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PFCR’s Litigation Victories

IDEA Litigation─Private School Tuition Cases

Under the Individuals with Disabilities Education Act (IDEA), each student with a disability is entitled to a free appropriate public education (FAPE).  If the school district fails to offer the student a FAPE─for example, by failing to offer appropriate services and supports to address the student’s disability or failing to offer the student an appropriate public school placement─the student’s parents may enroll the student in an appropriate private school and seek payment of the tuition from the school district.  Private school tuition claims are initially litigated in a due process hearing and then are subject to appeals to the New York State Review Officer (SRO) followed by the state and federal courts.  PFCR has been successful in many appeals involving private school tuition claims, vindicating our low-income clients’ right to an education for their disabled child that is both free and appropriate.

Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211 (2d Cir. 2014):  PFCR secured a published, precedential opinion from the Second Circuit Court of Appeals finding that the school district failed to offer the student a FAPE and that the SRO erred in holding otherwise based on after-the-fact, retrospective testimony from the school district concerning additional services that hypothetically could have been provided to the student but that were not included in the student’s Individualized Education Program (IEP).  The Court held:  “If we were to accept DOE’s arguments relying on the possibility that there could be a later amendment to R.P.’s IEP, then we would effectively require every parent to consider the likelihood of mid‐year amendments in evaluating his or her child’s IEP.  This approach would create significant uncertainty regarding what special education and related services the child would actually receive over the course of the academic year, undermining the tuition reimbursement system and the IDEA’s promise of a free appropriate public education for every child with a disability.”

Brock ex rel. S.B. v. New York City Dep’t of Educ., No. 13-cv-8673 (GBD) (DF), 2015 WL 1516602 (S.D.N.Y. Mar. 31, 2015):  PFCR successfully appealed from an adverse SRO decision and secured an award of full payment for the student’s tuition at the Cooke Center for Learning and Development.  The court reversed the decision of the SRO, finding that the school district denied the student a FAPE by failing to timely engage in the reevaluation process mandated by the IDEA and failing to secure the information needed to appropriately assess S.B. and develop her IEP.

Scott ex rel. C.S. v. New York City Dep’t of Educ., 6 F. Supp. 3d 424 (S.D.N.Y. 2014):  PFCR successfully appealed from an adverse SRO decision and secured an award of full payment for the student’s tuition at the Cooke Center for Learning and Development.  The court found that the district denied the student a FAPE by failing to offer a school that could implement his IEP.  The court determined that the SRO failed to consider all of the evidence, mischaracterized the testimony of two critical witnesses, and made an impermissible credibility assessment.  The court further found that the school district exhibited a “cavalier failure to cooperate” with the parent that equitably supported an award of tuition payment.

G.R. v. New York City Dep’t of Educ., No. 07-cv-4711 (TPG), 2009 WL 2432369 (S.D.N.Y. Aug. 7, 2009):  PFCR successfully appealed from an adverse SRO decision and secured an award of full payment for the student’s tuition at Winston Preparatory School.  The school district conceded at the hearing that it failed to offer the student a FAPE.  However, the Hearing Officer and the SRO both denied the parent’s tuition claim on the ground that she failed to offer sufficient evidence to demonstrate the appropriateness of the student’s private school placement.  The court reversed both administrative decisions, finding that the parent proved that the student’s private school was appropriate to meet his special education needs.

SRO Appeal No. 14-029:  PFCR successfully appealed from an adverse hearing decision, winning a reversal from the SRO and an award of payment for the student’s tuition at the Cooke Center for Learning and Development.

SRO Appeal No. 13-147:  PFCR successfully appealed from an adverse hearing decision, winning a reversal from the SRO and an award of payment for the student’s tuition at Mary McDowell Friends School.

SRO Appeal No. 13-070:  PFCR successfully defended against the school district’s appeal from a hearing decision in favor of our client, winning an affirmance from the SRO and an award of payment for the student’s tuition in the Full Inclusion Program at the Cooke Center for Learning and Development.

