, the IEP did not provide “for the student to receive 1:1 instruction to improve functional academics and pre-vocational skills” as recommended in the evaluative material provided to the CSE by the parent. The SRO explained that there was “nothing in the hearing record to indicate that the 1:1 paraprofessional was intended to provide instruction to the student”, and further, that state regulations provided that a paraprofessional could not independently provide the recommended level of instructional services set out in the evaluations before the CSE. Additionally, the SRO indicated that while the district provided the CSE with certain limited and inadequate evaluative information, the CSE had “no independent source of information to support its position that the student did not require 1:1 instruction using ABA methods”. Lacking its own evaluations to support its recommendations that the student’s program did not require 1:1 instruction using ABA and keeping the above in mind, the SRO concluded that the hearing record supported the IHO’s finding that the IEP failed to offer the student a FAPE; a finding which included 10 hours a week of at home ABA and which amount was supported by the evaluative data submitted to the CSE by the parent.

FUNCTIONAL BEHAVIOR INTERVENTION PLAN (BIP)

ASSESSMENTS

(FBA)

AND/OR

BEHAVIOR

Application of a Student with a Disability, Appeal No. 20-083 (June 26, 2020) Dispute: The parent maintains that the district should have conducted an FBA and developed a BIP for the student for both the 2018-19 and 2019-20 school years. The district disagrees. Conclusion: The SRO concluded that for both school years the district should have pursued additional information to understand whether the supports being provided to the student were meeting the student’s needs and should have conducted an FBA and developed a BIP. 2018-19 school year Basis of the SRO’s Decision: During the 2018-19 school year, the student was in the 6th grade and enrolled in a 12-month residential program at Green Chimneys. During this time, his behavior was such that it impeded his learning as well as that of other students. Further, the student failed to respond to school-wide and class-wide support systems and individual crisis management plans. The SRO concluded that by the time of the May and August 2018 CSE meetings, the district had 6


“ample information to show that an FBA was warranted” and that this had been the case by November 2017. By 2018, the school had recommended the development of a behavioral plan but the hearing record did not contain any additional information about that plan or its effectiveness. The SRO further reported that the school obtained some data from at least 8 “incident reports” but there was no indication that the school used the resulting information to collect and review specific relevant information. Between January and August of 2018, the SRO reported that the school made used of a “redirection room” more than 40 times, reason enough under State regulation that a BIP was required. The SRO concluded that the district attempted to “supplant” the CSE’s obligations under State regulation regarding the use of the redirection room and “offload[ed]” its responsibility in the CSE process to review existing plans and develop an appropriate one to address the student’s behaviors. Regarding this, it is not clear that the CSE reviewed Green Chimney’s individual crises management plans. The SRO concluded that “the reports of the student’s sustained behaviors and the reported inconsistent progress in the behavioral area should have, at the least, triggered action by the CSE to pursue additional information to understand whether the supports being implemented were meeting the student’s needs.” The SRO pointed out, notwithstanding the parent’s request for a reevaluation, the record was silent whether the reevaluation was conducted or that a prior written notice had been provided setting forth why the requested reevaluation was unnecessary. The SRO concluded that given the fact that the SRO had also determined that there was insufficient information in the hearing record to support the student’s residential placement, “the district would have been in a better position to justify the CSE’s recommendations had it obtained additional evaluative information that explored the student’s social/emotional and behavioral needs and how those needs affected his ability to receive educational benefit”. The SRO also concluded that since “the information in the record was insufficient to establish that the student needed a residential placement, the district’s failure to conduct further evaluations including an FBA or develop a BIP constituted a serious procedural violation which contributed to a denial of FAPE for the student for the 2018-19 school year.” 2019-20 school year Basis of the SRO’s decision: During the 2018-19 school year, the district did not conduct a reevaluation of the student in response to the parent’s request. Further, neither did the district conduct an FBA or develop a BIP despite the student’s interfering behaviors during the 2018-19 school year. These behaviors were documented by quarterly treatment reviews, childcare case conferences quarterly reports, reports of the student’s occupational therapy, and reports from the student’s teacher. The hearing record also shows that during this time, Green Chimneys reported 24 incident reports and 120 instances where the student was directed to the redirection room. The SRO concluded that as of February 2019, “all of the student’s behaviors had escalated to a point where all of his skills were considered inadequate.” The student’s behaviors continued despite the implementation of a sticker chart and a tally system as well as, among other things, an individual crises management plan and supplementing individualized behavior program, treatment meeting plans and individualized classroom management goals. According to the SRO there was no evidence that Green Chimneys or the district used the data from these interventions “to establish a 7


baseline of the frequency, duration, intensity, or latency of the student’s maladaptive behavior or that it examined how the student’s behaviors varied across activities, settings people or times of day”. During the May 2019 CSE meeting, among other things, a number of the student’s difficulties were discussed and a number were reflected in the resulting IEP. Consistent with the record, among other things, the IEP also concluded that the student’s “difficulties with emotional regulation and behavioral management had a significant impact on his involvement and progress in the general education curriculum”. At the same time, Green Chimneys had “determined that it could no longer meet the student‘s needs. With respect to special factors, the IEP advised that while the student needed strategies and supports to address behavior, the student did not need a BIP. The teacher testified that an FBA was not implemented in the 2018-19 school year because of the tally system, sticker charts and the provision of extra supports in the areas of need. The school’s assistant director agreed with the teacher. She also testified that an FBA was typically recommended in a school-based, public school or BOCES setting to address one or two behavior and that the student “experienced several behaviors” and that the purpose of “attending Green Chimneys’ therapeutic program was that the entire program worked toward behavior”. The SRO concluded that “the district’s failure to conduct an FBA and develop a BIP constituted a procedural violation, which contributed to a denial of a FAPE during the 2019-20 school year, particularly given the insufficiency of the evidence in the hearing record to support the CSE’s continued recommendation of a residential placement.” In Re Student with a Disability – District of Columbia State Agency – 9-142020 Dispute: Parent sets forth that the student was denied a FAPE and should be provided with compensatory education because, among other things, behavioral support services (BSS) were not provided “as needed and agreed upon” and a BIP was not provided despite team agreement. Conclusion: The administrative officer concluded, among other things, that the student should have received behavioral support services and a BIP sooner than they were provided and determined that a program of compensatory education was appropriate. Basis of the Administrative Officer’s Decision: The district suspended in-person learning in mid-March 2020. The administrative officer concluded that the student was “very capable with proper supports” and was making overall progress before in-person learning was suspended. After the March suspension of school services, the student was provided with online services. “The student did not complete many assignments with distance learning at the end of 2019/20.” The administrative officer concluded that at the April 24, 2020 team meeting, the school psychologist agreed that a BIP should be provided and the social worker was tasked to do that. A BIP was provided following the April 29, 2020 IEP meeting. However, the BIP “was not finalized or implemented until after [June 9, 2020]”. The administrative officer found that “the student needed a BIP to be added before the end of the 2019-2020 school year” and that “[t]his might well have assisted [the student] with distance learning as [the student] had an extremely difficult time 8


staying on task and with self-initiation and was unable to complete many assignments with distance learning at the end of 2019/20”. Regarding the provision of BSS, the administrative officer found that at the time of the April 29, 2020 IEP team meeting, the IEP team agreed that the student needed behavioral support and that there was enough information at that meeting to add BSS to the student’s IEP. However, BSS services were not added until the June 12, 2020 IEP. The administrative officer concluded that this delay was “an important missed opportunity to support [the student] in distance learning, which might have been pivotal as the student did not complete many assignments with distance learning at the end of 2019-/20”. The administrative officer concluded “that taken together the delay in providing BSS and a BIP to [the student] are a denial of FAPE by not providing the support that [the student] needed when 2019-20 shifted to distance learning, causing educational harm” and therefore that the student’s April 29, 2020 IEP was not reasonably calculated to enable the student to make appropriate progress. The administrative officer concluded that the student should receive compensatory education in the form of 150 hours of independent tutoring and 20 hours of counseling in the school setting. 1

CHILD FIND KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) Dispute: Did the district comply with its Child Find obligation? Conclusion: The district complied with its Child Find obligation. Basis of the Court’s Decision: The Court set forth that a district complies with its Child Find obligation upon a showing by a preponderance of evidence that “school officials overlooked clear signs of disability and were negligent in failing to order testing or that there was no rational justification for not deciding to evaluate”. The Court continued that because a violation of Child Find is “procedural”, relief is obtained “only if the violation (1) impeded the child’s right to a Free Appropriate Public Education or FAPE, (2) significantly impeded the parent’s opportunity to participate in the decision -making process regarding the provision of a FAPE to the parents’ child or (3) caused a deprivation of educational benefits”; which is to say that “the parents must articulate how a procedural violation resulted in the ... substantive inadequacy of the education offered to the child or affected the decision-making process”. The administrative officer also found that the student did not have appropriate academic goals for the first two terms of the 2019-20 school year and that this was a denial of FAPE for which the student should receive compensatory education. The administrative officer did not break out how much of the ordered 150 hours of tutoring and 20 hours of counseling was the result of this and how much of the ordered tutoring and counseling was the result of the district’s failure to provide the student with a timely BSS program and a timely BIP. 1

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With the above in mind, the Appeals Court held that the parent “did not adequately explain how any alleged violation of the district’s Child Find obligation deprived (the child) of educational benefits or impeded (the parents’) ability to participate in the decision-making process”. The Court also advised that the parent did “not identify an appropriate remedy” for the claim.

COMPENSATORY EDUCATION Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Whether the IHO determined the appropriate amount of compensatory education. Conclusion: The SRO determined that the IHO correctly determined the amount of compensatory education due the student. Basis of the SRO’s Decision: The IHO determined that the denial of FAPE as a result of the CSE’s failure to classify the student with an emotional disturbance and a specific learning disability required that the student be provided with 540 hours of academic remediation. The IHO also allowed the district a credit or offset toward the 540 hours to the extent that the district provided the student with services subsequent to the IHO’s interim decision. Upon appeal, the district asserted, without further explanation, that the IHO did not take into account the amount of instruction that it had provided to the student. The SRO reviewed the IHO’s determination regarding the amount of compensatory education that should be provided to the student and found that there was no evidence in the hearing record to change the IHO’s determination. Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent requests 250 hours of compensatory education. The district opposes the request. Conclusion: The SRO upheld the hearing officer’s conclusion that the student should receive 250 hours of compensatory education. Basis of the SRO’s Decision: The SRO granted the student’s request for 250 hours of compensatory education in a 1:1 setting using a multisensory Orton Gillingham approach starting in February 2019 and running for a period of 25 weeks. In response to the district’s assertion that the compensatory education being provided was an Orton Gillingham program of instruction and not the ABA program recommended by the student’s neuropsychologist, the SRO explained that “the district did not offer any information to refute the parent’s evidence that the 1:1 multisensory instruction was appropriate to meet [the student’s] needs” and also that the student “demonstrated progress using that method”. Regarding the ABA instruction recommended by the neuropsychologist, the SRO wrote that that recommended instruction also “incorporated the need for the student to receive 1:1 instruction”. With this in mind, the SRO concluded that “the evidence in the hearing record does not provide a basis to depart from the IHO’s award of 250 hours of compensatory tutoring using multisensory methods to remedy the denial of a FAPE”. 10


CONSENT

There is no update at this time, check back for later versions for any update.

COVID-19 COMPENSATORY EDUCATION New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID19-related school closure in the provision of special education and related services. Conclusion: The administrative agency determined that the district did not. Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format. First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the 11


students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year. In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 Dispute: Whether the district during the 2019-20 school year properly implemented the individualized education program of a student with a disability Conclusion: The State agency held that the district failed to implement the student’s IEP and that the district should conduct an IEP meeting to determine the extent of additional services required as a result of this failure Basis of the Agency’s Decision: On March 12, 2020, the district’s IEP team met to determine the student’s IEP and placement. Among other things, the IEP team determined that the student should receive homebound services, would meet with teachers once a week to go over weekly assignments, and that tests would be read out loud when the purpose of the test is not to assess the student’s reading ability. The student’s IEP was to be implemented on March 13, 2020. As a result of the COVID-19 health emergency, on March 18, 2020 the district began providing all students “distance learning via virtual instruction”. Relying on federal guidance, the state agency advised that “[s]chool districts must provide equal access to educational opportunities to students with disabilities if those opportunities are provided to the general student population during that time, including the provision of a [FAPE]. When a school has been closed according to a statewide order each student with a disability must be offered the special education and related services identified in the student’s IEP to the greatest extent possible”. 2 During the period March 18, 2020 to the end of the school year the district provided the student with general education instruction and specially designed instruction in accordance with his IEP until the end of the 2019-20 school year. However, the district did not arrange for the student to meet virtually with a teacher each week to discuss assignments as provided for in the IEP. Nor did the district have the student’s tests read aloud as set forth in the IEP. The state agency held that the district should have “arranged to implement the student’s IEP to the greatest extent possible” and that to do both was reasonable.

The decision after complaint cited to Department of Education fact sheets dated March and March 21. See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, United States Department of Education, (March 2020); Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools while Serving Children with Disabilities, United States Department of Education (March 21, 2020). 2

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The state agency advised the district that it “must conduct an IEP meeting with the parents to determine the extent of the additional services required for the failure to implement the student’s IEP”. In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) Dispute: Was the district required to provide compensatory education services when the student’s IEP was not fully implemented because of the COVID-19 pandemic? Conclusion: The district was required to provide compensatory education services when the student’s IEP was not fully implemented because of the COVID-19 pandemic. Basis of the state agency’s decision: In response to the COVID-19 pandemic, the governor of Indiana issued executive orders on March 19, and April 2, 2020 closing all public schools in the state and requiring them to provide instruction via remote learning for the rest of the 2019-20 school year. By letter dated April 13, 2020, the Metropolitan School District of Pike Township (the district) notified parents that students with IEPs would have their plans implemented “to the best of the (IEP Team’s) ability” and that “how” the plans would be implemented “would be proportionate to the remote learning schedule and setting”. Prior to the pandemic, in accordance with the student’s IEP, the student’s program had included seven classes during the day. These classes included “small group intensive reading and writing instruction in an English language arts lab classroom once a day for 45 minutes,” “small group math instruction in a math lab classroom once a day for 45 minutes”, “and “classroom assignment and homework assistance in a resource classroom once a day for 45 minutes”. During the district’s remote learning days and after the district’s April 13, 2020 letter, live virtual instruction “was not routinely conducted’. Additionally, the student did not receive small group instructional services including “classroom assignment and homework assistance” once a day for 45 minutes from a resource room teacher. Further, the student did not receive his IEP-required “small group intensive reading and writing instruction in the English language arts lab classroom’, or his ‘small group math instruction in the math lab classroom’. The state administrative agency found that the district “did not implement the student’s IEP as written, nor did it convene the student’s (IEP Team meeting) to review or revise the student’s IEP”. Consequently, the state administrative agency concluded that the district’s IEP Team would need to consider whether the student should be provided with compensatory education services. In making this decision, the district was required to consider the “actual amount of service hours missed and the level of specialized instruction that would have been provided”, “the student’s capacity to receive education hours, considering the age of the student, the severity of the disability, the cognitive and/or attentional ability, the physical/mental stamina to receive additional instruction outside of the school day, and other mitigating factors”, and the extent to which there had been “a negative impact on the student’s progress.

