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Archive for May, 2013

District has obligation to at least reevaluate a returning student if it was aware that the student received special education services before transferring to private school

Thursday, May 30th, 2013

Regional Sch. Unit No. 51 v. Doe, 60 IDELR 163 (D. Me. 2012)—in this case, a student with severe ADHD had received special education services at his district’s public school during fourth grade. He attended a private school for fifth grade, and returned to the district for sixth grade after his family moved to a different town. The student did not have a current IEP when he returned to the district, and the district did not reevaluate the student to determine whether he still needed an IEP. Instead it was concluded that all accommodations could be provided through a section 504 plan. After struggling until his eighth grade year, a special education referral was formally sought and an IEP was finally developed for the student. The court reaffirmed the Hearing Officer’s findings that the District erroneously de-classified the student without providing written notice to the parents or advising the parents of their right to challenge the decision. The student maintained his IDEA eligibility, even when he transferred from private to public school with an expired IEP, until a reevaluation showed otherwise and the District denied him a FAPE by failing to recognize him as an IDEA-eligible student until halfway through his eighth grade year.

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School district violated the IDEA when it transferred students with autism between schools and failed to follow the IDEA placement procedures

Monday, May 27th, 2013

P.V. by Valentin and Cruz v. School Dist. of Philadelphia, 113 LRP 7167 (E.D. Pa. 02/19/13)—in this class action, students with autism had been provided services in more than one physical location, which may have exasperated the students’ difficulties with transitions. The court held that the district violated the IDEA by unilaterally transferring students with autism between centralized grade-level programs located in different school buildings. Though “educational placement” typically refers to the types of services and not the location of services, taking into account the nature of autism, such transfer between school buildings constituted a change in educational placement under the IDEA. By making such unilateral placements, the district effectively denied the parents an opportunity to meaningfully participate in the decision-making process. As a result, the district must follow the IDEA’s placement procedures, which include consulting with parents in all placement decisions, and providing notice to the parents before any transfer is made.

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School District’s failure to conduct timely evaluation, as soon as it has reason to suspect that student’s medical condition is affecting academic performance, violates Section 504

Thursday, May 23rd, 2013

Penn Yan Cent. Sch. Dist., 60 IDELR 170 (OCRII, New York (NY) 2012)—here, a parent filed a complaint with OCR against a New York school district for failing to evaluate his child for a suspected disability. The student has epilepsy, and the school district was aware of the disability and the fact that it may be interfering with his academic performance. Although “the District claimed that it did not have reason to suspect that the student had a physical or mental impairment that might substantially limit a major life activity until December 2011,” there was an email from the principal in August 2011 stating that the student’s seizures might be contributing to his attention problems in school. While there was an Emergency Seizure Care Plan put into place in early 2012, not all of the student’s teachers received the plan which resulted in an inappropriate response by the student’s Math teacher to a petit seizure. In February 2012, the parent granted consent for the district to evaluate his child, though the district had specifically informed OCR that this evaluation was unrelated to the student’s epilepsy. The evaluation occurred in April 2012 and recommended that the district consider a 504 plan to address the student’s seizures. The student was not formally referred to a 504 team at that time because his parent wanted a private medical evaluation before moving forward. In September 2012, the parent consented to implementing a 504 plan which would address the student’s epilepsy. OCR determined that despite knowing of the student’s epilepsy in August 2011, the district did not refer him to be evaluated for special education services, and the Care Plan it developed was not properly implemented by all of the student’s teachers. The district voluntarily agreed to implement a resolution agreement under which it will convene a 504 team meeting to determine if compensatory services are warranted, and it will provide training to relevant staff regarding the district’s obligations under Section 504 to ensure the timely evaluation of any student suspected of needing special education and/or related services because of a disability.

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Flaw in IEP team composition did not amount to a denial of FAPE because parents had meaningful participation in the process

Monday, May 20th, 2013

DiRocco ex rel. M.D. v. Board of Educ. of Beacon City Sch. Dist., 60 IDELR 99 (S.D.N.Y. 2013)—in this case, the parents unilaterally placed their child in a private school from fifth grade through eighth grade. In order to develop an IEP for the student’s ninth grade year, the District received consent to obtain his educational records from the private school (though they never obtained the records) and developed a draft IEP in advance of the CSE annual review meeting. The draft IEP was based on the previous year’s IEP, a comprehensive neuropsychological evaluation, and a psychoeducational re-evaluation performed by the school psychologist who also participated in amending the IEP. The parents disapproved of the draft IEP because of the larger class size, and stated that they wanted a duplicate program to the one he was currently benefiting from at the private school. The parents ultimately rejected the proposed IEP and evidenced their intent to re-enroll him in the private school for ninth grade and to seek reimbursement for such placement. The IHO found that there was a denial of FAPE (substantively and procedurally), but the SRO overturned the IHO’s decision entirely, holding that the district had in fact offered the student a FAPE. With respect to procedural violations, the SRO found harmless error. Specifically, though the IEP team composition did not comply with the technical requirements, the parents did not allege any specific harm caused by the lack of participation by an appropriate regular education teacher. Also, the lack of discussion of goals at the CSE meeting did not, by itself, render the goals inappropriate or deny the parents meaningful opportunity to participate in the development of their child’s IEP. The parents appealed the SRO’s decision and the District Court agreed with the SRO that the IEP was reasonably calculated to provide the student with educational benefits and would allow him to make educational progress, and the parents had a meaningful opportunity to participate in development of the IEP.

