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The GAP Attorneys Blog

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

Posts Tagged ‘pervasive developmental disorder’

District can be held responsible for private school tuition when it fails to consider an inclusion setting with a 1:1 aide

Monday, April 15th, 2013

G.B. and L.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 60 IDELR 2 (2d Cir. 2012)—the Second Circuit Court of Appeals affirmed a lower court’s decision that a school district denied FAPE to a student with pervasive developmental disorder by offering an overly restrictive placement. Thus, the Federal Court upheld the parent’s entitlement to tuition reimbursement for the child’s private inclusion preschool program. The school district should have considered whether the child could participate in an inclusion classroom with the help of a 1:1 aide. NOTE: this decision has not been released for publication in official or permanent law reports, per court order. To view the blog posting regarding the lower court case, see N.B. v. Tuxedo Union Free Sch. Dist., 55 IDELR 228 (S.D.N.Y. 2010), posted on April 28, 2011.

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Student’s lack of understanding of behavioral point system and school district’s use of physical restraint requires school district to pay for student’s private behavioral services

Tuesday, October 11th, 2011

B.H. v. West Clermont Board of Education, 56 IDELR 226 (S.D. Ohio 2011): The court required the school district to pay for the private behavioral services of a student with a variety of diagnoses, including mental retardation, epilepsy, asthma, selective mutism, ADHD, explosive behavior disorder, Cushing’s Disease, pervasive developmental disorder (a form of autism), and post traumatic stress disorder. The school district’s use of a behavioral point system, whereby the student was awarded points and could obtain rewards for positive behavior was not appropriate since the student could not understand the system. Moreover, the school district’s use of physical restraint as a behavioral intervention was inappropriate, since evidence demonstrated that the student’s private program was able to manage the student’s behavior without the use of physical restraint. In addition, the court found evidence to support the parent’s contention that the school district predetermined the student’s educational program where the IEP team ignored documentation presented by the parents of the student’s need for speech services. Although the state-level review officer determined that the student was not denied a free appropriate public education (FAPE) because the student did not regress academically, the court concluded that the state-level review officer committed error by not considering the student’s functional advances as well as her academic advances.

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School district may not cure deficient evaluation to avoid paying for an IEE.

Monday, August 29th, 2011

M.Z. v. Bethlehem Area School District, 57 IDELR 5 (E.D. Pa. 2011):  A U.S. District Court determined that a state hearing officer erred when she ordered a school district to simply update an inappropriate evaluation rather than ordering a new and complete evaluation.

The parents of a student with a central auditory processing disorder, and pervasive developmental disorder, not otherwise specified (on the autism spectrum) requested an independent educational evaluation (IEE) as a result of the district’s failure to conduct an appropriate evaluation of the student.  The district, instead of paying for the IEE, filed a due process complaint claiming that its evaluation was appropriate.  The hearing officer found the district’s evaluation was inappropriate, but nevertheless decided not to require a full IEE because the parent “did not really take issue with the accuracy of the test results” of the district.  Instead, the hearing officer ordered the district to cure its inappropriate evaluation by including a classroom observation and input from the student’s teachers and parents.

The Court, agreeing that the evaluation was inappropriate, overturned the hearing officer’s order, noting that the federal regulations do not require specific arguments or disagreements with an evaluation for a parent to become entitled to a publicly funded IEE.  The regulations simply require that the district’s evaluation be inappropriate.  Since the district’s evaluation for this student was inappropriate, the parents were entitled to an IEE at public expense.

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School district violates least restrictive environment requirement when it fails to fully consider an integrated setting for a student with an autism spectrum disorder.

Thursday, April 28th, 2011

N.B. v. Tuxedo Union Free School District, 55 IDELR 228 (S.D.N.Y. 2010):  A U.S. District Court overturned the New York State Review Officer in relation to a child with an autism spectrum disorder who the school district sought to place in a self-contained out-of-district program.  The student’s parents argued that the student needed to be with her non-disabled peers, which required placement in an integrated class.

The student, while in preschool, attended a program that was essentially integrated since the preschool chosen by the school district ultimately included four non-disabled children in its program.  However, the student’s parents removed her from that program due to the school district’s failure to provide the 1:1 aide the student needed.  The parents placed the student in a private, integrated preschool program, paid for a 1:1 aide, and the student made significant progress.

