Adam Dayan, Esq.
SRO Decision 11-132
A March 1, 2012 decision from the SRO addressed a number of issues en route to its conclusion, in favor of the parents, that the CSE had denied this child a FAPE. The child had received some services during the 2007-2008 school year but those services were terminated, and the child was found ineligible for special education, at an April 2008 IEP meeting. The district had failed to conduct any formal testing, so the parent obtained a psychoeducational evaluation privately. Among the issues addressed by the SRO in this decision are: (a) compensatory education; (b) an exception to the two-year statue of limitations; and (c) eligibility for an independent educational evaluation (IEE) at public expense.
The parent's compensatory education claim stemmed from an April 2008 IEP meeting where the CSE terminated the child's services and found her ineligible for special education without having conducted formal testing to support those actions. A private psycho-ed evaluation obtained by the parents in August 2009 showed the need for supports. The parents sought make-up occupational therapy and tutoring sessions for 2008-2009 and 2009-2010 school years, since those services had not been provided. With respect to the 2008-2009 school year, the SRO agreed with the IHO that the CSE had improperly declassified the child for two reasons: (a) the district did not provide any evidence that the parent consented in writing to the termination of services, or that the district provided written notice before terminating the services; and (b) the district did not conduct any formal evaluations to determine that the child no longer required special education. With respect to the 2009-2010 school year, the SRO determined that FAPE was denied because the district improperly closed the child's case when the district failed to comply with its obligations under IDEA (i.e. notice of procedural safeguards, obtain consent to evaluate), and the March 2010 IEP was insufficient to address the child's needs. As a result, the SRO ordered the following relief: (1) affirmed the IHO's award of 400 hours of 1:1 multisensory tutoring (reminding the district that "placement decisions must be based on a student's unique needs as reflected in the IEP, rather than IEP's developed on the basis of services already available in the district"); (2) denied the parent's appeal for increased OT make-up hours, holding that the IHO's award was adequate; (3) annulled the IHO's award of additional assistive technology services recommended by the private AT evaluation; and (4) annulled the IHO's reimbursement award for transportation costs necessary to utilize the comp-ed services because of a lack of evidence to support it.
The statute of limitations issue is an interesting one. Generally, a complaining party has two years from the time that he/she knew or should have known of the information forming the basis of the complaint to bring an action. An exception exists for situations in which the school district interfered with the parent's ability to find out that information or follow the process. Here, the IHO determined and the SRO affirmed, that the parent was "prevented from timely requesting an impartial hearing on the basis that the district withheld from her the procedural safeguard notices it was required to provide, and that therefore the exception to the statute of limitation defense applies."
Regarding the independent educational evaluation (IEE), the SRO pointed out that, since no district evaluations were conducted, "the hearing record contains no indication that the parent disagreed with any district evaluation." However, the SRO, quoting OSEP, concluded that in some circumstances, such as these, "it would be consistent with federal regulation to allow reimbursement for an IEE when the district failed to provide an evaluation in compliance with the IDEA." Since the district did not evaluate the child prior to declassification, the SRO held that the parent was entitled to reimbursement for the cost of the private psycho-ed evaluation.