Parents gain in dispute with Shen - Federal judge rules against district in suit over tuition at out-of-state school for special education student

By RICK KARLIN, Capitol bureau Click byline for more stories by writer. First published: Friday, January 4, 2008

ALBANY -- A federal judge has issued what lawyers describe as a rebuke to the Shenendehowa school district as well as the state Education Department in a lawsuit over the district's refusal to reimburse a couple for their child's special education costs.
The district maintains that the parents of a mentally disabled child shouldn't be reimbursed some $40,000 in tuition at a special New Hampshire school since they failed to visit another school in Connecticut that district officials wanted to consider. That, contended Shenendehowa officials, showed that the parents weren't fully cooperating with efforts to help their child.
But the parents, who are not identified in court documents, were not told they had to travel to the Connecticut school until Aug. 27, 2004, just days before the school year was to commence.
In addition to ruling against Shenendehowa, U.S. District Judge Lawrence Kahn on Wednesday also said that the Education Department's state review officer had "incorrectly characterized the facts" in this case.
The district could appeal it but whether that would be the case remained unclear Thursday.
The ruling is significant, said lawyers, because the Education Department has been under growing pressure from parents and lawyers who charge that the review officer, Paul Kelly, has been too quick to side with school districts in disputes over special education costs. Those criticisms, though, come as federal laws have become more favorable to school districts in such disputes.
Additionally, the state Commission of Investigation, which looks at public corruption and fraud, has been probing whether the Education Department has improperly denied reimbursements to students with disabilities who need special placements. That probe was first reported in October in the Times Union.
The case Kahn ruled on Wednesday dates to 2004, when the parent of a then-13 year-old student enrolled the youngster, identified as A.V., in Hampshire Country School, a New Hampshire facility for youngsters with emotional disturbances and learning disabilities.
The child was diagnosed with "pervasive developmental disorder" and required "constant adult support" to function in school, according to court papers.
The parents settled on Hampshire Country School, but the district also wanted them to look at a school in Connecticut.
When A.V.'s parents were initially denied reimbursement because they didn't visit the Connecticut school, they appealed the decision to a third party, known as an "impartial hearing officer," who ruled on the family's behalf. The district then started its own appeal, going to the state review officer, who sided with Shenendehowa.
A.V.'s parents then hired a lawyer, H. Jeffrey Marcus, who took the case to federal court.
Typically, Marcus said, parents lose these type of appeals since the courts are required to "give deference" to, or err on the side of, hearing officers. The fact that A.V.'s parents won this case, Marcus contends, proves what he and other disability lawyers have complained about: that Kelly has sided too often with school districts.
Kelly "mischaracterized the facts," said another lawyer familiar with the case, Andrew Cuddy, who like Marcus, has long complained about Kelly's rulings. "That's exactly what I've been saying is going on there."
Education Department spokesman Tom Dunn stressed the lawsuit was between the family and Shenendehowa, not his agency.
"The judge had to pick a winner and he's finding a weakness in the argument," said Dunn. "This is a disagreement, not a rebuke."
Dunn added that Kahn in 2006 upheld two of Kelly's decisions.
Jay Worona, counsel for the state School Boards Association, noted the district wasn't opposed to paying tuition; they simply wanted to explore the alternate school in Connecticut.
Shenendehowa officials didn't return a request for comment on Thursday.
Karlin can be reached at 454-5758 or by e-mail at rkarlin@timesunion.com.