SRO Appeal No. 13-066:  PFCR successfully appealed from an adverse hearing decision, winning a reversal from the SRO and an award of payment for the student’s tuition at Winston Preparatory School.

SRO Appeal No. 13-051:  PFCR successfully defended against the school district’s appeal from a hearing decision in favor of our client, winning an affirmance from the SRO and an award of payment for the student’s tuition at the Cooke Center for Learning and Development.

SRO Appeal No. 11-107:  PFCR successfully defended against the school district’s appeal from a hearing decision in favor of our client, winning an affirmance from the SRO and an award of payment for the student’s tuition at the Cooke Center for Learning and Development.

SRO Appeal No. 09-090:  PFCR successfully appealed from an adverse hearing decision, winning a reversal from the SRO and an award of payment for the student’s tuition at Winston Preparatory School.

SRO Appeal No. 05-025:  PFCR successfully appealed from an adverse hearing decision, winning a reversal from the SRO and an award of payment for the student’s tuition at P’tach-Yeshiva Rabbi Chaim Berlin Elementary School.

IDEA Litigation─Compensatory Services and the Right to a Timely Administrative Appeals Decision

Another form of relief available under the IDEA for students denied a FAPE is compensatory education, such as tutoring.  Compensatory educational services are designed to place the student in the same position he or should would have occupied if the school district had provided an appropriate education.

In the case of C.H., PFCR successfully enforced the student’s right to compensatory tutoring services to remedy a multi-year denial of FAPE.  While enrolled in New York City public schools, C.H. was denied appropriate instructional services designed to address his learning disability and speech-language impairment, and as a result was forced to repeat both the second and third grades.  PFCR successfully advocated for C.H. to be placed in an appropriate nonpublic school setting going forward and brought a due process complaint seeking compensatory tutoring services for the prior years when he was denied a FAPE.  The Hearing Officer agreed that C.H. was denied a FAPE but awarded only 60 hours of compensatory tutoring services.  PFCR appealed the hearing decision to the SRO, challenging the Hearing Officer’s assessment of an appropriate remedy.

The SRO was required to issue a decision within 30 days, but instead allowed the case to languish undecided for months, ignoring PFCR’s repeated written requests for a decision to be issued.  PFCR brought suit in the U.S. District Court for the Southern District of New York against the responsible officials from the New York State Education Department, as well as the New York City Department of Education, seeking to compel the issuance of a decision by the SRO.  The result of the lawsuit, C.T. ex rel. C.H. v. King, No. 14 Civ. 8416 (NRB) (S.D.N.Y.), was the swift issuance of a decision in SRO Appeal No. 14-066 upholding PFCR’s appeal and awarding more than six times the number of tutoring hours awarded by the Hearing Officer, for a total of 405 hours of 1:1 compensatory tutoring.

IDEA Litigation - Pendency

The pendency or “stay-put” provision of the IDEA states that a disabled student shall remain in the last placement agreed to by the parent and the school district during the course of any due process proceedings concerning the child’s education.  The purpose of the pendency provision is to provide a stable and consistent education for the disabled student during litigation between the parent and the school district.

In New York City Department of Education v. S.S. ex rel. Sm.S., No. 09 Civ. 810 (CM), 2010 WL 983719 (S.D.N.Y. Mar. 17, 2010), the school district filed a lawsuit against PFCR’s client, a low-income parent, to obtain repayment for the cost of maintaining her disabled child’s pendency placement in a private school.  PFCR prevailed in securing dismissal of the school district’s claim, successfully arguing that the IDEA provides no substantive right to recoup pendency payments ordered on behalf of a disabled student and that school districts retain ultimate responsibility for the cost of maintaining a student’s pendency placement regardless of the outcome of the underlying litigation.  As the court noted, any holding in favor of the school district’s position would “prejudice the ability of a certain class of parents─those who cannot afford to send their children to private school─to exercise the due process rights granted to them by Congress” in the IDEA.

