Meeting the needs of people with disabilities, their families, educators & service providers
May 17th, 2012
Bishop v. Children’s Center for Developmental Enrichment, 57 IDELR 285 (S.D. Ohio 2011): Where parents of a student with autism alleged that a private school for students with disabilities took steps to exclude the student from its program due to the student’s autism, a U.S. District Court allowed the case to proceed.
The student was placed in a preschool program at the private school by his school district in accordance with his IEP. However, during the student’s first day of school, the parents disagreeing with the particular classroom to which the student had been assigned, refused to allow him to stay in that class. They believed such classroom assignment failed to implement the student’s IEP. Based on their refusal, the private school claimed that the parents had withdrawn the student from its program.
The parents disagreed, claiming that they only refused to allow the student to attend the assigned preschool classroom, but did not withdraw him from the school entirely. The parents argued that the school’s selection of the student’s classroom (and its subsequent insistence that the student be withdrawn) was due to the school’s wish for the student to leave the program. The school’s classroom assignment was purposefully not in accordance with the student’s IEP so as to ultimately coerce the parents into removing the student from the program. The parents further alleged that the school wanted the student to leave its program because he was autistic. The Court specifically noted that a school specializing in educating autistic students could discriminate against a child with autism, since autism is a “broad spectrum disorder” and “some autistic children are more difficult to educate that others.” Accordingly, the parents’ discrimination case was allowed to proceed.
Tags: Autism, classroom placement, discrimination, preschool, private school
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May 10th, 2012
Harrison (CO) School District Two, 57 IDELR 295 (OCR 2011): The U.S. Department of Education’s Office of Civil Rights (OCR) determined that a school district violated Section 504 by using its Response to Intervention (RTI) process for a student with ADHD, and not conducting an evaluation to determine the student’s need for services or accommodations.
The school district was notified of the student’s ADHD in July of 2008 when his parent enrolled him and indicated he was being medicated for ADHD. The district received an official diagnosis of ADHD in January of 2010, and subsequently conducted an evaluation resulting in a 504 Plan and, ultimately, an IEP for the student by June. However, in the interim, the student exhibited behaviors consistent with ADHD, including several behavioral incidents resulting in both in-school and out-of-school suspensions. Although the school district maintained that it was continually monitoring the student throughout that time period, and had made adjustments within the general education curriculum, OCR determined that the district should have inquired about the student’s diagnosis and un-medicated symptoms earlier. OCR noted that RTI “does not justify delaying or denying the evaluation of child” who is believed to need special education or related services.
Tags: ADHD, Evaluation, RTI, Section 504
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May 7th, 2012
East Rutherford (NJ) School District, 58 IDELR 54 (OCR 2011): The Department of Education, Office of Civil Rights (OCR) investigated eleven alleged bullying incidents of a student with Attention Deficit Hyperactivity Disorder (ADHD) and determined four of them to be disability-based harassment. OCR stated that when a school district discovers the occurrence of disability-based harassment, which is a form of discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), the school district must take prompt and effective action reasonably calculated to stop the harassment, prevent its recurrence and, as appropriate, remedy its effects. OCR determined that although the school district’s actions to promptly investigate and attempt to stop the harassment were effective with many of the bullies involved, one of the bullies continued to harass the student despite the school district’s efforts. As a result, OCR determined that it would monitor the school district’s implementation of a resolution agreement designed to prevent disability-based harassment against the student in the future.
Tags: Americans with Disabilities Act (ADA), Attention Deficit Hyperactivity Disorder (ADHD), bullying, Disability-based harassment, Office of Civil Rights (OCR), Section 504
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May 4th, 2012
Indian River County (FL) School District, 58 IDELER 52 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) determined that a school district unreasonably delayed evaluating a student with Tourette’s syndrome, when it waited six months after the student’s parent requested an evaluation and four months after the parent signed consent for the school district to evaluate. The school district was not permitted to delay the evaluations pending completion of a Response to Intervention (RTI) process. Moreover, the school district improperly told the parent that she needed to provide medical documentation of the student’s disability before the evaluation could be conducted.
Tags: Evaluation, Office of Civil Rights (OCR), Response to Intervention (RTI), Section 504, Timely evaluation, Tourette’s Syndrome
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May 3rd, 2012
Department of Education, State of Hawaii v. M.F., 58 IDELR 34 (D. Hawaii 2011): The federal district court stated that although a parent removed a student, classified as emotionally disturbed (due to her diagnoses of reactive attachment disorder, attention deficit hyperactivity disorder, gender identity disorder, and major depressive disorder) from a public school, the public school district still should at least have attempted to prepare IEPs for the beginning of the 2008-2009 and 2009-2010 school years. The IDEA requires a school district to give a parent prior written notice before special education and related services are discontinued, and the parent’s removal of the student did not excuse the school district from this requirement. However, the federal court vacated and remanded the hearing officer’s decision that the parent was entitled to private school tuition reimbursement. The court reasoned that the record was silent regarding whether, despite the school district’s procedural violation, the student suffered a “loss of educational opportunity,” since it was unclear whether the parent would have accepted a public school placement even if it was offered. The court also stated that the hearing officer failed to address equitable considerations regarding the parent’s entitlement to reimbursement, since the parent failed to notify the school district before removing the student from the public school.
