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

Posts Tagged ‘least restrictive environment’

Reimbursement denied where student was capable of being educated in general setting with special education aids, services, and accommodations

Monday, December 2nd, 2013

J.C.S. v. Blind Brook-Rye Union Free School District, 61 IDELR 219 (S.D.N.Y. 2013): A federal district court denied a parent’s request for reimbursement for a unilateral placement, confirming the conclusion of the New York State Review Officer (SRO).

The parent sought reimbursement for a private program in which she unilaterally enrolled her son with ADHD and learning disabilities.  Notwithstanding the parent’s placement, the school district’s IEP team met and recommended a program in a general education setting with a wide array of various special education and related services, as well as supplementary aids and services and accommodations.  The parent argued that the volume of aids, services, and accommodations indicated that the general education setting was inappropriate.  However, the strength of the student’s academic skills led the SRO to conclude that the general education setting was appropriate in terms of restrictiveness and therefore the school did not deny the student a free appropriate public education (FAPE).  Accordingly, reimbursement was denied.  The district court agreed, and upheld the SRO’s decision.

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Parent entitled to reimbursement where school’s proposed placement is too restrictive

Thursday, November 21st, 2013

Deer Valley Unified School District v. L.P., 61 IDELR 48 (D. Ariz. 2013): A federal district court awarded reimbursement to the parent of a student with high functioning autism.  The student had an identified need in socializing and communication.

The school prepared an IEP recommending a “special school,” without identifying which specific school the student would attend.  The school district ultimately recommended a specific program in which all the children with autism were non-verbal, and functioning at a lower level than the student.  The evidence showed such a program would not meet the student’s socialization and communication needs, particular since the IEP offered no interaction with non-disabled peers outside of the classroom.  Similarly, although the school district argued that non-disabled peers could push-in to the classroom, the court deemed such an arrangement unsatisfactory in light of the student’s IEP.  Accordingly, the court determined the school district denied the student a free appropriate public education (FAPE).  Since the parent unilaterally placed the student in a private school that addressed his socialization and communication needs, she was entitled to reimbursement.

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Parent entitled to reimbursement where school’s proposed placement is too restrictive

Thursday, August 1st, 2013

Deer Valley Unified School District v. L.P., 61 IDELR 48 (D. Ariz. 2013): A federal district court awarded reimbursement to the parent of a student with high functioning autism.  The student had an identified need in socializing and communication.

The school prepared an IEP recommending a “special school,” without identifying which specific school the student would attend.  The school district ultimately recommended a specific program in which all the children with autism were non-verbal, and functioning at a lower level than the student.  The evidence showed such a program would not meet the student’s socialization and communication needs, particular since the IEP offered no interaction with non-disabled peers outside of the classroom.  Similarly, although the school district argued that non-disabled peers could push-in to the classroom, the court deemed such an arrangement unsatisfactory in light of the student’s IEP.  Accordingly, the court determined the school district denied the student a free appropriate public education (FAPE).  Since the parent unilaterally placed the student in a private school that addressed his socialization and communication needs, she was entitled to reimbursement.

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Failure to conduct proper FBA and develop a BIP preclude school district from recommending more restrictive placement

Thursday, July 4th, 2013

Doe v. Regional School Unit No. 21, 60 IDELR 228 (D. Me. 2012):  A federal district court upheld an impartial hearing officer’s determination that a school district’s recommendation to place a student with ADHD, anxiety disorder, low average cognitive ability, global developmental delay, mixed expressive and receptive language disorder, phonological disorder, and fine and gross motor delays, in a more restrictive environment without first conducting a proper functional behavioral assessment (FBA) and developing an appropriate behavior intervention plan (BIP).

The school district believed the student, whose behavior significantly interfered with his learning as well as that of others, needed a more restrictive setting, but the student’s parent insisted on a mainstream setting.  To address the student’s behaviors, a special education teacher and school psychologist discussed a behavioral plan, but no formal FBA was conducted and the informal behavioral plan was never shared with the IEP team.  The hearing officer (IHO) deemed this improper, and ordered the school to conduct a full FBA by a board certified behavioral analyst and develop a BIP.  The IHO also envisioned that, after the BIP had been implemented enough to provide sufficient data, if the student failed to make adequate behavioral progress, only then could the school appropriately recommend a more restrictive setting.

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Parent denied reimbursement where student made progress under prior IEP.

Monday, October 1st, 2012

Dzugas-Smith v. Southold Union Free School District, 59 IDELR 8 (E.D.N.Y. 2012):  A U.S. District Court affirmed the decisions of administrative officers denying parents of a student with learning disabilities reimbursement for a unilateral placement.  The administrative officers (including hearing officer, and State Review Officer) consistently concluded that the student’s demonstrated progress in her program prior to her unilateral placement showed the program offered by the district provided a FAPE.

The student had a history of developmental and learning problems, and was classified as a student with a disability for fifth and sixth grade.  From fifth to sixth grade, the student demonstrated a certain degree of progress on both her report card and state level assessments.  The district recommended the student continue in a similar program for seventh grade, but the parents disagreed and sought a private school placement.  The hearing officers and SRO both gave weight to the noted progress, and found the public program to be the least restrictive environment appropriate for the student.  Accordingly, reimbursement was denied.

