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The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

Parents’ retaliation allegation supersedes child abuse reporter confidentiality

September 19th, 2014

Grummons v. Williamson County Board of Education, 63 IDELR 61 (M.D. Tenn. 2014):  The parents of a student with a disability convinced a federal magistrate judge to supersede a state’s child abuse reporting confidentiality provisions.  The parents, suing under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, alleged that the school district reported them to the department of children’s services (DCS) in retaliation for the parents’ challenge to the district’s provision of special education services.  The court deemed the information relevant, but in order to balance the interest of confidential reporting, the requested information (namely, the identity of the individual(s) who submitted the report to DCS) would be disclosed to the parents, but was limited for use in the instant litigation and could only be disseminated on a “good faith need to know” basis.

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Speculation about IEP implementation insufficient to show denial of FAPE

September 17th, 2014

M.O. v. New York City Department of Education, 63 IDELR 37 (S.D.N.Y. 2014): A U.S. District Court denied a request for tuition reimbursement for a unilateral placement made by the parents of a student with a speech impairment.  The parents visited a classroom proposed by the school district, but found it inappropriate for the student.  The district subsequently proposed a different classroom, which the parents did not visit.  Instead, the parents placed the student in a private school, and pursued tuition reimbursement.  The District Court upheld the impartial hearing officer (IHO) and State Review Officer (SRO) determinations that the proposed IEP was appropriate, noting that any potential failure to implement (or how he would have fared in the proposed classroom) is speculative and not a proper basis to find a denial of an appropriate education.

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Improper IEP Team meeting invalidates IEP

August 26th, 2014

R.G. v. New York City Department of Education, 62 IDELR 84 (E.D.N.Y. 2013): A U.S. District Court held that a school district denied a student on the autism spectrum a free appropriate public education (FAPE) by failing to include a general education teacher as part of the student’s IEP team.  The student was transitioning from preschool to kindergarten, and had attended a general education preschool classroom with special education support (including an itinerant teacher and applied behavioral analyst).  Despite the student’s previous general education placement, her IEP team set to develop her IEP for her kindergarten school year did not include a general education teacher.  Moreover, the chair of the IEP team, the school district psychologist who conducted the student’s evaluation, failed to share all the information contained in her evaluation and did not adequately explore the various service providers’ recommendations that the student continue in a general education setting for kindergarten.  Together, the absence of a general education teacher and failure to adequately review the prospects of a general education placement, constituted a procedural violation which rendered the IEP team’s ultimate recommendation, a self-contained special education classroom, inappropriate.

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School districts responsible to offer IEPs to private school students

July 24th, 2014

District of Columbia v. Vinyard, 62 IDELR 13 (D.D.C. 2013): A U.S. District Court held that a school district must develop and offer an IEP to its resident students who are placed in private schools by their parents.  The school district initially offered the student, who was diagnosed with a cognitive disorder and borderline intellectual functioning, an IEP (which, in the Court’s view, offered the student an appropriate education), but refused to develop an IEP for the subsequent school year when the student’s parents notified the school they intended to maintain the student in his private placement.  The Court held that the school district denied the student an appropriate education, as the district is obligated to develop and offer an IEP to each of its resident students with disabilities.  Here, the district conditioned its offer of an IEP on the student’s re-enrollment in the public school system.  However, the Court found such a condition improper.  In the Court’s view, the school district must develop an IEP.  If, after offering an appropriate IEP, the parents reject the public schools in favor a private placement, at that point the school district is no longer obligated to provide services.  Accordingly, here, the school district failed to offer an appropriate program and was therefore ordered to reimburse the parents’ for the private placement.

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Parent consent not necessary to disclose records to potential private placements

July 17th, 2014

Letter to Anonymous, 113 LRP 35724 (FPCO 2013): The federal Department of Education’s Family Policy Compliance Office (FPCO) advised an attorney that school districts have the ability and authority to disclose a student’s educational records to a potential out-of-district placement as part of the school district’s attempt to secure an appropriate program under the IDEA.  In that circumstance, parental consent is not required before the school district can disclose personally identifiable information.

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Notice of private evaluation and frequent absences requires school district to evaluate

July 10th, 2014

Broward County (FL) School District, 61 IDELR 265 (OCR 2013): The federal Department of Education’s Office of Civil Rights (OCR) determined that a school district should have suspected a student as having a disability where the student was excessively absent and his teacher contributed to a private evaluation obtained by the student’s parent.  Since the teacher contributed to the parent’s private psychiatric evaluation of the student, and the student’s frequent absences related to his disability, the school had a duty to initiate its own evaluation to determine the student’s need for special education and related services.

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Teacher observations, progress reports enough data to develop IEP

July 3rd, 2014

D.B. v. New York City Department of Education, 61 IDELR 245 (S.D.N.Y. 2013): A federal U.S. District Court excused a school district’s failure to conduct a triennial re-evaluation, as such failure ultimately did not deny the student a free appropriate public education (FAPE).  Although the school district did not conduct any updated testing, the IEP team had various progress reports evaluating the student’s ability levels, as well the feedback from the student’s teachers and other service providers.  There was no indication at the IEP team meeting that anyone, including the student’s parents, believed the information available to the IEP team was insufficient or otherwise inadequate.  Accordingly, as the resulting IEP was suitably designed to provide the student with FAPE, any procedural violation committed by the school district was excused.

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Parent consent may be necessary for later stages of RTI

June 26th, 2014

Letter to Gallo, 61 IDELR 173 (OSEP 2013): The federal Department of Education’s Office of Special Education Programs (OSEP) advised a state education official that a school district need not seek parental consent to conduct an evaluation if the evaluation (including certain primary levels of an RTI framework) consists of the collection of data from all students in a general education setting.  Moreover, consent would not be necessary to review any data so collected within the context of determining the possible existence of a disability.  However, consent is required if, during a later stages of an RTI framework.  The critical determination is if the evaluation relates to an individual student and to determine whether the student has a disability potentially requiring special education and related services.  Accordingly, even if within the context of RTI (and not a formal referral to the IEP team) consent would still be required.

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Current vision status does not determine need for Braille instruction

June 19th, 2014

Dear Colleague Letter, 61 IDELR 172 (OSERS 2013): The federal Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) issued a guidance letter clarifying that a blind or otherwise visually impaired student should not be denied instruction in Braille absent “a thorough and rigorous evaluation” that determines “that instruction in Braille would be inappropriate for that child.”  The IDEA requires instruction in Braille for blind and visually impaired students, unless the child’s current and future reading and writing needs indicate that such instruction is inappropriate.  Since the child’s future needs must be taken into account, a school district cannot rely exclusively on a child’s current vision status to deny Braille instruction.

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School district required to provide in-home services as part of stay-put

June 12th, 2014

M.G. v. New York City Department of Education, 61 IDELR 220 (S.D.N.Y. 2013): A U.S. District Court ordered a school district to continue providing in-home applied behavioral analysis (ABA) services during the pendency of litigation due to the district’s provision of such services during the underlying proceedings.  Although the impartial hearing officer (IHO) denied much of the parents’ requested relief, interim IHO orders directed the district to commence in-home ABA services to provide a free appropriate public education (FAPE).  The parents initiated a state-level appeal, but in the meantime the district indicated it would discontinue the in-home services during the subsequent school year.  The Court, upon the parents’ application, directed the district to continue providing the in-home ABA services as part of the student’s pendency placement.

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