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IMPLEMENTATION OF IEP In Re Eastern Howard Sch. Corp. State of Indiana Education Agency, Feb. 26. 2021 (121 LRP 9941) Dispute: Did the District properly implement the student’s IEP during COVID-19? Conclusion: The State Agency concluded that during COVID-19 the district did not implement the IEP as written and that the IEP Team should have met to revise the IEP. Basis of the Administrative Agency’s Decision: Prior to COVID-19, the student’s IEP included “guided study” in a resource room once a day, specified accommodations, and placement in general education classes in English, reading, physical education, social studies, math and science. In anticipation of the change in instruction due to COVID, the student’s “teacher of record” (TOR) advised the student’s general education teachers that she would be modifying packets for the student’s eLearning assignments and that the student would work on the modified assignments rather than work assigned by the regular education teachers. Further, the TOR would grade and report the student’s marks to the general education teachers based on the modified assignments. Additionally, except for reading, the student would not be required to participate in the general education classes. Subsequent to the cessation of in-person learning, the TOR notified the student’s general education teachers that the student would continue to have alternative assignments and that the student’s completion of progress monitoring activities with the TOR would be counted towards his participation in the general education classes as well as in the guided study class. Additionally, the guided study class would be an hour a week and not daily. Throughout Spring 2020, the student’s TOR frequently sent e-mails to check in, offered to help with assignments, and reminded the student to submit assignments on line. The student was welcome but not required to join zoom meetings for his general education classes and he was not required to do the assigned work in those classes. He was to complete the assignments provided by the TOR, which focused on his goals. The TOR also provided log-in information and a tutorial video for assigned activities by subject area. The TOR offered additional zoom sessions to review general ed materials and to progress monitor, outside of the otherwise scheduled weekly guided study period. Among other things, the TOR also emailed the student if he missed a period and reminded him to stay on top of the assignments that she provided so that the student did not fall behind. The IEP Team did not meet to address these changes. Nor did the parents and the school amend the IEP without an IEP Team meeting. The school resumed in-person learning at the start of the 2020-21 school year and continued except for days that the student was under quarantine. Consistent with his existing IEP, the student received guided study once per day and fully participated in his general education classes. He received assignments as a part of the regular education curriculum rather than different assignments from his TOR. When quarantined, he participated in electronic learning as did the other general education students. Upon review, the state agency concluded that the student’s IEP was not implemented during the spring 2020 semester but was during the fall 2020 semester. The state agency determined that the school district should consider the provision of compensatory services to put the student in the same place as he would otherwise have been in. 14


New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID19-related school closure in the provision of special education and related services. Conclusion: The administrative agency determined that the district did not. Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format. First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year.

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In Re Student with a Disability – District of Columbia State Agency – 9-142020 Dispute: Parent sets forth that the student was denied a FAPE and should be provided with compensatory education because, among other things, behavioral support services (BSS) were not provided “as needed and agreed upon” and a BIP was not provided despite team agreement. Conclusion: The administrative officer concluded, among other things, that the student should have received behavioral support services and a BIP sooner than they were provided and determined that a program of compensatory education was appropriate. Basis of the Administrative Officer’s Decision: The district suspended in-person learning in mid-March 2020. The administrative officer concluded that the student was “very capable with proper supports” and was making overall progress before in-person learning was suspended. After the March suspension of school services, the student was provided with online services. “The student did not complete many assignments with distance learning at the end of 2019/20.” The administrative officer concluded that at the April 24, 2020 team meeting, the school psychologist agreed that a BIP should be provided and the social worker was tasked to do that. A BIP was provided following the April 29, 2020 IEP meeting. However, the BIP “was not finalized or implemented until after [June 9, 2020]”. The administrative officer found that “the student needed a BIP to be added before the end of the 2019-2020 school year and that “[t]his might well have assisted [the student] with distance learning as [the student] had an extremely difficult time staying on task and with self-initiation and was unable to complete many assignments with distance learning at the end of 2019/20”. Regarding the provision of BSS, the administrative officer found that at the time of the April 29, 2020 IEP team meeting, the IEP team agreed that the student needed behavioral support and that there was enough information at that meeting to add BSS to the student’s IEP. However, BSS services were not added until the June 12, 2020 IEP. The administrative officer concluded that this delay was “an important missed opportunity to support [the student] in distance learning, which might have been pivotal as the student did not complete many assignments with distance learning at the end of 2019-/20”. The administrative officer concluded “that taken together the delay in providing BSS and a BIP to [the student] are a denial of FAPE by not providing the support that [the student] needed when 2019-20 shifted to distance learning, causing educational harm” and therefore that the student’s April 29, 2020 IEP was not reasonably calculated to enable the student to make appropriate progress. The administrative officer concluded that the student should receive compensatory education in the form of 150 hours of independent tutoring and 20 hours of counseling in the school setting. 3 The administrative officer also found that the student did not have appropriate academic goals for the first two terms of the 2019-20 school year and that this was a denial of FAPE for which the student should receive compensatory education. The administrative officer did not break out how much of the ordered 150 hours of tutoring and 20 hours of counseling was the result of this and how much of the ordered tutoring and counseling was the result of the district’s failure to provide the student with a timely BSS program and a timely BIP. 3

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In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 Dispute: Whether the district during the 2019-20 school year properly implemented the individualized education program of a student with a disability Conclusion: The State agency held that the district failed to implement the student’s IEP and that the district should conduct an IEP meeting to determine the extent of additional services required as a result of this failure Basis of the Agency’s Decision: On March 12, 2020, the district’s IEP team met to determine the student’s IEP and placement. Among other things, the IEP team determined that the student should receive homebound services, would meet with teachers once a week to go over weekly assignments, and that tests would be read out loud when the purpose of the test is not to assess the student’s reading ability. The student’s IEP was to be implemented on March 13, 2020. As a result of the COVID-19 health emergency, on March 18, 2020 the district began providing all students “distance learning via virtual instruction”. Relying on federal guidance, the state agency advised that “[s]chool districts must provide equal access to educational opportunities to students with disabilities if those opportunities are provided to the general student population during that time, including the provision of a [FAPE]. When a school has been closed according to a statewide order each student with a disability must be offered the special education and related services identified in the student’s IEP to the greatest extent possible”. 4 During the period March 18, 2020 to the end of the school year the district provided the student with general education instruction and specially designed instruction in accordance with his IEP until the end of the 2019-20 school year. However, the district did not arrange for the student to meet virtually with a teacher each week to discuss assignments as provided for in the IEP. Nor did the district have the student’s tests read aloud as set forth in the IEP. The state agency held that the district should have “arranged to implement the student’s IEP to the greatest extent possible” and that to do both was reasonable. The state agency advised the district that it “must conduct an IEP meeting with the parents to determine the extent of the additional services required for the failure to implement the student’s IEP”. In Re Long Beach Unified School District /California State Agency/10-12-20; 120 LRP 33840 Dispute: Whether, as a result of a violation of an IEP, the student should be provided with compensatory education Conclusion: The Administrative Officer concluded that the district denied the student a FAPE including for failure to materially implement an IEP, and awarded compensatory education. The decision after complaint cited to Department of Education fact sheets dated March and March 21. See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, United States Department of Education, (March 2020); Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools while Serving Children with Disabilities, United States Department of Education (March 21, 2020). 4

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Basis of the Administrative Officer’s Decision (see pp. 20, 23-25; 47-48): The student was eligible for special education as a student with an intellectual disability. The October 19, 2019 IEP provided that the student would receive, among other things, 55 per cent of time in special education direct teaching services and 45 per cent of time in regular education services, and individual speech and language services five times a month for 25 minutes per session. According to this IEP, the student would receive five hours a day of specialized academic instruction. The administrative officer concluded that the district denied the student a FAPE by virtue of the fact that because of the COVID-19 pandemic and contrary to the student’s October 2019 IEP, it did not provide the student with any instruction between March 16, 2000 and April 9, 2020. 5 The administrative officer also concluded that because of the pandemic, the district had failed to materially implement that IEP when, during the period April 23,2020 through April 28, 2020, it provided the student with only 80 per cent of the instruction that the district was required to provide under the October 2019 IEP. In other parts of the decision, the administrative officer found, among other things, that the district had also failed to offer appropriate goals and speech and language services, had failed to consider behavior interventions, had failed to assess the student with respect to behavior, occupational therapy, assistive technology and had failed to offer behavioral services. As relief, among other things, and to compensate for all of the district’s FAPE violations, the administrative officer found that the student should be provided with 45 hours of after-school speech therapy services provided by a non-public agency, and also should fund Lindamood-Bell’s “intensive and visualizing program” for four hours per day up to a total of 10 weeks, and that program’s related assessments. In Re Student with a Disability North Dakota State Agency 11-10-20;120 LRP 36828 Dispute: Whether the district deprived the student of a FAPE when it failed to completely implement an Individualized Contingency Learning Plan (ILP) during the COVID-19 pandemic. Conclusion: The IHO concluded that the district’s failure to implement the accommodations in the student’s Individualized Learning Plan (ILP) was minor, did not constitute a material failure to implement the student’s Individualized Education Program (IEP) and therefore did not deny the student a FAPE. Basis of the Administrative Agency’s Decision: Because of COVID-19, the student’s school opened with a hybrid schedule of 2 days of face-to-face instruction and 3 days of virtual instruction. The district developed an Individualized Learning Plan (ILP) for the student with online services to address school interruption during the COVID-19 pandemic. The plan contained accommodations in addition to that on the student’s IEP including “classroombased learning” to be sent home during the student’s in-home instruction and recording classroom teaching. On the first day of school, the school did not provide copies of the virtual classroom Note that apparently the district did not provide any instruction to any student during the period of time March 16March 22, 2020.

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lessons as specified in the ILP. Consequently, the school and parent arranged for the virtual lessons to be provided, the district offered to deliver the slides, but the parent picked the documents up on the same day. During the district’s second day, it delivered copies of the virtual classroom lessons to the wrong house and a neighbor delivered that to the parent the following day. The district also failed to provide the student with a copy of the classroom teaching recording. The district contends that this was “inadvertent”. As a result, the district implemented a multi-stepped and detailed plan to address the parent’s concerns. Among other things, the ILP was amended to remove the accommodation related to classroom instruction. Additionally, the student began receiving an additional 1 and ½ hours of instruction at school “to address the [ ] frustrat[ion] with any schoolwork expectation in the home setting”. Among other things, the administrative judge found that there was no evidence that “the student failed to make progress due to the school’s belated provision of copies of the virtual classroom lessons” and the student’s “general education assessments show[ed] steady growth”. The administrative judge noted that “(a) failure to implement accommodations required by a student’s IEP may result in a denial of FAPE but a minor failure to provide the services required by an IEP does not constitute a material failure to implement the IEP” denying FAPE. The administrative judge concluded that ”while it does appear that the school failed to properly implement the [ILP], the school’s failure to provide timely copies of the virtual lessons, on a few occasions during the first week of school during the COVID-19 pandemic, when everyone [was] under pressure from challenges posed by a new COVID-19 related hybrid schedule, [did] not constitute a material failure to implement the [ ] IEP” and so was not a substantive violation of the IDEA, and thus did not deny the student a FAPE. In re Mahwah Twp. Pub. Sch. Dist. (State of New Jersey Education Agency, May 4, 2021 (78 IDELR 236) Dispute: Whether the district could satisfy its obligations by offering to provide the student with a program of full time virtual learning in circumstances where the existing IEP required that the student receive nursing services in school four days a week notwithstanding that the agency that had provided the district with nursing services for the student was unable to provide the student with such services and, at the time of the hearing, the district had not been able to find replacement services. Conclusion: The district could not satisfy its obligations by offering to provide the student with a program of full-time virtual learning in circumstances where the existing IEP required that the student receive nursing services in school four days a week notwithstanding that the agency that had provided the district with nursing services for the student was unable to provide the student with such services and, at the time of the hearing the district had not been able to find replacement services. Basis of the State Educational Agency’s Decision: The parent requested emergency relief; one basis upon which was “a break in the delivery of services”. In order to obtain such emergency 19


relief, state law provided that the Judge must determine that the petitioner suffers “irreparable harm,” that the legal right at issue be “settled”; that the petitioner has a “likelihood of success on the merits”; and that the “equities/interests” balance in favor of the petitioner. In this case, the student’s IEP provided “for a one-to-one nurse to accompany the [student] while at school and on the school bus”. Prior to February 17, 2021, as were the other students at the school, the student had been attending school in-person four days a week and one day a week virtually. At that time, the nursing agency notified the parent and the district that the agency nurse who was providing services to the student was no longer willing to provide such services. The district attempted to find the student replacement nursing services but to the date of the hearing had not been able to do so. Therefore, the district asked the parent to allow the student to attend school virtually full time, as virtual instruction could be provided to the student five days a week while the district searched for a replacement nurse. The district asserts that under such circumstances, the student was not “denied any services because [the student] could access her classes and other services virtually”. The parent “asserts that [the student’s] medical conditions and behavior require the assistance of a one-to-one nurse” when the student is at school and that the “district’s failure to provide a nurse is preventing the student from attending school and receiving the services that she is entitled to in her IEP”. The parent also asserted that the student’s needs prevented her from participating effectively in virtual sessions. The state educational agency (SEA) determined that there was “a break in the delivery of [nursing] services” and that “irreparable harm [would] result if the nursing services provided for in [the student’s] IEP are not restored”. According to the SEA, there was no “dispute” that he student’s IEP provided the student with nursing services at school. That being the case, the SEA concluded that if can only be “presumed” that this was a service that the student requires at this time. And that since the student was not receiving the services that the IEP Team had “evidently determined” that the student needed “in order to attend school in-person and because [the student] has been attending school in-person four days per week and can only do so with the nurse”. The SEA also found that the district’s failure to provide nursing services agreed to by the IEP Team and set forth in the student’s IEP constituted a “well settled” “legal right” and that because of this the parent was likely to prevail on the merits. With respect to the equities/interests of the test, the SEA concluded that the harm to the student was greater than the harm to the district as the student “would not have the benefit” of the IEP-required nursing services “should [the student] continue to attend school in-person”, and that the student “would also suffer greater harm should she not attend in-person instruction/services due to the absence of nursing services”. The SEA concluded that the student “should continue to receive nursing services in accordance with the IEP currently in effect and that the district should continue to make all reasonable efforts to immediately secure [the relevant] nursing services for [the student]”. In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) Dispute: Did the district properly implement the student’s IEP during COVID-19? 20


Conclusion: The district did not properly implement the student’s IEP during COVID-19. Basis of the state agency’s decision: In response to the COVID-19 pandemic, the governor of Indiana issued executive orders on March 19, and April 2, 2020 closing all public schools in the state and requiring them to provide instruction via remote learning for the rest of the 2019-20 school year. By letter dated April 13, 2020, the Metropolitan School District of Pike Township (the district) notified parents that students with IEPs would have their plans implemented “to the best of the (IEP Team’s) ability” and that “how” the plans would be implemented “would be proportionate to the remote learning schedule and setting”. Prior to the pandemic, in accordance with the student’s IEP, the student’s program had included seven classes during the day. These classes included “small group intensive reading and writing instruction in an English language arts lab classroom once a day for 45 minutes,” “small group math instruction in a math lab classroom once a day for 45 minutes”, “and “classroom assignment and homework assistance in a resource classroom once a day for 45 minutes”. During the district’s remote learning days and after the district’s April 13, 2020 letter, live virtual instruction “was not routinely conducted’. Additionally, the student did not receive small group instructional services including “classroom assignment and homework assistance” once a day for 45 minutes from a resource room teacher. Further, the student did not receive his IEP-required “small group intensive reading and writing instruction in the English language arts lab classroom’, or his ‘small group math instruction in the math lab classroom’. The state administrative agency found that the district “did not implement the student’s IEP as written, nor did it convene the student’s (IEP Team meeting) to review or revise the student’s IEP”. As a consequence, the state administrative agency concluded that the district’s IEP Team would need to consider whether the student should be provided with compensatory education services. In making this decision, the district was required to consider the “actual amount of service hours missed and the level of specialized instruction that would have been provided”, “the student’s capacity to receive education hours, considering the age of the student, the severity of the disability, the cognitive and/or attentional ability, the physical/mental stamina to receive additional instruction outside of the school day, and other mitigating factors”, and the extent to which there had been “a negative impact on the student’s progress.

MISCELLANEOUS New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID19-related school closure in the provision of special education and related services. Conclusion: The administrative agency determined that the district did not.

