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Posts Tagged ‘other health impairment’

School’s vague description of proposed transfer allows student to stay put

Thursday, April 24th, 2014

Douglas v. District of Columbia, 62 IDELR 111 (D.D.C. 2013): A federal district court ordered a school district to maintain a student classified as other health impaired in his current school after the district failed to offer a sufficient description of the services the student would receive at an alternative location.  Since the proposed change was vague and amorphous, and failed to assure the Court that the educational services at the new location would remain substantially the same, the Court ordered the district to maintain the student at his current school.

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District must conduct medical evaluation if necessary to evaluate all areas of suspected disability.

Monday, September 24th, 2012

M.J.C. v. Special School District No. 1, 58 IDELR 288 (D. Minn. 2012):  A federal district court held that a school district violated the IDEA’s child-find mandate by requiring a parent to obtain a private diagnosis of ADHD before the district would classify the student as other health impaired.

Due to miscommunication, the parent resisted attempts to classify the student with an emotional or behavioral disorder.  Despite such resistance, the parent routinely provided consent for the district to complete evaluations.  However, it was not until the parent finally obtained a medical diagnosis of ADHD that the district classified the student as one with a disability.  The Court deemed the district’s failure to conduct any medical evaluation necessary to determine the student’s possible ADHD violated its child find obligation.  As a result of the district’s failure to complete the necessary assessments, the student’s behavioral issues increased.  Accordingly, by the time the student was classified, he required a greater intensity of services than may have been necessary had the district completed its evaluation.  Therefore, the district denied the student a free appropriate public education.

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Student with conflicting intelligence test results not eligible for classification in specific learning disability category

Friday, August 17th, 2012

E.M. v. Pajaro Valley Unified School District, 58 IDELR 187 (N.D. Cal. 2012): The Court determined that the school district correctly relied on one intelligence test over another when it determined that a student with an auditory processing disorder did not qualify as a student with a specific learning disability, since there was not a “severe discrepancy” between the student’s intellectual ability and achievement.  The student received a standard scored of 104 on the Wechsler Intelligence Scale for Children – Third Edition (“WISC-III”), administered by an evaluator retained by the student’s parents.  A short time later the student received a standard score of 111 on the Kaufman Assessment Battery for Children (“K-ABC”), which was administered by the school district.  Having obtained a significantly higher score on the K-ABC, the school district administered another intelligence test, on which the student received a standard score of 98.

The state of California’s regulations state that there is a “severe discrepancy” between ability and achievement when the difference in the standard scores between the two is at least 22.5.   Since the student’s achievement score was an 87 on the WISC-III, there was not a severe discrepancy between the student’s ability and achievement (104 and 87, respectively; difference of 17).  The school district correctly relied on the WISC-III and not the K-ABC since the court concluded that the WISC-III is generally a more reliable measurement of ability, and the score on that test was more reliable since it was much closer to the score of 98 on the third intelligence test administered to the student.

The court also concluded that the student’s auditory processing disorder did not qualify the student as a student with a disability in the “other health impairment” category, since the other health impairment category consists of impairments not otherwise included in the other disability categories under the IDEA.  Since auditory processing disorder falls into the category of a specific learning disability, it cannot simultaneously fall into the category of other health impairment.

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Student may use Section 504 to sue for money damages for her misidentification as disabled.

Monday, July 30th, 2012

A.G. v. Lower Merion School District, 58 IDELR 41 (E.D. Pa. 2011):  A U.S. District Court allowed a former student to sue her previous school district for misidentifying her as a student with a disability.

The school district had classified the student as having a specific learning disability and speech and language disorder when she was in elementary school.  As part of a subsequent re-evaluation, the district determined the student no longer qualified as having a specific learning disability, but was still a student with a disability with an other health impairment (namely, organizational and attention issues).  Following the student’s graduation, she brought suit under Section 504 alleging discrimination by regarding her as disabled.  Specifically, she claimed that the school district incorrectly identified her as disabled and improperly placed her in a special education program.  The student sought money damages for the psychological impact of her misidentification, as well as her economic loss for placement in special education.

The school district moved to dismiss, but the Court allowed the case to proceed noting that the student should have the opportunity to discover facts regarding her claim for compensatory damages.

