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

Archive for August, 2012

District must transport home school student to site of related services.

Thursday, August 30th, 2012

Andes Central School District v. King, 59 IDELR 48 (N.Y. Sup. Ct. 2012):  A state court upheld the New York State Education Department’s (NYSED) determination that a school district was required to transport a home schooled student with multiple disabilities to the site at which she received her related services (including physical therapy, occupational therapy, and speech therapy).

The Court noted that federal law requires districts to transport parentally-placed private school students from the child’s home to the site of special education services (and under New York State law, students on a home instruction program are deemed to be nonpublic school students).  The Court specifically rejected the district’s argument that, in order to qualify for transportation, the student must demonstrate a need for special transportation (which would, presumably, be identified on the IEP).  Accordingly, the Court affirmed NYSED’s determination.

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FBA and BIP not necessary where student’s behavior was stereotypic of autism and placement included supports and services to address student’s behavioral needs

Monday, August 27th, 2012

In re: Student with a Disability, 58 IDELR 209 (SEA NY 2012): The New York State Review Officer (SRO) overturned the decision of an impartial hearing officer (IHO) which awarded private school tuition reimbursement to the parents of a student with autism.  The SRO determined that, despite the fact that the student engaged in behaviors that seriously interfered with his learning, the school district did not deny the student a FAPE by failing to conduct a functional behavioral assessment (FBA) and develop a behavior intervention plan (BIP).  The SRO noted that the state regulations define an FBA as “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment . . .”  8 NYCRR 200.1(r).  The SRO accepted the school district’s argument that an FBA was not needed for the student since the student’s stereotypic behaviors were consistent with autism, and therefore the school district did not need to determine why the student was engaging in the behaviors.  A BIP was not needed because the recommended placement included supports and services to address the student’s behavioral needs.

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Integrated Co-Teaching placement supports IDEA’s requirement to educate student in LRE

Friday, August 24th, 2012

T.L. v. Department of Education of the City of New York, 58 IDELR 213 (E.D.N.Y. 2012): The parents of a student with ADHD and visual processing deficits were denied private school tuition reimbursement since the school district’s recommendation to place the student with integrated co-teaching services for all his academic classes complied with the IDEA’s requirement that the student to be placed in the least restrictive environment (LRE) appropriate.  Prior to the school year at issue, the student had been placed in a self-contained 12:1:1 classroom setting, where the student made progress.  The integrated co-teaching recommendation would have placed the student in a larger class size with disabled and nondisabled students co-taught by a regular education teacher and a special education teacher.  Despite the parents’ objection to the larger class size, the Court concluded that the integrated co-teaching recommendation was appropriate since the student would have benefited socially and academically from exposure to general education students and would have been provided with sufficient support to make progress.

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Evidence of parent’s discussion of evaluation at IEP meeting undercuts claim that parent was denied meaningful participation

Tuesday, August 21st, 2012

Luo v. Baldwin Union Free School District, 58 IDELR 158 (E.D.N.Y. 2012): The Court concluded that the parent of a student with a disability was provided with meaningful participation at the student’s IEP meeting, despite the parent’s claim to the contrary.  The parent had argued that he was deprived meaningful participation because the school district provided him with a copy of an evaluation just two days prior to the meeting.  The parent’s argument was undercut by the fact that the parent brought written objections about the evaluation to the meeting at which time the parent was involved in substantial discussion regarding the evaluation.  In addition, two of the recommendations made by the evaluator, which the parent objected to, did not result in changes to the student’s IEP.

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Student with conflicting intelligence test results not eligible for classification in specific learning disability category

Friday, August 17th, 2012

E.M. v. Pajaro Valley Unified School District, 58 IDELR 187 (N.D. Cal. 2012): The Court determined that the school district correctly relied on one intelligence test over another when it determined that a student with an auditory processing disorder did not qualify as a student with a specific learning disability, since there was not a “severe discrepancy” between the student’s intellectual ability and achievement.  The student received a standard scored of 104 on the Wechsler Intelligence Scale for Children – Third Edition (“WISC-III”), administered by an evaluator retained by the student’s parents.  A short time later the student received a standard score of 111 on the Kaufman Assessment Battery for Children (“K-ABC”), which was administered by the school district.  Having obtained a significantly higher score on the K-ABC, the school district administered another intelligence test, on which the student received a standard score of 98.

