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The GAP Attorneys Blog

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

Posts Tagged ‘private placement’

District could not rely on retrospective testimony to show that IEP offered FAPE to student with Autism

Monday, August 19th, 2013

P.K. and T.K. ex rel. S.K. v. N.Y.C. Dep’t of Educ., 61 IDELR 96 (2d Cir. 2013)—in this case, the parents appealed the State Review Officer’s (“SRO”)’s decision that a student with Autism was offered a FAPE. The SRO (relying on the classroom teacher’s testimony about the services she would have provided) concluded that the student would have received sufficient speech and language therapy, though the IEP itself did not specify an adequate amount of speech and language therapy. The Second Circuit Court of Appeals refused to allow retrospective testimony about the individual instruction that would be available in the proposed placement, because that information was not written on the IEP. The court found that the IEP was insufficient by only listing group speech and language therapy, and lacking the 1:1 speech language instruction required by law. Thus, the court reversed the SRO and ordered the parents to be reimbursed for their unilateral private placement. Note: the district court decision at 57 IDELR 139 was posted on this blog on November 4, 2011.

Note: per court order, this decision has not been released for publication in official or permanent law reports.

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Reimbursement denied where private home based program only indirectly addressed educational needs.

Monday, October 22nd, 2012

T.B. v. St. Joseph School District, 58 IDELR 242 (8th Cir. 2012):  A U.S. Court of Appeals denied parents reimbursement for a private home based program designed for their child with autism.  The parents disenrolled the student, and unilaterally placed him in a home based program focusing on functional skills.  Although the program provided some educational services, such educational services were ancillary to the functional services and “in no way intended to supplant the educational services” available from the district.  Due to the ancillary nature of the educational services, the home based program was “not ‘proper’ within the meaning of the IDEA.”  Accordingly, reimbursement for such program was denied.

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Collaborative team teaching classroom appropriate for student with ADHD and learning disability.

Thursday, August 2nd, 2012

K.B. v. New York City Department of Education, 57 IDELR 219 (S.D.N.Y. 2011):  A U.S. District Court upheld the New York State Review Officer’s (SRO) determination that a school district offered a free appropriate public education (FAPE) to a student with ADHD and a learning disability.  The school recommended the student attend a 13:1 collaborative team teaching (CTT) classroom, with additional related services.

The student attended a private school, in which she received her instruction in groups not exceeding ten students.  Accordingly, the parents sought a program with a similarly low student to teacher ratio.  The district recommended a 13:1 CTT classroom, with 13 special needs students (ultimately reduced to 12), and 18 general education students, taught by one special education teacher and one general education teacher, as well as certain related services.  The parents placed the student in a private program with small class size, and requested reimbursement.

The SRO deemed the district’s recommended classroom appropriate, despite the student’s likely frequent interaction with nondisabled peers (which the parent argued raised the class size to nearly thirty students).  The Court affirmed noting that the IEP contained all its essential elements, despite a few omissions and clerical errors.  Accordingly, since the program recommended by the district was appropriate, the parents were not entitled to reimbursement.

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School district developed an appropriate BIP, despite its failure to conduct an FBA.

Thursday, July 5th, 2012

C.F. v. New York City Department of Education, 57 IDELR 255 (S.D.N.Y. 2011):  A U.S. District Court agreed with the State Review Officer (SRO) in holding that a behavioral intervention plan (BIP) can be properly developed despite a school district’s failure to conduct a functional behavioral assessment (FBA).  The SRO overturned the impartial hearing officer’s (IHO) determination that such failure to conduct an FBA denied the student a free appropriate public education (FAPE).

The student, who was identified as autistic, had previously attended a private school, and was preparing to begin kindergarten.  His parents requested an evaluation by the Committee on Special Education (CSE), which recommended a 6:1:1 classroom and developed a BIP.  The BIP was based exclusively on the reports from the student’s private school teachers and the district did not conduct a formal FBA.  Nevertheless, the Court affirmed the SRO’s decision that the CSE need not conduct an FBA in this case.  The teacher reports were thorough, and although the BIP was admittedly vague, it would be further developed and properly implemented by the proposed classroom teacher.