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Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format. First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year. Application of a Child with a Disability, Appeal No, 20-195 at pp.13-20 Dispute: Whether the student’s unilateral placement was appropriate to meet the student’s needs. Conclusion: The SRO concluded that the student’s placement was appropriate to meet his needs and provided him with specially designed instruction. Basis of the SRO’s Decision: The SRO reviewed the hearing record to identify the student’s needs. Based on the information in the record, the SRO determined that the student had needs 22


relating to self-stimulating, aggressive, non-compliant behaviors, and elopement; pre-academic skills; was non-verbal and required the use of an augmentative and alternative communication (AAC) device to effectively communicate; community skills; activities of daily living; speechlanguage, including receptive and expressive language; and occupational therapy (OT) for improvement in the student’s gross motor skills. A student progress report dated December 2019 set forth that the student needed an appropriate learning environment including “consistent, predictable, highly structured environment using ABA with 1:1 instruction” systematically taught through ABA”. Regarding this, testimony indicated that the student could follow numerous “onestep” instruction but that “two-step” instruction was very challenging and required direct instruction. The SRO concluded that The Keswell School (Keswell) addressed the student’s identified special education needs. In particular, the hearing record showed that Keswell was “a therapeutic and educational model for children with Autism Spectrum Disorder (ASD) that integrates ABA, Speech therapy and Occupational therapy. The school day runs from 8:45 am to 4:45 pm. The student received 1:1 instruction in a class of five students between the ages of 7-9. Among other things, Keswell provided the student with ten, 45-minute periods and one 30-minute period each day. Additionally, the school provided the student with individual OT four times per week as a pull-out service and also once per week pushed-in service a small group. The student also received speech-language therapy once a day for 45 minutes as a push-in service and also physical therapyrelated activities. The school assessed the student’s behavior and developed “behavior reduction plans” to address the student’s interfering and other behaviors. Additionally, the school provided the parents with suggestions on what they could do at home to assist the student in the learning process both during remote instruction and other work. With respect to the district’s claim that Keswell was inappropriate because its instructors were not Board-Certified Behavior Analysts (BCBAs) or Licensed Behavior Analysts (LBA), the SRO noted that, and citing to Florence County Sch. Dist/ Four v. Carter, 510 U.S. 7, 13-14 (1993), that “it (was) well established that a private school need not employ certified special education teachers in order to be an appropriate unilateral placement. In this case, the student’s classroom supervisor held a master’s degree in special education. The student’s head teacher was pursuing a master’s degree in special education and her BCBA. Additionally, one of the ABA therapists in the student’s classroom held a New York State certification for special education, another held a bachelor’s degree and was pursuing certification as an RBT, the third had a master’s degree in special education and was pursuing her BCBA, and the fourth held a bachelor’s degree. The student’s speech-language therapist and Occupational therapist were both certified. Regarding the district’s claim that the parents’ unilateral placement at Keswell was not appropriate because it did nor provide the student with instruction specially designed to meet his unique needs, the SRO concluded that, while some aspects of the program at Keswell were the same for all students, the testimony also showed that the content of the student’s educational program such as goals and objectives and the student’s educational plans were specific to his needs. With regard to the COVID-19 pandemic, on or about March 16, 2020, the student had a “remote learning plan” and also worked on work packets that were sent home for him to use. From March 23


to the end of the 12-month school year, the student received remote instruction and “zoom” sessions. The parents received parent training, also remotely. The student’s instruction was done through computers and more specifically by a laptop, an iPad and/or an iPhone. The school’s remote programing included 1:1 direct instruction with the parents or his brother sitting with him during the live sessions. Keswell staff worked closely with the parents and provided them with training in order to maximize the student’s learning inside and outside of his remote sessions. Regarding the student’s remote sessions, the student received four to five 30-minute sessions per day and one 15-minute session per day. Speech and occupational therapy took up two of the student’s four to five daily sessions. The associate director was also involved in the student’s remote learning and she met weekly with the student’s classroom supervisor. Provision of Educational Services: L.V. v New York City Dep’t of Educ., No. 19-CV-05451 (AT)(KHP) 2020 WL 6782234 Dispute: The level and type of services required during COVID. Conclusion: The district is required to provide in-school services to the student if that could be done safely and in compliance with guidance from health authorities. Additionally, an independent assistive technology evaluation should be conducted to assess the student’s individual needs and the software required to deliver the student’s services remotely if they could not be provided safely in person. Basis of the Court’s Decision: The Court, among other things, ordered that the student’s (whose parent asserted his disability was autism) pendency placement include “in-person services” described in the IHO’s pendency order “to the extent such can be done safely during the current COVID-19 pandemic and in compliance with guidance from health authorities” and that the Department “immediately conduct an independent assistive technology evaluation to assess the student’s individual needs and the software required to deliver the student’s required services remotely, if they cannot be provided safely in person during the pandemic” (see Dec. at *1). SETSS Services at Home: Application of a Student with a Disability, Appeal No. 20-122 (Sept. 17, 2020) Dispute: Whether SETSS services should be provided at home during COVID. Conclusion: The SRO held that SETSS services at home should be provided during COVID. Basis of the SRO’s Decision: Both parties appeal from the IHO’s determination that the district should not pay for SETSS at the student’s home for any services after COVID-19” because SETSS was for support in the classroom and not at home”. The SRO held that the hearing record did not support the IHO’s determination that the student no longer received any instruction that could be supported by SETSS. The SRO pointed out that after the student’s school closed in March 2020, the school continued on-line work. The SRO also pointed out that the SETSS provider testified that she provided the student with 10 hours a week of instruction and that she “worked around the student’s school schedule” in arranging the SETSS services.

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The SRO also relied on state and federal COVID policy documents. The SRO pointed to federal guidance that provided that “(i)f an LEA continues to provide education opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE…[and further] SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA. The SRO also pointed to State guidance that set out the following: FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. During this emergency, schools may not be able to provide all services in the same manner they are typically provided and to the greatest extent possible, each parentally placed nonpublic school student can be provided the special education and related services identified in the student’s individualized education services plan on an equitable basis as compared to other students with disabilities enrolled in the public school with an IEP. The SRO concluded that “as the district was responsible for the student’s IESP during the period of time the schools were closed due to the Covid-19 pandemic and, as with the rest of the school year, there is no indication in the hearing record that the district fulfilled this obligation”, the IHO’s determination to exclude from relief the period of time that schools were closed because of Covid19, the IHO’s decision “must be overturned”. Pendency Placement – Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Whether the NYC Department of Education and Chancellor Carranza (DOE) should make payments for certain school-related services at or related to students’ pendency placements at the International Institute for the Brain (iBRAIN) including special transportation and nursing services since the start of the COVID-19 pandemic in March 2020 and that at least part of which were reimbursements to iBRAIN. The parents assert that payment for such services should be made. DOL argues that prior to payment for such services it has the right to be provided with specification, documentation and additional information. Conclusion: The Court ordered the parties to report to it regarding “(1) the history of communication between the Plaintiffs and DOE; (2) the information requested by DOE (3) the information provided by Plaintiffs in response to DOE’s requests; (4) DOE’s rationale for finding such information inadequate; (5) Plaintiff’s rationale for failing to provide any additional information requested by DOE.” Basis of the Court’s Decision: The Court indicated that it drew “a clear distinction between having pendency funds completely cut off and undertaking an administrative process – including providing information – to receive that funding. Plaintiffs have a right [it said] to the IDEAguaranteed pendency funding; they do not, however, have a right to a blank check. That is, they 25


are not entitled to receive that funding in whatever manner they desire, irrespective of reasonable documentation requirements of the DOE”. Prospective Relief: Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request. Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”. Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding. Tuition Reimbursement Equitable Considerations: Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) Dispute: The parents assert that equitable considerations support their tuition reimbursement claim. The district disagrees Conclusion: The SRO concludes that equitable considerations support the parents’ claim for tuition reimbursement. Basis of the SRO’s Decision: The SRO concluded that “at all times the parents cooperated with the CSE process” and that no “minor irregularities” rose to “the level of non-cooperation or violation of procedural requirements”. Regarding Covid, the SRO concluded that even though the student returned home from the residential; school because of the pandemic, the student “continued to receive many of the special education supports, services, and individualized instruction to meet [the student’s] unique needs through Middlebridge’s (MDS) remote learning program.

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COMMITTEE ON SPECIAL EDUCATION (CSE) PARENT SUBMITTED EVALUATIONS AND DATA C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that a new evaluation required the CSE to revise the student’s IEP. The district did not agree. Conclusion: The Court upheld the SRO’s conclusion that the new evaluation did not require the CSE to revise the student’s IEP. Basis of the SRO’s Decision: The Court held that substantial evidence supported the SRO’s determination that the new evaluation was “sufficiently similar to the information already before the CSE” and that a revision of the IEP was therefore not necessary. Important to the Court was that (1) the parents never requested a CSE meeting after the issuance of the new evaluation, (2) the private school that the student attended took “no meaningful action” when it received the report, (3) “more fundamentally,” the “substantive propriety” of the IEP was unchallenged in light of the fact that the CSE was familiar with the student’s history and behaviors the focus of the parent’s new evaluation and (4) even though the new evaluation included an additional diagnosis, that by itself does not require a revision of the student’s IEP as what is important is the extent to which an IEP “gather[s] relevant functional, developmental and academic information … that may exist in determining … the content of the student’s [IEP]”. The Court also found that the SRO had correctly concluded that the new evaluator’s rationale for a residential therapeutic placement for the student “was substantially the same” as that contained in other parent reports and that therefore one more “parent-selected professional’s opinion would not have made a difference in the CSE’s evaluation”. C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that providing an evaluation to the district required the CSE to reconvene. The district argues that the IDEA has no such requirement. Conclusion: The district Court upheld the SRO that the IDEA did not require the CSE to reconvene upon its receipt of such information. Basis of the Court’s Decision: The Court held that the IDEA only required the CSE to reconvene at least annually and at that time, to revise the IEP as appropriate to address, among other things, new information from the parents but that there was no statutory mandate to reconvene whenever additional information comes to their attention. Regarding this, the Court also pointed to the fact that the CSE reviewed the evaluation at its next CSE meeting. The Court also held that even if there were such a requirement, the evaluation “did not contain any new substantive information that would have required the CSE to revise [the student’s] IEP and change [the student’s] placement.” 27


Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent submitted evaluative data to the CSE including a neuropsychological evaluation. The parent contended that, among other things, one of the submitted reports recommended, “’a therapeutic setting that specialized in the education of students with autism’” and that “the student needed to receive instruction ‘using a research and evidence based program such as ABA’ and “that the program needed to be provided in ‘a structured and predicable environment’”. The parent asserted that such a program ‘could only be found in a nonpublic school”. The parent also wanted ten hours a week of at-home ABA. The district contends that its IEP conforms “in practice” with the parent’s neurophysiological evaluation and sets out a program that is “functionally equivalent” to the recommendations in the neuropsychological report. The district asserts that the purpose of the home-based ABA was to generalize skills to the home environment and was therefore not appropriate in the IEP. There was no dispute that the student needed a 12-month program. Conclusion: The SRO concluded that the evidence in the hearing record supported the IHO’s finding that the district’s IEP did not offer the student a FAPE. Basis of the SRO’s Decision: The SRO reviewed the evaluative data submitted to the CSE by the parent. Specific recommendations therein stated that the student needed a program “such as ABA” or ABA instruction for, among other things, academics, skills and skill acquisition, prevocational skills and goals relating to academic and language skills. The SRO concluded that the district failed to explain how its IEP addressed the student’s documented need for 1:1 intensive instruction throughout the day for skill acquisition and to achieve, among other things, academic and language skill goals. The SRO concluded that while the district might argue that its recommended paraprofessional may assist the student with respect to behavior, the IEP did not provide “for the student to receive 1:1 instruction to improve functional academics and pre-vocational skills” as recommended in the evaluative material provided to the CSE by the parent. The SRO explained that there was “nothing in the hearing record to indicate that the 1:1 paraprofessional was intended to provide instruction to the student”, and further, that state regulations provided that a paraprofessional could not independently provide the recommended level of instructional services set out in the evaluations before the CSE. Additionally, the SRO indicated that while the district provided the CSE with certain limited and inadequate evaluative information, the CSE had “no independent source of information to support its position that the student did not require 1:1 instruction using ABA methods”. Lacking its own evaluations to support its recommendations that the student’s program did not require 1:1 instruction using ABA and keeping the above in mind, the SRO concluded that the hearing record supported the IHO’s finding that the IEP failed to offer the student a FAPE; a finding which included 10 hours a week of at home ABA and which amount was supported by the evaluative data submitted to the CSE by the parent.

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DECLASSIFICATION & TERMINATION OF SERVICES Kevin T. v. Elmhurst Community Sch. Dist., No. 205, No. 01 C 0005, 2002 WL 433061 at *14 (U.S.D.C. Northern District of Ill. Eastern Division, Mar 20, 2002) Dispute: The district asserts that it can graduate the student as soon as the student has completed the number of credits to do so. The parents disagree. Conclusion: The Court held that the student had a right to receive special education until he was 22 in circumstances where even though the student met the general graduation requirements but did not make progress on, or complete, the student’s IEP’s goals and objectives. Basis of the Court’s Decision: In this case, the Court concluded that the district unilaterally graduated the student when the student met the general graduation requirements. The Court further found that in making this decision the district did not consider the student’s progress on, or completion, of his goals and objectives before it decided to unilaterally graduate the student. Regarding this, the Court found that the district did not discuss the student’s goals and objectives when making the decision to graduate the student. Based on this, the Court found that the District inappropriately graduated the student and reversed the IHO’s decision. Because of this, the court ordered the district to reimburse the parents for the reasonable expenses of the private school that the student was attending for the period of time after the district ceased its funding for the private school and before the Court issued its pendency order.

DISCIPLINE OF STUDENTS

There is no update at this time, check back for later versions for any update.

DUE PROCESS IMPARTIAL HEARINGS IMPARTIAL HEARING OFFICERS (IHO) Bias - SRO: Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 Dispute: The parent asserts that the IHO was biased and that the IHO decision was insufficient. The district disagrees. Conclusion: The SRO concluded that the IHO was not biased against the parent and that the IHO decision was sufficient.

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Basis of the SRO’s Decision: The SRO found that the IHO decision “set forth a detailed recitation of the facts,” “applicable legal standards,” and “controlling case law” and that “as a whole”, the decision “contains sufficient citations such that the lack of elaboration” in part of the decision did “not provide an independent basis for reversal.” Regarding the parent’s specific “examples” of bias,” the SRO found that “while the IHO nay have erred in specific determinations, such allegations of error are the subject of [the SRO’s review]” and “do not rise to the level of establishing bias by the IHO”.

SCOPE OF REVIEW Application of a Student with a Disability, Appeal No. 20-101, (8/3/20) Dispute: Parents assert that the IHO properly determined that the Churchill School was an appropriate placement. District asserts that IHO improperly analyzed the appropriateness of the unilateral placement subsequent to the finding that the district offered the student a FAPE. Conclusion: The SRO concluded that the IHO’s determination that Churchill was an appropriate placement was final and binding on the parties. Basis for SRO’s decision: IHO evaluation of the adequacy of the student’s unilateral placement subsequent to a finding that a district provided a FAPE is not barred in circumstances where the district did not raise any legal or factual issues relative to the IHO’s conclusion regarding the adequacy of the unilateral placement. Application of a Student with a Disability, Appeal No. 20-101 (8/3/20) Dispute: Which claims are properly before the SRO. Conclusion; Several of the claims raised by parents are outside the scope of the SRO’s review. Basis for SRO’s Decision: State Regulations governing practice before the Office of State Review set forth that any issue not identified in a party’s request for review, answer, or answer with cross-appeal are deemed abandoned.

SUFFICIENCY OF DECISION Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 Dispute: The parent asserts that the IHO was biased and that the IHO decision was insufficient. The district disagrees. Conclusion: The SRO concluded that the IHO was not biased against the parent and that the IHO decision was sufficient. Basis of the SRO’s Decision: The SRO found that the IHO decision “set forth a detailed recitation of the facts,” “applicable legal standards,” and “controlling case law” and that “as a whole”, the decision “contains sufficient citations such that the lack of elaboration” in part of the decision did 30


“not provide an independent basis for reversal.” Regarding the parent’s specific “examples” of bias,” the SRO found that “while the IHO nay have erred in specific determinations, such allegations of error are the subject of [the SRO’s review]” and “do not rise to the level of establishing bias by the IHO”.

