Adam Dayan, Esq.
Recent SRO Decisions
Decisions from the SRO have been significantly delayed over the last several months. While there is generally an expectation that an SRO decision will be rendered within 30 days from the request for review, recently parents have waited many months.
I’d like to review some of the last available decisions here:
SRO 12-135 upheld an IHO’s order of reimbursement for the Rebecca School, affirming that the district had failed to provide FAPE and that the Rebecca School was an appropriate placement. This decision emphasized the importance of an IEP sufficiently identifying a student’s present levels of performance, including an accurate description of the student’s needs and corresponding goals to address those needs. A central issue on appeal, however, appears to have been compensatory education and how the amount of such instruction/services is determined. The SRO modified the award of compensatory services by reversing the part of the IHO’s decision that awarded 105 hours of speech-language therapy (according to the SRO, the area of speech-language needs was not sufficiently challenged in the parent’s due process complaint) but affirmed the award of 105 hours of special education services(1:1) to put the student in the position she would have been in had the district offered FAPE during the school year at issue.
SRO 12-096 is a strange case. At the IHO level, the hearing officer initially found that the district had denied FAPE and ordered tuition reimbursement for the Rebecca School (summer) as well as the cost of a home program and related services. Apparently, the IHO then amended her initial decision, reversing her own initial finding of the appropriateness of the home program in her original decision. Huh?
The SRO annulled the second decision and considered the merits of the appeal from the first. The SRO dismissed the parents’ arguments regarding the CSE’s evaluative information and the present levels of performance in the IEP. With respect to goals and objectives, the SRO agreed that the IEP goals lacked measurability, but disagreed with the parent regarding the sufficiency of “baseline data” and asserted that the objectives accompanying those goals were sufficiently measurable. In considering the issues of an FBA and BIP (common in autism cases), the SRO seemed to suggest that because the student was attending Rebecca at the time of the IEP meeting, the CSE may have been absolved from conducting an FBA, and defended the CSE’s actions regarding the student’s behaviors and her BIP.
The parents’ arguments relating to the recommended public school were shot down too. The SRO echoed a recent SRO trend of asserting that where the child didn’t attend the public school program, the sufficiency of the program is to be determined based on the IEP itself and not a school’s ability to implement it. This arguably is at odds with the holding in Forest Grove which states that a child need not have attended a particular public school program in order for a parent to assert that it is inappropriate. Wouldn't we still want to know whether the program actually could have been implemented even where an IEP “looks good”? Yes, we would. The SRO actually then proceeded to consider what the implementation of this program would have looked like and concluded that even such an analysis would not result in a finding of a denial of FAPE, summarily rejecting the parents’ points regarding student grouping, environmental and sensory concerns, transitioning, and related services. With respect to grouping, I am perplexed by the assertion that “cognitive skills are not a necessary component of determining the similarity of individual needs." Someone, please explain it to me.
Not sure what to make of this case. It will be interesting to follow it if/when it goes up on appeal.
Note: Although it might seem that the last available decision on the SRO website is from September 12, 2012, upon closer inspection one finds that the decisions are just out of order. SRO decisions 12-079 and 12-081 are from October. In both cases, the SRO reversed IHO decisions ordering reimbursement for unilateral placements for the 2011-2012 school year because, in the SRO’s opinion, FAPE had been provided and proven by the school district.