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Posts Tagged ‘FAPE’

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

Thursday, 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.

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Parent’s participation in IEP process balances equities in her favor

Thursday, March 20th, 2014

A.R. v. New York City Department of Education, 62 IDELR 12 (S.D.N.Y. 2013): A federal district court overturned the New York State Review Officer’s (SRO) decision denying a parent reimbursement for a unilateral placement because she failed to participate in the IEP process.

There was no dispute that the school district failed to provide a free appropriate public education, and the Court relied on the SRO’s determination that the unilateral placement was appropriate for the student with learning disabilities and a speech and language impairment.  The SRO, however, in balancing the equitable considerations gave weight to the parent’s signing of a contract with the unilateral placement referencing the parent’s pursuit of due process rights as a source of payment of tuition.  The SRO thus denied reimbursement, since the equities favored the district.  The Court overturned the SRO, however, noting that the parent participated in the IEP process, visited the proposed public placement, and the enrollment contract gave the parent the ability to withdraw from the private program without financial penalty in the event an appropriate public placement was offered.  Accordingly, the Court awarded the parent reimbursement.

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Failure to include specific standard on IEP goals does not deny FAPE

Thursday, March 6th, 2014

A.M. v. New York City Department of Education, 61 IDELR 214 (S.D.N.Y. 2013): A federal district court upheld the New York State Review Officer’s (SRO) decision that a school district’s failure to identify specific measurement standards for a student’s IEP goals did not deny a free appropriate public education (FAPE).

The student, who had diagnoses of an intellectual disability, expressive language disorder, auditory processing disorder, and fine and gross motor and graphomotor deficiencies, had a number of goals and short term objectives on her IEP.  Some of those goals and objectives carried over from one year to the next (and, in at least one instance, were identical notwithstanding that the student had achieved the objective), while others did not include the specific measurement standard by which the student’s progress toward the goal would be analyzed.  The SRO found, however, that failing to include specific measurement standards is not sufficiently serious enough to constitute a denial of FAPE.  The district court agreed, upholding the SRO.

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ADA presents different compliance responsibilities than the IDEA

Monday, December 9th, 2013

K.M. v. Tustin Unified School District, 61 IDELR 182 (9th Cir. 2013): A federal Court of Appeals held that a school district’s responsibilities under the Americans with Disabilities Act (ADA) and Individuals with Disabilities Education Act (IDEA) are, in certain instances, separate and distinct.

The plaintiffs were two students with hearing loss who received services under the auspices of an Individual Education Program (IEP).  Both students requested but were denied realtime transcription services for their academic programs, on the rationale that their IEPs provided them with sufficient educational benefit.  The lower court dismissed the students’ ADA claims, considering them coextensive with their IDEA claims.

The Court of Appeals overturned the lower court, noting that ADA regulations can impose separate and distinct compliance obligations when compared to the IDEA (and Section 504) free appropriate public education (FAPE) requirements.  Specifically, the ADA establishes certain communication standards each public agency must meet to ensure “equal opportunity” for communication.  Such a standard may be over and above, and distinct from, that which is required by the IDEA.  Accordingly, the Court of Appeals overturned the lower court’s finding that the students’ ADA claims were precluded by finding no denial of FAPE.

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District’s failure to reschedule IEP meeting for sick parent resulted in a denial of FAPE

