STATE OF OHIO DEPARTMENT OF EDUCATION OFFICE FOR EXCEPTIONAL CHILDREN
In the matter of: Student CASE NO. SE 1872-2006 Parents Petitioners
And DECISION OF THE IMPARTIAL HEARING OFFICER
Toledo Public Schools Respondent
I. Statement of the Case
On August 31, 2006, the Ohio Department of Education, Office for Exceptional Children, received the Petitioners’ request (“mother” and “father” of the student) for a due process hearing for their daughter, who shall be referred herein as the “student” or “daughter”. (Exhibit A).1 The request alleges among other matters that the Toledo Public Schools, who shall be referred to hereafter as the “school district”, predetermined to change the placement of the student without notifying the Petitioners; failure to provide sufficient notice to Petitioners of meetings; failure to grant the Petitioners the opportunity to videotape services provided to the student; creating a hostile and antagonistic environment toward the Petitioners regarding the student services; and, failing to provide Extended School Year services (“ESY”) and an Independent Education Evaluation (“IEE”). Respondent through its attorneys responded to Petitioners’ request on September 8, 2006, (Exhibit D), and subsequently filed a sufficiency challenge to Petitioner’s request on September 11, 2006, (Exhibit F). On September 15, 2006, Marcie School, Sufficiency Officer, deemed the due process request to be sufficient, (Exhibit H).
1 Petitioners’ exhibits are in two sections and marked 1-__or 2-__; example Exhibit 2-16. School district’s exhibits are marked alphabetically.
1 A Resolution session between Thom Billau, Director of Students for Respondent, and the student’s father was unsuccessful in resolving matters discussed. On September 13, 2006, the Ohio Department of Education notified George F. Sprenger that the Petitioners and Respondent mutually agreed upon Mr. Sprenger to serve as the Impartial Hearing Officer at the Due Process Hearing. Pursuant to the scheduling conference, the hearing date was set for November 28, 2006. Pre-hearing motions having been filed, the hearing officer found that the burden of proof rests with the Petitioners and denied Petitioners’ request for an expedited hearing. Student’s mother, a licensed Ohio attorney, represented the Petitioners at the hearing. Lisa E. Pizza and Randy L. Meyer, of Spengler Nathanson P.L.L., represented the Respondent. The school district is located in Toledo, Lucas County, Ohio. At the hearing, seventeen witnesses testified over a period of ten days. The exhibits of the school district and Petitioners were admitted into evidence without objection. Upon agreement of the parties at hearing, dates were scheduled for the filing of the record, and briefs of counsel. It was also agreed that the mailing of the Independent Hearing Officer’s Decision in this matter would be extended beyond the 45 day period to January 16, 2007. That day was again extended to January 30, 2007.
II. Findings of Fact A. Background Information. The student is eight years old the youngest child of Petitioners’ three children. From the commencement of the 2006-2007 school year, the student has been at home. It is the Petitioners belief that the school district’s placement of the student at Larchmont Elementary, a multi-handicapped (“MH”) classroom, is not safe for their child and inappropriate. (R-67). The previous five years, the student was enrolled at the Educare Center. The Educare Center is a separate special education facility for the multi- handicapped, medically fragile children in preschool, primary and junior high class and is not located within a regular school building as Larchmont Elementary. The difference between the MH facility at Larchmont and the Educare Center is threefold. At Educare, the students are for the most part non-ambulatory; two nurses are on staff throughout the school day; and, no regular classes are available within the facility.
2 The student was enrolled in the Early Intervention Services through the Lucas County Board of Mental Retardation and Development Disabilities until the age of three. At that time, the school district assessed the student and enrolled her in the preschool special education program at Educare Center in September of 2001. A multi-factored evaluation (“MFE”) was completed on May 19, 2003. The father of the student, Co- Petitioner, was present at the meeting and signed the evaluation as having participated in the meeting. (Exhibit 7). Bates stamp number [B00557].2 For the school year 2003-2004, the school district reassigned the student out of preschool and placed her in primary classes at Educare Center. For the last three years, she has been in Mrs. Kellie Fuelling’s class. Primary has eight MH children per class with a Special Education teacher, two para-professionals as aides and as set forth on the IEP of each student specialists during the week one hour one day per week for occupational therapy, physical therapy, and 30 minutes for speech therapy. (R-38). For the school year 2006-2007, the IEP Team recommended and the school district supervisor of special education for the district placed the student in the MH classroom at Larchmont Elementary. The decision to change placement was based on the student’s infrequent use of nursing staff at the Educare Center. Larchmont is considered to be a lesser restrictive environment than the Educare Center in that students can be mainstreamed into regular school classes. There is one nurse available to over 300 students at Larchmont two days out of the school week. The MH class that the student is assigned has up to eight special education students, some diagnosed with autism. All students are ambulatory as of the last school year. (R-865). B. Medical Information. The student has Wolf-Hirschhorn or 4pMinus Syndrome which is a congenital malformation syndrome caused by the absence of the short arm of chromosome 4 (4p-).3 There are a number of symptoms particular to the student including closure defects such as a cleft lip and palate causing difficulty in sucking; coloboma a closing defect in her eyes which cause her eyes not to dilate making her highly sensitive to light and inability to see below midline; delay in physical development resulting in her short stature and slow weight gain; and scoliosis a 39 degree curvature of the lumbothoracic area of the
2 Bates stamp number is a numbering system of School District’s legal representative to denote individual pages within school record of the student. 3 Two articles about Wolf-Hirschhorn Syndrome see Exhibits GGG and HHH.
3 spine and then a 26 degree rotation of the thoracic area. (R-77). The student’s mental capacity is in the range of profound mental retardation. (R-327). It is the student’s seizures that placed her in the medically fragile facility at Educare. The student’s seizures occur mostly at night but do occur infrequently during the afternoon or more infrequently in the morning. Within the last two years, the student has had anywhere between one to two dozen seizures. (R-41). The last seizure occurred in October 2006 during the afternoon while shopping at Wal-Mart. Prior to that there was an episode in April of 2006 and a hospitalization in January of 2006. (R-2180-2182). The only seizure at school was during the 2004-2005 school year. (R-147). The student’s occurrences of seizure seemed to be less frequent as she has gotten older. (R-2187). Should a seizure occur, it is necessary to immediately give oxygen; suction excessive saliva being careful not to damage the trachea that has been damaged over the years due to prior tube insertions; administer rectally the anticonvulsive Diastat; and a second Diastat within 15 minutes of the first. Training is required to administer Diastat to prevent injury to the student however it can be administered by a non-medical person with proper training. The seizures are called generalized tonic/clonic seizures, which include her brain and whole body. Seizures are difficult to detect and non-predictable with symptoms including excessive drooling, tightening of all the muscles and shaking, which can last minutes to hours. (R-74). Hospitalization would be required only if the student is not cared for in a timely manner. (R-45). During a seizure, the Petitioners instructed school personnel to call them and they would determine whether or not to call Emergency Medical Services. In the event of an emergency admission, the student would normally be kept overnight and released the next day. Of a secondary concern, Dr. Michael E. Pappas, M.D., the student’s Pediatrician, diagnosed her with Idiopathic Thrombocytopenic Purpura, also known as ITP or low platelet count. It is a blood disorder where the body itself recognizes its own platelets as foreign, and the body attacks those platelets.4 As a result of the platelet destruction, the clotting of the blood is compromised and the bleeding cannot be stopped easily. A child with ITP is very fragile and can be more prone to bleeding especially within the brain.
4 Small red dots on the skin are a symptom of ITP called petechia.
4 (R-75). The father in a letter to Mrs. Fuelling explained that any impact from a sudden fall or accident may result in internal bleeding and excessive deterioration of platelet count and may require hospitalization and a blood transfusion. (Exhibit 1-26). Dr. Pappas testified that ITP is brought on by a virus and is not caused by an impact (R-84) but an impact “will manifest the condition more so” (R-97). The condition should be monitored at the time of the injury by someone who is familiar with bleeding disorders. (R-98). The student has suffered two episodes: the first in May of 2004 from a virus that she contacted; and, the second from an automobile accident which occurred in 2005. (R- 1998). Dr. Jasty treated the student the second episode and informed the Petitioners that they should be concerned with an injury for fear of internal bleeding. (R-2185). As a result of Wolf-Hirschhorn Syndrome and the other health related issues affecting her, the student is completely immobile and non-communicative except in a most basic and rudimentary form. She lacks the normal self-protection and anticipatory reflexes common and necessary in daily living. Consequently, the student is totally dependent on her special education teacher, therapists, nurses, para-professional aides, and adaptive equipment to meet all of her educational, health and safety needs while she attends school. It is the opinion testimony of Dr. Pappas, the student has such a severe condition that constant medical service availability would be warranted. (R-79). C. IEP meeting – December 1, 2003. On December 1, 2003, the Petitioners participated in the yearly team meeting for the development of the student’s IEP for 12-1-2003 to 12-1-2004. (Exhibit Z, B00940 & 00941). Petitioners included into the IEP medical information regarding the student’s health issues together with instructions on how to care for the student while in school. A Toledo Public Schools Background Information sheet [B00496] was partially filled out with reference to the student’s diagnosis of Wolf-Hirschhorn Syndrome and a notation reading “…history of seizures, mostly late evening and fever or low grade infection induced.” The next page of the form [B00497] refers to Dr. Michael Pappas as the family physician. The next page [B00498] is the Authorization to Administer Medication in the Toledo Public Schools form that Dr. Pappas signed authorizing the administration of Rectal Diastat as needed. Also included is Petitioners’ letter [B00499] directed to
5 Medical Personnel informing them of the symptoms that the student exhibits during a seizure and the care that should be provided including the administration of a Rectal Diastat (.5). Lastly is a set of instructions for the general care of the student [B00500] while at school including again the symptoms of a seizure and what to do. One sentence reads, “She rarely5 has seizures any more, and if so, they are usually in the late evening.” At this time the student’s present levels of performance (“PLOP”) Step 2 in the IEP [B00485] included tolerating positioning equipment but resisting prone and quad; standing in a gait trainer and moving it backwards and moving it forward if held at her waist. She is able to sit independently for long periods of time. The student can hold her feet in place on an adapted bike but does not propel herself around. She can hold her own bottle and accepts hand over hand spoon feeding for a few bites per meal. She will also bring her hands to mid line to touch objects but will not sustain her grasp. She will activate toggle and light touch adapted switches sporadically to activate an adaptive toy, but well not sustain the activity. The annual goals and short term objectives in the IEP are: Goal #1 - demonstrate cognitive/communication skills Short term objectives: 1. Recognize a familiar voice by turning toward speaker in 3/5 trials. 2. Maintain switch activation for 1 minute. 3. Give visual attention to objects and people by making eye contact for 4-5 seconds. Goal #2 – demonstrate mobility skills: Short term objectives: 1. Tolerate positioning of prone, quad (crawler) for 5 minutes daily. 2. Take 5 steps forward positioned in a gait trainer within 45 minutes independently. 3. Propel an adapted bike 2 feet independently. Goal #3 – Demonstrate fine motor skills Short term objectives: 1. Bring hands to midline to complete an activity for up to 1 minute with physical prompts. 2. Will grasp an appropriate object within an activity for up to one minute daily. Goal #4 – Demonstrate daily living skills Short term objectives: 1. Accept 50% of liquid by a sippy cup daily.
5 Underlined by writer of document
6 2. Take 5 bites of breakfast and lunch with hand over hand assistance daily. 3. Given a loaded spoon, will lift spoon to her mouth 1 time daily independently.
