Supreme Court Affirms Reimbursement for Parentally-Placed Private School Children

On Wednesday, October 11, 2007, the U.S. Supreme Court affirmed a federal court ruling that children with disabilities who are placed in private schools by their parents, even without first attending public school, are entitled to tuition reimbursement when the public school cannot provide a free and appropriate education (FAPE).

Tom F. received tuition reimbursement for his son’s private school placement for two years because the school district was unable to provide his son a FAPE. Later, when the school district determined it could provide a FAPE in a public school, Tom F. requested a due process hearing. Tom F. challenged the appropriateness of the individualized education program (IEP) and placement, contending that the IEP was inappropriate and continued private placement was necessary.

A hearing officer found that the public placement was inappropriate and granted Tom F.'s request for tuition reimbursement. On appeal, a state review officer affirmed the hearing officer's decision. The school district appealed again and the U. S. District court reversed the decisions of the impartial hearing officer and state review officer holding that IDEA does not require a school district to reimburse a parent if the child has never been enrolled in public school. The U.S. Court of Appeals for the Second Circuit vacated and remanded the decision. The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school.

With Justice Kennedy recusing himself, the Court was split 4-4. While the ruling upheld the lower court decision in a brief per curiam opinion, it means New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child, does not set precedent on this issue. Therefore, the case is resolved but the issues remain outstanding.

Source: http://jurist.law.pitt.edu/paperchase/2007/10/supreme-court-affirms-reimbursement-for.php
Author: TRW

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Supreme Court Hears Oral Argument on IDEA Private Placement Right to FAPE

On Monday, October 1, 2007, the U.S. Supreme Court heard oral arguments in New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child. The Supreme Court will decide whether children with disabilities who are placed in private schools by their parents, without first attending public school, are entitled to tuition reimbursement when the public school can not provide a free and appropriate education (FAPE).

Under the Individuals With Disabilities Education Act (IDEA), “[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate.” 34 C.F.R. § 300.148(c) (emphasis added).

Tom F. received tuition reimbursement for his son’s private school placement for two years because the school district was unable to provide his son a FAPE. Later, when the school district determined it could provide a FAPE in a public school, Tom F. requested a due process hearing. Tom F. challenged the appropriateness of the individualized education program (IEP) and placement, contending that the IEP was inappropriate and continued private placement was necessary.

A hearing officer found that the public placement was inappropriate and granted Tom F.'s request for tuition reimbursement. On appeal, a state review officer affirmed the hearing officer's decision. The school district appealed again and the U. S. District court reversed the decisions of the impartial hearing officer and state review officer, and held that IDEA does not require a school district to reimburse a parent if the child has never been enrolled in public school. The U.S. Court of Appeals for the Second Circuit vacated and remanded the decision. The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school.

If the Supreme Court affirms the decision by the Second Circuit, parents will have the right to obtain reimbursement from the public school even if the child was never enrolled in a public school special education program. Parents, however, will still be required to show that the district's proposed program was inappropriate and that the private special education program they chose is appropriate, consistent with the established tuition reimbursement remedy authorized by the IDEA.

Source: http://www.wrightslaw.com/news/07/nyc.tomf.htm
Author: TRW

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Parents May Represent Themselves in IDEA Due Process Cases

On Monday, May 21, 2007, the Supreme Court determined that parents may represent themselves without an attorney when bringing a complaint under the Individuals with Disabilities Education Act (IDEA). Winkelman v. Parma City School District, 550 U.S. ____ (May 21, 2007).

The Supreme Court ruling now permits parents who remain dissatisfied after the administrative determination to file a civil lawsuit on their child's behalf, in federal court, and without an attorney on any IDEA-related claim.
Jeff and Sandee Winkelman are the parents of Jacob, an autistic child receiving special education services. The original complaint alleged that Jacob’s individualized education program (IEP) failed to provide him with a free and appropriate education (FAPE), as required under IDEA. The Winkelmans spent $30,000 in legal fees for representation in the original hearing and before a review office. When the hearing office and then the review office found in favor of the school district, the Winkelmans appealed again, but hoped to represent themselves as they could no longer afford legal representation.
The Winklemans, neither of whom is an attorney, appealed to the U.S. District Court for the Northern District of Ohio. Parma City School District filed a motion to dismiss petitioner’s appeal because they were prosecuting the appeal without a lawyer. On November 4, 2005, before any briefing on the merits of the appeal, the court of appeals granted the motion determining that the Winkelmans had to obtain counsel for the appeal.
More than a year and a half later, Justice Anthony Kennedy, writing for the Court, said, “[p]arents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf…. It is beyond dispute that the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child; and, what is more, Congress has found that ‘the education of children with disabilities can be made more effective by … strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children and at home.’” Winkelman v. Parma City School District, 550 U.S. ____; (citing 20 U.S.C. § 1400(c)(5)).
Justices Scalia and Thomas dissented in part, and argued that while parents could represent themselves under IDEA, they should be limited to only claims relating to personal procedural violations and reimbursement issues.
While this ruling makes it easier for parents to protect their child’s rights, the concern is that it will increase the number of frivolous lawsuits. Parents who were previously hesitant to bring a lawsuit without an attorney may now feel more confident in bringing their cases forward. Parents tend to be unfamiliar with the law, the legal process, and may be less likely to settle cases because they tend to lack third party objectivity, which could make this ruling expensive for schools.
Resource:
Full Opinion located at: http://www.law.cornell.edu/supct/html/05-983.ZS.html
Author: TRW

