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

Archive for November, 2011

Student’s goals were sufficiently measurable where they included an element of teacher observation and expressed achievement in percentages.

Tuesday, November 29th, 2011

F.B. v. Spartanburg County School District, 57 IDELR 128 (D.S.C. 2011): A U.S. District Court found that a student’s goals were sufficiently measurable where the goals included an element of teacher observation, and identified the achievement desired from the services in the student’s IEP in terms of a percentage.

The goal percentages in the student’s IEPs were tied to discrete tasks, such as completing a specific math task, and often referenced a particular grade level at which the student should be working. Although the parents may not have considered the goals to be expressed in the optimal manner, they were sufficiently measurable to provide a reasonable gauge of the student’s progress. Additionally, the student’s grades were generally passing and allowed him to progress from grade to grade. Since the school district provided a FAPE, the parents’ request for reimbursement for the student’s unilateral placement was denied.

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School district may be held liable for student’s suicide if it failed to address bullying.

Friday, November 25th, 2011

Estate of Lance v. Lewisville Independent School District, 57 IDELR 168 (E.D. Tex. 2011): A U.S. District Court allowed a suit to proceed alleging that a school district failed to protect a young student with disabilities who committed suicide. The nine year old student, who was diagnosed with an emotional disturbance, a learning disability, and a speech impairment, was bullied by his peers.

The student was called “gay” by other students due to his speech impairment. His classmates were intimidated to avoid him or find themselves subject to ridicule as well. Due to the repeated bullying, the district convened its IEP Team to discuss the student’s depression and resulting suicidal ideation. The district referred the student for a full psychological assessment, which noted a possible disorder on the autism spectrum. The district recommended counseling four times per six week period and implemented a behavior intervention plan.

The student was disciplined as a result of his responses to the bullying, resulting in his placement in an alternative school. Despite the parent’s insistence that the student’s behavior (which resulted in the discipline) was a response to bullying, the district failed to investigate. The student admitted to having suicidal thoughts, to the counselor at the alternative school, but there was no record of the counselor notifying anyone of such admission. After returning to his regular classroom, the student was again subjected to bullying and sent to in-school suspension. While using the restroom in the nurse’s office during his suspension, the student hung himself.

As a result of the circumstances surrounding the student’s suicide, the Court allowed the case to proceed due to a potential “special relationship” between the school and the student where, due to his disabilities, young age, and the affirmative acts taken by the district, the district may be held liable for a violation of the student’s constitutional rights.

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Parents denied tuition reimbursement where private placement was too restrictive.

Tuesday, November 22nd, 2011

B.D.-S. v. Southold Union Free School District, 57 IDELR 164 (E.D.N.Y. 2011): A U.S. District Court held that parents of a student classified as learning disabled were not entitled to reimbursement for tuition at a unilateral private placement. The private placement was too restrictive (and therefore inappropriate).

The school district conceded that, for the year in dispute, it did not provide the student with a free appropriate public education. Therefore, the only issues before the Court were whether the private placement was appropriate, and whether the equities favored the parents. The student had a language based learning disability, and attended a private residential school out of state.

In the underlying administrative proceedings, both the impartial hearing officer (IHO) and State Review Officer (SRO) found the private placement too restrictive (and therefore inappropriate). Although, the evidence demonstrated that the student made progress at the private placement, both the IHO and SRO determined that the student did not demonstrate any need for a residential setting in which the student was “managed from the moment she wakes up to the moment she goes to bed.” Agreeing that the private placement was too restrictive and, accordingly, inappropriate, the Court denied the parents tuition reimbursement.

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District’s requirement that parent agree to responsibility for damage to assistive technology used at home did not deny FAPE.

Friday, November 18th, 2011

R.P. v. Alamo Heights Independent School District, 57 IDELR 64 (W.D. Tex. 2011): A U.S. District Court determined that a school district did not deny a student with mental retardation and a speech impairment a free appropriate public education by requiring the student’s parent to agree to bear financial responsibility for any damage to the student’s assistive technology device that occurred at home.

The student used a Dynavox to assist with her communication, and her father requested that she be allowed to take it home with her. The district agreed, but only after requiring her father to sign an agreement that he would be responsible if it were damaged beyond normal wear and tear. The Court determined that since the device was provided, the student was not denied FAPE and rejected the parent’s argument that the district must provide the device without any limitations.

