Consider this one: The student had autism and epilepsy. After a seizure, her doctor prescribed Diastat, a medication that must be administered rectally after any seizure lasting more than two minutes. The parents asked the school to provide a trained person on the bus to administer the medication if needed. The school eventually provided the aide, but did not amend the IEP to include this as a related service. Instead, the school listed the aide in the student’s IHP—Individual Health Plan. The parents sued the district, claiming that the provision of the trained aide on the bus should be guaranteed by an IEP—not a Health Plan.
The district court ruled for the school district, but the Circuit Court reversed this decision, holding that the IEP should have been amended to include the trained aide. Therefore, the parents were prevailing parties and entitled to attorneys’ fees.
You must be wondering: “what difference does it make?” As long as the school provided the service, why did it matter whether it was in the IHP or the IEP? The court addressed that in a footnote:
Unlike an IEP, which incorporates a “Stay Put” component, meaning a student’s IEP cannot be changed or disregarded at will, an IHP, such as the one presented by the Board to L.H., has no stay-put safeguard.
Of course it also means the parents have now “prevailed” in an IDEA dispute. Attorneys’ fees. The case of E.I.H. v. Fair Lawn Board of Education was decided by the 3rd Circuit in an “unpublished” decision on September 5, 2018. We found it at 72 IDELR 263.
DAWG BONE: THAT’S A GOOD ILLUSTRATION OF THE STRONG PROCEDURAL PROTECTIONS AVAILABLE ONLY UNDER IDEA.
Tomorrow: Ever been to a Hard ARD?