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

Archive for July, 2012

Student may use Section 504 to sue for money damages for her misidentification as disabled.

Monday, July 30th, 2012

A.G. v. Lower Merion School District, 58 IDELR 41 (E.D. Pa. 2011):  A U.S. District Court allowed a former student to sue her previous school district for misidentifying her as a student with a disability.

The school district had classified the student as having a specific learning disability and speech and language disorder when she was in elementary school.  As part of a subsequent re-evaluation, the district determined the student no longer qualified as having a specific learning disability, but was still a student with a disability with an other health impairment (namely, organizational and attention issues).  Following the student’s graduation, she brought suit under Section 504 alleging discrimination by regarding her as disabled.  Specifically, she claimed that the school district incorrectly identified her as disabled and improperly placed her in a special education program.  The student sought money damages for the psychological impact of her misidentification, as well as her economic loss for placement in special education.

The school district moved to dismiss, but the Court allowed the case to proceed noting that the student should have the opportunity to discover facts regarding her claim for compensatory damages.

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Parents need not explain objections to an evaluation to qualify for an IEE at public expense.

Thursday, July 26th, 2012

In re Student with a Disability, 58 IDELR 57 (NY SRO 2011):  The New York State Review Officer (SRO) upheld an impartial hearing officer’s (IHO) determination that parents of a student with dyslexia, dysgraphia, and a disorder of written expression, were entitled to an independent educational evaluation (IEE) at public expense.

The parents disagreed with the district’s psychoeducational evaluation of the student, and obtained a private evaluation at their expense.  The parents then requested the IHO to order reimbursement for their evaluation.  The district argued the parents were not entitled to an IEE at public expense partly because they failed to explain why they wanted an IEE.  The SRO noted that comments accompanying the federal IDEA regulations specifically provide that a school cam ask the parent why he or she objects to the public evaluation, but the district “cannot require the parent to provide an explanation.”  The district’s only option is to request an impartial hearing to demonstrate the appropriateness of its evaluation.

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School must provide assistive listening devices to individuals with hearing impairments, as well as provide information as to how to obtain such accommodations.

Thursday, July 19th, 2012

Los Angeles County (CA) Office of Education, 57 IDELR 294 (OCR 2011):  The U.S. Department of Education Office of Civil Rights (OCR) found a school district in violation of Section 504 for its failure to make assistive listening devices (ALDs) available to individuals with hearing impairments, as well as its failure to provide sufficient information to the public regarding how ALDs can be obtained.

The district renovated some of its facilities by installing new public address systems in an auditorium and board meeting room.  As part of the renovations, the district secured ALDs for such public address systems.  However, the district needed to ensure that a sufficient number of permanently installed ALDs were available for each venue.  The district remedied the deficiency by installing more ALDs.

Additionally, the district agreed to post information at each venue explaining how anyone in need of an ALD may obtain one.  Similarly, the district agreed to disseminate information on its website and to parents, students, staff, and the public, regarding how anyone in need of an ALD may obtain one (including which staff member was designated as coordinating the district’s compliance with Section 504 and the ADA).  Once complete, the district’s noncompliance would be remedied.

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Revocation of parental consent for IDEA services prevents student from receiving services under Section 504

Friday, July 13th, 2012

Lamkin v. Lone Jack C-6 School District, 58 IDELR 197 (W.D. Mo. 2012): The Court determined that when the parent of a student with cerebral palsy, seizure disorder, visual impairment, scoliosis, and osteoporosis revoked consent for the provision of services under the IDEA, the parent also in effect revoked consent for services under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).  After having disagreed with the IEP team’s decision to place the student at a school for the severely disabled, the parent revoked consent for the provision of IDEA services, but requested accommodations under Section 504.  The school district did not violate Section 504 or the ADA when it rejected this request.

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Factual findings not entitled to deference where hearing officer ignored critical testimony of student’s fear of specific school

Monday, July 9th, 2012

Nalu Y. v. Department of Education, State of Hawaii, 58 IDELR 154 (D. Haw. 2012): The Court remanded the case to the hearing officer to consider whether the school district denied FAPE to the student, classified as speech impaired and other health impaired, by failing to investigate the parent’s concerns regarding the student’s fear of attending the recommended school.  The hearing officer dismissed the parent’s argument that the student’s fear of the public school made the placement inappropriate.  Although the Court noted that a court should typically defer to an administrative agency’s factual findings, the hearing officer’s decision in this case was neither thorough, nor careful since he ignored critical testimony regarding the student’s fear.  After affirming the hearing officer’s decision in all other respects, the Court remanded the matter to the hearing officer for consideration of this issue and whether the parent’s were entitled to private school tuition reimbursement.

