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The GAP Attorneys Blog

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

Posts Tagged ‘BIP’

School district developed an appropriate BIP, despite its failure to conduct an FBA.

Thursday, July 5th, 2012

C.F. v. New York City Department of Education, 57 IDELR 255 (S.D.N.Y. 2011):  A U.S. District Court agreed with the State Review Officer (SRO) in holding that a behavioral intervention plan (BIP) can be properly developed despite a school district’s failure to conduct a functional behavioral assessment (FBA).  The SRO overturned the impartial hearing officer’s (IHO) determination that such failure to conduct an FBA denied the student a free appropriate public education (FAPE).

The student, who was identified as autistic, had previously attended a private school, and was preparing to begin kindergarten.  His parents requested an evaluation by the Committee on Special Education (CSE), which recommended a 6:1:1 classroom and developed a BIP.  The BIP was based exclusively on the reports from the student’s private school teachers and the district did not conduct a formal FBA.  Nevertheless, the Court affirmed the SRO’s decision that the CSE need not conduct an FBA in this case.  The teacher reports were thorough, and although the BIP was admittedly vague, it would be further developed and properly implemented by the proposed classroom teacher.

Separately, the Court also affirmed the SRO’s reasoning that parent training and counseling need not be explicitly included on a student’s IEP.  Here, the IEP failed to identify parent counseling and training as a related service.  However, since the student was being placed in a “specialized school”, and such setting included access to various services provided by a parent coordinator to the parents of students who attend the specialized school, the IEP need not specifically identify parent counseling and training.  Accordingly, since the IEP and BIP offered a FAPE, the Court denied the parents’ request for reimbursement for their unilateral placement.

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School district may be held liable for student’s suicide if it failed to address bullying.

Friday, November 25th, 2011

Estate of Lance v. Lewisville Independent School District, 57 IDELR 168 (E.D. Tex. 2011): A U.S. District Court allowed a suit to proceed alleging that a school district failed to protect a young student with disabilities who committed suicide. The nine year old student, who was diagnosed with an emotional disturbance, a learning disability, and a speech impairment, was bullied by his peers.

The student was called “gay” by other students due to his speech impairment. His classmates were intimidated to avoid him or find themselves subject to ridicule as well. Due to the repeated bullying, the district convened its IEP Team to discuss the student’s depression and resulting suicidal ideation. The district referred the student for a full psychological assessment, which noted a possible disorder on the autism spectrum. The district recommended counseling four times per six week period and implemented a behavior intervention plan.

The student was disciplined as a result of his responses to the bullying, resulting in his placement in an alternative school. Despite the parent’s insistence that the student’s behavior (which resulted in the discipline) was a response to bullying, the district failed to investigate. The student admitted to having suicidal thoughts, to the counselor at the alternative school, but there was no record of the counselor notifying anyone of such admission. After returning to his regular classroom, the student was again subjected to bullying and sent to in-school suspension. While using the restroom in the nurse’s office during his suspension, the student hung himself.

As a result of the circumstances surrounding the student’s suicide, the Court allowed the case to proceed due to a potential “special relationship” between the school and the student where, due to his disabilities, young age, and the affirmative acts taken by the district, the district may be held liable for a violation of the student’s constitutional rights.

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School district violated child find by not evaluating a student for almost three years after a private evaluator identified student as having a learning disability.

Sunday, July 10th, 2011

Long v. District of Columbia, 56 IDELR 122 (D.D.C. 2011):  A U.S. District Court found that a school district had an obligation to evaluate a student as possibly requiring special education or related services upon a 2006 determination by a private evaluator.  In particular, the evaluator determined that the student had a learning disability, and should be further assessed by a speech-language evaluation, an occupational therapy evaluation, a clinical evaluation, and a behavior intervention plan (BIP).  The school district’s IEP team had referred the student to the private evaluator, but took no action based on her evaluation.

Approximately two and a half years after the private evaluator’s evaluation, in March of 2009, the school district conducted another evaluation of the student.  The school district ultimately determined that the student required special education services as a learning disabled student.  However, the school district refused to provide any compensatory education for its failure to classify the student as disabled previously (despite indicating to the parent that it would do so).

The impartial hearing officer ruled in favor of the school district, but the Court overturned that decision.  The Court found that the school district’s child find obligations were triggered in 2006, and that its failure to locate and identify the student as a potential special education candidate at that time denied the student a FAPE.

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