Thursday, August 15th, 2013

Doug C. v. State of Haw. Dep’t of Educ., 61 IDELR 91 (9th Cir. 2013)—in this case, the parent appealed the district’s court judgment that his son with Autism was not denied FAPE when the district held his annual IEP meeting without the parent. The Federal Circuit Court found that this procedural violation amounted to a denial of FAPE, because the district violated IDEA’s critical requirements for parental participation. The parent did not refuse to attend, but asked to reschedule on the morning of the annual review meeting, due to illness. The parent wanted to be physically present at the meeting, and did not accept the district’s suggestions of participating by phone or internet. At the meeting, the child’s placement was changed to his local public school and the parent decided to keep the student at his prior private placement, at his own expense. It was not acceptable for the district to go forward with the meeting without the parent, simply to meet the annual review date deadline, because special education services wouldn’t magically cease if the annual IEP review was overdue. Also, it was not appropriate to give priority to the schedules of other CSE members, because the parent could consent to the absence of other members of the CSE. The 9th Circuit reversed the lower court decision and held that the district denied the student a FAPE because the procedural violation denied an educational opportunity (for the merits of his current placement to be properly considered). Thus, the parent was permitted to seek reimbursement if he could establish that the private school placement was appropriate.

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Teen entitled to ESY when his reading skills quickly regressed during short breaks from instruction

Monday, July 8th, 2013

Annette K. ex rel. C.K. v. State of Hawaii, Dep’t of Educ., 60 IDELR 278 (D. Hawaii 2013) (this case involves a student with severe dyslexia who had previously received extended school year services (ESY) after breaks from school of more than seven days. An IEP team met to discuss the student’s education, and determined that he was not eligible for ESY. The parent challenged the proposed IEP and unilaterally placed the student in a private school, and also hired a private reading tutor. The Hearing Officer found for the district, stating that though it was inappropriate to deny the student ESY, this was simply a procedural violation that did not fatally flaw the IEP. The parent appealed the Hearing Officer’s decision, arguing that the Hearing Officer’s finding that ESY was inappropriately denied to the student requires a finding that the student was denied a FAPE. The court reversed the Hearing Officer’s decision, finding no explanation for deeming the denial of ESY services as a procedural violation, rather than a substantive violation. Based on evidence of rapid regression in reading skills, and the student’s progress in the private school, the court found that the district failed to provide a FAPE to the student by denying him ESY services. The case was remanded back to the Hearing Officer to determine the proper relief, including whether the parent may be entitled to reimbursement for the unilateral placement and private reading tutor.

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After Parent withdrew consent to provide special education and related services under IDEA, the District satisfied its 504 FAPE obligations by convening a meeting to develop a 504 plan

Thursday, June 20th, 2013

Kimble ex rel. B.K. v. Douglas Cty. Sch. Dist. RE-1, 60 IDELR 221 (D. Colo. 2013)—in this case, the student had been receiving special education and related services pursuant to an IEP. In response to receiving the proposed IEP for the next school year, the parents formally revoked their consent to the District providing special education and related services to their child. The Director of Special Education informed the parents (erroneously) that by withdrawing consent for services under IDEA, the parents effectively withdrew consent for those services under a 504 plan. Nevertheless, the District convened a 504 meeting at the parents’ request and offered a 504 plan “to implement the services as identified” in the previously rejected IEP. The parent who rejected the Section 504 plan but continued to seek accommodations under Section 504 filed a due process complaint, alleging discrimination under Section 504 and Title II of the ADA. The court held that revocation of parental consent to provide IDEA services does not eliminate the District’s obligations under Section 504 and the ADA. However, here the District convened a 504 meeting and proposed a 504 plan. Thus, the parents cannot hold the District liable for discrimination by not providing accommodations that they rejected under the 504 plan.

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District’s failure to include parent counseling in IEP (although made available) and to conduct FBA were procedural violations, but not enough to find denial of FAPE

Monday, June 3rd, 2013

F.B. and E.B. ex rel. L.B. v. New York City Dep’t of Educ., 60 IDELR 189 (S.D.N.Y. 2013)—the parents in this case had notified the CSE team of their intent to place their son, classified with autism, in a private school and seek reimbursement. The parents filed a due process complaint alleging, among other things, that the failure to conduct a FBA and the failure to include parent counseling in the IEP amounted to a denial of FAPE to their child. The IHO agreed with the parents and awarded reimbursement, but the SRO reversed the IHO. The District Court agreed with the SRO that the parents were not entitled to reimbursement because neither procedural violation amounted to the denial of FAPE. Though a failure to conduct an FBA is a procedural violation, it will not result in the denial of FAPE if the IEP adequately identifies the problem behavior and ways to manage it. Also, the lack of providing for parent counseling in the IEP was not a fatal procedural violation because in fact, counseling services were made available to the parents. The court also viewed both procedural violations in the aggregate and held that cumulatively, the violations did not result in a denial of FAPE. As such, the court upheld the SRO’s decision denying reimbursement to the parents.

