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Posts Tagged ‘Procedural violation’

District’s failure to reschedule IEP meeting for sick parent resulted in a denial of FAPE

Thursday, August 15th, 2013

Doug C. v. State of Haw. Dep’t of Educ., 61 IDELR 91 (9th Cir. 2013)—in this case, the parent appealed the district’s court judgment that his son with Autism was not denied FAPE when the district held his annual IEP meeting without the parent. The Federal Circuit Court found that this procedural violation amounted to a denial of FAPE, because the district violated IDEA’s critical requirements for parental participation. The parent did not refuse to attend, but asked to reschedule on the morning of the annual review meeting, due to illness. The parent wanted to be physically present at the meeting, and did not accept the district’s suggestions of participating by phone or internet. At the meeting, the child’s placement was changed to his local public school and the parent decided to keep the student at his prior private placement, at his own expense. It was not acceptable for the district to go forward with the meeting without the parent, simply to meet the annual review date deadline, because special education services wouldn’t magically cease if the annual IEP review was overdue. Also, it was not appropriate to give priority to the schedules of other CSE members, because the parent could consent to the absence of other members of the CSE. The 9th Circuit reversed the lower court decision and held that the district denied the student a FAPE because the procedural violation denied an educational opportunity (for the merits of his current placement to be properly considered). Thus, the parent was permitted to seek reimbursement if he could establish that the private school placement was appropriate.

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District’s failure to include parent counseling in IEP (although made available) and to conduct FBA were procedural violations, but not enough to find denial of FAPE

Monday, June 3rd, 2013

F.B. and E.B. ex rel. L.B. v. New York City Dep’t of Educ., 60 IDELR 189 (S.D.N.Y. 2013)—the parents in this case had notified the CSE team of their intent to place their son, classified with autism, in a private school and seek reimbursement. The parents filed a due process complaint alleging, among other things, that the failure to conduct a FBA and the failure to include parent counseling in the IEP amounted to a denial of FAPE to their child. The IHO agreed with the parents and awarded reimbursement, but the SRO reversed the IHO. The District Court agreed with the SRO that the parents were not entitled to reimbursement because neither procedural violation amounted to the denial of FAPE. Though a failure to conduct an FBA is a procedural violation, it will not result in the denial of FAPE if the IEP adequately identifies the problem behavior and ways to manage it. Also, the lack of providing for parent counseling in the IEP was not a fatal procedural violation because in fact, counseling services were made available to the parents. The court also viewed both procedural violations in the aggregate and held that cumulatively, the violations did not result in a denial of FAPE. As such, the court upheld the SRO’s decision denying reimbursement to the parents.

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Flaw in IEP team composition did not amount to a denial of FAPE because parents had meaningful participation in the process

Monday, May 20th, 2013

DiRocco ex rel. M.D. v. Board of Educ. of Beacon City Sch. Dist., 60 IDELR 99 (S.D.N.Y. 2013)—in this case, the parents unilaterally placed their child in a private school from fifth grade through eighth grade. In order to develop an IEP for the student’s ninth grade year, the District received consent to obtain his educational records from the private school (though they never obtained the records) and developed a draft IEP in advance of the CSE annual review meeting. The draft IEP was based on the previous year’s IEP, a comprehensive neuropsychological evaluation, and a psychoeducational re-evaluation performed by the school psychologist who also participated in amending the IEP. The parents disapproved of the draft IEP because of the larger class size, and stated that they wanted a duplicate program to the one he was currently benefiting from at the private school. The parents ultimately rejected the proposed IEP and evidenced their intent to re-enroll him in the private school for ninth grade and to seek reimbursement for such placement. The IHO found that there was a denial of FAPE (substantively and procedurally), but the SRO overturned the IHO’s decision entirely, holding that the district had in fact offered the student a FAPE. With respect to procedural violations, the SRO found harmless error. Specifically, though the IEP team composition did not comply with the technical requirements, the parents did not allege any specific harm caused by the lack of participation by an appropriate regular education teacher. Also, the lack of discussion of goals at the CSE meeting did not, by itself, render the goals inappropriate or deny the parents meaningful opportunity to participate in the development of their child’s IEP. The parents appealed the SRO’s decision and the District Court agreed with the SRO that the IEP was reasonably calculated to provide the student with educational benefits and would allow him to make educational progress, and the parents had a meaningful opportunity to participate in development of the IEP.

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School district’s failure to conduct FBA did not make BIP inappropriate

Friday, June 22nd, 2012

C.F. v. New York City Department of Education, 57 IDELR 255 (S.D.N.Y. 2011): The Court concluded that although New York regulations require a functional behavioral assessment (FBA) be conducted in order to determine why a student displays behaviors that interfere with his learning or that of others, the school district’s development of a behavior intervention plan (BIP) without conducting an FBA did not deprive an autistic student a FAPE.  The Court reasoned that the BIP was based on current observations from his teachers and up-to-date records of his recommended placement.  Moreover, although the Court concluded that the school district failed to specify parent counseling and training in the student’s IEP (a service required to be offered to students classified as autistic under New York state regulations), such a procedural defect did not amount to a denial of FAPE.  Having determined that the school district’s proposed placement offered the student a FAPE, the parent’s claim for private school tuition reimbursement was rejected.

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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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Failure to include BIP and plan to transition student back to public school in the IEP were procedural errors, which did not deprive student of a FAPE

Monday, April 2nd, 2012

Park Hill School District v. Dass, 57 IDELR 121 (8th Cir. 2011): The court determined that the school district did not deny a student with autism a FAPE, where a behavior intervention plan (BIP) and a plan to transition the student back to the public school setting were not incorporated into the student’s IEP.  The court reasoned that the failure to include such provisions in the student’s IEP was, at most, a procedural violation of the law.  If the transition services and BIP actually provided to the student were inadequate, this would be a substantive violation.  In this case, however, the parents refused to give the school district an opportunity to provide the student with services when they removed the student from the school district and placed him in a private school.  The school district presented testimony at the due process hearing that had the student attended the recommended placement, it would have used teaching methods and strategies that worked with other students with autism in the school district, and if these strategies proved unsuccessful for the student, the school district would have conducted an FBA.

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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 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 violated child-find obligation by failing to evaluate student in all areas of his suspected disability

Wednesday, May 11th, 2011

School Board of the City of Norfolk v. Brown, 56 IDELR 18 (E.D. Va. 2010): Although a school district had previously evaluated and classified a student with cerebral palsy and seizure disorder as a student with a disability under the category of “other health impairment,” the court affirmed the decision of an impartial hearing officer who had concluded that the school district had violated its child-find obligations under the Individuals with Disabilities Education Act (IDEA) by failing to evaluate the student in all areas of his suspected disability.  The school district should have also provided the student with a functional behavioral analysis (FBA) and behavior intervention plan (BIP) due to the evidence of the student’s history of engaging in behaviors that impeded the student’s learning or that of others.

The court also affirmed the hearing officer’s conclusion that the school district violated the IDEA by conducting a procedurally flawed Manifestation Determination Review (MDR) following a behavioral incident that led to a suspension.  In particular, the MDR team failed to consider a psychiatric report that was generated as a direct consequence of the behavioral incident and the MDR team failed to afford the parents an adequate opportunity to participate at the meeting.

Moreover, the court agreed with the hearing officer that the school district procedurally violated the IDEA when it placed the student in an alternative setting during the student’s suspension.  The decision to place the student in the alternative setting was made by the school board, but should have been made by student’s IEP team.  Moreover, the placement substantively violated the IDEA because it was not the least restrictive environment (LRE) in which the student could receive a free appropriate public education (FAPE).

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