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Posts Tagged ‘IEP’

District Court remanded case for more fact finding to determine whether the proposed placement was appropriate, which may entail looking outside four corners of the IEP

Thursday, August 8th, 2013

J.F. and L.V. v. N.Y.C. Dep’t of Educ., 61 IDELR 78 (S.D.N.Y. 2013)—In this case, the parent of a child with speech-language impairment challenged the composition of the placement classroom, which under New York State regulations must meet specific criteria requiring peers with similar needs. Here, the school district asked the court to reconsider its decision to remand the case to the IHO for further fact finding. The District argued that remand would be futile in light of a Second Circuit Court case limiting the use of retrospective testimony in challenges to IEPs. The court declined to adopt the District’s reading of the Second Circuit’s decision for multiple reasons. First, the court looked at the purpose of limiting retrospective evaluation of the IEP and found that here, there was no risk that allowing plaintiffs to challenge the proposed placement classroom would allow them to “game the system” since these issues were previously raised in the due process complaint. Also, because the IEP does not usually include detailed information about the placement classroom, if the parents wanted to challenge one of the details about the classroom not listed in the IEP (but mandated in state regulations), then they must be allowed to look beyond the four corners of the IEP. Therefore, the parents were allowed to present further facts, not known at the time the IEP was developed, regarding the appropriateness of the proposed placement.

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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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Specially designed instruction must be included on an IEP, even if it constitutes a “best teaching practice” or is part of the district’s regular curriculum.

Thursday, May 2nd, 2013

Letter to Chambers, 59 IDELR 170 (OSEP 2012):  The U.S. Department of Education’s Office of Special Education Programs informed a special education advocate that a school district cannot avoid including specific services on a student’s IEP simply because such services are considered “best teaching practices” or “part of the district’s regular education program.”  A child’s unique needs must be addressed, even if the nature of the instruction provided is also provided to other children (with or without disabilities).

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Retrospective testimony impermissible for reimbursement claims.

Monday, February 25th, 2013

R.E. v. New York City Department of Education, 59 IDELR 241 (2d Cir. 2012):  A federal court of appeals decided a trio of separate cases regarding reimbursement for unilateral placement for students with autism.  The court consolidated the cases to address a specific common question of law: whether an impartial hearing officer (IHO), and any appellate review thereof, can consider “retrospective testimony” to augment or rectify any deficiencies in a proposed IEP.

The court defines retrospective testimony as “testimony that certain services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement.”  Essentially, retrospective testimony amounts to statements regarding the nature of services to the student with a disability by professionals who purportedly would have provided services to a student with a disability in the proposed placement, notwithstanding that such services were not explicitly included on the student’s IEP.  The court rejected retrospective testimony for hearings regarding reimbursement requests for unilateral placements, noting that parents cannot make reliable decisions regarding their child’s programming if they cannot rely on the IEP as drafted.

The court did not limit the analysis of a proposed IEP to the “four corners rule,” in which the analysis only addresses what is specifically written in the IEP.  Instead, districts can offer testimony to explain the nature of the services listed, except that such testimony cannot describe or indicate additional services that were not included in the IEP.

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Appropriateness is decided based on the overall program provided, not just those services included on a student’s IEP.

Wednesday, May 4th, 2011

M.F. v. Irvington Union Free School District, 54 IDELR 288 (S.D.N.Y. 2010):  A U.S. District Court rejected a parent’s claim for reimbursement when the school district provided a number of instructional programs needed by the student with a learning disability, but did not include those instructional programs on the student’s IEP.

The parent argued that since certain classes and supports were not included as part of the student’s IEP, his program was not appropriate.  The impartial hearing officer (IHO) agreed in part, and awarded partial reimbursement.  However, the State Review Officer (SRO) overturned the IHO and awarded no reimbursement (and the Court agreed).

The Court decided that in the absence of controlling authority otherwise, it had the ability to review services provided outside of the IEP in determining whether the student’s program was appropriate.  Since the student received services designed to address his learning disability, his program was appropriate.  Also, the services were not included on the student’s IEP because they were deemed “mainstream” services, or not provided as a “special education” service and since the services were not “special education” per se, they were not required to be included on the student’s IEP.  Therefore, the student was not denied a free appropriate public education.

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Under special circumstances, IEP may not have to specify the length of each session of a related service.

Friday, December 17th, 2010

Letter to Matthews, 55 IDELR 142 (OSEP 2010):  The U.S. Department of Education Office of Special Education Programs (OSEP), in response to an inquiry from an attorney, stated that it is consistent with federal IDEA regulations for an IEP not to specify the length of each session of a related service (in this case, counseling), as long as the IEP clearly states the total number of minutes that each service must be provided.  Federal regulations require that the IEP “include information about the amount of services that will be provided to the child, so that the level of the agency’s commitment of resources will be clear to parents and other IEP team members.”

