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Posts Tagged ‘pendency’

School district required to provide in-home services as part of stay-put

Thursday, June 12th, 2014

M.G. v. New York City Department of Education, 61 IDELR 220 (S.D.N.Y. 2013): A U.S. District Court ordered a school district to continue providing in-home applied behavioral analysis (ABA) services during the pendency of litigation due to the district’s provision of such services during the underlying proceedings.  Although the impartial hearing officer (IHO) denied much of the parents’ requested relief, interim IHO orders directed the district to commence in-home ABA services to provide a free appropriate public education (FAPE).  The parents initiated a state-level appeal, but in the meantime the district indicated it would discontinue the in-home services during the subsequent school year.  The Court, upon the parents’ application, directed the district to continue providing the in-home ABA services as part of the student’s pendency placement.

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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’s failure to continue to develop student’s program while parents litigated a previous IEP denied student FAPE.

Thursday, February 28th, 2013

Anchorage School District v. M.P., 59 IDELR 91 (9th Cir. 2012):  A federal appeals court held that a school district denied a student with autism a free appropriate public education (FAPE) when the district failed to continue developing the student’s program while his parents litigated his previous IEP.

The court noted that a school district’s compliance with the IDEA is not conditioned on “parental cooperation or acquiescence in the [district’s] preferred course of action.”  Here, the parents challenged the student’s second grade IEP.  However, when the student moved to third grade, the district relied on the student’s second grade IEP, except for providing third grade lessons and materials.  The district court concluded that the failure to develop an updated IEP flowed from the parents’ “litigious approach.”  However, the appeals court disagreed, noting that such conclusion improperly shifted the burden of substantive compliance with the IDEA from the district to the parents.

The appeals court held that updating a student’s present levels of performance, and establishing corresponding goals and objectives does not qualify as a “change in placement” (which would violate the student’s stay-put rights), provided the academic setting in which the student is placed does not change.  Accordingly, the district had an obligation to continue developing the student’s IEP during the litigation to that extent.  Its failure to so develop the student’s IEP denied him a FAPE.

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Pendency provision does not require school district to pay tuition in order maintain transfer student’s placement in prior school district

Thursday, April 26th, 2012

G.B. v. New York City Department of Education, 58 IDELR 100 (S.D.N.Y. 2012): A federal district court concluded that a school district failed to provide sufficient pendency (or “stay-put”) services to a transfer student with autism that were comparable to the services provided to him under the last agreed upon IEP from his prior school district.  However, the court refused to require the school district to pay tuition in order to maintain the student’s placement within his prior school district.  A school district’s obligation to maintain the student’s “stay-put” placement during the pendency of a due process proceeding does not mean that the student must remain at a “specific brick-and-mortar school.”  The school district merely must provide the student with an educational placement that is comparable to the last agreed upon IEP.

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Settlement agreement does not establish stay-put where school district only agrees to tuition reimbursement and not formal placement at private school.

Thursday, April 26th, 2012

K.D. v. Department of Education, State of Hawaii, 58 IDELR 2 (9th Cir. 2011):  A U.S. Court of Appeals held that a school district’s agreement to pay a student’s tuition at a private school for the remainder of that particular school year did not establish the private school as the student’s pendency placement during any future disputes.

As part of a settlement to a due process complaint, the school district agreed to pay the tuition for a student with moderate to severe autism while he finished the school year at a private school.  Notably, the settlement agreement never called for “placement” of the student at the private school, merely tuition reimbursement.  Following resolution of the complaint, the school district conducted IEP team meetings to develop the student’s program going forward.  However, the parent again filed a due process complaint and sought to establish the private school as the student’s pendency placement, thereby entitling the parent to reimbursement.

The Court affirmed the district court’s determination that reimbursement was not warranted.  Overall, the Court found that the school district offered appropriate IEPs, defeating the parent’s claim for reimbursement.  Regarding her argument that tuition should be reimbursed based on the student’s stay-put placement, the Court held that there was no pendency for the period in which no due process complaint was in effect.  Following the parent’s filing of a new complaint, the private school was not pendency, since the settlement agreement did not agree to “place” the student at the private school.  Rather, the agreement only allowed for tuition reimbursement and therefore was not a “placement” that would serve as pendency.

