OHIO ASSOCIATION OF PUPIL SERVICES ADMINISTRATORS Legal Updates September 26, 2014 Susan C. Hastings, Esq. Squire Patton Boggs (US) LLP Phone: 216-479-8723

OHIO ASSOCIATION OF PUPIL SERVICES ADMINISTRATORS

Legal Updates September 26, 2014

Susan C. Hastings, Esq.Squire Patton Boggs (US) LLPPhone: [email protected]

© Squire Patton Boggs (US) LLP 2014

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Critical Changes in Ohio’s New Operating Standards

Effective July 1, 2014, Ohio’s Revised Operating Standards went into effect. Some of the changes reflect changes in practice and policy that have been in place for some period of time, including the obligation to provide information about the Autism and Jon Peterson Scholarship Programs, the comprehensive eye exam, and changes in which prior written notice must be given.


3301-51-01 – Revised Operating Standards

3301-51-01:

Clarifies team composition for an initial evaluation: (removes “IEP team”)(B)(21).

Clarifies team composition for a re-evaluation: “IEP team and other qualified professionals” (B)(23).

Transition services: Added the development of employment “in an integrated

competitive environment” (B)(65)(a)(ii); Added the skills required by transition providers and coordinators

(B)(65)(b); Added Competitive Employment definition from Federal law (B)

(65)(e).


3301-51-05 – Revised Operating Standards

3301-51-05 Adds parental consent requirements for initial use of public benefits or

insurance and annual notice of rights (still awaiting the new form)(C)(6). Removes language regarding:

IEPs serving as prior written notice former (H)(4)(c); Discussions at resolution sessions being confidential (K)(9)(a); Conducting an FBA. Removes “within 10 days of the MD and

complete the assessment as soon as practicable” (K)(20)(f)(i)(a); Reviewing a BIP already developed: Removes “within 10 days of the

manifestation determination” and removes language so that behavior is addressed and not only the behavior “subject to disciplinary action” (K)(20)(f)(i)(b).

Contents of the scholarship notice; how it must be sent, and when it must be sent (L).


3301-51-06

3301-51-06

Removes the requirement of a re-evaluation for identified preschoolers transitioning from preschool to school age services. (D)(1)(c). EXCEPTION: Those identified as

“developmentally delayed” must be re-evaluated.

Assumes no change in disability category for other preschoolers.


3301-51-07

3301-51-07

Replaced current transition services language to reflect starting at 14 years old or earlier if appropriate (H)(2).

Adds language about the comprehensive eye exam required notice sent to parent once a child begins receiving services for the first time. (K)(3)(c). NOTE: ORC 3323.19 requires the district to notify a parent within 3 months after a

student is identified of the obligation of the student to undergo a comprehensive eye exam unless the student had an exam within the prior 9 months. A district cannot make the provision of services contingent upon the eye exam; nor is the district responsible for providing or paying for the eye exam. However, the district is responsible to report annually to ODE the number of students who fall within this provision and the number of students documented to have received the comprehensive eye exam.


3301-51-08

3301-51-08 Clarifications

District where charter/non-chartered non public school is located is responsible for additional child find activities for children enrolled in either AU or JP scholarship program. The district will also determine if these children will receive services through a services plan (B)(6).

Children who are eligible under the AU or JP scholarship, attending charter/non-chartered non-public schools, and participating in AU or JP scholarship may be eligible to receive services funded through IDEA private school proportional share funds. Children who are eligible under the AU scholarship, participating in the AU Scholarship and attending charter/non-chartered/non-public school may be eligible to participate in the Early Childhood Special Education flow through benefit (R)(1).


Autism Scholarship Program Rule Review

3301-103

Aligns with JPSP, including enabling a parent to use scholarship funds to purchase special education services not listed by the school district in the child’s IEP.


More Details Regarding Prior Written Notice

PR-01s are required any time the district is holding a meeting where the district is proposing to change or refusing to change a child’s identification, evaluation, educational placement or IEP, even if the change never takes place.

It must be detailed enough to address what was discussed at the meeting and meeting outcomes. Generic PR-01s will not suffice.

PR-01s must be provided after the IEP meeting but before the implementation of a new IEP or implementation of any changes in identification and placement.

Do not create a perception of predetermination by handing a parent a a fully completed PR-01 during the IEP meeting. (It is ok to have a draft and revise at the meeting and print before the parent leaves).