The least restrictive environment (“LRE”) identified in Step 6 was “Separate facility due to medical needs.” Educare is the facility that meets the LRE criteria. D. Pre-IEP meeting – November 4, 2004. The last IEP was set to expire on December 1, 2004. The student’s IEP team held an informal pre-planning meeting on November 4, 2004. Although no formal invitation was sent to the Petitioners, the Petitioners were present at the meeting. (R-1546 & 1792). The purpose of the meeting was to discuss ESY services that the student had not received during the preceding summer and the goals and objectives that were to be written at the next IEP meeting. Since the student was coming from pre-school into primary at Educare, the team had insufficient information regarding regression of her skills over the summer months. Therefore, ESY services were recommended and a summer program developed for her comprising of two hours PT and two hours OT. (R-1546). The parents agreed to extended services at the school district’s cost but inquired who was going to pay for the summer program where the student was to receive the services. (Exhibit GG). For some unknown reason, the student did not receive her summer services. Consequently, Mrs. Fuelling, Mrs. Nancy LeBlanc, Occupational Therapist, and Mrs. Dykyj, Physical Therapist, in September agreed to give the student compensatory services of 5 hours of Occupational Therapy and 5 hours of Physical Therapy during the 2004-05 school year. [B00564]. At the meeting, Mrs. Fuelling stated that it was agreed that services would be provided on Wednesdays (R-1708). Mrs. Reuss understood that the compensatory services were acceptable to the Petitioners and that the matter resolved. (R-1950). The team devoted the rest of the meeting to the development of the IEP. Mrs. Fuelling stated that the mother was upset; that she wanted therapy for the student every single day and voiced her displeasure regarding the use of a sippy cup at school. (R- 1710). Mrs. Dykyj characterized the meeting as explosive. (R-681). There was no
7 agreement regarding the goals and objectives therefore the mother stated that she would write the IEP. (R-1710). E. IEP meeting – January 21, 2005. The next IEP meeting took place on January 21, 2005 (Exhibit Y). Although neither Petitioner signed the signature page [B00475] as having participated in the meeting, it appears that the father was present contrary to his testimony. The Petitioners also argue that the district representative did not attend which is a violation of a FAPE to the student. The Detailed Encounter Report of 1/21/05, a contemporaneous report of Christine Moore, Speech therapist, who was present at the meeting, indicates that she attended the meeting along with the father, Co-Petitioner, and the district supervisor of special education, Mrs. Reuss. (Exhibit BB). Also indicating the presence of one of the Petitioners is the language found in Step 1 of the IEP [B00669], Family’s Preferences and Interests Toward Future Planning. Preferences listed are “to increase intentional movements, transfer from floor to sitting position. Learn to walk and increase O.T., P.T.6 time.” This language presupposes that one of the Petitioners at least was present at the meeting. Subsequent IEP language in Step 1, January 23, 2006 IEP (Exhibit X) and the April 3, 2006 IEP (Exhibit V), state that the Petitioners did not attend the meeting which was the case. Regarding notification of the meeting to the Petitioners, the Parent Invitation (Exhibit Y, B00476) sets a meeting for January 10, 2005. The Document of Attempts that records the contacts that Kellie Fuelling made with the Petitioners [B00477] reflects that the date for the IEP meeting was changed on 12/14/04 to 1/21/05. On 1/20/05, Kellie Fuelling also recorded that she talked with a parent and everything was ok and a written reminder was also sent in the back pack of the student on 1/18/05.7 The school district is required under USC Section 1415 to notify the parents and record the attempts made. Attached to the IEP is a copy of the Background Information sheet [B00479] which is a duplicate copy of the prior Background Information sheet from the December 1, 2003 IEP except the year was crossed out and “04” was inserted. Also attached is the sheet for the primary care givers [B00480], the same instructions for the general care of
6 Occupational Therapy and Physical Therapy. 7 The typical mode of communication was placing documents inside the student’s back pack. More formal or important information may include a copy in the back pack and mailing to the Petitioners. (R-54).
8 the student as before and the signed authorization to administer medication [B00482] dated October 13, 2004. On November 15, 2004, Daniel S. Riley, Educational Audiologist, performed an examination of the student to determine her hearing status. His Evaluation Team Report [B00478] was included within the IEP. Based upon his observations he concluded that the student “…appears to have a possible severe to profound hearing loss in her left ear and a profound loss in her right ear.” Due to the presence of wax in both ears, he expressed his uncertainty as to his results. No other information regarding the health and care issues of the student was included within the IEP from the previous year. From the last IEP, the student exhibited improvement in her present levels of performance. At this time, the student could tolerate positioning equipment prone and quad for 30 minutes. She could stand in the gait trainer for 45 minutes and with hands at her waist take 30 steps forward. She could propel herself independently on a bike for 4 rotations. She accepted hand over hand spoon feeding for 100% of each meal. Additionally, the student could hold the handles on a bike or walker for 15 minutes; smile appropriately; make eye contact; and, track a walking adult across the room. The short term objectives were modified from the prior year. Under Goal #1, demonstrate cognitive/communication skills, rather than turning toward a speaker, the objective increased to “smile in response to interaction with an adult 2 times daily.” Switch activation was reduced from one minute to 30 seconds. Visual attention to people was changed from eye contact for 4-5 seconds to visual attention to people and activities for one minute sustained period of time. Under Goal #2, demonstrate mobility skills, the IEP team did not make tolerating positioning of prone or quad as an objective. It increased the positioning in a gait trainer to 60 minutes from the level of performance of 45 minutes and maintained the two other objectives as before, 5 steps forward positioned in a gait trainer within 45 minutes independently and propel an adapted bike 2 feet independently. Under Goal #3, demonstrate fine motor skills, activity to grasp objects was maintained and added to the program weight bearing on her hands while positioned prone over a ball for 5 to 10 seconds. The purpose of the later is to develop self-defense reactions.
9 Under Goal #4, demonstrate daily living skills, the short term skills were slightly modified by seeking the grasp of a sippy cup rather than acceptance thereof, maintaining the grasp of a spoon until removed three times per meal and maintaining the third objective of lifting a loaded spoon to her mouth independently, one time daily. The least restrictive environment identified remained the same, “Separate facility due to medical needs.” F. 2005 Summer Services - Administrative Review Meeting – October 5, 2005. ESY services are provided to students who do not recoup skills within a reasonable time after school commences in the fall. (R-1181). The student’s team will make the assessment for ESY services typically at the IEP meeting during the year. Services are offered should the student not regain skills by the end of the first quarter. (R- 1508). The IEP team determined that the student did not qualify for summer 2005 services. However, Mrs. Reuss felt sorry that services during the summer of 2004 were not provided. Therefore, she offered to Petitioners a summer program at Glendale- Feilbach Elementary. (R-1820). The Petitioners did not accept the offer since the location of the services did not have readily available daily nursing services. The Petitioners expected that for the safety of her child availability of medical services throughout the program was necessary. The mother also felt that the goals for her daughter were silly and that there was a lot of game playing going on. (R-2030-2031). The Petitioners therefore requested an Administrative Review because of the denial of 2005 summer services. (R-1822). The school district received Petitioners’ request for an Administrative Review on July 20, 2005. (Exhibit 1-19). In the request, the Petitioners stated that ESY services was denied even though a program was offered. The Petitioners suggested in their request “more detailed IEP – videotaping of ‘student’s progress’, ESY, therapy with certified therapist ‘and’ daily more intensive physical therapy. [B00827]. Charlotte Cosart, Case Manager, responded to the request on July 25, 2005 and remarked that Petitioners’ solution appeared to be a desire to formulate a new IEP. [B00821]. A following letter of August 26, 2005 set the review for September 6th on the ESY issue and referred the IEP
10 issues to the IEP team. [no bates number on letter]. The date was later scheduled for October 5, 2005. The Petitioners later received a parent invitation for October 5th and on the invitation it stated that the purpose of the meeting was to discuss ESY and IEP services. [B00829]. The Petitioners at the meeting were upset since it was their intent only to have a case review and not an IEP meeting. (R-1694). They also desired to audiotape the meeting which the school district refused. Since they were not allowed to tape the meeting, the Petitioners left before the meeting commenced. (R-1695). Subsequent to the meeting, Ms. Cosart sent another letter date October 13, 2005 to Petitioners explaining that case review meetings are not to be taped with an explanation as to the purpose of an Administrative Review and a reference to the pamphlet, Whose IDEA is this. [no bates number on letter]. She did suggest another meeting for October 18th and stated that someone may be present to take notes for them. The meeting did not take place. G. MFE conference – November 28, 2005. Every three years, a Multi-factored Evaluation (“MFE”) is to be performed, an after-assessment conference held and a team report compiled and signed. The last MFE for the student was completed on May 19, 2003. The prior IEP was to expire on January 30, 2006. The importance of the MFE is to assist in the development of the goals and short term objectives to be included within subsequent IEPs. Mrs. Reuss requested that the school psychologist, Douglas Felt, perform the MFE thinking that any conference with the Petitioners may be contentious. (R-1844). Mr. Felt scheduled the MFE conference for November 28, 2005. (Exhibit AA). Mr. Felt instructed his secretary to send out the initial Prior Written Notice [B00940], notifying the Petitioners that the school district was to conduct a reevaluation on the student and that their input was needed. The notice was dated October 31, 2005. Shortly thereafter Mr. Felt conducted his observation of the student on November 3, 2005. (R-376). Pursuant to Mr. Felt’s request [B00941], Mrs. Fuelling followed up with a second notice. Mrs. Fuelling’s handwritten notation on [B00941] records sending out a letter on November 3rd. Once the Petitioners received Mr. Felt’s notice, the mother testified that she sent back the notice marking on it “no consent”. The mother testified
11 that Petitioners were not going to give their consent until they figured out what was going on and resolution of the audio taping issue. (R-125 & 2034). Mr. Felt testified that he did not receive the “no consent” notice from the Petitioners. (R-266). However, it appears that the Petitioners communicated with Mrs. Fuelling. She recorded on November 5th that the mother had called to change the date of the meeting. On November 14th, Mrs. Fuelling discussed changing dates with Mr. Felt and from that conversation sent a note [B00885] to the student’s mother, Co-Petitioner, setting forth three new dates in December for the MFE meeting. Mr. Felt testified that he vaguely recalled this conversation. (R-272). Thereafter, Mrs. Fuelling sent home with the student a Daily Care Sheet [B00329] again requesting from the Petitioners a new date. Two other notations show that Mrs. Fuelling had talked to the mother on the 16th and the father on the 17th. The father indicated that the Petitioners would decide over the week-end. The father does not recall this phone call. (R-114). The Petitioners did not get back to Mrs. Fuelling on a new date nor did the school district reaffirm to the Petitioners that the November 28th date was still on. Mr. Felt testified that he attempted to make contact by email, phone and a note through the school. (R-252). Ironically, the mother testified that the two of them went back and forth on the phone without contact. She still has Mr. Felt’s phone number in her cell phone. (R- 2056). Mr. Felt proceeded with the previously scheduled date of November 28th although there was no deadline per se for the Petitioners to choose a new date for the conference. (R-380). Mr. Felt’s understanding of the law was three good faith attempts at contact and no permission is forthcoming, the school district is allowed to go ahead with the evaluation. (R-267). Mr. Felt also stated that Petitioners did not contact him but contacted Mrs. Fuelling. (R-273, 352). Mr. Felt’s evaluation found that “…the student has … the failure to grasp means- end thinking as well as cause and effect relationships.” [B00926]; that the “…student has severe deficits in intelligence that greatly inhibit functioning in all realms of life including caring for self, communicating with others and achieving even the most basic levels of academic achievement.” [B00928]; and, that she is “…minimally aware of her environment” [B00929]. In summary, Mr. Felt determined that the student still functioned in the profound range of mental retardation. Therefore, “any academic goals
12 are secondary to the need to develop simple life and self-help skills.” [B00935]. Under Student Needs, Mr. Felt found that the student’s “…Focus should continue to be on language, self-help, and categorizing skills. According to the teacher, the student is progressing at her ability level.” [B00935]. Recommendations included small group and individualized instruction in a self- contained classroom having a low ratio of student to adult. Educational activities to be geared toward increased independence with proper emphasis on life skill development. The recommendation concluded that “…present IEP goals appear to be appropriate given the student’s current educational needs. [B00935]. It was decided that academic and adaptive instruction needed to be broken down into very small units, repeated frequently. The IEP team reported that in cognitive/communication skills, the student had mastered the objective of smiling twice a day. Mrs. Fuelling noted that she will grimace but there were no other signs of communication. It was also noted that she could activate an adapted switch up to one minute an improvement to the objective of 30 seconds. Regarding visual attention skills, the student demonstrated visual tracking from side to side and was inconsistent from head to chest. There was no visual search for sound. [B00934]. Christine Moore, Speech-Language Pathologist, reported that the student “…is a passive participant during interactions with an adult and most often displays a flat affect.” She noted that her speech and language abilities are the same as they were at the end of the 2004-2005 school years. She further stated in her report that the student had ear surgery over the summer and that her hearing is normal. Therefore, the mother requested that a hearing aid not be used. [B00944].8 Jean Dykyz, the Physical Therapist, in comparing the mobility skills goals and objectives from the last IEP of January 21, 2005 to June of 20059, found that the student met her goal of 60 minutes positioning in a supine stander and switched her to a mobile stander. She noted that the student would occasionally touch the wheels and toys placed on the stander. The second objective, takings 5 steps forward within 45 minutes, was again not obtained but her performance with supported ambulation during therapy sessions increased from 1 to 2 steps to twenty feet plus. The student continued to have
