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Archive for January, 2011

IDEA offers protection to gifted students who qualify as students with disabilities

Friday, January 21st, 2011

Anonymous, Letter to, 55 IDELR 172 (OSEP  2010):  The United States Department of Education, Office of Special Education Programs (OSEP) responded to a letter from a concerned individual who inquired about the protections offered to gifted students by the Individuals with Disabilities Education Act (IDEA).  In particular the individual was concerned about students with high cognition who are also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Asperger’s Syndrome, or specific learning disabilities.  OSEP responded by informing the individual that although the IDEA does not specifically address so-called “gifted” students, it is OSEP’s position that students with high cognition who have one of the specific impairments enumerated in the IDEA should qualify for IDEA services if they require special education and related services because of their disability.  For example a “gifted” student diagnosed with ADHD might qualify as a student with an “Other Health Impairment,” and a “gifted” student with Asperger’s Syndrome might qualify as a student with a disability under the category of autism.

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After-school ABA program not essential for autistic student to receive FAPE

Friday, January 21st, 2011

C.G. v. New York City Department of Education, 55 IDELR 157 (S.D.N.Y.  2010):  The parents of a student with autism failed to prove that the school district’s removal of 15 hours of after-school, 1:1, Applied Behavioral Analysis (ABA) services denied the student a free appropriate public education (FAPE).  The evidence established that although the student benefited from the ABA program, the program was not essential for the student to make progress under the school district’s IEP.  However, the court also affirmed the decision of the Impartial Hearing Officer (IHO) and State Review Officer (SRO) that the school district was not entitled to reimbursement from the parents for the expense of providing the student with the ABA services during the pendency of the litigation.

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Parents awarded reimbursement for unilateral placement after school district merely recycled student’s IEP from prior year

Thursday, January 13th, 2011

E.S. v. Katonah-Lewisboro School District, 55 IDELR 130 (S.D.N.Y.  2010):  The parents of a student, diagnosed with schizoaffective disorder, bipolar type and borderline intellectual functioning, sought reimbursement for a unilateral private school placement for the 2006-2007 and 2007-2008 school years.  Although the court affirmed the portion of the decision from the Impartial Hearing Officer (IHO) and State Review Officer (SRO) that the school district offered a student a FAPE during the 2006-2007 school year, the court overturned the portion of the decision that concluded the student was offered a FAPE during the 2007-2008 school year.  The court awarded the parents reimbursement for the 2007-2008 school year.

The court reasoned that the school district failed to take into account the progress the student made toward the goals on his IEP for the 2006-2007 school year and developed an IEP for the 2007-2008 IEP that was substantially the same.  The court stated that it is not legally sufficient to merely recycle an IEP from the prior year.  The court also reasoned that the student’s 2007-2008 IEP recommended the student for placement with students with significantly different needs, and failed to include a multisensory reading program at which the student demonstrated progress during the 2006-2007 school year.

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School district should have suspected student was disabled and sought to evaluate student under Section 504’s child-find requirements

Thursday, January 13th, 2011

Cleburne County (AL) School District, 55 IDELR 110 (OCR 2010):  The Office of Civil Rights (OCR) determined that a school district should have suspected that a student with Crohn’s disease was a student with a disability entitled to services under Section 504.  OCR stated that the school district should have sought to evaluate the student based on the student’s frequent medically excused absences as well as the parent’s request for homebound instruction.  Not only did the school district fail to evaluate the student, but the school district also failed to notify the parent of her due process rights under Section 504.

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IEP Team decisions should not be made by majority vote

Friday, January 7th, 2011

Letter to Richards, 55 IDELR 107 (OSEP  2010):  The Office of Special Education Programs (OSEP) responded to a parent’s inquiry as to whether or not the chairperson of a student’s IEP Team can override the consensus of the rest of the IEP Team.  OSEP informed the parent that although it is the IEP team (which includes the parents) who is responsible for developing, reviewing and revising (if necessary) a student’s IEP, it is not appropriate to make such decisions by majority vote.  The IEP team should work toward a general agreement, but if it is unable to do so, it is the school district which must determine the appropriate services.  Moreover, the school district must provide the parent with prior written notice of the school district’s determination regarding the student’s educational program and of the parent’s right to a due process hearing.

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Parents raised enough evidence for jury to decide whether they were entitled to damages for state education department’s Section 504 violations

Friday, January 7th, 2011

Mark H.  v. Hammamoto, 55 IDELR 31 (9th Cir. 2010):  The Court of Appeals determined that the trial court should not have issued a summary judgment dismissing the claims of the plaintiffs (the parents of two autistic girls) who sought damages for alleged violations of Section 504 of the Rehabilitation Act by the Hawaii Department of Education.  Although states and school districts typically will not be liable for damages for claims under the Individuals with Disabilities Education Act (IDEA) or Section 504, parents can recover damages if the state or school district violated Section 504 intentionally or with deliberate indifference.  In this case the plaintiffs presented evidence that their daughters could not benefit from public education without receiving autism-specific services, the Department provided such services to other students with autism, the Department was aware that the plaintiffs’ daughters required autism-specific services, and the Department failed to provide such services to the plaintiffs’ daughters.  The trial court should have let the jury decide whether the plaintiffs are entitled to damages.

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