Friday, September 16, 2016

A disability is not a disability is not a disability

The question presented in this case is whether being disabled for purposes of the Individuals with Disabilities Education Act ("IDEA") categorically qualifies and individual as having a disability under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504").

The plaintiffs in B.C. v. Mount Vernon School Dist. are high school students with disabilities under IDEA (actually the plaintiffs were the students' parents, but it amounts to the same thing).  Their schools had placed them in AIS remedial classes for which academic credit was not given.  As a result at the end of the school year, they did not have enough credits to graduate to the next grade.  Both students ultimately graduated from high school.

The plaintiffs brought suit in federal court under the ADA and Section 504, claiming that the Mount Vernon School District's policy of scheduling the AIS classes during school hours disparately impacted students with disabilities.  The school district moved for summary judgment, asserting that the plaintiffs should have exhausted their claims through the administrative process under the IDEA before raising these claims in federal court.  The plaintiffs claimed that they were excused from the exhaustion requirement of IDEA because their claims challenged a district-wide policy of discrimination and exhausting administrative remedies with respect to the district's framework and procedures would have been futile.

The District Court accepted the plaintiffs argument that they fall within the "futility" exception to the IDEA exhaustion requirement because they were challenging a district-wide policy.

The District Court granted the district's motion for summary judgment, stating that the plaintiffs' disparate impact evidence only showed the the district's policy only had a disparate impact on students with a disability under IDEA, not under ADA and Section 504, which defines "disability" differently.

The Second Circuit affirmed.  The plaintiffs statistical evidence only showed that district's policy only had a disparate impact on individuals with a disability under IDEA.  It is only if , as a matter of law, a child with a disability under the IDEA necessarily qualifies as an individual with a disability under ADA or Section 504.

ADA and Section 504 define  "disability" as a "physical or mental impairment that substantially limits one or more major life activities."  By contrast, under IDEA, a "child with a disability" has one or more of an enumerated list of impairments requiring "special education or related service."  Hence, a student could have a disability that requires special education or related services without it substantially limiting one or more major life activities.  The Court held that the plaintiffs' position, in effect, read the ADA's substantial limitation requirement out of the statute.  The Court, while acknowledging that many students who qualify for special education or related services under IDEA might also qualify under ADA and Section 504, that is not always the case.  Other circuits have similarly held.

The Second Circuit's decision can be found here.

Thursday, July 02, 2015

Prevailing Attorney Entitled to Fee From District Greater Than What He Would Have Been Paid Had He Lost

In Price v. District of Columbia, the parents seeking relief on behalf of their child under IDEA.  They obtained counsel from the Juvenile Branch of the Superior Court of the District of Columbia, which appointed an experienced member of that court's Special Education Advocate Panel.  Such counsel are paid by the courts $90 per hour if they are not otherwise compensated by the District of Columbia.  After prevailing in their administrative proceedings, the parents sought attorneys' fees at the rate of $250 per hour under the fee shifting provision of IDEA.  The District of Columbia refused to pay more than $90 per hour, the amount that would have been paid had the parents not prevailed.

The District Court held that the promise of payment of $90 per hour in the court appointment precluded any greater recovery.  The DC Circuit reversed, holding that the $90 that the court's would have paid the attorney had he not prevailed was not the prevailing market value of his services, but was merely a back-up promise of compensation, which did not preempt the fee-shifting provision of IDEA

The decision can be found here.

Wednesday, July 01, 2015

Stay-Put Violation Sustained Even Though FAPE Claim Was Denied

In Doe v. East Lyme Board of Education, the parent of an autistic child reached an agreement for an IEP under which the parent paid for the child's tuition at a private school and the school district paid for certain related services.  When the parent came to develop a new IEP for the next school year, the school district refused to continue to pay for the related services and suggested that the student at a public school in the district and offered certain services, which the parent rejected.  The parent advised the school district that the student would stay at the private school and that she expected the school district to continue to pay for the related services.  The school district did not provide tuition for the school or the related services that it had previously paid for and the expenses were absorbed by the parent.  The next year, the parent advised the school district that unless they provided a satisfactory IEP, the child would continue to attend the private school.  She demanded reimbursement of her expenses for the related services.  The school district refused to pay, claiming that the child's enrollment at the private school terminated its obligations under IDEA.

The parent filed for a due process hearing, seeking reimbursement of tuition and related services and claiming that the school district had failed to provide the child with FAPE under the IDEA and Connecticut law.  The hearing officer ruled in favor of the school district, holding that the school district had offered FAPE during the relevant years and because the private school idd not provide special educational services, it was an inappropriate placement.

