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

Archive for March, 2013

Reimbursement denied where unilateral placement did not adequately address student’s related services needs, and need for 1:1 aide.

Thursday, March 28th, 2013

L.S. v. New York City Department of Education, 59 IDELR 159 (S.D.N.Y 2012):  A federal district court upheld a State Review Officer’s determination that parents of a student with Angelman syndrome, and classified with multiple disabilities, are not entitled to reimbursement for their child’s unilateral private placement.  There was no dispute that the school district failed to offer the student an appropriate program, however the private program selected by the parents was also not appropriate.  The district’s recommended IEP included 6.5 hours each week of related services (including speech and language therapy, physical therapy, and occupational therapy), whereas the private school only provided 4.75 hours.  Also, there was no dispute that the student required the services of a 1:1 paraprofessional to adequately ambulate around his school environment.  However, the private program failed to provide such paraprofessional (1:1 aide services were provided by the district as per a pendency order).  In light of these failures, the private program was not appropriate to meet the student’s needs and, therefore, reimbursement was denied.

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School cannot impose specific conditions upon parent with a disability before allowing access to parent’s service dog.

Monday, March 25th, 2013

Hillsboro (OR) School District, 59 IDELR 82 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) determined that a school district failed to comply with Section 504 when it limited the ability of a parent with disability to volunteer in her child’s school while using her service dog.  The parent had volunteered in her child’s kindergarten class, and was accompanied by her service dog.  However, the district subsequently conditioned the parent’s ability to volunteer while accompanied by the service dog on the parent’s submitting certification of the dog’s training and vaccinations, evidence of insurance coverage for any damage or injury caused by the dog, as well as her need for the service dog and the services it provides.  Upon submitting such information, the parent would then be able to volunteer, but only away from staff and students.  OCR found these conditions violated Section 504 by discriminating against this parent, since other parent volunteers were covered by the district’s liability insurance policy and there was no indication that the service dog posed any threat (by allergies or otherwise) to the school community.  Accordingly, OCR noted that the only requirements a district can impose before allowing access to a service dog is to inquire about the tasks the service dog is trained to perform (but cannot require specific evidence of certification).

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Reimbursement denied, despite District’s inadequate notice of manifestation meeting.

Thursday, March 21st, 2013

C.K. v. Harrison School District, 59 IDELR 103 (W.D. Ark. 2012):  A federal district court upheld a hearing officer’s determination that parents of a student with autism were not entitled to reimbursement for a unilateral private placement, despite the school district’s admittedly inadequate prior notice of the student’s IEP team meeting.

The student had significant behavioral issues, resulting in frequent injury to himself, staff, and fellow students.  One particular incident caused a severe injury to the student’s paraprofessional, which resulted in the student’s suspension from school.  Following the suspension, the district moved a previously scheduled IEP team meeting up by five days, essentially converting it to a manifestation determination review team meeting.  However, the parents were not notified of this change in purpose (namely, to change the student’s program to homebound instruction).  Despite multiple follow-up meetings, the parents could not agree on a placement with the district and unilaterally placed the student in a private program.  The hearing officer held that, notwithstanding the failure to notify the parents of the change in the IEP team meeting’s purpose, they were not denied the opportunity to participate in the meeting (particularly in light of the multiple follow-up meetings during which the student’s placement was discussed).  The inadequate notice was not enough to deny the student a FAPE.  Accordingly, since there was no demonstration that the district’s recommended program was inappropriate, the student was not denied a FAPE, and reimbursement was not warranted.

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Court may order disclosure of classmate’s educational record as part of litigation.

Monday, March 18th, 2013

K.S. v. Detroit Public School System, 60 IDELR 73 (E.D. Mich. 2012):  A federal district court ordered a school district to provide parents of a student with a cognitive disability with copies of a classmate’s disciplinary records, notwithstanding the district’s obligations under FERPA to keep the classmate’s educational records confidential.  The district sought to protect the classmate’s disciplinary record, however the court noted that the classmate’s disciplinary history may be relevant in the student’s parents’ private lawsuit against the district for its alleged failure to protect the student by repeatedly placing her in situations in which she was at risk of being victimized by her classmate.  The court noted FERPA specifically allows for production of otherwise confidential records under a court order.

