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Archive for January, 2013

Parent whose complaint was about composition of proposed classroom was not entitled to reimbursement for unilateral private placement since the child would have been suitably grouped for instruction purposes within that classroom

Thursday, January 31st, 2013

E.A.M. on behalf of E.M. v. NYC Dept. of Educ., 59 IDELR 274 (S.D.N.Y. 2012)—this case involved a teenaged student with a specific learning disability. After a CSE meeting was convened and the contents of the student’s IEP were discussed, it was recommended the student be placed in a 12:1:1 at a community school. The parent, who was concerned about the composition of the proposed classroom, unilaterally placed the student back at an independent private school. The parent argued that state regulations were violated because the age range was more than 36 months between oldest and youngest, and the classroom contained emotionally disturbed students. However, the court agreed with the SRO and determined that failure to adhere to the age range requirements of state regulations is not always fatal, especially where the student’s academic functioning levels in reading and math fell within the range of the other students, (and she fell in the middle of the age range). Also, noting that the relevant inquiry is whether the student was likely to progress, not regress, in the placement classroom, the court found the district had offered FAPE to the student and denied the parents’ request for reimbursement for the unilateral placement.

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Tuition reimbursement denied where student progressed from grade to grade in his public school placement.

Monday, January 28th, 2013

Klein Independent School District v. Hovem, 59 IDELR 121 (5th Cir. 2012):  A federal court of appeals denied a parent’s request for tuition reimbursement for a unilateral placement, where the student was progressing from grade to grade in his public school placement (notwithstanding his significant writing deficits).

The Court overturned a decision at 55 IDELR 92 awarding tuition reimbursement.  The Court noted the student’s advancement from grade to grade, and that the student (who had a learning disability and attention deficit disorder) did not receive a lighter workload due to his identified deficits with written language.  The district court misinterpreted the “educational benefit” mandated by the IDEA, since that educational benefit is not “defined exclusively or even primarily in terms of correcting the child’s disability.”  Here, the school district provided certain accommodations which “allowed” the student “to prove his mastery of subjects in a different way” and allowed him to graduate from high school.  Since the goal of the IDEA is “overall educational benefit, not solely disability remediation,” the student’s graduation demonstrated the educational benefit he received, notwithstanding his deep disorder of written expression.

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Where parents unilaterally placed student in a private religious school, (inappropriate to address the child’s needs), District still obligated to develop a student’s annual IEP (but not to reimburse tuition)

Thursday, January 24th, 2013

Doe by Doe v. East Lyme Bd. Of Educ., 59 IDELR 249 (D. Conn. 2012)—A U.S. District court reversed the lower court’s Recommended Ruling and held that school district denied FAPE to a student with autism when it failed to develop an IEP for the 2010-2011 school year. Although the parent had previously declined the proposed IEP for the previous year, that did not extinguish the district’s obligation to review the student’s IEP at least annually. The parent had unilaterally placed the student in a private religious school, which the court held was inappropriate to meet the student’s educational needs because it provided no special education services nor did it implement the IEP as the teachers were not certified in special education. The court deferred to the hearing officer’s determination regarding inappropriateness of the private placement and determined that the parent’s were not entitled to tuition reimbursement.

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Parent concerns and observations by speech therapist during evaluation require school district to evaluate for possible autism.

Monday, January 21st, 2013

Orange Unified School District v. C.K., 59 IDELR 74 (C.D. Cal. 2012):  A federal district court found for the parents of a child with autism, and determined a school district violated its child find obligation by failing to evaluate the child for suspected autism.  Due to the district’s failure to so evaluate, it was unable to develop an appropriate IEP.

The student’s parents referred him for an evaluation, and described symptoms consistent with autism (including that, as a six-year-old, he was not toilet trained, did not make eye contact, and his vocabulary consisted of a maximum of three words).  The district administered a speech and language evaluation, and the speech pathologist noticed the student’s need of frequent prompts and poor attending skills.  Due to her observations, the speech pathologist referred the student for a psychoeducational evaluation (with particular consideration of a special day class).

