Professional Liability

Maureen Fitzgerald (King of Prussia, PA) successfully handled a case against a charter school where the parent of a 2nd grade boy alleged the school failed in its Child Find obligation by not initiating an evaluation of the child and, therefore, did not provide a free and appropriate public education (FAPE) even though the parent had given school an outside evaluation that reflected a medical diagnosis of Oppositional Defiance Disorder. 

The parent sought declaratory relief and an award of compensatory education in her complaint. Following the receipt of this due process complaint, the school agreed to evaluate the child. The child had had a number of disciplinary referrals over the course of his enrollment, however, the school had implemented various in-school behavioral support through Tier II interventions, to which the child had responded well. The school’s evaluation by its school psychologist found that the child did not have a disability under the IDEA that required specialized education. 

Following a four-day due process hearing, a ruling was issued in favor of the school such. The Hearing Officer found no Child Find violation under the IDEA and no finding that the child was ever deprived of a FAPE. The Hearing Officer placed much emphasis upon the Tier II level of supports and interventions that the school team had implemented, the child’s progress through this intervention and the testimony of his teachers, who described the child’s growth and progress over the course of his enrollment. The Hearing Officer further found that the testing conducted by the school’s psychologist was appropriate and did not support a disability under the IDEA, either based upon ODD or any other disability category. As the school had been providing ongoing behavioral support through Tier II interventions to the child, the Hearing Officer concurred with the school’s decision to offer the child a Section 504 Plan based upon his medical diagnosis with the ongoing behavioral supports in place. The Hearing Officer concurred with the school’s conclusion that, while the child had received a medical diagnosis of ODD from an outside provider, he was not in need of specialized education in order to access his education. The parent’s request for compensatory education was denied. 

Teresa Sirianni (Pittsburgh, PA) successfully handled a matter where the parents filed a due process complaint, alleging the school district violated the IDEA and Section 504 of the Rehabilitation Act when it failed to provide appropriate transportation for their son as a related service. By agreement of the IEP team, the student had been attending an approved private school outside of the school district which included partial hospitalization. The school district provided a separate bus to transport children, including the student, to the private school. A behavior monitor was present on the bus for all of the students. However, the parents pulled the student off the bus and out of school following some altercations with other students on the bus and when the bus company terminated the bus monitor. The school district offered other transportation to the student, including private 1:1 transportation every day to the private school, all of which the parents rejected for various reasons. The parents alleged the purported lack of appropriate transportation denied their son of a free and appropriate public education, which is a violation of the IDEA, and that the school district discriminated against him on the basis of his disability in violation of Section 504.

Following a one-day hearing that included testimony from five witnesses, the Hearing Officer ruled in favor of the school district on all counts and dismissed the parents’ complaint. The Hearing Officer found that the school district at all times provided an appropriate education for the student, including appropriate transportation options that were included in his IEP. Although the parents contended that the school district should have specifically written a bus monitor for their child into his IEP, the Hearing Officer disagreed on the basis that the parents presented no evidence that a bus monitor was required for the student one-on-one. The Hearing Officer determined that all of the evidence demonstrated that the school district did everything it could to offer reasonable and appropriate transportation to the student but that the parents acted unreasonably in denying each offer. He further noted that, while he recognized that the parents were angry about a bus incident, they cannot veto all reasonable efforts to transport their child and then claim a denial of a free and appropriate public education. Finally, the Hearing Officer found that the parents presented no evidence to support their allegation of discrimination. There was no evidence that other students without disabilities were treated differently with regard to transportation. The Hearing Officer denied all of the parents’ requested relief.

*Prior Results Do Not Guarantee a Similar Outcome 

---

 

^{Legal Update for Special Education Law – March 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}