The parent then sought judicial review in the District Court for the District of Connecticut.  The parties cross-moved for summary judgment based on the administrative record.  The District Court held that the school district had offered the student FAPE in the second year at issue and even though it not propose an IEP in the third year, the parent was not entitled to tuition reimbursement because the school was an inappropriate placement.  However, the Court held that the school district had violated the stay-put provision of IDEA, which, it held, required it to pay for the related services that the parent had paid for.  (The Court refused to require the school district to pay for services that the parent had not paid for because of the expense.)

The parties cross-appealed.  The school district's position was that the student's enrollment at the private school terminated its obligations under IDEA altogether and that a stay-put claim cannot be sustained where the school district prevailed on the FAPE claim.  The parent's position was that the school district had not provided the student with FAPE and that the school was an appropriate placement.

The Second Circuit held that the school district had offered an adequate IEP and placement in the second year at issue. The Court further held that the private school was not a proper placement.and even though the school district had failed to propose an IEP and accordingly did not provide FAPE, the school district did not have to pay for the tuition.

The Court held that attendance at the private school, which was outside the district, did not terminate the school district's obligation to provide FAPE.  Since the school district had not proposed an IEP, it had violated the student's right to FAPE.

The Court held that the student's stay-put placement was the placement on the student's last implemented IEP.  By refusing to pay for the services set out in that IEP in the subsequent school years constituted a violation of the stay-put requirement.  The Court further held that a claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP.  The Court held that reimbursement is only available from the time that administrative proceedings were commenced, not from the time an impasse was reached between the parent and the school district.

The Court agreed that the school district had to reimburse the entire cost of the services that it was required to provide, not just the amount that that the parent was able to pay for.  To hold otherwise would allow the school district to benefit from the parent's financial circumstances.  The Court held, however, to require the school district to pay to the parent more than she paid was impermissible, but that the school district could provide compensatory education.

A copy of the decision in this case can be found here.

Friday, March 14, 2014

Waiver rule

As is well known, if you don't raise an issue in your due process complaint, you cannot raise it in the due process hearing absent consent of the other side (and how likely is that?).  The Second Circuit, however, in C.F., by her parents R.F. and G.F. v. New York City Department of Education, stated:

"We hold that the waiver rule is not to be mechanically applied.  The key to the due process procedures is fair notice and preventing parents from 'sandbag[ging] the school district' by raising claims after the expiration of the resolution period.  We note that the IDEA itself contemplates some flexibility.  The statute does not require that alleged deficiencies be detailed in any formulaic manner, and the waiver rule limits only what may be raised 'at the due process hearing.'"

The case was for reimbursement at a unilateral private placement.  The Second Circuit reversed the district court's decision that the parents were not entitled to reimbursement.  The Court held that the child's IEP was procedurally and substantively flawed, that the parent's placement was appropriate and the equities were in the parent's favor.  Accordingly, reimbursement was ordered.

The decision can be found here

Monday, February 24, 2014

Stay-Put Split

The Third Circuit jumped into the dispute between the D.C. and the Ninth Circuits on the issue of whether the stay-put provision of the Individuals with Disabilities Education Act, which requires that a disabled child shall remain in his or her current education setting during the pendency of proceedings to resolve a dispute over the child's placement, continues through appellate review.  The D.C. Circuit has held that it does not, while the Ninth Circuit has held that it does.  The Third Circuit agreed with the Ninth Circuit, holding that "the statutory language and the 'protective purposes' of the stay-put provision lead [sic] to the conclusion that Congress intended stay-put placement to remain in effect through the final resolution of the dispute."

The decision in M.R. v. Ridley School District can be found here.

Tuesday, June 15, 2010

Summer Conflict

The Third Circuit has held that an IEP enacted before summer vaction, but not implemented does not establish the "stay put" placement when a placement dispute arises over the summer. The decision in LY v. Bayonne Board of Education can be found here.

Monday, December 28, 2009

Negative Multiplier

A parent and student prevailed, in part, in an action against a school district in which they claimed that the student had been denied FAPE. The District Court awarded the plaintiffs $104,349.45 in attorneys' fees. The School District appealed the award of attorneys' fees, asserting that the amount sought, $113,267.16, should be reduced by 75% because the plaintiffs had only prevailed on one of four claims. The Third Circuit rejected the School District's position, stating that while an attorneys' fee award can be reduced when the plaintiffs have only acheived partial success, there is no precise rule for making such a determination. In this case, the District Court had found that the plaintiffs had acheived substantial success in the litigation. The Third Circuit affirmed the fee award of the District Court.

The decision in Damien J. v. School District of Philidelphia can be found here.