Despite these observations and referrals, the district failed to evaluate the student for behavioral disorders or autism.  The district developed the student’s IEP without such information, and failed to provide behavior therapy.  Although the student was subsequently diagnosed with autism, the district continued to fail to provide a sufficient level of behavior therapy.  Accordingly, the parents withdrew the student from his public placement in favor of a private program more suited to his needs.  As a result of such failures, the Court determined the student was not only entitled to reimbursement for the unilateral placement, but also entitled to compensatory education for the school’s failure to provide a FAPE while he attended his public program.

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School District does not have to institute a “no spray” policy in order to accommodate a student with severe allergies under Section 504 and the ADA

Thursday, January 17th, 2013

Zandi v. Fort Wayne Cmty. Schs., 59 IDELR 283 (N.D. Ind. 2012)—During his junior year of high school, the student began experiencing allergic reactions of varying degrees to the scent of perfumes, lotions, colognes, and laundry detergents. He did not react negatively to every scent and was unsure which particular scents caused the allergic reaction. The student’s mother asked the school to institute a “no spray” policy throughout the school. In response, the school sent emails to the student’s teachers regarding the dangers of spraying, advised teachers to tell their students not to spray unless in the restroom, (if they must spray at all), and published an article in the school newspaper in order to raise awareness of the issue. The principal also periodically reminded the students to refrain from excessive fragrances and from spraying fragrances in common areas. However, a school wide “no spray” policy would be too difficult to enforce in light of the 2,300 people present in the building. The student brought a lawsuit against the district alleging discrimination based on his disability under Section 504 and Title II of the ADA. The court found that the accommodations, as implemented, were reasonable and that there was no evidence that a written “no spray” policy would have prevented the student’s allergic reactions.

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Districts must decide starting date of related services on individual basis.

Monday, January 14th, 2013

Letter to Ackerhalt, 60 IDELR 21 (OSEP 2012):  The federal Department of Education’s Office of Special Education Programs (OSEP) informed a parent’s attorney that school districts cannot implement district-wide policies which prevent implementation of related services specified on IEPs until the third week of school.  OSEP noted that the projected date for the beginning of a related service must be based on the student’s individual needs, as determined by the IEP team.  Therefore, “a policy that mandates that related services for all children with disabilities will begin at a specific time after the beginning of the school year” is inconsistent with federal regulations.

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Parent is denied tuition reimbursement when the student was eligible to graduate with a Regents Diploma and the parent unreasonably withheld transcripts regarding student’s graduation status

Thursday, January 10th, 2013

T.M. and J.M., on behalf of T.D.M., v. Kingston City School Dist., 59 IDELR 254 (N.D.N.Y. 2012)—The parents of an eighteen year old with pervasive developmental disorder notified the district of their intent to place the student in a private out-of-state facility in April or May of 2008 and signed a two year contract. The court held that the district’s obligation to provide FAPE ended in June 2008 when the student earned a Regents Diploma. Yet, the parent had repeatedly refused to provide a copy of his transcript to the district. The district did not obtain a copy of the student’s transcript until March of 2010 at which time it was determined that he had had enough credits to receive a Regents high school diploma in June of 2008. If the parent had provided the transcript in June 2008 when it was requested by the district, it would have been clear that the student had earned a Regents diploma and that the district was no longer obligated to provide FAPE. Accordingly, equitable considerations did not warrant tuition reimbursement to the parent.

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School Districts have a duty to modify district policies if not congruent with Section 504

Thursday, January 3rd, 2013

Traverse City (NI) Area Public Schools, 59 IDELR 144 (OCR 2012): A school district violated Section 504 when it chose strict adherence to its written policy rather than make reasonable modifications to its policy based on the students’ individual needs. In this case, a student with multiple and severe disabilities was frequently absent from school because of reasons relating to his disability. In response, the student’s mother repeatedly asked the district to provide automatic homebound services during times when her son has disability-related sicknesses, such as during ragweed season. The district followed its written policy that students with IEPs must be absent for 15 days before they could receive homebound services. The policy also required documentation from the student’s doctor, and that an IEP team meeting be convened before any homebound services would be given. OCR found that the district violated Section 504 by failing to change its policy to accommodate foreseeable absences relating to intermittent symptoms associated with the student’s disability.

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