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

Posts Tagged ‘mental retardation’

Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

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District’s requirement that parent agree to responsibility for damage to assistive technology used at home did not deny FAPE.

Friday, November 18th, 2011

R.P. v. Alamo Heights Independent School District, 57 IDELR 64 (W.D. Tex. 2011): A U.S. District Court determined that a school district did not deny a student with mental retardation and a speech impairment a free appropriate public education by requiring the student’s parent to agree to bear financial responsibility for any damage to the student’s assistive technology device that occurred at home.

The student used a Dynavox to assist with her communication, and her father requested that she be allowed to take it home with her. The district agreed, but only after requiring her father to sign an agreement that he would be responsible if it were damaged beyond normal wear and tear. The Court determined that since the device was provided, the student was not denied FAPE and rejected the parent’s argument that the district must provide the device without any limitations.

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Change in disability classification does not require change in services if the student’s needs remain substantially the same.

Tuesday, November 15th, 2011

Hailey M. v. Matayoshi, 57 IDELR 124 (D. Hawaii 2011): A U.S. District Court held that a subsequent change in a student’s disability classification does not require a corresponding change in the nature of the services provided to the student. The student was initially diagnosed as mentally retarded in 1999, but after private evaluations obtained by the student’s parent, her classification was changed to specific learning disability. Thereafter, the program recommended by the school district was a continuation of the student’s placement in a special education class with extended school year services, despite the parent’s request for a general education classroom.

The Court determined that the district continuously offered IEPs based on the student’s unique educational needs, regardless of her disability classification. Specifically, the student’s special education teacher testified that, notwithstanding the change in disability classification, the student’s educational needs did not change significantly. As a result, the district offered the student a free appropriate public education and the parent thus was not entitled to reimbursement for the services she obtained from private providers to address the student’s specific learning disabilities.

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Student’s lack of understanding of behavioral point system and school district’s use of physical restraint requires school district to pay for student’s private behavioral services

Tuesday, October 11th, 2011

B.H. v. West Clermont Board of Education, 56 IDELR 226 (S.D. Ohio 2011): The court required the school district to pay for the private behavioral services of a student with a variety of diagnoses, including mental retardation, epilepsy, asthma, selective mutism, ADHD, explosive behavior disorder, Cushing’s Disease, pervasive developmental disorder (a form of autism), and post traumatic stress disorder. The school district’s use of a behavioral point system, whereby the student was awarded points and could obtain rewards for positive behavior was not appropriate since the student could not understand the system. Moreover, the school district’s use of physical restraint as a behavioral intervention was inappropriate, since evidence demonstrated that the student’s private program was able to manage the student’s behavior without the use of physical restraint. In addition, the court found evidence to support the parent’s contention that the school district predetermined the student’s educational program where the IEP team ignored documentation presented by the parents of the student’s need for speech services. Although the state-level review officer determined that the student was not denied a free appropriate public education (FAPE) because the student did not regress academically, the court concluded that the state-level review officer committed error by not considering the student’s functional advances as well as her academic advances.

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School district’s failure to engage in discussion with parents regarding discontinuation of home instruction services resulted in a finding of predetermination.

Thursday, July 14th, 2011

Board of Education of the Hicksville Union Free School District v. Schaefer, 56 IDELR 234 (N.Y. App. Div. 2011):  The Appellate Division of the Supreme Court of the State of New York (and the trial court) agreed with the State Review Officer’s (SRO) finding that the school district denied a student a FAPE by deciding to discontinue various home instruction services without any meaningful input from the parents.

The student, who was classified as multiply disabled due to diagnoses of pervasive development disorder, not otherwise specified, and moderate mental retardation, received various therapies (including speech and occupational therapy) as well as special education instruction in his home, as part of his IEP, due to his inability to make sufficient progress in a school program alone.  At a May 23, 2005, IEP team meeting, the team recommended continuing such home instruction services.  However, subsequent to that IEP team meeting, the parents decided that the recommended school placement was no longer suitable and pursued a different school.