IDEA Litigation─Prevailing Party Attorney’s Fees

A parent who prevails in due process proceedings under the IDEA may be awarded reasonable attorney’s fees payable by the school district.  When the parent has been represented without charge, the fees awarded may be paid directly to the legal services organization.  While PFCR’s clients pay no attorney’s fees for the services we provide, the organization seeks and receives attorney’s fees from the New York City Department of Education in cases in which our clients prevail.  These fees provide an important source of revenue for the organization, enabling us to provide free legal services to more low-income families.  PFCR has secured several significant litigation victories defending our clients’ right to prevailing party attorney’s fees under the IDEA.

A.R. ex rel. R.V. v. New York City Dep’t of Educ., 407 F.3d 65 (2d Cir. 2005):  PFCR secured a published, precedential opinion from the Second Circuit Court of Appeals holding that parents whose administrative claims are resolved via favorable settlement agreements so-ordered by the Hearing Officer are prevailing parties entitled to attorney’s fees under the IDEA.

I.B. ex rel. Z.B. v. New York City Dep’t of Educ., 336 F.3d 79 (2d Cir. 2003):  PFCR secured a published, precedential opinion from the Second Circuit Court of Appeals approving the attorney’s fees hourly rate requested by the organization and challenged by the school district.  The Court of Appeals found that the hourly rate sought for the services of PFCR attorney Michael D. Hampden was reasonable and appropriate, describing Mr. Hampden as “a distinguished attorney with over thirty years of experience in litigating and supervising other litigators.”

B.W. ex rel. K.S. v. New York City Dep’t of Educ., 716 F. Supp. 2d 336 (S.D.N.Y. 2010):  PFCR secured a decision finding that the parent successfully enforced her rights under the IDEA, and thus was a prevailing party entitled to attorney’s fees, where she obtained a hearing decision that prohibited the school district from leaving in place a deficient IEP and mandated the creation of a new IEP that would offer the student a FAPE.  In the attorney’s fees action, the school district argued that because it chose to respond to the hearing decision by issuing a new IEP that offered the same deficient services as the previous one─resulting in a second due process proceeding in which the parent prevailed─the initial hearing decision did not confer sufficient benefit on the student to render the parent a prevailing party.  The court soundly rejected that argument, holding that the hearing decision “would have benefitted K.S. if the CSE had complied with the order by recommending a more substantial IEP that actually provided K.S. a FAPE.”  The court found that the school district’s argument to the contrary “borders on the absurd,” as “[t]o suggest that the CSE could have recommended the same deficient IEP a second time (as it inexplicably did) is logically indefensible.”  The court held:  “A largely unsuccessful defendant in an IDEA case may not use its own failure to comply with an IHO order to escape paying attorney’s fees.”

SSI Litigation─Decisions Finding the Child Disabled on the Record and Remanding to the Agency Solely for the Calculation of Benefits

In Social Security Disability cases, a claimant who has been denied benefits by a final decision of the Social Security Administration may challenge that decision in federal court.  If the court finds that the agency’s decision was in error, the court typically remands the case to the agency for a new hearing.  Only in a small subset of cases will a court find disability on the record and order the agency to calculate the benefits due to the claimant.  PFCR has claimed a number of these rare victories on behalf of our child clients, securing much-needed disability benefits without the delay of another hearing.

Rivera ex rel. S.M.H. v. Colvin, 9 F. Supp. 3d 309 (S.D.N.Y. 2014):  PFCR secured a finding of disability on the record for a child with a language-based learning disorder, attention deficit disorder, mood disorder, and disruptive disorder whose disability benefits application had been filed over six years earlier.

Miles ex rel. J.M. v. Astrue, 775 F. Supp. 2d 715 (S.D.N.Y. 2011):  PFCR secured a finding of disability on the record for a child with a developmental language disorder, gross motor delay, adjustment disorder with anxiety and depression, and attention deficit disorder whose initial disability benefits application had been filed over six years earlier.

F.M. ex rel. B.M. v. Astrue, No. 08-cv-4430 (CPS), 2009 WL 2242134 (E.D.N.Y. July 27, 2009):  PFCR secured a finding of disability on the record for a child with a hearing impairment, speech delays, and attention deficits whose disability benefits application had been filed over four years earlier.

