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The GAP Attorneys Blog

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

Archive for October, 2012

Districts should evaluate students with peanut allergies for possible accommodations under Section 504.

Thursday, October 25th, 2012

Virginia Beach (VA) City Public Schools, 59 IDELR 54 (OCR 2012):  The federal Department of Education’s Office of Civil Rights (OCR) informed a school district that it must evaluate students with peanut and/or tree nut allergies under Section 504.  The district regularly provided its students with nut allergies “Life-threatening Allergy Management Plans” (LAMPs), but did not routinely evaluate each of them to determine their need for special education or related services.  OCR noted that districts must take steps to ensure the school environment is as safe for students with disabilities as it is for students without disabilities.  In addition, districts cannot simply wait for parents of students with nut allergies to ask for an evaluation under Section 504.  Rather, districts have an affirmative “child-find” duty to locate students with disabilities.  Since the LAMPs were not typically specific to each individual child with a nut allergy, they could not address the individual needs of such students in their various school environments.  Accordingly, the district agreed to evaluate students with LAMPs under Section 504.

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Reimbursement denied where private home based program only indirectly addressed educational needs.

Monday, October 22nd, 2012

T.B. v. St. Joseph School District, 58 IDELR 242 (8th Cir. 2012):  A U.S. Court of Appeals denied parents reimbursement for a private home based program designed for their child with autism.  The parents disenrolled the student, and unilaterally placed him in a home based program focusing on functional skills.  Although the program provided some educational services, such educational services were ancillary to the functional services and “in no way intended to supplant the educational services” available from the district.  Due to the ancillary nature of the educational services, the home based program was “not ‘proper’ within the meaning of the IDEA.”  Accordingly, reimbursement for such program was denied.

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Hearing records remain confidential, despite parent’s election of an open hearing.

Thursday, October 18th, 2012

Oakstone Community School v. Williams, 58 IDELR 256 (S.D. Ohio 2012):  A federal district court ordered that the transcript, hearing exhibits, and first page of an IHO decision (following an impartial hearing) be sealed at the parent’s request.  The parent had exercised her right to an open hearing, and members of the public attended (including an individual who attempted to videotape the proceedings).  In light of the open hearing, the school sought to have the hearing records (including transcript and exhibits) kept from being held under seal in the federal court action.  The Court held for the parent, noting that, while the parent opted for an open hearing, the duty of confidentiality flowed to the student and the open hearing did not diminish the student’s privacy interests.  Accordingly, since exercising the right to an open hearing does not waive confidentiality provisions of FERPA and IDEA, the records were sealed to preserve their confidentiality.

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Parent awarded reimbursement for private tuition after student expulsion.

Monday, October 15th, 2012

Fisher v. Friendship Public Charter School, 58 IDELR 287 (D.D.C. 2012):  A federal district court held that a public charter school denied a student with ADHD a free appropriate public education when it expelled the student for drug use, but failed to provide sufficient services in an interim setting following the expulsion.

The student arrived at school under the influence of marijuana, which resulted in his expulsion.  The parent did not dispute that such drug use was not a manifestation of the student’s disability, and the expulsion was therefore proper.  However, the school failed to offer any appropriate interim educational placement in order to permit the student to progress toward meeting the goals in his IEP.  All the school offered was to provide the specialized instruction and counseling specified on the student’s IEP and a list of phone numbers for the parent to call in order to seek a new placement.

Instead of using the school’s numbers, the parent enrolled the student in a private school.  However, the Court noted that it was not the parent’s responsibility to find the student an interim setting.  Since the school failed to provide an interim alternative educational curriculum, and also failed to contest the appropriateness of the private school, the parent was entitled to reimbursement.

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Districts must evaluate when requested, despite parent’s alleged acceptance of RTI process.

