In 2013, the 8-year-old twins were enrolled as students in the School District. Both girls were non‑verbal, did not recognize danger, and would wander and elope unless constantly supervised.  Everyone agreed that each girl required a 1:1 assistant at all times through the school day, and the Individualized Education Program (“IEP”) for each child provided for such a full time 1‑1 assistant.  Nonetheless, the District failed to provide the girls with 1:1 assistants for many hours each school day.  Despite Parents repeated requests for full day 1:1 assistant for their daughters, no assignments were made.

On March 7, 2014, there was still no regular 1:1 assistant assigned to either of the twins.  At some point during the day, one of the girls eloped from class and then the school building. School employees were not immediately aware that she had disappeared. When they became aware, a search of the building ensued, but she was not found. Over an hour later, a 911 call was placed by someone who spotted her in a snowy field 7 blocks away from school. She was naked except for her jacket. She was picked up by the police and transported by ambulance to St. Christopher’s Hospital.

The Parents were distraught and outraged.  They consulted attorney Michael Basch, a highly respected Philadelphia special education attorney.  Basch was able to negotiate an agreement with the District whereby the twins were placed in a specialized approved private school setting. In addition, the girls were awarded a substantial amount of compensatory services.

The Parents could have left things there, as their daughters were safe.  However, they needed to know that if their daughters ever returned to public school in Philadelphia they would be protected.  They also wanted to do something to insure that no other parent of a child with special needs would suffer the frustration and fear they experienced. So, they brought in Philadelphia attorney Alan L. Yatvin, of Popper & Yatvin, to file suit in federal court. Yatvin is an experienced litigator of special education, disability and civil rights cases in federal court.

In January 2015, suit was filed against the District seeking damages and injunctive relief relating to the provision of 1:1 assistants.((KS and SFM v. School District of Philadelphia, E.D.Pa. No. 15-cv-237)) The suit asserted that, in order to save money, the District had a policy and practice of denying, reducing or eliminating 1:1 assistants to children who needed them. In so doing, the suit asserted, the District discriminated against students with disabilities who required, but were denied, full‑time 1:1 assistants, in violation of the federal Individuals with Disabilities in Education Act, the Rehabilitation Act, the Americans with Disabilities Act, and Pennsylvania law.

At the urging of the assigned judge, former United States District Judge Legrome Davis, the  parties began settlement negotiations aimed at addressing problems in the District’s system of identifying students who need 1:1 assistants and, once identified, insuring that the services are actually provided.  In meetings with the District’s then-General Counsel and the Office of Specialized Services, the parties developed systems to insure that IEP teams engage in the  proper analysis of whether students need 1:1 assistants and, once those teams have made that determination, insuring that there is no bureaucratic or financial interference with implementation of those legally binding determinations.

During the course of protracted negotiations the District undertook to improve its systems to recruit, fund and track the assignment of 1:1 assistants, and update its training of special education directors and school based staff on the considerations and role of an IEP team in determining the need for 1:1 assistants.

Finally, the parties reached an agreement that was approved by United States Magistrate Judge Timothy Rice on September 19, 2019.  In the settlement the District agreed:

1. The determination of whether or not a student needs 1:1 adult support is to be made at the school level by the IEP Team.
2. The District’s computerized IEP form was revised to include mandated, detailed questions related to 1:1 issues, and to incorporate a Worksheet for Determining 1:1 Assistance, which the IEP Team must complete if it indicates in the IEP that a 1:1 assistant is required.
3. When a 1:1 assistant is included in a student\’s IEP, the District must ensure that the assignment for a 1:1 assistant is made within ten days, and during the interim period, the school principal must use available resources to provide the services identified in the IEP.
4. In the event the District is unable to assign a 1:1 adult assistant within five school days, the Principal must give notice to parents, and an IEP Team meeting must be held within ten school days.

The settlement also included creation of a trust fund.

In discussing the settlement, Kathleen said: “Of course I’m glad there is a trust fund to help with my daughter’s many needs, but we would not have settled unless there was also a change in the District’s policies regarding 1:1 assistants.  No parent should have to experience the stress and frustration that we did in trying to get the District to provide a 1:1 assistant.  And no parent should ever get a call that their child was unsupervised at school, got lost and placed in grave danger. I hope this lawsuit has made lasting changes for all children with disabilities and their families.”

Since the settlement was finalized in September, IEP teams are better informed about their role in considering and assigning 1:1 assistants, the actual assignments are happening with fewer delays, and the agreed safety net seems to be working.