As a result, the IEP team met in August and September of 2005 to revise the student’s IEP to reflect a change in his recommended school placement.  Prior to these meetings, the district decided, without input from the parents, to discontinue the home instruction services.  At the IEP team meetings, the parents and their representatives repeatedly attempted to address this discontinuation.  However, the district did not engage in any substantive discussion on the issue and the IEPs relating to these meetings reflected such a change.  Based on the district’s failure to discuss its determination to discontinue home instruction services, the SRO found that the district had predetermined the student’s placement and denied the student a FAPE (and both courts agreed).

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Parent’s presentation of issues relating to student’s behavior in prior hearing precludes her from relitigating related issues in second hearing.

Monday, April 25th, 2011

T.G. v. Baldwin Park Unified School District, 55 IDELR 2 (C.D. Cal. 2010):  Under doctrine of collateral estoppel, a parent cannot litigate an issue in a second hearing which could have been raised in a prior hearing, by raising a different, but related issue in the second hearing.

A U.S. District Court upheld an administrative law judge’s dismissal of a second due process complaint by a parent seeking to have her son classified as having an emotional disability.  The student was diagnosed with autism and mental retardation, and the parent had unsuccessfully litigated a first hearing which included and addressed numerous behavioral issues, including the student’s aggressive behaviors, but did not specifically address the possibility of the student being classified with an emotional disability.

The parent filed a second due process complaint, this time attempting to address the student’s classification and have it changed to emotional disability.  Since the prospect of changing the student’s classification related to his behavioral issues, which were addressed in the previous hearing, the parent was precluded from raising essentially the same issue in a second hearing and her complaint was dismissed.

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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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School district required to pay for private placement of student with significant reading and writing deficits when it failed to evaluate student for a specific learning disability.

Tuesday, November 16th, 2010

D.B. v. Bedford County School Board, 54 IDELR 190 (W.D. Va. 2010):  A U.S. District Court determined that a child classified as other health impaired (OHI) based on a diagnosis of ADHD should have been evaluated for a possible specific learning disability (SLD).  The student failed to show any meaningful progress or achievement in relation to his reading and writing needs, yet the school district erroneously argued that a specific learning disability was properly ruled out since the student did not qualify as mentally retarded (MR).  Due to the student’s failure to make any meaningful progress in his public program, his parent was entitled to reimbursement for private school expenses.

The student was promoted, yearly, from kindergarten to the second grade.  However, the Court noted that this was “token advancement” which was “at best, a sad case of social promotion.”  Despite his repeated promotion, the student could not read, write, or spell at or near his grade level.  Additionally, he did not reach any of his reading goals or benchmarks and was not successful on his reading assessments and standardized tests.  Although he was not making progress, as noted by the IEP team meeting at the end of his second grade year, the school district “insisted that [his] goals essentially be repeated from year to year.”  The school district also kept the student in an inclusion classroom setting, despite the fact that such a placement was “so problematic” that one of the student’s IEPs notes that he “would ‘frequently beg to go to [the] resource room to work.’”

Despite these difficulties, the school district argued that it properly ruled out the possibility of a SLD without evaluating the student for SLD, because it had already determined the student did not meet the requirements to be classified as MR.  The Court disagreed, saying that MR, SLD, and OHI are separate and distinct categories of disabilities.  In fact, by statutory definition, SLD explicitly excludes MR.  Therefore, the school district should have evaluated the student for a specific learning disability, and had it done so, the services provided might well have been changed if the student had been subsequently diagnosed with SLD.  Consequently, the IEP could not have been appropriately crafted and the school district thereby denied the student a FAPE.

The Court also rejected the argument that the student’s mother did not provide the required written notice when she placed her son in a private school.  The Court first explained that denial or reduction of reimbursement is discretionary and that the IDEA does not categorically prohibit reimbursement for failure to comply with the notice requirement.  Then the Court noted that at the most recent IEP team meeting prior to the child’s removal, his parents had discussed the private placement with the school district and requested that it place the student at the private school.  The Court determined that the school district failed to show that the private school was inappropriate, and awarded the parent reimbursement.

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