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

Archive for April, 2012

Related service providers may only be excused from IEP team meetings on case-by-case basis.

Thursday, April 12th, 2012

Letter to Rangel-Diaz, 58 IDELR 78 (OSEP 2011):  The U.S. Department of Education’s Office of Special Education Programs (OSEP) advised a special education advocate that a school district cannot implement a practice of excluding related service providers from IEP team meetings.

OSEP noted that if a related service provider is a required IEP team member (based on the state’s definition of special education, or if the student requires related services), the only way the related service provider may be excused from attending the IEP team meeting is if the parent provides written consent, and the related service provider submits written input to the IEP team prior to the meeting.  OSEP said it “expects excusal decisions to be made on a individualized, case-by-case basis.”  If a school district routinely, or unilaterally, excused required IEP team members from attending IEP team meetings, OSEP would consider such district noncompliant with the IDEA.

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Parents’ conditions to consent for re-evaluation amounted to a denial of consent, relieving school district of obligation to evaluate.

Thursday, April 5th, 2012

G.J. v. Muscogee County School District, 58 IDELR 61 (11th Cir. 2012):  A U.S. federal Court of Appeals upheld a district court’s determination that, where a student’s parents placed several specific conditions on their consent for re-evaluation, the conditions amounted to a constructive denial of consent.  Since consent was constructively denied, the school district was not obligated to re-evaluate the student.

The school sought to re-evaluate the student and provided the parents with a consent form during the kindergarten year for the student (identified as autistic and having a brain injury).  The parents returned the consent form, but with an “addendum” that contained numerous conditions upon which their consent relied.  For example, the parents conditioned their consent on being able to meet with the evaluator prior to and after the evaluation but prior to its submission to the IEP team.  The administrative law judge (ALJ) and district court both determined that, due to the extensive nature of the conditions, the “consent” essentially amounted to a denial of consent, thereby relieving the school district of its obligation to evaluate the student.  The Court of Appeals affirmed such reasoning.

Accordingly, since the parents never consented to a re-evaluation, they were not entitled to an independent educational evaluation (IEE) at public expense.  In order to be entitled to an IEE, the school district must first conduct an evaluation to which the parent may object.  Since the parents did not consent to an evaluation, no evaluation was conducted.  Therefore, there was no evaluation to which the parent could object and thus become entitled to an IEE.

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Failure to include BIP and plan to transition student back to public school in the IEP were procedural errors, which did not deprive student of a FAPE

Monday, April 2nd, 2012

Park Hill School District v. Dass, 57 IDELR 121 (8th Cir. 2011): The court determined that the school district did not deny a student with autism a FAPE, where a behavior intervention plan (BIP) and a plan to transition the student back to the public school setting were not incorporated into the student’s IEP.  The court reasoned that the failure to include such provisions in the student’s IEP was, at most, a procedural violation of the law.  If the transition services and BIP actually provided to the student were inadequate, this would be a substantive violation.  In this case, however, the parents refused to give the school district an opportunity to provide the student with services when they removed the student from the school district and placed him in a private school.  The school district presented testimony at the due process hearing that had the student attended the recommended placement, it would have used teaching methods and strategies that worked with other students with autism in the school district, and if these strategies proved unsuccessful for the student, the school district would have conducted an FBA.

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Court refused to dismiss denial of 504 FAPE claim against private school

Monday, April 2nd, 2012

Bishop v. Children’s Center for Developmental Enrichment, 57 IDELR 156 (S.D. Ohio 2011): The court refused to dismiss a claim brought by the parents of a student with autism that a private school denied the student a free appropriate public education (FAPE) under Section 504 of the Rehabilitation Act.  As a recipient of federal financial assistance, the private school may be subject to a denial of FAPE claim under Section 504.  Although the private school claimed that the parents withdrew the student from the school, the parents had evidence that the school expelled the student from school by reason of the student’s autism.  Therefore, there was a genuine issue of material fact as to whether the private school acted with bad faith or gross misjudgment (or at the very least with deliberate indifference) and that it discriminated against the student “solely by reason of his disability.”

However, the court dismissed the parents’ claim under the Americans with Disabilities Act (ADA), since the parents did not present any admissible evidence that the private school is a place of public accommodation (as is required by Title III of the ADA).  The court also dismissed the parents claim under Section 1983 since the parents could not show that the private school was acting under the color of state law.

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