“The time this litigation took to bear fruit was frustrating,” said Alan Yatvin. “While we didn’t get everything we wanted, at the end of the day, important changes were achieved, and a broken system is now functioning for children in need.”

Yatvin and Basch both noted that Natalie Hess, the District’s Deputy Chief of Specialized Services, deserves much of the credit for this settlement.  “We respect Ms. Hess’ professionalism, hard work, and her ongoing commitment to improving the system for all special needs students who require 1:1 assistants.”

The post Litigation helps special needs students in Philadelphia appeared first on Law Offices of Popper & Yatvin.

All students with diabetes who are now or will be entitled to receive diabetes related care and attend New York City Department of Education schools.

The case, M.F., et al. v. The New York City Department of Education, et al., was brought by the parents of three New York City public school students with diabetes and the American Diabetes Association, suing as an organizational plaintiff on behalf of its members who who include children with Type 1 and Type 2 diabetes who attend New York City Department of Education (DOE) schools and their parents.

Popper & Yatvin partner Alan L. Yatvin is counsel for the American Diabetes Association, along with Sarah Fech-Baughman, Director of Litigation at the Association. The federal class action lawsuit filed on November 1, 2018, alleges that the New York City public schools routinely deny students with diabetes necessary services, even excluding them from some school activities altogether, in clear violation of their rights under Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the New York City Human Rights Law.  The suit was brought to address systemic failures, to ensure that students with diabetes can attend school safely and have access to the same educational opportunities as their peers. Plaintiffs do not seek monetary damages.  Rather, the lawsuit seeks an immediate overhaul of the DOE’s systemic policies and practices governing the delivery of diabetes-related care to ensure that all students with diabetes receive appropriate care and can participate in all school programs.

In granting class certification, Judge Gershon concluded that the three children and their parents, along with the American Diabetes Association, met the requirements for class representatives and sufficiently represented the class of approximately 2000 students with diabetes in DOE schools.   As a result, she appointed the families and the American Diabetes Association as class representatives. Yatvin’s co-counsel, attorneys for Disability Rights Advocates, were appointed class counsel.

Alan L. Yatvin is a former national chair of legal advocacy for the Association, and a former member of the Association’s national board of directors.  He is a co-author of Diabetes Care in the School Setting: A Position Statement of the American Diabetes Association and Care of Young Children With Diabetes in the Child Care Setting: A Position Statement of the American Diabetes Association, both of which were published in the journal Diabetes Care.  He frequently represents students with diabetes and their parents and speaks on the rights of students with diabetes to groups of parents, medical professionals, lawyers, educators and legislators.

The post Court grants class certification in suit against New York Department of Education on behalf of students with diabetes. appeared first on Law Offices of Popper & Yatvin.

Disability Rights Advocates (“DRA”), the American Diabetes Association (“ADA”), and Law Offices of Popper & Yatvin are suing the New York City Department of Education (“DOE”) and other New York City agencies for their systemic failure to ensure that students with diabetes can attend school safely and have access to the same educational opportunities as their peers. This constitutes a clear violation of Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the New York City Human Rights Law.

By law, the DOE is required to develop a diabetes-care plan for all students with diabetes. These plans include protocols for measuring a student’s blood sugar, administering insulin, and planning for emergencies—necessary accommodations for anyone with type 1 diabetes. But these care plans are rarely ready by the first week—or even first few months—of the school year. Even after the plans are in place, students continue to miss critical instructional time when they are unnecessarily removed from the classroom for diabetes-related care that could be provided in the classroom. Frequently, the DOE refuses to extend these accommodations to after-school programs, field trips, and other academic enrichment opportunities, as the law requires. Their parents are often required to attend school or programs to provide care themselves.

Plaintiffs the American Diabetes Association and several children with diabetes who attend public schools in New York City and their parents, are suing to remedy this unjust and discriminatory situation. The DOE estimates that at least 2,000 students with diabetes attend New York City public schools. By law, the DOE’s obligations to these students are very clear: Provide routine and necessary diabetes-related care for students with diabetes in the appropriate setting based on the individual preferences and needs of the child, as well as during nonacademic and extracurricular activities, regardless of whether those activities occur before, during, or after the school day. Shifting the burden of care to parents during the school day or school-related activities is unacceptable.

