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Federal District Court Rules for Parent Against Paul Kelly's Logic
Some Judicial Light is Shed on Mysterious 'Equitable Considerations'
by Arthur Luger, Ph.D.
This article is written with a layman's view of happenings and should not be construed as legal advice or legal information. Check with your attorney for legal advice.
The US District Court (Southern District of NY), in a recent ruling, has shed some light on the mysterious Prong 3 of the "Burlington test" used in Impartial Hearing decisions. In doing so, the Court has overturned the perverse logic of State Review Officer Paul Kelly. The case, N.R. v. NYC DOE, was decided by Judge Barbara S. Jones on March 31 and provides an explanation of Prong 3 'equitable considerations' that should help to level the SRO-skewed playing field.
[For those less familiar with IDEA law (and lore), Prong 1 is the school district's burden to prove that the program offered, if any, is appropriate for the child. Prong 2 is the parents' burden to prove that the program the child is attending is appropriate.]
Prong 3 of the "Burlington test" (named for the landmark Supreme Court case Burlington Sch. Comm. v Dept of Educ) says that tuition reimbursement is appropriate if "equitable considerations support the parents' claim", usually interpreted as parents cooperating with the school district. A parent cannot get tuition reimbursement if they don't notify the school board of their dissatisfaction with their child's IEP and/or recommended program (SLA clients are bugged by our office to assure that notifications are sent and verified!); OR, if the parent unilaterally places the child in a private school, has no intention of allowing a public education alternative, and then frustrates the school district's ability to make an appropriate placement.
But, in this case, the parent provided ample notice and there was no record of hinderance by the parent. While the SRO's decision against the parent cited failure to inform the DOE of the parent's dissatisfaction with the IEP (Kelly loves to catch parents who are late or forget to notify the school district), the Federal Court ruled that the failure did not obstruct the [school district's] placement process or its ability to provide ... FAPE. We hope that no longer can SRO Kelly claim that a late or missing notice can derail a parent's quest for tuition reimbursement!
In my humble and non-attorney opinion, Judge Jones lays out the steps for a parent to follow for equitable considerations to be found (sounds a lot like Susan speaking - I've heard her say this in her sleep):
- Request a case be opened
- Attend all scheduled CSE meetings
- Provide the CSE with all documents requested
- Visit programs recommended
- Provide written response to visited programs
- Provide notice of your intent to place your child in a private school and seek reimbursement
- File a notice of hearing in a timely fashion
It gets better. The ruling states that, if a school district fails to offer a disabled child an appropriate placement prior to the commencement of the school year, 'equal considerations' cannot favor the school district. This means that if the school district concedes Prong 1, they cannot batter the parent with a Prong 3 case!
And, quoting from the ruling, "it would be inequitable to reward the [DOE] for its admitted failure to comply with the IDEA." |
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Reminder of April 1 Special Alert
Attend this meeting if at all possible |
NYS Ed Department schedules public hearings to limit Special Education options
Public Meeting is Tuesday
May 12, 2009
2:30PM to 5:00PM
VESID Queens District Office
59-17 Junction Blvd, 20th Floor
Corona, NY 11368
Proposed changes to amend the Part 200 Regulations which govern the actions of school districts would drastically reduce the statute of limitation to request a hearing to seek tuition reimbursement. If approved by the State Ed Department, parents would have "180 days from the student's placement in the private school". Current regulations give the parents two years from the CSE Meeting. The real problem rests in the interpretation when the 180-day clock would start and what "day" -- calendar, school, etc.
The other monster-bad proposal is to allow CSE's the ability to limit service depth and duration. Speech-and-language services for special education students could be curtailed by the CSE rather than determined by the speech-and-language experts. This puts too much power into the hands of (well-meaning but) non-expert people. Better to leave the determinations of services to experts who typically know the child's issues and are better equipped to make such determinations.
There is a Public Comment Submission Form (in MS Word format) at the website:
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Supreme Court to Hear Oral Arguments on Forest Grove Case on April 28th |
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Whether or not TA's claim is paid rests on one of two diametrically opposite interpretations of the IDEA:
Forest Grove believes that there is no notice requirement because the IDEA does not permit reimbursement under the TA circumstances (not having been classified and not having received special education services prior to his removal from public school).
In the view of disabilities groups, the IDEA statement under which Congress permits tuition reimbursement, (namely a child receiving special education services that opts for FAPE in a private school) is but one example of how reimbursement can be gotten.
One thing to glean from this case is to never ever trust the School District to be the sole evaluators of your child. Evaluators for the district know what's at stake and it is against their collective interests to be objective in their decisions.
The other lesson is more breath-taking (in the negative sense). If a child, who receives no special education services in a public venue, moves into a private venue, there may be no recourse to reimbursement under IDEA. Now imagine -- the school districts just have to deny all children special education services and the burden of paying for private schooling vanishes. That is, if the Supreme Court rules against TA.
We will keep you apprised of the developments. |
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John Powers Speaks to Standing-Room-Only Group!
SLA Workshop
Selecting a Residential Placement |
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On March 25, 2009, renowned expert in school and residential placements John Powers presented a workshop on 'How to Select a Residential Placement for your Child'.
Mr. Powers 25+ years of service as an education consultant showed through. His workshop was both fundamental and thought-provoking. All attendees were taking notes throughout.
The workshop was held in the SLA Conference Center.
The strong turn out gives us thought to invite John back soon for an encore presentation! | |
End Notes
Ahh, Spring. The season of rebirth, greening trees and plants, sunshine returning to warm our bones. Its also the time when the CSE's start to hold their annual reviews for the 2009-10 School Year.
The CSE annual review can be your first and only stop in obtaining services for your special education child. If so, you are lucky and blessed.
In other cases, the CSE annual review is the first step in a longer process that SLA is well-aware of. Remember that, at the CSE meeting, all statements and all documents are fixed for later inspection and micro-analysis. You must have all your expert reports and documentation ready to be distributed, all your needs specified and stated explicitly, and all extraneous talk-wishes-social chatter-etc. must be curtailed.
To again mangle Sy Syms' words, a well-prepared parent is one who brings all the documentation and lets the advocate do the talking.
Happy Spring to all.
Sincerely,
Susan Luger
Susan Luger Associates, Inc.
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| Fidgeting In Kids With ADHD May Help Them Focus |
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Study shows kids who swivel chairs, bounce at their desks may help their learning process
ADHD is characterized by difficulties in utilizing short-term memory regions of the brain. A study by a Florida professor indicates that the fidgeting parents and teachers often try to stop in ADHD children may, in fact, help stimulate networks in the brain that control short-term memory.
It is posited that the motion may help ADHD kids focus by giving their brains a kick, similar to Ritalin and other stimulants used to augment short-term memory.
This is a synopsis of several articles including Time magazine, Science Times and (I believe) I saw in the NY Times. |
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