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

Posts Tagged ‘private school’

Student not entitled to Section 504 services in private schools

Thursday, June 13th, 2013

D.L. v. Baltimore City Board of School Commissioners, 60 IDELR 121 (4th Cir. 2013):  A federal appeals court held that, absent a state law permitting dual enrollment in both a private and public school, a student enrolled in a private religious school (based on parent preference) is not entitled to receive Section 504 services.  The student, diagnosed with ADHD (and having difficulties with attentiveness, focus, and hyperactivity), did not qualify for an IEP under the IDEA, but the school district determined he did qualify for services under Section 504.

The school district conditioned its provision of such Section 504 services on the student’s enrollment in the public school system.  His parents, however, elected to enroll him in a private religious school.  The Court held that, the district was not obligated to provide services in the private school.  The Court relied on a prior letter from the federal Education Department’s Office of Civil Rights (OCR) finding that, if a district offers an appropriate education, that district is not responsible for the provision of educational services to students who are not enrolled in the public education program “based on the personal choice of the parent or guardian.”  Since Maryland, unlike some other states, did not permit dual enrollment, its public schools had no obligation to provide Section 504 services to students in private schools.

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Student’s progress and expanded IEP demonstrate appropriateness, denying parent reimbursement for unilateral private placement

Monday, June 10th, 2013

McCallion v. Mamaroneck Union Free School District, 60 IDELR 162 (S.D.N.Y. 2013):  A federal district court denied a parent’s request for tuition reimbursement where the student demonstrated progress under his prior IEPs, and the school district worked with the parents to respond to their concerns regarding his program.  Concerned about his ability to make progress in high school based on the programming the school district offered, the parents ultimately enrolled the student (diagnosed with a specific learning disability, as well as ADHD, anxiety and an adjustment disorder) in a private school designed for students with his needs.

Notwithstanding the parents’ unilateral placement, they still participated in an IEP team meeting which resulted in an amended IEP in October of that school year.  Also, the student received passing marks, and progressed from grade to grade prior to the school year in which he was enrolled in the private school.  Since the October IEP incorporated several additional recommendations and accommodations with respect to reading (one of the student’s biggest areas of need), the district offered the student a free appropriate public education and the parents were therefore not entitled to reimbursement.

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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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Though Parent unilaterally placed student at a private school, the district of residence still had the obligation to provide FAPE to the student

Monday, March 4th, 2013

E.T. and D.T. ex rel. E.T. v. Board of Educ. of the Pine Bush Cent. Sch. Dist., 60 IDELR 31 (S.D.N.Y. 2012)—in this case, the parents unilaterally placed the student, diagnosed with Asperger’s Syndrome and school phobia, in a private school and sought tuition reimbursement from the district. The IHO found that the district did not have an obligation to provide the student with a free appropriate public education (FAPE), thus denying the parents’ reimbursement claim, because the parents had clearly intended to enroll the student in a private school before the district could develop an IEP. The SRO affirmed the IHO’s decision and the parents brought suit in federal court for review of the SRO decision. The court found that the district’s obligation to provide FAPE to the child does not end because a child has been privately placed elsewhere. Instead, the district of residence is obligated to provide FAPE to the student, and enrollment in a private school does not extinguish that obligation. The court remanded the case back to the SRO to determine whether the district had failed to provide a FAPE to the student for the 2010-2011 school year; and if it did not, whether the parental placement was appropriate. If the parental placement was appropriate, the SRO will still consider whether, based on equitable considerations, reimbursement for all or part of the cost of the private placement is warranted.

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District must transport home school student to site of related services.

Thursday, August 30th, 2012

Andes Central School District v. King, 59 IDELR 48 (N.Y. Sup. Ct. 2012):  A state court upheld the New York State Education Department’s (NYSED) determination that a school district was required to transport a home schooled student with multiple disabilities to the site at which she received her related services (including physical therapy, occupational therapy, and speech therapy).

The Court noted that federal law requires districts to transport parentally-placed private school students from the child’s home to the site of special education services (and under New York State law, students on a home instruction program are deemed to be nonpublic school students).  The Court specifically rejected the district’s argument that, in order to qualify for transportation, the student must demonstrate a need for special transportation (which would, presumably, be identified on the IEP).  Accordingly, the Court affirmed NYSED’s determination.