More Details Regarding Prior Written Notice

The timing of the PR-01 may impact dates on the IEP. The meeting date is date of meeting. Effective date is date the IEP will be implemented. The end date is 1 year minus 1 day from the meeting date - - not from the effective date. Dates in § 7 of the IEP can be tailored to the specific services, if different from the effective date of the IEP.

Be sure the IEPs overlap so the child always has a valid IEP. Plan ahead.

For manifestation determinations, the PR-01 must be given before the student’s placement is changed to the alternative setting.

Note certain exceptions from issuance of the PR-01 in situations involving an initial evaluation or re-evaluation (see OEC Chart updated on website).


Academy School District, D20, 113 LRP 29928 (SEA Co. 4/15/13)

The parent alleged the district predetermined the placement of a student with a seizure disorder and a history of physical aggression based upon circumstances surrounding the PR-01.

The allegations stem from an email from the Special Ed Director regarding preparation of a PR-01 before the conclusion of an IEP meeting.

The actual email read “I may send a PWN to you for the conclusion of the meeting. (I know that sounds like PREDETERMINATION!!! But I can’t be there”).

The state ultimately concluded there was no evidence of predetermination because the PWN was drafted after the meeting.

The issue regarding the timing of the PWN relates to the parents’ right to participate in decisions regarding their child’s placement (34 C.F.R. 300.116(e)(1)). In order to give meaningful consideration to parents’ input, decisions should not be made prior to or outside of the IEP meeting.


H.B. 264 Governing Diabetes Care For Students Attending Public and Chartered Non-Public Schools

ORC § 3313.7112 goes into effect September 11, 2014. It provides: Trained school employees may administer diabetes medication (not just

nurses);

Students with diabetes must be allowed to attend neighborhood schools;

Notice to parents advising the child may be eligible for a 504 Plan to be given no later than 14 days after receiving a doctor’s order regarding the student’s diagnosis;

Training of employees regarding diabetes care to ensure that in every building, some staff have been properly trained. Training is to be based on guidelines developed by ODE. (Note, participants are to be “volunteers”);


H.B. 264 Governing Diabetes Care For Students Attending Public and Chartered Non-Public Schools

Training of bus drivers to recognize symptoms of hypo and hyperglycemia and appropriate responses

Enabling students to provide their own diabetes care without limitation to location

Reporting to ODE regarding number of students with diabetes and number of errors associated with administration of diabetes medication during the previous school year.

Provides qualified immunity to school nurses and school employees.


Online Education and Career Planning Tool

HB 393 – eff. 9/17/14

Job and Family Services to create an online tool to assist students in developing education and career plans. DOE to distribute it by 9/30/14. Each high school to publish in newsletter, planning guide, web site or other regular publication to students and parents (include a web link).


Epinephrine Autoinjectors

HB 296 – eff. 4/21/14

- discretionary to procure – if so: adopt policy encouraged to maintain at least 2 per building Include protocols; locations; storage; eligible

users; training immunity


Attendance Issues

ODE is cracking down on “scrubbing” of data as related to withdrawals. The cases that ODE has been pursuing are all cases where the districts have withdrawn students who are truant. ODE has looked for cases where the districts do not have supporting documentation, or cannot show that they filed truancy charges in juvenile court. ODE calls it “scrubbing” on the assumption that these students would ordinarily have low test scores.


Attendance Changes in Law

HB 59, eff. 7/1/14 Districts can withdraw students after: Parent terminates enrollment Documented enrollment in another district Failure to participate in learning activities for 105

consecutive hours; truancy and follow-up obligations remain

Student ceases to participate in learning opportunities No withdrawals/enrollments in EMIS more than 30 days

after actual enrollment/withdrawal


Credit and Release Time for Religious Instruction

HB 171 eff. 9/11/14

Board may adopt a policy allowing released time and granting of up to two high school credits for a student to be excused to attend a course in religious instruction by a private entity off school grounds.

Requirements:Religious school keeps attendance recordsParental ConsentNo transportation (and immunity from transportation injuries)Sponsoring entity “assumes liability for the student”No public funds or personnel involved in religious instructionStudent “assumes responsibility for missed schoolwork”Can’t miss a “core curriculum” class at schoolCredits count as elective credits toward HS graduation – evaluate credits as you would a student transferring from a religious high school to a public school.