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ED Publishes Proposed Rulemaking for IDEA Part C

On Wednesday, the U.S. Department of Education (ED) officially released its notice of proposed rulemaking (NPRM) for the IDEA Part C Early Intervention for Infants and Toddlers with Disabilities Grant program. The proposed regulations would implement Part C of the IDEA, as amended by the Individuals with Disabilities Education Improvement Act of 2004.

Taking the same approach as with the Part B regulations, ED essentially incorporates most of the statute’s requirements, restructuring the regulations and adding clarifications where deemed necessary. The full set of proposed rulemaking is more extensive than the current Part C regulations, which do not incorporate as much of the law.

Because a major goal of the 2004 reauthorization was to create a “seamless system of services” for individuals with disabilities, beginning at birth with the Part C program through age 21 with the Part B program, the NPRM incorporates some applicable Part B regulations in order to align the two programs. For example, the purchase, optimization, maintenance or replacement of cochlear implants would not be Part C covered services. To implement the law’s new flexibility allowing States to continue Part C services through preschool age, the definition of “infant or toddler with a disability” could include, at the State’s discretion, children with disabilities, ages three or older who are eligible for Part B preschool services and who previously received Part C services.

Among the proposed clarifying rules not specifically in the law, the list of “qualified personnel” would include, as special educators, teachers of infants and toddlers with hearing impairments (including deafness) and teachers of the visually impaired (including blindness). ED clearly intends to include teachers of the hearing impaired as special educators in the final regulations, but it requests comment on whether it is necessary to classify teachers of the visually impaired as special educators. The proposed regulations would require all States (not just those in which the State educational agency is not the Part C lead agency) to establish an inter- or intra-agency agreement between the Part C and Part B programs on the logistics of notice, conferences, IFSP content, and transition steps and services. Regarding child referral procedures, the proposed regulations would relax the current two-working day timeframe by requiring that the referral “be as soon as possible.” In addition, the NPRM would allow Part C eligibility to be established based on a qualified personnel’s use of “their informed clinical opinion to assess a child’s present level of functioning,” even when other instruments fail to establish eligibility.

The Department will hold public meetings to consider comments on the proposed rulemaking, although a schedule for dates and locations is yet to be published. Comments on the proposed rulemaking are due on July 23, 2007.

Resources:
The NPRM may be accessed at http://frwebgate3.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=89281819835+0+0+0&WAISaction=retrieve
Author: CPN

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Winkelman v. Parma City School District, No. 04-4159 (6th Cir. Sept. 20, 2005)

Supreme Court Hears Argument on Parent Pro Se IDEA Representation
On February 27, 2007 the Supreme Court heard oral arguments in Winkelman v. Parma City School District, No. 04-4159 (6th Cir. Sept. 20, 2005) on the issue of whether parents are permitted to represent their children pro se in due process hearings under the Individuals with Disabilities Education Act (IDEA).

Jeff and Sandee Winkelman are the parents of Jacob, an autistic child receiving special education services. The original complaint alleged that Jacob’s individualized education program failed to provide him with a free and appropriate education, as required under IDEA. The Winkelmans spent $30,000 in legal fees for representation in the original hearing and before a review office. When the hearing office and then the review office found in favor of the school district, the Winkelmans appealed again, but hoped to represent themselves as they could not longer afford legal representation.

The Winklemans appealed to the U.S. District Court for the Northern District of Ohio. They claimed that, in addition to Jacob’s substantive IDEA rights, their procedural rights as parents were also violated. The Winkelmans claimed that the school district predetermined a placement for Jacob without their input. They also alleged that the hearing officer impermissibly allowed a research assistant to “co-preside” over the proceedings and that the decision violated the forty-five day time limit allowed by IDEA.
Parma City School District filed a motion to dismiss petitioners’ appeal because they were prosecuting the appeal without a lawyer. On November 4, 2005, before any briefing of the merits of the appeal had been conducted, the court of appeals granted the motion.

Currently, there is a division among six circuits over whether non-lawyer parents have the right to prosecute an IDEA dispute pro se and, if so, whether they can represent themselves regarding their own rights under IDEA and/or the rights of their children. The 1st Circuit Court of Appeals found that parents may represent both themselves and their children under IDEA. The 2nd, 3rd, 7th and 11th Circuit courts have ruled that parents can only act on their own behalf, while the 6th Circuit ruled that parents cannot represent themselves or their children in court under IDEA.
With the Supreme Court’s decision, the split between the circuits will finally be settled and the scope of parental rights under the IDEA hopefully resolved.

Resource: http://docket.medill.northwestern.edu/archives/004067.php
Author: TRW

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