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

Posts Tagged ‘speech impairment’

Speculation about IEP implementation insufficient to show denial of FAPE

Wednesday, September 17th, 2014

M.O. v. New York City Department of Education, 63 IDELR 37 (S.D.N.Y. 2014): A U.S. District Court denied a request for tuition reimbursement for a unilateral placement made by the parents of a student with a speech impairment.  The parents visited a classroom proposed by the school district, but found it inappropriate for the student.  The district subsequently proposed a different classroom, which the parents did not visit.  Instead, the parents placed the student in a private school, and pursued tuition reimbursement.  The District Court upheld the impartial hearing officer (IHO) and State Review Officer (SRO) determinations that the proposed IEP was appropriate, noting that any potential failure to implement (or how he would have fared in the proposed classroom) is speculative and not a proper basis to find a denial of an appropriate education.

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Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

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School district may be held liable for student’s suicide if it failed to address bullying.

Friday, November 25th, 2011

Estate of Lance v. Lewisville Independent School District, 57 IDELR 168 (E.D. Tex. 2011): A U.S. District Court allowed a suit to proceed alleging that a school district failed to protect a young student with disabilities who committed suicide. The nine year old student, who was diagnosed with an emotional disturbance, a learning disability, and a speech impairment, was bullied by his peers.

The student was called “gay” by other students due to his speech impairment. His classmates were intimidated to avoid him or find themselves subject to ridicule as well. Due to the repeated bullying, the district convened its IEP Team to discuss the student’s depression and resulting suicidal ideation. The district referred the student for a full psychological assessment, which noted a possible disorder on the autism spectrum. The district recommended counseling four times per six week period and implemented a behavior intervention plan.

The student was disciplined as a result of his responses to the bullying, resulting in his placement in an alternative school. Despite the parent’s insistence that the student’s behavior (which resulted in the discipline) was a response to bullying, the district failed to investigate. The student admitted to having suicidal thoughts, to the counselor at the alternative school, but there was no record of the counselor notifying anyone of such admission. After returning to his regular classroom, the student was again subjected to bullying and sent to in-school suspension. While using the restroom in the nurse’s office during his suspension, the student hung himself.

As a result of the circumstances surrounding the student’s suicide, the Court allowed the case to proceed due to a potential “special relationship” between the school and the student where, due to his disabilities, young age, and the affirmative acts taken by the district, the district may be held liable for a violation of the student’s constitutional rights.

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District’s requirement that parent agree to responsibility for damage to assistive technology used at home did not deny FAPE.

Friday, November 18th, 2011

R.P. v. Alamo Heights Independent School District, 57 IDELR 64 (W.D. Tex. 2011): A U.S. District Court determined that a school district did not deny a student with mental retardation and a speech impairment a free appropriate public education by requiring the student’s parent to agree to bear financial responsibility for any damage to the student’s assistive technology device that occurred at home.

The student used a Dynavox to assist with her communication, and her father requested that she be allowed to take it home with her. The district agreed, but only after requiring her father to sign an agreement that he would be responsible if it were damaged beyond normal wear and tear. The Court determined that since the device was provided, the student was not denied FAPE and rejected the parent’s argument that the district must provide the device without any limitations.

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School district’s failure to offer a public placement excused parent from obligation to provide notice of unilateral placement.

Tuesday, November 16th, 2010

C.Z. v. New York City Department of Education, 54 IDELR 223 (S.D.N.Y. 2010):  A U.S. District Court held that parents are not obligated to provide notice of a unilateral private placement when the school district never even recommended a public placement.  As a result, the student’s parents were entitled to partial reimbursement for her unilateral placement at a private school.

The student, who was diagnosed with a speech impairment and central auditory processing disorder, attended a private school offering a language based program from second grade through fifth grade (when she aged out).  The program provided a nurturing environment with a teacher and an aide in classes of eight to ten students.  The student also received related services, including occupational therapy and speech and language therapy.

Since the student was aging out, her parents enrolled her in a different private school due to their concern that the school district would not offer an appropriate program.  Despite such enrollment, the parents purchased “tuition insurance” in the event they removed the student from the private school.  The Court also noted that the parents cooperated with the school district, and participated in the IEP process in good faith.  Despite such participation, the school district never made a final offer of a recommended placement.  As a result, the student attended the private school in which she had been enrolled and the parents never provided written notice of their intention to make a unilateral placement.

The Court determined that since the district never formally offered a placement (which failure the district conceded denied the student a FAPE), the parents were not expected to provide notice under the IDEA, rejecting a placement that was never offered.  Consequently, equitable considerations (including the parents’ cooperation and their reasons for not providing written notice) did not relieve the school’s obligation to reimburse them for the private placement.  However, since the regular education component of the private school did not meet the student’s unique needs, the parents were only reimbursed for the tuition relating to the private school’s support program, conducted by a special education teacher.

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Student’s overall ability and progress, not just the student’s performance on standardized testing, are taken into account when determining the appropriateness of an IEP.

Sunday, November 14th, 2010

Jaccari J. v. Board of Education of the City of Chicago, District No. 299, 54 IDELR 53 (N.D. Ill. 2010):  A U.S. District Court rejected a parent’s argument that standardized test scores for her son, who was diagnosed with a learning disability, speech impairment, emotional disability, central auditory processing disorder, and a mild cognitive impairment, demonstrate his lack of progress under his IEP.  Noting that “other indicators suggest that [the student] is making progress,” the Court stated that his “failure to increase his standardized test scores is not dispositive in determining whether he made progress.”

The parent emphasized that the student’s performance in several specific areas failed to improve on several standardized tests over the course of two years.  However, the Court gave weight to other evaluations indicating that the student’s cognitive ability was low.  Therefore, his scores on standardized tests were not reliable enough, in and of themselves, to show his program did not provide an educational benefit.  Instead, the Court gave weight to other evidence indicating the student met his language arts benchmark, nearly met his math goal, and made significant progress behaviorally.  These demonstrated progress, meaning the school district offered a FAPE.

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