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Archive for March, 2011

School districts may not place restrictions on a parent’s right to obtain an independent educational evaluation at school district expense

Tuesday, March 29th, 2011

Anonymous, Letter to, 55 IDELR 106 (OSEP 2010): The U.S. Department of Education, Office of Special Education Programs (OSEP) stated that there is no requirement that a parent notify a school district in writing, or at an IEP meeting, prior to the school district providing the parent with an independent educational evaluation (IEE) at school district expense.  Moreover, a school district may not deny reimbursement based on a parent’s failure to discuss the school district evaluation at an IEP meeting or a parent’s failure to provide a written statement of its disagreement with the school district evaluation.  However, it is reasonable for a school district to require that it be notified prior to the parent obtaining an IEE at school district expense.  Also, if written consent is required for the independent examiner to provide the results of the IEE to the school district, a school district may deny reimbursement based on a parent’s refusal to provide consent for the school district to review and consider the results of the evaluation.

OSEP made it clear that except for federally mandated criteria (that the location of the evaluation and the qualifications of the examiner be the same as the criteria which the school district uses), the school district may not impose conditions or timelines related to obtaining an IEE at public expense.

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Parent not required to agree to school district’s proposals at resolution session

Monday, March 28th, 2011

Irby, Letter to, 55 IDELR 264 (OSEP 2010):  In response to an inquiry, the U.S. Department of Education, Office of Special Education Programs (OSEP) stated that, although a parent is required to participate at a resolution session, there is no requirement in the Individuals with Disabilities Education Act (IDEA) for a parent to agree to a district’s proposals at a resolution session.  A school district cannot achieve dismissal of a due process complaint simply because a parent refuses to agree to anything at the resolution session, and the parent’s attorney instead insists on proceeding to a due process hearing to resolve the matter.  However, if a parent unreasonably avoids resolution of a due process complaint the pursuit of attorney’s fees might be affected and in some circumstances the parent or parent’s attorney might be forced to pay the attorney’s fees for the school district.

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School district not permitted to seek reimbursement from parents of private school payments ordered at administrative level even if a court ultimately rules in favor of the school district by overturning the administrative decision

Monday, March 28th, 2011

Atlanta Independent School System v. S.F., 55 IDELR 97 (N.D. Ga. 2010): The federal district court held that a school district was not entitled to seek reimbursement from the parents of a child with autism for private school funds that the school district was ordered to pay at the administrative level.  The court concluded that the Individuals with Disabilities Education Act (IDEA) and the “stay put” interests it protects prevents school districts from seeking reimbursement from parents who rely on and implement the administrative decision (even though it is later overturned).

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Parents entitled to reimbursement for academic (although not residential) aspect of private placement due to District’s failure to address intelligent student’s severe deficits in written expression

Monday, March 28th, 2011

Klein Independent School District v. Hovem, 55 IDELR 92 (S.D. Tex. 2010):  The Court determined that the IEP of a student diagnosed with a learning disability and mild to moderate attention deficit disorder (ADD) was not reasonably calculated to provide him with “meaningful” educational benefit.  Although the student was an intelligent student who was passing from grade to grade, he had severe deficits in written expression, which the District’s program did not appropriately address.  The Court reasoned that although passing from grade to grade is an important factor in determining whether a child is provided with a free appropriate public education (FAPE), an IEP must be examined in light of a student’s individual disability.  The Court reimbursed the student’s parents for the academic aspect of their unilateral private placement.  However, the Court did not reimburse the parents for the residential aspect of the placement.  Although the evidence in the record demonstrated that the residential aspect of the placement was helpful to the student, the Court determined that it was not essential for the student to obtain meaningful educational benefit.

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Blind students and students with other print disabilities in elementary and secondary schools are eligible to receive NIMAS files

Monday, March 28th, 2011

Questions and Answers on the National Instructional Materials Accessibility Standard (NIMAS), 55 IDELR 80 (OSERS 2010):  The Office of Special Education and Rehabilitative Services (OSERS) recently released a Question and Answer (Q & A) document with information about the adoption of the National Instructional Materials Accessibility Standard (NIMAS) in coordination with the National Instructional Materials Access Center (NIMAC).  NIMAS is a file set established by the Secretary of Education, which includes information typically prepared for publication for students who are blind or have other print disabilities.  The file set includes, but is not limited to, materials in Braille, audio, or digital formats.  State Educational Agencies (SEAs) and Local Educational Agencies (LEAs) may coordinate with the NIMAC to implement NIMAS.  The students required to receive specialized formats from NIMAS-derived files through the NIMAC include only those students who are blind and those students with other print disabilities who are serviced under the IDEA in elementary and secondary schools.  However, SEAs must still ensure that children with disabilities who receive services under Section 504 and who are not eligible to receive accessible materials in accessible formats from NIMAS receive accessible instructional materials in a timely manner from another source.

