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Posts Tagged ‘Prior written notice’

District has obligation to at least reevaluate a returning student if it was aware that the student received special education services before transferring to private school

Thursday, May 30th, 2013

Regional Sch. Unit No. 51 v. Doe, 60 IDELR 163 (D. Me. 2012)—in this case, a student with severe ADHD had received special education services at his district’s public school during fourth grade. He attended a private school for fifth grade, and returned to the district for sixth grade after his family moved to a different town. The student did not have a current IEP when he returned to the district, and the district did not reevaluate the student to determine whether he still needed an IEP. Instead it was concluded that all accommodations could be provided through a section 504 plan. After struggling until his eighth grade year, a special education referral was formally sought and an IEP was finally developed for the student. The court reaffirmed the Hearing Officer’s findings that the District erroneously de-classified the student without providing written notice to the parents or advising the parents of their right to challenge the decision. The student maintained his IDEA eligibility, even when he transferred from private to public school with an expired IEP, until a reevaluation showed otherwise and the District denied him a FAPE by failing to recognize him as an IDEA-eligible student until halfway through his eighth grade year.

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Reimbursement denied, despite District’s inadequate notice of manifestation meeting.

Thursday, March 21st, 2013

C.K. v. Harrison School District, 59 IDELR 103 (W.D. Ark. 2012):  A federal district court upheld a hearing officer’s determination that parents of a student with autism were not entitled to reimbursement for a unilateral private placement, despite the school district’s admittedly inadequate prior notice of the student’s IEP team meeting.

The student had significant behavioral issues, resulting in frequent injury to himself, staff, and fellow students.  One particular incident caused a severe injury to the student’s paraprofessional, which resulted in the student’s suspension from school.  Following the suspension, the district moved a previously scheduled IEP team meeting up by five days, essentially converting it to a manifestation determination review team meeting.  However, the parents were not notified of this change in purpose (namely, to change the student’s program to homebound instruction).  Despite multiple follow-up meetings, the parents could not agree on a placement with the district and unilaterally placed the student in a private program.  The hearing officer held that, notwithstanding the failure to notify the parents of the change in the IEP team meeting’s purpose, they were not denied the opportunity to participate in the meeting (particularly in light of the multiple follow-up meetings during which the student’s placement was discussed).  The inadequate notice was not enough to deny the student a FAPE.  Accordingly, since there was no demonstration that the district’s recommended program was inappropriate, the student was not denied a FAPE, and reimbursement was not warranted.

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Parents denied reimbursement (but entitled to compensatory education) where district had denied FAPE, but offered an appropriate IEP prior to parents’ unilateral placement.

Monday, February 18th, 2013

I.T. v. Department of Education, State of Hawaii, 59 IDELR 129 (D. Hawaii 2012):  A federal district court denied a parents’ request for tuition reimbursement for a unilateral placement, where the district had denied the student a free appropriate public education (FAPE) by failing to provide timely speech and language therapy, but ultimately did offer speech services prior to the parents’ unilateral placement.

The court concluded that the district failed to evaluate the student in all areas of suspected disability by not evaluating him for a potential central auditory processing disorder (CAPD).  The district’s prior written notice for the student’s IEP team meeting indicated that, once it received information from the student’s private doctor, the district would amend the student’s IEP to start language services.  Even though the student ultimately was not diagnosed with CAPD, there was no dispute that he required speech and language services.  Accordingly, the district’s failure to provide such services denied the student a FAPE.

As a result of the student’s inadequate progress, in their view, the parents unilaterally placed him in a private program.  However, by the time they made their unilateral placement, the IEP team had already met on multiple occasions and amended the student’s IEP to include speech and language services and goals (the IEP’s only deficiencies).  Accordingly, the court denied the parents’ request for reimbursement, instead finding that the student was only entitled to compensatory education for the speech and language services he did not receive.

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Prior written notice and consent required for an FBA assessing student’s specific needs.

Monday, September 17th, 2012

Letter to Anonymous, 59 IDELR 14 (OSEP 2012):  The federal Department of Education’s Office of Special Education Programs noted that prior written notice (PWN) and parent consent is required if a school district is conducting a functional behavioral assessment (FBA) to assess the behavioral needs of a specific student.  Only if the FBA is “intended to assess the effectiveness of behavioral interventions in the school as a whole” will the district be excused from issuing a PWN and obtaining parental consent.

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District must provide prior written notice for any change or refusal to change the placement of a student with a disability.

Monday, September 10th, 2012

Letter to Chandler, 59 IDELR 110 (OSEP 2012):  The federal Department of Education’s Office of Special Education Programs (OSEP) informed a disability service professional that prior written notices (PWNs) must issue whenever a district recommends a change in a student’s placement, or refuses to make a change.  OSEP noted that the fact the change or refusal may have been discussed at an IEP team meeting does not eliminate a district’s obligation to provide a PWN.  The PWN must be provided to the parents to allow a reasonable period of time to consider the change, and respond before such change is implemented, if necessary.

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Parent’s removal of student from public school did not excuse school district’s failure to develop IEP

Thursday, May 3rd, 2012

Department of Education, State of Hawaii v. M.F., 58 IDELR 34 (D. Hawaii 2011): The federal district court stated that although a parent removed a student, classified as emotionally disturbed (due to her diagnoses of reactive attachment disorder, attention deficit hyperactivity disorder, gender identity disorder, and major depressive disorder) from a public school, the public school district still should at least have attempted to prepare IEPs for the beginning of the 2008-2009 and 2009-2010 school years.  The IDEA requires a school district to give a parent prior written notice before special education and related services are discontinued, and the parent’s removal of the student did not excuse the school district from this requirement.  However, the federal court vacated and remanded the hearing officer’s decision that the parent was entitled to private school tuition reimbursement.  The court reasoned that the record was silent regarding whether, despite the school district’s procedural violation, the student suffered a “loss of educational opportunity,” since it was unclear whether the parent would have accepted a public school placement even if it was offered.  The court also stated that the hearing officer failed to address equitable considerations regarding the parent’s entitlement to reimbursement, since the parent failed to notify the school district before removing the student from the public school.

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IEP Team decisions should not be made by majority vote

Friday, January 7th, 2011

Letter to Richards, 55 IDELR 107 (OSEP  2010):  The Office of Special Education Programs (OSEP) responded to a parent’s inquiry as to whether or not the chairperson of a student’s IEP Team can override the consensus of the rest of the IEP Team.  OSEP informed the parent that although it is the IEP team (which includes the parents) who is responsible for developing, reviewing and revising (if necessary) a student’s IEP, it is not appropriate to make such decisions by majority vote.  The IEP team should work toward a general agreement, but if it is unable to do so, it is the school district which must determine the appropriate services.  Moreover, the school district must provide the parent with prior written notice of the school district’s determination regarding the student’s educational program and of the parent’s right to a due process hearing.

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