June 12, 2017
A New Jersey district made a costly mistake when it informed a 5-year-old girl’s parents that it would hold off on including related services in their daughter’s IEP until it had the opportunity to gather more information about her needs. Holding that the district violated the IDEA not only by failing to evaluate the child, but also by failing to develop appropriate IEPs for three consecutive school years, the court ordered the district to pay $265,160 into a compensatory education trust fund. The IDEA requires a district to conduct a full and individual evaluation before providing special education and related services to a child with a disability. However, U.S. District Judge Joseph H. Rodriguez pointed out that the district in this case did not evaluate the child’s need for PT, OT, and speech and language therapy. “Rather, the school district … proposed to add related services later in the school year in accordance with its usual practice of having the teacher and related service providers evaluate the student’s skill levels in the classroom during the school year,” the judge wrote. Judge Rodriguez further noted that the IEPs proposed for the 2012-13, 2013-14, and 2014-15 school years did not include the child’s present levels of academic achievement and functional performance or measurable annual goals. Without that information, the judge explained, school staff would be unable to measure the child’s progress. The judge accepted the ALJ’s finding at 116 LRP 35135 that the child had gone without FAPE for 533 school days. Determining that the child was entitled to 3,314.5 hours of compensatory education at a rate of $80 an hour, the court ordered the district to place that money in a trust to be used for reasonable educational, rehabilitative, therapeutic, or recreational services.
At all relevant times, Student was eligible for special education and related services under the IDEA as a student with a disability on the basis of Other Health Impairment due to a diagnosis of ADHD, and Specific Learning Disability in the areas of reading comprehension, math problem solving and written language. 34 C.F.R. § 300.8(c)(9) and (10).
Student’s IEPs during the statutory period were not reasonably calculated to provide Student educational benefit and the services provided by the District pursuant to the IEP did not provide Student educational benefit. Student, therefore, was denied a FAPE from July 7, 2014 to the present and continuing, in violation of 20 U.S.C. § 1414(d)(1)(A)(i)(W); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 1760 (1982); Endrew F. at rel, Joseph F. v. Douglas County School Dist. Re-1, 798 F .3d 1329, 1341 (2015).
The LEA failed to provide Student a FAPE by failing to provide speech and language therapy which were necessary to assist student to benefit from his special education. 34 C.F.R. § 300.34.
7. The LEA failed to provide Student a FAPE by not developing behavioral supports that were appropriate for Student and adequate to accomplish changes in behavior, resulting in the continuation of behavior that impeded learning and deprived Student of educational benefit. 34 C.F.R. § 30o.324(a)(2)(i); Dear Colleague Letter, 68 IDELR 76 (2016).
8. The LEA failed to provide Student a FAPE by failing to implement the use of an iPad or similar device as specified in the IEP deprived Student of potentially beneficial services, and constitutes a failure to implement an important provision of the IEP.
9. The failure of Student’s teachers to provide reports to Parents on Student’s activities in school and on his progress or lack of progress and to otherwise share denied
Student educational benefit and significantly impeded the Parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to Student. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233,144F .3d 692, 702 (loth Cir. 1998).
to. Each of the failures to provide a FAPE that are listed above related to a major
element of Student’s special education and related or supplementary services, and the failure to provide them resulted in the failure of Student to make even some educational progress. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. Re-1, 798 F.3d 1329, 1341 (2015).
11. Petitioners failed to carry their burden of establishing by a preponderance of