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

Archive for June, 2012

Although school district is not required to provide FAPE to student enrolled in charter school, it is required to offer FAPE upon request of student’s parent

Friday, June 29th, 2012

I.H. v. Cumberland Valley School District, 58 IDELR 94 (M.D. Pa. 2012): The federal court agreed that school districts are not required to provide a FAPE to a student enrolled in a charter school.  However, the Court concluded that the school district violated the IDEA by failing offer FAPE to the student, when the parent so requested, despite the fact that the student was no longer enrolled in the school district.  In this case, the parent removed the student, who was diagnosed with Asperger Syndrome, learning disorder, higher-level executive impairment, ADHD, and generalized anxiety disorder, from the school district and enrolled him in a cyber charter school.  Subsequently, the parent requested that the school district develop an appropriate IEP for the student so that the parent may weigh his options with respect to possible re-enrollment in the school district.  Although the charter school was the sole agency responsible for providing FAPE (since the student was no longer enrolled in the school district), the Court agreed with other courts that when a parent requests an evaluation with the intention of re-enrolling  a student in the public school, the public school district is required to evaluate the student and develop an IEP for the purpose of offering a FAPE.

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For children with epilepsy, screening for developmental delay and autism recommended.

Thursday, June 28th, 2012

Recent research suggests that children diagnosed with epilepsy should also get screened for developmental delay and autism.  According to the studies, approximately three-quarters of children with epilepsy also exhibited a developmental delay.  Roughly forty percent of such children also had autism.  However, of those who were identified through the study, nearly one-third had not previously been diagnosed with either developmental delay or autism.  The results indicate that routine screening should be conducted for children diagnosed with epilepsy.

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Student’s progress at alternative high school negates need for residential placement

Wednesday, June 27th, 2012

S.H. v. Eastchester Union Free School District, 58 IDELR 46 (S.D.N.Y. 2011): The parents of a student diagnosed with Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), Learning Disorder, Impulse Control Disorder, and Depressive Disorder were denied reimbursement for their child’s unilateral placement at a private residential school.  The Court concluded that school district’s recommended placement at an alternative high school was appropriate since it was substantially similar to the program the student received the year prior (where he made progress).  The fact that the school district’s proposed placement lacked staff specifically trained in Reactive Attachment Disorder did not deny the student a FAPE.  Rather, the proper inquiry is whether the staff is able to implement the IEP, and the Court found that the staff was so able.  In addition, neither the school district’s failure to include staff from the residential school at the IEP meeting, nor the school district’s failure to provide the student with a functional behavioral assessment (FBA), resulted in a denial of FAPE.

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School district’s recommended placement appropriate despite more than three year gap in student achievement levels

Monday, June 25th, 2012

S.F. and Y.D. v. New York City Department of Education, 57 IDELR 287 (S.D.N.Y. 2011): The parents of a thirteen-year-old student with a learning disability were denied private school tuition reimbursement for their unilateral placement despite the fact that the school district’s recommended placement included students with academic achievement levels ranging from a third-grade level to a seventh-grade level.  The parents had argued that the gap in academic achievement levels violated New York State law.  The Court noted that although under New York state law there is a maximum three-year range that applies to the chronological age of students, there is no maximum range for levels of academic achievement.  The Court also determined that the inclusion of one student with an emotional disturbance and one student classified as other health impaired, did not make the proposed placement inappropriate.  The requirement to place students with students of similar needs does not necessarily prohibit placing students of varying disabilities in the same classroom.

In addition, the Court concluded that the school district did not procedurally violate the IDEA by not allowing the student’s parent to visit the recommended placement.  Nor did the school district commit a procedural violation when they included a regular education teacher at the student’s IEP team meeting who had not taught regular education for nearly twenty years.

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School district’s failure to conduct FBA did not make BIP inappropriate

Friday, June 22nd, 2012

C.F. v. New York City Department of Education, 57 IDELR 255 (S.D.N.Y. 2011): The Court concluded that although New York regulations require a functional behavioral assessment (FBA) be conducted in order to determine why a student displays behaviors that interfere with his learning or that of others, the school district’s development of a behavior intervention plan (BIP) without conducting an FBA did not deprive an autistic student a FAPE.  The Court reasoned that the BIP was based on current observations from his teachers and up-to-date records of his recommended placement.  Moreover, although the Court concluded that the school district failed to specify parent counseling and training in the student’s IEP (a service required to be offered to students classified as autistic under New York state regulations), such a procedural defect did not amount to a denial of FAPE.  Having determined that the school district’s proposed placement offered the student a FAPE, the parent’s claim for private school tuition reimbursement was rejected.

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Parent who claims denial of FAPE under IDEA does not have to allege bad faith or discriminatory intent to state a claim under Section 504.

Thursday, June 21st, 2012

Rayan R. v. Northwestern Education Intermediate Unit No. 19, 58 IDELR 95 (M.D. Pa. 2012):  A U.S. District Court held that a parent could maintain a claim of discrimination under Section 504 by virtue of her claim that the school district failed to provide a free appropriate public education to her school-aged child under the IDEA.