Curriculum Standards

Every district must must convene a local curriculum review committee to provide an opportunity for parents to review the selection of textbooks, instructional material and curriculum. Final authority remains with the Board.

Class of 2018 takes seven “end-of-course” exams instead of OGTs. English 1 and 2, geometry, algebra 1, physical science, American History, American Government. OK to substitute AP, IB or dual-credit course exams for physical science, Am Hx and Am Govt.

Vocational programming may start in seventh grade.


Tuition

Attorney General (2014-026) prescribes flexible approach to determine if a student is emancipated. (Applies to 18-21, live away from parents, support themselves by their own labor) Essentially, do they work to facilitate their necessities—food, shelter, clothing. Case by case inquiry that may include amount of a paycheck, payment in kind.


Update on Ohio’s Special Education Dispute Resolution Process

The process is under review by OEC

Parent and school groups along with other stakeholders are involved in the review of the process.

There is a desire by OEC to emphasize alternative dispute resolution and encourage parties to use those resources prior to the filing of written complaints or due process.

OEC is in the process of preparing a user friendly chart of Ohio’s ADR processes.


Update on Whose IDEA is This?

The brochure is in the process of being revised

The goal is to be more concise and user friendly


Status of Guidance Document

The guidance document was discontinued in the summer of 2013 due to inconsistencies with the operating standards and the perception that the guidance carried the same weight as the standards.

OEC is considering whether there is currently a need for a guidance document

One option under consideration is to provide a version of the operating standards with an electronic link to federal law/regulations/OSEP letters


Uninterrupted Scholars Act Amending FERPA

The Uninterrupted Scholars Act (USA) was signed into law by President Obama on January 14, 2013.

The USA amends FERPA in two respects;

(1) Permits educational agencies to disclose records without parental consent to case workers/child welfare agencies when the agency is legally responsible for the care/protection of the student (i.e. foster care situations).

(2) Allows educational agencies to disclose records pursuant to a judicial order without requiring additional notice to the parent in the specified types of proceedings where the parent is involved (i.e. where the parent is a party to a court proceeding involving child abuse/neglect or dependency matters and the order is issued in the context of that proceeding).

Note, the changes are permissive - - not mandatory. Thus, the district may disclose records to the responsible agency without consent but is not required to do so. The amendments only apply to children who are in foster care placement.


U.S. DOE Guidance Regarding Assessment of Disabled English Learners (ELs)

On July 18, 2014, the U.S. Dept. of Ed. circulated a guidance document to clarify the participation of ELs with disabilities in the annual ELP assessment and the inclusion of the ELP assessment results in Title III AMAOs. Similar to other state required assessments, disabled ELs must participate

in the assessments, with or without appropriate accommodations, or by taking an alternate assessment consistent with the student’s IEP.

States are required to develop guidelines for the provision of appropriate accommodations for these assessments including guidelines for the participation of students with disabilities and alternate assessments for those who cannot take the regular assessment, even with accommodations.

Decisions regarding assessments must be made by the student’s IEP team and the team must explain why the student cannot participate in the regular assessment and why a particular alternate assessment has been selected.


U.S. DOE Guidance Regarding Assessment of Disabled English Learners (ELs)

The IEP team must include someone with expertise in ELL and may include an SLP who understands how to differentiate between limited English proficiency and the student’s disability.

Assure that the parent of a disabled EL whose native language is other than English has the supports necessary to understand the proceedings of the IEP team meeting, including arranging for an interpreter.

All ELP assessment results, including alternative ELP assessment results, must be included in the Title III accountability calculations under parts 1 and 2 of the AMAO. Results are not recorded under the third part of the AMAO which is based on adequate yearly progress (AYP) under Title I.

ANATOMY OF A DUE PROCESS HEARING

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Notify insurance carrier for potential coverage

Initial response to schedule resolution session and/or mediation (to be held within 15 calendar days or 7 calendar days if expedited)

Sufficiency challenge to be filed within 5 days

Response to due process to be filed within 10 calendar days of the district’s receipt

File resolution paperwork with OEC documenting outcome of resolution session/mediation


Intensive record review in preparation for disclosure conference

Preparation of exhibits for hearing

Disclosure conference (clarification of issues, witness lists, exhibits, motions)

Preparation of witnesses

Detail the evidentiary hearing process

Appeal process (SLRO, Court)

Costs associated with due process proceedings


Case Law Update

Toledo Public Schools, 114 LRP 1942 (OEC CP0172-2013, 12/2/13)

The OEC addressed numerous claims against the Toledo Public Schools including the alleged: Failure to include parents in the IEP meeting. Change in placement due to disciplinary removal. Change in placement related to a change in the student’s schedule. Failure of the IEP to address student’s needs with regard to behavior.