“We filed this class action lawsuit for not only our son, but to see positive change for all children with diabetes in New York City public schools,\” said plaintiff Yelena Ferrer. \”We greatly appreciate school staff’s effort to provide day to day care for our son, but the wide ranging problems with the DOE have not allowed for our son and many others to be safe at school.”

“Diabetes care is routine but absolutely critical for a child to be safe at school,’” Sarah Fech-Baughman, Director of Litigation at the ADA, said. “Excluding a child from class time or an academic enrichment opportunity, such as a field trip, because they have diabetes is harmful, stigmatizing, and unlawful. The ADA is standing up for all children with diabetes in New York City public schools to fix these system-wide problems.”

Plaintiffs do not seek monetary damages. Rather, the lawsuit seeks an immediate overhaul of the DOE’s systemic policies and practices governing the delivery of diabetes-related care to ensure that all students with diabetes receive appropriate care and can participate in all school programs.
The lawsuit was filed in the United States District Court for the Eastern District of New York.

Yatvin, who is serving as co-counsel for the American Diabetes Association in the suit, is a former national chair of legal advocacy for the Association, and a former member of the Association\’s national board of directors.  He is a co-author of Diabetes Care in the School Setting: A Position Statement of the American Diabetes Association and Care of Young Children With
Diabetes in the Child Care Setting: A Position Statement of the
American Diabetes Association, both of which were published in the journal Diabetes Care.  He frequently represents students with diabetes and their parents and speaks on the rights of students with diabetes to groups of parents, medical professionals, lawyers, educators and legislators.

The post Yatvin co-counsels suit against New York Department of Education on behalf of students with diabetes. appeared first on Law Offices of Popper & Yatvin.

The Court had previously found that Ridley had shirked its responsibility under the IDEA to fund Emily’s “stay-put” placement at the Benchmark School.  This time Yatvin was arguing that Emily’s parents were entitled to recover their attorney’s fees as “prevailing” parties under the IDEA.

On August 22, 2017, a three judge panel unanimously ruled in favor of Emily’s parents, concluding that they were, in fact, prevailing parties entitled to attorney’s fees because they had required Ridley to fund Emily’s educational placement. The Court of Appeals remanded the case back to the District Court to determine the amount of those fees.

In a nod to Yatvin’s work, the Court of Appeals wrote in the final footnote:

“[W]e note that the litigation here was conducted by highly qualified and experienced counsel and was itself extensive and protracted…”  M.R. v. Ridley School District, footnote 9.

Read more about the history of this case in our prior post:  Yatvin defeats certiorari in U.S. Supreme Court, preserves special education victory.

The post Court of Appeals agrees with Yatvin on student’s right to attorney’s fees appeared first on Law Offices of Popper & Yatvin.

One of the unintended consequences of the proliferation of charter schools is that, unlike public school districts, they can easily go bankrupt or lose their charter and close. While such closures are painful for all the enrolled students and their families, already vulnerable students with educational disabilities are especially exposed. Not only must they often find an alternative placement on short notice, but there will frequently be a lag in provision of services at their new school. Because these closures are rarely telegraphed in advance, timing often renders the option of other charter schools or special admission public schools unavailable.

Another consequence of such closings is the complicating of avenues for challenging decisions of those school that continue to dog special needs students.  If a charter school makes an agreement with a parent, then disappears, what is the parent to do? If a charter school fails to identify or inadequately identifies a child’s disability, or owes a child compensatory education for services not provided, how does a parent pursue the traditional administrative processes for relief? And how do parents without resources get a lawyer to help them?

On December 5, 2016, those questions were answered in a case brought by Popper & Yatvin partner Alan L. Yatvin: R.V. Individually and on Behalf of S.V-W., a Minor, v. Pedro A. Rivera, Commonwealth of Pennsylvania, Commonwealth of Pennsylvania, Department of Education, E.D.Pa. Civil Action No. 16-2277.

S.V-W. attended the Walter D. Palmer Leadership Learning Partners Charter School (Palmer) from 2007 until the school became insolvent and closed in December 2014, in the middle of the school year. His mother sought the advice of an attorney because S.V-W. had been struggling at Palmer and had not received special education services. That attorney, Daniel Cooper, concluded that Palmer had violated the “child find” provisions of the Individuals with Disabilities in Education Act (IDEA), which require publicly funded schools to identify and program for all children with disabilities in need of special education.((20 U.S.C. § 1412(a)(3)(A).))

