The Leveling of the Playing Field

A few weeks ago The Mayerson Report, an email newsletter from Mayerson & Associates, outlined a recent ruling by the Second Circuit Courts of New York that can change the impartial hearing process for special education student.  The case, R.E. v. NYCDOE, hinged on the fact that when parents are looking at proposed placements or programs they have to rely on what their child's IEP explicitly states but many times the districts' testimony focuses on what they could potentially do for the student, not what they have done in the past.  This leads to the districts having an edge during the impartial hearing because although the students family's has to rely on an explicit document the district can rely on proposals and promises.  Mr. Mayerson states in the report that "This kind of "retrospective," after-the-fact analysis allowed many parents to be sandbagged at trial with a manifestly unjust "bait and switch."". 

Luckily in the recent case referenced above, the Second Circuit Courts has "finally and unequivocally held" that the State Review Officer has to play by the same rules as the families.  Mr. Mayerson goes on to say that "the courts may not rely upon after the fact, "retrospective" testimony at trial to cure a defective IEP. School districts may "explain" terms that appear in the IEP, but they cannot rely upon "retrospective" testimony at trial to provide for terms and provisions that are plainly missing from the IEP."  This means simply that they can no longer make excuses as to why they have not provided a student with an inappropriate IEP or to interpret poorly written plans to sound more meaningful than they actually are.  The State Review Officer has to look at the IEP as it is stated, not as the district interprets it. 

Mr. Mayerson continues to say that "The immediate impact of the rule in R.E. v. NYCDOE is that there is now a size-able backlog of undecided appeal cases at the SRO level that will have to be decided prospectively, rather than upon retrospective, after the fact testimony given by the school district's witnesses at trial."  This means that for once everyone will be on the same playing field when
they enter an impartial hearing! 

Hopefully this positive momentum continues for special education families and the process becomes back to being centered on what is best for the child, not what is easiest or most cost effective for the school district. 

We hope you had a great holiday season and have a fantastic start to 2013!

Until Next Time,

Kevin Gersh