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

Archive for November, 2010

School’s alleged condoning of peer harassment and bullying provides basis to pursue Section 504 and ADA claims.

Thursday, November 18th, 2010

M.Y. v. Grand River Academy, 54 IDELR 255 (N.D. Ohio 2010):  A U.S. District Court denied a school’s motion to dismiss Section 504 and ADA claims.  A student with Aspeger’s Syndrome sued a school for money damages alleging discrimination under Section 504 and the ADA.  The student claimed that the school had a policy of allowing upperclassmen to punish and haze younger students while the administration looked the other way, and that, as a student with a disability, he was punished more harshly than non-disabled students.

The student further alleged that the bullying and harassment at the hands of his peers included physical assaults, which resulted in the student’s depression and threats to harm himself.  The Court, assuming these allegations are true as part of its determination of a motion to dismiss, determined that the allegations were sufficient to allow the student’s case to proceed.

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School district’s failure to consider which methodology allowed an autistic student to make progress resulted in its failure to offer FAPE.

Thursday, November 18th, 2010

Dumont Board of Education v. J.T., 54 IDELR 231 (D.N.J. 2010):  A U.S. District Court (in an unpublished decision), determined that a school district did not provide a free appropriate public education to an autistic student who progressed in a program using the Developmental Individual Relationship/Floortime (DIR) method.  As a result, the parents were granted reimbursement.

The student initially received Applied Behavioral Analysis Discrete Trial (ABA) services as part of her early intervention program, but she resisted that particular method and as a result DIR was added to her program.  The student then began to make noticeable and meaningful progress.

When the student aged out of early intervention and was to receive services as a preschool student with a disability, the school district did not offer a placement that used the DIR method but rather a placement that used the ABA method.  Although the IEP team members present at the student’s IEP meeting agreed the student should receive DIR services, the school district did not make that particular accommodation part of the student’s IEP.  The proposed IEP also did not include a sensory diet, or provide for a behavior plan (only noting that such a plan would be provided “if the need arose”).  As a result, the parent unilaterally placed the student in a program that used the DIR method.

The District Court determined that, in light of the information available to the IEP team indicating that DIR was the most effective method for the student and testimony (at the administrative hearing) that a program that did not incorporate DIR would be inappropriate for the student, the district’s offer of a placement that used ABA and not DIR was inappropriate.  Although the district argued that the case was one over methodology, the Court disagreed, explaining that the issue at hand was whether the district prepared an IEP to meet the student’s unique needs.  Since the student’s unique needs required the DIR method, the district’s failure to address that documented need in the proposed IEP denied FAPE.  Additionally, an IEP simply indicating that a behavior plan will be provided “if the need arose” is not sufficient.  As a result, the parents were entitled to reimbursement.

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Parent’s agreement to IEP, although reluctant and conditional, makes the IEP the student’s stay-put placement

Wednesday, November 17th, 2010

Farzana K. v. Indiana Department of Education, 53 IDELR 180 (N.D. Ind. 2009):  The parent of a student with autism could not modify her son’s stay-put placement simply by including a notation on the IEP that she agreed with the IEP “for now.”  The Court concluded that parent’s agreement with the IEP (although reluctant) did not change the student’s “then current educational placement” for purposes of the pendency provision of the IDEA.  Although the parent challenged the IEP and sought a residential placement, the student’s autism program in the public school remained the student’s stay-put placement.

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Class discussion of student’s health condition by school nurse may be FERPA violation

Wednesday, November 17th, 2010

Pine-Richland (PA) School District, 53 IDELR 200 (OCRIII, Philadelphia (PA) 2009):  The U.S. Department of Education, Office of Civil Rights (OCR) addressed a complaint by parents of a student who had a Section 504 Plan related to potentially life-threatening food allergies.  OCR was satisfied that the school district resolved an allegation that its school nurse discussed a student’s food allergies with the student’s classmates, thus violating the Family Educational Rights and Privacy Act (FERPA).  To prevent reoccurrence, the school district issued a memorandum to the nurse notifying her that she is not authorized to disclose the student’s health condition without written authorization and consent from the student’s parents.