8 Ms. Moore’s report is dated October 12, 2005. 9 Ms. Dykyz’s report is dated September 28, 2005.
13 difficulty with propelling an adapted bike two feet independently. She managed to complete ½ to 1 revolutions 50% of the time up to three feet. Ms. Dykyz mentioned that the student does not initiate pedaling from a stationary position. [B00931]. Ms. Nancy LeBlanc, the Occupational Therapist, noted in her report that the student’s objective is to improve fine motor skills in the area of grasping (in a functional context up to 1 minute in either hand) and improving upper extremity stability (weight bearing on hands 5-10 seconds in a prone position). [B00932]. Hand grasps are limited and the student will quickly drop an object with the exception of her sippy cup or spoon. She will hold on to her cup then drop when finished drinking. She will grasp the handle of a spoon while it is guided to her mouth with forearm assistance. Ms. Dykyz reported that the student did not demonstrate protective responses when tested. She stated that “Rather than extend her arms in a protective reflex, she tends to withdraw her arms from the approaching surface.” [B00933]. The MFE also contained a medical summary. (Exhibit AA, B00936). The summary explains that the student has Wolf-Hirschhorn Syndrome and a number of related medical issues associated with the syndrome including a history of seizures and a cleft lip and palette. The summary indicates that the student does not receive ongoing medication. The student is administered rectal Diastat in the event of a seizure. The summary states that a seizure “…has reportedly only occurred on one occasion in two years at school.” There is no mention in the summary of the student’s diagnosis of the blood disorder, Idiopathic Thrombocytopenic Purpura, or ITP. The team recommended that the student remain in the MD special education class. H. IEP meeting – January 23, 2006. The prior IEP was set to expire on January 30, 2006. On December 19, 2005, Mrs. Fuelling sent a letter [B00463] to the Petitioners requesting suggested dates to conduct the meeting and a list of goals that they would feel appropriate. She also stated that Doug Felt had not been able to contact them and would they call him at the phone number provided in the letter. On Mrs. Fuelling’s Documentation of Attempts [B00462], she noted no response to this letter. Mrs. Fuelling sent a second letter on January 4, 2006 [B00464] with suggested dates and a statement that if she did not hear from them that she
14 would pick a date. Her list of attempts indicates no response to this letter. However, her handwritten notation on her copy of the second letter and dated January 6th states that she talked with the father and he said that they would come up with a date. On the 9th, Mrs. Fuelling answered the father’s questions as to who would attend the meeting, type of meeting and that the meeting would be at Educare. On January 11th, Mrs. Fuelling again spoke with the father and he asked whether the meeting could wait until February upon which Mrs. Fuelling replied that they could not since the previous IEP expires in January. The father said that he would get back to her with another date. On January 12th, Mrs. Fuelling sent a Parent Invitation [B00465] setting the IEP meeting for January 23, 2006 at 8:00 AM. On the day of the meeting in the parking lot of the Educare Center, the father handed to Mr. Daniel Riley, the audiologist for the student, a letter [B00886] from the Petitioners dated January 20, 2006. (R-2242). Petitioners stated in the letter that they were unable to attend the IEP meeting and suggested four possible dates in February. The Petitioners for some reason could not attend the meeting in January. The father testified that they were working on another date to have the meeting and therefore the meeting date would be extended per their request. (R-142-143). They viewed extending the meeting beyond the time as not all that important since the previous IEP had expired prior to the last meeting. (R-2034). Mrs. Fuelling testified that the IEP meeting could be reopened anytime. (R-1394). The meeting went on as scheduled. The Petitioners’ letter also listed a number of items that they wanted to include within the IEP. (R-148). The IEP does not contain medical information as previously included such as the Background Information sheet or the letters from the Petitioners regarding the student’s daily habits, explanation of seizures or what to do in case of a seizure. Mrs. Fuelling testified that the Background Information sheet is in the student’s file and at the end of the school year she will put the document into the IEP. For some unknown reason, that was not done. The mother’s testimony stated that it was their belief that all medical information from past years always remained as part of the student’s file. The recent MFE report of November 28, 2005, which is the basis of going forward with the IEP, contained a medical summary. (Exhibit AA, B00936).
15 Step 1 of the IEP setting forth the family preferences and interests has the notation “Family did not attend”. Step 2 [B00453] reflects some improvement in the student’s present levels of performance from the January 21, 2005 IEP as is indicated in the last MFE. She will smile when an adult talks to her or smiles in activities she enjoys. Visual tracking is present as well as looking in the direction of someone talking to her but eye contact has not increased. The student is not taking any steps in the gait trainer and she is not rotating the wheels of her adapted bike independently. She still does not extend her hands in a protective reflex in a fall. She inconsistently lifts a loaded spoon to her mouth. The Petitioners’ list of items contained in their letter of January 20th expressed their concern with the specially designed instruction and means to measure goals and objectives. The IEP team addressed each issue Petitioners put forth in their letter and incorporated some of the items within the annual goals and short-term objectives. The need of the student to increase functional communication skills was addressed as was the student demonstrating an understanding of cause and effect through switch use. The two objectives were to activate a switch 4 times in 10 minutes after being shown the placement of the switch and using a big mac switch which the student would activate to signal for help. The later objective coincided with the request of the Petitioners in their letter – ‘Be able to use assistive technology so she can “call” when she needs attention.’ Her second need was to improve functional mobility skills. Goal #2 is to demonstrate balance and control in gross motor activities. The objectives were increased to include positioning in a box for 45 minutes daily; with physical prompting at the elbow, transfer from sitting in a chair to standing three out of five trials; and, walk from one area of the room to another with support at her upper arms, adult in front of her for three out of five position changes. Independently propelling a bike or the taking of 5 steps forward positioned in a gaiter trainer was not incorporated in the above objectives. Her third need combined her Goals #3 and 4 from the year before. The need is to develop increased fine motor skills during functional daily living activities. Goal #3 is to develop more control over hand and finger movements during activities of daily living. The objective to grasp objects now included picking up and holding an object for 30 seconds once a day; to grasp and hold a sippy cup with handles and drink 50% of liquid
16 independently one time daily; adult assisting with the student’s hand on spoon scooping 50% of a meal; lifting spoon to her mouth independently three times daily; and, assisting in removing arm from sleeve of coat. Under Step 6 of each goal, the least restrictive environment (“LRE”) wording was changed from “Separate facility due to medical needs” in previous IEPs to “Self- contained special ed. Class (100% of time) in public/community school. Educare is a public/community school. (R-1405). In the Summary of special education services section [B00458], it is written that the student is to be in a “…Self contained special education class 100% of day. The change in language regarding placement was pursuant to the new guidelines of the Ohio Department of Education. There was no intent to change placement of the student at this meeting. (R-1406). Mrs. Fuelling sent a notice to the parents [B00460] on January 23rd that the IEP team met due to the expiration of the prior IEP. The notice further stated that Petitioners could open the IEP at a later date per their request. In section 1 of the notice, description of the action, “Change of Placement” was not marked. I. Meeting of February 28, 2006. Mrs. Fuelling responded to Petitioners’ letter of January 20, 2006 for dates in February by email dated January 25, 2006 (Exhibit W, B00888). She provided two dates in which to meet. Her handwritten notes on Petitioners’ letter (Exhibit X, B00887) indicate that the meeting was rescheduled to February 28, 2006. By letter dated January 26, 2006, Mary Reuss, Special Education Supervisor, answered the listed items in Petitioners’ letter of January 20th. (Exhibit W, B01141). Mrs. Reuss replied that the school district for matters of privacy does not permit videotaping. She suggested that Petitioners schedule with Mrs. Fuelling the personal monitoring of the student’s progress in class. She also stated that “…delivery and monitoring of services are incorporated into all IEP goals and may be discussed during each and every IEP meeting.” (Exhibit W, B01142]. Mrs. Reuss also asked in her letter that another meeting be held in March. Due to a scheduled seminar on writing techniques for IEPs, Mrs. Reuss wanted to rewrite the student’s IEP to the new standards of the Ohio Department of Education and at the same time have the meeting with the Petitioners for the purpose of review and revising the
17 January 23rd IEP. Petitioners did not want to delay their meeting and insisted on a February meeting. On February 23rd, a Parent Invitation was sent to the Petitioners regarding the February 28th meeting. (Exhibit V, B00449). Present at the February 28th meeting were the Petitioners, Mrs. Fuelling, Mrs. Reuss, and the rest of the IEP team. The Petitioners were disturbed by some of the issues in the last IEP. In particular, the Petitioners questioned the goals and short-term objectives since to them they did not make much sense. Petitioners contended that the student was not exhibiting the level of performance that was written in her Present Levels of Performance, Step 2 of the IEP. (R-2067). It appeared to the Petitioners that the student had in fact regressed in her objectives; in particular, she was not able to walk in her gait trainer as compared to her prior IEP where she could. (R-2087). Therefore, Petitioners believed that the education staff was not working with the student and requested a weekly sheet schedule. The Petitioners were fed up thinking that the rest of the IEP team did not want them at the meetings. (R-2090). The meeting was described as explosive and some of the participants took offense to things that were stated. (R-158-175). The meeting lasted two and one-half hours until Mrs. Reuss called a halt to the meeting. The team agreed to reschedule the meeting. J. Videotaping Requests. On March 9, 2006, Petitioners sent an email to Thomas Billau requesting that they be permitted to periodically videotape the student “…during typical daily schedules in her classroom.” (Exhibit 1-37). Their intent was to be able to view the student’s progress and achievements with her physicians, therapists and other caregivers. The purpose was to ensure that all were working in the same manner to deliver the consistent, repetitive techniques performed in class. The Petitioners assured Mr. Billau that no other student would be videotaped since none are mobile and would be unable to move in front of the camera. A similar email was sent to John Foley, Chief of Staff of the school district. The same day, Mr. Foley responded stating that videotaping was not permissible. The reason given is that taping of sessions would be disruptive to the classroom and the educational process. He did offer district educators to meet with any therapists and doctors to develop a team approach to the student’s care. The Petitioners responded requesting an
18 explanation how videotaping would be disruptive to the educational process. If denied, the Petitioners stated that they would file an Administrative Review. They also asked for a copy of the written policy. Petitioners immediately sent a second email requesting the school district to pay for the therapists and doctors. On March 17th, Petitioners sent an email inquiring why videotaping is disruptive and a copy of the written policy. Mr. Foley responded the same day stating that he had given the matter over to Mr. Billau and that he would be contacting them. A third request was made on the 24th and Mr. Foley responded on the 28th that he would see that Mr. Billau would get back to them. On March 28th, Mr. Billau sent an email to the Petitioners citing the school districts policies with copies attached. The email further explained that videotaping would require the repositioning of the students to protect their privacy and the addition of a videographer by his very presence is disruptive and distracting to the teachers and other personnel who provide the services to the students. On May 5, 2006, the Petitioners by email replied to Mr. Billau that the policies submitted to them did not mention videotaping. (Exhibit 39, B0848). Mr. Billau did testify that the teachers’ contract requires that both the teacher and parent have to consent to videotaping. (R-901). K. Felt meeting and IEP meeting - April 3, 2006 Mrs. Fuelling’s handwritten notes on the copy of the Petitioners’ letter of January 20th indicate that the meeting with Petitioners had been rescheduled for March 20, 2006. A succeeding note indicates that the Petitioners’ canceled that meeting on March 16th and requested a meeting with Doug Felt to go over the MFE of November 28, 2005. (Exhibit W, B00887). On March 27, 2006, Mrs. Fuelling sent to Petitioners a Parent Invitation for a face to face meeting on Monday, April 3, 2006 at 10:00 AM. The invitation had the box checked under Purpose for Conference “To develop, review, and/or revise the student’s IEP” and also checked the box “At your request to discuss:” and typed “MFE”. All the members of the student’s IEP members were invited to attend this meeting. (Exhibit V, B00446). Mrs. Fuelling’s Documentation of Attempts to Obtain Parent Participation form [B00448] shows that the March 27th notice was sent. A notation also indicates that Mrs. Reuss had talked with the Petitioners and they had picked the time and date for the meeting. Another notation indicates that the Petitioners had called Mrs. Reuss on March 30th stating that the IEP meeting is to be canceled and that they would
19 meet with Doug Felt alone to discuss the MFE. The father did convey to Mrs. Reuss to cancel the IEP for April 3rd. At the February 28th meeting, the Petitioners first mentioned that they wanted to talk to Doug Felt first before having another IEP meeting. (R-174). Jean Dykyj the Physical Therapist also recalls that the Petitioners during the meeting expressed their desire to meet with Mr. Felt before any further IEP meetings. (R-686). The Petitioners wanted to have a meeting with Doug Felt since the November 28, 2005 MFE conference. The purpose of the April 3rd meeting for them was to obtain a layman’s understanding of the evaluation, and later to discover what the professionals would say about their daughter from an Independent Education Evaluation (IEE). (R-127 & 2078). The Petitioners believed an IEE would assist the school district in developing measurable goals and realistic objectives in the education of their daughter. (R-2110). At the meeting with Doug Felt, he talked about the appropriateness of the student’s goals, and whether the instruction was appropriate to reach those goals. He further described how she was functioning on a brain stem level making reference to Terri Schiavo10 regarding visual scanning and tracking. His opinion was that her tracking was a primitive brain stem response. (R-317). He further described the student’s movements as random and not organized. Grasping, reaching and eye movements were more of a reflex action. His assessment was that the student could be conditioned in a stimulus response manner. (R316-324). Mr. Felt observed the student the one time. He stated that he had sufficient time to do his assessment but acknowledged that with more time he would have a better understanding of her and how she functions. (R-355 & 285). He also acknowledged that parents of a special needs child have a good idea regarding the child’s abilities. (R-286). The Petitioners met with Doug Felt at 10:00 AM at the Educare Center. Mrs. Reuss was also present for the first 45 minutes and left the meeting stating that she had another meeting to attend. (R-192). Mrs. Reuss testified that she had a second meeting at Glendale-Fielbach, another elementary school in her district. She stated that she did not know if the Petitioners were going to meet with the IEP team. She also testified that she came back to the Educare Center after her second meeting to meet with the other
10 Terry Schiavo, a Florida resident, was the subject of a legal dispute between her husband and her parents pertaining to the removal of a feeding tube. Testimony related to her functioning on a brain stem level.
