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The GAP Attorneys Blog

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

Archive for February, 2013

District’s failure to continue to develop student’s program while parents litigated a previous IEP denied student FAPE.

Thursday, February 28th, 2013

Anchorage School District v. M.P., 59 IDELR 91 (9th Cir. 2012):  A federal appeals court held that a school district denied a student with autism a free appropriate public education (FAPE) when the district failed to continue developing the student’s program while his parents litigated his previous IEP.

The court noted that a school district’s compliance with the IDEA is not conditioned on “parental cooperation or acquiescence in the [district’s] preferred course of action.”  Here, the parents challenged the student’s second grade IEP.  However, when the student moved to third grade, the district relied on the student’s second grade IEP, except for providing third grade lessons and materials.  The district court concluded that the failure to develop an updated IEP flowed from the parents’ “litigious approach.”  However, the appeals court disagreed, noting that such conclusion improperly shifted the burden of substantive compliance with the IDEA from the district to the parents.

The appeals court held that updating a student’s present levels of performance, and establishing corresponding goals and objectives does not qualify as a “change in placement” (which would violate the student’s stay-put rights), provided the academic setting in which the student is placed does not change.  Accordingly, the district had an obligation to continue developing the student’s IEP during the litigation to that extent.  Its failure to so develop the student’s IEP denied him a FAPE.

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Retrospective testimony impermissible for reimbursement claims.

Monday, February 25th, 2013

R.E. v. New York City Department of Education, 59 IDELR 241 (2d Cir. 2012):  A federal court of appeals decided a trio of separate cases regarding reimbursement for unilateral placement for students with autism.  The court consolidated the cases to address a specific common question of law: whether an impartial hearing officer (IHO), and any appellate review thereof, can consider “retrospective testimony” to augment or rectify any deficiencies in a proposed IEP.

The court defines retrospective testimony as “testimony that certain services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement.”  Essentially, retrospective testimony amounts to statements regarding the nature of services to the student with a disability by professionals who purportedly would have provided services to a student with a disability in the proposed placement, notwithstanding that such services were not explicitly included on the student’s IEP.  The court rejected retrospective testimony for hearings regarding reimbursement requests for unilateral placements, noting that parents cannot make reliable decisions regarding their child’s programming if they cannot rely on the IEP as drafted.

The court did not limit the analysis of a proposed IEP to the “four corners rule,” in which the analysis only addresses what is specifically written in the IEP.  Instead, districts can offer testimony to explain the nature of the services listed, except that such testimony cannot describe or indicate additional services that were not included in the IEP.

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Parents denied reimbursement (but entitled to compensatory education) where district had denied FAPE, but offered an appropriate IEP prior to parents’ unilateral placement.

Monday, February 18th, 2013

I.T. v. Department of Education, State of Hawaii, 59 IDELR 129 (D. Hawaii 2012):  A federal district court denied a parents’ request for tuition reimbursement for a unilateral placement, where the district had denied the student a free appropriate public education (FAPE) by failing to provide timely speech and language therapy, but ultimately did offer speech services prior to the parents’ unilateral placement.

The court concluded that the district failed to evaluate the student in all areas of suspected disability by not evaluating him for a potential central auditory processing disorder (CAPD).  The district’s prior written notice for the student’s IEP team meeting indicated that, once it received information from the student’s private doctor, the district would amend the student’s IEP to start language services.  Even though the student ultimately was not diagnosed with CAPD, there was no dispute that he required speech and language services.  Accordingly, the district’s failure to provide such services denied the student a FAPE.

As a result of the student’s inadequate progress, in their view, the parents unilaterally placed him in a private program.  However, by the time they made their unilateral placement, the IEP team had already met on multiple occasions and amended the student’s IEP to include speech and language services and goals (the IEP’s only deficiencies).  Accordingly, the court denied the parents’ request for reimbursement, instead finding that the student was only entitled to compensatory education for the speech and language services he did not receive.

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Tuition reimbursement denied where private program did not offer any specialized instruction to student with a learning disability.

Monday, February 11th, 2013

W.C. v. Lake George Central School District, 59 IDELR 185 (N.D.N.Y. 2012):  A federal district court denied a parent’s request for tuition reimbursement for a unilateral placement, where the private program did not offer any specialized instruction designed to address the student’s learning disability.

The parent disagreed with the school district’s recommendation of a 12:1:1 class with intensive reading instruction, and unilaterally placed the child in a private school.  The impartial hearing officer (IHO) ordered the district to reimburse the parent for such private placement, but the State Review Officer (SRO) annulled the IHO’s decision.  The federal court, in hearing the parent’s appeal of the SRO decision, noted that the private school offered no special education services, and did not employ a special education teacher.  Similarly, the private school did not modify the student’s academic program, but rather modified only its expectations of the student’s performance (resulting in awards of less than full credit, or no letter grade being awarded at all).  Since the private school provided no educational instruction specifically designed to meet the student’s needs, it was not an appropriate placement, and therefore the Court denied the request for tuition reimbursement.

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District has continuing obligation to provide FAPE to student with aggressive and self-injurious behaviors

Thursday, February 7th, 2013

Vincent ex rel. B.V. v. Kenosha Unified Sch. Dist., 59 IDELR 242 (E.D. Wis. 2012)—This student with a psychiatric disorder had been in a residential behavioral health center where she was supposed to attend school off site, but stayed at the health center on most school days due to safety concerns. As a result, the student did not receive academic instruction for approximately two years.

The IEP team determined that the student required a reevaluation to assess her current educational needs and, as such, the IEP focused on behavioral goals only. The IEP provided for two hours per week of special education homebound services, but the Team had considered a self-contained class, because of safety concerns. After a behavioral episode, the district informed the parents that it would stop providing services to the student. The District Court found that although the school had the right to consider a more restrictive setting, it could not cease to provide the student with educational services altogether. The Court also ordered compensatory services because of the student’s improper long term suspension.

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Educational benefit is not measured by psychological testing progress or regression.

Monday, February 4th, 2013

M.C. v. Katonah-Lewisboro Union Free School District, 59 IDELR 108 (S.D.N.Y. 2012):  A federal district court found in favor of a school district regarding its program for a student with a learning disability.  The court agreed with the State Review Officer (SRO), who rejected the impartial hearing officer’s (IHO) determination that the student’s program was inappropriate, because the student failed to demonstrate sufficient progress on certain psychological and educational testing the student underwent to gauge her cognitive levels and abilities.  The court, however, agreed with the State Review Officer (SRO), noting that, although the student finished the school year with a reading level lower than most of her non-disabled peers, her reading had improved and she made progress on other skills.  Although the student’s performance on psycho-educational testing often remained stagnant (or regressed), the progress she demonstrated in her skills demonstrated a sufficient educational benefit to show the district offered her an appropriate program.  As a result, her parents’ claim for reimbursement for the unilateral placement was denied.

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