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Archive for June, 2013

IDEA due process hearing officers can review whether student actions violate school codes of conduct

Thursday, June 27th, 2013

Letter to Ramirez, 60 IDELR 230 (OSEP 2013):  A federal Department of Education’s Office of Special Education Programs (OSEP), in a letter to an attorney representing parents, indicated that there may be instances where a due process hearing officer may address whether or not the actions of a student violate the school’s code of conduct.  OSEP noted that, should a hearing officer review such an issue, the federal IDEA regulations neither prohibit (nor require) the hearing officer from exercising such discretion.

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Public Charter Schools must be sure there are no gaps in providing diabetes-related services and have proper grievance procedures in place to resolve disputes under Section 504

Monday, June 24th, 2013

District of Columbia Pub. Charter Schs., 60 IDELR 231 (OCRXI, D.C. (DC) 2012)—in this case, multiple parents of children with diabetes brought complaints against the District of Columbia Public Charter Schools for failing to provide diabetes-related services at school, in violation of Section 504. There was not an adequate number of staff members who were properly trained to administer diabetes-related services, such as administering insulin or glucagon. When a nurse was unavailable to address the students’ diabetes-related needs, the student would either be sent home, the parents would be called to administer the services, or 911 would be called. OCR found that 13 of the Public Charter Schools had failed to provide a FAPE to students with diabetes, and 11 of those schools resolved the allegations by timely submitting Section 504-compliant plans and evidence that an appropriate number of staff members were trained to administer diabetes-related services. The other two schools signed Resolution Agreements agreeing to take multiple actions in order to come into compliance with Section 504. All 13 schools also resolved the allegations regarding inadequate due process standards and grievance procedures, either by coming into timely compliance or signing Resolution Agreements. OCR was satisfied with the response by the Public Charter Schools and closed its investigation.

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After Parent withdrew consent to provide special education and related services under IDEA, the District satisfied its 504 FAPE obligations by convening a meeting to develop a 504 plan

Thursday, June 20th, 2013

Kimble ex rel. B.K. v. Douglas Cty. Sch. Dist. RE-1, 60 IDELR 221 (D. Colo. 2013)—in this case, the student had been receiving special education and related services pursuant to an IEP. In response to receiving the proposed IEP for the next school year, the parents formally revoked their consent to the District providing special education and related services to their child. The Director of Special Education informed the parents (erroneously) that by withdrawing consent for services under IDEA, the parents effectively withdrew consent for those services under a 504 plan. Nevertheless, the District convened a 504 meeting at the parents’ request and offered a 504 plan “to implement the services as identified” in the previously rejected IEP. The parent who rejected the Section 504 plan but continued to seek accommodations under Section 504 filed a due process complaint, alleging discrimination under Section 504 and Title II of the ADA. The court held that revocation of parental consent to provide IDEA services does not eliminate the District’s obligations under Section 504 and the ADA. However, here the District convened a 504 meeting and proposed a 504 plan. Thus, the parents cannot hold the District liable for discrimination by not providing accommodations that they rejected under the 504 plan.

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Parents may pursue Section 504 claim for disability discrimination related to bullying

Monday, June 17th, 2013

D.A. v. Meridian Joint School District No. 1, 60 IDELR 192 (D. Idaho 2013):  A federal district court permitted a student’s Section 504 discrimination case to proceed where his parents alleged that he was the victim of “relentless bullying.”  The Court explained that “evidence of bullying severe enough to alter the condition of a student’s education and create an abusive educational environment, coupled with knowledge and deliberate indifference by school officials” is one way to establish a Section 504 violation.  Here, a student, diagnosed with Asperger’s and high functioning autism spectrum disorder, burned down his house, which behavior his parents attributed to the harassment he endured at school. Since the student’s fire setting incident resulted in an eighteen month incarceration, the student was deprived of his education (which constituted a denial of access to his education, a prerequisite to a valid Section 504 claim in this instance).  Accordingly, the parents’ claims may proceed to trial (at which time the parents would be required to prove their allegations, as well as knowledge and deliberate indifference by school officials).

