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The GAP Attorneys Blog

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

Archive for July, 2011

School district may have violated Section 504 where the district did not evaluate the student or revise her 504 Plan, despite the fact that she continued to receive poor grades.

Friday, July 29th, 2011

T.H. v. Montgomery County Board of Education, 56 IDELR 268 (M.D. Ala. 2011):  The parent of a student with ADHD and health conditions (including an inability to adequately control her bladder and a mitral valve prolapse) alleged that the district failed to re-evaluate her daughter to determine if the student’s 504 Plan should be revised, including a period of eight years in which the district conducted no new tests or assessments of the student.  Similarly, despite the student’s repeatedly poor academic performance, her 504 Plans were “barely altered” while she attended high school.  However, the school district presented evidence that the student was frequently absent or tardy from school, had a poor attitude and work ethic, and did not take advantage of tutoring opportunities offered by the school district.

Following its previous decision upholding a hearing officer’s determination of ineligibility under the IDEA, a U.S. District Court denied motions for summary judgment made by both parties as to the district’s compliance with Section 504.  Since any decision would require weighing the evidence, the Court denied both motions and set the matter down for trial.

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Alabama Magistrate Judge rules that IDEA does not authorize independent educational evaluations at public expense.

Friday, July 15th, 2011

Phillip and Angie C. v. Jefferson County Board of Education, 56 IDELR 225 (N.D. Ala. 2011):  A federal magistrate judge held that the statutory language of the IDEA does not authorize independent educational evaluations (IEEs) at public expense, despite the longstanding regulation allowing such.  As a result, the judge recommended that parents of an autistic student should not be reimbursed by the school district for an IEE they obtained at their own expense.

Part B regulations for the IDEA allow for IEEs at public expense.  However, the judge reviewed the language of the IDEA statute and noted that, although the statute authorizes IEEs, it does not include any authorization for those IEEs to be obtained at public expense.  The only authority for IEEs at public expense is found in the regulations.  Since the statute includes no such authorization, the magistrate judge determined that the regulation allowing IEEs is void.

Additionally, the magistrate judge decided that parents are not entitled to copies of their child’s educational records.  The statute and regulations only allow parents the right to inspect and review educational records.  Such a right does not inherently include the ability to copy such records, absent some compelling circumstance (such as a parent’s remoteness from the school, making it difficult for the parent to have a reasonable opportunity to inspect and review the records).  Therefore, the magistrate judge recommended that the parents’ request for copies of the student’s records should be denied, since the parents had ample opportunity to inspect and review the student’s file.

It should be noted that the magistrate judge’s recommendations are subject to approval by the District Court Judge.

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School district’s failure to engage in discussion with parents regarding discontinuation of home instruction services resulted in a finding of predetermination.

Thursday, July 14th, 2011

Board of Education of the Hicksville Union Free School District v. Schaefer, 56 IDELR 234 (N.Y. App. Div. 2011):  The Appellate Division of the Supreme Court of the State of New York (and the trial court) agreed with the State Review Officer’s (SRO) finding that the school district denied a student a FAPE by deciding to discontinue various home instruction services without any meaningful input from the parents.

The student, who was classified as multiply disabled due to diagnoses of pervasive development disorder, not otherwise specified, and moderate mental retardation, received various therapies (including speech and occupational therapy) as well as special education instruction in his home, as part of his IEP, due to his inability to make sufficient progress in a school program alone.  At a May 23, 2005, IEP team meeting, the team recommended continuing such home instruction services.  However, subsequent to that IEP team meeting, the parents decided that the recommended school placement was no longer suitable and pursued a different school.

As a result, the IEP team met in August and September of 2005 to revise the student’s IEP to reflect a change in his recommended school placement.  Prior to these meetings, the district decided, without input from the parents, to discontinue the home instruction services.  At the IEP team meetings, the parents and their representatives repeatedly attempted to address this discontinuation.  However, the district did not engage in any substantive discussion on the issue and the IEPs relating to these meetings reflected such a change.  Based on the district’s failure to discuss its determination to discontinue home instruction services, the SRO found that the district had predetermined the student’s placement and denied the student a FAPE (and both courts agreed).

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School district may not delay evaluation of student it has reason to suspect has a disability to conduct RTI process.

Wednesday, July 13th, 2011

Polk County (FL) Public Schools, 56 IDELR 179 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), informed a school district that it violated Section 504 by not providing a student with a timely evaluation upon a parent’s referral.  Specifically, the parent requested a psycho-educational evaluation of her son in September of 2009, and renewed her request in January of 2010 when the school district had failed to conduct such an evaluation.

The school district explained that its procedures provided for documenting and monitoring the results of a system of interventions fashioned after a response to intervention (RTI) model.  Thus, the school district delayed the student’s evaluation as it conducted its RTI process to see what impact, if any, it could have for the student.  However, OCR concluded that the school district had a sufficient basis to believe the student may require special education or related services because of a disability upon his parent’s referral for evaluation in September.  Thus, notwithstanding the school district’s RTI model and attempt at non-special education interventions, it was obligated to conduct an evaluation as of September 2009.  Since no evaluation was conducted until March of 2010, its failure to conduct a timely evaluation violated Section 504.

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6:1:1 class and behavior intervention plan appropriate for student with “severe” autism, exhibiting self-injurious and aggressive behaviors.

