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The GAP Attorneys Blog

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

Archive for November, 2013

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

Thursday, November 21st, 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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School districts must complete evaluations and provide comparable services to newly transferred students

Monday, November 18th, 2013

Letter to State Directors of Special Education, 61 IDELR 202 (OSERS 2013): The federal Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) prepared a letter to state-level directors of special education providing additional insight into the evaluation of highly mobile students, as well as the provision of comparable services to such students.  Highly mobile students include those students who transfer school districts frequently (such as children in military or migrant families, and homeless children).

OSERS noted that if a student transfers while its previous school was completing a special education evaluation, the student’s new school should complete the evaluation without delay.  Specifically, the new school cannot defer completion of the evaluation so it may employ its RTI model.

Also, OSERS specifically identified extended school year services (ESY) as a “comparable service” which should be provided when a student transfers school districts.  Comparable services are not limited to those services provided during the traditional school year.

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Reimbursement denied where unilateral placement failed to address student’s needs

Thursday, November 14th, 2013

M.W. v. Board of Education of the Enlarged City School District of Middletown, N.Y., 61 IDELR 140 (S.D.N.Y. 2013): A federal district court upheld the New York State Review Officer’s (SRO) decision that a parent of a student with a learning disability and behavioral problems was not entitled to reimbursement.

The parent withdrew the student from the residential program at which the school district assigned her, and unilaterally placed the student at a different residential program.  Following the unilateral placement, the parent filed a due process complaint alleging a denial of a free appropriate public education (FAPE) and sought reimbursement.  The impartial hearing officer (IHO) agreed with the parent that the child was denied a FAPE and that the unilateral program was appropriate.  The SRO, however, overruled the IHO in part, noting that the parent’s unilateral withdrawal contributed in part to the student’s failure to receive a FAPE.  More significantly, regardless of any FAPE denial, the SRO further overruled the IHO regarding the appropriateness of the unilateral program.  After reviewing the hearing record, the SRO found insufficient evidence to support the IHO’s conclusion that the unilateral program was appropriate, as such program failed to include a sufficient level of special education and related services to meet the student’s needs (both academically and behaviorally).  Accordingly, reimbursement was denied.  The district court upheld the SRO’s conclusions.

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