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

Archive for September, 2011

District’s untimely evaluation entitles parents to reimbursement, despite student’s ultimate ineligibility for special education services.

Friday, September 30th, 2011

P.P. v. Anchorage School District, S-13624/13633 (Alaska Supreme Court 2011):  The Supreme Court of the State of Alaska determined that parents were entitled to reimbursement for a private evaluation obtained after the school district failed to respond to their request for an evaluation, notwithstanding that the student was ultimately determined ineligible for special education services.  Although the student was found to have a specific learning disability, it was determined that he did not require special education and related services.

The parents initially requested an evaluation in May of 2007, but the school district responded that it would be unable to conduct the evaluation before the end of the school year.  The parents, by written referral, again requested an evaluation in August of 2007, before the student started second grade.  By late October, the school district had still not initiated its evaluation, nor provided the parents notice of their procedural safeguards.  As a result, the parents obtained a private evaluation at their own expense and filed a due process complaint.  Throughout this time, the parents had privately obtained tutoring for their son.

The school district ultimately completed its evaluation in January of 2008, and the IEP team determined the student ineligible for services under the IDEA.  The school district relied heavily on the evaluation obtained by the parents in making its determination.  The hearing officer, trial court, and state supreme court all agreed that, due to the district’s failure to evaluate the student in a timely manner the parents were entitled to reimbursement for the evaluation they obtained.  However, since the student was deemed ineligible for services under the IDEA, reimbursement for the private tutoring was ultimately denied.

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Parents need not provide prior notice to be reimbursed for privately obtained related services.

Monday, September 26th, 2011

A.G. v. District of Columbia, 57 IDELR 9 (D.D.C. 2011):  A U.S. District Court determined that the federal IDEA regulations do not require parents, who are privately paying for related services, to provide notice to the school district of their intention to seek reimbursement for services that the school district should have provided under the auspices of an IEP.

The student, who was classified as having an emotional disability, was discharged from a therapeutic school and, as part of that discharge, the school recommended various counseling services.  The school district failed to convene an IEP team meeting for nearly a year following the student’s discharge, and the parents privately paid for the recommended services during that time.  The parents filed a due process complaint, seeking reimbursement for such services.

The impartial hearing officer held (and the Court affirmed) that although the IDEA regulations require parents to provide at least ten days’ written notice of their intention to seek reimbursement for a private placement, no regulation requires a similar notice when parents seek reimbursement for related services they obtain to supplement what the school district should have provided all along.

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School district must reimburse parents for educationally necessary out-of-state residential placement.

Friday, September 23rd, 2011

Jefferson County School District R-1 v. Elizabeth E., 57 IDELR 13 (D. Colo. 2011):  A U.S. District Court held that the parents of a student with emotional difficulties were entitled to reimbursement for the student’s placement at a private, therapeutic program out-of-state.

The student, who was diagnosed with oppositional defiant disorder, posttraumatic stress disorder, reactive attachment disorder, and bipolar disorder, had previously attended a private school for students with behavioral problems.  However, her emotional disabilities required a prolonged hospitalization, after which her parents placed her at a therapeutic program incorporating both academics and psychotherapy.

While the student was hospitalized, her home school district disenrolled her from her previous program and ultimately took the position that it had no obligation to provide special education services, nor any obligation to even evaluate her need for such services, while she was out-of-state.  The hearing officer, administrative law judge, and District Court all agreed that the school district did, in fact, retain the obligation to evaluate the student and provide special education services, and its failure to do so denied the student a FAPE.  Additionally, the psychotherapy component of the student’s private placement was necessary in order for her to make academic progress.  All told, the student’s residential placement was appropriate and her parents were entitled to reimbursement, except for those services provided by a licensed physician (which thereby do not qualify as related services).

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Student’s academic and behavioral problems were a result of social maladjustment, not an emotional disturbance

Tuesday, September 20th, 2011

W.G. v. New York City Department of Education, 56 IDELR 260 (S.D.N.Y. 2011): The parents of a student with conduct and personality disorders – including Oppositional Defiance Disorder – were denied reimbursement for a unilateral private school placement after the court affirmed the decision of the State Review Officer (SRO) concluding that the student was not eligible for services under the Individuals with Disabilities Education Act (IDEA).  The court found that the student’s academic and behavioral problems were a result of a social maladjustment, which more specifically for this student included narcissistic personality traits, conduct and personality disorders, and substance abuse.  The court noted that “social maladjustment” is specifically excluded from the definition of “emotional disturbance,” which is one of the thirteen disability categories defined in the IDEA and the only disability category for which the parents argued the student met the criteria.

NOTE: Another federal district court in New York arrived at a similar conclusion in a similar case (on almost the same date).  See P.C. v. Oceanside Union Free School District.

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Student’s academic and behavioral issues were a result of drug abuse, not a disability

Friday, September 16th, 2011

P.C. v. Oceanside Union Free School District, 56 IDELR 252 (E.D.N.Y. 2011): Affirming decisions of an impartial hearing officer (IHO) and the state review officer (SRO), the court determined that the student did not qualify as a student with an emotional disturbance under the Individuals with Disabilities Education Act (IDEA), and, therefore, his parents were not entitled to reimbursement for their unilateral private school placement.  The court concluded that the student’s poor academic performance and problem behaviors coincided with his illegal drug use and did not stem from a disability.  The evidence demonstrated that the student had an academic ability in the high average range and that during a time period in which he abstained from drug use, he showed pronounced improvement in his academic performance.  In any event, even if the student were disabled, the private school program was designed to resolve the student’s substance abuse issues and was not designed to treat any type of disability, and would not have been considered appropriate for purposes of reimbursement under the IDEA.