Ordinarily, Dan would have reached out to the school and attempted to resolve the dispute, and if that didn’t work out, he would have filed a complaint seeking an administrative “due process” hearing to resolve the issues. But in this case, Palmer was closed and insolvent. So, in addition to filing a due process complaint against Palmer, Dan also filed a due process complaint against the Pennsylvania Department of Education (PDE). Under the IDEA, PDE bears responsibility for providing special education and related services when a school cannot or will not do so.((20 U.S.C. § 1413(g).))

But instead of stepping in and agreeing to provide compensatory education for services the child had been denied, PDE took the position that it should not be a party to the administrative proceedings. PDE further stated that it intended to provide compensatory services only if the hearing officer determined they were due. Based upon this representation, the special education hearing officer dismissed the PDE from the administrative process.

This left Dan to engage in the process of fully litigating the claims on behalf of S.V-W., with no one across the table. So he did his research, gathered documents, prepared witnesses, and presented evidence at a two hour due process hearing. Several weeks later the hearing officer issued his decision, finding that Palmer had failed to comply with its obligations to this child, resulting in a denial of a free appropriate public education (FAPE). The hearing officer concluded that S.V-W. was entitled to a full day of compensatory education equal to every school day for two years. At that point, the PDE agreed to honor the decision and provide the compensatory services. What PDE would not do, however, is honor the IDEA’s attorney’s fees provision.((The IDEA provides that a district court may, in its discretion, award “reasonable attorneys’ fees” to the parents of a child with a disability who is a “prevailing party.” 20 U.S.C. §1415(i)(3)(B)(i)(I).))

The IDEA, like other civil rights laws, contains an attorney’s fees provision to insure that the courthouse doors are not closed to those being denied their rights and the protections of the law, just because they cannot afford to hire an attorney. Under those provisions, persons, like S.V-W.’s mother, who prevail on their claims, are entitled to have the other side pay their reasonable attorney’s fees. But by getting itself dismissed from the administrative action, even though it forced the action to proceed to conclusion before PDE would fulfill its obligation to provide the services Palmer had denied, PDE was able to claim it was not a party and therefore was not obligated to pay for the work it had caused Dan Cooper to perform in putting on a hearing.

So Dan contacted Popper & Yatvin.  Alan filed suit in federal court asserting that PDE was a proper party to the administrative proceedings, and since parent was a prevailing party, PDE was liable for her attorney’s fees. The PDE then filed a motion to dismiss the complaint, to which Alan responded. U.S. District Judge Wendy Beetlestone heard oral argument on November 2nd, and on December 5th she issued her decision denying PDE’s motion to dismiss. The Judge agreed with Alan that PDE was a proper party to the administrative proceedings and that PDE is responsible for payment of attorney’s fees to prevailing parent.

The parameters of PDE’s role when charter schools close is a recently evolving issue. Because of the large number of charter schools in the Philadelphia area, there have recently been three other such cases, involving different or limited factual circumstances.((Attorney David Berney, who has also been litigating issues relating to PDE obligations when charter schools close, is to be complimented on his own success in the district court.)) The PDE has made clear that it intends to vigorously contest these cases and seek adjudication of these issues in the Court of Appeals.

The decision in this case represents the broadest and clearest statement that PDE stands in the shoes of defunct charter schools when it comes to the rights and remedies of students with disabilities, including payment of attorney’s fees to prevailing parents. Popper & Yatvin is pleased to have helped add to the body of the law on this subject, and will continue to empower parents by assuring their access to the resources needed to defend the rights of their children with disabilities.

The post Protecting special needs students when charter schools close appeared first on Law Offices of Popper & Yatvin.

The broadcast will repeat that night at 11pm ET. After that it will be online on SiriusXM’s On Demand feature for the next seven days, channel 111. If you do not have a SiriusXM subscription, an alternative is linking to the 30-day free trial subscription to SiriusXM.

Alan Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as the American Diabetes Association (ADA) national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

The post Yatvin on Sirus XM’s Knowledge@Wharton appeared first on Law Offices of Popper & Yatvin.

((Diabetes Care is a journal intended to increase knowledge, stimulate research, and promote better management of people with diabetes.))¹²

The purpose of this position statement is to provide diabetes management recommendations for students with diabetes in the elementary and secondary school settings. The statement also addresses legal protections for young people with diabetes and how they can be provided a safe school and child care environment. This includes the provision of care during the school day, field trips, and all school-sponsored activities in the school setting and in preschool, day care, and camp programs.