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Disclosure of information otherwise protected by FERPA is permitted in health and safety emergencies

Wednesday, November 17th, 2010

Letter to Anonymous, 53 IDELR 235 (EDU 2008):  According to the U.S. Department of Education, the 2008 final regulations to the Family Educational Rights and Privacy Act (FERPA) gives school districts and state educational agencies (SEAs) flexibility and deference in disclosing confidential information in student records to appropriate persons in certain health and safety emergencies.  School districts and SEAs may disclose information in education records to appropriate persons when such person’s knowledge of the information is necessary to protect the health and safety of a student or other individual if there is a “significant and articulable threat to the health or safety of a student or other individual, considering the totality of the circumstances.”  However, the regulations also require school districts and SEAs to record in the student’s records the basis for its decision that a health or safety emergency existed.

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Hearing Officer has discretion to reduce or deny private school reimbursement for lack of proper notice

Wednesday, November 17th, 2010

Shipler v. Maxwell, 53 IDELR 216 (D. Md. 2009):  The Court concluded the Administrative Law Judge (ALJ) was acting within his discretion when he decided not to deny parents’ claim for reimbursement in its entirety even though the parents did not provide notice (as required by law) prior to removing their child (a disabled student diagnosed with profound oral and motor delays) from the public school and enrolling him in a private school.  Consequently, the parents, who gave notice to the District several months after the student began attending the private school, were denied reimbursement for the time period before notice was given, but were awarded reimbursement for expenses accrued for the remainder of the school year after giving notice.

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Parties can agree to make resolution session confidential

Wednesday, November 17th, 2010

Letter to Baglin, 53 IDELR 164 (OSEP 2008): Although the IDEA does not require the confidentiality of a resolution session (which a school district is required to convene within 15 days of receiving notice of a parent’s due process hearing request), parents and school districts can mutually agree to confidentiality.  However, parents cannot be required to sign a confidentiality agreement as a precondition to holding the resolution meeting.

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Continuum of placements and LRE requirements apply to public charter schools

Wednesday, November 17th, 2010

Letter to Anonymous, 53 IDELR 127 (OSEP 2009):   The U.S. Department of Education, Office of Special Education Programs (OSEP) stated that a public agency’s responsibility to ensure that a continuum of alternative placements is available to meet the needs of students with disabilities, applies to public charter schools, regardless of whether the charter school is a school of a Local Educational Agency (LEA) (i.e. a school district), is a LEA itself, or is run by the state.  Public charter schools must also ensure that students with disabilities are placed in the least restrictive environment.

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Private school and home school students who reenroll in public school remain eligible for services

Wednesday, November 17th, 2010

Letter to Goldman, 53 IDELR 97 (OSEP 2009):   The U.S. Department of Education, Office of Special Education Programs (OSEP) determined that a student withdrawn from a public school, and placed in a private school or home schooled, and later reenrolled in the public school, should continue to be treated as a student with a disability who is eligible to receive a FAPE.  The student must be given an IEP upon his or her return to the public school and reevaluated if it has been more than three years since the student’s last evaluation, or if the student’s parent or teacher requests an evaluation, or if the educational or related services of the student warrants an evaluation.  OSEP also noted that if the student was in a parentally placed private school, the school district had a continuing obligation to conduct a reevaluation every three years while the student was attending the private school.

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Audio/visual surveillance of student with disability may be considered a related service

Wednesday, November 17th, 2010

C. by Connor v. Missouri State Board of Education, 53 IDELR 81 (E.D. Mo. 2009):   The district court denied a school district’s motion to dismiss parents’ claim for audio/visual surveillance of their child with severe disabilities (including Spastic Quadriplegic Cerebral Palsy and Cortical Visual Impairment).  The parents claimed that the surveillance was necessary since the district was failing to implement their child’s IEP and was neglecting their child on a regular basis.   The court reasoned that the list of related services in the IDEA is not an exhaustive list and that the surveillance could be considered a related service if it is required to assist the student to benefit from education.  The court also permitted the parents to pursue the surveillance as a reasonable accommodation under Section 504.

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