The OEC findings included: The district documented sufficient attempts to include the parent in the IEP

meeting including telephone calls, multiple written invitations and a call to the parent the day prior to the IEP meeting. The district did not violate the law when it proceeded with the meeting without the parent.


Case Law Update (continued)

The documentation reflected the student, a 14 year old with multiple disabilities including significant behaviors, had been removed for a total of 23 school days (18 in- school/5 out-of-school). While the student received services by a licensed teacher and intervention specialist during the in-school suspensions, OEC found a violation of the IDEIA in failing to reconvene the IEP team to determine whether removals after 10 cumulative days constituted a pattern of removals resulting in a change of placement.

OEC concluded the change in the student’s schedule (which was temporary) from a regular education language/arts class to a resource room language/arts class was not a change in placement requiring consent because the IEP provided for resource room in Section 7, and Section 11 (LRE) noted the student’s needs are best met by being enrolled in special education classes for some of her subjects and that she would benefit from the addition of daily resource room.

The OEC did find a violation in that the IEP team did not revise the IEP to reflect the behavior concerns resulting in 23 disciplinary removals or to reflect the student’s excessive absenteeism (70 days) or the student’s failure of 8 courses, receiving only 2.5 credits for her freshman year.



District of Columbia v Oliver, et al., 62 IDELR 293 (D. DC 2/21/14)

This case involved a district of residence’s obligation to offer a FAPE by developing an IEP for a student who was not, and never had been, enrolled in the district.

The parents requested the district evaluate the student to determine eligibility under IDEIA and requested the district provide an offer of FAPE.

The evaluation was completed and the student was deemed eligible for special education.

The district declined to develop an IEP because the student was not enrolled in and/or attending public school.



The parents provided written notice of their intention to maintain the student’s placement at the private school and requested public funding. The IHO and the court concluded that while the public school district did not have an obligation to actually provide a FAPE for a student enrolled in a private school, it must offer a FAPE via an IEP to communicate to the parent what would be offered if the child were enrolled.

The district also remains responsible for periodic evaluation of the student’s special needs (Child Find) and a continuing obligation to offer FAPE regardless of enrollment status.

The remedy was placement at and reimbursement for tuition at the private school. (Note: Because the remedy included placement, that becomes stay- put in future disputes).



Letter to Anonymous, 114 LRP 28828 (FPCO, 2/25/14)

The Family Policy Compliance Office (FPCO) addressed whether a district had to provide a parent information about how records are maintained, including the type and location of education records.

The parent had requested “all documents and records” related to her child.

The district provided the student’s cumulative file.

The parent submitted a follow up request for all correspondence, notes, emails, reports, evaluations, test scores, recordings, etc. (past and present).

The district responded that all records had been provided prompting the parent to ask what records were maintained by the district and how they were maintained.

Note: Prior opinion of FPCO noted attorneys have no “right” to records under FERPA – only parents or 18 year old students.



The FPCO concluded that while a district is required to conduct a reasonable search for educational records, the parent must clearly specify the records being sought rather than submitting a blanket request and that the district did not have to provide details on records maintained, location of records, etc.

The FPCO also reminded the parent that she may have other rights enforceable under IDEIA.



Pollack and Quirion ex rel v Regional School Unit 75, 114 LRP 15007 (D. Me. 3/31/14)

This case involved a parent’s request that the student, a 14 year old non-verbal multiply disabled student, be able to carry an audio recording device throughout the school day to document whether the student was being bullied or abused by students or staff.

The request came after the student had an incident in which the student came home crying uncontrollably with unexplained bruises. The district unilaterally denied the parent’s request.

The court concluded that the parent had stated a viable claim to proceed with a lawsuit for retaliation and failure to accommodate under Section 504 and the ADA because the district did not convene a team or utilize any of the procedures under Section 504 or ADA before refusing the accommodation. [Note: There are significant issues here regarding exhaustion of remedies, etc. This seems to be an anomalous case).



