The Pertinent Statutes
Individuals with Disabilities Education Act ("IDEA"); codified at 20 U.S.C. [United States Code] § 1400 with regulations appearing at 34 C.F.R. [Code of Federal Regulations] § 300.
Section 504 of the Rehabilitation Act; codified at 29 U.S.C. § 794 with regulations appearing at 34 C.F.R. § 104
Family Educational Rights and Privacy Act ("FERPA"); codified at 20 U.S.C. § 1232g with regulations appearing at 34 C.F.R. § 99 (FERPA gives parents of all students the right to inspect all information maintained by the school district in connection with their child)
Americans with Disabilities Act ("ADA"); codified at 42 U.S.C. § 12101 with regulations appearing at 28 C.F.R. § 35.
Technology Related Assistance For Individuals With Disabilities, codified at 29 U.S.C. Sec. 2109 (this statute, which broadly defines the term "assistive technology," can be relied upon to seek computer "touch screens, specialized recording and playback devices (e.g. "Language Master") and essentially all other devices, items and systems which are used to "...increase, maintain or improve functional capabilities of individuals with disabilities").
The Leading Court Decisions
T.H. v. Board of Education of Palatine Community Consol. Sch. District, No. 98 C.4633, 98 C 4632 (N.D. Illinois, 1999). On the District's motion for summary judgment and the child's cross motion for summary judgment, the United States District Court for the Northern District of Illinois held that the district had failed to invididualize its early childhood program, which the court termed "absurd" to meet the needs of T.H. The District Court further termed the district's IEP process "dysfunctional" and held that the district was liable to reimburse T.H.'s parents for the costs of their home-based ABA program, as well as all their attorneys' fees incurred through the Level I and II proceedings, as well as at the District Court level (the level which I participated as counsel). At the outset, T.H.'s parents offered to settle the dispute for approximately $17,000. The district dug in its heels, forcing T.H.'s parents to endure proceedings at three different levels. The district, which lost at every level, ultimately had to pay out several hundred thousand dollars, including substantial attorneys'fees.
James B. v. Greenwich, Connecticut Board of Education; (Dec. 1999). A Connnecticut impartial hearing officer, ruling on IEP's for 1998-1999 and 1999-2000, has held that Greenwich, Connecticut must reimburse James B.'s mother, a single parent, for the expense of two years of a unilateral residential placement of James B. at the New England Center for Children in Massachusetts. The award, which translates to approximately $260,000 in reimbursement before consideration of costs and attorneys' fees, is the result of 11 days of hearings which showed that James had been shuttled between six different district schools in eight years, and that James had essentially fallen through every conceivable crack in the Greenwich system. By way of example, in the year after James went on to Kindergarden from his Greenwich-run pre-k, Greenwich introduced ABA in the pre-k, but then failed to identify "graduates" who might also benefit from ABA interventions. Although Greenwich failed to advise James' mother of the existence of ABA therapy, Greenwich was quick to implement and continue (unfortunately for years) Facilitated Communication, a controversial intervention from the start which ultimately was branded as a hoax. It should be noted that James' mother, a single parent, was forced to sell her home to advance the initial cost of the NECC residential placement. [the post-hearing brief which I submitted in this matter will soon be added to this site, as will the final decision]
Cedar Rapids Community School District v. Garret F.; 1999 WL 104410 (U.S. Iowa, Decided March 3, 1999). United States Supreme Court (Justice Stevens writing for the majority): IDEA requires the provision of "continuous 1:1 nursing services" which qualify as "related services," and which are not excludable as "medical services" under Tatro decision [468 U.S. 883 (1984], reasoning that student would not be able to benefit educationally without the provision of such nursing services continuously during the school day. NOTE: Although the majority noted that the district "may have legitimate financial concerns," it nevertheless held that it would not adopt any "undue financial burden" test and that in order to fulfill the purposes of IDEA, "....the district must fund such ‘related services’[without regard to the cost]..." Justices Stevens, Rehnquist, O’Connor, Scalia, Souter, Ginsburg and Breyer joined in the majority opinion. Justices Thomas and Kennedy (dissenting), argued that "...this approach blindsides unwary States with fiscal obligations that they could not have anticipated."Board of Education [Hendrick Hudson Central School District] v. Rowley, 458 U.S. 176 (1982). The Rowley case is often cited by school districts for the general proposition that the school district or municipality need not provide "optimum" services, and need only provide services which are "appropriate." The Rowley case also is cited by parents since the United States Supreme Court explained that an "appropriate" educational plan is one which is "individualized," "tailored," "personalized," and "specially designed" to meet the "unique needs" of the individual child who is the subject of the educational plan. The Rowley decision is important since it confirms that parents are given an important role in the IEP process. As the Supreme Court explained: "The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child."
Burlington School Comm. v. Mass. Dep’t of Education, 471 U.S. 359 (1985). In Burlington, the United States Supreme Court held that reviewing courts have the authority to order reimbursement of parents for expenditures made to provide their children with appropriate private special education if the state provided services are determined to be inappropriate and the private education services obtained by the parents are appropriate.
