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Posts Tagged ‘Eligibility’

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

Thursday, 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].”

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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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Unenrollment from school district of residence does not eliminate its obligation to provide a charter school student with an IEP.

Thursday, June 14th, 2012

I.H. v. Cumberland Valley School District, 58 IDELR 94 (M.D. Pa. 2012):  A U.S. District Court held that the IDEA requires a school district to provide a resident student with an IEP even though the student was currently enrolled in a charter school.  The Court distinguished between developing an IEP, or essentially an offer of FAPE, and implementing the IEP, or providing FAPE.

The student, who was identified as having an emotional disability, attended a public cyber charter school due to the emotional difficulties he encountered while attending his local school district.  However, the student’s guardian was considering re-enrolling the student in his public school district of residence.  She requested the school district evaluate the student and develop an IEP in order to adequately weigh her options.  The district failed to develop an IEP, and an impartial hearing officer (IHO) found that the district was not obligated to offer an IEP to a student not enrolled.

The Court overturned the IHO, noting that, while the charter school must provide the student with FAPE, the school district is required to evaluate a proposed student and develop an IEP to designed to offer FAPE.  Here, the guardian requested an IEP to consider the student’s re-enrollment.  Therefore, the school district was required to conduct the evaluation and develop an IEP.  The student’s enrollment in the charter school only affected whether the district was obligated to provide the services identified in the IEP, not whether it was obligated to develop an IEP in the first instance.

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School district did not improperly delay eligibility determination where student made meaningful progress under RTI approach

Wednesday, April 25th, 2012

Daniel P. v. Downington Area School District, 57 IDELR 224 (E.D. Pa. 2011): A federal district court determined that a school district, who utilized a response to interventions (RTI) approach to monitor a student, did not violate its child find obligations by initially opting not to determine the student eligible for IDEA services.  The student responded positively to the school district’s interventions for nearly two school years, until the third semester of the student’s second grade year.  However, when the student stopped making progress he was evaluated by the school district and classified with a specific learning disability by the beginning of his third grade year.  The parents were, therefore, denied tuition reimbursement for their unilateral private school placement.

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Student not eligible for special education where her reading fluency deficiency did not prevent her from reading at, or near, grade level.

Tuesday, December 13th, 2011

H.M. v. Haddon Heights Board of Education, 57 IDELR 186 (D.N.J. 2011):  A U.S. District Court determined that a school district’s declassification of a student with a specific learning disability was proper where the student’s identified deficiency in reading fluency did not prevent her from reading at, or at least near, grade level.  Therefore, she did not require special education and was ineligible for classification.

The student’s evaluations indicated reading fluency skills below grade level.  However, the Court noted that when “viewed in conjunction with the other tests, as well as observations of her teachers” the student was operating at, or near, grade level in overall reading fluency.  The tests and observations also showed the student exhibited little, if any, difficulty with reading comprehension.  Thus, since the student’s reading fluency deficiency was not adversely impacting her educational performance she did not require special education services.  Therefore, the district’s declassification was proper.

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District’s untimely evaluation entitles parents to reimbursement, despite student’s ultimate ineligibility for special education services.

Friday, September 30th, 2011

P.P. v. Anchorage School District, S-13624/13633 (Alaska Supreme Court 2011):  The Supreme Court of the State of Alaska determined that parents were entitled to reimbursement for a private evaluation obtained after the school district failed to respond to their request for an evaluation, notwithstanding that the student was ultimately determined ineligible for special education services.  Although the student was found to have a specific learning disability, it was determined that he did not require special education and related services.

The parents initially requested an evaluation in May of 2007, but the school district responded that it would be unable to conduct the evaluation before the end of the school year.  The parents, by written referral, again requested an evaluation in August of 2007, before the student started second grade.  By late October, the school district had still not initiated its evaluation, nor provided the parents notice of their procedural safeguards.  As a result, the parents obtained a private evaluation at their own expense and filed a due process complaint.  Throughout this time, the parents had privately obtained tutoring for their son.

The school district ultimately completed its evaluation in January of 2008, and the IEP team determined the student ineligible for services under the IDEA.  The school district relied heavily on the evaluation obtained by the parents in making its determination.  The hearing officer, trial court, and state supreme court all agreed that, due to the district’s failure to evaluate the student in a timely manner the parents were entitled to reimbursement for the evaluation they obtained.  However, since the student was deemed ineligible for services under the IDEA, reimbursement for the private tutoring was ultimately denied.

