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

Archive for August, 2013

School district did not deny FAPE when parents unreasonably refused to participate in IEP process

Thursday, August 29th, 2013

Horen v. Board of Education of the City of Toledo Public School District, 61 IDELR 103 (N.D. Ohio 2013): A federal district court determined that a school district did not fail to provide a free appropriate public education to a student with multiple, severe disabilities.  The student’s parents filed a due process complaint against the school seeking to keep the student in her child care/education center as opposed to being transferred to one of the district’s public schools.

The hearing officer ordered the school to maintain the student at her child care/education center.  However, the parents refused to enroll the student, in either the child care/education center or public school (or, apparently, any school whatsoever).  The school district repeatedly sought to hold an IEP team meeting, but the parents refused to participate in any IEP team meeting (and similarly refused to make the student available for any testing or evaluation) unless and until the school district allowed the parents to tape-record the IEP team meeting.  The parents also insisted that the school’s attorney not attend the IEP team meeting.  Finding that neither of these preconditions were reasonable, the court determined that the parents impeded the IEP process and the child was not denied a FAPE.

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Manifestation review required for child presumed to be disabled due to pattern of behavior

Monday, August 26th, 2013

Anaheim Union High School District v. J.E., 61 IDELR 107 (C.D. Cal. 2013): A federal district court determined that a school district should have conducted a manifestation determination review for a student not classified under the IDEA.  The district had suspended the student and removed him to a community day school following a disciplinary incident.

The student had ADHD and anxiety, and manifested several behavioral issues in school (including irritability, agitation, and panic attacks).  The school was aware of these issues, and identified the student as a student with a disability pursuant to Section 504 (but not IDEA).  Nevertheless, the Court found that the school should have conducted a manifestation determination review.  The child was presumed to be disabled under the IDEA (and entitled to its protections) because the school had a basis of knowledge to believe the student’s pattern of behavior related to his disability.  Significantly, the court determined that a “pattern of behavior” giving rise to a presumption of disability should not be limited to previous disciplinary issues.

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Private Placement where student progressed was appropriate despite lack of physical therapy services

Thursday, August 22nd, 2013

M.F. v. N.Y.C. Bd. of Educ, d.b.a. N.Y.C. Dep’t of Educ., 61 IDELR 100 (S.D.N.Y. 2013)—the parents of a student with PDD-NOS sought reimbursement for a private school placement. Although the student had been placed by the district in a private school from Kindergarten through fourth grade, the district recommended a public school placement for the upcoming school year. Although the private school, where the student had progressed, lacked physical therapy services, the court determined that a private placement need not offer every service listed in the IEP, in order to be appropriate. The private school offered, and the student received, additional services that significantly overlapped those listed on the IEP. Also, the curriculum was specifically designed for children with similar needs and met the student’s social and emotional needs. Thus, the court granted summary judgment to the parents and ordered full reimbursement for the unilateral private school placement.

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District could not rely on retrospective testimony to show that IEP offered FAPE to student with Autism

Monday, August 19th, 2013

P.K. and T.K. ex rel. S.K. v. N.Y.C. Dep’t of Educ., 61 IDELR 96 (2d Cir. 2013)—in this case, the parents appealed the State Review Officer’s (“SRO”)’s decision that a student with Autism was offered a FAPE. The SRO (relying on the classroom teacher’s testimony about the services she would have provided) concluded that the student would have received sufficient speech and language therapy, though the IEP itself did not specify an adequate amount of speech and language therapy. The Second Circuit Court of Appeals refused to allow retrospective testimony about the individual instruction that would be available in the proposed placement, because that information was not written on the IEP. The court found that the IEP was insufficient by only listing group speech and language therapy, and lacking the 1:1 speech language instruction required by law. Thus, the court reversed the SRO and ordered the parents to be reimbursed for their unilateral private placement. Note: the district court decision at 57 IDELR 139 was posted on this blog on November 4, 2011.

Note: per court order, this decision has not been released for publication in official or permanent law reports.