Tags: Attention Deficit Hyperactivity Disorder (ADHD), Emotionally disturbed, equitable considerations, Gender identity disorder, Loss of educational opportunity, Major depressive disorder, Prior written notice, private school, Procedural violation, reactive attachment disorder, removal from public school, Tuition reimbursement
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May 3rd, 2012
Centennial School District v. S.D., 58 IDELR 45 (S.D. Pa. 2011): A U.S. District Court held that the statute of limitations tolled for a student whose parents did not receive any notice from the school district regarding their rights under the IDEA. The student’s asthma and gastro-intestinal condition often prevented him from attending school.
The school was aware of the student’s problems as early as kindergarten, and his problem persisted throughout his schooling. Despite his attendance issues, the school never provided his parents with notice or explanation of their rights to an evaluation and a determination of eligibility for special education or related services as a student with a disability. Although the parents never made a written referral to the IEP team, the Court determined that the student’s mother repeatedly raised concerns verbally and asked for help from the school district. In light of these requests, the school district should have initiated an evaluation and provided the parents with procedural safeguards. Since the district took neither step, the parents’ claim that the school district violated its child find obligation was deemed timely.
Tags: Asthma, attendance, child find, Evaluation, gastro-intestinal condition, Statute of limitations
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April 27th, 2012
Jamie S. v. Milwaukee Public Schools, 58 IDELR 91 (7th Cir. 2012): The Eighth Circuit Court of Appeals found that plaintiffs claiming child-find violations and seeking classification as “students eligible to receive special education from [the school district] ‘who are, have been or will be’ denied or delayed entry into or participation in the IEP process” to be ineligible to file a class action lawsuit. A settlement agreement, which the class plaintiffs entered into with the state defendant (over the objection of the school district) and an order from the court that included monitoring of the school district’s compliance with its child find obligations, was also vacated. The Eighth Circuit reasoned that the claims of the class plaintiffs were “highly individualized and vastly diverse” and lacked sufficient “commonality” (which is one of the required elements of a certified class).
Tags: child find, Class action, Class certification, Individualized claims, Systemic violations
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April 26th, 2012
G.B. v. New York City Department of Education, 58 IDELR 100 (S.D.N.Y. 2012): A federal district court concluded that a school district failed to provide sufficient pendency (or “stay-put”) services to a transfer student with autism that were comparable to the services provided to him under the last agreed upon IEP from his prior school district. However, the court refused to require the school district to pay tuition in order to maintain the student’s placement within his prior school district. A school district’s obligation to maintain the student’s “stay-put” placement during the pendency of a due process proceeding does not mean that the student must remain at a “specific brick-and-mortar school.” The school district merely must provide the student with an educational placement that is comparable to the last agreed upon IEP.
Tags: Autism, Brick-and-mortar, Last agreed upon IEP, pendency, stay-put, transfer student, Tuition to public school
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April 26th, 2012
K.D. v. Department of Education, State of Hawaii, 58 IDELR 2 (9th Cir. 2011): A U.S. Court of Appeals held that a school district’s agreement to pay a student’s tuition at a private school for the remainder of that particular school year did not establish the private school as the student’s pendency placement during any future disputes.
As part of a settlement to a due process complaint, the school district agreed to pay the tuition for a student with moderate to severe autism while he finished the school year at a private school. Notably, the settlement agreement never called for “placement” of the student at the private school, merely tuition reimbursement. Following resolution of the complaint, the school district conducted IEP team meetings to develop the student’s program going forward. However, the parent again filed a due process complaint and sought to establish the private school as the student’s pendency placement, thereby entitling the parent to reimbursement.
The Court affirmed the district court’s determination that reimbursement was not warranted. Overall, the Court found that the school district offered appropriate IEPs, defeating the parent’s claim for reimbursement. Regarding her argument that tuition should be reimbursed based on the student’s stay-put placement, the Court held that there was no pendency for the period in which no due process complaint was in effect. Following the parent’s filing of a new complaint, the private school was not pendency, since the settlement agreement did not agree to “place” the student at the private school. Rather, the agreement only allowed for tuition reimbursement and therefore was not a “placement” that would serve as pendency.
Tags: pendency, private school, reimbursement, stay-put, unilateral placement
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April 25th, 2012
Daniel P. v. Downington Area School District, 57 IDELR 224 (E.D. Pa. 2011): A federal district court determined that a school district, who utilized a response to interventions (RTI) approach to monitor a student, did not violate its child find obligations by initially opting not to determine the student eligible for IDEA services. The student responded positively to the school district’s interventions for nearly two school years, until the third semester of the student’s second grade year. However, when the student stopped making progress he was evaluated by the school district and classified with a specific learning disability by the beginning of his third grade year. The parents were, therefore, denied tuition reimbursement for their unilateral private school placement.
Tags: child find, Eligibility, private school, reimbursement, Response to Intervention (RTI), specific learning disability, unilateral placement
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