TELEPHONIC HEARINGS/IN-PERSON HEARINGS “After Hours”: Application of a Student with a Disability, Appeal No. 20-009 (March 19, 2020) Dispute: The parent asserts that an impartial hearing officer (IHO) could not require a parent to appear in person at an impartial hearing; could not prohibit the taking of telephonic testimony, and could not decline to schedule an impartial hearing at 4:00 pm. The district disagrees Conclusion: The SRO concludes that there was insufficient support for the IHO’s findings that, in effect, the hearing could not be conducted “at a time and place that [was] reasonably convenient to the parents and child involved” (see 34 CFR § 300.515[d]; 8 NYCRR § 200.5[j][3][x]) Basis of the SRO’s Decision: The IHO dismissed the hearing request “for want of prosecution in a timely matter without prejudice” because the parent was not able to appear in person but by telephone and that because of her work schedule she was not available during regular school hours and, for the same reason, had requested that the hearing commence at 4 pm. The SRO explained that State regulations set forth the procedures for conducting hearings (see 8 NYCRR §200.5[j]), that “generally” “IHO’s are provided with broad discretion, subject to judicial and review procedures, in how they conduct an impartial hearing as long as they “’accord each party a meaningful opportunity’ to exercise their rights” and that the parties to a proceeding are generally required “to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing”. The SRO pointed out that IHOs “[have] discretionary authority to receive testimony by telephone provided that the testimony is made under oath and subject to crossexamination”. (see 8 NYCRR § 200.5[j][3][xii][c]). The SRO also pointed out that the IHO had “categorically refused” to allow the hearing to proceed without the parent’s attendance and had established a policy of requiring parents to attend hearings in person notwithstanding that it was the district’s burden to show that its program was appropriate. Relative to scheduling, the SRO pointed out that regulations require the hearing ‘be conducted at a time and place which is reasonably convenient to the parent and student involved” (see 34 § CFR 300.515[d]; 8 NYCRR §200.5[j][3][x]) and “that State regulations do not restrict IHOs from scheduling hearings on days and at times when school is not in session”. In fact, the SRO wrote that “the IHO should consider whether it is necessary to schedule hearing dates outside of business hours, or on non-school days, or in locations other than those commonly utilized by the district, in order to comply with the regulatory obligation to timely issue a decision” and that “to ensure the prompt completion of the impartial hearing, it may be necessary for the IHO to issue subpoenas requiring witnesses to be available outside of standard school hours”. The SRO also pointed to State regulations that it said “explicitly authorized” telephonic (and presumably video) testimony to ease scheduling difficulties (see 8 NYCRR § 200.5[j][xii][c]).

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The SRO concluded that there was “insufficient support for the IHO’s findings that, in effect, the hearing could not be ‘conducted at a time and place that was [reasonably] convenient to the parents and child involved’” (see 34 CFR § 300.515[d]; 8 NYCRR § 200.5[j][3][x]). As a consequence, the SRO concluded that the IHO did not conduct the impartial hearing in a manner with due process, and that the IHO erred in dismissing the parent’s complaint.

ELIGIBILITY FOR SPECIAL EDUCATION SERVICES CLASSIFICATION Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Whether the CSE properly determined the student’s eligibility for special education services. Conclusion: The SRO upheld the IHOs determination that the student was eligible for special education services. Basis of the SRO’s Decision: The SRO concluded that the IHO’s determination that the student was eligible for services as a student with a disability was “thorough and well-reasoned”. In this case, it was the conclusion of both the parents’ psychologist and the district’s psychiatrist that the student should be classified as a student with a disability and in particular, as a student with an emotional disturbance. Regarding this, the SRO cited to the IHO’s conclusion that while the district disagreed with the parents’ and district’s evaluations it did not disagree with the methodology of testing, the testing, or the results of the testing. Additionally, the SRO wrote that “significantly” not only did the district disagree with the recommendation as to what services to provide but also the “threshold issue” of classification and pointed to the IHO’s conclusion that “[w]ith two medical professionals offering multiple reasons for classification as emotionally disturbed, any CSE would be remiss to depart from them without a clear and substantial reason to do so”. Additionally, the SRO concluded that the IHO rightly focused on a “disconnect” between teacher responses on a district psychoeducational evaluation and teacher interviews by the school psychologist and that this, and the student’s poor performance in math and science “should have given pause to the CSE” when determining criteria relative to the student’s eligibility as a student with an emotional disturbance. Further, the SRO pointed to the fact that the student failed his ninth-grade math and science regents’ examinations and science class. The SRO agreed with the IHO that the fact that the student went to summer school and addressed those deficits was not determinative. In the first place, the SRO pointed out that while not every student attending summer school is a student with a disability, such should not be looked at “in isolation” but as “one part of the student’s profile”. Second, the SRO also pointed to the IHO’s recognition that the private psychologist and district’s psychiatric assessment both recommended some type of special education services and that the passing of the student’s regents’ exams and science class in summer school could not “in and of itself” be considered a “success”. This, since this “reteaching” “is a form of intervention that cannot be ignored when there are multiple reports and test (sic) that suggest that this student is struggling because of issues identified in multiple medical reports”. 32


The SRO also pointed to the IHO’s conclusion that the “medical reports coupled with the weight of the evidence” showed that the district erred in concluding that the student “did not satisfy the criteria” of a student with an emotional disturbance and that “contrary to the district’s allegation on appeal”, the IHO did not overlook or fail to make findings regarding the impact of the student’s emotional struggles on his educational performance. With all of this in mind, the SRO approvingly referenced the IHO’s finding that the “district’s failure to classify the student with an emotional disturbance or learning disability which rendered the student ineligible for special education services ‘resulted in a substantive denial of FAPE’”.

EVALUATION AND REEVALUATION

There is no update at this time, check back for later versions for any update.

EXHAUSTION OF ADMINISTRATIVE REMEDIES Ventura de Paulino v New York City Dep’t of Educ. 959 F.3d 519 (2d Cir. 2020) Dispute: The district claims that the parents should have exhausted their administrative remedies before an IHO and/or an SRO in a case involving pendency placement. The parents assert that the exhaustion doctrine does not apply in such a case. Conclusion: The Second Circuit held that the exhaustion of administrative remedies doctrine did not preclude a Court from addressing an allegation of pendency before it was heard by an IHO and/or an SRO. Basis of the Court’s Decision: The Second Circuit pointed out that while the IDEA requires that available administrative remedies be exhausted before a lawsuit is filed in federal court, there are certain exceptions to that general rule; one of which involve the allegation of a violation of the “stay put” or pendency placement provision of the IDEA. G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----Fed.Appx. -- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) Dispute: Whether plaintiffs exhausted their administrative remedies. Conclusion: The Circuit Court found that the District Court did not err when it concluded that the plaintiffs did not exhaust their administrative remedies. Basis of the Court’s Decision: It was not disputed that certain of plaintiffs’ claims were “not raised” in any due process complaint notice or before any IHO and, further, that as a general rule, the plaintiffs must exhaust their administrative remedies before filing suit. Plaintiffs argued, however, that in this case, the doctrine of “futility” should allow their claims to be considered. The Circuit Court ruled that notwithstanding this doctrine it was appropriate to require the plaintiffs to exhaust their administrative remedies. This was because the plaintiffs had not 33


developed a record with respect to the particular claims at issue and also had not allowed individuals with expertise in education to make determinations relative to these claims “in the first instance”. The court further pointed out that plaintiffs had not shown that adequate remedies were not “reasonably available” or that the wrongs plaintiffs complained of “could/would not” have been corrected by the administrative process.

EXTENDED SCHOOL YEAR KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) Dispute: Was the district required to provide the student with extended school year services? Conclusion: The Appeals Court agreed with the District Court and the SRO that the district was not required to provide the student with extended school year services during the summer of 2016. Basis of the Court’s Decision: The Appeals Court set forth that “(t)he IDEA’s implementing regulations require school districts to ensure that extended school year services are available as necessary to provide FAPE”. The Appeals Court concluded that the District Court correctly found that the district’s denial of the parent’s request to provide the student with services during the summer of 2016 did not deprive the student of a FAPE and that the record “amply supports the SRO’s conclusion that (the student) was not entitled to summer services”. The Court pointed to the SRO’s conclusion that the student “did not lose any credits during her hospitalization in the spring and summer of 2015 and remained on track to graduate on time following her return to school.in the fall”. Nor did the student require “an inordinate period of review at the beginning of the school year to maintain academic progress” and instead made substantial academic progress without such. Additionally, the student did not suffer any academic or emotional “regression” during the winter breaks. The Appeals Court concluded that the SRO thus “adequately addressed any concerns that (the student) might regress without a structured and supportive environment during the summer months”. The Appeals Court concluded that the SRO’s opinion was “thorough and careful” and therefore “merits our deference”. KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. February 26, 2021) Dispute: The parent asserts that the student was eligible to receive extended school year services. The district disagrees. Conclusion: The Appeals Court determined that the SRO and District Court appropriately held that the student was not required to be provided with extended school year services in order to receive a FAPE. Basis of the Court’s Decision: The Appeals Court agreed with the District Court and the SRO that the student did not need to be placed in a summer program during the 2016-17 school year in order to receive a FAPE. Broadly speaking, the Appeals Court held that the relevant consideration was whether extended school year services were necessary in order for the student to receive a 34


FAPE. In this case, the Appeals Court held that the record “amply supports the SRO’s conclusion that the student was not entitled to summer services”. In particular, the Appeals Court pointed out that the student “did not lose any credits during her hospitalization in the spring and summer of 2015” and that the student “remained on track” to graduate when she returned to school in the fall of 2016. The Appeals Court also pointed out that the student “did not require an inordinate period of review at the beginning of the [2016-17] school year to maintain academic progress; to the contrary” [the student] made substantial academic progress without such review”. The Appeals Court also held that the student “suffered no regression -- academically or emotionally -- over the winter breaks” and that therefore the SRO had “adequately addressed any concerns that [the student] might regress without a structured and supportive environment during the summer months”.

FREE APPROPRIATE PUBLIC EDUCATION (FAPE)

There is no update at this time, check back for later versions for any update.

INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE) D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: “The issue is whether an FBA is an evaluation with which a parent may disagree to obtain an IEE at public expense.” Conclusion: In an issue of first impression, the Court of Appeals found that an FBA is NOT an evaluation that triggers a Parent’s right to an IEE at public expense. Basis of the Court of Appeals’ Decision: The Court of Appeals based its decision on its conclusion that an evaluation under IDEA was a “comprehensive, multi-focused assessment of ALL areas of the child’s disability” (emphasis supplied) and was limited to an initial evaluation and a reevaluation which was consistent with the IDEA’s statutory and regulatory language as well as “the purpose of the publicly funded IEE right”. The Court concluded that an FBA was simply an” assessment tool” or “evaluation material”— "a purposefully targeted examination of the child’s behavior” – "that a school can use in conducting an evaluation”. The Court further concluded that if the parents were not satisfied with the evaluations provide by the district to date, they could have requested another reevaluation and if they disagreed with that, they could have then requested a comprehensive reevaluation at public expense. The Court of Appeals also advised that neither the statue nor the regulations precluded a parent from challenging an evaluation on the basis that its scope was too limited.

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INDIVIDUALIZED EDUCATION PROGRAM (IEP) AMENDMENT Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., No. 19-270, -- F.3d – 2021 WL 800579 (2d Cir. Mar. 3, 2021) Dispute: Whether a district may unilaterally amend a student’s IEP during the course of the 30day resolution period after the filing of a due process complaint. Conclusion: In a matter of first impression, the appeals court determined that a district may not unilaterally amend a student’s IEP during the course of the 30-day resolution period the filing of a due process complaint but must do so by the end of the 10-day notice requirement provided by the statute for the parent to set forth their concerns and advise the district that they intend to enroll the student in a unilateral placement. Basis of the Appeals Court’s Decision: In this case, the CSE convened on June 9, 2016 to develop the student’s IEP for her seventh-grade school year. Albeit the district contended that at that meeting the CSE recommended a 15:1+1, the Court indicated that it was unclear whether the CSE recommended such a class or a 12:1+1 class. At the end of June, a parent of the student visited the middle school that the student would attend and was advised by staff there that because the student would be in seventh grade, she would be in a 15:1+1 class. On August 17, the parents provided the district with a 10-day notice. Among other things, the notice advised that the district had not yet provided an IEP and that in any event, the district “failed to recommend a small class.” The 10-day notice also advised the district that the parent intended to enroll the student in a unilateral placement. Late in August and a day or so after the expiration of the 10-day notice period the district issued a written IEP which advised that the student would be placed in a 12:1+1 class. The parents filed a due process complaint dated September 26. The parents and representatives of the district met for a reconciliation meeting on October 7. At this meeting, school staff advised that the August IEP had mistakenly advised that the student would be placed in a 12:1+1 class instead of a 15:1+1 class. The district repeated this in a letter dated October 21, 2016. Subsequent to the expiration of the resolution period the district unilaterally issued a revised IEP dated September 26, setting forth that the student would be attending 15:1+1 classes. An amended due process complaint was thereafter filed to address the October IEP. Among other things, the amended complaint advised that while the parent had been told that the student would be placed in a 15:1+1 class the IEP advised that the student would be placed in a 12:1+1 class and that therefore the student had been recommended a placement that the district was unable to provide which constituted a denial of a FAPE. Consistent with specific language in R.E. v. New York City Department of Education, 694 F.3d 167, 188 (2d Cir 2012), 6 the SRO and the District Court assumed that the district could unilaterally If, at the end of the resolution period, the parents feel their concerns have not been adequately addressed and the amended IEP still fails to provide a FAPE, they can continue with the due process proceeding and seek reimbursement. The adequacy of the IEP will then be judged by its content wat the close of the resolution period.

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correct an IEP before the end of the resolution period. Upon review, the appeals court, however, determined that such language was “non-binding dictum”. Thereafter and in addressing the question of whether a district may unilaterally amend an IEP during the reconciliation period, the Appeals Court determined “that the text and structure of the IDEA necessarily foreclosed this. With respect to the text of the statute the appeals court pointed out that the IDEA “gives no evidence” to suggest that a school district has the right to unilaterally amend the IEP during the resolution period. Further, the IDEA provides “detailed procedures” to amend an IEP; none of which include the unilateral amendment of an IEP during the resolution period. Finally, the appeals court said that the IDEA’s “description of due process hearings conflicts with the notion of a school district’s unilateral right to make IEP amendments during the resolution period”. With respect to the structure of the IDEA, the appeals court held that it was the 10-day notice period that provided the district with the opportunity to offer changes in an IEP that would address the parent’s objections to it and that this period was prior to a parent’s enrollment of the child in a private school and the filing of a due process complaint.

MISCELLANEOUS Retrospective Testimony: C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that the SRO relied on “retrospective testimony” to find that the district met its burden to show that the recommended program was appropriate. The district disagrees that the SRO relied on such testimony. Conclusion: The Court concluded that the SRO did not rely on such testimony in order to prove that the district’s program was appropriate. Basis of the Court’s Decision: The second circuit has held that an IEP “must be evaluated prospectively as of the time of its drafting … and therefore retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. R. E v. New York City Dept of Educ. 167, 186 (2d Cir. 2012) Because of this “a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP”. id. at 185. However, all testimony that goes beyond the face of the IEP is not prohibited as it is permissible for testimony “that explains or justifies the services listed in the IEP.” id. at 186. In this case, the parents assert that a district witness testified on a retrospective basis with respect to the IEP and that the SRO relied on such to find that the district provided the student a FAPE. The Court pointed to the fact that relevant testimony “merely” explains or justified the relevant portion of the IEP and that the SRO “explicitly stated” that to the extent that the witnesses’ testimony went beyond explaining the IEP, it was not relied on. The Court further found that to the extent that the particular witness’s testimony “exceeded her bounds by discussing some topics not discussed at a CSE meeting” “or written in [the] student’s IEP”, the witness’s testimony was not “dispositive” of whether the district offered the student a FAPE. 37


PLACEMENT KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) 2015-16 School Year Dispute: Did the district’s recommendation that the student attend a specified therapeutic day program provide the student with a FAPE? Conclusion: The Appeals Court agreed with the SRO’s and the District Court’s conclusions that the district’s recommended program provided the student with a FAPE. Basis of the Appeals Court’s Decision: The district recommended that the student attend a specific therapeutic day program for the 2015-16 school year, which the court indicated provided “small classes” and accommodated the student’s other educational needs. The parent rejected the district’s placement largely on the basis that school personnel were not trained in a particular methodology (dialectical behavior therapy or “DBT”). The Court set forth that the IEP did not call for the use of the parent’s desired methodology other than that the recommended placement be supportive of the use of that methodology by the student’s psychologist. Regarding this, the Court reviewed the record and concluded that the recommended day treatment program would be supportive of the student’s progress in her treatment by her psychologist. The parent also asserted that the student was not appropriately grouped with other students in the recommended program but the Court found that the evidence did not support this claim. 2016-17 school year Dispute: Did the district’s recommendation that it place the student in a “new DBT-based program” provide the student with a FAPE? Conclusion: The Appeals Court agreed with the SRO’s and District Court’s conclusions that the district’s recommended program provided the student with a FAPE. Basis of the Appeals Court’s Decision: The district recommended that the student be placed in a “new-DBT-based program” at the high school that the student attended in 2015. The student’s psychologist recommended that the student remain at her present school “where she had succeeded academically and emotionally”. Citing to Endrew F., the Court agreed with the SRO that the psychologist’s opinion that the student’s current school would be “better” for the student could be “discounted” as “the focus of the inquiry is on the appropriateness of the offered placement, not whether an alternative placement would have been preferable”. Regarding this, the Appeals Court reviewed the record and agreed with the SRO that the student was likely to make “meaningful progress” and be “well supported” because of the DBT-based program at the recommended school.

