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

Archive for December, 2011

Student denied FAPE where IEP failed to address student’s truancy

Thursday, December 29th, 2011

Lexington County School District One v. D.T., 57 IDELR 190 (D.S.C. 2011): The parents of a student diagnosed with Asperger’s Disorder, Disorder of Written Expression, and Learning Disorder were awarded reimbursement for the student’s placement at a private residential school for the 2007-2008 school year. The school district had denied the student a FAPE where the IEP failed to address the student’s truancy from school. The evidence demonstrated that the student’s truancy was related to his disability and the school district failed to provide the student with counseling or with a psychological evaluation to address the causes of the student’s resistance to attend school. The court also concluded that the residential school was appropriate since it was essential for the student to make educational progress.

However, the court denied the parents’ claim for reimbursement at a different private school in subsequent school years where the student’s condition improved significantly and the school district’s IEP offered the student a FAPE. Although the proposed IEPs in the subsequent school years did not include counseling, the school district was willing to provide counseling upon the recommendation from a psychologist or outside agency. However, the parents placed the student in the private school before this evaluation could take place.

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Alabama District Judge rules that the IDEA does authorize independent educational evaluations at public expense (overruling magistrate judge).

Tuesday, December 20th, 2011

Phillip and Angie C. v. Jefferson County Board of Education, 57 IDELR 97 (N.D. Ala. 2011):  A U.S. District Judge overruled a magistrate judge’s recommendation that the IDEA does not authorize IEEs at public expense.  Given the circumstances surrounding the regulation (e.g., that it has been in place since 1977 and Alabama has a similar state regulation), the District Judge determined that the IDEA statute’s omission of “at public expense” did not render the regulation void since the agency (here the Department of Education) is delegated authority to fill any gap Congress leaves in a statute.  The regulation providing for IEEs at public expense fills that gap.

The District Judge upheld the magistrate’s other recommendation, however, that the hearing officer did not have authority to order production of copies of the student’s records under the circumstances in this case.  Specifically, the hearing officer determined that, once the parents filed a due process complaint, they were entitled to copies of the student’s records and not simply an opportunity to inspect and review them.  However, since the hearing officer reached this determination after the hearing had concluded, the determination was untimely since the reasons supporting the hearing officer’s conclusion (that parents should have copies of student records in order to ably prepare for a hearing) were rendered moot by the fact that the hearing had concluded.

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School district’s discontinuation of student’s 1:1 aide appropriate where student would be instructed by a special education teacher in small group.

Friday, December 16th, 2011

E.D. v. Bedford Central School District, 57 IDELR 191 (S.D.N.Y. 2011):  A U.S. District Court upheld the New York State Review Officer’s (SRO’s) decision that the school district offered an appropriate program to a student with specific learning disabilities and ADHD.  As a result, the student’s parents’ claim for tuition reimbursement was denied.

The student previously received the services of a 1:1 aide while in elementary school to address his attention issues due to the student’s placement in a general education classroom.  As the student moved to middle school, the district discontinued the 1:1 aide and instead placed the student in integrated co-teaching classrooms for math and ELA, and also assigned a consultant teacher for his other core academic classes.  In each of these classes, a special education teacher would be modifying the general instruction for a group of students, with a maximum of six students in each group.

In addition to the specialized instruction, the student was also to receive instruction in a building level support class to allow his special education teacher the opportunity to reinforce concepts and preview materials.  Also, the student’s IEP provided for speech services and counseling to address language deficiencies and social/emotional issues.  In light of all the services offered, the SRO determined (and the Court agreed) that the student’s varied needs would have been met and the district therefore offered an appropriate program.  Accordingly, the parents’ request for tuition reimbursement for their unilateral placement was denied.

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Student not eligible for special education where her reading fluency deficiency did not prevent her from reading at, or near, grade level.

Tuesday, December 13th, 2011

H.M. v. Haddon Heights Board of Education, 57 IDELR 186 (D.N.J. 2011):  A U.S. District Court determined that a school district’s declassification of a student with a specific learning disability was proper where the student’s identified deficiency in reading fluency did not prevent her from reading at, or at least near, grade level.  Therefore, she did not require special education and was ineligible for classification.

