Monday, March 29, 2010

Money Damages Sought Under IDEA


In Blanchard v. Morton School District., 52 IDELR 3 (W.D. Washington 2009), a prior decision that a district made a free and appropriate education available to a student with autism and other severe limitations was affirmed. Additionally, claims under the ADA and 504 require a showing of deliberate indifference and the plaintiff must establish the following: (1) the defendants had knowledge from which an inference could be drawn that harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. There was no evidence in this case that remotely reached a level of deliberate indifference and there was no evidence that even reached a level of negligence.

Friday, March 26, 2010

Compensatory Damages Are Not Available Under IDEA


In Doe v. Westerville City School District, 51 IDELR 245 (S.D. Ohio 2009), the plaintiffs initiated a case alleging that for the school year commencing in 2002-2003 through and including the 2006-2007 school year, Defendants violated the IDEIA by failing to provide a FAPE for John Doe, Jr. and by failing to create and follow an IEP that provided instruction premised on scientifically based reading research in violation of NCLB. The Plaintiff requested a jury trial and sought both equitable relief and compensation damages. The U.S. District Court determined the Plaintiffs were limited to the remedies available under the IDEA for violations of the law (e.g. funds to reimburse parents for expenses on special education that a school board should have, but did not provide) and could not seek compensatory damages, including damages for emotional injuries. There was no right to a jury trial in a case alleging IDEA violations and there was no private right of action under the NCLB Act.

Wednesday, March 17, 2010

A Visit to Northside Elementary

Happy St. Patrick's Day! This week I was able to visit two special education classrooms at Northside Elementary. In the first classroom an urgency for learning was present as all students were on task working independently or with an aide. The teacher worked with two students simultaneously addressing each one's unique needs. She provided just enough scaffolding to lead her students to the correct answers and instructed with patience and a genuine concern for each students' learning. Effective teaching practices observed included relating learning to real-world experiences, visuals, and manipulatives. Some students experienced technology throughout the lesson. In the second classroom the teacher reviewed good body-listening skills before beginning a lesson with a group of students. She managed to target several learning objectives (e.g., auditory comprehension, counting, shapes, turn-taking, and answering "wh" questions) while engaging the students in a fun game activity. Pragmatic language skills were addressed as the students used laminated photographs of themselves cut into paper dolls to practice communication. The preschoolers loved this activity. The atmosphere in both classrooms was very positive and it was evident both teachers had spent time planning activities to meet each students' individual needs.

Tuesday, March 16, 2010

A Visit to Tamassee-Salem Elementary

Yesterday I was able to observe a speech-language lesson at Tamassee-Salem Elementary. The speech room was well organized and visually appealing. The students entered the room excited and knew they were in for a fun lesson. The speech teacher had her materials ready and started by asking each student "What are you working on today". After each response the teacher reminded the student how to articulate their target sounds correctly and provided a model for correct production. The students took turns practicing their sounds while randomly drawing letters to try to spell the word "Clover" for St. Patrick's Day. The group had a lot of fun and I laughed out loud several times. This teacher made speech time engaging and enjoyable!

Monday, March 15, 2010

Students With Disabilities Must Benefit From Public School Special Services

In Cone ex rel. Cone v. Randolph County Schools Board of Education, 53 IDELR 113 (M. D. N. C. 2009), the U.S. District Court, Middle District of North Carolina, determined that a district did not provide appropriate services to meet the education needs of a high school student with Fragile X syndrome and Autism. While the court did not indicate the student required a residential placement, it did note that the IEP did not provide a plan for transitions throughout the school day, consistent instruction in all environments, or a plan for communication between school and the student's home. U. S. District Judge Thomas D. Schroeder wrote "[The district's expert] also agreed that more consistency in the information and techniques used with [the student] is beneficial to those with his condition." IEPs teams must be mindful of each student's individual needs when developing educational plans to confer educational benefit.

Friday, March 12, 2010

Fifth Grader With Emotional Disturbance Receives FAPE


In L.F. by Ruffin v. Houston Independent School District, 53 IDELR 116 (S. D. Texas 2009), the court concluded a school district met FAPE requirements when it placed a fifth grade girl with an emotional disturbance in a self-contained program designed to address behavior, academics, and social skills. The placement was determined to be the least restrictive environment as the student was mainstreamed for study hall and physical education. Although the parent charged the district with procedural violations, paperwork indicated the parent was informed of the placement and received appropriate and timely notification of IEP meetings. Cypress-Fairbanks Independent School District v. Michael F., 26 IDELR 303 (5th Circuit 1997) outlined 4 prongs used to determine whether or not a special education program is appropriate: (1) addresses student's individual needs; (2) is administered in the LRE; (3) is implemented in a coordinated and collaborative manner by key stakeholders; and (4) allows the student to obtain academic and nonacademic benefits. The district met all four elements in this case and the court rejected the parent's substantive claim as well.