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KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) Dispute: The parent asserts that the district’s recommended educational placements denied the student a FAPE. The district disagrees and sets forth that its placements provided the student with a FAPE. Conclusion: The Second Circuit agreed with the SRO and the District Court that the district’s recommended placements for the 2015-16 and 2016-17 school years provided the student with a FAPE. Basis of the SRO’s Decision: With respect to the 2015-16 school year, the student’s IEP recommended that the student attend a private therapeutic day program. The Appeals Court indicated that this program “was capable” of providing the student with small classes and “accommodating” the student’s other educational needs. In response to the parent’s argument that the recommended placement was inappropriate because its staff was not trained in a particular methodology --(here, dialectical behavior therapy [DBT]), the Appeals Court pointed out that the IEP did not require that the student be provided with this methodology but only that the recommended program be supportive of the DBT treatment that the student received from her private psychologist. With respect to this, the Appeals Court found that the record supported the conclusion that the staff of the recommended private school was in fact “capable of supporting” the student’s progress in her DBT treatment by the student’s psychologist. The Appeals Court also found that the record supported the District Court’s conclusion that the student would not have been “mismatched” with her classmates at the recommended private school. With respect to the 2016-17 school year, the Appeals Court held that the District Court appropriately found that the SRO had properly concluded that the recommended placement offered the student a FAPE. More specifically, the school district offered to place the student in a new DBT-based program at a public high school. The Appeals Court also held that the SRO “did not err” by discounting the recommendation of the student’s private psychologist that an alternative placement would have been “better” for the student. The Appeals Court indicated that what was important is not whether an alternative placement was “better” or “preferable” but whether the student “was likely to make meaningful progress” in the recommended placement. In this case, the Appeals Court held that the student would be “well supported” by the recommended school’s new DBT program. C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The district asserts that the appropriate placement for the student was a therapeutic day program. The parents assert that a residential placement was appropriate. Conclusion: The Court agreed with the SRO that the district’s placement was appropriate. Basis of the Court’s Decision: The student was classified as a student with an emotional disturbance. For the 2014-15 and 2015-16 school years, the district’s CSE recommended, among other things, a placement consisting of an 8:1+1 special class with the additional benefit of a therapeutic support program (TSP) operated by the regional BOCES and participation in a before 39


and after school intervention services (BASIS) program. The BOCES TSP program included weekly individual and group counseling and its teachers and clinicians had experience in addressing the needs of students with psychiatric disorders. The BASIS program provided “daily family support and strategies at home before and after school and the development of a functional behavioral assessment and a behavior intervention plan.” It was supervised by a school psychologist, was staffed by certified teachers or teaching assistants; with all staff trained in therapeutic intervention. Upon review, the SRO concluded that the student’s IEP for both school years was appropriate, thereby providing the student with a FAPE. The District Court found that the SRO’s decision “reasonably concluded that the CSE’s recommended placement in the BOCES/BASIC program was appropriate for [the student] during the 2014-15 and 2015-16 school years” and therefore provided a FAPE. The Court reviewed the student’s IEPs and concluded that the TSP and BOCES/ BASIS program addressed the student’s emotional needs. The parents argued that the student’s recommended program was not appropriate because it did not include 24/7 coverage within a residential placement, which was recommended by the parents’ experts. The Court concluded that while these persons felt that the student required a residential program, the SRO’s conclusion that a therapeutic day program with before and after school supports provided the student with a FAPE was the type of issue upon which “deference” was owed to “administrative officers”. The Court described the SRO’s “twenty-three single spaced pages” as “well-reasoned,” “quite thorough,” and “careful” and found that the SRO had conducted a “detailed review” of the 2015-16 school year. The Court also pointed out that the recommended program was consistent with the requirement that students be educated in the LRE as it provided the student with extracurricular and particular mainstreaming opportunities. The Court further pointed out that the district court had previously reviewed the student’s program for the 2012-13 school year and further that the parents had not appealed from an IHO decision finding that the recommended program for the 2013-14 school year was appropriate -- and that the only difference between those school years and the years under review in this case was that the student had made “documented improvements”. With respect to that, the Court concluded that because the student had made “significant progress” in her residential program, at this time such a program was less appropriate for the student. Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that its IEP provided the student with a FAPE. The parents disagree. Conclusion: The Second Circuit upheld the determinations of the IHO, SRO and the District Court that the district’s IEP did not provide the student with a FAPE. Basis of the Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It agreed with the IHO and the SRO that the district’s IEP did not provide the student with a FAPE in that the IEP “failed to address how a specialized classroom of 15 students to one teacher would address [the student’s] frequent need for one-on-one attention, even if all students shared a similar level of cognitive ability”. The Court found that the agency’s “factual findings…were reasoned and supported by the record, “that its review was “thorough and careful” and that the determination “falls squarely 40


within the agency’s expertise on educational policy and warrants deference from the judiciary”. Moreover, the Court pointed out that deference is “particularly warranted” where, like here, no additional evidence is presented beyond the administrative record. Application of a Student with a Disability, Appeal No. 20-101, (8/3/2020) Dispute: Parents claim that the IEP does not provide appropriate supports for student’s attention, executive functioning and social/emotional needs. District supported the IHO’s conclusion that the district prepared an adequate IEP. Conclusion: The SRO determined that the IEP included supports that were designed to address the student’s attention and executive needs to the extent that those needs were described in the hearing record and that the student did not exhibit anxiety in the classroom Basis for SRO’s decision: The SRO concluded that the student’s IEP included appropriate speechlanguage therapy, testing accommodations, annual goals, and specified strategies to appropriately address the student’s management needs. Application of a Student with a Disability, Appeal No. 20-101 (8/3/2020) Dispute: Parent asserts that Integrated Co-Teaching services for ELA, mathematics, and social studies was an inappropriate placement. District asserts that this placement was appropriate for the student. Conclusion: The SRO concluded that the record did not show that the district’s placement was appropriate. Basis of SRO’s Decision: The district failed to meet its burden to show that the recommendation for ICT services offered the student a FAPE given the district’s failure to provide objective evidence of the student’s progress in a similar program in previous years. Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) Dispute: The parent asserts that the student, who was dually enrolled, required 12 hours a week of special education teacher support services (SETSS) at home for the 2018-19 and 2019-20 school years. The district contends that the receipt of six hours per week of SETSS was an appropriate level of service given its recommended provision in school and in a group setting. Conclusion: The SRO concluded that 6 hours of SSETSS was sufficient to provide the student with FAPE for both school years. Basis of the SRO’s Decision: The SRO reviewed the documentation in the record including a June 2018 psycho-educational evaluation, the summary of the student’s academic performance set out in the student’s August 2018 individualized education services program (IESP), the results of a speech-language assessment summarized in the student’s August 2018 IESP, information from a SETSS provider report summarized in the January 2019 IEP, academic and other information relating to the student’s needs set forth in the student’s December 2019 IESP, the testimony of the student’s SETSS provider, and the testimony of the teacher assigned to the CSE. Based on this information, and “with particular attention to the student’s needs identified in the IESPs” the SRO concluded that the evidence in the record supported “the IHO’s finding that the recommendation 41


for six periods per week periods of SETSS were appropriate to meet the student’s academic needs”. The SRO took into account the availability of SETSS providers at the student’s private school and the offered group level of services.

TRANSITION SERVICES Perkiomen Valley Sch. Dist. V. R.B., 18-3-009, 121 LRP 13443 (U.S. D.C. E.D.PA. (Apr. 13, 2021)) Dispute: Whether the District provided the student with appropriate post-secondary services. Conclusion: The District Court judge held that the district’s recommended transition services did not provide the student with a FAPE Basis of the Court’s Decision: The student has been eligible for special education since she was one year old. Her disabilities include Intellectual Disability, Speech/Language Impairment. and physical disabilities. Among other things, she has brain abnormalities that affect her ability to process language and other information. She also has trouble with social skills, peer relationships and emotional and behavioral functioning. Her strengths include self-advocacy skills, oral language skills, timely completion of individual and group assignments, and forming and maintaining friendships. In 2015-16, the student was 19 years of age, had an 8th grade reading level, and was in her fourteenth year of schooling. Her independent living skills needs were managing finances, travel instruction/transportation, and food preparation. The transition section of her June 1, 2015 IEP 7 identified a number of post-secondary transition needs including self-advocacy and social skills. The student’s post-secondary goals included vocational training for work in childcare or technology, employment in the childcare field, and. living with family or a roommate. The IEP Team determined that the student would focus on her functional skills rather than her academic skills. The district proposed that the student attend either the high school, the Technical College High School Pickering Program’s Early Childhood Education Program (Pickering Program) or another school age career preparation program. The IEP Team also concluded that the student was eligible for extended school year programing. Upon review and with respect to the adequacy of the student’s 2015-16 transition program, the Court agreed with the hearing officer that none of the programs offered by the district were appropriate. The Pickering Program did not necessarily result in certification and was a vocationaltechnical regular education program, not a community-based instructional program which was appropriate for the student. Importantly, the Pickering Program was also limited to only one vocation – child care. However, it was not at all certain that the student’s future vocation would be childcare. Further, the Court held that the Pickering Program would not have provided the student with adequate instruction in transportation and independent living skills. Strengthening these skills was important the Court said as one of the student’s 2015-16 post-secondary transition 7

The decision does not indicate that the student attended any of the IEP Team meetings.

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goals was living independently with a roommate and her post-secondary life would likely involve public transportation. With respect to the high school program proposed by the district, the student would receive instruction in academic and vocational skills and awareness with part-time on-thejob training in an area of interest. The Court concluded that there was insufficient information about this program to assess it. The Court also concluded that this program, which involved full time learning support, was not appropriate for the student as she had already attended classroom instruction on independent living skills and had experienced the simulated Apartment program. Further, the Court also concluded that information regarding this program’s vocational component was only “vaguely” described. Finally, no information was provided about any alternative school age career preparation program and the Court advised that therefore it could not evaluate such programs. With respect to extended school year programs recommended for the student the Court found that the “MCCC Bridge to College Program’ was a program that prepared students for college – which the student had not demonstrated a capacity for and an interest in. The MCIU Compass Program offered instruction in decision-making skills for independent living and work experience, travel training, self-advocacy, work-based social skills. and vocational; exploration., This program was not appropriate for the student because she had already acquired simulated independent living skills as well as instruction in independent living skills. As a consequence, the Court found that this program would provide only “de minimus” educational benefit to the student. Finally, the Court said that since there was no information provided about the Perkiomen Valley Middle School - East, that there was no way to review that program. In 2016-17, the student was 20 years old, maintained her 8th grade reading level, and was in her fifteenth year of schooling. The IEP Team met in July 2016 to discuss the student’s program for the 2016-17 school year. The IEP advised that the student had made progress with some functional skills but that she had not yet reached a “satisfactory” level. The student’s independent living skills needs were managing finances, travel instruction /transportation, and food preparation. Her transition needs continued to be self-advocacy and social skills. The IEP Team recommended that the student attend either the high school full time or the Pickering Program in the morning and the Chester County Intermediate Unit (CCIU) Discover Program in the afternoon. The IEP Team met again in December 2016. The district proposed again that the student attend the high school full time or the Pickering Program in the morning and the CCIU Discover Program in the afternoon. The court held that these programs were inappropriate for the student as they were not likely to provide her with “meaningful benefit”. In addition to the program inadequacies of the high school and the Pickering Program, relative to the 2015-16 school year, the Pickering Program’s sole focus on childcare was now more inappropriate as the student no longer had any interest at all in childcare. Regarding the recommended CCIU Discover Program, which focused primarily on the development of prevocational “soft” skills, the court found this program to be inappropriate for the student because it did not offer the student an opportunity to learn independent living skills. As indicated, it would “return” the student to practicing general employment skills or prevocational “soft skills” -- something that the student had already experienced for a number of years. Finally, the Court pointed out that while the CCIU Program offered other community-based instruction programs for post-secondary transition the district did not offer any reason for its decision not to offer the student any of them. 43


The student turned 21 by the end of the 2016-17 school year and aged out of special education. R.B. v. New York City Dep’t Educ., No. 16-1952-cv, 689 Fed.Appx. 48 (2d Cir. Apr. 27, 2017) Dispute: The parents assert that the district’s failure to provide the student with an in person transition assessment(s) denied the student a FAPE. The district disagrees. Conclusion: The Court of Appeals held that the lack of an in person transition assessment(s) was not a violation of a FAPE. Basis of the Appeals Court’s Decision: In this case, the relevant transition assessments required by 20 USC § 1414(d)(1)(A)(i)(VIII)(aa) were not done in person and the parents argued that “its failure to do so undermined the development of IEPs that were reasonably calculated to provide the postsecondary goals and transition services required by 20 USC § 1414(d)(1)(A)(i)(A))(i)(VIII)(aa), (bb). According to the Appeals Court, the district “explained in the state administrative proceeding that it did not conduct an in person assessment(s) … because the parents submitted a privately obtained substitute report and the ‘standard vocational assessment required a higher level of reading skills than the student possessed.’” Further, the district “conducted a vocational interview with the parents and consulted with the [student’s] private school teachers about his progress, goals, and preferred learning environment. It also invited [the student] to attend meetings in which postsecondary goals and transition services were discussed but the parents declined to bring [the student] because they felt that he could not sit through meetings. The [district] then incorporated what it learned from these consultations into the IEPs which stat[ed] that [the student] ‘require[d] support in clothing care, meal preparation, household management and consumer skills … and that his parents want[ed] him to seek employment after high school. The IEPs also identif[ied] ‘transition activities’ to enable [the student] to meet these goals, including, for example, ‘trips ‘into the community to purchase items independently and get the correct change’, ‘learn[ing] appropriate phone … and workplace etiquette.’ and ‘learning to make a budget and shop for his own food and for other needed items within that budget’”. Based on the above, the Appeals Court “agreed “with the District Court and the SRO that the IEPs were reasonably calculated to provide [the student] with the postsecondary goals and transition services required by the IDEA”. Further, the Appeals Court concluded that even if the district’s action constituted a procedural violation of the IDEA, such did not rise to the level of a denial of FAPE because it was not “shown an impediment to the [student’s] right to a FAPE, a significant impediment to their oppiortunity to participate in the decisionmaking process, or a deprivation of educational benefits” (see 20 USC § 1415(f)(3)(E)(ii)(I), (II), (III); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

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TRANSPORTATION KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) Dispute: The parent asserts that the district’s recommended educational placements denied the student a FAPE. The district disagrees and sets forth that its placements provided the student with a FAPE. Conclusion: The Second Circuit agreed with the SRO and the District Court that the district’s recommended placements for the 2015-16 and 2016-17 school years provided the student with a FAPE. Basis of the SRO’s Decision: With respect to the 2015-16 school year, the student’s IEP recommended that the student attend a private therapeutic day program. The Appeals Court indicated that this program “was capable” of providing the student with small classes and “accommodating” the student’s other educational needs. In response to the parent’s argument that the recommended placement was inappropriate because its staff was not trained in a particular methodology --(here, dialectical behavior therapy [DBT]), the Appeals Court pointed out that the IEP did not require that the student be provided with this methodology but only that the recommended program be supportive of the DBT treatment that the student received from her private psychologist. With respect to this, the Appeals Court found that the record supported the conclusion that the staff of the recommended private school was in fact “capable of supporting” the student’s progress in her DBT treatment by the student’s psychologist. The Appeals Court also found that the record supported the District Court’s conclusion that the student would not have been “mismatched” with her classmates at the recommended private school. With respect to the 2016-17 school year, the Appeals Court held that the District Court appropriately found that the SRO had properly concluded that the recommended placement offered the student a FAPE. More specifically, the school district offered to place the student in a new DBT-based program at a public high school. The Appeals Court also held that the SRO “did not err” by discounting the recommendation of the student’s private psychologist that an alternative placement would have been “better” for the student. The Appeals Court indicated that what was important is not whether an alternative placement was “better” or “preferable” but whether the student “was likely to make meaningful progress” in the recommended placement. In this case, the Appeals Court held that the student would be “well supported” by the recommended school’s new DBT program. C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The district asserts that the appropriate placement for the student was a therapeutic day program. The parents assert that a residential placement was appropriate. Conclusion: The Court agreed with the SRO that the district’s placement was appropriate.