Tuesday, July 12th, 2011

N.M. v. New York City Department of Education, 56 IDELR 134 (S.D.N.Y. 2011):  A U.S. District Court deferred to the New York State Review Officer (SRO) who determined that a school district’s offer of a 6:1:1 classroom afforded FAPE to a student with “severe” autism who exhibited self-injurious and aggressive behaviors.  The parent sought tuition reimbursement for one-on-one instruction at a private school for the student, who was non-verbal, extremely socially immature, not toilet trained and dependent on others for all daily living skills.

The impartial hearing officer did not address whether or not the school district offered a FAPE.  Nevertheless, the SRO noted that the school district observed the student in her previous private school and revised her IEP in light of such observation.  The IEP team determined the student required a small class, consisting of no more than six students, one teacher, and one teacher’s aide, and a behavior intervention plan (including a token system).

The Court deferred to the SRO’s decision, noting considerable evidence in the record to support the adequacy of the recommended 6:1:1 class.  The parent sought to limit the analysis of the proposed IEP only to that which was included in the document itself.  However, the Court said it was not error for the SRO to consider testimony from the 6:1:1 classroom teacher regarding the nature of the class, which helped to elaborate on the supports the student would have received in that placement.  As a result, the SRO (and the Court) determined that the school district offered a FAPE.

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Notice of unilateral placement for reimbursement is required only at time of initial removal.

Monday, July 11th, 2011

Letter to Miller, 55 IDELR 293 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs, informed an interested individual that a parent need only provide the school district with notice of a unilateral placement upon the student’s removal from the public school.  The regulatory benchmark is the child’s removal from the public school, and not the child’s enrollment in the unilateral private placement.  Thus, in order to satisfy the notice requirement, the parent need only provide notice upon the child’s initial removal from public school, and is not required to provide such notice for each subsequent school year the child attends at the unilateral placement.

However, compare this opinion with that of a U.S. District Court several months later in J.W. v. Kingston City School District.

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School district violated child find by not evaluating a student for almost three years after a private evaluator identified student as having a learning disability.

Sunday, July 10th, 2011

Long v. District of Columbia, 56 IDELR 122 (D.D.C. 2011):  A U.S. District Court found that a school district had an obligation to evaluate a student as possibly requiring special education or related services upon a 2006 determination by a private evaluator.  In particular, the evaluator determined that the student had a learning disability, and should be further assessed by a speech-language evaluation, an occupational therapy evaluation, a clinical evaluation, and a behavior intervention plan (BIP).  The school district’s IEP team had referred the student to the private evaluator, but took no action based on her evaluation.

Approximately two and a half years after the private evaluator’s evaluation, in March of 2009, the school district conducted another evaluation of the student.  The school district ultimately determined that the student required special education services as a learning disabled student.  However, the school district refused to provide any compensatory education for its failure to classify the student as disabled previously (despite indicating to the parent that it would do so).

The impartial hearing officer ruled in favor of the school district, but the Court overturned that decision.  The Court found that the school district’s child find obligations were triggered in 2006, and that its failure to locate and identify the student as a potential special education candidate at that time denied the student a FAPE.

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MRI brain scan is 94% accurate at identifying autism.

Saturday, July 9th, 2011

Researchers associated with Harvard Medical School and the University of Utah have developed a biologically based test for autism that employs magnetic resonance imaging (MRI) to detect microscopic features of the brain’s wiring.  In their study, the researchers scanned the brains of thirty people with autism, and thirty people without, and their method was able to correctly identify the people with autism with 94% accuracy.

The results indicate that the brain’s circuitry is significantly different for people with autism, particularly for the areas of the brain that are engaged in language and social and emotional functioning.  The researchers hope that, with further study, autism may be diagnosed with a biologically based test instead of the current subjective system.

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Temporary or interim program for a transfer student should include temporary goals and objectives comparable to previous IEP.

Friday, July 8th, 2011

Letter to Finch, 56 IDELR 174 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs (OSEP), informed a school district representative that the interpretation of the Texas state education department (“TEA”) is consistent with federal IDEA regulations.  TEA indicated that, when a student with an IEP transfers from one school district to another, the temporary or interim program provided by the new school district must include comparable services to the student’s IEP from his or her previous school district.  TEA found that such comparable services should include temporary goals and objectives consistent with the goals and objectives of the previous school district.  OSEP determined such a finding to be consistent with the IDEA.

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Department of Justice amends regulations implementing the ADA.

Thursday, July 7th, 2011

The federal Department of Justice adopted amendments to its regulations implementing Title II and Title III of the Americans with Disabilities Act (ADA).  The amendments include a definition of “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability.  This includes individuals with mental disabilities who use service animals trained to perform specific tasks, but any animal used purely for emotional support is not a service animal.

The regulations also establish performance standards for video remote interpreting (VRI), requiring training of users of the technology (which uses video conference technology as an interpreting service) so that a VRI system may be quickly and efficiently established when necessary.

Additionally, the amended regulations establish certain requirements regarding the sale of tickets for accessible seating, including requiring venue operators to accommodate individuals who acquired inaccessible seats on a secondary ticket market but only when the venue has unsold accessible seating for that event.  Similarly, places of lodging are required to allow individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests.  Places of lodging should ensure that accessible guest rooms are removed from reservation systems until all other guest rooms of that type have been rented so that accessible rooms are not inadvertently released to someone other than the person who reserved the room.

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