The state of California’s regulations state that there is a “severe discrepancy” between ability and achievement when the difference in the standard scores between the two is at least 22.5.   Since the student’s achievement score was an 87 on the WISC-III, there was not a severe discrepancy between the student’s ability and achievement (104 and 87, respectively; difference of 17).  The school district correctly relied on the WISC-III and not the K-ABC since the court concluded that the WISC-III is generally a more reliable measurement of ability, and the score on that test was more reliable since it was much closer to the score of 98 on the third intelligence test administered to the student.

The court also concluded that the student’s auditory processing disorder did not qualify the student as a student with a disability in the “other health impairment” category, since the other health impairment category consists of impairments not otherwise included in the other disability categories under the IDEA.  Since auditory processing disorder falls into the category of a specific learning disability, it cannot simultaneously fall into the category of other health impairment.

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Pattern of suspensions trigger school district’s duty to conduct manifestation determination for 504 student

Monday, August 13th, 2012

Twinsburg City (OH) School District, 58 IDELR 231 (OCR 2011): The United States Department of Education, Office of Civil Rights (OCR) determined that a school district violated Section 504 of the Rehabilitation Act by failing to conduct a manifestation determination review (MDR) for a series of suspensions totaling 17.5 school days of a student with a disability receiving Section 504 accommodations.  Although the school district did conduct two MDRs for the student (one as the result of a consecutive 10-day suspension and the other as a result of a consecutive 6-day suspension) during the school year, the school district should have conducted an MDR for the other 17.5 nonconsecutive days that OCR determined to be a pattern of suspensions.  Since the suspensions were of varying length and were typically less than one month apart, OCR rejected the school district’s argument that the suspensions did not constitute a pattern.  OCR also rejected the school district’s argument that as a student with a disability who was not receiving special education, the student was not covered by the reevaluation requirement of Section 504 regulations.  The student should have received an MDR before the eleventh day of the series of suspensions since more than ten days is considered a significant change in placement, and a student with a disability under Section 504 is entitled to a reevaluation before a significant change in placement.

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New York’s exclusion of noncustodial parent from definition of “parent” under IDEA does not violate due process or equal protection under Fourteenth Amendment

Tuesday, August 7th, 2012

Fuentes v. New York City Department of Education, 58 IDELR 212 (E.D.N.Y. 2012):  The plaintiff in this matter (the noncustodial parent of a visually impaired student) had previously brought an action on behalf of his son under the IDEA.  In that action, the Second Circuit Court of Appeals ultimately certified the question to New York’s highest court to determine whether the noncustodial father had standing to challenge the FAPE received by his son.  The answer was a matter of New York state law regarding the authority of noncustodial parents to make educational decisions.  The New York Court of Appeals held that “unless the custody order expressly permits joint decision making authority or designates particular authority with respect to the child’s education, a noncustodial parent has no right to ‘control’ such decisions.”  Consequently, the noncustodial father’s FAPE complaint was dismissed for lack of standing.

In the instant action, the noncustodial father filed a complaint in federal court on behalf of himself arguing that New York’s exclusion of a noncustodial parent from the definition of the term “parent” violated his due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution.  Applying a rational basis test, the Court concluded that it is rational to give such decision making power to one parent, especially in circumstances where a child’s parents are divorced and may disagree on such issues.

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Collaborative team teaching classroom appropriate for student with ADHD and learning disability.

Thursday, August 2nd, 2012

K.B. v. New York City Department of Education, 57 IDELR 219 (S.D.N.Y. 2011):  A U.S. District Court upheld the New York State Review Officer’s (SRO) determination that a school district offered a free appropriate public education (FAPE) to a student with ADHD and a learning disability.  The school recommended the student attend a 13:1 collaborative team teaching (CTT) classroom, with additional related services.

The student attended a private school, in which she received her instruction in groups not exceeding ten students.  Accordingly, the parents sought a program with a similarly low student to teacher ratio.  The district recommended a 13:1 CTT classroom, with 13 special needs students (ultimately reduced to 12), and 18 general education students, taught by one special education teacher and one general education teacher, as well as certain related services.  The parents placed the student in a private program with small class size, and requested reimbursement.

The SRO deemed the district’s recommended classroom appropriate, despite the student’s likely frequent interaction with nondisabled peers (which the parent argued raised the class size to nearly thirty students).  The Court affirmed noting that the IEP contained all its essential elements, despite a few omissions and clerical errors.  Accordingly, since the program recommended by the district was appropriate, the parents were not entitled to reimbursement.

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