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

Archive for April, 2011

If the IEP team cannot reach consensus, the school district must decide the appropriate services for the student.

Saturday, April 30th, 2011

Letter to Richards, 55 IDELR 107 (OSEP 2010):  The Office of Special Education Programs, in response to a question regarding who has authority to make decisions if the IEP team cannot reach consensus, states that the school district ultimately has the responsibility to determine the appropriate services for the student.  OSEP also noted that it is not appropriate to make IEP decisions based on a majority vote.

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Student’s temporary placement in wrong class did not result in a loss of educational benefit to warrant an award of compensatory education.

Friday, April 29th, 2011

In re Student With a Disability, 55 IDELR 25 (NY SRO 2010):  The New York State Education Department’s State Review Officer upheld a decision by an impartial hearing officer (IHO) that compensatory education was not warranted in light of a school district’s failure to place a student with a hearing impairment in the proper class.

According to records in the student’s file, the student was supposed to be placed in a collaborative team teaching (CTT) class for the 2009-10 school year.  However, at the IEP team meeting that created the student 2009-10 IEP, the IEP team recommended the student attend a 15:1 self-contained class.  As a result, the student was placed in a self-contained class from September of 2009 until November of 2009.  Once the parent complained, the student was moved to the appropriate class.

The IHO found, and the SRO agreed, that this brief placement in the wrong classroom setting did not result in a loss of any educational benefit to the student.  In addition to the student’s hearing impairment, she also had “inconsistent attendance” with a high number of absences.  Any loss of educational benefit during the time the student was incorrectly placed in the self-contained class stemmed from her inconsistent attendance, and not the wrong classroom.  As a result, the IHO and SRO both found that the student was incorrectly placed in the self-contained class, but that, because she suffered no loss of educational benefit, she was not entitled to any compensatory education.

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School district violates least restrictive environment requirement when it fails to fully consider an integrated setting for a student with an autism spectrum disorder.

Thursday, April 28th, 2011

N.B. v. Tuxedo Union Free School District, 55 IDELR 228 (S.D.N.Y. 2010):  A U.S. District Court overturned the New York State Review Officer in relation to a child with an autism spectrum disorder who the school district sought to place in a self-contained out-of-district program.  The student’s parents argued that the student needed to be with her non-disabled peers, which required placement in an integrated class.

The student, while in preschool, attended a program that was essentially integrated since the preschool chosen by the school district ultimately included four non-disabled children in its program.  However, the student’s parents removed her from that program due to the school district’s failure to provide the 1:1 aide the student needed.  The parents placed the student in a private, integrated preschool program, paid for a 1:1 aide, and the student made significant progress.

The school district recommended a self-contained out-of-district BOCES program following preschool, where the student would have little interaction with her non-disabled peers.  The parents argued that the student required interaction with non-disabled peers, since she modeled the behavior she observed and it was crucial to her development.  Several experts supported the parents.  The district relied on the student’s standardized testing to argue she required the self-contained class to reduce distractions.  The recommendation included “boilerplate” and “conclusory” language about rejecting an integrated class.

The Court found that the school district did not properly review the student’s ability to participate in an integrated class with supports (here, a 1:1 aide).  As a result, it violated the least restrictive environment requirement and its proposed IEP was inappropriate.  Since the private placement chosen by the parents was appropriate, they were entitled to reimbursement (although reimbursement was to be reduced in part due to the parents’ failure to timely notify the district of their intention to remove the student and place her privately).

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School district did not predetermine student’s program just because a district representative indicated she was concerned about the parties’ ability to agree on a placement.

Wednesday, April 27th, 2011

Ka.D. v. Solana Beach School District, 54 IDELR 310 (S.D. Cal. 2010):  A U.S. District Court held that a school district did not predetermine the placement of a student with autism when the district’s special education director indicated to the parents that she anticipated that the parties would not agree on the IEP.

The parents argued that, because the special education director did not expect to agree on an IEP, she was dismissive of any proposal that allowed the student to continue in her current program instead of being placed in a district preschool.  However, after reviewing the record, the Court found that “the student’s mother was a welcomed and active participant in the IEP discussions.”  Therefore, the parents were allowed meaningful participation and the student’s program was not predetermined.

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School district predetermined student’s program.

Tuesday, April 26th, 2011

H.B. v. Gloucester Township School District, 55 IDELR 224 (D.N.J. 2010):  A U.S. District Court held that a school district predetermined the placement of a student with autism.  The school district failed to provide the parents with meaningful participation in the development of the student’s IEP, and therefore violated the IDEA.

