Goldstein, Ackerhalt & Pletcher
70 Niagara Street, Suite 200 Buffalo , New York, 14202
Phone: 716-362-1533
Fax: 716-362-1534

The GAP Attorneys Blog

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

Posts Tagged ‘notice of unilateral placement’

School district’s failure to offer a public placement excused parent from obligation to provide notice of unilateral placement.

Tuesday, November 16th, 2010

C.Z. v. New York City Department of Education, 54 IDELR 223 (S.D.N.Y. 2010):  A U.S. District Court held that parents are not obligated to provide notice of a unilateral private placement when the school district never even recommended a public placement.  As a result, the student’s parents were entitled to partial reimbursement for her unilateral placement at a private school.

The student, who was diagnosed with a speech impairment and central auditory processing disorder, attended a private school offering a language based program from second grade through fifth grade (when she aged out).  The program provided a nurturing environment with a teacher and an aide in classes of eight to ten students.  The student also received related services, including occupational therapy and speech and language therapy.

Since the student was aging out, her parents enrolled her in a different private school due to their concern that the school district would not offer an appropriate program.  Despite such enrollment, the parents purchased “tuition insurance” in the event they removed the student from the private school.  The Court also noted that the parents cooperated with the school district, and participated in the IEP process in good faith.  Despite such participation, the school district never made a final offer of a recommended placement.  As a result, the student attended the private school in which she had been enrolled and the parents never provided written notice of their intention to make a unilateral placement.

The Court determined that since the district never formally offered a placement (which failure the district conceded denied the student a FAPE), the parents were not expected to provide notice under the IDEA, rejecting a placement that was never offered.  Consequently, equitable considerations (including the parents’ cooperation and their reasons for not providing written notice) did not relieve the school’s obligation to reimburse them for the private placement.  However, since the regular education component of the private school did not meet the student’s unique needs, the parents were only reimbursed for the tuition relating to the private school’s support program, conducted by a special education teacher.

Tags: , , , , , ,
Posted in Uncategorized | Comments Off on School district’s failure to offer a public placement excused parent from obligation to provide notice of unilateral placement.

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.

Tags: , , , , , , ,
Posted in Uncategorized | Comments Off on 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.

Entries (RSS) | Comments (RSS).