One of the American Diabetes Association’s principal concerns is protecting the rights of children with diabetes to have equal educational opportunity, to remain free from discrimination based on diabetes, and to have access to a free appropriate public education, including the diabetes care services they need in order to remain safe at school. The ADA opposes policies and practices that discriminate against students with diabetes based on their disability.

Alan Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as the ADA’s national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

Yatvin was previously a member of the writing group for the September 2012 Care of Young Children With Diabetes in the Child Care Setting: A Position Statement of the American Diabetes Association,((Diabetes Care, October 2014 vol. 37 no. 10 2834-2842)) and the 2011 Position Statement:  Diabetes and Driving, an overview of licensing rules for people with diabetes, addressing the factors that impact driving for this population, and identifying general guidelines for assessing driver fitness and determining appropriate licensing restrictions.((Diabetes Care January 2014 vol. 37 no. Supplement 1 S97-S103.))

1. A position statement is an official American Diabetes Association (ADA) point of view or belief that contains clinical or research recommendations. Position statements are issued on scientific or medical issues related to diabetes. They are published in ADA journals and other scientific/medical publications. ADA position statements are typically based on a systematic review or other review of published literature. Position statements undergo a formal review process. They are updated annually or as needed.
2. The American Diabetes Association is a nationwide nonprofit voluntary health organization founded in 1940, and has over 485,000 general members, 15,000 health professional members, and 1,000,000 volunteers. The mission of the ADA is to prevent and cure diabetes and to improve the lives of all people affected by diabetes. As of 2011, there were 25.8 million Americans with diabetes. The ADA is the largest, most prominent nongovernmental organization that deals with the treatment and impact of diabetes. The ADA establishes and maintains the most authoritative and widely followed clinical practice recommendations, guidelines, and standards for the treatment of diabetes.

The post Diabetes Care in the School Setting: A Position Statement of the American Diabetes Association appeared first on Law Offices of Popper & Yatvin.

Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as American Diabetes Association (ADA) national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

The post Yatvin quoted by The New York Times appeared first on Law Offices of Popper & Yatvin.

Although this little family was struggling on many fronts, Marissa had 4 ½ days a week in a calm and happy world.  Then in early December, Marissa fell ill and was admitted to the hospital, where she was diagnosed with type 1 diabetes. Despite her own health struggles, Mom Evelyn, along with Grandmother Helena and 15 year old big brother DeShaun, dived into Marissa’s diabetes regimen and quickly got her care under control.  Their next step was getting Marissa back to school.

The week before Christmas, Helena took Marissa back to school, along with her diabetes supplies and instructions for her diabetes care.  But the school said, sorry, Marissa can’t come back.  There was only a part time nurse at the public elementary school building that housed Marissa’s Head Start pre-K, and Pennsylvania law did not allow teachers and staff to volunteer and be trained to inject insulin. The school told Marissa’s family that she could not return to school unless they hired a nurse themselves.

Paying for a nurse was out of the question.  So, for months Marissa had to stay out of school because of their refusal to provide her with diabetes care.  Helena and Evelyn tried everything they could think of.  They called a local education advocacy group. They talked to their state representative. But they were told that nothing could be done. No one was able to help the family, and Marissa could not go back to school.

The family was tired, overwhelmed, and did not know if there was anything else they could do. Finally, a family friend suggested they contact the American Diabetes Association (ADA).   Helena called 1-800 DIABETES, and was immediately put in touch with Association Legal Advocate Ben Eisenberg, a staff attorney in the Alexandria, Virginia main office.

Ben then connected the family with Popper & Yatvin partner Alan L. Yatvin, who is a member of the ADA’s National Board of Directors and immediate past chair of Legal Advocacy for the ADA.  He got right to work without any charge to the family.  He reached out to the school district noting that Marissa had an absolute right to access public education. The school district had not considered any accommodation under federal laws, such as Section 504 of the Rehabilitation Act. These laws give children a right to access publicly funded education, even public preschools. He then asked for a quick meeting to address Marissa’s situation.  Unfortunately, the district ignored Alan’s efforts to educate and negotiate with them, and Marissa continued to remain out of school.

At that point Popper & Yatvin filed a lawsuit in federal court, demanding that the school district immediately return Marissa to her class and provide her with diabetes care. After some stubborn resistance, the school district relented, agreeing to assign a full-time nurse to Marissa.  Just weeks after being put in touch with Popper & Yatvin, Marissa finally returned to school, after nearly five months of exclusion.  Sadly, her mom Evelyn lost her battle to breast cancer two weeks later.

