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Archive for April, 2012

Federal Court of Appeals overturns decision to certify a child-find claim as a class action

Friday, April 27th, 2012

Jamie S. v. Milwaukee Public Schools, 58 IDELR 91 (7th Cir. 2012): The Eighth Circuit Court of Appeals found that plaintiffs claiming child-find violations and seeking classification as “students eligible to receive special education from [the school district] ‘who are, have been or will be’ denied or delayed entry into or participation in the IEP process” to be ineligible to file a class action lawsuit.  A settlement agreement, which the class plaintiffs entered into with the state defendant (over the objection of the school district) and an order from the court that included monitoring of the school district’s compliance with its child find obligations, was also vacated.  The Eighth Circuit reasoned that the claims of the class plaintiffs were “highly individualized and vastly diverse” and lacked sufficient “commonality” (which is one of the required elements of a certified class).

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Pendency provision does not require school district to pay tuition in order maintain transfer student’s placement in prior school district

Thursday, April 26th, 2012

G.B. v. New York City Department of Education, 58 IDELR 100 (S.D.N.Y. 2012): A federal district court concluded that a school district failed to provide sufficient pendency (or “stay-put”) services to a transfer student with autism that were comparable to the services provided to him under the last agreed upon IEP from his prior school district.  However, the court refused to require the school district to pay tuition in order to maintain the student’s placement within his prior school district.  A school district’s obligation to maintain the student’s “stay-put” placement during the pendency of a due process proceeding does not mean that the student must remain at a “specific brick-and-mortar school.”  The school district merely must provide the student with an educational placement that is comparable to the last agreed upon IEP.

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Settlement agreement does not establish stay-put where school district only agrees to tuition reimbursement and not formal placement at private school.

Thursday, April 26th, 2012

K.D. v. Department of Education, State of Hawaii, 58 IDELR 2 (9th Cir. 2011):  A U.S. Court of Appeals held that a school district’s agreement to pay a student’s tuition at a private school for the remainder of that particular school year did not establish the private school as the student’s pendency placement during any future disputes.

As part of a settlement to a due process complaint, the school district agreed to pay the tuition for a student with moderate to severe autism while he finished the school year at a private school.  Notably, the settlement agreement never called for “placement” of the student at the private school, merely tuition reimbursement.  Following resolution of the complaint, the school district conducted IEP team meetings to develop the student’s program going forward.  However, the parent again filed a due process complaint and sought to establish the private school as the student’s pendency placement, thereby entitling the parent to reimbursement.

The Court affirmed the district court’s determination that reimbursement was not warranted.  Overall, the Court found that the school district offered appropriate IEPs, defeating the parent’s claim for reimbursement.  Regarding her argument that tuition should be reimbursed based on the student’s stay-put placement, the Court held that there was no pendency for the period in which no due process complaint was in effect.  Following the parent’s filing of a new complaint, the private school was not pendency, since the settlement agreement did not agree to “place” the student at the private school.  Rather, the agreement only allowed for tuition reimbursement and therefore was not a “placement” that would serve as pendency.

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School district did not improperly delay eligibility determination where student made meaningful progress under RTI approach

Wednesday, April 25th, 2012

Daniel P. v. Downington Area School District, 57 IDELR 224 (E.D. Pa. 2011): A federal district court determined that a school district, who utilized a response to interventions (RTI) approach to monitor a student, did not violate its child find obligations by initially opting not to determine the student eligible for IDEA services.  The student responded positively to the school district’s interventions for nearly two school years, until the third semester of the student’s second grade year.  However, when the student stopped making progress he was evaluated by the school district and classified with a specific learning disability by the beginning of his third grade year.  The parents were, therefore, denied tuition reimbursement for their unilateral private school placement.

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Failure to evaluate a student in all areas of suspected disability prevented a school district from providing a FAPE

Tuesday, April 24th, 2012

K.I. v. Montgomery Public Schools, 57 IDELR 93 (M.D. Ala. 2011): The court concluded that the school district’s failure to evaluate a student, diagnosed with arthrogryposis, muscular dystrophy, and restricted lung disorder, in all areas of his suspected disability, prevented it from offering the student a free appropriate education (FAPE).  The school district failed to conduct a cognitive evaluation and, therefore, could not determine whether the student was operating in the normal intelligence range.  As a result the school district was unable to develop an adequate IEP, which would include the provision of appropriate measurable annual goals.