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Basis of the Court’s Decision: The student was classified as a student with an emotional disturbance. For the 2014-15 and 2015-16 school years, the district’s CSE recommended, among other things, a placement consisting of an 8:1+1 special class with the additional benefit of a therapeutic support program (TSP) operated by the regional BOCES and participation in a before and after school intervention services (BASIS) program. The BOCES TSP program included weekly individual and group counseling and its teachers and clinicians had experience in addressing the needs of students with psychiatric disorders. The BASIS program provided “daily family support and strategies at home before and after school and the development of a functional behavioral assessment and a behavior intervention plan.” It was supervised by a school psychologist, was staffed by certified teachers or teaching assistants; with all staff trained in therapeutic intervention. Upon review, the SRO concluded that the student’s IEP for both school years was appropriate, thereby providing the student with a FAPE. The District Court found that the SRO’s decision “reasonably concluded that the CSE’s recommended placement in the BOCES/BASIC program was appropriate for [the student] during the 2014-15 and 2015-16 school years” and therefore provided a FAPE. The Court reviewed the student’s IEPs and concluded that the TSP and BOCES/ BASIS program addressed the student’s emotional needs. The parents argued that the student’s recommended program was not appropriate because it did not include 24/7 coverage within a residential placement, which was recommended by the parents’ experts. The Court concluded that while these persons felt that the student required a residential program, the SRO’s conclusion that a therapeutic day program with before and after school supports provided the student with a FAPE was the type of issue upon which “deference” was owed to “administrative officers”. The Court described the SRO’s “twenty-three single spaced pages” as “well-reasoned,” “quite thorough,” and “careful” and found that the SRO had conducted a “detailed review” of the 2015-16 school year. The Court also pointed out that the recommended program was consistent with the requirement that students be educated in the LRE as it provided the student with extracurricular and particular mainstreaming opportunities. The Court further pointed out that the district court had previously reviewed the student’s program for the 2012-13 school year and further that the parents had not appealed from an IHO decision finding that the recommended program for the 2013-14 school year was appropriate -- and that the only difference between those school years and the years under review in this case was that the student had made “documented improvements”. With respect to that, the Court concluded that because the student had made “significant progress” in her residential program, at this time such a program was less appropriate for the student. Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that its IEP provided the student with a FAPE. The parents disagree. Conclusion: The Second Circuit upheld the determinations of the IHO, SRO and the District Court that the district’s IEP did not provide the student with a FAPE. Basis of the Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It agreed with the IHO and the SRO that the district’s IEP did not provide the student with a FAPE in that the IEP “failed to address how a specialized classroom of 15 students to one teacher would 46


address [the student’s] frequent need for one-on-one attention, even if all students shared a similar level of cognitive ability”. The Court found that the agency’s “factual findings…were reasoned and supported by the record, “that its review was “thorough and careful” and that the determination “falls squarely within the agency’s expertise on educational policy and warrants deference from the judiciary”. Moreover, the Court pointed out that deference is “particularly warranted” where, like here, no additional evidence is presented beyond the administrative record.

LEAST RESTRICTIVE ENVIRONMENT (LRE) Application of a Student with a Disability, Appeal No.20-083 (June 26, 2020) Dispute: Parent maintains that for both the 2018-19 and 2019-20 school years, the student’s residential program was in the least restrictive environment. District disagrees. Conclusion: The SRO concluded that for both the 2018-19 and 2019-20 school years the district failed to show that it satisfied the LRE mandate. Regarding 2018-19, the SRO concluded that the evidence in the hearing record did not support the IHO’s finding that the district offered the student a FAPE. Regarding 2019-20, the SRO found that the district denied the student a FAPE. 2018-19 school year Basis of the SRO’s Decision: The SRO conduced that it was unclear from the hearing record why Green Chimney’s interventions and supports could not be provided in a day program or why the “wraparound” services at that school were “crucial”. The SRO concluded that the CSE’s views that the student continued to need a residential placement “read as a foregone conclusion”. Regarding the need to proceed cautiously when recommending a residential program, the SRO reported that the student made academic and behavioral progress during the 2015-16 school years in the day program. The SRO also found that while the student was passing his academic subjects in the 2016-17 and 2017-18 school years when he was a residential student, his grades had “slightly decreased”. Further, the parent continued to report that the student “was not exhibiting the same behaviors at home as he exhibited at school”. The SRO concluded that “without more detailed information about why the student needed a residential placement in order to receive educational benefit” the SRO could not find “that the CSEs took the cautious approach required in recommending that the student be removed from his home”. Additionally, the SRO found that in circumstances where the parent had been asking for a day treatment program it would have been ”particularly helpful” for the CSE to develop the required “plan and timetable” as to how the student was going to “exit from a residential setting to a less restrictive environment” or a statement as to why the student would not. The SRO pointed out that the hearing record was “silent” with regard to whether the district had created the required plan or statement. The SRO also pointed out that Green Chimneys’ “anticipated discharge date” had been “apparently abandoned without explanation” The SRO concluded that there was “not enough information in the record that a residential placement was required for the student to receive an academic benefit”; that it did “not appear 47


that the district adequately pursued less restrictive environments”, “not [did] the record reflect that the district had [the requited] proposed plan and timetable in place to transition the student to a less restrictive setting”. As a consequence, the SRO concluded that “the district failed to show that it satisfied the LRE mandate for the 2018-19 school year and that the evidence in the hearing record [did] not support the IHO’s finding that the district offered the student a FAPE…” 2019-20 school year Basis of the SRO’s decision: At the May 2019 CSE meeting, it was reported that in response to the parent’s request, the student had been referred to an internal review for discharge to Green Chimneys’ day program but that this was denied because the student “required a higher level of care and support”. During the CSE meeting the parent reported that the student was not taking medication anymore and also was unsure whether the student would attend the Green Chimneys’ summer program. The CSE believed that the student needed “a 12-month therapeutic residential setting” but at that time Green Chimneys advised that it could no longer meet the student’s needs and were concerned about the student’s safety. The CSE recommended conducting a program search “to several therapeutic residential schools within the state”. It did not consider other options at that time. The parent initially did not consent to sending out referrals and therefore none were sent. Ultimately, referrals were made to 11 or 12 schools. Some requested additional information and only one expressed an interest in accepting the student. However, the parent did not agree to tour that school and the student was rejected. During this time, the student’s behavior at Green Chimneys and at home were becoming “more severe” with the parent pointing to the school and the school to the parent. The SRO indicated that “adding to the lack of clarity” regarding the reason for the student’s difficulty at Green Chimneys was that “as of the May 2019 CSE meeting the district had not yet completed an FBA”. Additionally, the May 2019 CSE “failed to set forth or discuss a plan as to when the student could return to a less restrictive setting”. Further, Green Chimneys’ discharge recommendations “became less clear over time”. Compared to earlier quarterly treatment reviews which had indicated a discharge date of September 2018, the September 2018 quarterly review noted an “unknown” date and the November 2018 and February 2019 quarterly reviews included a discharge date of “n/a”. The SRO concluded that there was “not enough information in the hearing record to show that the residential program was necessary to enable the student to receive an educational benefit for the 2019-20 school year”. Additionally, the SRO found that “the CSE “failed to reflect that it considered less restrictive options for the student or that it had a proposed timetable as to when the student could transition into a less restrictive setting”. The SRO concluded that because of this “the district failed to show that it satisfied the IDEA’s LRE mandate for the 2019-20 school year” and that “therefore the district denied the student a FAPE” for that school year. Prospective Relief: Application of a Student with A disability, Appeal No. 20083 (June 26, 2020) Dispute: The parent requests an order directing the district to identify and secure an appropriate day program consistent with the recommendations of the psychiatric evaluation and FBA already ordered by the IHO 48


Conclusion: The SRO concluded that prospective relief should not be granted. Basis of the SRO’s Decision: The SRO concluded that “under certain circumstances” an award of prospective relief “circumvents the statutory process” regarding the CSE’s responsibilities. In this case, the SRO pointed out that the 2019-20 school year had “essentially been almost completed” and that the CSE should have met to develop the student’s program for the 2020-21 school year. Further, the SRO indicated that the CSE should have before it additional evaluations, including the results of an independent FBA and of an independent psychiatric evaluation ordered by the IHO and not challenged on appeal to the SRO. Since the IHO also ordered that the CSE should meet “within 15 days of receiving the evaluations,” the SRO indicated that the district “should be moving forward with having [the evaluations] completed”. The SRO added that when the CSE reconvenes it will have additional information and that at that time it “should have the first attempt to determine the placement of the student along the continuum of services, assessing the extent to which the student can be educated with nondisabled peers in a public setting before considering more restrictive nonpublic school options” The SRO said that the case was “not one of those few cases” where prospective relief might be appropriate and indicated that one would be “where both the school district and the parent agreed that the child’s unique needs required placement in a private non-approved school and that there were no approved schools that would be appropriate”. The SRO stressed that the CSE should “reconvene”, “consider the additional evaluations” and also consider “all other non-residential possibilities” before determining whether the student needed to be in a residential program. To do “[a]nything less would eliminate the important statutory purpose of attempting, wherever possible to have disabled student meaningfully access the public school system each year by first attempting placement in a public school”. After it reconvened, reviewed the additional evaluations and reached its recommendations, the SRO ordered the district to provide the parent with “prior written notice” “specifically indicating whether the CSE recommended or refused to recommend” residential services on the student’s IEP and “explaining the basis for the CSE’s recommendation” and “describing the evaluative information relied upon in reaching these determinations” The SRO stressed again that “the CSE must consider whether the student can be succeslly placed in a non-residential program”. If the parent did not agree with the CSE’s recommendation for the 2020-21 school year, the SRO indicated that the parent “may obtain relief by challenging the district’s determinations regarding that school year at that time”.

MEDIATION

There is no update at this time, check back for later versions for any update.

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MOOTNESS Pendency Placement: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) Dispute: The district argues that the lawsuit is moot and fails to state a claim. The parent asserts that the suit is not moot and should proceed. Conclusion: The Court held that the lawsuit was moot and failed to state a claim. The Basis of the Court’s Decision: The student attended the International Academy of Hope (iHOPE) during the 2017-18 school year; the student’s pendency placement. In June 2018, the parent gave the district a 10-day notice that the parent was placing the student at the International Institute for the Brain (iBRAIN) for the 2018-19 school year. In July 2018, the parent provided the district with a due process complaint asserting that it did not provide the student with a FAPE for the 2018-19 school year and requesting that iBRAIN be the student’s pendency placement. Thereafter, an IHO agreed with the parent. The district appealed and an SRO reversed the IHO and concluded that the student’s pendency placement was iHOPE. In April 2019, the parent commenced the subject action. It sought injunctive relief vacating the SRO decision and ordering the district to fund the student’s pendency placement at iBRAIN for the 2018-19 school year until the due process complaint was “finally adjudicated”. The parent additionally sought “equitable relief and damages due to [parent] as a result of the failure or delay in funding pendency placement for [the student].” Finally, the parent sought, among other things, a declaration that district violated the student’s pendency rights. The Court pointed out that the parent had initially requested relief relating to the 2018-19 school year and that since the inception of the subject suit, the due process proceeding had been resolved in the parent’s favor, the district had not appealed that favorable decision, and had fully funded the student’s placement at iBRAIN for the 2018-19 school year. This being the case, the Court concluded that the parent’s request for injunctive relief was rendered moot. Regarding the parent’s request for declaratory relief, the Court concluded that because the tuition for the 2018-19 school year had been paid, the necessary “controversy of sufficient immediately and reality” was lacking. The Court rejected the parent’s arguments that the claim was not moot. The parent asserted first, that the claim was not moot as she sought “an award of damages for [the district’s] violation of her pendency rights”. Citing Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), the Court concluded that there had been no violation of the student’s pendency rights and that therefore there was nothing the parent could seek damages for. The Court also held that the parent’s attempt to distinguish de Paulino on the basis that pendency had resulted by operation of law had no merit. The parents also argued that the claim was not moot because “unless [the student’s] claims are fully adjudicated [in court, the district] will have evaded accountability for having violated [the student’s] pendency rights, thereby remaining free to duplicate its wrongful conduct towards [the student] in the future”. The Court concluded here that “[e]ven if [the student’s] pendency rights had been violated, there [was] no indication in the record that the situation will recur as to [the student]” and “[n]or does the record indicate that there is any 50


effect of the alleged violation that has not been resolved by the payment of [the student’s] tuition for the 2018-19 school year.”

PENDENCY PLACEMENT In re student with a disability, Appeal No. 21-075, (June 24, 2021) Dispute: What was the student’s pendency placement. Conclusion: The IHO agreed with the parent’s position that the Beekman School was the student’s pendency placement. Basis of the IHO’s Decision: The concept of pendency requires that a student remain in his or her “then current educational placement”. Citing Second Circuit case law, the IHO described the phrase “then current educational placement” to mean either “(1) the placement described in the student’s most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP”. The IHO determined that the “last agreed upon implemented IEP [was] contested,” that no “IEP demonstrates as the last agreed upon implemented IEP for the purposes of pendency, “and moved to a discussion of “the current educational placement” being defined as the IEP that was “actually functioning at the time when the due process proceeding commenced”. The IHO referenced Ventura de Paulino v. New York City Dep’t of Educ, 959 F.3d 519 (2d Cir. 2020) for the proposition that “it is up to the school district, not the parent to decide how to provide (the) educational program until the IEP dispute is resolved, so long as the decision is made in good faith”. With respect to this, the IHO found that it was “significant” that “when the parent called the school principal to schedule a meeting and to review the student’s IEP, the principal told the parent that she was going on vacation and that the parent should call at the beginning of September. When the parent called in September, the principal informed the parent that the DOE had never sent Student’s transfer paperwork, and, as a result, her seat was no longer available. As a result, the student was again without a school placement”. The IHO found that because of this, the district’s actions were “absent [the required] showing of good faith”. The IHO held that as a consequence the parent had demonstrated that “the operative placement actually functioning at the time the due process proceeding was commenced was at the Beekman School where the student had attended for consecutive years, since 2019” and that because of this, that school was the student’s pendency placement. Application of a Child with a Disability, Appeal No, 20-195 at pp. 8-11 Dispute: Whether the IHO correctly reached and then determined that the student’s pendency placement was The Keswell School (Keswell).