Marissa and her family still face many challenges, but exclusion from school because of diabetes is not one of them. They can now focus on Marissa’s diabetes care, her adjustment to life in school, and moving forward into new opportunities. And they will always know that when nobody else was able to help, Popper & Yatvin and the American Diabetes Association were there to fight for fairness for Marissa and her family.

For more information on the rights of students with diabetes, check out the ADA’s Safe at School page.  

The post Marissa’s Story appeared first on Law Offices of Popper & Yatvin.

Emily’s parents then hired Popper & Yatvin partner Alan Yatvin to represent them. Yatvin filed an administrative complaint with the Pennsylvania Office of Dispute Resolution, requesting reimbursement for Emily’s tuition, along with transportation to Benchmark.  Following a three day hearing, the Pennsylvania Special Education Hearing Officer ruled on April 21, 2009, that the school district had failed to offer Emily an appropriate educational program, and ordered the school district to pay Emily’s tuition and provide her transportation.

The school district sought review of this decision and on February 14, 2011, the United States District Court Judge overruled the hearing officer and found in favor of the school district and against Emily’s parents on all claims and counterclaims.  Yatvin then filed an appeal to the United States Court of Appeals for the Third Circuit, which covers Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.

In March of 2012, Yatvin also asked the school district to repay her parents for Emily’s tuition and transportation during the course of the litigation in federal court, including appeal.  This request was based on the “stay-put” requirements of the Individuals with Disability Education Act (IDEA), the law under which the case was proceeding.  The issue was of no small importance to Emily’s family.  Her father is a police detective and her mother is a special education teacher.  Even with some tuition breaks they were getting from Benchmark, this private school tuition was a real burden on the family.  Not to mention having to transport Emily to and from school, even as the school district ran a bus to Benchmark that Emily was not allowed to board.

Stay-put (also called pendent placement) is a part of the law that insures special needs students will continue to receive an education, without cost to their parents, during the pendency of legal proceedings challenging their educational program.  Specifically, Congress has decided that a child with a disability should remain in whatever educational program they were in at the time the dispute with the school arose, whether within the school district, a charter school or in a private school.

In this situation, Emily’s stay-put placement was set out in her Individualized Education Program (IEP) in the school district.  Since parents unilaterally chose to enroll her in a private school for the 2008-2009 school year, the cost of that school was their responsibility.

However, once a state hearing officer agrees with parents that the school district’s plan was not appropriate and that parents are entitled to tuition reimbursement for the private school, the law says that the hearing officer’s decision becomes an agreement between the school and parents to change the stay-put placement from the school district to the private school.  In other words, the hearing officer decision in this case had the effect of switching Emily’s placement from the public school program recommended by her IEP, to the private Benchmark School.  Thus, while the case was being reviewed in federal court, the school district was responsible for funding the stay-put placement at Benchmark, along with transportation, starting at the time of the hearing officer decision in April 2009.

However, because of the decision of the District Court Judge overruling the hearing officer, and for other procedural reasons, the school district claimed it did not have to pay for Emily’s stay-put placement at Benchmark.  Yatvin asked the federal judge to force the school district to pay the back tuition from April 2009, through the end of the appeal.

On June 12, 2012, the United States Court of Appeals affirmed the original order of the District Court in favor of the school district, reversing the hearing officer decision.

This wasn’t the end, though.  The request that the school district to be required to fund Emily’s education at Benchmark during the stay-put period continued.  In August 2012 the District Court ruled in favor of parents and ordered the school district to pay the costs of Emily’s enrollment at Benchmark and her transportation for the entire stay-put period (from the April 2009 Hearing Officer decision through the June 2012 end of the appeal).

The school district appealed, briefs were filed and the Court of Appeals heard argument on October 17, 2013.  On February 20, 2014 the Court of Appeals issued its decision, ruling in favor of Emily and her parents in all respects.

This still wasn’t the end of the journey, however.  The school district notified Yatvin that it was going to ask the United States Supreme Court to review the portion of the Court of Appeals decision finding that a school district’s obligation to fund a child’s stay-put placement continues through appeal. On June 20, 2014, the school district filed a Petition for a writ of certiorari with the Supreme Court.  The school district argued that the Supreme Court should take the case because there was a split among the Courts of Appeal.  The District of Columbia Court of Appeals ruled 25 years ago that a district court decision for the school district changed the stay-put obligation, while in 2009 the opposite result was reached by the Court of Appeals for the Ninth Circuit (California, Hawaii, 7 other western states and 2 Pacific territories).  The school district’s petition was supported by the National School Boards Association and others.