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Student’s academic and behavioral problems were a result of social maladjustment, not an emotional disturbance

Tuesday, September 20th, 2011

W.G. v. New York City Department of Education, 56 IDELR 260 (S.D.N.Y. 2011): The parents of a student with conduct and personality disorders – including Oppositional Defiance Disorder – were denied reimbursement for a unilateral private school placement after the court affirmed the decision of the State Review Officer (SRO) concluding that the student was not eligible for services under the Individuals with Disabilities Education Act (IDEA).  The court found that the student’s academic and behavioral problems were a result of a social maladjustment, which more specifically for this student included narcissistic personality traits, conduct and personality disorders, and substance abuse.  The court noted that “social maladjustment” is specifically excluded from the definition of “emotional disturbance,” which is one of the thirteen disability categories defined in the IDEA and the only disability category for which the parents argued the student met the criteria.

NOTE: Another federal district court in New York arrived at a similar conclusion in a similar case (on almost the same date).  See P.C. v. Oceanside Union Free School District.

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School psychologist’s narrow evaluation emphasizing academics denied student FAPE.

Thursday, September 1st, 2011

G.“J.”D. v. Wisshickon School District, 56 IDELR 294 (E.D. Pa. 2011):  A U.S. District Court determined that a school district denied a student a free appropriate public education because the school psychologist’s evaluation failed to give sufficient weight to the student’s behavioral issues, which were interfering with the student’s learning.

The school psychologist evaluated the student, who had a history of aggressive behaviors, a sensory/processing disorder, and ADHD, and determined that the student’s superior IQ and strong academic progress precluded him from special education services.  However, the student exhibited aggressive and problematic behaviors throughout the school year, and such behaviors escalated while he was undergoing the evaluation process.  According to the student’s teacher, his behavioral issues were significant and interfered with his learning, notwithstanding that he continued to progress academically.

The student’s parent filed a due process complaint, and the hearing officer determined the district’s evaluation inappropriate since it focused on the student’s superior IQ and academic progress to the exclusion of his behavior problems.  The hearing officer also determined the student educationally disabled, entitled to a FAPE, and entitled to compensatory education for the period in which the school district should have found him eligible.  The Court upheld the hearing officer’s determination, noting the school district “had an obligation to look beyond” the student’s cognitive potential or academic progress and address his behavioral issues.

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School district violated Child Find obligations by not evaluating student it assigned to alternative school due to behavioral issues.

Thursday, August 4th, 2011

D.G. v. Flour Bluff Independent School District, 56 IDELR 255 (S.D. Tex. 2011):  A U.S. District Court held a school district violated its Child Find obligations when it failed to evaluate a student under the IDEA after the district assigned the student to an alternative school due to his significant behavioral issues.

The student, who was privately diagnosed with ADHD and Tourette’s Syndrome, began to exhibit significant behavioral issues beginning in the Fall of his ninth grade school year.  As a result, the district assigned him to an alternative school and required that he have 31 “successful” days (i.e. – days without a behavioral incident) at such alternative school before returning to his regular placement.  The student was so assigned multiple times throughout the school year, but despite the repeated behavioral concerns and the fact that he received private diagnoses of ADHD and Tourette’s Syndrome, the district did not evaluate the student pursuant to the IDEA until October of his tenth grade school year.

The Court determined that the student’s behavioral issues, as well as his private diagnoses, gave the school district reason to suspect he had a disability, thereby obligating the district to evaluate the student under IDEA.  By waiting approximately a year from the manifestation of the behavioral problems before conducting an evaluation, the district’s evaluation was untimely.  Accordingly, the Court awarded the student a year of compensatory education.

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School district’s classification of student after consideration of IEE suggests that student was harmed by delay in provision of IEE.

Tuesday, July 5th, 2011

Taylor v. District of Columbia, 56 IDELR 128 (D.D.C. 2011):  A U.S. District Court found that a school district’s delay in providing a student with an independent educational evaluation (IEE) may have denied the student a FAPE.

The school district conducted a psychological evaluation of the student, and its evaluator determined that the student did not qualify for special education services. The IEP team, however, determined that it required additional information before reaching a conclusion.  Subsequent to the IEP team meeting (in early June 2008), the parent requested an IEE.  The school district did not respond, and the parent filed a due process complaint.

In response to the hearing request, and more than four months after the parent requested the IEE, the school district authorized the IEE.  When the IEE was complete (in December of 2008), the corresponding IEP team that determined the student had an emotional disturbance and ADHD, and required a full time therapeutic setting.  Since the hearing officer was not privy to the determination of the IEP team, the Court remanded the case back to the hearing officer for a determination as to whether or not the delay in the IEE denied a FAPE.  The parent requested a finding that a failure to timely respond to an IEE request be held as a “per se” denial of FAPE, but the Court declined to so hold.

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