By: Karen Norlander, Esq.
Counsel to NYCASE & Girvin & Ferlazzo, P.C.
NYCASE offers LEGAL BRIEFS to highlight lessons learned from court decisions; decisions issued by the New York State Review Officer (SRO), as well as memos and letters issued by government agencies. While special educators and administrators work with colleagues and parents to provide students with disabilities a Free and Appropriate Public Education (FAPE), the goal of LEGAL BRIEFS is to provide you with practical guidance to avoid the legal pitfalls along the way.
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This information will guide the direction of the column and highlight important topics of general interest to you and your colleagues.
Please note: This column does not offer legal advice and is not a substitute for legal counsel to address individual cases.
Brief November 2015
This month the focus is on two cases that extended a school district’s liability for alleged violations of the right to a free and appropriate public education beyond the two-year statute of limitations.
I. THE FAILURE TO GIVE PARENTS THE PROCEDURAL SAFEGUARDS ONCE A YEAR ALLOWS THEM TO FILE CLAIMS AGAINST DISTRICTS BEYOND THE TWO YEAR STATUTE OF LIMITATIONS.
THE GENERAL RULE: requires parents to request an impartial hearing within two years from the time they knew or should have known about the action that forms the basis of their claims. The Statute of Limitations is designed to protect school districts from having to defend actions that occurred more than two years earlier. However, there are exceptions. See the two cases below.
Application of a Student with a Disability, SRO Dec 15-088. http://www.sro.nysed.gov/decisionindex/2015/15-088.pdf
The State Review Officer (SRO) concluded that the failure to provide annual copies of the procedural safeguards to parents enabled them to bring claims for alleged violations of the right to a free and appropriate public education dating back four years.
AVOIDING COSTLY MISTAKES
Is your district providing parents with a copy of the procedural safeguards at least once a year and do you have a record of having done so? If not, send them now, keep a record and continue to do so every year – once a year thereafter!
- In addition to once a year, the Procedural Safeguards must also be given to parents (consider using a checklist).
- Upon an initial referral or request for an evaluation;
- Whenever a student is facing a disciplinary removal (more than ten day removal out of school during one school year);
- Upon the first request for a hearing and upon the first filing of a state complaint in a school year;
- Upon request.
- The e-mail alternative - If you have not done so already, survey parents to request consent to send all special education notices by e-mail. Benefits, to name a few - less paper, less clutter, easy filing and retrieval, and improved organization!
II. A FEDERAL COURT WAIVED THE STATUTE OF LIMITATIONS UPON A FINDING THAT A PREVIOUS STUDENT NOW OVER THE AGE OF 21 COULD NOT HAVE KNOWN HE WAS MISCLASSIFIED AND IMPROPERLY DENIED OPPORTUNITIES TO EARN A HIGH SCHOOL DIPLOMA BY HIS SCHOOL DISTRICT.
M.W. v. New York City Dept. of Education, 2015 WL 5025368 (S.DNY.2015).
According to a federal district court in New York, a young man over the age of twenty- one could have not have known that he was misclassified at the age of 6 as intellectually disabled and emotionally disturbed and consequently denied the right to earn a high school diploma. Having secured a new evaluation after he dropped out of school that identified him as learning disabled and capable of learning to read, the Court ruled that he could bring his claims for violations of his right to a FAPE going back to the time he was first misclassified 12 years earlier.
AVOIDING COSTLY MISTAKES
While misclassifying a student should not be fatal, when it drives placement decisions that lead to a student’s removal from the regular curriculum and deprives him/her of the opportunity to earn a high school diploma, in error, the mistake can be very costly. Recognizing the enormity of such decisions, consider the following precautionary measures before you make them!
- Conduct comprehensive testing in all areas of disability.
- Avoid using a student’s classification to drive placement decisions.
- Be sure that all students, regardless of the nature of their disabilities, receive grade appropriate instruction and specialized instruction designed to develop and build basic skills in reading, writing and mathematics from the start.
- For those students who do not master basic skills in the first years of instruction, continue to provide trough specialized instruction, intensive research based instruction.
- In every case, explain to parents the significance of the decision to remove a student from classes needed to earn a high school diploma. In cases where you do, seek to secure informed consent through full disclosure.