K.S. et al v Strongsville City School District, 63 IDELR 125 (N.D. Ohio 5/30/14)

This case involved multiple issues occurring over the course of 3 school years, culminating in a 12 day due process hearing with 31 witnesses.

The case involves a 9 year old autistic student who attended private preschool under the Autism Scholarship, then attended Strongsville City Schools during the 2009-10 and 2011-12 school years. (During the 2010-11 school year, the student was again on the Autism Scholarship and attended 3 different private schools.)

The issue involved whether (1) the use of a glass enclosed vestibule as a quiet area was a change in placement, (2) the student’s IEPs (2009-10 and 2011-12) offered a FAPE, and (3) the district changed the student’s placement without parental consent where the parent did not sign the appropriate line on the IEP for change in placement.



Strong testimony by the school district and good record keeping resulted in a finding by the IHO, SLRO and district court that the parent did not meet her burden of proof regarding any of the alleged violations.

The evidence reflected multiple amendments to the student’s IEPs to address evolving concerns including reference to a quiet work/break area – (a.k.a. glass house), multiple FBAs, the IEP being amended to address behavior goals, detailed progress reports and appropriately detailed PR-01s documenting the district’s actions and areas of dispute.

The fact the district provided a full-time aide, contracted with a board certified behavior analyst, and clearly considered the results of an IEE also factored into the district’s case.

With regard to an error in parent signature on the IEP, the unrefuted evidence reflected the parent was aware the child would be educated for part of the day in the resource room and signed the IEP, albeit on the wrong signature line. The error was deemed “form over substance” and did not result in a denial in FAPE.



C.K. v. Hudson City School District, ODE Case No. SLR 2860-2013 (SLRO Bohlen, 6/10/14)

A.K. v. Hudson City School District, ODE Case No. SLR 2861-2013 (SLRO Bohlen, 6/10/14)

In two separate but very similar due process matters involving siblings, the IHO and SLRO concluded Hudson City Schools offered the students a FAPE in the least restrictive environment.

Both cases involved students with autism who were unilaterally placed by their guardians at the Monarch School utilizing the Autism Scholarship.

In an effort to get the district to pay for the Monarch School (as opposed to relying on the Autism Scholarship Program which only funded $20,000 of the $76,000 tuition), the guardians challenged the evaluation of the students, the guardians’ input in developing the students’ IEPs, (i.e. issue of predetermination), whether the IEPs were compliant and provided a FAPE and, whether the ESY services offered by the district were appropriate.



There was also a preliminary issue as to whether the unilateral placement at Monarch School under the Autism Scholarship should be considered “stay- put” during the pendency of the due process proceedings.

With regard to the stay-put issue, the IHO and SLRO concluded a guardian’s choice to place a child in a private school under the Autism Scholarship was the not the “stay-put placement”; rather, the last IEP developed for the student under the ASP, which reflected public school placement, was stay-put.



In concluding the guardians failed to meet their burden of proof on any of the allegations, the IHO and SLRO noted the length of the IEP meetings (3+ hours each), the active involvement of the guardians and their advocate, the district’s due consideration of all information provided by the guardians and/or the private school, the comprehensive nature of the IEPs, the experienced, trained staff involved in the development of the IEPs and the fact that after a period of “due deliberation”, the guardians signed the IEPs and requested that the IEPs be implemented by Hudson. [The guardians later had a change of heart and submitted a unilateral notice of placement at public expense which was followed by the request for due process].

Similar to the Strongsville case, the district maintained extensive documentation of its efforts, used comprehensive PR-01 notices and clearly documented its communications with the guardians and the Monarch School.



Gibson v Forest Hills School District Board of Ed., 114 LRP 31607 (S.D. Ohio 7/15/14)

In this case, the family prevailed on only a handful of issues over the course of three years of litigation, which involved a 20 day due process hearing and appeals to the state level review officer and federal court. The court awarded reimbursement for attorneys fees to the parents in the amount of $300,000. Note, the attorneys were Disability Rights Ohio (a non-profit agency) and the original request for reimbursement was in excess of $800,000. Further note, this cost is on top of the district’s costs for its legal counsel and costs for the hearing officer and transcript/record of the hearing.

There was no evidence that the District attempted to avoid an attorney fee request via offer of settlement; nor did District aggressively oppose the fee petition.