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Parents’ request for tuition reimbursement was denied because they couldn’t prove appropriateness of private school

Tuesday, November 1st, 2011

Weaver v. Millbrook Central School District, 57 IDELR 126 (S.D.N.Y. 2011): Notwithstanding the fact that a school district denied a sixth grade student with a learning disability a free appropriate public education (FAPE) and that the student made progress at the private school where he was unilaterally placed by his parents, the parents’ claim for full private school tuition reimbursement was denied. The court indicated that progress alone does not demonstrate that a private placement is appropriate. In this case, the parents failed to prove that the private school provided the student with instruction specifically designed to meet the student’s unique needs. The court also noted that despite the student’s private school placement, the student continued to have significant deficits in reading and math. Citing the United States Court of Appeals for the Second Circuit, the court further reasoned that, except in limited circumstances, parents seeking to prove the appropriateness of a private school placement are subject to the same standard as school districts in demonstrating the appropriateness of its recommended placement.
Although the parents were not able to establish the appropriateness of the private school placement, they were awarded some reimbursement since the placement was the student’s pendency (or “stay-put”) placement. However, the school district’s liability under the pendency claim did not commence until February 28 during the school year at issue (the date on which the parents initiated the due process complaint). The court reasoned that in order for a parent to obtain reimbursement under the pendency standard, a due process hearing must be “pending.” Although the parents provided the school district with a letter in August (prior to the beginning of the school year at issue) objecting to the school district’s proposed placement and informing the school district that they would initiate a due process complaint, their decision to wait until the following February to initiate the complaint was the plaintiff’s own decision.

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After-school ABA program not essential for autistic student to receive FAPE

Friday, January 21st, 2011

C.G. v. New York City Department of Education, 55 IDELR 157 (S.D.N.Y.  2010):  The parents of a student with autism failed to prove that the school district’s removal of 15 hours of after-school, 1:1, Applied Behavioral Analysis (ABA) services denied the student a free appropriate public education (FAPE).  The evidence established that although the student benefited from the ABA program, the program was not essential for the student to make progress under the school district’s IEP.  However, the court also affirmed the decision of the Impartial Hearing Officer (IHO) and State Review Officer (SRO) that the school district was not entitled to reimbursement from the parents for the expense of providing the student with the ABA services during the pendency of the litigation.

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School district is unable to recover private tuition paid as part of a student’s pendency placement during administrative proceedings under IDEA.

Sunday, November 14th, 2010

New York City Department of Education v. S.S., 54 IDELR 85 (S.D.N.Y. 2010):  A U.S. District Court rejected the school district’s argument that the parents of a student with a speech and language impairment should be required to reimburse the school district for the student’s tuition at a private placement during the pendency of due process proceedings in which the parents were ultimately unsuccessful.  Since the impartial hearing officer and state review officer both decided that the school district offered the student a FAPE, the school district argued the parent should be required to pay for the student’s education during the period of his stay-put placement.

The Court, in dismissing the case, noted that to hold otherwise would contradict the purposes behind the IDEA and, in particular, the specific purpose of stay-put (namely, to maintain the student in his or her then-current placement in order to avoid disruption of the student’s education).

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College program may be appropriate stay-put placement when student challenges a school district’s decision to graduate him.

Saturday, November 13th, 2010

Tindell v. Evansville-Vanderburgh School Corporation, 54 IDELR 7 (S.D. Ind. 2010):  A U.S. District Court determined a student’s pendency placement to be a college internship program, when the program in which he was currently enrolled was on the verge of closing. Since the district did not offer any alternative placement for pendency, the Court decided that the student (who was diagnosed with autism spectrum disorder, but was originally classified with a learning disability of written expression) should attend the college program located by his parents at district expense.

The Court rejected the school district’s argument that since the student had graduated, he was no longer entitled to special education services and, therefore, the district need not pay for any pendency placement (let alone a college program).  The Court explained that the school district could not rely on the student’s graduation to discontinue services since the parents were challenging the validity of that graduation.  When it is impossible to replicate a student’s current educational placement (such as when a school is closing), it is the school district’s responsibility to locate educational services which approximate the current program as close as possible.  Here, the school district did not locate any such placement, and the Court accepted the parents’ chosen placement.

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