20 members of the student’s IEP team to rewrite her IEP. (R-1876). The Petitioners did not realize that the student’s IEP team was meeting on the same day, believing that it had been canceled pending their meeting with Mr. Felt. (R-2078). The IEP team on the other hand was looking to rewrite the IEP to comply with the guidelines recently established by the State Department of Education and to have the second meeting with the Petitioners as indicated from previous correspondence. Consequently, the IEP team held its conference later that same day but without the Petitioners. (R-1876). Mrs. Fuelling testified that the IEP meeting was held without the Petitioners present. She also testified that she expected the Petitioners to request another IEP meeting. (R-1515). On May 3, 2006, Mrs. Fuelling testified that she sent home a Prior Written Notice to Parents indicating that an IEP meeting was held on April 3rd together with a copy of the IEP. The notice includes a comment that the parents had canceled the IEP meeting and have not rescheduled. [B00447]. Petitioners’ disagree that they received the May 3rd notice. Their testimony is that they did not become aware of the April 3rd IEP meeting until shown a copy of the IEP by one of the school district’s legal counsel outside of court.11 (R-2180). In an email dated June 8, 2006 [B00671 & B00672] to Thom Billau, the Director of Student Services for the school district, the Petitioners complained that they were only seeking to have a meeting with Doug Felt for his explanation of the MFE as previously described. The student’s IEP was not discussed, or reviewed. The father picked up a copy of the April 3rd IEP shortly after May 26th at the school district’s administration building. Step 1 [B00438] of the April 3, 2006 IEP setting forth the family preferences and interests has the notation “Family did not attend”. The attendance page [B00450] of those who attended the meeting has the Petitioners neither excused nor as having participated. Mrs. Reuss is listed as having participated along with Jean Dykyj, Nancy LeBlanc, Chris Moore and Kellie Fuelling. No time is indicated as to when the meeting took place.
11 Petitioners filed a complaint in the Lucas County Court of Common Pleas against the school district under Case No. 06-3715 seeking injunctive relief and monetary damages. See Exhibits 2-6, 2-7 & 2-8.
21 Within the present levels of performance, Step 2, the new guidelines require that the student be compared to same age peers. At the student’s age, same age peers are speaking clearly at an appropriate pace and volume and are independent in all areas of daily living including eating, dressing as well as movement. Step 2 reflects little improvement in the student’s present levels of performance from the January 23, 2006 IEP with the notable exception that she will walk with “adult maximum support to upper arms for short distances. Mrs. Dykyj indicated in her testimony that upper arm support rather than lower arm support is an improvement. (R-702). The student’s stereotypic hands movements interfere with her ability to engage in fine motor skills which is the precursor to sign language. (R-716). She still will not rotate the pedals of an adapted bike nor bear weight on her hands. The Annual Goals and Short-Term Objectives were extensively rewritten to comply with the guidelines. All objectives were again increased to reflect continual improvement in her abilities. The need to understand cause and effect continued with objectives in switch activation. Expansion of her mobility skills were addressed seeking the development of lower extremity strength for walking through the continuation of positioning in a lower extremity support stander for 60 minutes and transferring from sit to stand with physical support. Grasping of a spoon and independent lift of a spoon to her mouth also was included together with grasping and drinking from a cup. In determining the least restrictive environment, Step 6, the explanation determining where services were to be provided where modified from previous IEPs to “Special class learning center in a separate facility where a small class size and limited distractions provide the opportunity for intensive, direct instruction and guided practice, until June 2, 2006; effective Aug. 30, 2006, special class learning center in a school building.” [B00439]. The attendance page [B00450] does not contain a parent’s signature in the box for “consent for change in placement” nor does the Parent Invitation for the meeting [B00446] contain as a purpose for the meeting possible change in placement. L. Change of Placement to Larchmont Elementary. There is no argument that the student should remain in a MH classroom. Placement can be in a variety of locations and location is the school district’s
22 responsibility. The school district will look to find a school as close as possible to the student’s home that meets the student’s needs as contained in the IEP. (R-1166). At the IEP meeting of January 23, 2006, there was no discussion concerning a change in placement or location. (R-1406). During the February 28th meeting, Mrs. Reuss explained that the discussion concerning goals became heated between the Petitioners and the rest of the IEP team. Before calling an end to the meeting, Mrs. Reuss stated that she would be looking for another classroom for the student. (R-1944). Every spring, the school district looks to see who can move up and out of special education programs. Educare, a separate facility, is considered to be a more restrictive learning environment than a MH classroom that is located in a regular school building. (R-1410). Mrs. Fuelling therefore received a copy of her class list from Mrs. Reuss. As she testified, she met with the educational staff their recommendations before she would make her recommendation to Mrs. Reuss. (R-1418-19). Andrea Strzelecki, a school nurse, provided to the educational staff a written report dated 3/2006 regarding the nursing care the student received over that last couple of years. (Exhibit DDD, B00799). She testified that the seizures of the student were very serious and the instructions from the parents were to call them immediately and administer Diastat oxygen and suction. The parents would come and pick up the student and determine whether or not the student would be taken to the emergency room. (R-810- 812). Prior nursing notes indicated a seizure at school during the 2004-05 school year. (R-803). Ms. Strzelecki noted that the student did not require a daily assessment of medications and even though she has had seizures, they were very infrequent. Consequently, she had been providing minimal care to the student. (R-819). She had heard of a seizure that the student had at home. She did testify that she did not know of any blood disorder; that there was no record of the letter of Dr. Pappas regarding ITP; nor did Mrs. Fuelling or the parents inform her of the condition. She stated that the ITP condition would be important to know. (R-823). Mrs. Fuelling testified that over the years there have been less seizures and not a seizure at school since the 2004-05 school year. (R-1431-32). She found that the medical information within the student’s file was five years old, and had not been updated by the Petitioners and was no longer pertinent. (R-1655). The recommendation was therefore
23 based upon the student no longer requiring intensive medical services; it was a step-up to a lesser restrictive environment; closer to home; and, a student is not typically kept with the same teacher for more than three years. (R-1405-1415). Since nothing had really changed for the student, Mrs. Fuelling placed in the margin of the class list a notation that the student qualified for a regular MH classroom. (R-1411). Mrs. Fuelling returned the class list with the recommendations to Mrs. Reuss before the April 3, 2006 meeting. Mrs. Reuss shortly thereafter met with Mrs. Fuelling and Ms. Strzelecki regarding the recommendation. Mrs. Reuss found that Larchmont Elementary being in the student’s district had an opening in the MH classroom. She contacted the principal Mr. Hanthorne and informed him that the student was not receiving any medical services. She also talked to Brenda Maas the special education teacher at Larchmont. Mrs. Reuss therefore decided to accept the recommendation and transfer the student to the MH classroom at Larchmont Elementary. (R-1892-1901). Petitioners had no indication from the student’s teacher, Mrs. Fuelling, (R-1416) or from her supervisor, Mrs. Reuss, (R-1895) that a change of placement was being considered. Mrs. Reuss acknowledged that it is appropriate teachers talk with the parents and that parents should be informed as to important matters affecting their children. (R- 1896). The Petitioners testified that they were not informed that the school district intended to change the student’s placement until a neighbor of theirs informed them after the fact that the student was going to be in Brenda Maas’s special education class at Larchmont Elementary. (R-838). Petitioners testified that they did not receive formal notification from the school district regarding the change in placement until the following August by letter. (Exhibit VV). Larchmont is a regular elementary school with MH classrooms. Mrs. Maas’ classroom has eight students assigned; all are ambulatory and a number diagnosed as having Autism. One of her students takes all his classes in the regular school curriculum. On average only 4 or 5 of her students will be in her classroom throughout the day. In the classroom there are two paraprofessionals and a tutor. Occupational, Speech and Physical Therapy sessions are held in the classroom for one hour each during the week. Otherwise, therapy sessions are held throughout the regular building. The student would be the only girl in the class for the school year 2006-07. (R-959-960).
24 The availability of nursing services is of a concern. Nursing services are provided only two days out of the week for a school of 300 students. In the event that the student has a seizure, Diastat will have to be administered rectally and immediately with a second administered within 15 minutes. Neither Mr. Hanthorne nor Mrs. Maas will administer Diastat to the student. (R-950). Due to her blood disorder and serious seizure condition, Dr. Pappas recommends “…complete observation during the day.” (Exhibit 1-26, 9/15/06 letter). Her seizures are difficult to detect and her ITP condition should be monitored by someone who is familiar with blood disorders. The nurses at Educare would constantly go into the classroom and observe the children to see how they were doing. (R-444). Mrs. Maas testified that it would be a genuine concern if nursing serves where not available. (R-951). Thomas Billau, the Director of Student Services, in his testimony stated that nursing services could be available for the student but were not presently available at the school. (R-1124). A second concern is having a save environment for their non-ambulatory, non- communicative daughter who lacks self-protective reflexes in a class of ambulatory, male, autistic children. The Petitioners surmise that an aggressive outburst by an autistic child could do harm to their daughter. Mrs. Maas testified that she is an experienced special education teacher and has over the years taught and controlled her class so that such an incident would not happen. She related how she and her paraprofessionals are proactive and will take the necessary steps to avoid any problem from arising to a level where it would be dangerous to other students. She did admit that at times there is unexpected behavior but she has worked with children lacking self-protecting skills and those children can be protected in the classroom. (R-954-959). Precautions taken include being with the child most of the time. (R-977). M. Request for Independent Education Evaluation. After the meeting with Douglas Felt on April 3rd, the Petitioners asked Mrs. Reuss for an IEE. (R-2083). Before any further IEP meetings, it was the intent of the Petitioners to have an independent evaluation conducted by an expert not associated with the school district. On May 5, 2006, the Petitioners sent an email to Mr. Billau requesting an IEE. (Exhibit 1-8, B00962). The next day, Mr. Billau responded with the names of three psychologists and their resumes. On the 26th of May, Petitioners then
25 requested information relative to conditions for doing the evaluation. [B00986]. The Petitioners sent a second request for the conditions on June 8th. [B01130]. Mr. Billau responded on June 12th with the conditions and addressed the reimbursement issue that the school district would pay for the evaluation but that the district reserves the right to contest the cost. (Exhibit LL, B01156). Petitioners deny that they received Mr. Billau’s last letter and state that an undated letter from Mr. Billau received on September 6, 2006 containing the same information answered their questions from their June 8th request. This letter also addressed other matters including notification to the Petitioners that Larchmont and Educare were both available to the student. (R-1189). Mr. Billau admitted that three months was a serious gap when the regulation requires no unnecessary delay in parents seeking an IEE. (R-1067). In discussions with the father in September, Mr. Billau agreed to new evaluations by a psychologist, Physical Therapist, Speech Therapist and Occupational Therapist of Petitioners’ choosing. He also recommended Rehab Dynamics. (R-1103). By this time, the Petitioners no longer trusted what the school district had to say. (R-1106). N. 2006 Summer Services. On April 9, 2006, the school district received the Petitioners’ request for Extended School Year Services. (Exhibit EE, B00952). In it they set out the services required, reason for the services due to regression of skills and the type of programming would benefit the student. Mrs. Reuss convened an investigative group of three experienced special education specialists within the school district who had not had prior contacts with the student. It was the intent of Mrs. Reuss to enlist an independent group to evaluate whether or not summer services should be provided. She observed an obvious breakdown in the relationship between the Petitioners and the IEP team. (R-1813). All three individuals presented their reports and each determined that the student’s skills had not regressed from the prior summer period. (R-1945-1948). A notice was prepared and sent to the Petitioners for a June 9th meeting to discuss ESY services. [B00830]. At the meeting, the Petitioners were given the opportunity to review the reports of the investigative committee. [B00949 through B00951]. Each report notes progression in skills. Jane Kirkman, Speech Therapist, remarked that “There is a clear pattern of advancement as indicated in each Present Level of Performance of
26 each IEP.” The IEP team denied the request over the objection of Petitioners. However, compensatory services were approved for speech therapy since the therapist, Christine Moore, was out sick during most of the preceding school year. [B00956]. During the meeting, Petitioners testified that they were informed for the first time that their daughter received compensatory 2004 summer services during school in March of 2005. (R-2084-2086). Consequently, Petitioners requested the student’s daily care sheets in an email sent to Mrs. Reuss to determine whether they should seek an Administrative Review. (Exhibit 1-36, B00673). Exhibit 1-36 is a composite of emails mostly directed to the school district inquiring why they their request for copies of the records had not been provided. Petitioners’ email of August 8th demanded that the school district comply with Part B of IDEA that records will be provided after 45 days. [no bates number]. On August 28th, Petitioners sent a letter to John Foley explaining that they had just received notice that the student was to attend Larchmont. The Petitioners explained that this placement was inappropriate in an unsafe environment and that they were invoking her right to a “stay put” at Educare. (Exhibit 1-42). Along with the letter was a copy of the Due Process Request. By email dated September 1, 2006, Petitioners requested the full file for student. The school district responded by delivery of the record on or about September 6th and additional records by letter of November 8, 2006. During the summer, the student received compensatory speech therapy at home from Ruth O’Laughlin, Speech Therapist. The Petitioners during the summer had taken the student to St. Vincent’s Medical Center for physical therapy and occupational therapy. Apparently, the physical therapist has placed the student in a walker made out of PVC pipe. It has allowed her to move much more and the improvement has been noticeable. She has only seen the occupational therapist a couple of times. The mother testified that the student tracks people in the room, that she has therapy with switches and at one time appeared to reach. Additionally, the student has seen Dr. Buerk who has put her in a brace to correct the curvature of her spine. (R-2190-2194). O. Areas of Contention. Over the duration of the hearing, the general dissatisfaction of the Petitioners to what they perceive to be a lack of interest and effort toward their daughter’s education is apparent. To them the goals and objectives did not make sense. (R-1439). The
