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The GAP Attorneys Blog

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

Archive for May, 2011

School district’s dismal response to bullying of a disabled student may have deprived the student of an appropriate education

Monday, May 16th, 2011

T.K. v. New York City Department of Education, 111 LRP 30408 (E.D.N.Y. 2011): Where the parents of a 12-year-old girl with a specific learning disability (SLD) were seeking tuition reimbursement after unilaterally placing her in a private school, the United States District Court for the Eastern District of New York refused the request from the school district to dismiss a claim that bullying of the student by her classmates (and the school district’s dismal response to the allegations of bullying) deprived the student of a free appropriate public education (FAPE).  At a due process hearing before an impartial hearing officer (IHO), the parents presented evidence of daily harassment and bullying of the student by her peers, as well as the school district’s failure to adequately respond to the bullying allegations.  The court stated that the IHO and state review officer (SRO) applied the wrong legal standard when they dismissed the parents’ claim.

The court stated that bullying may affect a disabled student’s opportunity to obtain an appropriate education.  Therefore, when responding to bullying allegations a school district must take prompt and appropriate action, which includes conducting an investigation to determine if the bullying occurred, and if so, the school district must take appropriate steps to prevent it from reoccurring in the future.  The court further stated that in order for the parents to be successful “[i]t is not necessary [for them] to show that [the] bullying prevented all opportunity for an appropriate education, but only that [the bullying] is likely to affect the opportunity of the student for an appropriate education” (emphasis added).  A student is denied a FAPE “[w]here bullying reaches a level where a student is substantially restricted in learning opportunities.”  Notably, the court stated that it is not necessary for the bullying to be related to the student’s disability.

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School district ran afoul with its obligation under Section 504 and the ADA when it failed to evaluate student diagnosed with diabetes

Monday, May 16th, 2011

Isle of Wight County (VA) Public Schools, 56 IDELR 111 (OCR. 2010): The Office of Civil Rights (OCR) determined that the school district violated Section 504 of the Rehabilitation Act the Americans with Disabilities Act (ADA) when it failed to evaluate a student with Type 1 diabetes for potential eligibility.  The school district had erroneously claimed it had no obligation to evaluate student due to the fact that the student’s family and/or medical caregivers never requested an evaluation.  As OCR pointed out, it is the responsibility of a school district (not a parent) to identify and evaluate any student who is believed to be a student with a disability.  Moreover, OCR stated that the school district should have conducted a manifestation meeting in order to determine whether or not a behavior resulting in a suspension and recommendation for expulsion (a threat of violence upon a teacher) was a manifestation of the student’s disability.  Although the student did not have a 504 Plan at the time of the behavior, the school district had reason to believe that he was disabled.  There was evidence that the student’s blood sugar was high at the time of the incident, and the school district never considered whether this contributed to the student’s behavior.

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Omission of counseling services from student’s IEP was harmless error that did not deny student FAPE

Monday, May 16th, 2011

M.H. v. New York City Department of Education, 56 IDELR 69 (S.D.N.Y. 2011): Agreeing with the decision of the state review officer (SRO), a federal district court from New York determined that the omission of the duration and frequency of counseling services in the Related Services section of the IEP of a student with anxiety and emotional issues did not deny the student a free appropriate education (FAPE).  Such omission was “harmless error” since counseling was discussed elsewhere in the IEP, the frequency and duration of counseling services were in the IEP meeting minutes, and the service was actually provided to the student.

The Court also rejected the parents’ argument that the school district did not timely arrange for the appropriate special education program and services to be provided to the student within 60 days of the receipt of parental consent to evaluate the student, consistent with New York state law.  Although the parents provided the school district with a letter on February 27, 2009 requesting that a FAPE be provided to the student, the school district did not receive the parents’ consent to evaluate until April 3, 2009.  Since a request for services is not the same as a consent to evaluate, the May 29, 2009 IEP meeting was timely.

Moreover, the Court concluded that the school district did not violate the law when it decided to rely on evaluations independently obtained by the parents, instead of conducting its own evaluations.

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Parent permitted to use Section 1983 to enforce hearing officer’s order

Monday, May 16th, 2011

Dominique L. v. Board of Education of the City of Chicago, 56 IDELR 65 (N.D. Ill. 2011): The Court determined that the Individuals with Disabilities Education Act (IDEA) provided the parent of a student with Attention Deficit Hyperactivity Disorder (ADHD) with no mechanism to seek court enforcement of the favorable decision of an impartial hearing officer (IHO), since only a party “aggrieved by the findings and decision” of a hearing officer could seek judicial review of that decision.  However, the Court was persuaded by the decisions of many circuit courts of appeals and ruled that the parent may use Section 1983 of the Civil Rights Act to enforce the IHO’s decision.

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Home-schooled student not entitled to FAPE and parents are not entitled to reimbursement for cost of home-based ABA program

Monday, May 16th, 2011

In re Student with a Disability, 56 IDELR 59 (SEA NY 2010): The state review officer (SRO) (rejecting the decision by an impartial hearing officer (IHO)) ruled that a home schooled student with autism was considered to be a parentally placed private school student, not entitled to a FAPE.  Therefore, the student was only entitled to equitable services under an Individual Education Services Plan (IESP), and the student’s parents were not entitled to reimbursement for the cost of a home-based Applied Behavioral Analysis (ABA) program.  The SRO also noted that the parents were not entitled to reimbursement, in part, because they did not put the school district on proper notice, which includes notifying the school district that they intend to seek reimbursement from the school district for the cost of the privately secured services.

