Goldstein, Ackerhalt & Pletcher
70 Niagara Street, Suite 200 Buffalo , New York, 14202
Phone: 716-362-1533
Fax: 716-362-1534

The GAP Attorneys Blog

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

States may not rely solely on “cut score” for SLD eligibility

June 5th, 2014

Letter to Delisle, 62 IDELR 240 (OSEP 2013): The federal Department of Education’s Office of Special Education Programs (OSEP) reiterated its position that gifted students (i.e. – students with high cognition) may still be eligible for services under the IDEA if such students require special education and related services.  OSEP noted that, since the IDEA requires the use of various assessments, an IEP team would not be able to deny a student eligibility on the basis that such student scored above a particular “cut” score on a particular assessment.  OSEP noted “no assessment, in isolation, is sufficient to indicate that a child has a [specified learning disability].”

Tags: , , ,
Posted in Uncategorized | Comments Off on States may not rely solely on “cut score” for SLD eligibility

School provided FAPE, despite no FBA or parent counseling

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.

Tags: , , , , , , ,
Posted in Uncategorized | Comments Off on School provided FAPE, despite no FBA or parent counseling

Withdrawal of IDEA consent does not automatically withdraw 504 consent

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.”

Tags: , , , ,
Posted in Uncategorized | Comments Off on Withdrawal of IDEA consent does not automatically withdraw 504 consent

FERPA only requires access to records, not copies

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.

Tags: , , ,
Posted in Uncategorized | Comments Off on FERPA only requires access to records, not copies

SRO’s delay excuses exhaustion requirement

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.

Tags: , , ,
Posted in Uncategorized | Comments Off on SRO’s delay excuses exhaustion requirement

Cost of IEE includes presentation to IEP team

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.

Tags: , , , , ,
Posted in Uncategorized | Comments Off on Cost of IEE includes presentation to IEP team

School’s vague description of proposed transfer allows student to stay put

April 24th, 2014

Douglas v. District of Columbia, 62 IDELR 111 (D.D.C. 2013): A federal district court ordered a school district to maintain a student classified as other health impaired in his current school after the district failed to offer a sufficient description of the services the student would receive at an alternative location.  Since the proposed change was vague and amorphous, and failed to assure the Court that the educational services at the new location would remain substantially the same, the Court ordered the district to maintain the student at his current school.

Tags: , , , ,
Posted in Uncategorized | Comments Off on School’s vague description of proposed transfer allows student to stay put

Schools may use community, technical, or postsecondary classes as part of transition services

April 10th, 2014

Letter to Dude, 62 IDELR 91 (OSEP 2013): The U.S. Department of Education’s Office of Special Education Programs informed a school attorney that community, technical, and postsecondary classes may be included on a student’s IEP as transition services, provided that such classes are considered secondary education as per state law.  If the classes are considered secondary education, then they may be included on an IEP where necessary in assisting a student in reaching his or her transition goals and receiving FAPE.

Tags: , , ,
Posted in Uncategorized | Comments Off on Schools may use community, technical, or postsecondary classes as part of transition services

School’s use of evidence relating to specific methodology allowed parent to challenge appropriateness of that methodology

April 3rd, 2014

Y.S. v. New York City Department of Education, 62 IDELR 56 (S.D.N.Y. 2013): The New York State Review Officer (SRO) denied the parent’s request for reimbursement, refusing to consider the parents’ evidence regarding the appropriate methodology to teach their child on the autism spectrum since the parents failed to identify that specific issue in their due process complaint (moreover, the selection of a specific methodology is typically within the purview of the school).  However, a federal district court remanded a matter to the SRO with instructions to review additional arguments.  The Court noted that the school district, through its submission of evidence relating to the methodology the district selected, opened the door for the parents to submit their own evidence as a rebuttal to the district’s.  Accordingly, the SRO’s failure to consider the parents’ evidence and arguments regarding methodology was improper and required remand for such consideration.

Tags: ,
Posted in Uncategorized | Comments Off on School’s use of evidence relating to specific methodology allowed parent to challenge appropriateness of that methodology

School’s recommended IEP inappropriate where it focused on student’s physical disability, while his autism presented more significant educational impact

March 27th, 2014

F.O. v. New York City Department of Education, 62 IDELR 51 (S.D.N.Y. 2013): A federal district court overturned the New York State Review Officer’s (SRO) decision denying parents reimbursement for a unilateral placement for their child with autism, global developmental delays, and myasthenia gravis.  The school recommended an IEP which focused on addressing the student’s myasthenia gravis, a condition impacting his speech and writing.  However, the evidence in the underlying impartial hearing demonstrated that the student’s autism spectrum disorder had a much greater educational impact.  Therefore, the student’s autism, and not his physical disability, should have been the focus of his IEP.  Accordingly, the Court overturned the SRO and awarded the parents tuition reimbursement.

Tags: , , , , ,
Posted in Uncategorized | Comments Off on School’s recommended IEP inappropriate where it focused on student’s physical disability, while his autism presented more significant educational impact

Entries (RSS) | Comments (RSS).