27 Petitioners argue that the present levels of performance since the MFE of 2003 have shown that the student has regressed or shown little if any improvement. In 2003 she would place her hand on the bottle and drink from it. Later it is reported that when her hands are placed she will grasp the cup. What is the difference? The same in picking up and dropping a toy, she could do the same in 2003. The reported improvement demonstrated in the use of the walker citing that the number of steps the student has taken either was not an improvement or in fact indicated that she regressed. (R-2103-2106). What does it mean that the student had to smile two times a day when one could not determine what the student thinks or feels. The mother testified that “…we’re realists….We don’t think she’s going to flip burgers at McDonald’s. We certainly would like to see what she might be capable of, and we don’t have any data really from professionals or really good evaluations to be able to tell what that might be…but we certainly need to give her the opportunity to do whatever it is that she can do.” (R-2110). Mrs. Fuelling testified to the continuing positive results that the student received in services from one year to the next. The testimony was interesting in the sense that Mrs. Fuelling clearly explained how the student showed improvement from the beginning of her education with Mrs. Fuelling to the present. For example, Mrs. Fuelling described how the student transitioned from a bottle in a supine position to accepting liquid in a spouted cup in a 45° position. She also explained the apparent discrepancy in her ability with the gait trainer that her body grew which caused her to move into a larger gait trainer. Because of her lack of strength, she could not longer move the trainer. Therefore, the goal changed to walking with adult assistance. (R-1606-1630). Mrs. Dykyj explained the development of the student’s gross motor skills specifically growing out of one trainer into a larger heavy trainer. She is making progress in gross motor skills graduating from a supine walker to being able to walk with adult support. She has not developed any self-protective mechanisms and she appears to be stepping without intention without adult direction. (R-701-711). Mrs. LeBlanc testified to the improvement in switch activation, eating junior foods, midline access and switch pressure. She testified that the student could not maintain hand signals independently, and would not feed independently finger food. (R-607-615). Then Mrs. Moore compared the different IEPs and explained in detail the areas of improvement, the reasons for doing
28 particular procedures and what is measurable. She explained that she tries to gain the student’s attention, make her more aware of her surroundings and develop a sense of cause and effect from the switch toys that are used. (R2263-2272) Switch activation is a stepping stone to adaptive communication. She will track someone walking in front of her but does not put meaning to what she sees. She never reaches. (R2302-2304). The testimony of the therapists provides a clearer understanding to the subtle differences and nuances of each therapist’s service area. Petitioners further questioned why they could not get their daughter to do something at home when her present levels of performance say that she can do it. For reasons of consistency in services, having the ability to show other caregivers how to deliver services and to more effectively communicate with experts, the Petitioners saw that it would be advantageous to videotape the student’s activities in school. Petitioners reasoned it would only benefit their daughter. Karen Ryan testified that her daughter attended Glendale-Fielbach and the therapist permitted her therapy sessions to be videotaped. (R-1908). Why would the school district not do the same with Petitioners’ daughter? Since the Petitioners testified that their daughter regressed in her skills in some areas over the years, they also believe that summer services are necessary to continue the consistent and repetitive programming so important for continuing progress. The school district policy is no videotaping. The reason is that it can be disruptive to lessons and to the flow of instruction. There is also a concern as to what the purpose is. There are also privacy issues concerning other students in the class. It is recommended that the therapists meet with the caregivers and experts to determine the mode of instruction and service. As for ESY services, the student has shown improvement in her present levels of performance and such skills are recouped before the end of the first quarter of school. Therefore, ESY is not available. The Petitioners admit that they are frustrated in the lack of communication from the school. To them it is a control power struggle of some sorts. They see themselves as seeking information and being frustrated in trying to get it. (R-21-96-2197). They admit that meetings were contentious but questioned whether other caregivers were told that any meeting with them would be contentious. They are of the opinion that the student’s school caregivers do not like to be questioned and that they wanted to get rid of those
29 people saying that the student didn’t need medical services. (R-2075). They realize that their daughter will never be mainstreamed. (R-2198). Mrs. Fuelling testified that the first two years as the student’s teacher there was no problem with the Petitioners; everything was great. Then boom, Petitioners were upset every time. Petitioners had a new directive everyday. It was not clear what the Petitioners wanted. Meetings had no resolution. At meetings, Petitioners were confrontational and raised their voices. They said that we had to learn our jobs. They were upset with the entire team and stated that “…you were the best baby-sitters the student has had.” (R-1374-1380). Mrs. Dykyj testified that Petitioners at meetings would not give others an opportunity to explain matters without being interrupted. (R-684). The mother questioned why meetings were never set up to their convenience. (R- 2064). Even though they had “canceled” meetings they did not understand why the meetings went on without them. The record is replete with their inquiries regarding lack of notice for meetings, decisions being made beforehand and the allegation that the meeting with Mr. Felt on April 3, 2006 was conducted as the same time as the IEP meeting without their knowledge. There are numerous examples in the record of the increased animosity and distrust building up between the Petitioners and the school district. There were allegations that the Petitioners neglected their daughter and a complaint filed with Children Services Bureau. After an investigation, no charges of neglect were filed. There was a matter of a cabinet in Mrs. Fuelling’s room being broken into and papers missing out of the student’s file. (R-2081-2082). The Petitioners’ felt as if the school blamed them. A crime report on the matter was filed with the police. In May 2006, the Petitioners were barred from entering Educare to pick up their child and therefore had to wait in the parking lot where the child was wheeled outside for pick-up. One day, the mother found it necessary to call 911 since she waited outside for her daughter for over an hour. Police arrived and a report written on the matter. Later, the Petitioners filed a motion for a temporary restraining order which the court granted. Thereafter, Mrs. Fuelling sent the Petitioners a letter stating that she required 24 hours notice from them before entering her classroom. Petitioners felt that they were being singled out.
30 Mrs. Fuelling testified that a week before the end of the 2005-06 school year she sent a letter that she was to have no visitors in the classroom. The reason was the year- end workload and the fact that a fellow teacher recently passed away and she was in charge of doing the work for that class. The father at this time was still attempting to bring the student to school at 8:30 AM 15 minutes before the doors opened. (R-1556- 1559). She felt as if she was being harassed due to the confrontational style of Petitioners. At times they are hard to deal with. She discussed filing a safe school charge against the Petitioners but was informed by Officer Carroll that the charge was insufficient. (R-1496-1498). Other issues involved the Petitioners not providing diapers for the student contending that diapers are adaptive equipment. (R-2099). The mother testified it was a matter of exerting some kind of control. (R-2100). Then the Petitioners protested that Officer Carroll was informed of the diaper issue which was a violation of privacy. Mrs. Reuss stated that the officer heard another parent talking about it in the parking lot. (R- 1929). The mother requested and was refused the early breakfast program for the student. Mrs. Reuss said that Educare did not have that service. The Petitioners repeatedly referred to this in their testimony as the “breakfast fiasco.” (R-2072). Petitioners also looked at the delay in the school district in providing for an independent education evaluation and the delay in providing copies of the student’s record as further examples of the frustration in dealing with the school district. (R-2084). Finally, Petitioners have repeatedly voiced their safety concerns not only the lack of medical services at Larchmont but also that Mrs. Fuelling had her classroom door locked from the outside, her door window was covered up preventing them and others to look into the classroom and fire concerns questioning how non-ambulatory children would be moved safely outside in the case of a fire. (R-2050). Petitioners also question the care and services provided in the classroom by medical students, and paraprofessionals that do not have a license as assistant therapists. Mrs. Fuelling testified that there are no medical students that are in her classroom. (R-1485).
31 III. Statement of Law and Fact
It is uncontested that the school district has consented to an Independent Education Evaluation at its expense. The school district reserves the right to contest any fees that they consider to be excessive. It is further uncontested that the school district for the school year 2006-2007 has maintained an opening for the student at either Larchmont Elementary or the Educare Center. Should Petitioners choose to send the student back to Educare, her teacher would be Mary Martin. As required by state law, the student would be within the 60 month age range for students in her class. (R-1200). Further, there is no disagreement between the parties that the student is a disabled child under the IDEIA and continues to be eligible for special education and related services. It is also uncontested that the student should be in a MH classroom. The Petitioners content that the student’s IEP does not provide the special education and related services to meet the unique needs of the student in that it fails to describe her actual Present Level of Performance, fails to adequately detail goals and objectives, fails to provide for services sufficient to meet enumerated goals, and fails to provide extended school year services. Petitioners further complain that the school district has failed to properly notify Petitioners of the opportunity to participate in discussions relating to their daughter’s evaluation and education contrary to the procedural safeguards in the IDEIA. In addition thereto Petitioners content that the school district has predetermined placement of the student without ensuring that the placement is based on the IEP and without the Petitioners meaningful participation also contrary to the procedural safeguards in the IDEIA. The Petitioners also allege that the least restrictive environment of the student is not a MH classroom in a regular school as the IEP team predetermined. Other issues the Petitioners have addressed will be either mentioned herein or incorporated within the decision. Petitioners by the 2005-2006 school year had become frustrated with the IEP team and the educational staff at Educare. In turn, the IEP team members had become apprehensive of the Petitioners and to a degree uncommunicative with them. The contentiousness between them reached to a degree that Mrs. Reuss found it prudent to gather an independent committee to examine the issue of 2006 extended summer school services.
32
A. Did the school district predetermined placement of the student without ensuring that the placement be based on the IEP and without Petitioners meaningful participation contrary to the procedural safeguards in the IDEIA?
The record shows that about March of 2006, the special education supervisor, Mrs. Reuss, send to Mrs. Fuelling a copy of her class list for the purpose of recommending any of her students for a change of placement and/or location. After discussing the matter with her staff, the therapists and nurse, Mrs. Fuelling recommended that the student could be moved to another MH classroom that would be within the student’s district12 and in compliance with her IEP. Mrs. Reuss upon her own investigation accepted the recommendation and decided that the student should attend Larchmont Elementary for the 2006-2007 school year. This decision was discussed and arrived at prior to the IEP meeting of April 3, 2006. The record shows that the IEP team affirmed the decision at the meeting but as Mrs. Fuelling testified the decision was always subject to change at any subsequent IEP meeting. OAC 3301-51-01(H) sets forth the continuum of alternative placements. On the continuum, (3) Special classes such as the MH classroom at Larchmont is less restrictive than Educare which is a MH Classroom in a Special School. OAC 3301-51-05(E)(1)(d) requires that informed parental consent must be obtained before: (d) Making a change in placement of the child with a disability.
(i) A change in placement is defined as a change from one option on
the continuum of alternative placements to another; and
(ii) Informed parental consent need not be obtained if the school district can demonstrate that it has taken reasonable measures, as described in paragraph (F)(4) of rule 3301-51-07 of the Administrative Code, to obtain consent, and the child's parent has failed to respond. (Emphasis Added)
The Parent Invitation of March 27th for the April 3, 2006 IEP meeting did not refer to a “change of placement” as a purpose for the meeting. Mrs. Reuss testified that the educational staff’s recommendation was made before the IEP meeting and that the parents were not aware of their decision. In the Court of Appeals for the Sixth Circuit,
12 Educare Center is in the Bowsher High School District and the student lives in the Start High School District.
33 Maureen Deal v. Hamilton County Board of Education, 392 F.3d 840 (6th Cir. 2004) at 857, the court cited as the leading case on predetermination Spielberg ex rel. Spielberg v. Henrico County Public Schools, 853 F.2d 256 (4th Cir. 1988). Based on a series of letters, the Spielberg Court found that the school district had decided to change a disabled child’s placement before developing an IEP to support the change. The Court found that the predetermination on the part of the school district was a procedural violation that deprived the student of FAPE. Id. At 258-59. The Court found further support in 34 CFR 300.552 in that the child’s placement is to be based on the child’s IEP. The Deal Court in the case before them found that the school district had pre-decided not to offer a disabled child intensive one-on-one applied behavioral analysis services regardless of any evidence concerning the child’s needs and effectiveness of the program. The Sixth Circuit Court further decided: This predetermination amounted to a procedural violation of the IDEA. Because it effectively deprived Zachary’s parents of meaningful participation in the IEP process, the predetermination caused substantive harm and therefore deprived Zachary of a FAPE.