The school district recommended a self-contained out-of-district BOCES program following preschool, where the student would have little interaction with her non-disabled peers.  The parents argued that the student required interaction with non-disabled peers, since she modeled the behavior she observed and it was crucial to her development.  Several experts supported the parents.  The district relied on the student’s standardized testing to argue she required the self-contained class to reduce distractions.  The recommendation included “boilerplate” and “conclusory” language about rejecting an integrated class.

The Court found that the school district did not properly review the student’s ability to participate in an integrated class with supports (here, a 1:1 aide).  As a result, it violated the least restrictive environment requirement and its proposed IEP was inappropriate.  Since the private placement chosen by the parents was appropriate, they were entitled to reimbursement (although reimbursement was to be reduced in part due to the parents’ failure to timely notify the district of their intention to remove the student and place her privately).

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School District ordered to develop IEPs and serve as student’s LEA in order to provide 24-year-old student compensatory education

Friday, April 1st, 2011

Ferren C. v. School District of Philadelphia, 54 IDELR 274 (3d Cir. 2010):  A school district had agreed to establish a trust fund in excess of $200,000 for a student with various disabilities, including autism, speech and language deficits, and pervasive developmental disorder.  Such funds were to cover the costs for the student (who was 24 years old at the time of the litigation) to attend an approved private school for students with disabilities beyond the school year in which the student turned 21.  However, when the school district refused to develop an IEP for the student and serve as the student’s local educational agency (LEA) (which the private school required in order for the student to attend), the parents sought relief under the IDEA.  The Third Circuit Court of Appeals affirmed the decision of the district court in favor of the parents, ordering the school district to develop annual IEPs for the student and to serve as her LEA.  The Court reasoned that the IDEA permits a court to “grant such relief as the court determines is appropriate.”

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Student’s high academic performance supports ineligibility determination

Friday, December 17th, 2010

Maus v. Wappingers Central School District, 54 IDELR 10 (S.D.N.Y. 2010):  The court affirmed the decision of the State Review Officer (who had overturned the hearing officer’s decision favoring the student) that a student, diagnosed with ADHD, dysgraphia, generalized anxiety disorder, Asperger’s syndrome, pervasive developmental disorder, and a moderate language-based learning disability, was ineligible for services under the IDEA due to her high academic performance.  The court rejected the parents’ argument that the student had significant social and emotional problems, and that such problems should be considered in determining “adverse effect on educational performance.” Following recent unpublished opinions from the United States Court of Appeals for the Second Circuit, as well as other decisions from federal courts in New York State, the court reasoned that because the student’s conditions had not adversely impacted her academic performance, the student did not qualify for services under the IDEA.  The court also noted that no court applying New York’s implementing regulations has ever held that a student who excelled academically nonetheless has a right to IDEA services.

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School district violated Child Find by delaying a full evaluation of a student, despite having enough information to suspect a disability.

Monday, November 15th, 2010

D.A. v. Houston Independent School District, 54 IDELR 168 (S.D. Tex. 2009):  A U.S. District Court upheld a hearing officer’s determination that a school district violated the IDEA’s child find requirements when it failed to complete a full evaluation of a first grade child in a timely manner.  The school district had a reasonable suspicion of a disability in October of 2007, when the student’s first grade teacher reported that the student was academically deficient, and also had behavioral issues.  The student was independently diagnosed with a severe learning disability, and a pervasive developmental disorder (on the autism spectrum).  However, his educational evaluation was not completed until late January, despite repeated requests from the student’s mother to evaluate.  The hearing officer determined, and the District Court agreed, that the school district violated child find, particularly in light of its failure to provide the student’s mother with an explanation for the delay.  The Court noted that pre-referral strategies do not excuse child find violations.

Nevertheless, the District Court also upheld the hearing officer’s determination that no relief was warranted in this case.  The hearing officer had held that, the student and his mother’s relocation to another school district rendered their claims moot.  Although the District Court disagreed and determined that the student’s claim for compensatory relief precluded mootness, it concluded that the parents had not submitted any evidence supporting their claims for compensatory relief.

Additionally, and separately, the Court noted that to the extent that the school district had a policy of not referring young students for special education testing “for a short time in their initial years” in order to “allow young children time to develop,” there was no constitutional violation notwithstanding that the student’s mother repeatedly requested that her son be evaluated from the time he was in preschool through kindergarten.

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