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The GAP Attorneys Blog

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

Posts Tagged ‘multiple disabilities’

School district did not deny FAPE when parents unreasonably refused to participate in IEP process

Thursday, August 29th, 2013

Horen v. Board of Education of the City of Toledo Public School District, 61 IDELR 103 (N.D. Ohio 2013): A federal district court determined that a school district did not fail to provide a free appropriate public education to a student with multiple, severe disabilities.  The student’s parents filed a due process complaint against the school seeking to keep the student in her child care/education center as opposed to being transferred to one of the district’s public schools.

The hearing officer ordered the school to maintain the student at her child care/education center.  However, the parents refused to enroll the student, in either the child care/education center or public school (or, apparently, any school whatsoever).  The school district repeatedly sought to hold an IEP team meeting, but the parents refused to participate in any IEP team meeting (and similarly refused to make the student available for any testing or evaluation) unless and until the school district allowed the parents to tape-record the IEP team meeting.  The parents also insisted that the school’s attorney not attend the IEP team meeting.  Finding that neither of these preconditions were reasonable, the court determined that the parents impeded the IEP process and the child was not denied a FAPE.

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Reimbursement denied where unilateral placement did not adequately address student’s related services needs, and need for 1:1 aide.

Thursday, March 28th, 2013

L.S. v. New York City Department of Education, 59 IDELR 159 (S.D.N.Y 2012):  A federal district court upheld a State Review Officer’s determination that parents of a student with Angelman syndrome, and classified with multiple disabilities, are not entitled to reimbursement for their child’s unilateral private placement.  There was no dispute that the school district failed to offer the student an appropriate program, however the private program selected by the parents was also not appropriate.  The district’s recommended IEP included 6.5 hours each week of related services (including speech and language therapy, physical therapy, and occupational therapy), whereas the private school only provided 4.75 hours.  Also, there was no dispute that the student required the services of a 1:1 paraprofessional to adequately ambulate around his school environment.  However, the private program failed to provide such paraprofessional (1:1 aide services were provided by the district as per a pendency order).  In light of these failures, the private program was not appropriate to meet the student’s needs and, therefore, reimbursement was denied.

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District must transport home school student to site of related services.

Thursday, August 30th, 2012

Andes Central School District v. King, 59 IDELR 48 (N.Y. Sup. Ct. 2012):  A state court upheld the New York State Education Department’s (NYSED) determination that a school district was required to transport a home schooled student with multiple disabilities to the site at which she received her related services (including physical therapy, occupational therapy, and speech therapy).

The Court noted that federal law requires districts to transport parentally-placed private school students from the child’s home to the site of special education services (and under New York State law, students on a home instruction program are deemed to be nonpublic school students).  The Court specifically rejected the district’s argument that, in order to qualify for transportation, the student must demonstrate a need for special transportation (which would, presumably, be identified on the IEP).  Accordingly, the Court affirmed NYSED’s determination.

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Reimbursement reduced by 25% due to parent’s failure to provide ten days’ notice, and other unreasonable conduct.

Sunday, November 14th, 2010

Anchorage School District v. D.K., 54 IDELR 28 (D.Alaska 2009):  A U.S. District Court upheld the findings of an impartial hearing officer that a school district failed to provide the student a FAPE, but ordered the school district to reimburse the parent for only 75% of the tuition.

The Court noted that the school district failed to monitor the student’s progress by sufficient objective measures, and also stated that the school district’s method to overcome the student’s regression was to “water down” the student’s goals.  As a result, the school district failed to provide an appropriate program.

However, instead of finding the parent entitled to full reimbursement, the Court took into account the fact that the student’s mother failed to provide the requisite ten days’ notice of an intended unilateral placement.  Although the school district had actual notice of the parent’s intention, the Court determined that the parent manipulated the process by only indirectly mentioning the private placement during the final IEP meeting.  At the same time, the parent enrolled the student in his proposed public placement so as not to lose his spot, thereby denying that spot to another student.

Although these circumstances could warrant denying reimbursement altogether, the Court held that the parent was entitled to reimbursement (since the proposed public placement was not appropriate, and the unilateral placement provided a FAPE), but reduced the award by 25% to account for the parent’s actions.

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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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