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Posts Tagged ‘harmless error’

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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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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District’s failure to transport student to ESY program constitutes denial of FAPE

Monday, June 20th, 2011

Wilson v. District of Columbia, 56 IDELR 125 (D.D.C. 2011): Overturning the decision of an administrative hearing officer, the court concluded that a student with multiple disabilities was denied a free appropriate public education (FAPE) when the school district failed to transport him to the first three weeks of a four week extended school year (ESY) program.  The hearing officer had determined that although the school district had failed to fully implement the student’s IEP, the student was not denied a FAPE since there was no evidence that the student suffered from any education harm.  However, the court determined that the hearing officer applied the wrong legal standard.  While not every failure to implement a student’s IEP amounts to an IDEA violation, the failure to implement “substantial or significant” aspects of a student’s IEP shall be deemed as a denial of FAPE.  After finding that the “substantial or significant” standard was met, the court remanded the case to the hearing officer for a determination as to the appropriate amount of compensatory education services, if any, the student needs in order to place him in the same place he would have been if had not been denied a FAPE.

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Omission of counseling services from student’s IEP was harmless error that did not deny student FAPE

Monday, May 16th, 2011

M.H. v. New York City Department of Education, 56 IDELR 69 (S.D.N.Y. 2011): Agreeing with the decision of the state review officer (SRO), a federal district court from New York determined that the omission of the duration and frequency of counseling services in the Related Services section of the IEP of a student with anxiety and emotional issues did not deny the student a free appropriate education (FAPE).  Such omission was “harmless error” since counseling was discussed elsewhere in the IEP, the frequency and duration of counseling services were in the IEP meeting minutes, and the service was actually provided to the student.

The Court also rejected the parents’ argument that the school district did not timely arrange for the appropriate special education program and services to be provided to the student within 60 days of the receipt of parental consent to evaluate the student, consistent with New York state law.  Although the parents provided the school district with a letter on February 27, 2009 requesting that a FAPE be provided to the student, the school district did not receive the parents’ consent to evaluate until April 3, 2009.  Since a request for services is not the same as a consent to evaluate, the May 29, 2009 IEP meeting was timely.

Moreover, the Court concluded that the school district did not violate the law when it decided to rely on evaluations independently obtained by the parents, instead of conducting its own evaluations.

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Court rejects parents’ claim that transition plan was defective

Friday, December 17th, 2010

Rosinsky by Rosinsky v. Green Bay Area School District, 53 IDELR 193 (E.D. Wis. 2009):  The Court concluded that although the school district may have violated the IDEA by failing to invite a student’s county caseworker to all of the student’s IEP meetings, the school district did not deny the student a FAPE.  The fact that the student, who was other health impaired (cognitive disability and speech and language disability), was making progress toward his transition goals demonstrated that the school district provided the student with an appropriate transition plan.

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School district’s failure to take adequate steps to include parents in an IEP team meeting in which the district made a significant change in placement denied FAPE.

Wednesday, December 15th, 2010

Board of Education of the Toledo City School District v. Horen, 55 IDELR 102 (N.D. Ohio 2010):  A U.S. District Court ruled that a school district’s failure to take reasonable steps to include the parents in a planned IEP team meeting resulted in a denial of a free appropriate public education for the student, since at the meeting the school district made a significant change in the student’s placement.  However, since the District never implemented its proposed placement and the parents refused to send the child to their preferred placement, the Court determined the parents were not entitled to any relief.

The student, who was diagnosed with a seizure disorder and a mental capacity in the profound range of mental retardation, as well as a blood disorder, received her education in a special school operated by the school district for disabled and medically fragile children.  The special school had no non-disabled students, but did have two full-time nurses available for generally fewer than twenty students.  At a meeting in April of 2006, the school district proposed to change the student’s placement to a disabled-student classroom in a regular elementary building.  The elementary school only had nursing services available two days per week.  However, the student had significant medical needs in light of her seizure disorder, since (in the event of a seizure) medication needed to be administered rectally to prevent a life-threatening situation.  Only one nurse at the elementary school indicated a willingness to so administer the medication.

The parents were not present at the April 2006 IEP team meeting.  They called the school district to cancel the meeting, but had no further discussion with the school district as to convenient times.  However, on the date of the proposed April 2006 IEP team meeting, the parents met, at the school in which the meeting was to occur, with school district representatives.  The parents left without attending the IEP team meeting, and without any notice from anyone at the school that the IEP team meeting was still to occur.  As a result, the Court determined that the school did not take enough steps to ensure the parents’ participation at the IEP team meeting, amounting to a procedural violation.  Since the meeting resulted in the district’s proposal to change the student to the elementary school, with considerably less medical support, the change was deemed too significant to be harmless, and thus denied the student a FAPE.

However, denial of FAPE in this case did not merit any judicial relief.  As part of their due process complaint, the parents requested that the student’s stay-put placement be the special school (which was ultimately determined to be the appropriate overall placement by the Court).  The school district offered to allow the student to continue to attend the special school, but the parents refused to send her to school because they did not trust her teacher.  Since the district never implemented its proposed change in placement and the parents refused to send their child to the special school (which they initially had requested), the Court ruled that they were not entitled to any relief.

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