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The GAP Attorneys Blog

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

Posts Tagged ‘autism spectrum’

School district may not cure deficient evaluation to avoid paying for an IEE.

Monday, August 29th, 2011

M.Z. v. Bethlehem Area School District, 57 IDELR 5 (E.D. Pa. 2011):  A U.S. District Court determined that a state hearing officer erred when she ordered a school district to simply update an inappropriate evaluation rather than ordering a new and complete evaluation.

The parents of a student with a central auditory processing disorder, and pervasive developmental disorder, not otherwise specified (on the autism spectrum) requested an independent educational evaluation (IEE) as a result of the district’s failure to conduct an appropriate evaluation of the student.  The district, instead of paying for the IEE, filed a due process complaint claiming that its evaluation was appropriate.  The hearing officer found the district’s evaluation was inappropriate, but nevertheless decided not to require a full IEE because the parent “did not really take issue with the accuracy of the test results” of the district.  Instead, the hearing officer ordered the district to cure its inappropriate evaluation by including a classroom observation and input from the student’s teachers and parents.

The Court, agreeing that the evaluation was inappropriate, overturned the hearing officer’s order, noting that the federal regulations do not require specific arguments or disagreements with an evaluation for a parent to become entitled to a publicly funded IEE.  The regulations simply require that the district’s evaluation be inappropriate.  Since the district’s evaluation for this student was inappropriate, the parents were entitled to an IEE at public expense.

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School district’s failure to engage in discussion with parents regarding discontinuation of home instruction services resulted in a finding of predetermination.

Thursday, July 14th, 2011

Board of Education of the Hicksville Union Free School District v. Schaefer, 56 IDELR 234 (N.Y. App. Div. 2011):  The Appellate Division of the Supreme Court of the State of New York (and the trial court) agreed with the State Review Officer’s (SRO) finding that the school district denied a student a FAPE by deciding to discontinue various home instruction services without any meaningful input from the parents.

The student, who was classified as multiply disabled due to diagnoses of pervasive development disorder, not otherwise specified, and moderate mental retardation, received various therapies (including speech and occupational therapy) as well as special education instruction in his home, as part of his IEP, due to his inability to make sufficient progress in a school program alone.  At a May 23, 2005, IEP team meeting, the team recommended continuing such home instruction services.  However, subsequent to that IEP team meeting, the parents decided that the recommended school placement was no longer suitable and pursued a different school.

As a result, the IEP team met in August and September of 2005 to revise the student’s IEP to reflect a change in his recommended school placement.  Prior to these meetings, the district decided, without input from the parents, to discontinue the home instruction services.  At the IEP team meetings, the parents and their representatives repeatedly attempted to address this discontinuation.  However, the district did not engage in any substantive discussion on the issue and the IEPs relating to these meetings reflected such a change.  Based on the district’s failure to discuss its determination to discontinue home instruction services, the SRO found that the district had predetermined the student’s placement and denied the student a FAPE (and both courts agreed).

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School district may be ordered to pay retroactive tuition directly to unilateral private placement.

Monday, June 20th, 2011

D.A. v. New York City Department of Education, 56 IDELR 42 (S.D.N.Y. 2011):  A U.S. District Court held that a school district may be ordered to pay tuition directly to a private school in a which a student is unilaterally placed by his or her parents.  The parent need not actually pay the expense, as long as the parent is legally obligated to do so.

The parents enrolled the student (who had been diagnosed with Asperger’s Syndrome, bipolar disorder, and ADHD) in a private school.  In both the impartial hearing, and appeal to the State Review Officer (SRO), the parents demonstrated that the school district did not offer the student a FAPE, and that the private placement was appropriate.  Additionally, the equities favored the parents.  However, the SRO determined that the parents were not entitled to reimbursement because they were only able to make nominal payments towards the $84,900 annual tuition at the unilateral placement.  The SRO said that the parents could not seek direct payment of tuition for payments they had not actually made.

The Court overturned that determination, noting that the “consistent message” in IDEA decisions is that “a child’s access to FAPE cannot be made to depend on his or her family’s financial ability to ‘front’ the costs of private school tuition.”  Absent an allegation of bad faith or collusion on the part of the parents and/or private school, the remedies available under the IDEA include retroactive direct payment of tuition to a unilateral placement.

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School’s alleged condoning of peer harassment and bullying provides basis to pursue Section 504 and ADA claims.

Thursday, November 18th, 2010

M.Y. v. Grand River Academy, 54 IDELR 255 (N.D. Ohio 2010):  A U.S. District Court denied a school’s motion to dismiss Section 504 and ADA claims.  A student with Aspeger’s Syndrome sued a school for money damages alleging discrimination under Section 504 and the ADA.  The student claimed that the school had a policy of allowing upperclassmen to punish and haze younger students while the administration looked the other way, and that, as a student with a disability, he was punished more harshly than non-disabled students.

The student further alleged that the bullying and harassment at the hands of his peers included physical assaults, which resulted in the student’s depression and threats to harm himself.  The Court, assuming these allegations are true as part of its determination of a motion to dismiss, determined that the allegations were sufficient to allow the student’s case to proceed.

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School district violated Child Find by delaying a full evaluation of a student, despite having enough information to suspect a disability.

Monday, November 15th, 2010

D.A. v. Houston Independent School District, 54 IDELR 168 (S.D. Tex. 2009):  A U.S. District Court upheld a hearing officer’s determination that a school district violated the IDEA’s child find requirements when it failed to complete a full evaluation of a first grade child in a timely manner.  The school district had a reasonable suspicion of a disability in October of 2007, when the student’s first grade teacher reported that the student was academically deficient, and also had behavioral issues.  The student was independently diagnosed with a severe learning disability, and a pervasive developmental disorder (on the autism spectrum).  However, his educational evaluation was not completed until late January, despite repeated requests from the student’s mother to evaluate.  The hearing officer determined, and the District Court agreed, that the school district violated child find, particularly in light of its failure to provide the student’s mother with an explanation for the delay.  The Court noted that pre-referral strategies do not excuse child find violations.

Nevertheless, the District Court also upheld the hearing officer’s determination that no relief was warranted in this case.  The hearing officer had held that, the student and his mother’s relocation to another school district rendered their claims moot.  Although the District Court disagreed and determined that the student’s claim for compensatory relief precluded mootness, it concluded that the parents had not submitted any evidence supporting their claims for compensatory relief.

Additionally, and separately, the Court noted that to the extent that the school district had a policy of not referring young students for special education testing “for a short time in their initial years” in order to “allow young children time to develop,” there was no constitutional violation notwithstanding that the student’s mother repeatedly requested that her son be evaluated from the time he was in preschool through kindergarten.

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