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School district’s recommended placement appropriate despite more than three year gap in student achievement levels

Monday, June 25th, 2012

S.F. and Y.D. v. New York City Department of Education, 57 IDELR 287 (S.D.N.Y. 2011): The parents of a thirteen-year-old student with a learning disability were denied private school tuition reimbursement for their unilateral placement despite the fact that the school district’s recommended placement included students with academic achievement levels ranging from a third-grade level to a seventh-grade level.  The parents had argued that the gap in academic achievement levels violated New York State law.  The Court noted that although under New York state law there is a maximum three-year range that applies to the chronological age of students, there is no maximum range for levels of academic achievement.  The Court also determined that the inclusion of one student with an emotional disturbance and one student classified as other health impaired, did not make the proposed placement inappropriate.  The requirement to place students with students of similar needs does not necessarily prohibit placing students of varying disabilities in the same classroom.

In addition, the Court concluded that the school district did not procedurally violate the IDEA by not allowing the student’s parent to visit the recommended placement.  Nor did the school district commit a procedural violation when they included a regular education teacher at the student’s IEP team meeting who had not taught regular education for nearly twenty years.

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Parent’s denied private school tuition reimbursement where school district’s proposed IEP moderately increased services included in the IEP from prior year when the student had made progress

Monday, June 18th, 2012

B.O. and P.S. v. Cold Spring Harbor Central School District, 57 IDELR 130 (E.D.N.Y. 2011): The parents of a student classified as Other Health Impaired were denied tuition reimbursement for their unilateral placement in a private school for students with language-related learning disabilities.  The court reasoned that the student made progress under his IEP from the prior year and the IEP team’s decision to moderately increase services under the proposed IEP was appropriate.  While the parents presented expert witnesses who testified that the student would have benefited from the private school placement, these witnesses did not speak to whether the student would have benefited from the school district’s proposed placement.  The school district presented sufficient evidence that the school district’s proposed placement offered the student meaningful educational benefit.

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School district violated child-find obligation by failing to evaluate student in all areas of his suspected disability

Wednesday, May 11th, 2011

School Board of the City of Norfolk v. Brown, 56 IDELR 18 (E.D. Va. 2010): Although a school district had previously evaluated and classified a student with cerebral palsy and seizure disorder as a student with a disability under the category of “other health impairment,” the court affirmed the decision of an impartial hearing officer who had concluded that the school district had violated its child-find obligations under the Individuals with Disabilities Education Act (IDEA) by failing to evaluate the student in all areas of his suspected disability.  The school district should have also provided the student with a functional behavioral analysis (FBA) and behavior intervention plan (BIP) due to the evidence of the student’s history of engaging in behaviors that impeded the student’s learning or that of others.

The court also affirmed the hearing officer’s conclusion that the school district violated the IDEA by conducting a procedurally flawed Manifestation Determination Review (MDR) following a behavioral incident that led to a suspension.  In particular, the MDR team failed to consider a psychiatric report that was generated as a direct consequence of the behavioral incident and the MDR team failed to afford the parents an adequate opportunity to participate at the meeting.

Moreover, the court agreed with the hearing officer that the school district procedurally violated the IDEA when it placed the student in an alternative setting during the student’s suspension.  The decision to place the student in the alternative setting was made by the school board, but should have been made by student’s IEP team.  Moreover, the placement substantively violated the IDEA because it was not the least restrictive environment (LRE) in which the student could receive a free appropriate public education (FAPE).

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IDEA offers protection to gifted students who qualify as students with disabilities

Friday, January 21st, 2011

Anonymous, Letter to, 55 IDELR 172 (OSEP  2010):  The United States Department of Education, Office of Special Education Programs (OSEP) responded to a letter from a concerned individual who inquired about the protections offered to gifted students by the Individuals with Disabilities Education Act (IDEA).  In particular the individual was concerned about students with high cognition who are also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Asperger’s Syndrome, or specific learning disabilities.  OSEP responded by informing the individual that although the IDEA does not specifically address so-called “gifted” students, it is OSEP’s position that students with high cognition who have one of the specific impairments enumerated in the IDEA should qualify for IDEA services if they require special education and related services because of their disability.  For example a “gifted” student diagnosed with ADHD might qualify as a student with an “Other Health Impairment,” and a “gifted” student with Asperger’s Syndrome might qualify as a student with a disability under the category of autism.

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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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