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Conclusion: The IHO incorrectly proceeded to discussing the student’s pendency placement and, in any event, erred in its determination regarding that. Basis of the SRO’s Decision: Regarding whether or not the IHO correctly proceeded to address pendency during the hearing, the SRO pointed out that “neither [the district nor the parents] raised the question of pendency on the record during the impartial hearing and there [was] no interim decision or agreement on pendency in the hearing record”. Regarding that, the SRO advised that “[i]f there is dispute as to the status of the student during the impartial hearing (i.e., pendency), this issue should be raised immediately with the IHO” and that “absent a dispute, the IHO should not sua sponte make determinations about the student’s pendency, particularly without giving the parties notice of his intent [to] do so or receiving evidence on the issue”. Moreover, the SRO concluded that “the IHO’s conclusion that Keswell was they student’s pendency placement [was] factually and legally flawed”. In this regard, the SRO wrote that “[t]he parents agreed that they enrolled the student at their own financial risk and that the student was not entitled to attend Keswell at district expense pursuant to pendency”. The IHO further concluded that “[t]he parties are in agreement that the February 2015 [IEP] was the student’s last agreed upon placement and there is no evidence in the hearing record of an agreement between the parties regarding the student’s placement at Keswell or an unappealed IHO decision ordering the district to fund the student’s tuition at Keswell during another school year”. As a consequence, the SRO concluded that there was “no basis for a finding that Keswell was the student’s pendency placement”. With respect to the IHO’s conclusion that the student’s pendency placement “lay in the February 2015 IEP in conjunction with the student’s operative placement at the time that pendency was invoked, which was the student’s current private school is particular perplexing”. This, because, pendency does not reflect “some hybrid” of the relevant factors. The SRO further concluded that “courts typically only rely on the operative placement” to determine pendency when there is no previously implemented IEP” and that this was not the situation in this case. Moreover, and respect to this, citing to Ventura de Paulino v. New York City Dep’t of Educ.,959 F.3d 519 (2d Cir, 2020) and Araujo v, New York City Dep’t of Educ., 2020 WL5701828 at *3, reconsideration denied, 2020 WL 6392818 [S.D.N.Y. Nov. 2, 2020], the SRO wrote that “courts have explicitly rejected reliance on the operative placement to find that a unilaterally chosen nonpublic school constitutes pendency absent an agreement between the parents and the district”. 8 Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: whether the NYC Department of Education and Chancellor Carranza (DOE) should make payments for certain school-related services at or related to students’ pendency placements at the International Institute for the Brain (iBRAIN) including special transportation and nursing services since the start of the COVID-19 pandemic in March 2020 and that at least part of which were reimbursements to iBRAIN. The parents assert that payment for such services should be

Since the SRO found that the IHO erred regarding issues relating to the student’s pendency placement, she also concluded that the IHO “also erred” in relying on his conclusion regarding pendency to then find the parents’ request for tuition reimbursement “moot” 8

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made. DOL argues that prior to payment for such services it has the right to be provided with specification, documentation and additional information. Conclusion: The Court ordered the parties to report to it regarding “(1) the history of communication between the Plaintiffs and DOE; (2) the information requested by DOE (3) the information provided by Plaintiffs in response to DOE’s requests; (4) DOE’s rationale for finding such information inadequate; (5) Plaintiff’s rationale for failing to provide any additional information requested by DOE.” Basis of the Court’s Decision: The Court indicated that it drew “a clear distinction between having pendency funds completely cut off and undertaking an administrative process – including providing information – to receive that funding. Plaintiffs have a right [it said] to the IDEAguaranteed pendency funding; they do not, however, have a right to a blank check. That is, they are not entitled to receive that funding in whatever manner they desire, irrespective of reasonable documentation requirements of the DOE”. Mootness: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv02945 (ALC) (S.D.N.Y. Oct. 13, 2020) Dispute: The district argues that the lawsuit is moot and fails to state a claim. The parent asserts that the suit is not moot and should proceed. Conclusion: The Court held that the lawsuit was moot and failed to state a claim. The Basis of the Court’s Decision: The student attended the International Academy of Hope (iHOPE) during the 2017-18 school year; the student’s pendency placement. In June 2018, the parent gave the district a 10-day notice that the parent was placing the student at the International Institute for the Brain (iBRAIN) for the 2018-19 school year. In July 2018, the parent provided the district with a due process complaint asserting that it did not provide the student with a FAPE for the 2018-19 school year and requesting that iBRAIN be the student’s pendency placement. Thereafter, an IHO agreed with the parent. The district appealed and an SRO reversed the IHO and concluded that the student’s pendency placement was iHOPE. In April 2019, the parent commenced the subject action. It sought injunctive relief vacating the SRO decision and ordering the district to fund the student’s pendency placement at iBRAIN for the 2018-19 school year until the due process complaint was “finally adjudicated”. The parent additionally sought “equitable relief and damages due to [parent] as a result of the failure or delay in funding pendency placement for [the student].” Finally, the parent sought, among other things, a declaration that district violated the student’s pendency rights. The Court pointed out that the parent had initially requested relief relating to the 2018-19 school year and that since the inception of the subject suit, the due process proceeding had been resolved in the parent’s favor, the district had not appealed that favorable decision, and had fully funded the student’s placement at iBRAIN for the 2018-19 school year. This being the case, the Court concluded that the parent’s request for injunctive relief was rendered moot. Regarding the parent’s request for declaratory relief, the Court concluded that because the tuition for the 2018-19 school year had been paid, the necessary “controversy of sufficient immediately and reality” was lacking. The Court rejected the parent’s arguments that the claim was not moot. The parent asserted first, 53


that the claim was not moot as she sought “an award of damages for [the district’s] violation of her pendency rights”. Citing Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), the Court concluded that there had been no violation of the student’s pendency rights and that therefore there was nothing the parent could seek damages for. The Court also held that the parent’s attempt to distinguish de Paulino on the basis that pendency had resulted by operation of law had no merit. The parents also argued that the claim was not moot because “unless [the student’s] claims are fully adjudicated [in court, the district] will have evaded accountability for having violated [the student’s] pendency rights, thereby remaining free to duplicate its wrongful conduct towards [the student] in the future”. The Court concluded here that “[e]ven if [the student’s] pendency rights had been violated, there [was] no indication in the record that the situation will recur as to [the student]” and “[n]or does the record indicate that there is any effect of the alleged violation that has not been resolved by the payment of [the student’s] tuition for the 2018-19 school year.” Payment: Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) Dispute: Does the IDEA authorize a school district to recoup payments made for educational services pursuant to the stay-put provision? Conclusion: The IDEA does not authorize a school district to recoup payments made for educational services pursuant to the stay-put provisions. Basis of the SRO’s Decision: See Dec. at p. 531 and n. 49 Ventura de Paulino v New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) Dispute: In a matter of first impression, the Court frames the question as “whether under the ‘stay put’ provision of the IDEA parents who unilaterally enroll their child in a new private school [International Institute for the Brain or iBRAIN] and [then] challenge the child’s IEP are entitled to public funding for the new school during the pendency of [that] IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the parents and the school district and was offered at the previous school [International Academy of Hope or iHOPE]”, which was the student’s last agreed upon or pendency placement. In this case, the parents assert that IDEA’s pendency provision allows them to continue to receive pendency services at the new school. The district disagrees. Conclusion: The Second Circuit held that IDEA’s stay put provision does not apply to the new private school and that it does not matter whether the program in the new private school is substantially similar to that of the old school and whether or not the parents challenge an IEP subsequent to the IEP at issue at the old school. Basis of the Court’s Decision: The Court advises that the fundamental question is “whether the fact that the school district has authority to decide how the child’s agreed-upon educational program is to be provided during the pendency of an IEP dispute means that the parents also have such authority.” With respect to the parents’ first argument -- that the new school is substantially similar to the old school -- on the basis of “[t]he IDEA’s [t]ext and [s]tructure”, “the [c]ost of 54


[p]endency [s] ervices”, and the “[u]ncertainty of litigation”, the Court found that the parents have no such authority. With respect to the parents’ related argument -- where the parents also challenge the IEP for the next school year -- the Court advised that the same three considerations applied. It also recollected in this regard “that the term ‘operative placement’ has its origin in cases where the school district attempts to move the child to a new school without the parents’ consent or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision” and that neither condition was present in this case. With respect to the new school, (iBRAIN), the Court explained that the parents could attempt to secure retroactive reimbursement in a Burlington Carter case. Additional New York City cases dealing with pendency placement and iBRAIN the result of a unilateral placement include Neske v. New York City Dep’t of Educ. – Fed. Appx. –, 2020 WL 5868279, No. 19-4068-cv (2d Cir. Oct. 2, 2020), Abrams v. Carranza, 2020 WL 6048785, 20-CV5085 (JPO) (S.D.N.Y. Oct. 13, 2020) and Araujo et al. v. New York City Dep’t of Educ. 2020 WL 5701828, Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020). Neske v. New York City Dep’t of Educ., --Fed.Appx. – 2020 WL 5868279, No. 19-4068-cv (2d Cir. 2020) Dispute: Plaintiff, the parents of a student at the International Institute for the Brain (iBRAIN) who unilaterally transferred to that school from the International Academy of Hope (iHOPE) and then instituted a challenge to the student’s IEP, asserts a claim on behalf of the student for pendency placement at iBRAIN. The district disagrees that pendency placement applies to the student’s attendance at iBRAIN. Conclusion: The Circuit Court held that iHOPE and not iBRAIN was the student’s pendency placement. Basis of the Court’s Decision: The Court explained that “the identical set of material facts and legal issues” were confronted in its earlier case, that of Ventura de Paulino v New York City Department of Education, 959 F3d 519 (2d Cir. 2020), which held that “[a] parent cannot unilaterally transfer his or her child and subsequently initiate an IEP dispute to argue that the new school’s services must be funded on a pendency basis.” Notwithstanding, the Court evaluated the plaintiff’s three major additional arguments and dispatched them quickly. Regarding the plaintiff’s implicit suggestion that the Circuit in Ventura “misinterpreted the stay-put provision by confusing a change in schools for a change in educational programs,” the Court said that this was “merely a back-door attempt at relitigating the key issue” in Ventura. Regarding the plaintiff’s argument that the facts of this case were “meaningfully distinguishable” in relevant part from those in Ventura, the Court said no and stressed that iHOPE became the student’s pendency placement not at the City’s instigation but rather by operation of law after the city chose not to appeal the rulings of impartial hearing officers holding that iHOPE was an appropriate placement”. Regarding the plaintiff’s argument that the case fell under footnote 5 of Ventura where the Court “reserved decision as to a situation ‘where the school providing the child’s pendency services is no longer available and‘ the school district either refuses or fails to provide pendency services to the 55


student’”, the Court advised that in both cases “iHOPE continued to be available to the students at issue and the City did not refuse or fail to provide pendency services at iHOPE”. Arelis Araujo et al. v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of the students were not entitled to pendency placement and that for 13 of the students, interim relief was not appropriate. Conclusion: The Court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate. Basis of the Court’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate. The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students were not threatened. The plaintiffs argued that “the stay-put provision acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D v. Ambach., 694 F.2d 904, 906(2d Cir. 1982). The Court rejected the district’s arguments. With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students’ “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the District. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can [petition] to obtain such relief”. The Court stressed that what the plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency funding on that basis.” With respect to the last five students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not “choose to place the students at iBRAIN unilaterally, without input from [the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting. Injunctive Relief and Payment: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Plaintiff students at the International Institute for the Brain (iBrain) seek injunctive relief for payment of certain services associated with their pendency placements. The district argues that injunctive relief is not appropriate.

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Conclusion: The Court held that plaintiff students were not entitled to injunctive relief for payments for such services. Basis of the Court’s Decision: In the circumstances here where there is no dispute over students’ pendency placement or where the payment for pendency services does not directly threaten the students’ pendency placements, pendency’s “automatic injunction” under Zvi. D. v. Ambach, 694F.2d 914 (2d Cir. 1982) does not apply. Likewise, in circumstances where there is no threat to the students’ pendency placement or an imminent threat to the provision of the pendency services, injunctive relief is not appropriate as the “irreparable injury” requirement does not apply. Relating to this, the Court pointed out that there was an adequate remedy at law; which in this case was the suit underlying the students’ request for relief. Injunctive Relief: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of that number were not entitled to pendency placement and that for the 13 others, interim relief was not appropriate. Conclusion: The court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate. Basis of the SRO’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate. The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students was not threatened. The plaintiffs argued that “the stay-put provision” acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The Court rejected the district’s’ arguments. With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the district. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can petition to obtain such relief.” The Court stressed that what the plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency on that basis.” With respect to the last 5 students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not choose to place the students at iBRAIN unilaterally, without input from 57


[the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting.

PRIOR WRITTEN NOTICE

There is no update at this time, check back for later versions for any update.

REMEDIES DIRECT PAYMENT Application of a Student with a Disability, Appeal No. 20-122 (9/17/20) Dispute: The parent asserts that the hourly rate of pay for the SETSS provided should be $150 per hour. The district contends that the hourly rate of pay to the SETSS agency should not exceed $125 per hour. Conclusion: The SRO determined that there was no basis to overturn the IHO’s decision that the hourly rate of payment for the SETSS provider should be $110 per hour and not to exceed $125 per period. 9 Basis of the SRO’s Decision: Initially, the SRO found that the District “had abdicated all responsibility for the delivery of the recommended SETSS” and that the parent had been left to obtain the SETSS services on her own. In such circumstances, the SRO noted that direct payment to the agency was an appropriate form of relief and that the Second Circuit had held that such relief “fits comfortably within the Burlington-Carter framework”. Regarding the specific hourly rate, the SRO pointed to the lack of information regarding the rate that the parent paid the agency providing SETSS, that the SETSS provider testified that she was paid $125 per hour, that the parent had not yet paid anything for the SETSS, that the parent testified that she was ”responsible for paying them”, and that there would be ”an agreement after the hearing” and determined that the rate of payment should be $125 per documented hours of time spent.

9

But note as set forth below, that the SRO held that the payment for the SETSS services was to be $125 per hour. 58


INJUNCTIVE RELIEF Y.S. v. New York City Bd. of Educ., No. 1:21-cv-00711 (MKV), 2021 WL 1164571 (S.D.N.Y. Mar. 26, 2021) Dispute: Parent sought injunctive relief to implement that part of an IHO’s decision, which provided that the district would enroll the student in an appropriate state-approved nonpublic school within 30 days. The district opposed the requested relief. Conclusion: The Court ordered the district to implement within 30 days that part of the IHO’s order, which provided for the district to enroll the student in an appropriate state-approved nonpublic school. Basis of the Court’s Decision: The parent requested an impartial hearing in June 2019, on the basis that the district had denied the student a FAPE for three years. On February 17, 2020, the IHO issued an order favoring the student. Among other things, the IHO’s order provided for the district to enroll the student in an appropriate state-approved nonpublic school within 30 days. After jockeying by the parties regarding compliance with the IHO’s order, the parent filed an action in federal court in January 2021 regarding the student’s rights under the IDEA. Subsequently, the parent sought a hearing on the request for injunctive relief relative to that part of the IHO’s order regarding the student’s placement in an appropriate state-approved nonpublic school. The Court held that in order to obtain a preliminary injunction the parent must show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the parent’s favor, and that an injunction is in the public interest. Since the injunctive relief would also arguably “modify the status quo”, the Court also held that the showing of irreparable harm must be “strong” and that there must be a determination that the success on the merits be “clear and substantial”. The Court found that the parent had made both a strong showing of irreparable harm absent the intervention of the court and of success on the merits. The Court held that the denial of an appropriate placement, the failure to provide a FAPE during the previous three years, and the district’s continuing failure to comply with the IHO’s order was sufficient to show that the student would suffer irreparable harm absent the intervention of the Court. Regarding the merits of the parent’s claim, the Court held that this was an “easy” threshold to satisfy as the IHO’s determination was final and binding and the district had admitted that it had not complied with the IHO’s order that the student be placed in a state-approved nonpublic school. Regarding whether an injunction was in the public interest the court advised that the public interest is “best served” by ensuring the upholding of constitutional and civil rights such as the IDEA after a showing of the likelihood of success on the merits. Regarding equities, the court held that while the student would suffer harm from continuing placement delays the district would suffer none. The possibility, the Court said, of the district facing a “marginal increase in cost” in the event that the student was required to be placed at a nonpublic school was “of no moment” because the district admitted that the IHO’s order provided that it would bear such costs if the district were not able to find an appropriate public placement. 59


EMC v. Ventura Unified Sch. Dist., Case No. 2:20-cv-09024-SVW-PD, 2020 WL 7094071 (C.D. Cal. Oct. 14, 2020) Dispute: Whether, in the context of a request for injunctive relief in an appeal of an adverse stayput finding by a state administrative agency, a Court would order in-person services Conclusion: The Court held that the parents’ request for injunctive relief for in-person services should be denied. Basis of the Court’s Decision: The school district moved to online learning on March 16, 2020. The California Department of Education issued guidance on April 9, 2020, that IEP services may be provided in-person notwithstanding public health restrictions only in “exceptional situations” after an “individualized determination.” The student’s May 7, 2020, IEP provided for 29.5 hours of “intensive individualized services” (IIS) a week. On August 18, the district provided the student with an online learning plan. On September 9, 2020, the parents filed a complaint with the state administrative agency alleging that the district violated the student’s rights under IDEA. On September 11, 2020, the parents filed a motion asserting that the student’s pendency placement required the district to provide IIS in-person. On September 22, the administrative agency denied parents’ requested stayput relief. Parents then sought injunctive relief asserting that the student’s IIS should be provided in-person pending the determination of the state administrative agency. The Court held that the parents’ request did not demonstrate a likelihood of success on the merits. The court reasoned that the student’s May 7, 2020 IEP, which was the “last implemented IEP,” did not expressly require that IIS be provided in person” and that, contrary to what was required by state guidance, the IEP did not include an individualized determination that exceptional circumstances required in-person services. Under such circumstances, the Court held that a decision of what the IEP required would be a “merits” question, which should not be prematurely addressed. Even if the IEP did require in-person services, the Court held that such was preempted by statewide public health restrictions and the requirement that such be accompanied by an individualized determination that such supports were needed. The Court also held that the parents did not show the likelihood of irreparable harm as the assessments in evidence did not persuasively show that the student would be irreparably harmed or that such harm would materialize before the administrative decision. The Court found here that the evidence presented by plaintiffs’ witnesses were conclusory, failed to state that the student’s declines were likely to be irreparable and were otherwise insufficient. Further, even if the evidence had shown that prolonged distance learning could cause irreparable harm, there was no evidence showing the “likely duration “of in-person learning restrictions. The Court also found that the balance of the equities/public interest supported the district in that the evidence only showed a “temporary” period of “serious difficulties” on the part of the student as opposed to the strong public health interest attached to the district’s position.