Yatvin then decided to collaborate with Supreme Court specialist Brian Wolfman, who at the time was a visiting professor at Georgetown University Law Center’s Institute for Public Representation.  Yatvin worked with Wolfman and several of his students to file a brief in opposition on August 27, 2014.

The school district filed its reply brief two weeks later and the case was conferenced by the Supreme Court at the beginning of October.  On October 6, 2014, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States.

In November, Yatvin traveled to Washington, D.C., to meet with Wolfman and two of his students from Stanford Law School Supreme Court Litigation Clinic, where Wolfman was now a visiting professor.  The team discussed the case and strategy for several hours, before heading to the Justice Department.  There they met with the Solicitor General’s (SG) staff, as well as representatives from the Civil Rights Division and the Department of Education.  These attorneys had already met with the school district’s legal team, so this was our opportunity to answer questions and focus on some of the issues in the case.  Then it was time to wait to see how the United States would come down.

On April 10, 2015, the Brief amicus curiae of the United States was filed.  The government supported parents in all respects.  The school district filed its supplemental brief in response to the government, and the case was listed for conference on May 14, 2015.

On Monday, May 18, 2015, the Supreme Court issued an order denying the petition for a writ of certiorari.  This means that the appeal is over and the Third Circuit Court of Appeals’ decision in favor of parents stands.

As important as the decision is to Emily and her family, the case is also meaningful to special education students caught in a dispute over their educational program.  There is no dispute that a special education student’s stay-put placement continued through to at least a decision by a federal district court.  However, The school district’s argument against continuing the stay-put obligation to fund Emily’s enrollment at Benchmark was that having obtained a ruling in its favor in the district court that the program it proposed was proper, it should not have to continue to pay for a different program in a private school.

Though facially appealing, this argument ignores the goal of the law, and the federal regulations implementing the law, to insure that children with special needs have as much consistency and continuity in their education as possible.  As Yatvin argued, what happens if on appeal the district court’s decision in favor of a school district is reversed?  Under the formulation proposed by the school district, a child with special needs will have been kept out of the alternate program the appellate court ultimately decided was appropriate, usually more than a year, and sometimes more than two years, and instead forced into a school district program that might ultimately be found to be inappropriate.  All while the child is getting older and his/her ability to benefit from the appropriate program grows less.

In addressing this question of who should shoulder the burden of a special needs child’s education during appeal, the Third Circuit Court of Appeals explained:

We are not insensitive to the financial burden our decision will impose on school districts, … or the seeming incongruity of the ultimately prevailing party having to pay for a now-rejected placement. Despite two judicial determinations that Ridley did not deny E.R. a FAPE [free and appropriate public education], the school district will be assessed the cost of her private school education for a substantial period of time.[] It is impossible, however, to protect a child’s educational status quo without sometimes taxing school districts for private education costs that ultimately will be deemed unnecessary by a court. We see this not as “an absurd result”,… but as an unavoidable consequence of the balance Congress struck to ensure stability for a vulnerable group of children.

This ruling removes the uncertainty that was faced by many special needs students – not just those like Emily placed in private schools by their parents, but also the more typical situation of children challenging their school’s efforts to reduce or eliminate programs and special education services they had been receiving in their regular public school and in charter schools.

The denial of certiorari by the Supreme Court assures this continuity for children in the Third and Ninth Circuits.  Without reading too much into the denial of certiorari, in light of the issues raised in the briefing, the decision to let the Third Circuit’s ruling stand may provide support for those arguing in other court’s across the country that stay-put continues on appeal.

Popper & Yatvin is pleased to have played a role in bringing clarity to this important area of special education law.

In addition to Professor Brian Wolfman, a brilliant, knowledgeable and tireless Supreme Court advocate, Popper & Yatvin also express heartfelt thanks to Georgetown Law students Jessica Westerman and Bradley Girard, and Stanford Law Supreme Court Clinic students Michael Mestitz and Stephany Reaves.

The post Yatvin defeats certiorari in U.S. Supreme Court, preserves special education victory appeared first on Law Offices of Popper & Yatvin.