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District’s failure to reschedule IEP meeting for sick parent resulted in a denial of FAPE

Thursday, August 15th, 2013

Doug C. v. State of Haw. Dep’t of Educ., 61 IDELR 91 (9th Cir. 2013)—in this case, the parent appealed the district’s court judgment that his son with Autism was not denied FAPE when the district held his annual IEP meeting without the parent. The Federal Circuit Court found that this procedural violation amounted to a denial of FAPE, because the district violated IDEA’s critical requirements for parental participation. The parent did not refuse to attend, but asked to reschedule on the morning of the annual review meeting, due to illness. The parent wanted to be physically present at the meeting, and did not accept the district’s suggestions of participating by phone or internet. At the meeting, the child’s placement was changed to his local public school and the parent decided to keep the student at his prior private placement, at his own expense. It was not acceptable for the district to go forward with the meeting without the parent, simply to meet the annual review date deadline, because special education services wouldn’t magically cease if the annual IEP review was overdue. Also, it was not appropriate to give priority to the schedules of other CSE members, because the parent could consent to the absence of other members of the CSE. The 9th Circuit reversed the lower court decision and held that the district denied the student a FAPE because the procedural violation denied an educational opportunity (for the merits of his current placement to be properly considered). Thus, the parent was permitted to seek reimbursement if he could establish that the private school placement was appropriate.

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School’s failure to address bullying permits suit for damages

Monday, August 12th, 2013

M.J.  v. Marion Independent School District, 61 IDELR 76 (W.D. Tex. 2013): A federal district court allowed the parents of a student with bipolar disorder and ADHD to seek damages from a school district which failed to adequately address disability-based bullying.  The court concluded that, under Section 504, a school may be liable for failing to remedy disability-based peer-on-peer harassment.  Accordingly, the suit was permitted to proceed to resolve a genuine dispute as to whether the school acted with deliberate indifference or gross misjudgment when the student notified it of instances of harassment.

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District Court remanded case for more fact finding to determine whether the proposed placement was appropriate, which may entail looking outside four corners of the IEP

Thursday, August 8th, 2013

J.F. and L.V. v. N.Y.C. Dep’t of Educ., 61 IDELR 78 (S.D.N.Y. 2013)—In this case, the parent of a child with speech-language impairment challenged the composition of the placement classroom, which under New York State regulations must meet specific criteria requiring peers with similar needs. Here, the school district asked the court to reconsider its decision to remand the case to the IHO for further fact finding. The District argued that remand would be futile in light of a Second Circuit Court case limiting the use of retrospective testimony in challenges to IEPs. The court declined to adopt the District’s reading of the Second Circuit’s decision for multiple reasons. First, the court looked at the purpose of limiting retrospective evaluation of the IEP and found that here, there was no risk that allowing plaintiffs to challenge the proposed placement classroom would allow them to “game the system” since these issues were previously raised in the due process complaint. Also, because the IEP does not usually include detailed information about the placement classroom, if the parents wanted to challenge one of the details about the classroom not listed in the IEP (but mandated in state regulations), then they must be allowed to look beyond the four corners of the IEP. Therefore, the parents were allowed to present further facts, not known at the time the IEP was developed, regarding the appropriateness of the proposed placement.

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District’s awareness of ongoing bullying triggers duty to investigate under Section 504 and the ADA

Monday, August 5th, 2013

Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cty., Okla., 61 IDELR 69 (N.D. Okla. 2013)—in this case, the parents of a thirteen year old student with Asperger’s brought suit against the school district. Among other things, the parents alleged that the district acted with deliberate indifference when it failed to follow its own policy to investigate allegations of bullying, by failing to respond to reports of at least 32 incidents. The parents alleged incidents of student-on-student bullying, through the use of name-calling and labeling the student based on his difficulties with socialization. Although finding the allegations insufficient to support a claim of district discrimination, the court found that the complaint sufficiently alleged deliberate indifference with regards to disability-based, student-on-student harassment under the ADA and Section 504. Also, the court found a basis for a claim based on the Equal Protection Clause and municipal liability. On those grounds, the parents were allowed to proceed with their claims against the district for disability-based harassment.

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Parent entitled to reimbursement where school’s proposed placement is too restrictive

Thursday, August 1st, 2013

Deer Valley Unified School District v. L.P., 61 IDELR 48 (D. Ariz. 2013): A federal district court awarded reimbursement to the parent of a student with high functioning autism.  The student had an identified need in socializing and communication.

The school prepared an IEP recommending a “special school,” without identifying which specific school the student would attend.  The school district ultimately recommended a specific program in which all the children with autism were non-verbal, and functioning at a lower level than the student.  The evidence showed such a program would not meet the student’s socialization and communication needs, particular since the IEP offered no interaction with non-disabled peers outside of the classroom.  Similarly, although the school district argued that non-disabled peers could push-in to the classroom, the court deemed such an arrangement unsatisfactory in light of the student’s IEP.  Accordingly, the court determined the school district denied the student a free appropriate public education (FAPE).  Since the parent unilaterally placed the student in a private school that addressed his socialization and communication needs, she was entitled to reimbursement.

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