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Payment for Pendency Services: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Plaintiff students at the International Institute for the Brain (iBrain) seek injunctive relief for payment of certain services associated with their pendency placements. The district argues that injunctive relief is not appropriate. Conclusion: The Court held that plaintiff students were not entitled to injunctive relief for payments for such services. Basis of the Court’s Decision: In the circumstances here where there is no dispute over students’ pendency placement or where the payment for pendency services does not directly threaten the students’ pendency placements, pendency’s “automatic injunction” under Zvi. D. v. Ambach, 694F.2d 914 (2d Cir. 1982) does not apply. Likewise, in circumstances where there is no threat to the students’ pendency placement or an imminent threat to the provision of the pendency services, injunctive relief is not appropriate, as the “irreparable injury” requirement does not apply. Relating to this, the Court pointed out that there was an adequate remedy at law; which in this case was the suit underlying the students’ request for relief. Pendency Placement: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of that number were not entitled to pendency placement and that for the 13 others, interim relief was not appropriate. Conclusion: The court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate. Basis of the SRO’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate. The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students was not threatened. The plaintiffs argued that “the stay-put provision” acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The Court rejected the district’s’ arguments. With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the district. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can petition to obtain such relief.” The Court stressed that what the 61


plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency on that basis.” With respect to the last 5 students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not choose to place the students at iBRAIN unilaterally, without input from [the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting.

PROSPECTIVE RELIEF Impact of COVID-19: Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request. Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”. Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding. Least Restrictive Environment: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020) Dispute: The parent requests an order directing the district to identify and secure an appropriate day program consistent with the recommendations of the psychiatric evaluation and FBA already ordered by the IHO Conclusion: The SRO concluded that prospective relief should not be granted. Basis of the SRO’s Decision: The SRO concluded that “under certain circumstances” an award of prospective relief “circumvents the statutory process” regarding the CSE’s responsibilities. In this case, the SRO pointed out that the 2019-20 school year had “essentially been almost 62


completed” and that the CSE should have met to develop the student’s program for the 2020-21 school year. Further, the SRO indicated that the CSE should have before it additional evaluations, including the results of an independent FBA and of an independent psychiatric evaluation ordered by the IHO and not challenged on appeal to the SRO. Since the IHO also ordered that the CSE should meet “within 15 days of receiving the evaluations,” the SRO indicated that the district “should be moving forward with having [the evaluations] completed”. The SRO added that when the CSE reconvenes it will have additional information and that at that time it “should have the first attempt to determine the placement of the student along the continuum of services, assessing the extent to which the student can be educated with nondisabled peers in a public setting before considering more restrictive nonpublic school options” The SRO said that the case was “not one of those few cases” where prospective relief might be appropriate and indicated that one would be “where both the school district and the parent agreed that the child’s unique needs required placement in a private non-approved school and that there were no approved schools that would be appropriate”. The SRO stressed that the CSE should “reconvene”, “consider the additional evaluations” and also consider “all other non-residential possibilities” before determining whether the student needed to be in a residential program. To do “[a]nything less would eliminate the important statutory purpose of attempting, wherever possible to have disabled student meaningfully access the public school system each year by first attempting placement in a public school”. After it reconvened, reviewed the additional evaluations and reached its recommendations, the SRO ordered the district to provide the parent with “prior written notice” “specifically indicating whether the CSE recommended or refused to recommend” residential services on the student’s IEP and “explaining the basis for the CSE’s recommendation” and “describing the evaluative information relied upon in reaching these determinations” The SRO stressed again that “the CSE must consider whether the student can be successfully placed in a non-residential program”. If the parent did not agree with the CSE’s recommendation for the 2020-21 school year, the SRO indicated that the parent “may obtain relief by challenging the district’s determinations regarding that school year at that time”. Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request. Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”. Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no 63


longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding.

SECTION 504 OF THE REHABILITATION ACT OF 1973

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SERVICE ANIMALS

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STATUTE OF LIMITATIONS TOLLING G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----,Fed.Appx. -- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) Dispute: whether the IDEA statute of limitations should have been tolled. Conclusion: The Second Circuit determined that the District Court did not err when it concluded that the plaintiffs’ claims were not tolled so as to extend the statute of limitations. Basis of the Court’s Decision: The parties did not dispute that plaintiffs’ claims regarding the failure to timely evaluate the student is two years and that their claim relating to tuition reimbursement is 90 days. The plaintiffs argue, however, that these statutes of limitations should have been tolled on the basis that they were not provided with the mandatory IDEA notices and that the student’s “preplacement evaluation” was ongoing. The Circuit Court held that the plaintiffs waived their claims regarding tolling as they failed to raise any tolling arguments in the administrative proceedings below and that, as a consequence, there was no administrative record upon which the tolling claims could be evaluated. Further, the Court held that IDEA 10 and Vermont state law provided that while certain acts would toll the relevant statute of limitations, a preplacement evaluation was not explicitly set forth as one of these acts and that the plaintiffs had cited to no authority suggesting otherwise.

10

Note that the cited IDEA statutory reference may be an error.

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MISCELLANEOUS D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: Parents expressed their disagreement with the October 2014 reevaluation in May of 2017, which therefore made that disagreement timely. The District Court found that the parents’ challenge of the 2014 evaluation in May of 2017 was” untimely under the IDEA’s established dispute resolution procedures” which was two years. Conclusion: In a question of first impression, the Court of Appeals disagreed with the district court and concluded that the parents’ claim relative to the October 2014 reevaluation was timely made as it was filed within three years of the date of the October 2014 reevaluation. Basis of the Court of Appeals’ Decision: The court pointed out that generally, under the IDEA, a parent did not have “to file a due process complaint to obtain an IEE at public expense” and further, that “ [t]he IDEA [did] not provide a statute of limitations for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. The court further held that “a parent’s right to an IEE at public expense ripens each time a new evaluation is conducted” and that therefore “the time within which a parent must express disagreement with an evaluation depends on how frequently the child is evaluated.” And since a reevaluation must take place at least once every three years, the parent must express their disagreement within that three-year period. And “should a parent and school agree that the child be evaluated on a more frequent basis, [citations omitted] the parent must disagree with any given evaluation before the child’s next regularly scheduled evaluation occurs”. The Court viewed this separation of “the IEE process from the formal dispute resolution process [as serving] to reinforce the focus on collaboration and communication among an IEP Team” by providing “an additional opportunity for discussion and cooperation” before moving to more formal procedures.

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS APPROPRIATENESS OF PLACEMENT Application of a Student with a Disability, Appeal No. 21-024, pp.7-16 (Mar. 17, 2021) Dispute: Parents assert the unilateral placement is appropriate absent the provision of PT as a related service. The district disagrees. Conclusion: The SRO overruled the IHO and concluded that the student’s unilateral placement was appropriate notwithstanding the absence of PT as a related service.

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Basis of the SRO’s Decision: The student attended the Gillen Brewer School. The parents requested tuition reimbursement for the period March 27 through June 19, 2020, during which time the student participated in an “At home Learning Program” provided remotely because of the COVID-19 pandemic. The SRO found that the record showed that the student’s overall performance on measures of cognitive ability fell within the low average range and that she performed significantly below age and grade expectations in reading, mathematics, spelling, and written expression. Among other things the student also had needs in the areas of social/emotional skills, gross motor skills, skills related to the provision of occupational therapy services, and speech-language. The IHO concluded that Gillen Brewer’s program was inappropriate “solely because it did not provide PT services”. The SRO noted that the record showed that the occupational therapists addressed both fine and gross motor within occupational therapy. The occupational therapists worked on and developed goals for both fine and gross motor control and development. The record also showed that the student’s OT goals included addressing the student’s upper body strength, which was described as being “a crossover between PT and OT”. Regarding the student’s gross motor skills, the SRO concluded that a review of the relevant goals in the 2019 IEP did not reflect that the student’s gross motor needs were so acute that the absence of PT services at the school rendered the student’s entire program inappropriate. The record also showed that the parents had requested referrals for PT from the neuropsychologist and the parent testified that PT was going to be provided by an outside agency but that this had been delayed due to the COVID-19 pandemic. With respect to the balance of the student’s “global needs in academic, fine motor, and speech language skills, the SRO concluded that the record indicates that Gillen Brewer “amply addressed” these needs and also addressed the student’s important social /emotional needs which was not in dispute. The SRO also pointed out that the IHO failed to address Gillen Brewer’s entire programming including its 10:1+2 special class, OT, speech-language therapy, counseling and 1:1 support or explain why the student would be unable to make appropriate educational progress at the school. The SRO concluded that “the totality of the evidence in the hearing record shows that Gillen Brewer provided the student with special education programming that was reasonably calculated to enable the student to make progress appropriate in light of her circumstances”. With respect to progress, based on documentary and testimonial evidence in the record, the SRO concluded that the student “made progress in the program provided” and that this factored in favor of a finding that the private school was appropriate. Application of a Child with a Disability, Appeal No, 20-195 at pp. 20-23 Dispute: Whether the student made progress in his unilateral placement. Conclusion: The SRO concluded that the student made progress in his unilateral placement. Basis of the SRO’s Decision: The SRO pointed out that “a finding of progress is not required for a determination that a student’s unilateral placement is adequate [sic]”. “However, a finding of progress is, nevertheless, a relevant factor to be considered.” With that in mind, the SRO found that the hearing record “supports a finding that the student received academic and social/emotional benefit while attending [The Keswell School”. Additionally, the student’s integrated education plan progress report detailed numerous skills mastered by the student between July 2019 and 66


December 2019. The education plan progress report for that period also set forth that the student “continued to make large strides” in terms of his academic skills. That report also showed that the student made progress with respect to his social and leisure skills. Additionally, the student’s December 2019 speech and language progress report showed “that the student also demonstrated progress toward his communication objectives”. With regard to Occupational Therapy (OT), the student’s January 2020 OT report indicated that the student “demonstrated s progress toward some of his OT goals”. Further, the student’s mother testified that the student made “meaningful progress’. Finally, the Associate Director of Keswell testified “that with ABA and 1:1 instruction the student had demonstrated consistent progress”. Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that Ridge is not an appropriate private placement. Parents disagree. Conclusion: The Second Circuit upheld the determinations of the SRO and the District Court that Ridge was an appropriate private placement. Basis of the Appeals Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It set forth the appropriate legal standard to be that “(a) private placement is appropriate if it is reasonably calculated to enable the child to receive educational benefits, such that the placement is likely to produce progress, not regression”. Regarding the provided services, the Court continued that the private placement does not need “to furnish every special service necessary to maximize a child’s potential”. With respect to this, notwithstanding that Ridge did not offer occupational or speech therapy and that most of the school’s staff were not state-certified, the Court found that the school “provided a small environment designed for autistic children without behavioral issues, along with real-world socialization opportunities” and that the student made progress. The Court concluded that “because the test for parents’ private placement is not perfection, the record supported the conclusion that Ridge provided “educational instruction specially designed to meet the unique needs of a handicapped child”. Application of the New York City Bd. of Educ., Appeal No 20-131 (Sept. 10, 2020) Dispute: The parents asserts that Middlebridge School (MBS) is an appropriate unilateral placement for the student. The district disagrees. Conclusion: The SRO concluded that MBS was an appropriate unilateral placement for the student for the 2019-20 school year. Basis of the SRO’s Decision: Based on a very detailed “updated neurophysiological evaluation” and the specific testimony of MBS’s assistant head of school, the SRO concluded that MBS “offered specially designed instruction to address the student’s individual needs in the areas of academics, particularly with respect to social pragmatics, as well as in the areas of social/emotional and executive functioning, and that the student demonstrated progress while attending MBS”

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With respect to the restrictiveness of the student’s placement at MBS, which was “a small, out-ofstate independent boarding and day program for students with learning disabilities” the SRO found that considering the totality of the circumstances MBS was an appropriate unilateral placement for the student for the 2019-20 school year. In this regard, the SRO pointed out that “[w]hile the evidence in the hearing record may not support a finding that a residential program was required for the student, the hearing record indicates that student made progress at MBS and that MBS provided individualized instruction and supports to address the student’s unique needs.

BURDEN OF PROOF C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that the SRO had impermissibly shifted the burden of proof to the parents. The district disagrees Conclusion: The Court held that the SRO did not shift the burden of proof to the parents. Basis of the Court’s Decision: In a tuition reimbursement matter, the district has the burden of proof to show at the impartial hearing that its recommended placement is appropriate. In this case, the Court agreed with the SRO that the burden of proof was not shifted to the parents when, at hearing, additional information was requested from the parents’ expert to determine his knowledge of the district’s proposed placement. The Court disagreed with the IHO that the burden of proof was shifted to the parents when the additional information was requested and concluded that this “merely” required the witness to “[to] articulate a foundation for an opinion”. With respect to this, the Court upheld the determination as this only “sought to develop a more comprehensive factual record” at the hearing before determining whether the district’s recommended placement was appropriate.

EQUITABLE CONSIDERATIONS Application of a Student with a Disability, Appeal No, 21-024, p. 16 (Mar. 17, 2021) Dispute: Parents assert that equitable considerations support their claim for tuition reimbursement. Neither the district nor the IHO challenged the parents’ evidence or further addressed this issue. Conclusion: Equitable considerations supported the parents’ claim for tuition reimbursement. Basis of the SRO’s Decision: Parents assert before the IHO that they paid $1,000 toward the costs of Gillen Brewer, that they were unable to afford the remainder despite being obligated to do so, that they cooperated with the CSE, and that they provided a timely notice of unilateral placement to the district. 68


Application of a Child with a Disability, Appeal No, 20-195 at pp. 23-24 Dispute: Whether equitable considerations support the parents’ claim for tuition reimbursement. Conclusion: The SRO concluded that equitable considerations supported the parents’ claim. Basis of the SRO’s Decision: The SRO concluded that (1) “the district has not raised any equitable considerations that would warrant a reduction or denial of the parents’ requested tuition reimbursement” (2) “the parents communicated with the district regarding the need for a CSE meeting to develop an IEP for the 2019-20 school year” and (3) when a CSE meeting was not held, the parents “gave the district timely notice of their intent to unilaterally place the student at Keswell. Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) Dispute: The parents assert that equitable considerations support their tuition reimbursement claim. The district disagrees Conclusion: The SRO concludes that equitable considerations support the parents’ claim for tuition reimbursement. Basis of the SRO’s Decision: The SRO concluded that “at all times the parents cooperated with the CSE process” and that no “minor irregularities” rose to “the level of non-cooperation or violation of procedural requirements”. Regarding Covid, the SRO concluded that even though the student returned home from the residential; school because of the pandemic, the student “continued to receive many of the special education supports, services, and individualized instruction to meet [the student’s] unique needs through Middlebridge’s (MDS) remote learning program. Application of a Student with a Disability, Appeal No. 20-101 (8/3/20) Dispute: Parents assert that equitable considerations support their tuition reimbursement claim. District asserts they do not. Conclusion: SRO concludes that equitable considerations support the parents’ claim for TR. Basis for SRO’s Decision: The SRO pointed out that the parents shared their private eval; attended the relevant CSE meeting; gave the district timely notice of their intent to unilaterally place the student at the private school; that the hearing record presented no indication that the parents did not cooperate with the CSE; and advised that it is “well settled” that even if the parents had no intention of placing the student in the district’s program, that was not a basis for denying the parents’ request for TR.

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New York

SPECIAL EDUCATION C A S E L AW D I G E S T A Publication of the New York Special Education Task Force

Vol.1 - October 2021