The child, who was diagnosed with autism, borderline intellectual functioning, ADHD, oppositional defiant disorder, and an adjustment disorder, received services from the school district as a preschool student, but the school failed to provide adequate services and did not appropriately plan for the student’s transition to kindergarten.  The parent alleged the school district denied him a FAPE, and brought suit under the IDEA and Section 504.  The school district argued that since the student was over the age of three, but not yet in kindergarten, there could be no discrimination because it did not offer a “programming analogue for non-disabled children.”  The Court rejected such position, noting that Part B of the IDEA applied to the student, who was over the age of three, despite the fact that he was not yet in kindergarten.  Accordingly (based on precedent in that federal circuit), allegations of a denial of FAPE under Part B of the IDEA to this school-aged child, thereby states a claim of discrimination under Section 504 (even without any allegation of bad faith or discriminatory intent).

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Student denied compensatory education after being unable to prove gross violation of IDEA

Wednesday, June 20th, 2012

In re: Student with a Disability, 57 IDELR 179 (SEA NY 2011): Following precedent of the United States Court of Appeals, Second Circuit, The New York State Review Officer (SRO) determined that in order for a student who is no longer eligible for special education by reason of age or graduation to be awarded compensatory education, the student must prove a gross violation of the IDEA resulting in a denial of FAPE.  In this case the parent of a student with a learning disability claimed that the student, who was 22 years old at the time of the due process hearing, was entitled to compensatory education due to the school district’s failure to provide him with an appropriate vocational program.  However, the SRO refused to find a gross violation of the IDEA since the parent had rejected a vocational program that would have been appropriate for the student.

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Parent’s denied private school tuition reimbursement where school district’s proposed IEP moderately increased services included in the IEP from prior year when the student had made progress

Monday, June 18th, 2012

B.O. and P.S. v. Cold Spring Harbor Central School District, 57 IDELR 130 (E.D.N.Y. 2011): The parents of a student classified as Other Health Impaired were denied tuition reimbursement for their unilateral placement in a private school for students with language-related learning disabilities.  The court reasoned that the student made progress under his IEP from the prior year and the IEP team’s decision to moderately increase services under the proposed IEP was appropriate.  While the parents presented expert witnesses who testified that the student would have benefited from the private school placement, these witnesses did not speak to whether the student would have benefited from the school district’s proposed placement.  The school district presented sufficient evidence that the school district’s proposed placement offered the student meaningful educational benefit.

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IHO has jurisdiction to order student’s placement in private school where IEP is inappropriate and private school appropriately meets student’s needs

Friday, June 15th, 2012

In re: Student with a Disability, 57 IDELR 117 (SEA NY 2011): The New York State Review Officer (SRO) determined that the school district failed to meet its burden of proving that the IEP of a student with oppositional defiant disorder and adjustment disorder offered a FAPE, when the school district proposed to declare the IEP a nullity and convene a new IEP meeting for the student.  At the due process hearing, although the school district presented documentary evidence, it failed to present any witnesses in order to defend the program in the student’s IEP.  Having disagreed with the placement offered by the school district, the parents removed the student from the public school and placed her in a charter school.  In its due process complaint notice, the parents requested an order for the student’s placement in a private school, which the parent pre-selected.  Having determined that the school district failed to meet its burden that it offered the student a FAPE and that the private school sought by the parents was appropriate, the SRO ordered the student’s placement in the private school (presuming that the private school accepted the student).  The SRO overruled the decision of the Impartial Hearing Officer (IHO) that she lacked jurisdiction to order the student’s placement in the private school.

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Unenrollment from school district of residence does not eliminate its obligation to provide a charter school student with an IEP.

Thursday, June 14th, 2012

I.H. v. Cumberland Valley School District, 58 IDELR 94 (M.D. Pa. 2012):  A U.S. District Court held that the IDEA requires a school district to provide a resident student with an IEP even though the student was currently enrolled in a charter school.  The Court distinguished between developing an IEP, or essentially an offer of FAPE, and implementing the IEP, or providing FAPE.

The student, who was identified as having an emotional disability, attended a public cyber charter school due to the emotional difficulties he encountered while attending his local school district.  However, the student’s guardian was considering re-enrolling the student in his public school district of residence.  She requested the school district evaluate the student and develop an IEP in order to adequately weigh her options.  The district failed to develop an IEP, and an impartial hearing officer (IHO) found that the district was not obligated to offer an IEP to a student not enrolled.

The Court overturned the IHO, noting that, while the charter school must provide the student with FAPE, the school district is required to evaluate a proposed student and develop an IEP to designed to offer FAPE.  Here, the guardian requested an IEP to consider the student’s re-enrollment.  Therefore, the school district was required to conduct the evaluation and develop an IEP.  The student’s enrollment in the charter school only affected whether the district was obligated to provide the services identified in the IEP, not whether it was obligated to develop an IEP in the first instance.

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