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District could not deny access to afterschool program to child with autism based on mistaken belief that he required a 1:1 aide

Thursday, May 16th, 2013

Wilson County (TN) School Dist., 60 IDELR 111 (OCRIV, Atlanta (TN) 2012)—the parent in this case brought suit against the school district alleging discrimination against her child with autism when the district refused to allow the student to participate in an afterschool program. The parent was informed orally and informally by the program site director that the program staff could not handle the student because of his disability and a shortage of staff. Subsequently, the parent submitted multiple applications but never received a formal response. Although the student’s IEP showed that he would have equal access to all extracurricular activities, the program personnel did not consult with the student’s teacher regarding what accommodations would allow the student to attend the program. The district claimed that the program could not accommodate the student and it would be an undue financial hardship to pay for a 1:1 aide. However the IEP did not state that the child even needed a 1:1 aide. OCR found that the student’s participation in the program would not fundamentally alter the nature of the program or impose an undue financial burden on the district and therefore, the exclusion of the child constituted discrimination based on disability in violation of Section 504.

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State regulation identifying RTI as a pre-referral strategy consistent with IDEA.

Monday, May 13th, 2013

Letter to Ferrara, 60 IDELR 46 (OSEP 2012):  The U.S. Department of Education’s Office of Special Education Programs (OSEP) informed a director of a special education association that a state’s regulation identifying RTI as a pre-referral strategy for general education students is consistent with the IDEA.  Provided a regulation regarding the use of RTI does not prohibit parents or school personnel from making a referral when warranted, or permit implementation of RTI to delay a response to a parent’s request for a full evaluation, a state can identify RTI as an appropriate pre-referral strategy.

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District cannot refer a student to RTI process in lieu of commencing a requested evaluation.

Thursday, May 9th, 2013

Broward County (FL) School District, 59 IDELR 143 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) found that a school district violated Section 504 by failing to conduct an evaluation regarding a student with academic and behavioral difficulties stemming from his ADHD.

The student’s parent requested that the student be evaluated due to the manifestation of certain academic and behavioral difficulties for the student.  However, the district failed to proceed with the evaluation, instead referring the student to the response to intervention (RTI) process.  By implementing the RTI process, instead of proceeding with the requested evaluation, the district improperly delayed the student’s evaluation (which eventually commenced three months later).

Also, OCR found that the team that met to discuss the student’s 504 accommodations was not properly constituted.  The alleged 504 Team only consisted of the district’s 504 liaison, and the student’s parents, rather than a “group of persons knowledgeable about the student, the evaluation data, and the placement options.”  Accordingly, OCR concluded the district failed to comply with Section 504.

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No procedural violation when guardian who lacked notice of CSE meeting was in regular contact with school staff

Monday, May 6th, 2013

N.B. by L.K. v. Demopolis City Bd. of Educ., 60 IDELR 66 (S.D. Ala. 2012)—this case involves a student, classified as “Other Health Impaired,” (diagnosed with Oppositional Defiance Disorder (ODD), Mood Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and Post-traumatic Stress Disorder (PTSD)) who transferred intrastate to another school district. The student had an IEP at Jefferson County, and when he transferred to Demopolis County School District in August 2010, the Jefferson County IEP was still in effect until November 2010. When the Jefferson County IEP was set to expire, two meeting notices were sent home with the student, but the teacher did not follow up regarding the proposed meeting. The guardian did not attend the meeting but received a copy of the IEP in the mail, as the team had decided to adopt and extend the Jefferson County IEP for another school year. After the student physically assaulted a teacher and the school principal, he was suspended and his legal guardian requested a due process hearing on the basis that she did not agree to adopt or extend the use of the Jefferson County IEP, and if she had been given notice of the meeting, she would have attended. The Impartial Hearing Officer (IHO) found that there was no denial of FAPE, and that the District had complied with the IDEA requirements in developing the student’s IEP. The student’s guardian appealed the IHO’s decision. The State Review Officer (SRO) reviewed the hearing record and found that there was sufficient evidence showing that the guardian had been consulted regarding the student’s IEP. Thus, the SRO held the guardian failed to show that harm occurred as a result of her absence from the IEP meeting, and affirmed the IHO’s decision that the District did not deny the student a FAPE.

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Specially designed instruction must be included on an IEP, even if it constitutes a “best teaching practice” or is part of the district’s regular curriculum.

Thursday, May 2nd, 2013

Letter to Chambers, 59 IDELR 170 (OSEP 2012):  The U.S. Department of Education’s Office of Special Education Programs informed a special education advocate that a school district cannot avoid including specific services on a student’s IEP simply because such services are considered “best teaching practices” or “part of the district’s regular education program.”  A child’s unique needs must be addressed, even if the nature of the instruction provided is also provided to other children (with or without disabilities).

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