Rivera ex rel. A.D. v. Astrue, No. 05-cv-4465 (NG) (E.D.N.Y. 2008):  PFCR secured a bench ruling finding disability on the record for a child with juvenile diabetes mellitus whose disability benefits application had been filed over six years earlier.

Cruz ex rel. Vega v. Barnhart, No. 04-cv-9794 (DLC), 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006):  PFCR secured a finding of disability on the record for a child with impaired intellectual functioning, speech and language delays, asthma, and a seizure disorder whose disability benefits application had been filed over four years earlier.

Lora ex rel. Nunez v. Barnhart, No. 02-cv-7900 (BSJ) (MHD) (S.D.N.Y. Mar. 6, 2006):  PFCR secured a finding of disability on the record for a child with a chronic dermatologic disorder, attention deficit hyperactivity disorder, and disruptive behavior disorder whose initial disability benefits application had been filed over seven years earlier.

Amicus Briefs

PFCR has submitted amicus curiae or “friend of the court” briefs in cases involving issues arising under the IDEA that are of broad interest to our low-income clients.  These briefs provide an important opportunity for PFCR to collaborate with other nonprofit organizations practicing in the field of special education and to positively impact the development of precedential case law.

B.P. ex rel. S.H. v. New York City Dep’t of Educ. (2d Cir. Docket No. 15-16):  In this pending case, PFCR submitted an amicus curiae brief on behalf of itself and nine other nonprofit organizations addressing a parent’s right to seek payment for an appropriate private school placement for her child when the school district’s offered public school placement is unable or unwilling to implement the student’s IEP.  In addition to PFCR, the amicus curiae organizations represented on the brief are the Advocates for Adults with Intellectual and Developmental Disabilities Clinic at Brooklyn Law School; Advocates for Children of New York; Center for Independence of the Disabled, New York; Legal Services NYC─Bronx; Manhattan Legal Services; MFY Legal Services; New York Legal Assistance Group; Queens Legal Services; and South Brooklyn Legal Services.

Mr. and Mrs. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011):  Together with Advocates for Children of New York, the New York Legal Assistance Group, Legal Services NYC─Bronx, Queens Legal Services, South Brooklyn Legal Services, and The Legal Aid Society, PFCR submitted an amicus curiae brief asking the court to find that direct retrospective tuition payment relief is available under the IDEA for parents whose child has been denied a FAPE and who lack the financial means to front the cost of private school tuition and seek reimbursement from the school district.  The court did so, holding that a “contrary ruling would be entirely inconsistent with IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of the disabled children in our nation.”

S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346 (S.D.N.Y. 2009):  Together with Advocates for Children of New York and the New York Legal Assistance Group, PFCR submitted an amicus curiae brief asking the court to overturn the underlying SRO decision, which found that a parent whose disabled child was denied a FAPE and who lacked the financial means to front the cost of the child’s placement in an appropriate private school lacked standing to seek direct payment of the private school tuition from the school district.  The court held that the parent had standing to bring her tuition claim, rejecting the school district’s argument that IDEA tuition claims may be brought only by parents who have paid the tuition to the private school and are seeking reimbursement.   The court left open the question of the availability of direct retrospective tuition payment relief under the IDEA, but the decision created an important precedent ensuring that parents seeking such relief would not be denied the opportunity to litigate their claims against the school district from the outset.

Bd. of Educ. v. Schutz, 290 F.3d 476 (2d Cir. 2002):  Together with Advocates for Children of New York and New York Lawyers for the Public Interest, PFCR submitted an amicus curiae brief on behalf of the three organizations, as well as the New York Legal Assistance Group, Queens Legal Services, and The Legal Aid Society Juvenile Rights Division, asking the Court to hold that a final administrative decision in favor of a parent’s private school tuition claim establishes the private school as the student’s pendency or “stay put” placement under the IDEA.  The Court did so, concluding that once a parent succeeds on a private school tuition claim, consent to the private placement is implied by law and the school district becomes responsible for maintaining the student’s pendency placement in the private school.