NOTE: Another federal district court in New York arrived at a similar conclusion in a similar case (on almost the same date).  See W.G. v. New York City Department of Education.

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Parent’s objection to IEP placement does not absolve Education Department from ensuring implementation of IEP goals at student’s private school

Tuesday, September 13th, 2011

B.T. v. Department of Education, State of Hawaii, 56 IDELR 218 (D. Hawaii 2011): Reversing the decision of an impartial hearing officer (IHO), the court determined that the Education Department (ED) erred in failing to allow the private school of a student with severe autism from implementing the student’s IEP goals.  ED had argued that since the parent formally objected to the proposed change in placement in the student’s IEP, it was not required to implement any aspect of the IEP.   However, the court concluded that since the parent only objected to the placement and not the IEP goals, ED should have provided the IEP to the private school for its implementation.

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State of New York passes anti-bullying law

Friday, September 9th, 2011

Dignity for All Students Act:  The New York State legislature passed the “Dignity for All Students Act,” which aims to establish an environment free of discrimination and harassment in New York State schools.  The Act (effective as of July 1, 2012) applies to harassment and discrimination based on a student’s disability, race, color, weight, national origin, ethnic group, religion, religious practice, gender, and sexual orientation.   It instructs school districts to develop policies that create an environment free of discrimination and harassment, to create in-school training programs designed to raise awareness and sensitivity of school employees to potential instances of discrimination and harassment, and to enable school employees to prevent such acts of discrimination and harassment.  Moreover, the Act requires school districts to create guidelines to the development of nondiscriminatory instructional and counseling methods, as well as ensuring that at least one staff member is trained to handle human relations in all of those areas designated for protection against discrimination and harassment.  In addition, the curriculum in all grades (K – 12) must include a course on civility, citizenship and character education.

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Procedural violations, which did not deny FAPE, and parents’ lack of cooperation prevents them from obtaining reimbursement for unilateral private school placement

Friday, September 2nd, 2011

Lazerson v. Capistrano Unified School District, 56 IDELR 213 (C.D. Cal. 2011): The court affirmed a hearing officer’s decision denying tuition reimbursement for the unilateral private school placement of an emotionally disturbed student, struggling academically, but not previously educationally classified.  Although the school district procedurally violated the Individuals with Disabilities Education Act (IDEA) by failing to provide the parents with timely notice of procedural safeguards and a formal assessment plan, as required by California law, it was the parents’ abrupt removal of the student to an out-of-state private school that prevented the school district from evaluating the student and providing her with services.  The court stated that even if the school district’s procedural violations had amounted to a denial of a free appropriate public education (FAPE), equitable considerations did not favor reimbursement to the parents since they only gave the school district one day’s notice of their intention to place the student at the private school.

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Student’s ability to perform tasks without her prosthetic arm absolved school district from providing it as an assistive technology device

Friday, September 2nd, 2011

J.C. v. New Fairfield Board of Education, 56 IDELR 207 (D. Conn. 2011): Affirming the hearing officer’s decision, the court determined that the school district was not required to provide the student, who was born with a congenital condition whereby she had no left forearm, wrist or hand, with a prosthetic arm as an assistive technology device.  The court concluded that the prosthetic constituted a medical device, and thus excluded from the definition of “assistive technology.”  In any event, the evidence demonstrated that the student could perform fundamental tasks with essentially the same effectiveness with or without the prosthetic arm.  Consequently, regardless of whether the prosthetic arm was excluded from the definition of “assistive technology,” the device was not required in order to provide the student with a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act.

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School psychologist’s narrow evaluation emphasizing academics denied student FAPE.

Thursday, September 1st, 2011

G.“J.”D. v. Wisshickon School District, 56 IDELR 294 (E.D. Pa. 2011):  A U.S. District Court determined that a school district denied a student a free appropriate public education because the school psychologist’s evaluation failed to give sufficient weight to the student’s behavioral issues, which were interfering with the student’s learning.

The school psychologist evaluated the student, who had a history of aggressive behaviors, a sensory/processing disorder, and ADHD, and determined that the student’s superior IQ and strong academic progress precluded him from special education services.  However, the student exhibited aggressive and problematic behaviors throughout the school year, and such behaviors escalated while he was undergoing the evaluation process.  According to the student’s teacher, his behavioral issues were significant and interfered with his learning, notwithstanding that he continued to progress academically.

The student’s parent filed a due process complaint, and the hearing officer determined the district’s evaluation inappropriate since it focused on the student’s superior IQ and academic progress to the exclusion of his behavior problems.  The hearing officer also determined the student educationally disabled, entitled to a FAPE, and entitled to compensatory education for the period in which the school district should have found him eligible.  The Court upheld the hearing officer’s determination, noting the school district “had an obligation to look beyond” the student’s cognitive potential or academic progress and address his behavioral issues.

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