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

Archive for December, 2010

School district’s declassification of a student with a learning disability was improper.

Wednesday, December 29th, 2010

Breanne C. v. Southern York County School District, 55 IDELR 3 (M.D. Pa. 2010):  A U.S. District Court ruled that a school district improperly declassified a student from special education (based mainly on her strong academic grades).  The Court determined that the school district failed to take into account the student’s results from evaluation reports, as well as her parents’ “intensive” work with her family at home, and with a reading tutor.

The school district declassified the student because her grades in her regular education classes were all As and Bs.  Further, her teachers indicated that she was a good student, and the district considered her to be functioning at or above grade level in all relevant areas.  However, the district failed to take into consideration an independent educational evaluation (IEE) obtained by the family.  Also, the Court gave weight to the finding of the hearing officer (and appeals panel) that the student’s grades were a result of the intensive support she received at home, including a private reading tutor.  The Court similarly found that the teacher observations failed to take into account such support.

As a result, the Court concluded that student’s grades were not the most reliable indicator as to whether or not she required special education, and that her declassification was improper.  The Court affirmed an award of 484 hours of compensatory education and reimbursement for the IEE.

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District’s failure to include representative of student’s private program at IEP meeting resulted in a denial of FAPE

Thursday, December 23rd, 2010

S.H. v. Plano Independent School District, 54 IDELR 114 (E.D. Tex. 2010):  A school district violated the IDEA by failing to include a representative of the private program of a severely autistic student at the student’s IEP meeting.  Although the Court acknowledged that not all procedural violations will result in a denial of FAPE, the Court found that the violation in this case resulted in a predetermined decision regarding extended school year (ESY) services, which in turn deprived the child of a FAPE.  In particular, if the private program representative had been at the IEP meeting, the IEP team would have had additional information regarding the student’s educational placement as well as the student’s eligibility for ESY services.

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Student’s high academic grades in special education setting did not equate to meaning educational benefit

Thursday, December 23rd, 2010

D.S. v. Bayonne Board of Education, 54 IDELR 141 (3d Cir. 2010):  The Third Circuit Court of Appeals reversed the decision of the district court and reinstated the decision of the Administrative Law Judge (ALJ), who determined that a six-year-old student suffering from epileptic seizures due to brain tumors and classified as “other health impaired” was denied a FAPE despite the fact that the student had achieved high academic grades during the school year.  Although the Court of Appeals stated that it was reasonable for the district court to consider the student’s academic progress, the Court stated that the student’s high grades were less significant since they were achieved in a setting that included special education students only as opposed to a regular classroom.  The Court stated that a court “should not place conclusive significance on special education classroom scores . . .”  The ALJ did not err by agreeing with the parents’ experts that the student’s low standardized test scores were a better indicator of the student’s academic progress than the student’s grades.

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School district required to provide student with one-on-one aide in student’s non-public school

Thursday, December 23rd, 2010

Board of Education of Bay Shore Union Free School District v. Thomas K., 14 N.Y. 3d (2010):  New York’s highest court determined that a New York school district was required to provide a student, diagnosed with ADHD and classified as “other health impaired,” with a one-on-one aide in the student’s non-public school.  Although under federal law, the student was not entitled to receive services at his private school, the Court relied on New York’s “dual enrollment” statute, which requires school districts to allow private school students with disabilities “equal access to the full array of specialized public school programs.”  The Court also deferred to the decisions of the Impartial Hearing Officer (IHO) and State Review Officer (SRO), who both found that the in order for the child to receive a FAPE, the services of an individual aide must be provided to the student at his non-public school.  The Court also rejected (as did the IHO and SRO) the school district’s argument that a one-on-one aide does not fall within the statutory definition of “services.”

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School district’s delay in referring a student with academic, emotional, and behavioral difficulties for special education services amounted to ‘child find’ violation

Thursday, December 23rd, 2010

Cosmpton Unified School District v. Addison, 54 IDELR 71 (9th Cir. 2010):  The Ninth Circuit Court of Appeals agreed with the district court’s determination that a school district’s delay in referring a student for special education services, who for several years demonstrated academic, behavioral, and emotional difficulties, amounted to a violation of the IDEA’s “child find” requirement.  The school district argued it did not affirmatively refuse to take action, and that the IDEA’s procedural safeguards (which includes a parent’s right to written notice of a school district’s action or refusal to take action and a parent’s right to a due process hearing) only apply to a proposal or refusal to initiate a change in a student’s identification, assessment, or placement.  The court rejected the school district’s argument that the school district’s choice to ignore the student’s disabilities allows the district to escape its “child find” obligations.  The court refused to interpret the IDEA to produce such “absurd results.”