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FBA and BIP not necessary where student’s behavior was stereotypic of autism and placement included supports and services to address student’s behavioral needs

Monday, August 27th, 2012

In re: Student with a Disability, 58 IDELR 209 (SEA NY 2012): The New York State Review Officer (SRO) overturned the decision of an impartial hearing officer (IHO) which awarded private school tuition reimbursement to the parents of a student with autism.  The SRO determined that, despite the fact that the student engaged in behaviors that seriously interfered with his learning, the school district did not deny the student a FAPE by failing to conduct a functional behavioral assessment (FBA) and develop a behavior intervention plan (BIP).  The SRO noted that the state regulations define an FBA as “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment . . .”  8 NYCRR 200.1(r).  The SRO accepted the school district’s argument that an FBA was not needed for the student since the student’s stereotypic behaviors were consistent with autism, and therefore the school district did not need to determine why the student was engaging in the behaviors.  A BIP was not needed because the recommended placement included supports and services to address the student’s behavioral needs.

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Factual findings not entitled to deference where hearing officer ignored critical testimony of student’s fear of specific school

Monday, July 9th, 2012

Nalu Y. v. Department of Education, State of Hawaii, 58 IDELR 154 (D. Haw. 2012): The Court remanded the case to the hearing officer to consider whether the school district denied FAPE to the student, classified as speech impaired and other health impaired, by failing to investigate the parent’s concerns regarding the student’s fear of attending the recommended school.  The hearing officer dismissed the parent’s argument that the student’s fear of the public school made the placement inappropriate.  Although the Court noted that a court should typically defer to an administrative agency’s factual findings, the hearing officer’s decision in this case was neither thorough, nor careful since he ignored critical testimony regarding the student’s fear.  After affirming the hearing officer’s decision in all other respects, the Court remanded the matter to the hearing officer for consideration of this issue and whether the parent’s were entitled to private school tuition reimbursement.

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Despite parent’s preference for ABA, TEACCH methodology was appropriate to meet autistic student’s needs

Tuesday, July 3rd, 2012

In re Student with a Disability, 58 IDELR 118 (SEA NY 2011): The New York State Review Officer (SRO) overturned the decision of an impartial hearing officer (IHO) who had awarded private school tuition reimbursement to the parent of an autistic student in part because the IHO determined that the methodology that would have been utilized in the recommended placement – Treatment and Education of Autistic and other Communication Handicapped Children (TEACCH) – would not have appropriately met the student’s needs.  The parent had unilaterally placed the student in a private school that utilized Applied Behavioral Analysis (ABA).  The SRO noted that although the method that would have been utilized by the school district was not specified in the student’s IEP, such method generally does not have to be specified in an IEP since it is usually a matter to be left to the teacher.  The parent was concerned that the TEACCH approach relied on students having the ability to maintain a level of independence, and the student did not have such ability.  However, the SRO disagreed with the IHO and found support in the record that the TEACCH approach would have appropriately met the student’s needs.

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Student’s progress at alternative high school negates need for residential placement

Wednesday, June 27th, 2012

S.H. v. Eastchester Union Free School District, 58 IDELR 46 (S.D.N.Y. 2011): The parents of a student diagnosed with Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), Learning Disorder, Impulse Control Disorder, and Depressive Disorder were denied reimbursement for their child’s unilateral placement at a private residential school.  The Court concluded that school district’s recommended placement at an alternative high school was appropriate since it was substantially similar to the program the student received the year prior (where he made progress).  The fact that the school district’s proposed placement lacked staff specifically trained in Reactive Attachment Disorder did not deny the student a FAPE.  Rather, the proper inquiry is whether the staff is able to implement the IEP, and the Court found that the staff was so able.  In addition, neither the school district’s failure to include staff from the residential school at the IEP meeting, nor the school district’s failure to provide the student with a functional behavioral assessment (FBA), resulted in a denial of FAPE.

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School district’s recommended placement appropriate despite more than three year gap in student achievement levels

Monday, June 25th, 2012

S.F. and Y.D. v. New York City Department of Education, 57 IDELR 287 (S.D.N.Y. 2011): The parents of a thirteen-year-old student with a learning disability were denied private school tuition reimbursement for their unilateral placement despite the fact that the school district’s recommended placement included students with academic achievement levels ranging from a third-grade level to a seventh-grade level.  The parents had argued that the gap in academic achievement levels violated New York State law.  The Court noted that although under New York state law there is a maximum three-year range that applies to the chronological age of students, there is no maximum range for levels of academic achievement.  The Court also determined that the inclusion of one student with an emotional disturbance and one student classified as other health impaired, did not make the proposed placement inappropriate.  The requirement to place students with students of similar needs does not necessarily prohibit placing students of varying disabilities in the same classroom.

In addition, the Court concluded that the school district did not procedurally violate the IDEA by not allowing the student’s parent to visit the recommended placement.  Nor did the school district commit a procedural violation when they included a regular education teacher at the student’s IEP team meeting who had not taught regular education for nearly twenty years.

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