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Archive for June, 2011

School district’s failure to consider progress reports and evaluation provided to IEP team at end of meeting was a procedural denial of FAPE.

Thursday, June 30th, 2011

Aidan M. v. Department of Education, State of Hawaii, 56 IDELR 9 (D. Hawaii 2011):  A U.S. District Court found that a school district’s failure to consider an evaluation and progress reports from the student’s private school amounted to procedural denial of FAPE, even though the parents did not provide such documentation until the end of the IEP team meeting.

The IEP team met for the student, diagnosed with attention deficit hyperactive disorder (ADHD), in early June, and at the conclusion of that meeting the parents provided documentation from the student’s private school.  The documentation included an evaluation conducted by the private school, as well as progress reports demonstrating the student’s progress during the previous school year.  The IEP team did not review the materials at that meeting, and did not reconvene to review the materials.

The Court noted that “a school district cannot abdicate its affirmative duties under the IDEA, irrespective of parental conduct.”  Although the parents did not provide the documentation they wished to be reviewed by the IEP team until the conclusion of the IEP team meeting, such documentation was still available to the school district prior to the IEP’s implementation and should have been considered by the IEP team prior to the implementation of a new IEP.  The Court understood that procedural violations do not necessarily result in a denial of FAPE, but since the documentation demonstrated the student’s progress during the previous year the Court found that not having the IEP team review the information was “sufficiently grave to warrant” a finding of a denial of FAPE.

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Parents must be allowed to inspect digital recordings of IEP team meetings.

Wednesday, June 29th, 2011

Letter to Cozort, 110 LRP 44375 (FPCO 2010):  The Family Policy Compliance Office determined that FERPA requires that parents and eligible students be allowed to inspect and review all audio and/or video recordings of meetings concerning the student, regardless of the District’s ability to make a copy of the recording, and regardless of whether the parents or eligible student provide the District with a copy of their own record of the meeting.

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Student not entitled to private tutoring as compensatory education.

Tuesday, June 28th, 2011

In re Student with a Disability, 55 IDELR 179 (NY SRO 2010):  The New York State Review Officer (SRO) upheld an impartial hearing officer’s (IHO’s) compensatory education award (after the IHO determined that the school district denied the student a FAPE).  The student had reading delays, and was frequently absent from classes.  The school district had failed to address the student’s absenteeism, and sought to place the student in a 15:1 classroom.

The hearing officer ruled that the student required a higher level of support, and ordered 1:1 reading instruction structured in such a way to allow the student to attend a vocational program.  The student, seeking 1:1 private tutoring for his reading instruction, appealed the IHO’s decision, but the SRO determined the 1:1 instruction ordered by the hearing officer was sufficient.  However, the SRO did modify the hearing officer’s order to ensure that the student received multisensory reading instruction.

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Parent denied reimbursement where unilateral placement was too restrictive, and therefore inappropriate.

Monday, June 27th, 2011

J.G. v. New York City Department of Education, 56 IDELR 68 (S.D.N.Y. 2011):  A U.S. District Court denied a parent of a child with ADHD (classified as other health impaired) reimbursement for a private, residential school located out of state.  The school district had previously paid private tuition for the student, including all or part of the student’s tuition at the out-of-state residential school for at least two years.  However, the school district ultimately declassified the student, resulting in the parent’s unilateral placement.

The school district (untypically) conceded it did not offer the student a FAPE, leaving the Court to analyze the appropriateness of the private placement chosen by the parent.  After reviewing the administrative record, the Court found such private placement to be too restrictive.  The Court stated that the record did not demonstrate that the student required the intense level of service provided at the private school.  The Court, noting that the parent did not demonstrate that the student required a setting limited solely to learning disabled students or a setting with a 6:1 teacher ratio, let alone a residential placement, determined that the parent’s unilateral placement was too restrictive and denied reimbursement.

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Student not disabled under IDEA where, despite medical conditions causing her to miss class time, the student’s poor grades stemmed from a poor academic attitude and unexcused absences.

Sunday, June 26th, 2011

T.H. v. Montgomery County Board of Education, 56 IDELR 73 (M.D. Ala. 2011):  A U.S. District Court determined that a student with ADHD and health conditions (including an inability to adequately control her bladder and a mitral valve prolapse, which caused her to have trouble breathing and an abnormal heartbeat) did not qualify as a student with a disability under the IDEA.  The student had a poor attitude towards school, and she had numerous unexcused absences, in addition to the class time she missed as a result of her health conditions.

The student’s health conditions sometimes required her to leave school to shower and change clothes, resulting in her missing class time.  However, the student missed additional classes without excuse or explanation and demonstrated a poor attitude toward school.  She identified on a personal inventory that she “hates school” and would frequently refuse to participate or complete tests.