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Statutory period for appealing administrative decision does not apply to an independent action for attorneys’ fees

Thursday, April 19th, 2012

P.M. v. Evans-Brant Central School District, 58 IDELR 72 (W.D.N.Y. 2012): The court refused to dismiss an independent action for attorneys’ fees brought by the parents of a student with a disability.  The court did not apply the 90-day statute of limitations period provided for under the IDEA (nor the 4 month period provided for under New York state law), which apply to an “aggrieved” party’s appeal of an administrative decision.  The IDEA provides for an independent cause of action for attorneys’ fees based on a party “prevailing” (as distinguished from being “aggrieved”) during the administrative process.  Since the neither IDEA nor New York state law specifies a statute of limitations for an independent action for attorneys’ fees, the most analogous statutory period under state law, in this case three years, should be applied to such an action.

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Tuition reimbursement reduced by 75% where parents failed to make student available for intake interview, precluding placement.

Thursday, April 19th, 2012

J.G. v. Scarsdale Union Free School District, 58 IDELR 16 (S.D.N.Y. 2011):  A U.S. District Court awarded parents of a student with an emotional disability tuition reimbursement for their unilateral placement of their daughter.  However, in light of the parents’ failure to make the student available for an intake interview, the Court reduced the award by 75%.

The student was very successful early in high school, but developed emotional issues , including suicide ideation, that ultimately had an adverse effect on her academic performance and school attendance.  In light of her emotional difficulties, the parents placed her in private programs in Vermont and, ultimately, in Montana.  Despite the unilateral placement, the parents continued to work with the school district to develop an IEP and find an appropriate program.  However, each of the potential programs at which the student would be placed required an intake interview with the student.  The parents decided not to bring the student home for such an interview, based on advice from their mental health professionals that such a visit could have negative effects on the student’s emotional state.  Accordingly, since the student was never available for an intake interview, none of the potential public placements accepted her.

In light of the district’s failure to provide a FAPE, and the appropriateness of the private program selected by the parents, the Court determined that the parents were entitled to reimbursement.  However, despite the parents’ willingness to visit potential public placements, their failure to make the student available for an intake precluded the district from recommending an appropriate program.  Therefore, reimbursement was awarded, but reduced by 75%.

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Compensatory education award vacated where student refused to participate

Wednesday, April 18th, 2012

Dudley v. Lower Merion School District, 58 IDELR 12 (E.D. Pa. 2011): The federal district court declined a parent’s request for a court order to enforce the hearing officer’s award of compensatory services to a student classified with a specific learning disability and diagnosed as emotionally disturbed.  Despite a school district’s “substantial efforts” to comply, the student participated in the services only sporadically and eventually refused to participate altogether.  Although the hearing officer’s decision ordered the school district to “assure that [the student] arrives at the location . . . escorting him to the room if necessary,” the school district could not have used physical force to ensure the noncompliant student’s attendance.  The court granted the school district’s request to vacate the compensatory education award.

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School districts are not prevented from offering tuition reimbursement (even to an unapproved private school) to settle a parent’s due process complaint

Tuesday, April 17th, 2012

Letter to Cort, 57 IDELR 291 (OSEP 2011): The United States Department of Education, Office of Special Education Programs (OSEP) stated that although the regulations interpreting the IDEA provide that a school district may be required by a court or hearing officer to reimburse parents for private school tuition when the school district fails to offer a student a FAPE, nothing in the law prevents a school district from offering such reimbursement as part of a settlement of a parent’s due process complaint or through parentally requested mediation.  OSEP stated that this would even apply if the parent’s unilateral placement was at a private school not approved by the state to provide special education services.

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Out-of-state move did not moot parent’s reimbursement claim

Tuesday, April 17th, 2012

E.D. v. Newburyport Public Schools, 57 IDELR 91 (1st Cir. 2011): The Court of Appeals reversed the district court’s dismissal of a claim for private school tuition reimbursement.  The district court incorrectly determined that the parents’ move out of state mooted their claim.  Although the move ended the school district’s future obligation to provide the student a free appropriate public education (FAPE), it did not prevent the parents from seeking reimbursement for their past unilateral private school placement, where the parents lived within the school district during the time period relevant to the parent’s reimbursement claim.

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