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Flaw in IEP team composition did not amount to a denial of FAPE because parents had meaningful participation in the process

Monday, May 20th, 2013

DiRocco ex rel. M.D. v. Board of Educ. of Beacon City Sch. Dist., 60 IDELR 99 (S.D.N.Y. 2013)—in this case, the parents unilaterally placed their child in a private school from fifth grade through eighth grade. In order to develop an IEP for the student’s ninth grade year, the District received consent to obtain his educational records from the private school (though they never obtained the records) and developed a draft IEP in advance of the CSE annual review meeting. The draft IEP was based on the previous year’s IEP, a comprehensive neuropsychological evaluation, and a psychoeducational re-evaluation performed by the school psychologist who also participated in amending the IEP. The parents disapproved of the draft IEP because of the larger class size, and stated that they wanted a duplicate program to the one he was currently benefiting from at the private school. The parents ultimately rejected the proposed IEP and evidenced their intent to re-enroll him in the private school for ninth grade and to seek reimbursement for such placement. The IHO found that there was a denial of FAPE (substantively and procedurally), but the SRO overturned the IHO’s decision entirely, holding that the district had in fact offered the student a FAPE. With respect to procedural violations, the SRO found harmless error. Specifically, though the IEP team composition did not comply with the technical requirements, the parents did not allege any specific harm caused by the lack of participation by an appropriate regular education teacher. Also, the lack of discussion of goals at the CSE meeting did not, by itself, render the goals inappropriate or deny the parents meaningful opportunity to participate in the development of their child’s IEP. The parents appealed the SRO’s decision and the District Court agreed with the SRO that the IEP was reasonably calculated to provide the student with educational benefits and would allow him to make educational progress, and the parents had a meaningful opportunity to participate in development of the IEP.

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No procedural violation when guardian who lacked notice of CSE meeting was in regular contact with school staff

Monday, May 6th, 2013

N.B. by L.K. v. Demopolis City Bd. of Educ., 60 IDELR 66 (S.D. Ala. 2012)—this case involves a student, classified as “Other Health Impaired,” (diagnosed with Oppositional Defiance Disorder (ODD), Mood Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and Post-traumatic Stress Disorder (PTSD)) who transferred intrastate to another school district. The student had an IEP at Jefferson County, and when he transferred to Demopolis County School District in August 2010, the Jefferson County IEP was still in effect until November 2010. When the Jefferson County IEP was set to expire, two meeting notices were sent home with the student, but the teacher did not follow up regarding the proposed meeting. The guardian did not attend the meeting but received a copy of the IEP in the mail, as the team had decided to adopt and extend the Jefferson County IEP for another school year. After the student physically assaulted a teacher and the school principal, he was suspended and his legal guardian requested a due process hearing on the basis that she did not agree to adopt or extend the use of the Jefferson County IEP, and if she had been given notice of the meeting, she would have attended. The Impartial Hearing Officer (IHO) found that there was no denial of FAPE, and that the District had complied with the IDEA requirements in developing the student’s IEP. The student’s guardian appealed the IHO’s decision. The State Review Officer (SRO) reviewed the hearing record and found that there was sufficient evidence showing that the guardian had been consulted regarding the student’s IEP. Thus, the SRO held the guardian failed to show that harm occurred as a result of her absence from the IEP meeting, and affirmed the IHO’s decision that the District did not deny the student a FAPE.

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