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The GAP Attorneys Blog

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

Archive for May, 2012

Parent must object to a district’s evaluation to receive an IEE at public expense.

Thursday, May 31st, 2012

K.B. v. Pearl River Union Free School District, 58 IDELR 108 (S.D.N.Y. 2012):  A U.S. District Court denied a parent’s request for reimbursement for a private evaluation obtained by the parent.  The parent originally objected to the district’s psychological evaluation, and requested an independent neuropsychological evaluation.  The district, instead of paying for the evaluation, initiated a due process hearing to demonstrate the appropriateness of its own evaluation.  Prior to such hearing (in which the district ultimately prevailed), the parent withdrew her request for a neuropsychological evaluation.

The parent later obtained her own neuropsychological evaluation and requested reimbursement from the school district as an IEE.  However, the Court found that, in order to qualify for reimbursement as an IEE, the parent must object to the district’s evaluation.  Since the parent withdrew her request for an IEE (and lost at the earlier hearing regarding the appropriateness of the district’s evaluation) she needed to object to the district’s evaluation to qualify for reimbursement of an IEE at public expense.  Her failure to do so in light of her lack of success in demonstrating the inappropriateness of the district’s evaluations meant she was not entitled to reimbursement for her privately obtained evaluation.

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Student needs more restrictive placement due to his behavioral issues, despite his high academic functioning.

Thursday, May 24th, 2012

J.P. v. New York City Department of Education, 58 IDELR 96 (E.D.N.Y. 2012):  A U.S. District Court affirmed the New York State Review Officer’s (SRO) determination that the school district offered a free appropriate public education to a student with an emotional disability.  Notwithstanding the student’s high level of academic functioning, he required a more restrictive placement.  Specifically, the student exhibited several behaviors that interfered with his ability to learn and disrupted the learning environment for his classmates.

The SRO overturned a ruling by an impartial hearing officer (IHO) awarding the parents reimbursement for their unilateral placement.  The parents placed the student in a private program which allowed the student to progress in a general education setting.  However, based on the information available at the CSE meeting, the CSE recommended a 12:1:1 classroom in order to address his disruptive behaviors.  No one at the CSE meeting, including the student’s mother, requested a general education setting.  The Court gave little weight to the progress the student made in his private program, since that information was not available to the CSE.  Accordingly, the Court agreed with the SRO’s determination that, based on the information the CSE did have, its recommendation was appropriate.

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Parents may pursue claim of discrimination against private school for students with disabilities.

Thursday, May 17th, 2012

Bishop v. Children’s Center for Developmental Enrichment, 57 IDELR 285 (S.D. Ohio 2011):  Where parents of a student with autism alleged that a private school for students with disabilities took steps to exclude the student from its program due to the student’s autism, a U.S. District Court allowed the case to proceed.

The student was placed in a preschool program at the private school by his school district in accordance with his IEP.  However, during the student’s first day of school, the parents disagreeing with the particular classroom to which the student had been assigned, refused to allow him to stay in that class.  They believed such classroom assignment failed to implement the student’s IEP.  Based on their refusal, the private school claimed that the parents had withdrawn the student from its program.

The parents disagreed, claiming that they only refused to allow the student to attend the assigned preschool classroom, but did not withdraw him from the school entirely.  The parents argued that the school’s selection of the student’s classroom (and its subsequent insistence that the student be withdrawn) was due to the school’s wish for the student to leave the program.  The school’s classroom assignment was purposefully not in accordance with the student’s IEP so as to ultimately coerce the parents into removing the student from the program.  The parents further alleged that the school wanted the student to leave its program because he was autistic.  The Court specifically noted that a school specializing in educating autistic students could discriminate against a child with autism, since autism is a “broad spectrum disorder” and “some autistic children are more difficult to educate that others.”  Accordingly, the parents’ discrimination case was allowed to proceed.

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School district violated Section 504 when it failed to timely evaluate a student with ADHD.

Thursday, May 10th, 2012

Harrison (CO) School District Two, 57 IDELR 295 (OCR 2011):  The U.S. Department of Education’s Office of Civil Rights (OCR) determined that a school district violated Section 504 by using its Response to Intervention (RTI) process for a student with ADHD, and not conducting an evaluation to determine the student’s need for services or accommodations.

