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.

Wednesday, November 18, 2009

Statute of limitations. The Third Circuit has held that the two-year statute of limitations for an IDEA claim also applies to a claim brought under section 504 of the Rehabilitation Act rather than applying an analogous state statute of limiations. The Court's decision was based on its conclusion that IDEA and section 504 do similar statutory work. The Court noted that this was an issue of first impression.

The decision in P.P. v. West Chester Area School District can be found here.

Monday, October 12, 2009

Location, Location, Location

The Second Circuit, in T.Y. v. New York City Department of Education, has held that the failure of an IEP to name a specific school as the placement for a child does not render the IEP procedurally deficient. While the statute, 29 U.S.C. 1414(d)(1)(A) requires that an IEP provide a location, the Court noted that the United States Department of Education had concluded that "[t]he location of services in the context of an IEP generally refers t the type of environment that is the appropriate place for provision of the service. For example, is the related service to be provided in the child's regular classroom or resource room?" It held that this conclusion comported with the Senant's commentary, which stats that "[t]he location where special education and related services will be provided to a child influences decisions about the nature and amount of these services and when they should be provided to a child. For example, the appropriate place for the related service may be the regular classroom, os tha thte child does not have to choose between a needed service and the regular educational program. For this reason, in the bill the committee has added location to the porivision in the IEP that includes 'the prjected date for the beginning of services and modifications, and the anticipated frequency, location and duration of those services.

The Court also noted that improper omissions from the IEP, which are corrected in the administrative process does not render an IEP, as a whole, substantively deficient.

The decision can be found here.

Friday, July 10, 2009

Milwaukee Appeals!

Milwaukee is appealing from an order requiring it to come up with a plan for compensating students who had been denied FAPE during the years 2000-2003. The City claims that the order is overly broad.

For more information, read the article located here.