The school district concluded, in anticipation of the IEP team meetings for the student, that the appropriate program was in the district’s full-time autism program, with limited interaction with non-disabled peers.  Consequently, the IEP team failed to address (both at the IEP team meeting and afterward) the student’s parents’ repeated requests to discuss alternative programs.  The district’s representative indicated an integrated class was “removed from consideration” because it was already determined inappropriate.  Alternative programs were similarly removed from consideration as presumptively inappropriate.  As a result, the school district violated the IDEA because the IEPs were predetermined.

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Parent’s presentation of issues relating to student’s behavior in prior hearing precludes her from relitigating related issues in second hearing.

Monday, April 25th, 2011

T.G. v. Baldwin Park Unified School District, 55 IDELR 2 (C.D. Cal. 2010):  Under doctrine of collateral estoppel, a parent cannot litigate an issue in a second hearing which could have been raised in a prior hearing, by raising a different, but related issue in the second hearing.

A U.S. District Court upheld an administrative law judge’s dismissal of a second due process complaint by a parent seeking to have her son classified as having an emotional disability.  The student was diagnosed with autism and mental retardation, and the parent had unsuccessfully litigated a first hearing which included and addressed numerous behavioral issues, including the student’s aggressive behaviors, but did not specifically address the possibility of the student being classified with an emotional disability.

The parent filed a second due process complaint, this time attempting to address the student’s classification and have it changed to emotional disability.  Since the prospect of changing the student’s classification related to his behavioral issues, which were addressed in the previous hearing, the parent was precluded from raising essentially the same issue in a second hearing and her complaint was dismissed.

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School districts may violate civil rights statutes if they do not adequately respond to bullying incidents that relate to a student’s disability.

Thursday, April 21st, 2011

Dear Colleague Letter, 55 IDELR 174 (OCR 2010):  The Office of Civil Rights reminded various agencies that bullying incidents within schools may amount to harassment that violates several anti-discrimination statues (including Section 504).  Specifically, peer harassment may violate Section 504 if such harassment is based on the victim’s disability, or perceived disability, and “is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.”

To avoid liability, schools should have well-publicized policies against harassment, and also have procedures for reporting complaints and resolving them in such a way that the school will be aware of the situation so the school can take steps to ensure that harassment does not recur.

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Student’s escalating behavioral issues triggered need for manifestation determination, despite fact that she was not classified with a disability and received various interventions.

Wednesday, April 13th, 2011

Jackson v. Northwest Local School District, 55 IDELR 71, adopted at 55 IDELR 104 (S.D. Ohio 2010):  A school district has a duty to perform a manifestation determination for a student with escalating behavioral issues, who was not yet classified as a student with a disability under IDEA or 504, but who should have been suspected of having a disability.

In this case, the student received various behavior interventions as part of a response to intervention (RTI) process.  Despite these interventions, the student’s behavioral issues continued to escalate, resulting in the Intervention Assessment Team meeting and recommending that she seek help from an outside mental health agency.  Nevertheless, the student was not evaluated by an IEP team and no recommendation was made regarding her eligibility for an IEP.  The student was subsequently expelled for threatening behavior, and no manifestation determination was conducted.

The Court determined that the school district was deemed to have knowledge of the student’s disability at the time she was expelled and referred to the outside mental health agency.  As a result, the school district should have conducted a manifestation determination review to see if the student’s behavior was a manifestation of her disability.  Therefore, the Court awarded the student compensatory education services for the period of her expulsion, and that such disciplinary action be expunged from her student records.

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Placement in mainstream, general education classroom provided oral-deaf student with cochlear implants with FAPE in LRE

Tuesday, April 12th, 2011

J.W. v. Fresno Unified School District, 55 IDELR 153 (S.D.N.Y. 2010): The Court of Appeals adopted in its entirety the district court’s decision that an oral-deaf child with cochlear implants was provided with a FAPE when he was placed in a mainstream, general education classroom in fourth, fifth, and sixth grades. Although the school district was unsuccessful in preventing the parents from challenging the student’s placement after they had initially requested and agreed to the mainstream placement, the school district successfully argued that the general education classroom provided the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE). The placement provided the student with significant academic and nonacademic benefit and allowed the student to communicate with typically hearing peers.

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Teacher to student ratio helps dismiss a claim for negligent supervision.

Monday, April 11th, 2011

Guzman v. City of New York, 55 IDELR 169 (N.Y. App. Div. 2010):  The New York Supreme Court Appellate Division, First Department, unanimously upheld a Bronx County Supreme Court decision dismissing the plaintiff’s personal injury claim against the school district.

The Appellate Division found that the school district had no knowledge or notice that the student who caused the plaintiff’s injuries would engage in such behavior (namely, biting the plaintiff’s finger).  Since one teacher and four paraprofessionals were assigned to the classroom, “no amount of supervision could have prevented this sudden incident,” and therefore dismissal of plaintiff’s claim, which included a claim of negligent supervision, was correct.

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