The Deal Court also cites N.L. v. Knox County Schools, 315 F.3d 688 (6th Cir. 2003) wherein the Court “…emphasized that school officials are permitted to form opinions and compile reports prior to IEP meetings. The Court cautioned … that such conduct is only harmless as long as school officials are ‘willing to listen to the parents and the parents have the opportunity to make objections and suggestions.’” at 694-95. (Emphasis Added). Mrs. Fuelling testified that the Petitioners had “canceled” the IEP meeting. She further testified that she understood that the Petitioners were going to call another IEP meeting at a later date since it would have been a continuation of the February 28, 2006 meeting. She also understood that the Petitioners intended to meet with the Psychologist only. Petitioners expressed their surprise to Mrs. Reuss on March 30th that the IEP team wanted another meeting only to rewrite the IEP according to the guidelines of the Ohio Department of Education. Petitioners testified that they informed Mrs. Reuss that the meeting was only to be with Mr. Felt and therefore canceled the IEP meeting. Petitioners did no know that the IEP team was going to meet on the same day after their conversation with Mrs. Reuss nor were they informed of the intended change in placement.
34 Communication between the parents and Mrs. Fuelling before and after the January 23rd meeting was open in the matter of finding a date for a continuation of the IEP meeting. Before and after the April 3rd meeting, there was no such openness or communication between the educational staff or the parents to reschedule another meeting. Mrs. Fuelling stated that Petitioners did not reschedule therefore on May 3rd she sent a Parent Invitation informing the Petitioners that they had “canceled” the April 3rd meeting and that a copy of the IEP approved by the IEP team was attached. The Petitioners testified that they did not receive the Parent Invitation and did not know of the IEP meeting until late May quite by circumstance while discussing a related matter in Lucas Common Pleas Court with counsel for the school district. After the fact involvement is not enough since the above cited regulation requires that in determining the educational placement of a disabled child, the school district must ensure that the placement is based on the child’s IEP. Deal at857. The Court in Knox County, supra, found no predetermination where the parent was not involved in the initial ex parte determination of eligibility but was an active participant in the final determination. The record herein is totally devoid of any participation on the part of the parents in the decision to change placement. Any claim that it was Petitioners’ responsibility to call the meeting to discuss the issue is contrary to Congress’ intent for meaningful parental involvement. Its admonition for the school district is to ensure the participation of Parents. It is evident from the record that the Petitioners intended and did request an Independent Education Evaluation for their daughter. Should they have been put on notice that the school district was contemplating a change in placement at the April 3rd IEP meeting, the Petitioners would have had the opportunity to request an IEE at that time. The Petitioners would have also had the opportunity to seek additional medical information regarding their daughter to supplement her student file. Dr. Pappas’s letter of September 15, 2006 (Exhibit 1-26) regarding the student’s lack of self-protective mechanisms, her medically sensitive condition regarding her immune system and life- threatening nature of her seizure activity warranting complete observation during the day could have been made available at an earlier date. The student’s medical record at the time the educational staff made its decision was incomplete. Prior to the April 3rd
35 meeting the evidence shows that Petitioners had not fully and completely communicated to the educational staff and nurses the student’s medical situation. However, the school district initially placed the student at the Educare Center due to her fragile medical condition which required the availability of a nursing staff or trained individuals to administer Diastat. Although her seizures were not as often, the potential for a seizure was present. Her medical summary was included within the MFE in November, 2005 and her student file contained the records provided in past years. The educational staff in predetermining the change in placement was a procedural violation of the IDEIA. Because it effectively deprived the student’s parents of meaningful participation in the IEP process, the predetermination caused substantive harm and therefore deprived the student of a FAPE.
B. Is Larchmont Elementary the least restrictive environment for the student where her services can be provided?
Both parties agree that the related services for the educational benefit of the student can be provided in any MH classroom within the school district. The parties differ regarding the medical services needs of the student and whether the medical services available at Larchmont Elementary are sufficient. The Educare Center is considered to be a more restrictive environment than Larchmont due to the fact that two nurses are available throughout the school day and there are no regular education classrooms in the Educare facility.13 Larchmont on the other hand is part of a regular school facility with school-age typical peers attending classes. The mandate to educate students with disabilities in the least restrictive environment (LRE), is provided under 20 USC § 1412(a)(5)(A), which states: To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the
13 The Educare Center is a building owned by the University of Toledo (formerly MUO). UT/MUO uses portions of the building for its own purposes, and various other entities use other portions. The school district has three classrooms for school-age students located in the building. No school-age typical peers attend school in that building.
36 disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
There is a two prong test that the 5th Circuit Court in Daniel R.R. v. State Board of Education 874 F.2d 1036 (5th Cir. 1989) at 1048 created: First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. See §1412(5)(B). If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate.
The record shows that the special education teacher and the principal of Larchmont declined to administer in the case of a seizure the student’s prescribed rectal medicine, Diastat. The record also reflects that Larchmont had one nurse available for a school of over 300 children two days a week. The teacher testified that daily nursing services should be available considering the fragile medical situation of the student. Mr. Billau testified that nursing services could be arranged but were not available on a full time basis as of the 2006-2007 school year. Dr. Pappas writes in his letter of September 15, 2006 (Exhibit 1-26) that the student’s fragile medical condition warrants complete observation during the day. He further described the student’s lack of self-protective mechanisms, her medically sensitive condition regarding her immune system and the life- threatening nature of her seizure activity. Daily observation of the students is provided in Educare classrooms. The Petitioners also claimed that because of the lack of self-protective mechanisms, placement at Larchmont was unsafe for their daughter citing the fact that of the other seven classmates all were ambulatory and diagnosed with autism. Of great concern to them are the occasional “outbursts” associated with autistic children. The record contains a lengthy discussion regarding the measures that the educational staff would take in a proactive manner to avoid such a possibility if one presented itself. The Petitioners have also demanded more intensive therapy sessions for their daughter. As the teacher explained, her classroom partners include two paraprofessionals and another teacher. Most of the day, she only has four or five students in her class due to scheduled regular classes of some of her students. Ironically, the student may receive more
37 educational instruction at Larchmont due to a lower student to staff ratio and more one on one instruction. The educational staff had sufficient information regarding the student’s history of seizures. They were on notice of the possibility that Diastat may have to be administered in the school setting. Inquiring of the Larchmont educational staff should have been a consideration together with contacting Petitioners on the matter. Without nursing services in place and the fragile medical condition of the student, at this time the least restrictive environment for the student is Educare.
C. Did the school district fail to properly notify Petitioners of the opportunity to participate in discussions relating to their daughter’s evaluation and education contrary to the procedural safeguards in the IDEIA?
1. Notification of IEP Meetings. Petitioners allege in their due process request that the IEP meetings of January 21, 2005, January 23, 2006 and April 3, 2006 that the school district failed to notify the parents of those meetings thereby preventing parental participation that being a violation of the IDEA and denial of a FAPE to the student. OAC 3301-51-07(F) addresses parent participation: (1) Each school district shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including (a) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend, and (b) Scheduling the meeting at a mutually agreed upon time and place. (c) If neither parent can attend, the school district shall use other methods to ensure parent participation, including individual or conference telephone calls.
(2) Each school district also shall ensure that the notice for the IEP meeting (a) Indicates the purpose, time, and location of the meeting and who will be in attendance; (b) …. …. (4) A meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. In this case, the public agency must have a record of its attempts to arrange a mutually agreed upon time and place such as
38 (a) Detailed records of telephone calls made or attempted and the results of those calls; (b) Copies of correspondence sent to the parents and any responses received … (Emphasis added.).
Although neither Petitioner signed the IEP, the record and exhibits indicate that the father was present at the January 21, 2005 meeting. Consequently, Petitioners were notified. In regard to the other meetings, neither Petitioner attended. The issue is whether sufficient notice was given to convince the parents that they should attend. The Statement of Facts, supra, clearly set out the efforts that were taken to notify the Petitioners relative to the scheduled IEP meetings. A number of times the dates of meetings were changed to accommodate the Petitioners, frequently Mrs. Fuelling inquired by mail, person to person, phone calls, and notes in the student’s school bag reminding the Petitioners to pick dates for meetings. Based upon the record, the school district made numerous efforts to afford the Petitioners the opportunity to participate at IEP meetings, and the exhibits cited in the Statement of Facts document their efforts in this regard.14 The school district does not want to be out of compliance relative to the guidelines established by the Ohio Department of Education. To be out of compliance means that paperwork is not what it should be, it does not necessarily affect the student or the student’s services. (R-1750-1753). 20 USC §1414(d)(4)(A) states that “The local educational agency shall ensure that…the IEP team (i) review the child’s IEP periodically, but not less frequently than annually…” OAC 3301-51-07(F)(1) states that the school district “shall ensure” that one or both of the parents are at the IEP meeting or are afforded the opportunity to participate. “If neither parent can attend, then the school district shall use other methods to ensure parent participation. Id., (c). The record shows that the school district and Petitioners mutually agreed upon a second meeting to afford the parents the opportunity to participate. The meeting lasted two and one-half hours before Mrs. Reuss called a halt due to the heated conversation between the parties. It was again rescheduled for April 3, 2006.
14 Written notations on paper were not necessarily detailed sufficiently nor results of contacts clear due to the form, content and location of notations.
39 Regarding the IEP meeting of January 23rd, the school district refused to meet in the month of February as the Petitioners desired since the prior IEP was set to expire at the end of January. Mrs. Reuss testified that meetings had to be conducted within the 12 month period. The Petitioners for some unknown reason could not attend a January meeting but it was clearly their intent to participate at the IEP meeting and informed Mrs. Fuelling of that on January 11th. Mrs. Fuelling said no that the meeting had to be in the month of January. On the morning of the meeting, the father hand-delivered a letter dated January 20th (Exhibit X, B00886) to Mr. Riley addressed to Kellie Fuelling apologizing that they could not attend and provided four dates in February to meet. Furthermore, despite the parents’ absence from the meeting, the Petitioners listed a number of items in their letter which were discussed and some items included in the IEP. Mrs. Reuss answered each item by separate letter dated January 25, 2006. See Dong v. Board of Educ. (6th Cir. 1999), 197 F.3d 793, 802. Parent participation in the decisions and decision-making was further satisfied with the rescheduling of the meeting on February 28th with Petitioners in attendance. Notices sent out to the Petitioners for the April 3rd meeting sufficiently notified Petitioners of the meeting.15 In fact, Petitioners responded to the Parent Invitation of March 27th stating that they only wanted to meet with Doug Felt on April 3rd and “canceled” the IEP portion of the meeting. After the meeting with Mr. Felt, the IEP team conducted its meeting at Educare. Mrs. Reuss was originally at the Felt meeting and excused herself for a second meeting outside the building. She came back for the IEP meeting after the Petitioners had left the building. She testified that she did not know whether the Petitioners where going to be present. There is no indication in the record that any member of the IEP team spoke with the Petitioners prior to their meeting. From the testimony, Petitioners did not know that the IEP meeting had not been canceled believing that the only meeting that day was their meeting with Mr. Felt. Both parties during their testimony used the word “cancel” to describe the language Petitioners used in person to person meetings or phone calls in reference to the MFE conference and/or the IEP meeting scheduled for April 3, 2006. The word
15 Except the Parent Invitation did not indicate the “Change in Placement” purpose for the April 3rd meeting as decided above in subsection A.
40 “canceled” is also written in various notations recording contacts made and results of the contacts again pertaining to these two meetings. Apparently, Petitioners use of the word “cancel” meant that the Petitioners were canceling a particular meeting that they received an invitation to attend, expecting that the meeting would be scheduled later. On the other hand, the school district’s apparent understanding meant that Petitioners were not going to attend the meeting and that a second meeting would be scheduled for the parents participation. Mrs. Reuss testified to the fact that she has 600 students in her district that fall under the IDEIA. For scheduling purposes, it is therefore understandable that the school district would proceed with scheduled meetings unless another time and location was mutually agreed upon in a timely manner. Any proposed rescheduling on the part of the Petitioners not timely communicated before the first scheduled date would not forestall the school district in having the meeting. A seemingly innocent word appears to have been the cause of a lot of confusion, frustration and apprehension on the part of both parties. A parent was present during the January 21, 2005 meeting and therefore there was no violation of the IDEIA. Relative to the January 23, 2006 meeting, the school district has shown a record telephone calls, contacts and copies of correspondence showing its attempts in affording the Petitioners the opportunity to participate in the meeting. The School District also showed other methods ensuring parent participation upon reviewing the letter of Petitioners and rescheduling the meeting to February 28th. Regarding the meeting of April 3rd, the form of notification was present but the acceptance of the team to the wishes of the Petitioners was not. There was no attempt on the part of the school district to seek rescheduling of the date as before. There was no attempt of communication of the date of the meeting when the Petitioners were in the building and as decided in the first issue above, the Petitioners were not put on notice of the change of placement. Notification is more than mere form. It is the obligation to ensure participation by scheduling a meeting at a mutually agreed upon time and place or if neither parent can attend, to ensure parent participation through other methods which is lacking for the April 3rd meeting. 2. Notification of MFE meeting and “No Consent” OAC 3301-51-05(E) – Parental Consent
41 (5) If the parents of a child with a disability refuse consent for … reevaluation … the school district may continue to pursue those evaluations … by using the due process or mediation procedures in rule 3301-51-08 of the Administrative Code.
