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Posts Tagged ‘Tuition reimbursement’

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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District can be held responsible for private school tuition when it fails to consider an inclusion setting with a 1:1 aide

Monday, April 15th, 2013

G.B. and L.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 60 IDELR 2 (2d Cir. 2012)—the Second Circuit Court of Appeals affirmed a lower court’s decision that a school district denied FAPE to a student with pervasive developmental disorder by offering an overly restrictive placement. Thus, the Federal Court upheld the parent’s entitlement to tuition reimbursement for the child’s private inclusion preschool program. The school district should have considered whether the child could participate in an inclusion classroom with the help of a 1:1 aide. NOTE: this decision has not been released for publication in official or permanent law reports, per court order. To view the blog posting regarding the lower court case, see N.B. v. Tuxedo Union Free Sch. Dist., 55 IDELR 228 (S.D.N.Y. 2010), posted on April 28, 2011.

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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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Where parents unilaterally placed student in a private religious school, (inappropriate to address the child’s needs), District still obligated to develop a student’s annual IEP (but not to reimburse tuition)

Thursday, January 24th, 2013

Doe by Doe v. East Lyme Bd. Of Educ., 59 IDELR 249 (D. Conn. 2012)—A U.S. District court reversed the lower court’s Recommended Ruling and held that school district denied FAPE to a student with autism when it failed to develop an IEP for the 2010-2011 school year. Although the parent had previously declined the proposed IEP for the previous year, that did not extinguish the district’s obligation to review the student’s IEP at least annually. The parent had unilaterally placed the student in a private religious school, which the court held was inappropriate to meet the student’s educational needs because it provided no special education services nor did it implement the IEP as the teachers were not certified in special education. The court deferred to the hearing officer’s determination regarding inappropriateness of the private placement and determined that the parent’s were not entitled to tuition reimbursement.

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Parent is denied tuition reimbursement when the student was eligible to graduate with a Regents Diploma and the parent unreasonably withheld transcripts regarding student’s graduation status

Thursday, January 10th, 2013

T.M. and J.M., on behalf of T.D.M., v. Kingston City School Dist., 59 IDELR 254 (N.D.N.Y. 2012)—The parents of an eighteen year old with pervasive developmental disorder notified the district of their intent to place the student in a private out-of-state facility in April or May of 2008 and signed a two year contract. The court held that the district’s obligation to provide FAPE ended in June 2008 when the student earned a Regents Diploma. Yet, the parent had repeatedly refused to provide a copy of his transcript to the district. The district did not obtain a copy of the student’s transcript until March of 2010 at which time it was determined that he had had enough credits to receive a Regents high school diploma in June of 2008. If the parent had provided the transcript in June 2008 when it was requested by the district, it would have been clear that the student had earned a Regents diploma and that the district was no longer obligated to provide FAPE. Accordingly, equitable considerations did not warrant tuition reimbursement to the parent.

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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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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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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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