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Student not entitled to Section 504 services in private schools

Thursday, June 13th, 2013

D.L. v. Baltimore City Board of School Commissioners, 60 IDELR 121 (4th Cir. 2013):  A federal appeals court held that, absent a state law permitting dual enrollment in both a private and public school, a student enrolled in a private religious school (based on parent preference) is not entitled to receive Section 504 services.  The student, diagnosed with ADHD (and having difficulties with attentiveness, focus, and hyperactivity), did not qualify for an IEP under the IDEA, but the school district determined he did qualify for services under Section 504.

The school district conditioned its provision of such Section 504 services on the student’s enrollment in the public school system.  His parents, however, elected to enroll him in a private religious school.  The Court held that, the district was not obligated to provide services in the private school.  The Court relied on a prior letter from the federal Education Department’s Office of Civil Rights (OCR) finding that, if a district offers an appropriate education, that district is not responsible for the provision of educational services to students who are not enrolled in the public education program “based on the personal choice of the parent or guardian.”  Since Maryland, unlike some other states, did not permit dual enrollment, its public schools had no obligation to provide Section 504 services to students in private schools.

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Student’s progress and expanded IEP demonstrate appropriateness, denying parent reimbursement for unilateral private placement

Monday, June 10th, 2013

McCallion v. Mamaroneck Union Free School District, 60 IDELR 162 (S.D.N.Y. 2013):  A federal district court denied a parent’s request for tuition reimbursement where the student demonstrated progress under his prior IEPs, and the school district worked with the parents to respond to their concerns regarding his program.  Concerned about his ability to make progress in high school based on the programming the school district offered, the parents ultimately enrolled the student (diagnosed with a specific learning disability, as well as ADHD, anxiety and an adjustment disorder) in a private school designed for students with his needs.

Notwithstanding the parents’ unilateral placement, they still participated in an IEP team meeting which resulted in an amended IEP in October of that school year.  Also, the student received passing marks, and progressed from grade to grade prior to the school year in which he was enrolled in the private school.  Since the October IEP incorporated several additional recommendations and accommodations with respect to reading (one of the student’s biggest areas of need), the district offered the student a free appropriate public education and the parents were therefore not entitled to reimbursement.

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Districts must make extracurricular programs, including athletics, accessible to students with disabilities

Thursday, June 6th, 2013

Dear Colleague Letter, 60 IDELR 167 (OCR 2013):  The federal Education Department’s Office of Civil Rights (OCR) issued policy guidance on school district responsibilities relating to extracurricular activities, particularly extracurricular athletics.  OCR noted that a district must ensure students with disabilities have an equal opportunity to participate in extracurricular athletics, even if such opportunity requires that a school provide needed aids and services. Similarly, if a school cedes any control over its interscholastic athletic program to outside associations or leagues, such associations or leagues would also have to comply with Section 504 and ensure students with disabilities are reasonably accommodated.

OCR further noted that, where necessary, a school may need to create separate or different athletic opportunities.  However, such opportunities would only be indicated where a student (or students) with a disability cannot suitably participate alongside their nondisabled peers even with reasonable modifications.

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District’s failure to include parent counseling in IEP (although made available) and to conduct FBA were procedural violations, but not enough to find denial of FAPE

Monday, June 3rd, 2013

F.B. and E.B. ex rel. L.B. v. New York City Dep’t of Educ., 60 IDELR 189 (S.D.N.Y. 2013)—the parents in this case had notified the CSE team of their intent to place their son, classified with autism, in a private school and seek reimbursement. The parents filed a due process complaint alleging, among other things, that the failure to conduct a FBA and the failure to include parent counseling in the IEP amounted to a denial of FAPE to their child. The IHO agreed with the parents and awarded reimbursement, but the SRO reversed the IHO. The District Court agreed with the SRO that the parents were not entitled to reimbursement because neither procedural violation amounted to the denial of FAPE. Though a failure to conduct an FBA is a procedural violation, it will not result in the denial of FAPE if the IEP adequately identifies the problem behavior and ways to manage it. Also, the lack of providing for parent counseling in the IEP was not a fatal procedural violation because in fact, counseling services were made available to the parents. The court also viewed both procedural violations in the aggregate and held that cumulatively, the violations did not result in a denial of FAPE. As such, the court upheld the SRO’s decision denying reimbursement to the parents.

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