Horen v. Board of Ed. of the City of Toledo Public School District, 114 LRP 35525 (N.D. OH 8/1/14)

The name of the family in this case may be familiar to you as the Horens are frequent fliers when it comes to due process proceedings.

They have pursued due process claims, including appeals to court, numerous times over the course of the past 7 years without any material success.

In several of the court orders, the family was advised about the risk of sanctions if they continue to pursue their frivolous litigation.

To ensure that the board of education did not have to continue to waste scarce public funds in defending meritless cases, the district court awarded the board fees and expenses related to the most recent litigation in the amount of $32,792.



One of the parents’ objections to the fees was for time spent reviewing 5,500 pages of documents submitted by the parent in opposition to the board’s motion for summary judgment. The court responded that if the parent did not desire to have the board and its attorneys conduct an exhaustive and expensive review of documents, the parents should have exercised better judgment in selecting what to submit.

Note, the parents’ lawsuit was doomed to failure based on clearly established legal principles. Thus, it is a high bar to overcome to receive an award of fees and costs from a parent. (In other words, this is based on a unique set of facts).



T.H. v Cincinnati Public School District Board of Ed., 63 IDELR 189 (S.D. Ohio 6/27/14)

Parent attorneys continue to seek creative ways of forcing districts to pay for a parent’s preferred program while due process is pending. One strategy we are seeing more often is to file for injunctive relief through a court, via a motion for a temporary restraining order.

This is such a case where a parent attempted to force the district to pay for the parent’s preferred ESY program through a temporary restraining order.

The parent’s argument was, absent the preferred ESY program, the student would be at risk of serious regression.

The court noted that the Sixth Circuit does not recognize an “irreparable harm” exception to the exhaustion requirement.

Even if an irreparable harm exception were to be considered, the parents delayed their request for due process by 3 months, contributing to the “emergency” situation.



The parents also failed to provide evidence through a qualified expert that any alleged harm was truly irreparable - - that any regression could not be recouped.

Note, the Sixth Circuit has recognized an exception to the exhaustion requirement where exhaustion would be futile or inadequate to protect a student’s rights or where parents had not been given full notice of their procedural rights.



Ross Local School District, 113 LRP 10257 (OEC CP 0243-2012, 2/15/13)

OEC responded to a parent complaint alleging that (1) the district failed to develop an IEP that adequately considered the student’s academic, developmental and behavioral needs and (2) the student’s placement in a chartered behavioral school, which included partial hospitalization, was not made by an appropriate group of qualified individuals.

The student, a young girl with an emotional disability and significant acting out behaviors, was placed by the district in a chartered school that specialized in providing services to students with significant behavior needs. The parent was included on the team and signed the IEP.

The evidence reflected that the team had completed an FBA and developed a BIP and the IEP did contain behavior goals and corresponding objectives.

The district’s documentation included voluminous notes, daily logs and charts in addition to progress reports



The documentation reflected numerous IEP meetings held throughout the course of the year, including at least one meeting where the parent simply refused to attend.

The documentation also reflected the student had a 52% attendance rate and when she did attend, would often arrive late, missing the morning portion of her program which included the partial hospitalization services.

The district filed truancy against the parent arising out of the attendance issues.

The charter school offered to provide wrap-around support in the home through case management services.

Based on the extensive documentation, OEC concluded there were no violations. The IEP was developed with the input of the parent and appropriate staff, it was individually designed to provide mental health and behavior services in addition to academics, and it was more likely than not that the student’s lack of progress was due to poor attendance and late arrivals to school.



Buckeye Local Schools, 114 LRP 9756 (OEC CP 0203-2013, 2/11/14)

The OEC’s 17 page letter of findings addresses 8 allegations, 7 of which required corrective action.

This case provides a good road map of a district’s obligations to serve a child who is coming to the district with an out-of-state IEP and where there are records reflecting significant health issues impacting the student’s education.

The district received educational records, including an IEP, on March 14, 2014. The student did not receive an IEP or services until April 9, 2013, following completion of an ETR. The failure to implement an IEP similar to the out-of-state IEP upon the district’s enrollment was found to be a violation.

The ETR that was completed by the district noted, but failed to properly assess, the student’s various health needs including sensory, fatigue, migraines, impaired mobility, impaired gross and fine motor skills, and impaired language skills. The ETR also failed to address how the student’s educational program would address those needs.



The IEP similarly failed to address the same areas of need that were omitted from the ETR.

