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Posts Tagged ‘Parent counseling’

District’s failure to include parent counseling in IEP (although made available) and to conduct FBA were procedural violations, but not enough to find denial of FAPE

Monday, June 3rd, 2013

F.B. and E.B. ex rel. L.B. v. New York City Dep’t of Educ., 60 IDELR 189 (S.D.N.Y. 2013)—the parents in this case had notified the CSE team of their intent to place their son, classified with autism, in a private school and seek reimbursement. The parents filed a due process complaint alleging, among other things, that the failure to conduct a FBA and the failure to include parent counseling in the IEP amounted to a denial of FAPE to their child. The IHO agreed with the parents and awarded reimbursement, but the SRO reversed the IHO. The District Court agreed with the SRO that the parents were not entitled to reimbursement because neither procedural violation amounted to the denial of FAPE. Though a failure to conduct an FBA is a procedural violation, it will not result in the denial of FAPE if the IEP adequately identifies the problem behavior and ways to manage it. Also, the lack of providing for parent counseling in the IEP was not a fatal procedural violation because in fact, counseling services were made available to the parents. The court also viewed both procedural violations in the aggregate and held that cumulatively, the violations did not result in a denial of FAPE. As such, the court upheld the SRO’s decision denying reimbursement to the parents.

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Failure to incorporate behavior intervention plan and parent training into autistic student’s IEP contributed to a denial of FAPE and entitled parents to full reimbursement for private school placement

Monday, June 20th, 2011

R.K. v. New York City Department of Education, 56 IDELR 168 adopted at 56 IDELR 212 (E.D.N.Y. 2011): The district court agreed with an impartial hearing officer’s (IHO’s) decision (which had been overturned by the state review officer (SRO)) that the failure to incorporate a behavior intervention plan (BIP) into an autistic student’s IEP contributed to a denial of a free appropriate public education (FAPE), and entitled the student’s parents to tuition reimbursement for their unilateral private school placement.  The court was not satisfied with testimony from a teacher that she would have developed a BIP had the student attended the recommended public school placement.  The court stated that it is the responsibility of the IEP team to conduct a functional behavioral analysis (FBA) and incorporate a BIP into the student’s IEP.

Also contributing to the denial of FAPE was the school district’s failure to incorporate parent counseling and training, which is required to be provided to the parents of autistic students by New York state law, into the student’s IEP.  The school district also violated New York state law by failing to provide the student with speech and language therapy for 30-minutes daily, which was required by the state regulations at that time.  The Court also determined that the recommended 6:1:1 classroom placement was not restrictive enough for the student’s extensive needs.

However, the school district did not violate the parent’s rights to participate in the IEP process by failing to allow them to participate in the selection of the physical location of the student’s recommended program.  While parents should be afforded the opportunity to participate in the selection of their child’s “educational placement,” this term refers only to the general type of educational program in which the student is placed.

Moreover, the court overturned the portion of the IHO’s decision that had awarded the parent’s only partial reimbursement for the unilateral private school placement.  Although the IHO determined that the private placement met only part of the student’s special educational needs, such shortcomings should have only been considered as factors in evaluating the placement as a whole.  Since the placement provided the student with an education specifically designed to meet the student’s needs, the parents were entitled to full tuition reimbursement.

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