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The GAP Attorneys Blog
Meeting the needs of people with disabilities, their families, educators & service providers
Archive for April, 2013
District required to provide transportation as a related service for student with autism who had a tendency to run away
Monday, April 29th, 2013
In re Student with a Disability, 60 IDELR 84 (SEA NY 2012)—in this case, the Parent requested an impartial hearing because of the District’s failure to provide the student with door-to-door transportation from his home to school. The Impartial Hearing Officer (IHO) found that the District had denied the student a FAPE by not providing him with door-to-door transportation in light of the student’s communication, intellectual functioning, and attention deficits. The District appealed the IHO decision, stating, among other arguments, that the student did not need door-to-door transportation in order to benefit from his educational program. The State Review Officer (SRO), however agreed with the IHO and determined that the student had significant needs relating to transportation, such as a lack of appreciation for environmental dangers, which would make it dangerous for him to walk to school alone. The SRO also found that the CSE members had not considered other relevant factors besides the student’s ability to ambulate, and upheld the IHO’s decision granting transportation to the student. Notably, going forward, the SRO encouraged the District to evaluate the student’s transportation needs and to consider whether travel training would be appropriate and helpful in allowing the student to independently travel to school.
Tags: Autism, door to door transportation, FAPE, related services
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District should have adequate back-up plan in case accommodations become temporarily unavailable.
Thursday, April 25th, 2013
Bellingham (MA) Public Schools, 59 IDELR 142 (OCR 2012): The U.S. Department of Education’s Office of Civil Rights (OCR) concluded that a school district failed to comply with Section 504 when it lacked an adequate back-up plan for a student with a hearing impairment while his FM system was out for repair. The student required use of the FM system to adequately access his educational program, however his FM system constantly broke down early in the school year. Implementation of the FM system was sporadic through the end of October, when it was finally repaired by the manufacturer. However, while it was unavailable, the district had no alternate accommodation to allow the student adequate access to his education. Accordingly, the district violated Section 504.
Tags: back-up plan, discrimination, FM system, hearing impairment
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Student’s progress under prior IEPs demonstrates that an IEP based on previous programs will be effective
Monday, April 22nd, 2013
Ganje ex rel. J.M.G. v. Depew Union Free Sch. Dist., 60 IDELR 74 (W.D.N.Y. 2012)—in this case, a parent claimed that her son with dyslexia had not made any progress in his current placement. As a result, the parent placed the student in a private school and brought a claim for reimbursement against the district for two years of private schooling. The magistrate judge upheld the SRO’s finding that the student made meaningful progress under his previous IEPs, and the District Court agreed. Therefore, the proposed IEPs were reasonably calculated to provide a meaningful educational benefit, and the parent’s reimbursement claim was denied.
Tags: claim for reimbursement, Meaningful educational benefit, private school placement
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District’s failure to provide 1:1 OT to student with sensory needs denies FAPE.
Thursday, April 18th, 2013
K.O. v. New York City Department of Education, 60 IDELR 102 (S.D.N.Y. 2012): A federal district court awarded reimbursement to parents of a student with autism (with specific deficits in sensory processing, sensory integration, and fine motor skills). To address the student’s deficits, the school district developed an IEP recommending 1:1 occupational therapy (OT). However, the district’s proposed placement could not implement the individual therapy. Instead, the student would receive her OT in a small group. Since the evidence presented at the hearing demonstrated the student’s need for individual OT to access and benefit from her education, failure to provide such individual therapy denied her a free appropriate public education (FAPE).
Accordingly, since there was no dispute as to the appropriateness of the private program in which the parent unilaterally placed the student, and the parent cooperated throughout the IEP team process, the court awarded reimbursement.
Tags: Autism, occupational therapy, reimbursement, related services, unilateral placement
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District can be held responsible for private school tuition when it fails to consider an inclusion setting with a 1:1 aide
Monday, April 15th, 2013
G.B. and L.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 60 IDELR 2 (2d Cir. 2012)—the Second Circuit Court of Appeals affirmed a lower court’s decision that a school district denied FAPE to a student with pervasive developmental disorder by offering an overly restrictive placement. Thus, the Federal Court upheld the parent’s entitlement to tuition reimbursement for the child’s private inclusion preschool program. The school district should have considered whether the child could participate in an inclusion classroom with the help of a 1:1 aide. NOTE: this decision has not been released for publication in official or permanent law reports, per court order. To view the blog posting regarding the lower court case, see N.B. v. Tuxedo Union Free Sch. Dist., 55 IDELR 228 (S.D.N.Y. 2010), posted on April 28, 2011.