Petitioners argue that the school district proceeded with its reevaluation of the student even though the Petitioners had returned to the school district their notice that the parents did not give their consent for reevaluation. Pursuant to the above section of the Administrative Code, the school district could only proceed with the reevaluation “…by using the due process or mediation procedures in rule 3301-51-08 of the Administrate Code.” It must first be determined whether or not the school district received the return of the “no consent” that the Petitioners stated that they had mailed to the school district. The notices and communication between the parties for the MFE conference of November 28, 2005 call for a close inspection of the testimony and exhibits to understand what actually occurred. On October 31st, Doug Felt sent the notice to the Petitioners informing them of the reevaluation and requesting their consent to conduct the reevaluation. Mrs. Fuelling on the next day sent a follow-up letter and a scheduled date for the conference. The mother testified that she sent back the portion of the notice not granting consent for the reevaluation in the self-addressed stamped envelops provided. Mr. Felt testified that he never received return envelop from the Petitioner. The return address is the School District’s Administration Building. The letter would then be delivered directly to Mr. Felt. There are three reasons which indicate that the “no consent” form was not returned to Mr. Felt. A copy of the no consent form (Exhibit 1-5) having the mother signature does not contain a bates number on the document. This indicates that the form was never placed in the mail or was lost in the mail therefore never included within the student’s file. It is also apparent that Mr. Felt did not receive its return which is supported by the testimony of Mrs. Fuelling when she stated that Mr. Felt did not tell her that Petitioners did not give their consent. (R-1385). Finally, and most compelling, Mrs. Fuelling testified that she talked with the Petitioners and they only discussed canceling the meeting and rescheduling to a later date. The records indicate that Mrs. Fuelling had the conversation with the mother on November 14th and she canceled – “need to change
42 date”. (Exhibit 1-5, B00543). There is no reference in the record that the Petitioners’ refused the reevaluation. There was also testimony concerning a conversation between Mr. Felt and Mrs Fuelling about scheduling a date in December. Petitioners acknowledge receiving a letter from Mrs. Fuelling containing dates in December wherein she related she had spoken with Mr. Felt about the change. [B00995]. The Administrative Code further states: (6) Informed parental consent need not be obtained for a reevaluation if the school district can demonstrate that it has taken reasonable measures,
as described in paragraph (F)(4) of rule 3301-51-07 of the Administrative Code, to obtain that consent, and the child's parent has failed to respond.
OAC 3301-51-07(F)(4) states: (4) A meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. In
this case, the public agency must have a record of its attempts to arrange a mutually agreed upon time and place such as
(a) Detailed records of telephone calls made or attempted and the
results of those calls;
(b) Copies of correspondence sent to the parents and any responses
received; and
(c) Detailed records of visits made to the parents' home or place of
employment and the results of those visits.
Other notations and documents in the exhibit indicate that the school district attempted to reschedule the conference meeting. There is no testimony or document showing that the Petitioners ever decided or communicated to the school district confirming another date. The notices were well documented in the record that the Petitioners were given an opportunity to participate. The record also discloses that Mr. Felt and the Petitioners had attempted to contact each other without success. In summary, the burden is on the Petitioners to show that they communicated their intent not consenting to the reevaluation and that the school district did not give the Petitioners the opportunity to participate and/or used other methods to ensure parent participation. Petitioners have failed to carry their burden in both matters. Pursuant to the authority granted in the Administrative Code, the school district has shown that it took reasonable measures to secure the consent of the Petitioners and the Petitioners
43 failed to respond. Therefore, parental consent was not necessary for the school district to proceed with the reevaluation.
D. Did the student’s IEP provide the special education and related services to meet the unique needs of the student in setting forth her actual Present Level of Performance, adequately detailing her goals and objectives, providing for services sufficient to meet her enumerated goals, and providing needed extended school year services?
The student’s mother testified that she could not get her daughter to do the things that the educational staff said she could do. (R-2061). She also stated that she and her husband are realistic about their daughter and they know she will never be mainstreamed. All that they want is a fair assessment. (R-2197-98). Throughout the hearing, the Petitioners questioned the present levels of performance that the IEP incorporated and thought that the goals and objectives were silly. As they related in their request for an Administrative Review, it was their opinion that the IEP should be more detailed in what it was to provide and achieve and that Extended School Year services were necessary for the student to progress in her educational instruction. The Petitioners eventually meet with Mr. Felt on April 3, 2006 and described the meeting as a matter of fact discussion about his evaluation. What they wanted was a true picture of their daughter from his professional viewpoint in terms that a layman would understand. Petitioners did explain some areas of functioning that Mr. Felt found interesting and did not expect. He acknowledged that with more time spent with her the better understanding he would have as to how she functions. 1. Special Education and Related Services. From the MFE of 2003 forward to the IEP of April 3, 2006, there is a dispute between the Petitioners and the school district whether the present level of performance for the student has shown improvement over the years or not. Attachment 1 herein is a chart that the Petitioners put together that outlines the student’s abilities and progress for those last three years.16 Petitioners content that the student’s progress has been stagnant and in some areas decreased. The school district has always maintained that the student has progressed in her education as indicated in the Present Levels of Performance
16 The chart is taken from the Due Process Post Hearing Brief of Petitioners.
44 contained in her IEP over the last three years and as testified to by Mrs. Fuelling and the therapists. A school district is required by the IDEIA to provide an IEP for each disabled child. An appropriate IEP must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress. 20 U.S.C. § 1414(d)(1)(A). A school district is not required to maximize each child’s potential. Hendrick Hudson Dist. Bd. V. Rowley, (1982) 458 US 176, 198. It must provide some meaningful educational benefit for the child. In Deal, Id, at 864, the Court defined meaningful educational benefit in the following manner: At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child. Indeed, states providing no more than some educational benefit could not possible hope to attain the lofty goals proclaimed by Congress. In Evaluating whether an educational benefit is meaningful, logic dictates that the benefit “must be gauged in relation to a child’s potential.” Polk, 853 F.2d. at 185. Only by considering an individual child’s capabilities and potentialities may a court determine whether an educational benefit provided to that child allows for meaningful advancement. In conducting this inquiry, courts should heed the congressional admonishment not to set unduly low expectations for disabled children.
The school psychologist, Douglas Felt, found that the student could not grasp means-end thinking as well as cause and effect relationships. She has severe deficits in intelligence that greatly inhibit functioning in all realms of life including caring for self, communicating with others and achieving even the most basic levels of academic achievement. He further described her as having a minimal awareness of her environment. He explained that her movements were reflex movements and that in some respects she functions on a brain stem level. In summary, Mr. Felt diagnosed her in the profound range of mental retardation. Therefore, any academic goals are secondary to the need to develop simple life and self-help skills. Mr. Felt found that the student’s focus should continue to be on language, self-help, and categorizing skills in a small
45 group and individualized instruction in a self-contained classroom having a low ratio of student to adult. Academic and adaptive instruction need to broken down into very small units and repeated frequently. Personal independence in a child who is profoundly mentally handicapped most probably is an unreachable goal. That is not to say that the student cannot achieve some meaningful educational benefit towards the goal of self-sufficiency. Through the testimony of the school district’s experts, the student has attained in some degree some of her academic and adaptive instruction but not in all areas such as independently pedaling a bike for four rotations. The therapist did not believe there was that mental connection between moving her foot and moving the bike. Mr. Felt recommended that the student’s educational program be broken down in very small units and repeated frequently. Obviously, her education is involved in the most basic fundamentals of each learning process and gross motor function. Testimony showed that not only did the therapists seek to attain measurable goals in repetitive therapies as in drinking from a sippy cup but also sought to strengthen her legs enough to carry the weight of her body as she grew. It is difficult to determine what if any meaningful educational benefit the student has received due to her fragile physical condition, low functioning and inability to communicate. Educational progress appears to mainly occur in areas where the student receives some form of gratification. This is clearly shown in activities centering on food and drink. It is also evident but less so in switch toys that vibrate. Mrs. Fuelling remarked that the student is more motivated when it comes to food. (R-1627). The learning process will be slow and any minor accomplishment may be a great event toward attaining her goals. The Petitioners state that the attached chart, Attachment 1, outlines the student’s abilities and progress from May 19, 2003 (MFE) to April 3, 2006 (IEP). The information as Petitioners state are as noted on the exhibits cited on the top line of the chart. Petitioners argue that the chart shows that their daughter’s progress has been stagnant and/or regressed in certain areas. They reference the student in 2003 holding her bottle and accepting food hand over hand; that she was able to track an adult from one side of the room to another; that she could make 4 rotations on an adapted bike; that she could do 30 steps in a trainer. The record indicates that by 2006, the student accepted 100% of liquid in a sippy cup in a 45º position rather than supine position; that she accepted food
46 with an adult holding on to her upper arm; there has been no real improvement in visual tracking; that she could not perform 4 rotations independently and therefore it was removed as a goal (R-1621); and because she had grown, she did not have the strength to move the larger gait trainer therefore the goal was modified to her walking with adult support, takes more skill more age functional. (R-702). The student showed further progress in that she could sustain activation of a toy for up to 30 seconds as opposed to randomly flicking at switches. (R-609). The student gradually switched into more difficult mobile standers in order to strengthen her legs. (R- 701). She tolerated prone positioning more but did not show improvement in self- protective measures. (R710). There was also slight improvement in her ability to sit for longer periods of time. Without setting forth all of the testimony and the information contained in the IEP for each year, the school experts at the hearing sufficiently explained the progress the student had made year to year, the related services that were provided to the student and how success was measured in the attainment of the goals and objectives. The student’s potential is limited. The Petitioners have not met their burden measuring their daughter’s potential against the benefits received. Consequently, there is no denial of a FAPE in this regard. 2. Extended School Year (ESY) Services in 2005 or 2006. In the Sixth Circuit Court of Appeals, the court adopted the general rule for determining a student’s eligibility for ESY services in Cordrey v. Euckert (6th Cir. 1990), 917 F.2d 1460, 1473: If the child benefits meaningfully within his potential from instruction under a proper IEP over a regular school year, then ESY service may not be required under the Act unless “the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an [ESY].” Alamo Heights School District v. State Bd. Of Education, 790 F.2d 1153 at 1158.
The Sixth Circuit reaffirmed the regression standard in Kenton County School District v. Hunt (6th Cir. 2004), 384 F.3d 269, 278. Ohio has incorporated the Cordrey regression standard into its regulations. OAC 3301-51-07(G)(3)(b)(v) calls for consideration of two factors for determining ESY eligibility:
47 (a) Whether extended school year services are required to prevent significant regression of skills or knowledge due to interruption of instruction between school years.
(b) Whether extended school year services are required to prevent significant regression of skills or knowledge retained by the child that cannot be recouped in a reasonable amount of time.
The evidence does show that in some areas of educational instruction that the student did not show improvement or maybe even regressed in her skills from time to time. Testimony of Mrs. Fuelling and the therapist relates that any regression that may be due to summer breaks was recouped by the end of the first quarter. The Cordrey case at 1473 states the “…it seems particularly apt … that the child’s educational progress can be understood as a continuum where the point of regression versus progress is less relevant than the conferral of benefit.” This point of continuum is appropriate here gauging the potential level of skill of the student and the benefit she has obtained in her educational instruction. The Petitioners submitted neither evidence nor expert testimony to show either specific skills or areas of alleged regression, or delayed recoupment over the summers of 2005 and 2006. Petitioners provided only Attachment 1 in support of their argument for ESY services. The Attachment serves to support an argument for the insufficiencies in the IEP as set forth in subsection 1 of this issue. It does not per se argue for ESY services. Mrs. Reuss decided in April/May of 2006 that three independent experts (an experienced teacher, occupational therapist and speech/language pathologist) independently review the student’s records and recommend whether ESY services should be provided to the student for the 2006 summer. Each report found that any regression in skills during the summer break in 2005, the student had recouped within the first grading period of the 2005-2006 school year. Mrs. Dykyj testified that the student actually made progress from May 20, 2005 to October, 2005. (R-718). For the summer of 2005, the educational staff found that for any regression the student may have shown she had recouped what she had lost by the end of the first quarter of the 2004-05 school year. As the record shows, Mrs. Reuss did offer a program to the student at Glendale-Fielbach due to the misunderstanding from the prior year about
48 the services offered then. But as explained, she did not qualify for ESY services for the summer of 2005. Cordrey addressed parental desires for summer care by stating, 917 F.2d at 1473: We therefore begin with the proposition that providing an ESY is the exception and not the rule under the regulatory scheme. Given those policy considerations, therefore, it is incumbent upon those proposing an ESY for inclusion in the child's IEP to demonstrate, in a particularized manner relating to the individual child, that an ESY is necessary to avoid something more than adequately recoupable regression.
In November 2004 the IEP team met. Because of the apparent summer miscommunication, the district offered to provide the student five hours each of direct OT and PT services during school to compensate for the two hours each OT and PT consulting services missed during summer 2004. District personnel testified to their understanding from that meeting that the Petitioners were satisfied with that compensation. The compensatory services were documented to have been provided during the 2004-2005 school year. (Ex. HH). However, the ultimate question remains whether the Petitioners have met their burden to show that ESY was necessary for the student to derive educational benefit during any of these school years. Cordrey, 917 F.2d at 1472, stated: In conclusion, then, the regression standard in Rettig and like cases is best interpreted not to require absolutely that a child demonstrate that he has regressed in the past to the serious detriment of his educational progress in order to prove his need for a summer program. Instead, where there is no such empirical data available, need may be proven by expert opinion, based upon a professional individual assessment.