Thursday, March 11, 2010

IEPs Should Indicate Services Being Provided to Students

In J.P. and R.P. v. Enid Public Schools., 53 IDELR 112 (W.D. Oklahoma 2009), an administrative decision in a school district's favor was made despite the district's failure to delineate services in a high schooler's IEP. U.S. District Judge Joe Heaton wrote "While [the student's] IEP documents themselves fail to specify every area in which [the student] was in need of special services, the IEPs in practice provided him with an array of special education servives personalized to his own neeeds and calculated to provide him an educational benefit." The IEPs did not spell out how services to address organizational, transition and academic services were going to be provided; however, special education instruction included showing the student how to outline chapters, use a daily planner, breaking tasks in smaller units, how to use indexes and glossaries, interviewing skills, and how to fill out applications for employment. Although the court ruled in favor of the district, case managers of IEPs should not take chances. Special education services required to address student needs should be delineated in IEPs.

Wednesday, March 10, 2010

Parents Need to Exhaust Administrative Remedies Under IDEA Before Making Discrimination Claims

In C. B. v. Sonora School District, 53 IDELR 115 (E. D. California 2009), the parents of a sixth grader with mood disorder filed a claim for disability discrimination after a school employee called police when the student "shut down". The police handcuffed the student then took him to a relative's home. The parents claimed discrimination and charged school personnel with not following the behavior intervention plan which outlined specific interventions to try when the student "shut down". The U. S. District Court (Eastern District in California), held that administrative remedies under IDEA must be exhausted before seeking relief under a Section 504 claim and Title II. Since the parents claimed the BIP was not being followed, the U. S. District Court does not have jurisdiction until administrative remedies under IDEA have been exhausted.

Monday, March 8, 2010

Statute of Limitations and Section 504

Since Section 504 does not have its own statute of limitations, courts can use statutes of limitations from closely related state laws or even a federal law if the federal law is more analagous to the law under consideration. In P. P. by Michael P. and Rita P. v. West Chester Area School District, 53 IDELR 109 (3d Circuit 2009), the 3d U.S. Circuit Court reversed the District Court's decision which applied Pennsylvania's two-year statute of limitations for personal injury claims (50 IDELR 133) and determined that Section 504 is more closely related to IDEA 2004 which also has a two-year statute of limitations. However, it is important to note that the limitations period is not applicable if a school district does not provide required information to parents or if they falsely misrepresent the issue as being resolved.

Friday, March 5, 2010

Students With Disabilities Transfering Within the Same State

The IDEA (34 CFR 300.323 (e)) states that districts must provide comparable services to students with disabilities transferring between districts in the same state and within the same academic year when an IEP was in effect in the prior district. In Clovis Unified School District, 52 IDELR 236 (SEA CA 2009), a student with autism transferred from one school district to another over the summer in California. Although the receiving district was not required to offer comparable services since the student transferred between school years, it was determined the receiving district denied FAPE because it failed to provide adequate services to address deficits in reading and writing. When a school receives an IEP from another district it is imperative to review the most recent academic records, psychoeducational report, IEP, and progress reports. Input from parents and former teachers is also valuable.

Monday, March 1, 2010

Does a District Owe Compensatory Speech-Language Due to Shortage of SLPs?

In M.L. ex rel. A.L. v. El Paso Independent School District, 52 IDELR 159 (W.D. Texas 2009), a 12-year-old with a speech-language impairment had an IEP calling for 60 minutes of speech-language services a week. Unfortunately, the districts experienced a shortage of Speech-Language Pathologists (SLPs) and since they were unable to fulfill the IEP the district contacted the parents to inform them compensatory services would be considered. Although the student missed at least 19 hours of therapy, the IEP team determined the student was no longer eligible for speech-language services. The parents filed a due process complaint requesting compensatory services but their request was denied since their child was no longer a child with a speech-language impairment. U.S. District Judge Kathleen Cardone wrote, "Ultimately, providing additional compensatory speech therapy services for [the student] when [he] has no speech disability would only serve as a form of damages, a remedy that is not appropriate under the IDEA."