Tags: 1:1: aide, Least Restrictive Environment/LRE, LRE, pervasive developmental disorder, Tuition reimbursement, unilateral placement
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District’s failure to provide transportation to a student with autism denies FAPE.
Thursday, April 11th, 2013
In re Student With a Disability, 59 IDELR 180 (NY SRO 2012): The New York State Education Department’s State Review Officer (SRO) affirmed an impartial hearing officer’s (IHO) determination that a student with autism required transportation as a related service. There was no dispute that the student’s autism, ADHD, language disorder, and asthma, resulted in his inability to walk to school safely. Specifically, the parent noted the student had an “underdeveloped sense of danger and boundaries which required constant redirection to maintain his focus.” However, the district denied the request for door-to-door transportation, since the student did not have any “ambulatory” or “mobility” impairments. The SRO rejected such bases, noting that there is no prerequisite that a student have an ambulatory impairment in order to qualify for specialized transportation. Accordingly, the district was required to provide transportation (although the SRO expressed no opinion as to the appropriate mode of transportation).
Tags: ADHD, ambulatory impairment, Asthma, Autism, language disorder, mobility impairment, related services, transportation
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District’s failures in developing IEP entitle parent to private tuition and compensatory education award.
Monday, April 8th, 2013
Ravenswood City School District v. J.S., 59 IDELR 77 (N.D. Cal. 2012): A federal district court affirmed a hearing officer’s determination in favor of parents of a student with a specified learning disability, awarding the parents reimbursement for their unilateral placement as well as compensatory education. The district failed to provide the student’s mother with notice of the IDEA’s procedural safeguards upon her referral to the IEP team, which left her unaware of certain rights. Specifically, the student’s mother was left with the misimpression that the district could refuse to assess the student until it was provided with privately obtained test results. As a result, the IEP team did not meet in a timely manner and the student was denied a free appropriate public education (FAPE).
Further, once the IEP team did meet, it failed to develop an adequate IEP suited to the student’s needs (most notably failing to properly address the student’s phonological awareness needs). As a result, the parents unilaterally placed the student in a private program and sought reimbursement. The hearing officer awarded the requested reimbursement, and 600 hours of tutoring as compensatory education (the hearing officer excused any failure on the parents’ part to file a timely due process complaint due to the district’s failure to timely provide notice of the parents’ procedural safeguards). The court affirmed.
Tags: compensatory education, Procedural safeguards, reimbursement, specified learning disability, Statute of limitations, unilateral placement
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District’s specific transportation plan for diabetic student satisfies Section 504.
Thursday, April 4th, 2013
Stafford County (VA) Public Schools, 60 IDELR 51 (OCR 2012): The U.S. Department of Education’s Office of Civil Rights (OCR) concurred with a school district’s plan to accommodate a student’s diabetic needs while she rode the bus. The school district’s plan for the student included notifying the bus driver of the student’s diabetes (including training to recognize symptoms of hypoglycemia and hyperglycemia), having a copy of her emergency care plan on the bus, and having extra supplies on the bus. Also, the student would be allowed to bring food and drink on the bus. Such accommodations satisfied the district’s responsibilities under Section 504.
Also, OCR recognized the sufficiency of the district’s use of a “Substitute Care Plan” to ensure that substitute teachers are aware of the needs of diabetic students and can rely on the building nurse to ensure the student receives proper diabetic care. However, Section 504 does not necessarily require that a school district train its substitute teachers in basic diabetic care.
Tags: accommodations, diabetes, diabetic care training, substitute teacher, transportation
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Hearing officer’s valuation of expert testimony entitled to deference.
Monday, April 1st, 2013
Sebastian M. v. King Philip Regional School District, 59 IDELR 61 (1st Cir. 2012): A federal court of appeals upheld a hearing officer’s ruling against parents of a student with an intellectual disability regarding their request for reimbursement for a unilateral private placement. The parents argued the hearing officer failed to give sufficient weight to the testimony of their expert witnesses, but the court noted that the hearing officer’s valuation of expert testimony is entitled to judicial deference. Accordingly, the hearing officer’s giving more weight to the district’s witnesses was proper, and her determination that the district provided a free appropriate public education (FAPE) was affirmed. As a result, the parents were denied reimbursement.
Tags: deference to IHO, expert witness, intellectual disability, reimbursement, unilateral placement
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