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The GAP Attorneys Blog

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

Archive for February, 2012

Student’s refusal of IEP accommodations triggered school district’s duty to reevaluate student

Thursday, February 2nd, 2012

Rockbridge County (VA) School Division, 57 IDELR 144 (OCR 2011): The Office of Civil Rights (OCR) determined that a school district did not discriminate against a student with an emotional disability by not implementing the student’s IEP when the student began refusing his IEP accommodations.  Nevertheless, OCR stated that the school district should have reevaluated the student and reconvened an IEP meeting to determine how this refusal impacted the student’s educational goals.  As an adult, the student had a right to refuse IEP services.  However, since the student’s parent was still a participant in the student’s IEP Team meetings, the parent should have been provided with an opportunity to discuss, and to have the IEP Team address, the student’s refusal of his accommodations.

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The continued presence of nut products in school vending machines constitutes disability-based harassment of student with severe peanut allergy

Thursday, February 2nd, 2012

Catoossa Count (GA) School District, 57 IDELR 141 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) concluded that a school district engaged in disability-based harassment in violation of Section 504 of the Rehabilitation Act, against a student with a severe peanut allergy, by allowing its school’s vending machines to contain peanut products.  The school principal contacted the company that filled the school’s vending machines on multiple occasions informing the company that it should not fill the machines with peanut products or products manufactured with such products, and even placed signs on the machines indicating the same.  However, such actions proved ineffective, since the company continued to place peanut products in the machines.  After nine months, the principal finally had the machines removed from the school.  However, having failed to take prompt and effective action, OCR stated that the school district’s actions constituted harassment.

OCR also concluded that the school district failed to provide the parents with their due process rights.  Simply placing these rights on the school district’s website was insufficient.  Moreover, OCR stated that the school district’s practice of not evaluating students with Individual Health Plans (IHPs) for eligibility under Section 504 violated the school district’s Section 504 FAPE obligations.

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Failure to conduct FBA did not deny FAPE where BIP was otherwise appropriate

Thursday, February 2nd, 2012

A.L. v. New York City Department of Education, 57 IDELR 69 (S.D.N.Y. 2011): The Court affirmed the decision of the State Review Officer (SRO) who determined that the school district’s LEA’s failure to conduct a functional behavioral assessment (FBA), on a student with autism whose behavior interfered with learning, did not deny student FAPE.  The Court reasoned that the behavior intervention plan (BIP) developed was otherwise appropriate.  Although the school district did not conduct a formal FBA, it developed a BIP based on a variety of assessments and reports and with substantial input from the student’s service providers.  The BIP adequately addressed the student’s needs.

Moreover, the court determined that the school district did not impede the parents’ participation in the decision making process regarding the student’s placement, even though the parents did not participate in the decision regarding the placement’s actual physical location.  While the parents had a right to participate in meetings to determine the “identification, evaluation and educational placement” of their child, this includes the general type of educational placement, not the “brick and mortar” school location.

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