The school district was notified of the student’s ADHD in July of 2008 when his parent enrolled him and indicated he was being medicated for ADHD.  The district received an official diagnosis of ADHD in January of 2010, and subsequently conducted an evaluation resulting in a 504 Plan and, ultimately, an IEP for the student by June.  However, in the interim, the student exhibited behaviors consistent with ADHD, including several behavioral incidents resulting in both in-school and out-of-school suspensions.  Although the school district maintained that it was continually monitoring the student throughout that time period, and had made adjustments within the general education curriculum, OCR determined that the district should have inquired about the student’s diagnosis and un-medicated symptoms earlier.  OCR noted that RTI “does not justify delaying or denying the evaluation of child” who is believed to need special education or related services.

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School district’s efforts to prevent disability-based harassment/bullying proved ineffective

Monday, May 7th, 2012

East Rutherford (NJ) School District, 58 IDELR 54 (OCR 2011): The Department of Education, Office of Civil Rights (OCR) investigated eleven alleged bullying incidents of a student with Attention Deficit Hyperactivity Disorder (ADHD) and determined four of them to be disability-based harassment.   OCR stated that when a school district discovers the occurrence of disability-based harassment, which is a form of discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), the school district must take prompt and effective action reasonably calculated to stop the harassment, prevent its recurrence and, as appropriate, remedy its effects.  OCR determined that although the school district’s actions to promptly investigate and attempt to stop the harassment were effective with many of the bullies involved, one of the bullies continued to harass the student despite the school district’s efforts.  As a result, OCR determined that it would monitor the school district’s implementation of a resolution agreement designed to prevent disability-based harassment against the student in the future.

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School district’s use of RTI process does not excuse delay in evaluating student for eligibility under Section 504

Friday, May 4th, 2012

Indian River County (FL) School District, 58 IDELER 52 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) determined that a school district unreasonably delayed evaluating a student with Tourette’s syndrome, when it waited six months after the student’s parent requested an evaluation and four months after the parent signed consent for the school district to evaluate.  The school district was not permitted to delay the evaluations pending completion of a Response to Intervention (RTI) process.  Moreover, the school district improperly told the parent that she needed to provide medical documentation of the student’s disability before the evaluation could be conducted.

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Parent’s removal of student from public school did not excuse school district’s failure to develop IEP

Thursday, May 3rd, 2012

Department of Education, State of Hawaii v. M.F., 58 IDELR 34 (D. Hawaii 2011): The federal district court stated that although a parent removed a student, classified as emotionally disturbed (due to her diagnoses of reactive attachment disorder, attention deficit hyperactivity disorder, gender identity disorder, and major depressive disorder) from a public school, the public school district still should at least have attempted to prepare IEPs for the beginning of the 2008-2009 and 2009-2010 school years.  The IDEA requires a school district to give a parent prior written notice before special education and related services are discontinued, and the parent’s removal of the student did not excuse the school district from this requirement.  However, the federal court vacated and remanded the hearing officer’s decision that the parent was entitled to private school tuition reimbursement.  The court reasoned that the record was silent regarding whether, despite the school district’s procedural violation, the student suffered a “loss of educational opportunity,” since it was unclear whether the parent would have accepted a public school placement even if it was offered.  The court also stated that the hearing officer failed to address equitable considerations regarding the parent’s entitlement to reimbursement, since the parent failed to notify the school district before removing the student from the public school.

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Statute of limitations tolls when school district failed to advise parents of rights and propose evaluation of student.

Thursday, May 3rd, 2012

Centennial School District v. S.D., 58 IDELR 45 (S.D. Pa. 2011):  A U.S. District Court held that the statute of limitations tolled for a student whose parents did not receive any notice from the school district regarding their rights under the IDEA.  The student’s asthma and gastro-intestinal condition often prevented him from attending school.

The school was aware of the student’s problems as early as kindergarten, and his problem persisted throughout his schooling.  Despite his attendance issues, the school never provided his parents with notice or explanation of their rights to an evaluation and a determination of eligibility for special education or related services as a student with a disability.  Although the parents never made a written referral to the IEP team, the Court determined that the student’s mother repeatedly raised concerns verbally and asked for help from the school district.  In light of these requests, the school district should have initiated an evaluation and provided the parents with procedural safeguards.  Since the district took neither step, the parents’ claim that the school district violated its child find obligation was deemed timely.

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