As a result of her poor grades, the student’s mother sought help, and ultimately referred the student to the IEP team.  The evaluation conducted by the IEP team indicated that the student did not have a learning disability, and was not other health impaired.  The Court deferred to the hearing officer’s findings, which determined that the student’s medical condition did not adversely affect her educational performance.  Rather, her poor grades resulted from the other (non-medical) factors.

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School personnel violated a student’s right to privacy by using a redacted psychiatric evaluation as a teaching tool for a literature class.

Saturday, June 25th, 2011

S.S. v. Mount Olive Board of Education, 56 IDELR 99 (D.N.J. 2011):  A U.S. District Court ruled for parents of a student with diabetes and anxiety as a result of the use of a redacted version of the student’s psychiatric evaluation by a school social worker and special education teacher as a teaching tool for a high school literature class.  The Court withheld a determination as to what harm, if any, the student suffered as a result of the unauthorized disclosure of his psychiatric evaluation.

A high school special education teacher wished to provide a sample psychiatric evaluation to his literature class as an instructional tool in relation to J.D. Salinger’s “The Catcher in the Rye.”  The teacher requested a sample from the school’s social worker, who provided a psychiatric evaluation of the student, and attempted to redact personally identifiable information.  However, the students in the class were still able to identify the student due to the substantive information in the evaluation.

The parents sued, and the Court dismissed their claims under FERPA, HIPAA, IDEA and state student records laws.  Additionally, the Court dismissed the claims against the school district itself, and against various school personnel not specifically associated with the unauthorized disclosure of the student’s psychiatric evaluation.  However, the Court ruled in favor of the parents against the teacher and social worker under Section 1983, due to their violation of the student’s constitutional right to privacy.  The Court stated “no reasonable juror could find that” the teacher and social worker “did not breach a duty of care owed to” the student.

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School district may deny attendance on a field trip by a disabled student, if the student’s behavior presents a safety concern.

Friday, June 24th, 2011

Lawrence (MA) Public Schools, 56 IDELR 55 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), determined that a school district acted lawfully when it excluded a student with autism from a field trip to an aquarium due to safety concerns resulting from escalating behavior.

The student’s parent alleged that her daughter was excluded due to her disability. However OCR concluded, after its investigation, that the student’s escalating behavior prior to the date of the field trip resulted in safety concerns.  As a result, the student was properly excluded from the field trip, notwithstanding that she had attended a previous field trip to a farm.  OCR concluded that the school district did not discriminate under Section 504, related to the student’s disability, but responded to legitimate safety concerns.

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Out-of-date transportation reimbursement policy deprives parents of free appropriate public education.

Thursday, June 23rd, 2011

Washoe County (NV) School District, 55 IDELR 234 (OCR 2010):  The federal Department of Education, Office for Civil Rights (OCR), informed a school district that it failed to provide educational and related services without cost to the parents of disabled students when it did not fully reimburse parents for costs incurred in transporting their children to and from school.

The school district had a policy of reimbursing for $0.18 per mile for one round trip per school day.  Later in the school year, the policy was amended to $0.50.5 per mile, not to exceed $10 for one round trip per school day.  The parents of six students with disabilities applied for reimbursement pursuant to this policy.  Of those, two had transportation listed as a related service on their IEPs.  OCR determined that each of the six students’ parents were entitled to reimbursement for their transportation, including two round trips to school per day, due to the school district’s obligation to provide related services without costs to the parent.  As a result, the school district violated Section 504 by not providing full reimbursement to the parents.

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School district must ensure that parents understand a proposed action, but need not ensure they understand the precise nature of all the services or activities proposed.

Wednesday, June 22nd, 2011

Letter to Johnson, 56 IDELR 51 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs (OSEP), advised a parent’s attorney that, when a school district seeks parental consent to conduct an evaluation or provide services, the district must ensure that it is “informed consent” and that parents generally understand the proposed action.  Signing a consent form indicating that the parent understands the proposed activity would satisfy the regulations, but the parent does not need to signify that he or she understands the precise nature of all the proposed services or activities that would be included in an IEP.

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Student’s guardian entitled to full reimbursement for unilateral placement even though private school did not meet all of student’s educational needs

Tuesday, June 21st, 2011

C.B. v. Garden Grove Unified School District, 56 IDELR 121 (9th Cir. 2011): The Court of Appeals agreed with the decision of the district court that a hearing officer erroneously awarded the guardian of a student with autism and attention deficit disorder (ADD) only half the tuition cost at a private school placement because the private program did not meet all of the student’s educational needs.  Instead, the Court awarded the guardian full reimbursement.  Although the private placement did not offer a program meeting the student’s math needs, the student made significant growth in many academic areas and in social development.  The Court refused to set a standard that requires a parent to find a private placement that meets all of a student’s needs in order to obtain full reimbursement.

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