The student’s evaluations indicated reading fluency skills below grade level.  However, the Court noted that when “viewed in conjunction with the other tests, as well as observations of her teachers” the student was operating at, or near, grade level in overall reading fluency.  The tests and observations also showed the student exhibited little, if any, difficulty with reading comprehension.  Thus, since the student’s reading fluency deficiency was not adversely impacting her educational performance she did not require special education services.  Therefore, the district’s declassification was proper.

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District’s inclusion of parents in IEP process and student’s overall progress showed she received FAPE.

Friday, December 9th, 2011

K.C. v. Nazareth Area School District, 57 IDELR 92 (E.D. Pa. 2011):  A U.S. District Court ruled that a school district’s willingness to work with parents of a student with disabilities, and the progress the student demonstrated under the IEPs contested by the parents, resulted in a free appropriate public education for the student.

The student was twenty years old, and attended a private school at the District’s expense due to her diagnosis of Prader-Willi Syndrome (a genetic disorder), which was considered the underlying cause of most of the student’s academic and functional skill issues.  The student also had brain damage due to an in-utero stroke.  Throughout her education at her private school (beginning in 2006) her parents only agreed to one IEP.  That IEP was finalized in May of 2007.  Since that IEP, the parents requested numerous IEP Team meetings and insisted on specific language to be included in the IEP.  As a result, the last IEP the district offered the student was more than seventy-five (75) pages long.

Despite the length of the IEP, the parents still disagreed with the nature of the services provided.  The Court, affirming the impartial hearing officer, determined that the student’s demonstrated progress showed that the services the district provided were appropriate.  More specifically, the parents argued that the transition plan was deficient due to a failure to provide travel training and the student failed to meet certain transition goals.  However, the Court found that the student made adequate progress.  Additionally, the Court concluded that the parents’ failed to consent to specific transition programs the district wished to provide.   Such programs likely would have been beneficial to the student, and enhanced her transition plan.  Therefore, the Court held the district offered a FAPE, and the student was not entitled to compensatory education.

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School district may violate IDEA by not providing notice of procedural safeguards and by requiring parent to transport student.

Tuesday, December 6th, 2011

Doe v. Attleboro Public Schools, 57 IDELR 132 (D. Mass. 2011): Parents of a student with pervasive developmental disorder, not otherwise specified (on the autism spectrum) appealed an administrative hearing officer’s dismissal of their claim for reimbursement for transportation of their son to a different school within the school district. The Court determined the dismissal was in error, and remanded the matter back to the hearing officer.

The parents wanted their son to attend a specific elementary school so that he would have an enclosed classroom (in which the walls go from floor to ceiling) as opposed to open classrooms (in which the classrooms are not divided by traditional walls). Based on the student’s needs, his parents argued that he required an enclosed classroom. As a condition of the student attending school in an enclosed classroom, the district required the parents to sign an agreement requiring them to transport the student. In doing so, the district also did not provide the parents with notice of their procedural safeguards. Based on the failure to provide such notice, the parents may not have been aware of their ability to challenge the decision to place the student in an open classroom. Therefore, the Court remanded the matter back to the hearing officer for further proceedings to address those issues.

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Child’s residency, not his or her formal enrollment in public schools, obligates school district to re-evaluate.

Friday, December 2nd, 2011

Moorestown Township Board of Education v. M.D., 57 IDELR 158 (D.N.J. 2011): A U.S. District Court held that the location of a child’s residence determines whether or not the school district has an obligation to re-evaluate the child. The Court rejected the District’s argument that, in order for there to be an affirmative obligation to re-evaluate a student with a disability, that student needs to be enrolled in the school district.

The parents unilaterally enrolled the student in a private school that, at the time of the student’s enrollment, was within the school district where the student resided. After the student had spent more than a year at such private school, the parents requested the district re-evaluate him for potential placement back in a public school setting. The district refused to evaluate the student, despite the fact that the student resided within the district, unless he first re-enrolled in the public schools. The parents did not want to re-enroll the student in the district, out of fear of potentially losing his spot in the private school should the district not create an acceptable program.

After the parents filed a due process complaint, the administrative law judge (ALJ) determined the district denied the student a free appropriate public education by not conducting evaluations and convening an IEP Team meeting. The district appealed the decision, arguing that its duty to evaluate a student with a disability only applies if the student is enrolled in the district. The Court, noting that the district could produce only marginal support for its argument that it does not have to evaluate a student residing within its boundaries, rejected the district’s argument and held that the district’s responsibility to evaluate students with disabilities depends on their residence and does not also require that such students be enrolled in the district’s schools.

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