Special Education Caselaw Update – August 19, 2013
Cobb County School District v. A.V., 2013 U.S. Dist. LEXIS 118429 (N.D. Ga. Aug. 20, 2013) (FAPE denied at change in diploma track and failure to provide vision therapy; 50% reduction in award for failure of parents to cooperate with District).
Student A.V. was diagnosed with apraxia and other significant deficits that impaired his language and reading skills. Prior to May 2010, A.V. had participated in regular education classes at Strawberry High School and had received additional aides and services pursuant to the IDEA. However, in a May 2010 meeting to develop A.V.’s IEP for his fourth year of high school, the District, over A.V.’s mother’s objections, changed A.V.’s diploma track from college preparatory to employment preparatory. The employment preparatory track was considered a special education diploma. At the May meeting, the District additionally placed A.V. in four special education classes rather than his usual regular education classes. After rejecting the proposed IEP, A.V’s mother requested that A.V. be placed at The Cottage School (TCS). A.V.’s mother refused to participate in a subsequent IEP meeting in June and A.V. was removed by his parents from the District and enrolled at TCS for his final year of high school at a cost to the parents of $36,428. A.V. received his college preparatory diploma from TCS.
The parents then filed a due process complaint seeking reimbursement of the costs of sending A.V. to TCS arguing: (1) the District’s decision to place A.V. on the employment preparatory diploma track and into “access” classes denied A.V. a free appropriate public education (FAPE); (2) the District failed to evaluate A.V.’s vision; and (3) that the District knew A.V. had sensory-integration disfunction and refused to provide necessary therapy. An administrative law judge found for A.V. on the first and second issues, but equitably reduced the award for TCS and vision therapy by half. The District and parents then cross-appealed to federal court.
The IDEA requires that a student should be educated in the least restrictive environment (LRE). The Court noted that the first issue turned on whether A.V.’s education in the regular classroom, with supplemental aids and services, could have been achieved satisfactorily. The Court reviewed the ALJ’s determination on the issue and found the ALJ opinion to be well reasoned and entitled to deference. The Court gave particular note to the fact that A.V. had previously succeeded in the regular classroom with aids and services, a core course that A.V. had failed several times lacked the required aids and services, and that A.V. was making progress in the regular classroom during his first three years of high school. The Court held that the District failed to explain the drastic change in A.V.’s placement or why special education (“access”) classes were now the LRE for A.V. The Court drew the conclusion that the IEP team just wanted A.V. to graduated in the upcoming school year and determined that access classes would be the best way to accomplish this.
Regarding reimbursement for the placement at TCS, that Court held that TCS was an appropriate placement. The school was accredited and had received instruction in the Georgia performance standards. Further noting that the District had misrepresented the make up of the student body at TCS, the Court found that 1/3 of the student body at TCS was nondisabled, which was a consideration in holding that TCS was a less restrictive environment than the placement proposed by the District. The Court found that reimbursement was appropriate but agreed with the ALJ that a 50% reduction in the award was appropriate due to equitable factors, predominately based on the mother’s refusal to attend the June IEP meeting.
The Court additionally sided with the parents and the ALJ on the vision therpy issue, finding there was adequate evidence to show that A.V.’s vision issues negatively impacted his ability to benefit from special education, and that vision therapy (for visual tracking) was a related service necessary for A.V.to receive a FAPE. As with the tuition reimbursement, the Court agreed with the ALJ and reduced the award by 50% due to the mother’s lack of cooperation with the District when she refused to execute a second release so the District could obtain A.V.’s vision records.
Finally, the Court upheld the ALJ’s denial of reimbursement for sensory integration therapy, finding that the parents failed to show that the therapy was a necessary related service for a FAPE.
E.B. v. New York City Dep’t of Education, 2013 U.S. Dist. LEXIS 117745 (S.D.N.Y. Aug. 19, 2013). (FAPE offered by 6:1:1 + 1:1 program).
E.B. was classified under the IDEA as a student with autism and was enrolled in Celebrate The Children (CTC), a private special education school. In May 2010, a committee on special education (CSE) was convened to develop E.B.’s IEP for the 2010-11 school year. The CSE members utilized “teacher estimates,” information from then-current service providers and teacher to formulate the IEP, and various reports. No new testing was conducted. The final IEP recommended a student: teacher: paraprofessional ration of 6:1:1 plus a full time crisis paraprofessional (a 6:1:1 + 1:1 program) and placed E.B. at “P94,” a special education school where E.B.’s program would be implemented. After visiting P94, E.B.’s mother rejected the placement and communicated to the school system that E.B. would continue at CTC while also receiving approximately 22 hours of programming from the Communication Clinic of Connecticut (CCC). The parents contended that the CCC programming helped E.B. feel competent and motivated.