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When peer-reviewed research indicates that a certain frequency and duration of Early Intervention service is essential, child’s IFSP must so state

Wednesday, May 11th, 2011

Letter to Kane, 55 IDELR 203 (OSEP  2010): Responding to an inquiry from an early intervention service provider, the United States Department of Education, Office of Special Education Programs (OSEP) stated that when peer-reviewed research provides for a certain frequency and duration of an early intervention service being an integral part of the services effectiveness, the child’s Individual Family Services Plan (IFSP) must so state.  This is based on the requirement in Part C of the Individuals with Disabilities Education Act (IDEA) for a child’s IFSP to include “a statement of specific early intervention services based on peer-reviewed research, to the extent appropriate, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering services.”

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Parent successfully argued that residential placement was appropriate when student’s aggressive behaviors were not limited to the home setting

Wednesday, May 11th, 2011

Linda E. v. Bristol Warren Regional School District, 55 IDELR 218 (D.R.I. 2010): The parent of a student diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and major depressive disorder successfully argued that the school district denied the student a free appropriate public education (FAPE) by failing to recommend her for placement in a residential school.  The Court rejected the school district’s argument that the student’s aggressive behaviors were “segregable from the learning process.”  Rather, the evidence demonstrated that the student’s troubling conduct was not limited to the home environment.  The Court was persuaded by the testimony of the student’s psychiatrists who had testified that the student needed a residential placement in order to make reasonable educational progress.

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School district violated child-find obligation by failing to evaluate student in all areas of his suspected disability

Wednesday, May 11th, 2011

School Board of the City of Norfolk v. Brown, 56 IDELR 18 (E.D. Va. 2010): Although a school district had previously evaluated and classified a student with cerebral palsy and seizure disorder as a student with a disability under the category of “other health impairment,” the court affirmed the decision of an impartial hearing officer who had concluded that the school district had violated its child-find obligations under the Individuals with Disabilities Education Act (IDEA) by failing to evaluate the student in all areas of his suspected disability.  The school district should have also provided the student with a functional behavioral analysis (FBA) and behavior intervention plan (BIP) due to the evidence of the student’s history of engaging in behaviors that impeded the student’s learning or that of others.

The court also affirmed the hearing officer’s conclusion that the school district violated the IDEA by conducting a procedurally flawed Manifestation Determination Review (MDR) following a behavioral incident that led to a suspension.  In particular, the MDR team failed to consider a psychiatric report that was generated as a direct consequence of the behavioral incident and the MDR team failed to afford the parents an adequate opportunity to participate at the meeting.

Moreover, the court agreed with the hearing officer that the school district procedurally violated the IDEA when it placed the student in an alternative setting during the student’s suspension.  The decision to place the student in the alternative setting was made by the school board, but should have been made by student’s IEP team.  Moreover, the placement substantively violated the IDEA because it was not the least restrictive environment (LRE) in which the student could receive a free appropriate public education (FAPE).

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School district violated Section 504 and ADA after refusing to evaluate a student who (despite good grades) should have been suspected of having a disability

Monday, May 9th, 2011

Miller County (GA) School District, 56 IDELR 53 (OCR 2010): The Office of Civil Rights (OCR) determined that a school district violated Section 504 of the Rehabilitation Act and Title II of the American with Disabilities Act (ADA) after it refused to evaluate a student, diagnosed with Tourette syndrome and obsessive compulsive disorder (who was achieving good grades).  OCR stated that a student’s good grades, may not, by itself, be a sufficient indication of whether or not a student is substantially limited as to the major life activity of learning.  A school district should also consider a student’s ability to interact with others, a student’s ability to control his or her behavior, a student’s school attendance, and a student’s ability to participate in the education program.

OCR concluded that the parent’s verbal request for the student to be evaluated put the school district on notice that the student was a person believed to need special education and related services.  Since eligibility decisions are to be made by a group of persons knowledgeable about the student, the special education coordinator should not have unilaterally denied the parent’s request for an evaluation.  The school district also failed to provide the parent with her procedural due process rights.

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RTI does not justify delay or denial of an evaluation of a student suspected of being disabled

Monday, May 9th, 2011

Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011): The United States Department of Education, Office of Special Education Programs (OSEP) ruled that it is not proper for a school district to rely on its use of Response to Intervention (RTI) strategies as an excuse to deny or delay an evaluation of a student suspected of being disabled under the Individuals with Disabilities Education Act (IDEA).

After a parent requests an initial evaluation, and the school district agrees that the student might have a disability, it must evaluate the student within 60 days of obtaining parental consent (or within the timeframe established by the state).  However, if the school district does not agree that the student might be disabled and refuses to evaluate the student, the school district must provide written notice to the parent of the reason it is refusing to conduct an initial evaluation, and its reason cannot be that it is waiting for the student’s response to RTI strategies.

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