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

Archive for July, 2013

Failure to offer seafood-free environment entitles parent to reimbursement

Monday, July 29th, 2013

D.C. v. New York City Department of Education, 61 IDELR 25 (S.D.N.Y. 2013): A federal district court awarded reimbursement to the parent of a student with a pervasive developmental disorder, mild mental retardation, and a severe language disorder.  The student also had a seafood allergy.

The school prepared an IEP recommending a seafood-free environment to ensure the student’s safety.  However, when the parent toured the recommended school she was informed that it was not seafood-free.  Due to the severity of the student’s seafood allergy, the student’s mother continued his enrollment in a private program that accommodated the allergy with a seafood-free environment.  Notwithstanding the school’s assertions that it would have accommodated the student’s needs, the court followed guidance from the Circuit Court of Appeals, which held that retrospective testimony is impermissible.  Accordingly, the district court here held that the school could not retroactively demonstrate its ability, and willingness, to render the school seafood-free.  Instead, the court must determine the parent’s entitlement to reimbursement based on what she understood the recommended placement to be at the time of its recommendation.  Through that lens, the parent here was entitled to reimbursement.

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School district’s failure to discuss natural setting at IEP team meeting gives parent claim for damages

Monday, July 22nd, 2013

Luo v. Baldwin Union Free School District, 60 IDELR 281 (E.D.N.Y. 2013): A federal district court allowed a parent of a student with an autism spectrum disorder to pursue claims for damages based on IDEA violations.  The parent claimed that he had requested his son be placed in a “natural setting environment,” but that the student’s IEP team failed to discuss or present any information about such a possibility.  The parent further alleged that he was unable to pursue his grievances through an impartial hearing due, in part, to malfeasance by school district officials.  The Court (following precedent within that Circuit) allowed the parent to assert claims for damages, brought under Section 1983 of the Civil Rights Act, to proceed based on allegations of procedural violations of the IDEA.  The Court did note, however, that it was construing the parent’s allegations liberally at this particular stage in the proceedings.

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School district must evaluate students for 504 accommodations, regardless of provision of health plan

Thursday, July 18th, 2013

Torrington (CT) Board of Education, 60 IDELR 295 (OCR 2012): The U.S. Department of Education’s Office of Civil Rights (OCR) informed a school district that, in order to comply with Section 504, the school must evaluate students with severe allergies for possible accommodations and modifications.  Here, the school district maintained a policy by which students with allergies received health plans to address their needs without conducting any evaluation or convening a proper Section 504 team.  OCR explained that, to satisfy Section 504, any student suspected of having a disability (which includes students with severe allergies) a school must evaluate that student for accommodations and modifications under Section 504.

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ESY not necessary to provide FAPE to student who had little risk of serious regression over summer break

Monday, July 15th, 2013

C.H. ex rel. F.H. v. Goshen Cent. Sch. Dist., 61 IDELR 19 (S.D.N.Y. 2013)—in this case, a fifth grade student with dyslexia had received ESY services to prevent regression in her English Language Arts (ELA) skills. A Subcommittee of the IEP Team convened to develop the student’s fifth grade IEP, where it considered prior evaluations as well as updated reports from teachers and samples of the student’s work. The Subcommittee decided not to recommend ESY because no regression had been observed. Thereafter, the parents filed a due process complaint challenging (among other actions) the removal of ESY services for ELA. Ultimately, the SRO rejected the IHO’s finding that the student had been denied a FAPE, and the parents appealed that decision. The court, giving due weight to the decision of the SRO, found that the record supported the conclusion that substantial regression was not likely. The court reasoned that the district met its burden of proving the absence of a need for ESY services by providing numerous evaluations by different professionals (including some professionals privately retained by the parents) which revealed no risk of substantial regression over the summer break.

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Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

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Teen entitled to ESY when his reading skills quickly regressed during short breaks from instruction

Monday, July 8th, 2013

Annette K. ex rel. C.K. v. State of Hawaii, Dep’t of Educ., 60 IDELR 278 (D. Hawaii 2013) (this case involves a student with severe dyslexia who had previously received extended school year services (ESY) after breaks from school of more than seven days. An IEP team met to discuss the student’s education, and determined that he was not eligible for ESY. The parent challenged the proposed IEP and unilaterally placed the student in a private school, and also hired a private reading tutor. The Hearing Officer found for the district, stating that though it was inappropriate to deny the student ESY, this was simply a procedural violation that did not fatally flaw the IEP. The parent appealed the Hearing Officer’s decision, arguing that the Hearing Officer’s finding that ESY was inappropriately denied to the student requires a finding that the student was denied a FAPE. The court reversed the Hearing Officer’s decision, finding no explanation for deeming the denial of ESY services as a procedural violation, rather than a substantive violation. Based on evidence of rapid regression in reading skills, and the student’s progress in the private school, the court found that the district failed to provide a FAPE to the student by denying him ESY services. The case was remanded back to the Hearing Officer to determine the proper relief, including whether the parent may be entitled to reimbursement for the unilateral placement and private reading tutor.

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Failure to conduct proper FBA and develop a BIP preclude school district from recommending more restrictive placement

Thursday, July 4th, 2013

Doe v. Regional School Unit No. 21, 60 IDELR 228 (D. Me. 2012):  A federal district court upheld an impartial hearing officer’s determination that a school district’s recommendation to place a student with ADHD, anxiety disorder, low average cognitive ability, global developmental delay, mixed expressive and receptive language disorder, phonological disorder, and fine and gross motor delays, in a more restrictive environment without first conducting a proper functional behavioral assessment (FBA) and developing an appropriate behavior intervention plan (BIP).

The school district believed the student, whose behavior significantly interfered with his learning as well as that of others, needed a more restrictive setting, but the student’s parent insisted on a mainstream setting.  To address the student’s behaviors, a special education teacher and school psychologist discussed a behavioral plan, but no formal FBA was conducted and the informal behavioral plan was never shared with the IEP team.  The hearing officer (IHO) deemed this improper, and ordered the school to conduct a full FBA by a board certified behavioral analyst and develop a BIP.  The IHO also envisioned that, after the BIP had been implemented enough to provide sufficient data, if the student failed to make adequate behavioral progress, only then could the school appropriately recommend a more restrictive setting.

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School district’s $1,800 cap on IEEs is reasonable

Monday, July 1st, 2013

M.V. v. Shenendehowa Central School District, 60 IDELR 213 (N.D.N.Y. 2013):  A federal district court deemed reasonable a school district’s adopted reimbursement cap of $1,800 for an independent educational evaluation (IEE), since there were several qualified local evaluators willing to provide IEEs within that cap.  The district’s policy allowed that such cap may be exceeded in exceptional or unique circumstances.  The parent in this case was unable to demonstrate that the independent evaluation she obtained resulted from such exceptional or unique circumstances and, accordingly, full reimbursement for her IEE was denied.

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