The parents brought a due process complaint alleging that the District failed to provide a free appropriate public education (FAPE) and sought to obtain tuition reimbursement for the cost of tuition at CTC and supplemental services. The parents later placed E.B. at CCC full-time, and the complaint was amended to seek reimbursement for that placement.
After a hearing before an impartial hearing officer (IHO) the IHO found that th CSE relied on outdated and insufficient information in developing the IEP and additionally failed to establish the suitability of the proposed 6:1:1 + 1:1 program. The District appealed to a state review officer (SRO) who overturned the IHO on all issues. The parents appealed to federal court.
As an initial matter, the court determined that parents retained the right to litigate issues in federal court regarding the District’s failure to conduct a functional behavioral assessment (FBA) and argue the substantive adequacy of a behavior intervention plan (BIP) not included in the IEP. Though the District argued that the parents waived any right to these issues because the parents did not cross-appeal the issues to the SRO, the court held that these issues were preserved for its review. The IHO did not make any findings on these issues, and because the parents received the relief from the IHO which they sought at the due process hearing, the parents were not “aggrieved” on these issues. The parents were not required to cross-appeal the issue to the SRO in order to preserve their review in federal court.
On the broader issue of whether the District complied with the procedural requirements of the IDEA, the court sided with the District. The IDEA requires the District comply with the procedures set forth in the IDEA, although an IEP is not considered legally inadequate unless the procedural violation additionally constitutes the denial of a FAPE. Here, the parents alleged that the District relied on inadequate information to draft the FAPE specifically in failing to conduct an evaluation within the past three years and in relying on “teacher estimates.” However, the court agreed with the SRO that the CSE had sufficient information before it to develop the IEP, including mental health reports, formal progress reports from CTC, and formal evaluations of E.B. conducted in 2007. This evaluative data was “more than sufficient” for the CSE to develop the IEP. The failure to conduct the statutorily-mandated psychological re-evaluation, last done in 2007, did not deny E.B. a FAPE because the other information consulted at the CSE meeting fulfilled that purpose.
Regard the BIP, the parents allege that the student IEP was procedurally inaccurate because it did not include a BIP. While the parents claimed they did not receive a copy of the BIP proposed for the IEP until the date of the due process hearing, the court held that whether or not the parents received the BIP, they fully participated in the CSE decision-making process to find strategies that would address E.B.’s problem behaviors. There was no evidence that the timing of the parent’s receipt of the BIP in any way altered the parent’s involvement with the CSE and the court therefore rejected this claim.
The parents additionally claimed substantive inadequacies of the IEP, notably regarding the substantive adequacy of the 6:1:1 + 1:1 program, and argued that E.B. required more individualized instruction in order to achieve educational gains. Parents directed the court to the hearing testimony of the school psychologist, which testimony they claimed the SRO improperly assigned weigh while discounting the credibility of the parent’s witness. After reviewing the record, the court found that the psychologist had sufficient credibility to assist in recommending the 6:1:1 + 1:1 program for E.B.’s IEP, despite the psychologist not being familiar with the specific program at P94. The court found it proper that a recommendation regarding programs broadly without knowledge of the specific school was sufficient for the SRO to accord credibility to the testimony. The court additionally noted that no CSE member, including the parents, disagreed with the recommendation for a 6:1:1 + 1:1 program at the time of the CSE meeting.
The parents additionally argued that the District’s proposed placement, P94, did not offer classroom instruction that matched E.B.’s functioning. The court found however, that a certified special education teacher at P94 would have been appropriate for E.B. and that out of a class of 5 autistic students, “at least one” of those students operated at a level “sufficiently comparable” to that which the IEP described as E.B.’s abilities. In sum, the parents were not entitled to reimbursement.
Having found that the District offered a FAPE, the court was not required to reach the appropriateness of parents’ unilateral placement of E.B. at CCC. Nonetheless, the court opined that CCC was not an appropriate placement for E.B. because CCC was overly restrictive in that it allowed E.B. to interact with his peers for 3 of 35 weekly hours of CCC services. Where CCC provided services at home, there was no opportunity for socialization. Because the IEP reflected the need for socialization, the CCC placement was inappropriate.
