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The GAP Attorneys Blog

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

Posts Tagged ‘Procedural safeguards’

District cannot refer a student to RTI process in lieu of commencing a requested evaluation.

Thursday, May 9th, 2013

Broward County (FL) School District, 59 IDELR 143 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) found that a school district violated Section 504 by failing to conduct an evaluation regarding a student with academic and behavioral difficulties stemming from his ADHD.

The student’s parent requested that the student be evaluated due to the manifestation of certain academic and behavioral difficulties for the student.  However, the district failed to proceed with the evaluation, instead referring the student to the response to intervention (RTI) process.  By implementing the RTI process, instead of proceeding with the requested evaluation, the district improperly delayed the student’s evaluation (which eventually commenced three months later).

Also, OCR found that the team that met to discuss the student’s 504 accommodations was not properly constituted.  The alleged 504 Team only consisted of the district’s 504 liaison, and the student’s parents, rather than a “group of persons knowledgeable about the student, the evaluation data, and the placement options.”  Accordingly, OCR concluded the district failed to comply with Section 504.

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District’s failures in developing IEP entitle parent to private tuition and compensatory education award.

Monday, April 8th, 2013

Ravenswood City School District v. J.S., 59 IDELR 77 (N.D. Cal. 2012):  A federal district court affirmed a hearing officer’s determination in favor of parents of a student with a specified learning disability, awarding the parents reimbursement for their unilateral placement as well as compensatory education.  The district failed to provide the student’s mother with notice of the IDEA’s procedural safeguards upon her referral to the IEP team, which left her unaware of certain rights.  Specifically, the student’s mother was left with the misimpression that the district could refuse to assess the student until it was provided with privately obtained test results.  As a result, the IEP team did not meet in a timely manner and the student was denied a free appropriate public education (FAPE).

Further, once the IEP team did meet, it failed to develop an adequate IEP suited to the student’s needs (most notably failing to properly address the student’s phonological awareness needs).  As a result, the parents unilaterally placed the student in a private program and sought reimbursement.  The hearing officer awarded the requested reimbursement, and 600 hours of tutoring as compensatory education (the hearing officer excused any failure on the parents’ part to file a timely due process complaint due to the district’s failure to timely provide notice of the parents’ procedural safeguards).  The court affirmed.

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Districts must evaluate when requested, despite parent’s alleged acceptance of RTI process.

Thursday, October 11th, 2012

Cherokee (TX) Independent School District, 59 IDELR 18 (OCR 2012):  The federal Department of Education’s Office of Civil Rights (OCR) informed a school district that it should have evaluated a student for services and accommodations under Section 504 upon a parent’s request.  The parent requested an evaluation in November, but the district did not complete its evaluation until the following April.  The district alleged that, in that timeframe, it implemented its RTI process, and the parent acquiesced.  However, OCR faulted the district for failing to notify the parent of her procedural safeguards, including the right to appeal the district’s decision not to evaluate the student and its determination that the student did not yet require special education or related services.  Accordingly, the district agreed to convene a team to discuss what, if any, harm the student suffered as a result of the delayed evaluation as well as any compensatory services that may be necessary.

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School district may violate IDEA by not providing notice of procedural safeguards and by requiring parent to transport student.

Tuesday, December 6th, 2011

Doe v. Attleboro Public Schools, 57 IDELR 132 (D. Mass. 2011): Parents of a student with pervasive developmental disorder, not otherwise specified (on the autism spectrum) appealed an administrative hearing officer’s dismissal of their claim for reimbursement for transportation of their son to a different school within the school district. The Court determined the dismissal was in error, and remanded the matter back to the hearing officer.

The parents wanted their son to attend a specific elementary school so that he would have an enclosed classroom (in which the walls go from floor to ceiling) as opposed to open classrooms (in which the classrooms are not divided by traditional walls). Based on the student’s needs, his parents argued that he required an enclosed classroom. As a condition of the student attending school in an enclosed classroom, the district required the parents to sign an agreement requiring them to transport the student. In doing so, the district also did not provide the parents with notice of their procedural safeguards. Based on the failure to provide such notice, the parents may not have been aware of their ability to challenge the decision to place the student in an open classroom. Therefore, the Court remanded the matter back to the hearing officer for further proceedings to address those issues.

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District’s untimely evaluation entitles parents to reimbursement, despite student’s ultimate ineligibility for special education services.

Friday, September 30th, 2011

P.P. v. Anchorage School District, S-13624/13633 (Alaska Supreme Court 2011):  The Supreme Court of the State of Alaska determined that parents were entitled to reimbursement for a private evaluation obtained after the school district failed to respond to their request for an evaluation, notwithstanding that the student was ultimately determined ineligible for special education services.  Although the student was found to have a specific learning disability, it was determined that he did not require special education and related services.

The parents initially requested an evaluation in May of 2007, but the school district responded that it would be unable to conduct the evaluation before the end of the school year.  The parents, by written referral, again requested an evaluation in August of 2007, before the student started second grade.  By late October, the school district had still not initiated its evaluation, nor provided the parents notice of their procedural safeguards.  As a result, the parents obtained a private evaluation at their own expense and filed a due process complaint.  Throughout this time, the parents had privately obtained tutoring for their son.

The school district ultimately completed its evaluation in January of 2008, and the IEP team determined the student ineligible for services under the IDEA.  The school district relied heavily on the evaluation obtained by the parents in making its determination.  The hearing officer, trial court, and state supreme court all agreed that, due to the district’s failure to evaluate the student in a timely manner the parents were entitled to reimbursement for the evaluation they obtained.  However, since the student was deemed ineligible for services under the IDEA, reimbursement for the private tutoring was ultimately denied.

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Procedural violations, which did not deny FAPE, and parents’ lack of cooperation prevents them from obtaining reimbursement for unilateral private school placement

Friday, September 2nd, 2011

Lazerson v. Capistrano Unified School District, 56 IDELR 213 (C.D. Cal. 2011): The court affirmed a hearing officer’s decision denying tuition reimbursement for the unilateral private school placement of an emotionally disturbed student, struggling academically, but not previously educationally classified.  Although the school district procedurally violated the Individuals with Disabilities Education Act (IDEA) by failing to provide the parents with timely notice of procedural safeguards and a formal assessment plan, as required by California law, it was the parents’ abrupt removal of the student to an out-of-state private school that prevented the school district from evaluating the student and providing her with services.  The court stated that even if the school district’s procedural violations had amounted to a denial of a free appropriate public education (FAPE), equitable considerations did not favor reimbursement to the parents since they only gave the school district one day’s notice of their intention to place the student at the private school.

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School district’s delay in referring a student with academic, emotional, and behavioral difficulties for special education services amounted to ‘child find’ violation

Thursday, December 23rd, 2010

Cosmpton Unified School District v. Addison, 54 IDELR 71 (9th Cir. 2010):  The Ninth Circuit Court of Appeals agreed with the district court’s determination that a school district’s delay in referring a student for special education services, who for several years demonstrated academic, behavioral, and emotional difficulties, amounted to a violation of the IDEA’s “child find” requirement.  The school district argued it did not affirmatively refuse to take action, and that the IDEA’s procedural safeguards (which includes a parent’s right to written notice of a school district’s action or refusal to take action and a parent’s right to a due process hearing) only apply to a proposal or refusal to initiate a change in a student’s identification, assessment, or placement.  The court rejected the school district’s argument that the school district’s choice to ignore the student’s disabilities allows the district to escape its “child find” obligations.  The court refused to interpret the IDEA to produce such “absurd results.”

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