FAPE

Skyer Law Victory at State Review Office Establishes Case Law Benefitting Parents

When parents show up to our offices, it is not unusual to hear that the Department of Education has failed to hold an IEP meeting for their school-age child for a year or more. As a result, whenever it is applicable, this is cited in our notices as a critical fact. Forgetting to hold an IEP meeting is a black-and-white example of a failure to offer a Free Appropriate Public Education (FAPE) as required by federal law.

In these situations, the district most always acts rationally and offers to settle the case. However, we had a recent case that was unusual because after the case was referred for settlement, and smack in the middle of our negotiations, an IEP meeting for the child was held and the team determined that the child was “non-handicapped” and therefore not eligible for an IEP or any services. Suddenly, the DOE changed its tune on negotiations and said they would only settle the tuition for the child's private school through the date of that IEP meeting.

Completely separate from the question of whether or not the child has a disability (he does), this stance about a half-year tuition settlement is wholly unreasonable. When the DOE failed to offer a FAPE prior to September, it placed the parents in a situation in which they had to act for their child for that entire academic year--not just for part of it. 

We took the case to hearing, but the Impartial Hearing Officer ruled with the district, so we appealed. Two of our fierce attorneys, Teri Horowitz and Linda Goldman, argued the appeal before the NYS Education Department’s Office of State Review in Albany. We were vindicated when the SRO ruled in our favor.

This is an important precedent for parents in New York, and we believe it will discourage the DOE from trying to act similarly in the future. When the DOE fails to live up to its responsibilities, it should not have loopholes for wiggling out of its obligations.

The full decision for the case, SRO 18-085, is not yet posted on the state’s website. We will update this article on our blog when that link is live for those who are interested.

Supreme Court to Decide How Much Educational Benefit a School District Must Provide in Special Ed

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   Attorneys from The Law Offices of Regina Skyer & Associates, L.L.P. traveled to Washington D.C. on Jan. 11, 2017 to hear oral arguments in  Endrew v. Douglas County School District . Pictured on the steps of the U.S. Supreme Court from left to right: Linda Goldman, Abbie Smith, Diana Gersten, Jesse Cutler, and Greg Cangiano.

Attorneys from The Law Offices of Regina Skyer & Associates, L.L.P. traveled to Washington D.C. on Jan. 11, 2017 to hear oral arguments in Endrew v. Douglas County School District. Pictured on the steps of the U.S. Supreme Court from left to right: Linda Goldman, Abbie Smith, Diana Gersten, Jesse Cutler, and Greg Cangiano.

On Wednesday, the United States Supreme Court heard oral arguments in Endrew F. v. Douglas County School District. The case concerns a fourth grade student with autism named Endrew F., whose parents enrolled him in a private school specializing in autism for which they sought reimbursement from their school district in Colorado. The district argued that they shouldn’t have to pay because in his prior public school program Endrew had made “some” educational progress. The parents’ attorneys argued that Endrew was entitled to a “meaningful” educational benefit. 

Courts throughout the country are divided on how much benefit must be offered in order for a school district to satisfy the requirements of providing a child a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). For example, in the Second Circuit (Connecticut, New York and Vermont), school districts are required to offer a program that is likely to result in a benefit that is “more than merely trivial.” Now the Supreme Court is grappling with this critical issue.

We believe that Endrew F. is the most important special education case to come before the Supreme Court in over twenty-five years. Its outcome will have an enormous impact on every one of our clients.

Five senior attorneys from our office traveled to Washington, D.C. to listen to the oral arguments. The courtroom was crowded with parent and school district attorneys from all over the country. We sat near the petitioners, Endrew’s mother and father, and their presence by our side served as a constant reminder of our own clients back in New York for whom the outcome of this decision is so personal.

The debate between the attorneys was lively. The Solicitor General spoke on behalf of the U.S.  Department of Education and, as he had articulated in the administration’s amicus brief, asked the Court to rule in favor of a higher standard than the Colorado school district was defending. The Justices asked questions of both sides, with a clear focus on how to set forth a clear standard for all students, regardless of the severity of their disability. 

Justice Alito distilled the core issue: that the court needs to find the perfect word with the right nuance to define the level of benefit required. Chief Justice Roberts and Justice Alito joked about the need to come up with a standard that doesn’t require musical notation or the proper intonation (“some” versus “some”).

Reading the tea leaves is difficult, but we are cautiously optimistic. We left feeling that the Court will set forth a standard that is easier to understand and apply, and one that is likely to hold school districts to a higher standard than what exists now.

For more information, please see the U.S. Supreme Court’s written transcript of the oral arguments of January 11th. Audio transcripts are posted on this page when they become available.