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The GAP Attorneys Blog

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

Archive for May, 2014

School provided FAPE, despite no FBA or parent counseling

Thursday, May 29th, 2014

M.W. v. New York City Department of Education, 61 IDELR 151 (2d Cir. 2013): A federal Court of Appeals upheld the New York State Review Officer’s (SRO) determination that a school district provided a student with autism, ADHD, speech and language disorders, and fine and gross motor deficits, a free appropriate public education (FAPE).  The parent contended that the district’s failure to conduct a functional behavioral assessment (FBA) and the IEP’s failure to provide parent counseling and training denied the student a FAPE.

The Court agreed with the SRO that an FBA was not necessary, as the student’s IEP adequately identified his behavioral impediments along with strategies to address those behaviors.  Accordingly, since the IEP adequately addressed the student’s problem behaviors there was no harm in failing to conduct an FBA.  Similarly, the resources available within the student’s proposed school were sufficient to address any deficiency by failing to provide parent counseling and training.  The Court noted that a failure to provide parent counseling and training, in and of itself, is not sufficient to result in a FAPE denial.  Therefore, the school offered the student FAPE.

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Withdrawal of IDEA consent does not automatically withdraw 504 consent

Thursday, May 22nd, 2014

D.F. v. Leon County School Board, 62 IDELR 167 (N.D. Fla. 2014): A federal district court permitted a suit by the parent of a student with a hearing impairment to continue, notwithstanding the parent’s withdrawal of consent for services in accordance with the IDEA.  The school district argued that the parent’s withdrawal of consent applied not only to IDEA services, but also any services which would be required under Section 504 or the ADA.  The court, however, held that the parent’s 504 and ADA claims could proceed since, as part of her withdrawal of consent, she requested services (such as technology to assist the student in the classroom) in accordance with Section 504.  The court noted that a parent’s refusal to consent to a more comprehensive IEP does not necessarily authorize a school “to refuse to provide technology to help a student hear in other classes.”

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FERPA only requires access to records, not copies

Thursday, May 15th, 2014

Letter to Anonymous, 113 LRP 35720 (FPCO 2013): The federal Department of Education’s Family Policy Compliance Office (FPCO) reiterated its position that the Family Educational Rights and Privacy Act (FERPA) only requires school districts to provide parents with the ability to inspect and review their student’s educational records.  FERPA does not require school districts to provide copies of educational records, except where failing to provide copies would “effectively prevent the parent from obtaining access to the records.”  Since the parent here was within commuting distance of the school, the FPCO determined that such parent was not entitled to copies.

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SRO’s delay excuses exhaustion requirement

Thursday, May 8th, 2014

M.G. v. New York City Department of Education, 62 IDELR 195 (S.D.N.Y. 2014): A federal district court waived the exhaustion requirement for the parents of a student with autism due to the State Review Officer’s (SRO) failure to render a decision in a timely manner.  The parents, aggrieved by certain findings in the decision of the impartial hearing officer (IHO) in their underlying hearing, appealed to the SRO.  However, more than six months passed following the parties’ final submissions and yet the SRO had failed to render any decision.  Accordingly, the court, relying on the excessive administrative delay, waived the parents’ requirement to exhaust through the SRO before initiating a court action.

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Cost of IEE includes presentation to IEP team

Thursday, May 1st, 2014

Meridian Joint School District, No. 2 v. D.A., 62 IDELR 144 (D. Idaho 2014): A federal district court awarded a parent of a student on the autism spectrum reimbursement for an independent educational evaluation (IEE), with such reimbursement to include the private evaluator’s presentation of her findings to the IEP team.  Noting that the parents’ “right to an IEE, let alone their right to participate in decisions on the educational placement” of their son “would mean little if they were left to challenge the District’s experts with a partial assessment or ‘without an expert with the firepower to match the opposition’”, the Court awarded the parents reimbursement for the expenses incurred by the private evaluator in presenting her evaluation to the IEP team.

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