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Student needs more restrictive placement due to his behavioral issues, despite his high academic functioning.

Thursday, May 24th, 2012

J.P. v. New York City Department of Education, 58 IDELR 96 (E.D.N.Y. 2012):  A U.S. District Court affirmed the New York State Review Officer’s (SRO) determination that the school district offered a free appropriate public education to a student with an emotional disability.  Notwithstanding the student’s high level of academic functioning, he required a more restrictive placement.  Specifically, the student exhibited several behaviors that interfered with his ability to learn and disrupted the learning environment for his classmates.

The SRO overturned a ruling by an impartial hearing officer (IHO) awarding the parents reimbursement for their unilateral placement.  The parents placed the student in a private program which allowed the student to progress in a general education setting.  However, based on the information available at the CSE meeting, the CSE recommended a 12:1:1 classroom in order to address his disruptive behaviors.  No one at the CSE meeting, including the student’s mother, requested a general education setting.  The Court gave little weight to the progress the student made in his private program, since that information was not available to the CSE.  Accordingly, the Court agreed with the SRO’s determination that, based on the information the CSE did have, its recommendation was appropriate.

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Parent denied reimbursement where unilateral placement was too restrictive, and therefore inappropriate.

Monday, June 27th, 2011

J.G. v. New York City Department of Education, 56 IDELR 68 (S.D.N.Y. 2011):  A U.S. District Court denied a parent of a child with ADHD (classified as other health impaired) reimbursement for a private, residential school located out of state.  The school district had previously paid private tuition for the student, including all or part of the student’s tuition at the out-of-state residential school for at least two years.  However, the school district ultimately declassified the student, resulting in the parent’s unilateral placement.

The school district (untypically) conceded it did not offer the student a FAPE, leaving the Court to analyze the appropriateness of the private placement chosen by the parent.  After reviewing the administrative record, the Court found such private placement to be too restrictive.  The Court stated that the record did not demonstrate that the student required the intense level of service provided at the private school.  The Court, noting that the parent did not demonstrate that the student required a setting limited solely to learning disabled students or a setting with a 6:1 teacher ratio, let alone a residential placement, determined that the parent’s unilateral placement was too restrictive and denied reimbursement.

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Parentally chosen private preschool does not become a default placement when a school district does not offer its own general preschool program.

Tuesday, November 16th, 2010

R.H. v. Plano Independent School District, 54 IDELR 211 (5th Cir. 2010):  A U.S. Court of Appeals rejected the argument by parents of a four-year-old child with autism and a speech and language impairment that when a school district does not run its own mainstreamed preschool program, the one chosen by the parents becomes the child’s placement by default.

The parents disputed the appropriateness of the school district’s recommended placement since the student would not interact as much with his non-disabled peers in the district’s placement.  The school district placed the student in a class that included both special education and typically developing students (the parents had initially placed the student in a program in which the ratio of typically developing students to special education students was higher).  Additionally, the school district’s placement offered occupational therapy and speech therapy, while the program the parents chose could not offer such services.

The student was enrolled in the district’s placement, but the parents ultimately determined that the student was regressing and instead decided to place him back at the preschool of their choosing.  However, that program was not certified in special education and, for the summer period for which the parents sought reimbursement, offered little, if any, actual education programming at all.

The parents argued that when the school district does not offer purely mainstreamed public preschool classes, the presumption should be that the student be placed by default in the only mainstream program available (that chosen by the parents), as the least restrictive environment.  The Court rejected that argument, saying instead that private schools not chosen by the district should be the last resort.  As a result, the parents were denied reimbursement.

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Court overturned a determination by an impartial hearing officer that a residential placement was appropriate, when it was not recommended by the IEP team and not sought by the parent.

Saturday, November 13th, 2010

Millay v. Surry School Department, 53 IDELR 292 (D. Me. 2009):  A federal magistrate judge determined that a hearing officer’s ruling that a residential out-of-district placement offered the student a FAPE was erroneous.  The student (who was deaf-blind, non-verbal, and had severe cognitive and neurological impairments) spent very little time at the residential placement, as she became self-injurious and was removed for safety and medical reasons.  Although the IEP team generally agreed that the educational program at the residential placement would benefit the student, the placement was ultimately rejected due to the student’s prior serious problems transitioning into the residential component.  As a result, the school district began reviewing alternatives (day treatment programs) and constructing its own in-district program.  The IEP team did not recommend the residential placement, and the parent sought a program designed to meet the multiple needs of the student in a public school setting (which would be the least restrictive of the possible options).  Nonetheless, the hearing officer decided the residential placement was appropriate and failed to engage any of the alternative placements discussed by the IEP team.

The magistrate judge recommended overturning the ruling, noting the student’s difficulty transitioning in the residential placement and the comments from that placement’s staff indicating that it was not appropriate for the student.  Since none of the alternative out-of-district placements offered by the IEP team could provide the services the student needed, the judge determined the school district did not offer a FAPE.  Although it appeared that the school district was well on its way to hiring the necessary staff and offering the necessary services to create an in-district program for the student (as sought by the parent), such a program was not ready in time for the school year in question and, thus, the school district could not offer a FAPE.

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