SRO Bentley Decisions
SRO Bentley has written several decisions since assuming his interim position. In Appeal No. 10-069 and Appeal No. 10-094 he concludes that the school district offered FAPE. In 10-069, the decision seems pretty well-reasoned and it appears that the parents may have been set on their school of choice in spite of a solid recommendation from the DOE. In 10-094, however, Bentley has to overrule the IHO decision and make a couple of bold moves in order to get to reach his conclusion.
The facts in 10-094 are interesting. A CSE meeting took place on February 24, 2009 to develop an IEP for the 2009-2010 school year. The child had been at Mary McDowell, a private school, every year since the 2004-2005 school year. In fact, the parents had signed on for the 2009-2010 school year as well when they signed the tuition contract on February 6, 2009. They failed to share this fact with the CSE when they convened for their meeting on the 24th. For some reason the IEP was not delivered to the parent until the middle of April, and the DOE did not send out a school recommenation until the middle of August. Normally, a parent would go down to the proposed school to "check it out" - tour the school, see the class, meet the teacher, observe the other students. Instead of doing that right away the parents waited until December. There is no evidence that they made efforts in August, September, etc. to call the school and set up a visit, so they probably went in December just to look good for their upcoming hearing. Here's the twist - when she arrived at the school they would not let her see the classroom. It's pretty standard for the parent to expect that when she goes down to the school she will get to see the classroom and will take that into account in determining whether the program is appropriate, but that didn't happen here.
The IHO was sympathetic to the parent and determined that it was a denial of FAPE for the DOE to wait as long as it did to send the school recommendation and then to deny the parent access to the classroom. The SRO, however, didn't like this at all and reversed the IHO's determination, asserting that: (a) the district's delay in recommending the placement was not a denial of FAPE because it was still prior to the first day of classes; and (b) the lack of an opportunity to visit the proposed school prior to the start of the school year and their inability to visit the classroom did not rise to the level of a denial of FAPE. The first point is understandable but the second point is unsettling. How is a parent to know whether a recommended school is appropriate for her child if she cannot see the school and observe the class? This may be the SRO's way of saying to the parent, "You shouldn't have waited until December and that leads me to conclude that you had no interest in placing your child there," but such a blanket statement (irrespective of the authority cited) that a parent does not have a legal right to see the proposed school and classroom is very concerning.