Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

Have you heard from some parent advocates that "there is no IEP" for a special education student unless the parent has agreed to the plan proposed by the school district?  A recent ruling by the United States Court of Appeals for the Second Circuit reaffirms that an IEP does, in fact, "exist" as a legally recognizable document at the time that it is proposed by the school-based members of the IEP team, and the right of the parents at that point is to exercise their procedural safeguards and request a due process hearing if they disagree with the IEP proposed by the school.

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The United States Supreme Court has denied a petition to review the decision of the United States Court of Appeals for the Second Circuit in the case of Board of Education of Hyde Park v. Frank G., 459 F.3d 356 (2d Cir. 2006).  Reviewing this case would have allowed the high court a second chance to review arguments similar to those made in the Tom F. case reported earlier, in which the justices deadlocked in a 4-4 decision over whether parents of children with special education needs are entitled to obtain reimbursement for unilateral private placements made in cases where the child has never received services from the public school district.  Since the Supreme Court seems unwilling to take a second shot at reviewing these arguments, litigation in the remaining circuits that do not have decisions on this issue seems inevitable.  Could Congress resolve this issue through legislation enacted during the expected 2009 reauthorization of the IDEA?  The time may be right for individuals, school districts and lobbying groups with an interest in this issue to organize their lobbying campaigns to go to Washington in 2009.  If not resolved by legislation, the composition of the Supreme Court when this issue comes before them again could influence the outcome.  Think about that when you go to the polls in the 2008 Presidential election....

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The Supreme Court issued a highly anticipated decision in the case of Board of Education of the City of New York v. Tom F. ex rel. Gilbert F., 107 LRP 58890 (U.S. 2007), but disappointed all court-watchers by failing to rule on the merits of the case.  After an impartial hearing officer in New York awarded a family reimbursement for a unilateral placement of their child in a school for children with learning disabilities based on the school district's procedural error of failing to include all of the necessary participants in the IEP meeting, the federal district court in New York reversed the hearing officer, concluding that the family was not entitled to such reimbursement because the child had never received special education services from the school district before being unilaterally placed by his parents in a private school.  The United States Court of Appeals for the Second Circuit vacated the district court's ruling and remanded the case to the district court in light of its recent ruling in the case of Board of Education of Hyde Park Central School District v. Frank G. ex rel. Anthony G., 459 F.3d 356 (2d Cir. 2006), that reimbursement is not restricted so long as the school district has failed to provide FAPE and the parents have provided appropriate notice of their intent to make a unilateral placement.

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In a recent decision issued by the Connecticut Supreme Court, the doctrine of sovereign immunity was held to protect a school district from liability from suit as a result of an injury sustained by a parent picking up a six year old child from an after school program sponsored by the Hartford Board of Education. Durrant v. Board of Educ. of Hartford, 284 Conn. 91 (2007).  Reasoning that the child's attendance at the after-school program was voluntary rather than mandatory, the presence of the parent on school grounds to pick up that child from the program and escort him home was likewise voluntary rather than mandatory.  Therefore, although the parent was injured when she slipped in a puddle of water in a stairwell, the doctrine of soveriegn immunity protected the school district and its agents from liability for the injury.  The court rejected the argument that because the creation of the after-school program was authorized by statute, this indicated an intention on the part of the legislature to abrogate the doctrine of sovereign immunity and allow school districts to be held liable for these types of injuries.  The court also noted that the mere fact that the school district maintained insurance coverage for personal injury claims was not an indication that sovereign immunity should be abrogated, since school districts are expected to maintain insurance coverage for other reasons.  Will decisions like this discourage insurance carriers from raising premiums on coverage for school districts in Connecticut this year?

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Public Act 07-147, which took effect October 1, 2007, makes sections of the Connecticut General Statutes concerning the use of seclusion time out and physical restraint previously applicable only to institutions operated by the State and special education schools, now applicable to local and regional boards of education as well.  All children receiving special education services or who are being evaluated for eligibility for special education services are now defined as "persons at risk" under Section 46a-150 of the Connecticut General Statutes.  Local and regional boards of education must now incorporate any use of seclusion time out or physical restraint into a child's IEP and comply with the reporting requirements and parental notification requirements of these statutes.

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New guidance issued by the Office of Special Education Programs (OSEP) of the U.S. Department of Education indicates that if a Functional Behavioral Assessment (FBA) is conducted in order to determine behavioral supports and services required for an individual child, that FBA constitutes an "evaluation" under IDEA for which parental consent is required.  According to OSEP, the only situation in which parental consent would not be required for an FBA would be if the FBA was being conducted with respect to the whole school to assess the effectiveness of behavioral interventions general, and was not directed at any specific student.  This is a significant change of direction for OSEP, since previous guidance and cases decided in this area had suggested that an FBA should be considered either a teaching methodology or consistent with general ongoing observation of a child's behavior and data collection, neither of which would constitute an "evaluation" requiring parental consent.  Following this guidance, parents may now claim entitlement to an independent FBA if they disagree with the FBA conducted by the school district, since the FBA is now considered an evaluation, triggering the independent educational evaluation (IEE) procedural safeguards.  A copy of the OSEP letter can be found at Letter to Christiansen, 48 IDELR 161 (OSEP 2007).

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In its Regular Session, the Legislature made several changes to the laws regarding suspension and expulsion of students in Connecticut schools.  Some of these changes went into effect on July 1, 2007, while others will not go into effect until July 1, 2008.  Knowing which is which is important, since these changes will impact the type of disciplinary action that may be taken in the case of a disciplinary infraction during the 2007-2008 school year.

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Public Act 07-3, Section 49, passed during the June Special Session of the Legislature, now requires that the notice of an expulsion hearing include information about free and reduced cost legal services available locally and how to access these services.  This requirement took effect on July 1, 2007.  If you are still using last year's expulsion hearing notice form, make sure to update your notice form to include this newly required information.

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