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Lead agencies under IDEA Part C must inform parents of evaluation process and eligibility criteria for students transitioning to preschool if the school district fails to attend transition conference

Friday, July 6th, 2012

Letter to Hutton and East, 58 IDELR 140 (OSEP 2011): The United States Department of Education, Office of Special Education Programs (OSEP) reminded two special education chiefs of the series of steps and activities required to ensure a smooth transition from Part C to Part B services under the IDEA.  The Part C lead agency is required to convene a transition conference not less than 90 days before the child becomes eligible for Part B services (his or her third birthday).  If a representative from the local educational agency (LEA) (i.e. the child’s local school district) does not attend the transition conference, the Part C lead agency must inform parents at the conference about Part B preschool services and eligibility criteria.

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School district developed an appropriate BIP, despite its failure to conduct an FBA.

Thursday, July 5th, 2012

C.F. v. New York City Department of Education, 57 IDELR 255 (S.D.N.Y. 2011):  A U.S. District Court agreed with the State Review Officer (SRO) in holding that a behavioral intervention plan (BIP) can be properly developed despite a school district’s failure to conduct a functional behavioral assessment (FBA).  The SRO overturned the impartial hearing officer’s (IHO) determination that such failure to conduct an FBA denied the student a free appropriate public education (FAPE).

The student, who was identified as autistic, had previously attended a private school, and was preparing to begin kindergarten.  His parents requested an evaluation by the Committee on Special Education (CSE), which recommended a 6:1:1 classroom and developed a BIP.  The BIP was based exclusively on the reports from the student’s private school teachers and the district did not conduct a formal FBA.  Nevertheless, the Court affirmed the SRO’s decision that the CSE need not conduct an FBA in this case.  The teacher reports were thorough, and although the BIP was admittedly vague, it would be further developed and properly implemented by the proposed classroom teacher.

Separately, the Court also affirmed the SRO’s reasoning that parent training and counseling need not be explicitly included on a student’s IEP.  Here, the IEP failed to identify parent counseling and training as a related service.  However, since the student was being placed in a “specialized school”, and such setting included access to various services provided by a parent coordinator to the parents of students who attend the specialized school, the IEP need not specifically identify parent counseling and training.  Accordingly, since the IEP and BIP offered a FAPE, the Court denied the parents’ request for reimbursement for their unilateral placement.

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Despite parent’s preference for ABA, TEACCH methodology was appropriate to meet autistic student’s needs

Tuesday, July 3rd, 2012

In re Student with a Disability, 58 IDELR 118 (SEA NY 2011): The New York State Review Officer (SRO) overturned the decision of an impartial hearing officer (IHO) who had awarded private school tuition reimbursement to the parent of an autistic student in part because the IHO determined that the methodology that would have been utilized in the recommended placement – Treatment and Education of Autistic and other Communication Handicapped Children (TEACCH) – would not have appropriately met the student’s needs.  The parent had unilaterally placed the student in a private school that utilized Applied Behavioral Analysis (ABA).  The SRO noted that although the method that would have been utilized by the school district was not specified in the student’s IEP, such method generally does not have to be specified in an IEP since it is usually a matter to be left to the teacher.  The parent was concerned that the TEACCH approach relied on students having the ability to maintain a level of independence, and the student did not have such ability.  However, the SRO disagreed with the IHO and found support in the record that the TEACCH approach would have appropriately met the student’s needs.

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Despite its large cost, the use of screen readers for students with disabilities during state assessments is a reasonable accommodation

Monday, July 2nd, 2012

Seminole County (FL) School District, 58 IDELR 113 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) determined that the Florida Department of Education (FDOE) violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) when it denied a student diagnosed with cerebral palsy (and other students similarly situated) the use of a screen reader as an accommodation for a state assessment.  Alternative accommodations offered by FDOE did not meet the student’s unique needs.  OCR did not accept FDOE’s argument that the initial cost of purchasing the screen readers ($250,000), plus the cost to modify the new version of the exam each year, made the accommodation cost prohibitive.

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