F.F. v. New York City Dep’t of Education, 2013 U.S. Dist LEXIS 117143 (Aug. 19, 2013) (cumulative procedural errors not denial of FAPE; alleged substantive deficiencies in IEP were speculative)
This case addressed an IEP developed for six-year old student F.F. for the 2009-2010 school year. F.F. was diagnosed with Autism Spectrum Disorder, cerebral palsy-hypotonic, strabismus, and perventicular lukomalcia. F.F. additionally has mobility limitations and was attending the Rebecca School, a private special education school, prior to the IEP meeting that is the subject of this case.
The IEP recommended that F.F be placed into a specialized school with a ratio of six students to one teacher with one paraprofessional, a 6:1:1 arrangement. Additional goals and objectives were discussed at the IEP meeting and were adopted based on reports from the Rebecca School about F.F. The District offered F.F. a first placement, but F.F.’s parents rejected the placement in part because the facilities were located on the fourth and fifth floor of a building without an elevator. The District then offered a second placement which was again rejected by the parents due to its staffing ratio, the inability of the placement to guarantee orientation and mobility support, the lack of parent training, the lack of OT services, and because F.F. would be confined to a “small trailer.” The parents re-enrolled F.F. at the Rebecca School and informed the District that they intended to seek reimbursement. The parents were successful at a due process hearing before an impartial hearing officer (IHO). On appeal by the District to a state review officer (SRO), the SRO found that the IHO had acted improperly by granting an excessive number of extension to the parents, and additionally reversed the IHO on the merits of the parents’ complaint and denied reimbursement.
The parents argued there were six procedural deficiencies in the development of the IEP: (1) the CSE was improperly convened; (2) the CSE failed to consider a continuum of programing for F.F.; (3) the goals and objectives were not appropriate; (4) the District failed to consider assistive technology; (5) there was no parent counseling and training provided for in the IEP; and (6) the IEP failed to address F.F.’s behavioral needs.
On the first issue, the parents specifically argued that there was no individual to interpret the instructions implications of F.F.’s evaluation results and that there was no parent member in the IEP meeting. On evaluation results, the Court found that the school psychologist and special education teacher, both of whom participated in the meeting, were qualified to interpret the results. On the additional parent member (one who had been through the process with another student to act as a guide and advocate), the Court held that New York law required that person’s participation. Though Court agreed that lack of the additional parent was a procedural violation, it rejected the parents argument that F.F. was denied a free appropriate public education (FAPE), noting the parents actively participated in the meeting. Regarding the continuum of programming, the Court held that once the District determined that the 6:1:1 program was the least restrictive environment in which F.F. could be educated, the District was not obligated to consider a more restricted environment such as the Rebecca School.
While the Court agreed with the parents that the goals for F.F. incorporated into the IEP were vague, it held that the goals were adequately clarified by more specific objectives in the IEP that could be implemented. Further, given that the goals were directed at developing F.F.’s pre-academic skills, it was appropriate that the IEP’s methods for assessment were teacher-made materials, observation, and class participation. On the assistive technology argument, the Court noted that the parents reported to the District that F.F. was still being evaluated for assistive technology and the District was never informed of any need for the technology.
Regarding parent training and counseling, the Court agreed that none were in the IEP and held that the SRO improperly ruled that there was no procedural violation because in any event, training and counseling was offered at the second placement. An IEP is judged based on what is in the document, not on speculation concerning what would or would not have been offered at a placement. Nonetheless, because state law provided for parental training and counseling, the Court held that, in this particular instance, that the exclusion of the same from the IEP did not result in the denial of a FAPE. Finally, the parents alleged that the District’s failure to conduct a Functional Behavior Assessment (FBA) or development a Behavior Intervention Plan (BIP) denied F.F. a FAPE. Howver, the Court held that there was sufficient evidence in the record to conclude that F.F.’s behavior did not seriously interfere with instruction and could be adequately addressed by the special education teacher and through support provided by PTs and speech therapists. In addition to finding that none of the procedural errors denied F.F. a FAPE individually, the Court held they did not render the IEP inadequate when considered cumulatively.
Regarding various substantive deficiencies raised by the parents (based on their visit to the second placement) , the Court held that these deficiencies were speculative in that the arguments of the parents’ were refuted by testimony from District representatives that F.F. would have received the services specified in the IEP.