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B.E.. v. Marion County School Board

This case demonstrates the difficulty some school districts have in appropriately placing high functioning children with autism.  For a long time Marion County failed to recognize that B.E. was autistic, despite her considerable language, social, emotional, and at times, behavioral issues.  From the fifth grade on Marion County attempted to force B.E. into their mold. 

When B.E. failed the FCAT in the fifth grade she was held back and placed into a regular education classroom.  From there, matters went down hill.  Not understanding B.E.'s disabilities, the regular education teacher became very unhappy with B.E., with a resulting spike of anxiety, emotional distress, and suffering on B.E.'s part.  Things became so bad, that at the end of her second time in the fifth grade, B.E.'s mother had her placed on Hospital Homebound.  During this time B.E. recieved private therapy and counseling.  Since Marion County was only offering a pitiful four hours of Hospital/Homebound instruction per week, B.E.'s mother paid for additional private tutoring.

At the end of a year of Hospital/Homebound Marion County unilaterally removed B.E. from the Hospital/Homebound instruction, without either appropriate notice or evaluation.  This was done despite letters from B.E.'s doctors saying that she continued to need Hospital/Homebound instruction.  It was not enough that Marion County arbitrarily stopped the Hospital/Homebound instruction, but they then held an IEP meeting where they directed B.E. to be placed back into regular education.  They offered to start B.E. with one hour of a reading program, without any other provision for B.E.'s other educational needs.  B.E.'s mother immediately requested due process and advised Marion County that she would continue to privately educate her daughter and would demand Marion County reimbursement.  Shortly after this Mark S. Kamleiter was retained to represent B.E.

During the course of the preparations for due process, we demanded and obtained independent evaluations.  One of these evaluations diagnosed B.E. for the first time as high functioning autistic.  This explained why although B.E. is able to perform on grade level academically, she has suffered with social, emotional and some behavioral issues.  With these evaluations Marion County agreed to meet to draft a new IEP for B.E..  This new IEP, with its conference notes, provided that B.E. would be given a small class setting, with children on her grade and age level and who were her social and language peers.  The parties also agreed that the district would prepare the teacher and class for B.E., providing training and classroom engineering so that B.E. would have a quiet, undisturbed work space.  Marion County agreed to do observations of B.E. during the summer, so that they could provide an effective positive behavior plan for B.E. from the first day of school.  As a result of this agreed IEP, the due process hearing was cancelled.

It just did not happen.  When B.E.'s mother discovered that B.E.'s assigned teacher was unaware of the details of B.E.'s IEP and that no preparations had been done for B.E. she refused to send B.E. to school.  When the school made no credible effort to correct the situation, another due process request was filed.  This time the matter went to trial.

After hearing the judge determined:

1.  That the district had violated B.E.'s procedural safeguards in failing to provide appropriate notice to his parents of their intentions to unilaterally terminate B.E.'s Hospital/Homebound placement.
2.  That the district had violated B.E.'s procedural safeguards in terminating her Hospital/Homebound placement without new evaluations and without communicating with her doctors.
3.  That the district had failed to provide B.E. with FAPE by offering a regular education reading program, without any provision for B.E.'s other academic, social, emotional, and behavioral needs.
4.  That the district had failed to provide B.E. with FAPE by offering B.E. a varying exceptionality classroom, without training the teacher or preparing the classroom to receive B.E.
5.  That the district had failed to provide B.E. with FAPE by offering B.E. an autistic classroom, which was being taught on an academic level at least two years below B.E.'s age and grade level.  This placement was also faulted because it did not provide B.E. with social and language appropriate peers.

Ordered:  The district must pay for B.E. private education for the period of time that B.E. did was not given an IEP with FAPE and must continue to provide for B.E.'s private education until the district provides an appropriate IEP.