Separately, the Court also affirmed the SRO’s reasoning that parent training and counseling need not be explicitly included on a student’s IEP.  Here, the IEP failed to identify parent counseling and training as a related service.  However, since the student was being placed in a “specialized school”, and such setting included access to various services provided by a parent coordinator to the parents of students who attend the specialized school, the IEP need not specifically identify parent counseling and training.  Accordingly, since the IEP and BIP offered a FAPE, the Court denied the parents’ request for reimbursement for their unilateral placement.

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Child’s residency, not his or her formal enrollment in public schools, obligates school district to re-evaluate.

Friday, December 2nd, 2011

Moorestown Township Board of Education v. M.D., 57 IDELR 158 (D.N.J. 2011): A U.S. District Court held that the location of a child’s residence determines whether or not the school district has an obligation to re-evaluate the child. The Court rejected the District’s argument that, in order for there to be an affirmative obligation to re-evaluate a student with a disability, that student needs to be enrolled in the school district.

The parents unilaterally enrolled the student in a private school that, at the time of the student’s enrollment, was within the school district where the student resided. After the student had spent more than a year at such private school, the parents requested the district re-evaluate him for potential placement back in a public school setting. The district refused to evaluate the student, despite the fact that the student resided within the district, unless he first re-enrolled in the public schools. The parents did not want to re-enroll the student in the district, out of fear of potentially losing his spot in the private school should the district not create an acceptable program.

After the parents filed a due process complaint, the administrative law judge (ALJ) determined the district denied the student a free appropriate public education by not conducting evaluations and convening an IEP Team meeting. The district appealed the decision, arguing that its duty to evaluate a student with a disability only applies if the student is enrolled in the district. The Court, noting that the district could produce only marginal support for its argument that it does not have to evaluate a student residing within its boundaries, rejected the district’s argument and held that the district’s responsibility to evaluate students with disabilities depends on their residence and does not also require that such students be enrolled in the district’s schools.

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Change in disability classification does not require change in services if the student’s needs remain substantially the same.

Tuesday, November 15th, 2011

Hailey M. v. Matayoshi, 57 IDELR 124 (D. Hawaii 2011): A U.S. District Court held that a subsequent change in a student’s disability classification does not require a corresponding change in the nature of the services provided to the student. The student was initially diagnosed as mentally retarded in 1999, but after private evaluations obtained by the student’s parent, her classification was changed to specific learning disability. Thereafter, the program recommended by the school district was a continuation of the student’s placement in a special education class with extended school year services, despite the parent’s request for a general education classroom.

The Court determined that the district continuously offered IEPs based on the student’s unique educational needs, regardless of her disability classification. Specifically, the student’s special education teacher testified that, notwithstanding the change in disability classification, the student’s educational needs did not change significantly. As a result, the district offered the student a free appropriate public education and the parent thus was not entitled to reimbursement for the services she obtained from private providers to address the student’s specific learning disabilities.

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School district’s failure to consider progress reports and evaluation provided to IEP team at end of meeting was a procedural denial of FAPE.

Thursday, June 30th, 2011

Aidan M. v. Department of Education, State of Hawaii, 56 IDELR 9 (D. Hawaii 2011):  A U.S. District Court found that a school district’s failure to consider an evaluation and progress reports from the student’s private school amounted to procedural denial of FAPE, even though the parents did not provide such documentation until the end of the IEP team meeting.

The IEP team met for the student, diagnosed with attention deficit hyperactive disorder (ADHD), in early June, and at the conclusion of that meeting the parents provided documentation from the student’s private school.  The documentation included an evaluation conducted by the private school, as well as progress reports demonstrating the student’s progress during the previous school year.  The IEP team did not review the materials at that meeting, and did not reconvene to review the materials.

The Court noted that “a school district cannot abdicate its affirmative duties under the IDEA, irrespective of parental conduct.”  Although the parents did not provide the documentation they wished to be reviewed by the IEP team until the conclusion of the IEP team meeting, such documentation was still available to the school district prior to the IEP’s implementation and should have been considered by the IEP team prior to the implementation of a new IEP.  The Court understood that procedural violations do not necessarily result in a denial of FAPE, but since the documentation demonstrated the student’s progress during the previous year the Court found that not having the IEP team review the information was “sufficiently grave to warrant” a finding of a denial of FAPE.

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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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