New York City Bd. of Educ. v. Mills (NY Supreme Court, Albany County Jan. 18, 2001):  PFCR submitted an amicus curiae brief asking the court to order the New York City Board of Education to desist from its practice of routinely transferring students from one school to another as a punitive measure in suspension cases and of denying the suspended students the substantive and procedural protections of state law.  The court held that the practice of transferring students as a punitive measure in a suspension case violated the New York State Education Law and ordered the New York City Board of Education to desist from the practice.

Agency Opinions and Rulings

In appropriate cases, PFCR has sought guidance or intervention from the state and federal agencies responsible for implementing the IDEA, successfully obtaining agency opinions or rulings that benefit students with disabilities and their families.

Letter to Hampden (OSEP 2007):  PFCR attorney Michael D. Hampden petitioned the U.S. Department of Education’s Office of Special Education Programs (OSEP) for a guidance letter addressing the pendency rights of students with disabilities reenrolled in private schools by their parents following a final hearing decision finding that the school district denied the student a FAPE and awarding the parents payment for the cost of the student’s tuition in the private school.  PFCR took this action to eliminate confusion regarding whether in New York─a state with a two-tiered administrative system in which hearing decisions may be appealed to the State educational agency─pendency could be established by a final unappealed hearing decision or, alternatively, only by a due process decision issued at the State level.  On September 4, 2007, OSEP issued a guidance letter definitively clarifying that an unappealed hearing decision ruling in favor of the parent’s unilateral private school placement claim establishes the private school as the student’s pendency placement under the IDEA.

NYSED Complaint Concerning the Taxable Status of Special Education Reimbursement to Parents:  Together with Legal Services NYC-Bronx, PFCR filed a complaint with the New York State Education Department (NYSED) concerning the New York City Department of Education’s practice of 1) requiring parents to submit completed W-9 (waiver of tax withholding) forms as a condition of obtaining reimbursement payments in special education cases, 2) preparing and issuing 1099-MISC forms to the parents indicating that reimbursement payments are taxable income, and 3) filing information returns with the Internal Revenue Service (IRS) that could result in tax liability for the parents on the reimbursement they received.  NYSED initially declined to act on the complaint on the ground that it required an interpretation of federal tax law.  PFCR therefore wrote to the IRS and obtained an information letter clarifying that reimbursement issued as a result of IDEA due process proceedings does not constitute taxable income and is not subject to information reporting requirements.  PFCR then wrote again to NYSED to request reopening of the complaint in light of the guidance provided by the IRS.   On January 13, 2009, NYSED issued a decision finding that the New York City Department of Education’s complained-of policies and practices violated the IDEA.  NYSED ordered the immediate discontinuation of those policies and practices and directed that the New York City Department of Education undertake corrective actions to notify affected parents of their rights.

NYSED Complaint Concerning Improper Logging of Due Process Complaints and Attendant Delays in the Due Process Hearing Timelines:  PFCR filed a complaint with NYSED concerning the New York City Department of Education’s practice of treating IDEA due process complaints as received on the date when they were processed by the district’s Impartial Hearing Office, rather than date on which they were transmitted to that office.  The complaint explained that this practice was in violation of federal and state law and was prejudicial to disabled students and their parents, as it delayed the start of the due process hearing timelines mandated by the IDEA.  The complaint detailed the cases of twelve PFCR clients whose due process timelines were delayed by the practice.  When PFCR submitted requests to the Impartial Hearing Office to correct the recorded due process complaint receipt dates, the staff declined, advising that due to “staff shortages” they had been instructed to use the later date of “clocking in” as the date of receipt.  On December 13, 2006, NYSED issued a decision directing the New York City Department of Education to designate due process complaints submitted before the close of business on a particular date as received on that date, rather than the later date when the request was clocked in by the Impartial Hearing Office.  As a result of PFCR’s complaint and the ensuing NYSED decision, the New York City Department of Education promptly deceased from engaging in the complained-of practice and began properly treating due process complaints as received on the date of submission.

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