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Parents denied reimbursement for independent education evaluation for failing to follow proper procedures

Monday, March 28th, 2011

P.L. by Liuzzo v. Charlotte-Mecklenburg Board of Education, 55 IDELR 46 (W.D.N.C. 2010):  The parents of a twelve  year-old, fifth grade student diagnosed with Pediatric Autoimmune Neuropsychiatric Disorder (PANDAS), who previously had been diagnosed with Asperger’s Syndrome, were denied reimbursement for the cost of an independent educational evaluation (IEE).  The parents had the student independently evaluated only eight days after they had sent a letter to the school district requesting the evaluation at school district expense.  The IDEA required the school district to, “without unnecessary delay,” either initiate a due process hearing to show its evaluation was appropriate or provide the parents with their requested evaluation, unless the school district can show that the IEE obtained by the parents did not meet school district criteria.  In the instant matter the school district, in their parent rights handbook, indicated to parents that they should not expect the school district to pay for an IEE unless they receive written approval for the evaluation.  The school district ultimately responded by rejecting the parents’ request for an IEE (which cost $3,250), and provided the parents with a list of approved evaluators and offered to pay for the cost of an IEE up to $800.  The Court determined that the school district responded to the parents “without unnecessary delay,” as required by the IDEA, since they responded within 60 days from the parents’ request, which is within the 60-day North Carolina statute of limitations for the school district to initiate a due process hearing to defend its evaluation.

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California school district did not properly investigate and attempt to remedy instances of disability based bullying and harassment of a student.

Monday, March 28th, 2011

Hemet (CA) Unified School District, 54 IDELR 328 (OCRIX, San Francisco (CA) 2009):  The Office of Civil Rights (OCR) determined that a California school district violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) when the school district did not properly investigate and attempt to remedy instances of disability-based bullying and harassment by students of a student with ADHD.  Although OCR did not hold the school district accountable for the actions of the offending students, the school district is responsible for its own discrimination in failing to respond adequately.  Although the student’s parent did not mention the student’s disability until the fourth of five letters written to the school complaining of the harassment, OCR stated the school district should have inferred from the parent’s first three letters that the parent’s complaint was, at least in part, related to the student’s disability.  Although the school district took some steps to remedy the situation, such as talking to and suspending at least one of the offending students, OCR stated that these measures were not adequate because they did not stop the harassing conduct.  OCR also took issue with the fact that the school district treated the reported problems as an ordinary dispute between students, rather than incidents of potential disability-based bullying and harassment.  Moreover, to the extent the school district claimed that the student’s own conduct played a role in the incidents, OCR stated that the school district should have addressed this through the IEP process, since the student was a student with a disability under the IDEA.  As a result of OCR’s investigation, the school district signed a resolution agreement agreeing to train site administrators concerning harassment of students with disabilities, and how to investigate and respond to such incidents.

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Parents awarded reimbursement for placement of autistic child at private school for children with autism since public school’s IEP and recommended placement were inappropriate

Monday, March 28th, 2011

M.H. and E.K. v. New York City Department of Education, 54 IDELR 221 (S.D.N.Y. 2010):  The district court ruled that the parents of a student with autism were entitled to tuition reimbursement for their unilateral placement of the student at a private school for children with autism.  The Court deferred to the Impartial Hearing Officer’s (IHO’s) conclusion that the program proposed by the public school, which was to utilize different methodologies in addressing the student’s behaviors with an emphasis on TEACCH, was inappropriate.  The IHO concluded that the appropriate methodology for the student was 1:1 discrete trial Applied Behavioral Analysis (ABA).  Although the evidence showed that the student required 1:1 educational support, the student would not have such an intense level of support in the school district’s proposed placement.  Moreover, the Court agreed with the IHO’s conclusion that the unilateral placement was the student’s least restrictive environment since the student required the intensive 1:1 ABA program in order to make progress.  The public school’s proposed placement would not have been appropriate for the student since the student was much more advanced than the other student’s in the public school classroom.

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School district’s failure to assess student in all areas of suspected disability was a denial of FAPE

Friday, March 25th, 2011

Compton Unified School District v. A.F., 54 IDELR 225 (C.D. Cal. 2010):  The district court affirmed the decision of the Administrative Law Judge (ALJ) that as a result of the school district’s failure to timely conduct a Functional Analysis Assessment (FAA) of the student, who was suspected of having ADHD, meant that critical assessment information was not before the IEP team.  As a result of this failure, the IEP team was unable to develop measurable goals, indentify proper services, or recommend a placement that was consistent with the student’s unique needs.  The court stated that “[t]he FAA would have enabled the IEP team to consider strategies to address behavioral problems that impeded [the student’s] learning or that of others.”  The court further concluded that the ALJ did not err by construing the due process complaint liberally by allowing the parents to address the issue of a denial of FAPE in the 2008-2009 school year although such allegation was not explicitly alleged in the due process complaint.

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Students who move out of state or turn age 3 remain eligible for compensatory education services under Part C of the IDEA.

Friday, March 25th, 2011

Letter to Whipple, 54 IDELR 262 (OSEP 2009):  The U.S. Department of Education, Office of Special Education Programs (OSEP) has stated that although in general only children residing within the state from birth to age two are eligible for Early Intervention services under Part C of the IDEA, states may be required to provide compensatory education services to children who have turned age three or who no longer reside within the state.  OSEP stated that if a written decision in response to a state complaint orders an Individual Family Services Plan (IFSP) Team to reconvene to determine the appropriateness of compensatory education services, those services must be provided if the IFSP deems them appropriate even if the child is otherwise no longer eligible for Early Intervention services.  If the child leaves the state before the IFSP Team can convene a meeting, the IFSP Team must make reasonable efforts to contact the child’s parents to see if they wish to participate in a meeting with the IFSP Team.

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