The IEP in question provided for 600 minutes of counseling per semester over sixteen weekly sessions, but stated that the session times may vary according to the student’s responsiveness, session activity and the student’s individual needs.  OSEP noted that most IEPs would need to state the minutes per session in order to comply with federal law.  However, “there may be special circumstances where the amount of time for each session of related services may vary in order to meet the needs of an individual student.”  Nothing in the IDEA would bar a school district from arranging an IEP similar to the one in question here, at least insofar as “special circumstances” exist that may best be served by varied lengths of sessions.

OSEP left open the question of whether the IEP’s language was consistent with the state’s guidance regarding duration of services (which stated that “how long each ‘session’ will last (number of minutes)” should be included).  OSEP deemed the state agency’s guidance consistent with federal law, provided it took into account that some circumstances may require a less specific statement of duration.

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Bus suspension is to be treated the same as an instructional suspension; a student’s transportation needs are to be determined by the IEP team.

Friday, November 12th, 2010

Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 (OSERS 2009): The U.S. Dept. of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued one of a series of question and answer documents to address issues raised by requests for clarification.  The issue addresses questions relating to transportation.

Transportation is a related service under federal special education regulations and the student’s IEP team is responsible for determining if transportation is necessary for a student with a disability to benefit from special education and related services.  OSERS also explained that the IDEA does not require school districts to transport children in isolation from their peers (such as in separate vehicles).  Instead, districts should “explore options for integrating children with disabilities with nondisabled students.”  Transportation providers, such as bus drivers, should also be informed about the students’ needs, while also being made familiar with protecting the confidentiality of student information.

In addition, OSERS noted that if transportation is included in the student’s IEP, a suspension from the bus is to be treated the same as if the student were suspended from instruction.  If the school district transports the student through an IEP, a suspension may constitute a change in placement, especially if the district does not provide any alternative transportation.

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Compensatory education may be awarded prospectively to students under the age of 21.

Friday, November 12th, 2010

Petrina W. v. City of Chicago Public School District, 53 IDELR 259 (N.D. Ill. 2009):  A federal district court ruled that an impartial hearing officer had the ability to award compensatory education to a 19-year-old student with a learning disability.  The court held that the hearing officer incorrectly ruled that “any claim the student may have for compensatory education is not ripe until she turns 22.”  Instead, “compensatory education can be appropriately sought and granted prospectively—that is, before the student has reached the age of 21.”

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Student’s parents not entitled to reimbursement for private placement where private placement was designed to address student’s drug abuse and behavior issues rather than his educational disabilities.

Thursday, November 11th, 2010

Forest Grove School District v. T.A., 53 IDELR 213 (D. Or. 2009):  A federal district court determined, after balancing the equities, that parents were not entitled to reimbursement for their son’s unilateral private placement.

The student, diagnosed with ADHD and depression, was placed in a private school due to his difficulties in public school.  The parents thereafter requested a hearing seeking reimbursement.  The hearing officer determined that the student was sent to the private placement “for reasons unrelated to his disabilities (i.e., substance abuse and behavioral problems)” as well his educational difficulties.  The parents placed the student in his private school on March 24, 2003, but the court determined that the parents could not have disagreed with the school district’s decision until a final decision was made (in this case, not until August 26, 2003, when the school district ultimately determined that the student was not eligible for services under IDEA or Section 504).

The court weighed several factors, but ultimately decided that, in large part because of the fact that the parents placed the student because of his drug abuse and behavioral problems (and “not because of any disability recognized by the IDEA”), reimbursement should be denied.  The court noted that “the [school district’s] responsibility under IDEA is to remedy the learning related symptoms of a disability, not to treat the underlying disability, or to treat other, non-learning related symptoms.”

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Student’s excessive absenteeism should have prompted action by the school district to respond to attendance issues.

Wednesday, November 10th, 2010

Springfield School Committee v. Doe, 53 IDELR 158 (D. Mass. 2009): A school district has an affirmative duty to take responsive action to a student’s chronic absenteeism, even when there is no “particularized showing of lack of progress or loss of education benefit attributable to [the school district’s] failure to respond” to the student’s absenteeism.  In this case, the student had cognitive, attention, and behavioral issues (plus a history of poor attendance) and was absent in excess of thirty-two (32) days over a period of just two months. Also, one of the goals of the student’s IEP was to improve his handling of school responsibilities, which was “grounded in” the student’s “often being late and walking out of class, among other serious performance problems.”

Although there was no specific indication of any loss of educational benefit due to this chronic absenteeism, there was also no indication that a representative from the school’s Educational Team contacted the student or his guardian to determine the cause of the student’s absences.  This failure was “reason enough for the hearing officer to conclude that he had been denied a FAPE.”  The Court noted that “for the hearing officer to have found otherwise” in light of such circumstances, it “would only encourage school districts to ignore such problems in the hope that no lasting damage will ensue.”

Notably, the Court stated that it would not establish a set number of days of absence or truancy that would trigger a school district’s obligation to determine how to provide a FAPE.  Rather, “each student’s case must turn on its own facts.”

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