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State ban on aversive behavioral interventions complies with IDEA.

Thursday, March 14th, 2013

D.B. v. New York State Education Department, 59 IDELR 151 (2d Cir. 2012):  A federal appeals court determined that a state education department’s ban on the use of aversive interventions did not violate the IDEA.  A class of parents of students with significant behavioral needs sued, arguing that such statewide ban denied students a free appropriate public education (FAPE).

The court concluded that a SEA has the discretion to prohibit “one possible method of dealing with disorders in behavior” without undermining the student’s right to an individualized education.  Here, “aversive intervention” was defined as an intervention “intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors.”  In light of the ongoing debate among experts as to the utility of aversive interventions, the court noted it is “ill-suited to decide the winner of that debate.”  Since the ban “prohibits only consideration of a single method of treatment without foreclosing other options” it does not prevent students from receiving an IEP specifically tailored to their individual needs.  Therefore, it did not improperly inhibit parents’ participation in development of the IEP, nor deny FAPE.

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Unavailability of proposed out-of-district placement does not excuse district’s failure to provide services.

Monday, March 11th, 2013

Penn Yan (NY) Central School District, 60 IDELR 80 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) determined that a school district did not comply with Section 504 when it failed to provide educational services to a student with a disability while it arranged for an out-of-district program.  The district recommended a specific program to address the student’s cerebral palsy, autism, and epilepsy, but needed to satisfy certain requirements in order for the student to be accepted in the out-of-district program.  This led the district to unilaterally amend the student’s IEP to include a licensed practical nurse (which OCR found violated the rule that decisions must be made by a group of persons knowledgeable about the student).  The district also failed to provide any services to the student while it worked to arrange for the student’s enrollment in the out-of-district placement.  OCR found such failure to provide services unacceptable, and that school districts must take reasonable steps to ensure disabled students received educational (and related) aids and services.  Accordingly, the IEP team should have convened to consider whether an alternative placement was necessary.

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Failure to include behavioral goals denies student FAPE.

Thursday, March 7th, 2013

Coventry Public Schools v. W.J., 59 IDELR 277 (D.R.I. 2012):  A federal district court found in favor of parents of a student with significant behavioral needs as a result of his ADHD and oppositional defiance disorder (ODD).  The student’s behavioral needs “consistently” impeded his academic progress.  Despite these significant needs, his IEP failed to include any behavioral goals and modifications.  The court concluded such failure rendered the student’s IEP inappropriate, noting “not having clear and defined behavioral goals and modifications in the IEP is tantamount to denying him any education at all.”  Accordingly, in light of the appropriateness of the unilateral placement in which the parents placed the student, the court ordered the school district to reimburse the parents.

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Though Parent unilaterally placed student at a private school, the district of residence still had the obligation to provide FAPE to the student

Monday, March 4th, 2013

E.T. and D.T. ex rel. E.T. v. Board of Educ. of the Pine Bush Cent. Sch. Dist., 60 IDELR 31 (S.D.N.Y. 2012)—in this case, the parents unilaterally placed the student, diagnosed with Asperger’s Syndrome and school phobia, in a private school and sought tuition reimbursement from the district. The IHO found that the district did not have an obligation to provide the student with a free appropriate public education (FAPE), thus denying the parents’ reimbursement claim, because the parents had clearly intended to enroll the student in a private school before the district could develop an IEP. The SRO affirmed the IHO’s decision and the parents brought suit in federal court for review of the SRO decision. The court found that the district’s obligation to provide FAPE to the child does not end because a child has been privately placed elsewhere. Instead, the district of residence is obligated to provide FAPE to the student, and enrollment in a private school does not extinguish that obligation. The court remanded the case back to the SRO to determine whether the district had failed to provide a FAPE to the student for the 2010-2011 school year; and if it did not, whether the parental placement was appropriate. If the parental placement was appropriate, the SRO will still consider whether, based on equitable considerations, reimbursement for all or part of the cost of the private placement is warranted.

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