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Change in disability classification does not require change in services if the student’s needs remain substantially the same.

Tuesday, November 15th, 2011

Hailey M. v. Matayoshi, 57 IDELR 124 (D. Hawaii 2011): A U.S. District Court held that a subsequent change in a student’s disability classification does not require a corresponding change in the nature of the services provided to the student. The student was initially diagnosed as mentally retarded in 1999, but after private evaluations obtained by the student’s parent, her classification was changed to specific learning disability. Thereafter, the program recommended by the school district was a continuation of the student’s placement in a special education class with extended school year services, despite the parent’s request for a general education classroom.

The Court determined that the district continuously offered IEPs based on the student’s unique educational needs, regardless of her disability classification. Specifically, the student’s special education teacher testified that, notwithstanding the change in disability classification, the student’s educational needs did not change significantly. As a result, the district offered the student a free appropriate public education and the parent thus was not entitled to reimbursement for the services she obtained from private providers to address the student’s specific learning disabilities.

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School district’s failure to provide sufficient level of related services entitles parents to reimbursement.

Friday, November 4th, 2011

S.K. v. New York City Department of Education, 57 IDELR 105 adopted at 57 IDELR 139 (E.D.N.Y. 2011): A U.S. District Court held that the parents of a student with severe autism were entitled to reimbursement for the student’s placement at a private program specially designed for autistic children.

The student, who was diagnosed with autism and speech language delays, received occupational therapy, speech therapy, and ABA therapy as a preschool student with a disability. Each therapy was provided in a 1:1 environment. As she transitioned from preschool to kindergarten, the school district placed her in a 6:1:1 classroom but only offered speech therapy in a group of three students and discontinued ABA therapy altogether. Also, the IEP did not provide for parent counseling. The parents rejected the proposed placement and placed the student in a private program designed for autistic students (which provided 1:1 speech therapy and ABA therapy, plus parent training), and filed a due process complaint.

The impartial hearing officer (IHO) held that the district denied FAPE, and awarded reimbursement. The State Review Officer (SRO) overturned the IHO, and found that, despite the student’s speech language needs (and the state regulation requiring a minimum level of service to autistic students), 1:1 therapy was not necessary to provide FAPE since the student’s needs would be partially met in her language-based classroom. Also, ABA therapy was not required due to the student’s significant progress behaviorally.

The Court overturned the SRO, noting that the student’s therapists indicated that the progress the student had made required the 1:1 therapies (namely, speech and ABA). Since the district failed to provide any evidence that the student could make such meaningful progress without 1:1 therapies (in reliance on the same evaluation reports to create the kindergarten IEP as it did to create the preschool IEP), the Court found a denial of FAPE. Since the parents’ placement was appropriate, and the equities favored the parents, reimbursement was warranted.

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Parents’ request for tuition reimbursement was denied because they couldn’t prove appropriateness of private school

Tuesday, November 1st, 2011

Weaver v. Millbrook Central School District, 57 IDELR 126 (S.D.N.Y. 2011): Notwithstanding the fact that a school district denied a sixth grade student with a learning disability a free appropriate public education (FAPE) and that the student made progress at the private school where he was unilaterally placed by his parents, the parents’ claim for full private school tuition reimbursement was denied. The court indicated that progress alone does not demonstrate that a private placement is appropriate. In this case, the parents failed to prove that the private school provided the student with instruction specifically designed to meet the student’s unique needs. The court also noted that despite the student’s private school placement, the student continued to have significant deficits in reading and math. Citing the United States Court of Appeals for the Second Circuit, the court further reasoned that, except in limited circumstances, parents seeking to prove the appropriateness of a private school placement are subject to the same standard as school districts in demonstrating the appropriateness of its recommended placement.
Although the parents were not able to establish the appropriateness of the private school placement, they were awarded some reimbursement since the placement was the student’s pendency (or “stay-put”) placement. However, the school district’s liability under the pendency claim did not commence until February 28 during the school year at issue (the date on which the parents initiated the due process complaint). The court reasoned that in order for a parent to obtain reimbursement under the pendency standard, a due process hearing must be “pending.” Although the parents provided the school district with a letter in August (prior to the beginning of the school year at issue) objecting to the school district’s proposed placement and informing the school district that they would initiate a due process complaint, their decision to wait until the following February to initiate the complaint was the plaintiff’s own decision.

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