Thursday, October 11th, 2012

Cherokee (TX) Independent School District, 59 IDELR 18 (OCR 2012):  The federal Department of Education’s Office of Civil Rights (OCR) informed a school district that it should have evaluated a student for services and accommodations under Section 504 upon a parent’s request.  The parent requested an evaluation in November, but the district did not complete its evaluation until the following April.  The district alleged that, in that timeframe, it implemented its RTI process, and the parent acquiesced.  However, OCR faulted the district for failing to notify the parent of her procedural safeguards, including the right to appeal the district’s decision not to evaluate the student and its determination that the student did not yet require special education or related services.  Accordingly, the district agreed to convene a team to discuss what, if any, harm the student suffered as a result of the delayed evaluation as well as any compensatory services that may be necessary.

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District was not required to choose reading program based on optimal level of peer-reviewed research, or the reading program preferred by the parents.

Monday, October 8th, 2012

Ridley School District v. E.R., 58 IDELR 271 (3d Cir. 2012):  A federal Court of Appeals affirmed the district court’s determination that a school district offered a free appropriate public education to a student with specific learning disabilities.  The parents alleged the district denied a FAPE by failing to provide a “scientifically research based, peer reviewed reading program” to their daughter.

The student demonstrated difficulty with reading, and received intervention (including a placement in a reading support group) prior to her classification as a student with a disability.  As the district developed the student’s initial IEP, it recommended a specific reading program (Project Read).  The parents requested the district hire someone to provide instruction in the Wilson Reading System.  After the district declined, the parents indicated they would enroll the student in a private school that used the “intensive multi-sensory” reading approach the student required.

The hearing officer found Project Read insufficient, since there were “flaws in the research supporting it.”  Therefore, it was not suitable as a scientifically research based instruction program.    The district court disagreed, and overturned the hearing officer.  The Court of Appeals affirmed the district court.  The parents alleged, in essence, that there were flaws in Project Read’s underlying research, and the research did not demonstrate the program’s effectiveness for the student’s disabilities.  The Court disagreed, noting a sufficient amount of research supporting Project Read and that the IDEA does not require a program “supported by the optimal level of peer-reviewed research.”  Similarly, the district is not required to choose the specific program requested by parents.  Accordingly, the district offered the student a FAPE, which foreclosed the parents’ claim for tuition reimbursement.

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Parents must exhaust IDEA administrative process before bringing a suit for damages relating to bullying of a student with a disability.

Thursday, October 4th, 2012

Wright v. Carroll County Board of Education, 59 IDELR 5 (D. Md. 2012):  A U.S. District Court dismissed parents’ suit for damages stemming from alleged bullying of a student with autism.  The Court held the parents are required to exhaust the administrative remedies available under the IDEA.

The parents sought to be excused from the exhaustion requirement by claiming that such remedies were futile.  They argued that since the IDEA provides no specific protection to victims of violations school disciplinary rules (e.g. – bullying victims), the administrative process could not suitably address claims for money damages for such victims.  The Court disagreed, and dismissed the parents’ claims under the IDEA and Section 504 for failing to exhaust their administrative remedies.

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Parent denied reimbursement where student made progress under prior IEP.

Monday, October 1st, 2012

Dzugas-Smith v. Southold Union Free School District, 59 IDELR 8 (E.D.N.Y. 2012):  A U.S. District Court affirmed the decisions of administrative officers denying parents of a student with learning disabilities reimbursement for a unilateral placement.  The administrative officers (including hearing officer, and State Review Officer) consistently concluded that the student’s demonstrated progress in her program prior to her unilateral placement showed the program offered by the district provided a FAPE.

The student had a history of developmental and learning problems, and was classified as a student with a disability for fifth and sixth grade.  From fifth to sixth grade, the student demonstrated a certain degree of progress on both her report card and state level assessments.  The district recommended the student continue in a similar program for seventh grade, but the parents disagreed and sought a private school placement.  The hearing officers and SRO both gave weight to the noted progress, and found the public program to be the least restrictive environment appropriate for the student.  Accordingly, reimbursement was denied.

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