Florence County School District Four v. Carter, 510 U.S. 7 (1993). In Florence County, the United States Supreme Court held that reviewing courts have the authority to order reimbursement of privately purchased educational services that are appropriate under Part B of the IDEA statute, but which fail to fully meet the standards of the State Department of Education.
Still v. DeBuono, 101 F.3d 888 (2d Cir. 1996). In this case, the United States Court of Appeals for the Second Circuit (the circuit comprised of New York, Connecticut and Vermont) held that parents can be reimbursed for services notwithstanding the provider’s lack of certification when the state fails to provide appropriate services, so long as the provider is "proficient" and "the cost of the private services is reasonable."
Malkentzos v. DeBuono, 923 F. Supp. 505 (S.D.N.Y. 1996), reversed on other grounds, 102 F.3d 50 (2d Cir. 1996). In this case, the trial court expressly acknowledged the efficacy of ABA therapy and followed the "treating physician" rule, holding that that fact that the parents had used "non-certified" therapists who were otherwise qualified by their training would not bar the parents from seeking reimbursement where the municipal agency had defaulted in offering appropriate services. The Second Circuit held that as a matter of proper procedure, the trial court had prematurely granted the parents’ request for reimbursement without requiring an evidentiary hearing, and remanded the matter back to the trial court to consider the reimbursement issue at such a hearing.. In all other respects, however, the Second Circuit affirmed the findings of the trial court. Accordingly, the Malkentzos case is still a case which parents should cite, and school districts should draw no solace from the fact that there was a reversal and a remand, since the reversal was simply to ensure that the trial court conducted an evidentiary hearing to comply with procedural requirements. On remand to the district court, the Malkentzos case was settled on terms favorable to the parents.
Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 838 (1989). In Polk, the United States Supreme Court held that a school district’s rigid policy not to provide physical therapy would violate the statute which was the precursor to the IDEA statute because such a policy would prohibit the school district from considering the child’s individual needs.
Russman v. Sobol, 85 F.3d 1050 (2d Cir. 1996) ("Where government programs are made available to a broad class of citizens defined in a religion neutral fashion, the individuals receiving the benefits may choose to use them in a religious setting [and the school district may not insist on on-site treatment].").
Mrs. B. v. Milford Board of Education, 103 F.3d 1114 (2d Cir. 1997) (school district required to reimburse parents for cost of residential placement where child had shown regression, and where the residential placement was necessary for the child to make academic progress).
Quaratino v. Tiffany & Co., No. 97-7096, 1997 U.S. App. LEXIS 32077 (2d Cir. Nov. 14, 1997) (where federal statutory rights are being enforced, because of the "public interest," attorneys’ fees may exceed the amount of the underlying award unless the underlying award is a mere "technical victory", e.g., the case where a plaintiff wins a nominal $1 award).
Timothy W. v. Rochester, New Hampshire Sch. Dist., 875 F.2d 954 (1st Cir. 1989) (reversing New Hampshire district court, which had held that a school district was not obligated to provide special education because child allegedly was not capable of benefitting from such education----special education under the Education or All Handicapped Children Act includes basic functional skills as well as traditional cognitive skills).
Walczak v. Florida Union Free School District, 97-7155 (2nd Cir. Decided April 16, 1998) (reversal of District Court's granting of "summary judgment" in favor of child designated as "learning disabled" where parents had refused to re-enroll child at BOCES school and opted to enroll child at a private school for children with learning disabilities, where the record demonstrated that the child had made significant progress in the BOCES environment and where parents had admitted that they were seeking "the maximum interventions...so that [their child] can reach her true potential." In reversing the District Court's granting of summary judgment (i.e. a decision by the court based entirely on papers and no evidentiary record), the Second Circuit held that the District Court had "...made only general factual findings without referring to the specific evidence in the record").
Muller v. Committee on Special Education (East Islip), 97-7201 (2nd Cir. May 22, 1998) (Second Circuit Court of Appeals affirms the decision of the District Court which, in reversing the decision of the impartial hearing officer, had held that the child qualified as having a "serious emotional disturbance" under the IDEA statute, as amended, and that parents were thus entitled to compensation and recovery of monetary damages for cost of private placement and recovery of attorneys' fees).
Walker v. District of Columbia, 969 F. Supp. 794 (D.D.C. 1997) (since compensatory damages beyond "reimbursement" are not provided for by the IDEA statute, even after parents win full "reimbursement" at due process hearings, they still may sue for civil rights "damages" under Section 1983 where they can establish that the failure to provide their child with a free and appropriate education was the byproduct of a custom, policy or practice).
J.B. v. Killingly Board of Educ., 990 F. Supp. 57 (D. Conn. 1997) (under IDEA statute, special education student diagnosed as having ADD and other disorders and engaging in dangerous behaviors held entitled to $150,000 per year group home care and other related services in order to prepare student for "independent living").