When the IEP was reviewed and revised at the start of the next school year (August 28, 2013) proposing to change the location of services from home bound instruction to the public school setting, the parent was not in attendance (she called at the last minute to advise she would not be attending without an advocate and that she had an interest in enrolling the child in a virtual learning academy through the ESC). The team met without the parent, changed the student’s placement without parental consent, and then processed paperwork to enroll the student in the ESC virtual learning academy.

Because the virtual learning academy was not a community school, the district still had an obligation to implement the IEP and/or revise the IEP to reflect the virtual learning academy and how the student’s needs would be met through the virtual learning academy.



M.M. and I.F. ex rel., L.F. v New York City Department of Education, 63 IDELR 156 (S.D. N.Y. 2014)

The parents sought reimbursement for their unilateral placement of their daughter at a private school in Utah.

The student had a history of various metal health issues including depression, eating disorders and suicidal ideation.

Despite her mental health issues, the student did well academically and received good grades, despite missing significant chunks of school due to anxiety, depression and fear.

Following a suicide attempt in November, 2007, the district provided the student with home education through January, 2008, at which time she left the country with her parent. There was no evaluation or IEP at this time.



Upon student’s return to the country in April, 2008, she was enrolled in a private school in Utah which specializes in providing a structured program for teenage girls with eating orders, substance abuse and behavioral issues. The student demonstrated progress while at the private school.

In April, 2008, the parents requested an evaluation of their daughter. The process did not commence until June of 2008, but because of lack of access to the student. The evaluation was not completed for almost a year (March, 2009).

The team concluded the student was not disabled because her mental health issues did not impact her strong academic.



An IHO found that the team erred in not finding the student to be disabled and further found that the student’s placement at the private school was appropriate. However, because the grandmother had paid for the tuition instead of the student’s parents, the IHO refused to award reimbursement.

Both the parents and district appealed to the SRO who disagreed with the IHO’s finding that the student was disabled. The SRO based the decision on the fact the student performed well at school even when she suffered increased anxiety and depression and because her education was not affected by her emotional disturbance she was not eligible.

The court disagreed with the SRO finding that while a student’s receipt of good grades may constitute evidence indicating performance in school was not adversely affected, that is not conclusive of eligibility.



The SRO failed to consider whether the student could even attend school. The absence of credits needed to graduate due to attendance issues and the fact the student was not able to attend school during her senior year, and the fact the student’s grades were declining while in the public school setting.

The court also concluded the grandparent’s payment of tuition was a “loan” to the parents and that the district was responsible for tuition reimbursement (almost $10,000 per month).



P.S. v. New York City Department of Education, 63 IDELR 255 (S.D. N.Y. 2014).

This case involved a 14 year old boy on the autism spectrum who presented with maladaptive behaviors (tantrums, verbal perseveration, non-contextural laughing, non-compliance and SIBs). His communication skills were at the 3 year old level.

During the 10 year period prior to the due process complaint, the student attended a private school specializing in autism, and relying heavily on ABA in a primarily 1:1 setting.

In developing the student’s IEP, the public school considered information from the private school. In addition, staff members from the private school participated in the meeting at the parent’s request.

The team determined, over the parent’s objection, that the public school could meet the student’s needs in a class with 6 students, supported by a 1:1 paraprofessional.



The school recommended by the district did not use ABA methodology. Instead, the staff were trained in the TEACCH method which incorporates elements of ABA.

The IHO found in the parent’s favor, ordering the district to place the student at the private school. On appeal, the SRO reversed the IHO’s ruling, finding the team had considered all available information and the student’s specific needs. With regard to the ABA methodology, because the law does not require a district to specify in the IEP a teaching methodology and because the record did not establish that ABA was the exclusive means by which the student could effectively learn, the SRO found the district did not deny FAPE.

The district court affirmed the SRO’s decision in all respects, agreeing there was no evidence in the record to suggest the student could not be adequately supported by a 1:1 paraprofessional working under the direction of a special education teacher. The court further agreed with the SRO’s findings that the record did not establish the student could only make progress when instructed using ABA. Further, the principles of ABA were incorporated into the special education classroom along with the TEACCH strategies.

Documents

OHIO ASSOCIATION OF PUPIL SERVICES ADMINISTRATORS Legal Updates September 26, 2014 Susan C. Hastings, Esq. Squire Patton Boggs (US) LLP Phone: 216-479-8723