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Student’s failure to make progress on all IEP goals did not equal denial of FAPE

Thursday, December 23rd, 2010

Adrianne and Joshua D. v. Lakeland Central School District, 54 IDELR 95 (S.D.N.Y. 2010):  The parents of a student with a learning disability, who struggled in reading and math in sixth grade and was removed from public school in seventh grade, were denied  reimbursement for the student’s private placement in eighth grade.  Although the parents argued that the IEP offered by the school district for the student’s eighth grade year was substantially the same as offered in sixth grade (including the continuation of the Wilson reading program), the school district demonstrated that the student had made progress under the sixth grade IEP.  The student demonstrated difficulty in only one out of ten goals in reading.  The student achieved all of his writing skills goals, other than spelling, and had advanced to seventh grade.  Since, the student made progress under the sixth grade IEP, the eighth grade IEP, which offered an even more intense reading program (i.e. a reading class every day as opposed to two days per six-day cycle), was reasonably calculated to offer meaningful educational benefit.  The court also concluded that although the parents may have established that the student made greater progress under the Orton-Gillingham reading program, this did not affect the appropriateness of the school district’s recommendation since the IDEA did not require the school district to provide more than a “basic floor of opportunity.”

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Student’s graduation with regular diploma does not extinguish student’s stay-put rights during pendency of dispute over student’s graduation

Friday, December 17th, 2010

R.Y. v. State of Hawaii, Department of Education, 54 IDELR 4 (D. Hawaii 2010):  The parent of an emotionally disturbed, privately placed student, challenged the school district’s decision to issue the student a high school diploma.  Although the court agreed with the hearing officer that the student met all of Hawaii’s graduation requirements, the court concluded that the student continues to have rights under the stay-put provision of the IDEA during the parent’s appeal of that decision.  Although the parent argued that as a remedy the parent is entitled to private school tuition reimbursement, the court remanded the case to the hearing officer for determination of an appropriate remedy.

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Student’s high academic performance supports ineligibility determination

Friday, December 17th, 2010

Maus v. Wappingers Central School District, 54 IDELR 10 (S.D.N.Y. 2010):  The court affirmed the decision of the State Review Officer (who had overturned the hearing officer’s decision favoring the student) that a student, diagnosed with ADHD, dysgraphia, generalized anxiety disorder, Asperger’s syndrome, pervasive developmental disorder, and a moderate language-based learning disability, was ineligible for services under the IDEA due to her high academic performance.  The court rejected the parents’ argument that the student had significant social and emotional problems, and that such problems should be considered in determining “adverse effect on educational performance.” Following recent unpublished opinions from the United States Court of Appeals for the Second Circuit, as well as other decisions from federal courts in New York State, the court reasoned that because the student’s conditions had not adversely impacted her academic performance, the student did not qualify for services under the IDEA.  The court also noted that no court applying New York’s implementing regulations has ever held that a student who excelled academically nonetheless has a right to IDEA services.

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Efforts to include parents at IEP meeting supported school district’s refusal to pay private school tuition reimbursement

Friday, December 17th, 2010

J.G. v. Briarcliff Manor Union Free School District, 54 IDELR 20 (S.D.N.Y. 2010):  The court agreed with the State Review Officer (and hearing officer)’s decision to deny the parents’ claim for private school tuition reimbursement for the unilateral placement of their child, a student with dyslexia.  The court concluded that the student’s IEP adequately assessed the student’s present levels of educational performance and adequately addressed the student’s social and emotional needs as well as the parents’ concerns regarding the student’s reading deficits. The parents also complained that the IEP did not specifically state that that the District would use the Lindamood-Bell or Orton-Gillingham methodologies.  Furthermore, the court concluded that although the parents’ were absent from the IEP meeting, they were afforded an opportunity to participate in the meeting and declined the opportunity to participate by telephone.  The school district’s documented attempts to arrange for the parents attendance at the meeting, including the offer to participate by phone, was sufficient to satisfy the school district’s legal obligation to arrange for the parents’ attendance.

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Court certifies class action alleging child find violations

Friday, December 17th, 2010

M.A. v. Newark Public Schools, 109 LRP 77258 (D.N.J. 2009):  The District Court of New Jersey certified a class of students with disabilities (present and future) alleging “child find” violations of the IDEA.  The parents of six students brought the lawsuit based on the school district’s failure to identify and evaluate children potentially eligible for special education, as well as the school district’s failure to make eligibility determinations and provide services in a timely manner.  While the court concluded that the claims for compensatory education could not be maintained on behalf of the class, the court certified the claims for injunctive and declaratory relief.

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