Recent Developments and Important Cases

criminal justice jurisprudence

What happens if the district delays in implementing my child’s IEP?

A delay in implementation of an IEP can constitute a denial of the legally-required "free and appropriate education" by the school district. 

In one case, the district failed to offer a 10-year-old child with autism the services of an inclusion specialist, which was necessary for him to benefit from mainstreaming. The hearing officer found that the district breached its FAPE obligation to the child by:

1.  failing to provide the child with appropriate mainstreaming, and

2.  failing to offer a school based placement in a timely manner following the development of the IEP.

This means that if a district substantially delays the implementation of a child’s IEP, it is a denial of the appropriate education Federal law guarantees that special education child.

San Lorenzo Valley Unified Sch. Dist., 37 IDELR 107 (SEA CA 2002) 

What happens when my child transfers to a new district?

A district must provide a 30-day interim placement and offer a permanent placement before that 30-day placement expires. In the case of one student with a speech and language disorder, the district provided a 30-day interim placement when he transferred into the district. The district, however, delayed in convening an initial IEP meeting and did not provide the student with a new, permanent placement before the 30-day interim placement expired. The court found the delay to be a violation of the IDEA and ordered the district to reimburse the parents. Based on this case, when a student transfers into a district he must receive a 30-day interim placement, and the district must convene the IEP team and make a program recommendation before the interim placement expires.

Escondido Union High Sch. Dist,. 37 IDELR 269 (SEA CA 2002)

The interim placement, however, does not have to be identical to the student’s prior placement. In one case, the district offered a 30-day interim placement that was not identical to the student’s placement in the old district. The court found that the new placement was similar enough to the old placement that there was no IDEA violation, especially since the prior program was unique and the district needed time to conduct its own assessments. This means that when a student transfers districts the new district does have an obligation to implement the student’s last IEP, but it does not require the new placement to exactly replicate the prior placement.

Mrs. S. ex rel G. v. Vashon Island Sch. Dist. 337 F.3d 1115 (9th Cir. 2003)

Do I have the right to choose my child’s aide or related services provider?

Probably not. In a California case the mother of an 11-year-old boy with autism claimed that the only aide that could adequately meet her son’s classroom needs was the aide that had previously worked with her son in a home-based program. The district claimed that the aide it selected was capable of providing appropriate services because she possessed the necessary qualifications to provide the student with educational benefit. The court agreed with the district. This case means that the district must choose a qualified aide. If, however, the district chooses an aide who has the necessary qualifications to provide the student with educational benefit, then the court will not likely interfere with the district’s choice.

Gellerman v. Calaveras Unified Sch. Dist., 43 Fed. Appx. 28 (9th Cr. 2002)

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