The Petitioners have failed to demonstrate the student’s eligibility for ESY in 2005 or 2006 under the regression standard. Thus, they have failed to prove any substantive harm that would warrant a determination that she had been denied a FAPE.
E. Did the School District provide a safe environment for the student during her educational instruction?
Petitioners allege that Mrs. Fuelling locks her door during the day and that she covers the window of her door so that people cannot look inside her classroom. They
49 further allege that such activity is inherently dangerous. The decision of the Hearing Officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education only if the procedural inadequacies impeded the child’s right to a FAPE and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the parents’ child or caused a deprivation of educational benefits. 20 USC 1415(f)(E). These are the parameters that the hearing officer must work within. A hearing officer does not have the authority to rule upon matters that do not concern whether a child received a FAPE and that fall under the authority of another jurisdiction. A board of education has broad discretion to adopt and implement regulations governing the operations of its schools. Ohio R.C. 3313.20(A) states: The board of education shall make any rules that are necessary for its government and the government of its employees, pupils of its schools, and all other persons entering its grounds.
The Ohio Supreme Court has endorsed the authority of school boards to control their operations, stating: A court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine. Brannon v. Board of Education (1919), 99 Ohio St. 369 at syllabus paragraph one.
The hearing officer does not have the authority under the IDEA to rule on the request of Petitioners as it falls to the school district to determine what is safe or unsafe in the classroom if a FAPE is not at issue. The same applies to any complaint regarding fire safety. The Ohio State Fire Marshall has authority over the public schools regarding fire safety. Mary Martin testified that an evacuation plan is posted in the school building at Educare. (R-1348). Petitioners also complain that USCA §15009(a)(3)(B)(v) grants the Petitioners the right to enter the classroom without providing a 24 hour notice, a policy instituted by the school district at the end of last school year. They allege that the restriction is contrary to the law as it relates to individuals with developmental disabilities.
50 The cited statute is a federal funding statute, which at most contains only congressional preferences. Thus, the statute did not create rights that are enforceable by the Petitioners. In pertinent part, 42, U.S.C. § 15009 states as follows: (a) Congress makes the following findings respecting the rights of individuals with developmental disabilities: . . . (3) The Federal Government and the States both have an obligation to ensure that public funds are provided only to institutional programs, residential programs, and other community programs, including educational programs in which individuals with developmental disabilities participate that-- . . . (B) meet minimum standards relating to-- . . . (v) provision for close relatives or guardians of such individuals without prior notice.
The Petitioners suggest that this provision requires the school district to provide the parents unlimited access to classrooms at school without prior notice. The statute neither authorizes the Petitioners to seek an individual remedy, nor to seek private enforcement of the Act’s provisions. In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), the Court held that the, 42 U.S.C. § 6000 et seq., did not grant substantive federal rights to the developmentally disabled. Although the “bill of rights” provision used language that might appear to create rights, the Court held that that language did not create mandatory obligations on the state receiving funds under the statute but instead communicated congressional preferences. “…[I]f Congress intends to impose a condition on the grant of federal funds, it must do so unambiguously. Id. at 17. Congress did not do so here. Id. at 24. In Gonzaga University v. Doe, 536 U.S. 273 (2002), the Court clarified the standard to be applied when dealing with the question of whether a statute created an implied private right of action. The Court stated that “we must first determine whether Congress intended to create a federal right. Id. at 283. The inquiry “simply require[s] a determination of whether or not Congress intended to confer individual rights upon a class of beneficiaries.” Id. at 285. Gonzaga held that federal funding statutes have an
51 aggregate focus and do not concern whether the needs of any one particular person have been satisfied. Id. at 288. Thus, references to “rights” in statutory provisions do not necessarily create privately enforceable federal rights. As an example of a federal funding statute which did not create a private right of action, Gonzaga, 536 U.S. at 279, cited with approval its earlier decision in Pennhurst that the DDA did not confer privately enforceable rights, stating: …[I]n Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 …, we rejected a claim that the Developmentally Disabled Assistance and Bill of Rights Act of 1975 conferred enforceable rights, saying:
“In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Id., at 28.
We made clear that unless Congress “speaks with a clear voice,” and manifests an “unambiguous” intent to confer individual rights, federal funding provisions provide no basis for private enforcement. . . . Id., at 17, 28, and n. 21.
Section 15009(3)(B) of the DDA of 2000 has language that is virtually identical to that in the DDA of 1975 that the Supreme Court analyzed in Pennhurst. Smith v. Au Sable Valley Comm. Mental Health Servs., 431 F.Supp. 2d 743, 750 (E.D. Mich. 2006) (holding that 42 U.S.C. § 15009(3)(B)(i) does not create a privately enforceable right). The language of the statute does not express any congressional intent to confer any private right of action upon the student or her parents. The Act is simply a general statement of “findings”, and does no more than express a congressional preference for certain kinds of treatment. Therefore, the Act does not support the Petitioner’ claim that the school district must allow them to visit the student’s classroom without prior notice. The last safety issue Petitioners’ claim may have some bearing on whether the educational services the student receives is compromised for safety reasons. Petitioners claim that the school district has allowed medical, nursing, and allied health students to perform observations and assessments in the classroom without parental knowledge or consent. On two occasions, the mother testified that she saw two medical in the
52 classroom alone with the students. She has not explained why this is a safety issue. Mrs. Fuelling testified that no medical students have been in her class. (R-1485). The Petitioners also claim that the school district allowed non-licensed personnel to perform OT/PT services on the student on a regular basis as the therapist delegated such services to Mrs. Fuelling and the paraprofessionals. In particular, the Petitioners complain that the teacher and paraprofessionals positioned their daughter in standing equipment and gait trainers on days that the therapist where not present. The safety issue is that the student has scoliosis and the teacher and paraprofessionals are not licensed as OT or PT therapists under ORC §4755.40 and §4755.48. ORC §4755.02 forbids anyone who is not licensed to practice OT or PT. Under ORC §4755.12, Exceptions, (A) the law does not prevent or restrict the practice, services or activities of the following (1) Any person who does not claim to the public by any title, initials, or description of services as being engaged in the practice of occupational therapy, who is: (c) A qualified member of any other profession who is practicing within the standards and ethics of the member's profession.
OAC §3301-51-01 defines the following: (CC) "Paraprofessional services" include services provided by school, county board of MR/DD, and other educational agency employees who are adequately trained to assist in the provision of special education and related services to children with disabilities. Paraprofessionals work under the supervision of teachers, intervention specialists, and/or related service providers. Other titles used to identify these service providers include teacher assistants, educational aides, school psychology aides, and job coaches. (JJ) "Related services" means transportation and such developmental, corrective, and other supportive services as are identified on the child's IEP and required to assist a child with a disability to benefit from special education. Related services may include, but are not limited to, the list of services contained in this rule. (1) The terms used in this definition are defined as follows: (h) "Occupational therapy" means services provided by a qualified occupational therapist … (l) "Physical therapy" means services provided by a qualified physical therapist. (Emphasis added).
53 The student has received her educational instruction at a special education facility, the Educare Center, and is receiving related services. Her teacher was Mrs. Fuelling a qualified member of the teaching profession licensed in special education. She is assisted in her classroom by two paraprofessionals who without challenge at the hearing qualified to assist Mrs. Fuelling in the provision of special education and related services. As the above referenced definition sets forth, related services include occupational therapy and physical therapy. Mrs. Fuelling testified that paraprofessionals are not allowed to have students without a teacher present. (R-1556). This was in response to the questioning of the Petitioners inquiring why the father could not drop off the student with the paraprofessionals present without the presence of the teacher. Mrs. Fuelling also testified that she rotates with the children daily with the paraprofessionals and directs and monitors the paraprofessional’s activity. (R-1729-30). The Administrative Code provides the requirements to be in place for the education of the multi-handicapped. What the Petitioners are proposing is that only a licensed therapist or assistant therapist would be permitted to do therapy with the children, which is more restrictive than the code requires. Mrs. Dykyj, the physical therapist, testified that she can delegate some services to unlicensed people and positioning is not a PT task only. (R-691). For the reasons mentioned, the Petitioners have not met their burden in this matter.
F. Did the school district improperly withhold permission from the Petitioners to videotape the services provided to the student at the Educare Center.
The school district’s policy does not allow videotaping. The school district’s contract will allow videotaping with the mutual consent of the teacher and parent. Petitioners were refused permission to videotape and the record is silent whether the Petitioners sought permission from Mrs. Fuelling. The IDEA 1997 does not provide parents the right to videotape.17 The lack of a statutory provision under IDEA 1997 or IDEIA 2004 authorizing videotaping at
17 The Appendix to the regulations for IDEA 1997, 34 CFR 300.1, et seq., stated in pertinent part:
21. May IEP meetings be audio or video tape recorded?
54 school was discussed in J.P. v. County School Bd. of Hanover Cty., Virginia, 447 F. Supp. 2d 553, (E.D. Va. 2006), where the court rejected the parents’ argument that they were denied the opportunity to participate in their child’s education because the school did not allow the parents to videotape their child in the classroom. The court, 447 F. Supp. 2d 553, at *52-*53, (LEXIS), explained: Nowhere does the IDEA state that parents have right to videotape their children at school, or even a right to be present in the classroom during instruction. Thus, the IDEA cannot be construed to support the parents’ denial of parental involvement claim.
[The school district’s] policy states that [the school district] “invites and encourages parents to be involved closely with their students’ education, including making visits to classrooms to view the academic environment. . . .” This is a discretionary policy that accords a privilege to parents, not a right; and that privilege may be circumscribed in the manner chosen by [the school district] so long as [the school district] does not violate any other existing right. Given the deference that courts are instructed to extend to public educators as to public education matters, it is not this Court’s place to decide whether denying Mrs. P. the ability to videotape JP in his speech therapy session was permissible. [Citations omitted].
Neither IDEA 2004 nor its new implementing regulations contain any provision giving parents the right to videotape at school. In the present matter, as noted above, the teacher, OT and PT all testified that they would have allowed the Petitioners to schedule an appointment to observe classroom instruction and/or therapy. By letter of February 2006 (Ex. W), Ms. Reuss informed the Petitioners that they could schedule visits to the classroom on a monthly or weekly schedule. Mrs. Fuelling, LeBlanc, and Dykyj also testified that the Petitioners neither stopped in to observe nor asked to schedule a time to observe. Petitioners wanted to videotape the student at school so that they could see “what was going on in the classroom.” She further testified that the request was to have the
Part B does not address the use of audio or video recording devices at IEP meetings, and no other Federal statute either authorizes or prohibits the recording of an IEP meeting by either a parent or a school official. Therefore, an SEA or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.
Parents wishing to use audio or video recording devices at IEP meetings should consult State or local policies for further guidance.
55 ability to have the caregivers at home to provide consistent services that were provided at school and for a record that their experts to view. Mrs. Dykyj testified that it would be preferable for school physical therapists to meet with or speak to private therapists so that therapy would be consistent. (R-735-736). The school district view is that videotaping is disruptive in the classroom and a violation of other students’ rights to privacy. The fact remains; it is the school district’s decision whether to permit videotaping. The Petitioners have failed to prove that they have a legal right to videotape the student’s instruction or therapy, or that a refusal of permission is a denial of a FAPE. G. Other Miscellaneous Issues There are a number of issues that Petitioners have argued that may constitute a procedural violation of the IDEA but do not constitute a substantive violation of harm to the student. In such instances, if the school district failed in its obligations, the error may not constitute a denial of FAPE. The Sixth Circuit Court in Knable v. Bexley City Sch. Dist. (6th Cir. 2001), 238 F.3d 755, 764, stated: Even if we conclude that Bexley did not comply with the Act's procedural requirements, such a finding does not necessarily mean that the Knables are entitled to relief. Rather, we must inquire as to whether the procedural violations have caused substantive harm to Justin or his parents. See Metro. Bd. of Pub. Educ. v. Guest, 193 F.3d 457, 464-65 (6th Cir. 1999); Daugherty v. Hamilton County Schs., 21 F. Supp. 2d 765, 772 (E.D. Tenn. 1998). Only if we find that a procedural violation has resulted in such substantive harm, and thus constituted a denial of Justin's right to a FAPE, may we “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(e)(2).
More recently, the Sixth Circuit stated in Nack ex rel. Nack v. Orange City Sch. Dist. (6th Cir. 2006), 454 F.3d 604, 609: A finding of procedural violations does not necessarily entitle appellants to relief. Knable …. Only if a procedural violation has resulted in substantive harm, and thus constitutes a denial of a FAPE, may relief be granted.
1. Omission and/or Removal of Related Services. The Petitioners argue that adapted equipment and aides were improperly omitted in the summary of services segment of her April 2006 IEP. (Exhibit 5). The Petitioners
56 also argue that school nursing services were also not included. However, the school district witnesses testified that the writing guidelines no longer required the items to be specifically mentioned where these items were already addressed elsewhere in that IEP. For example, adapted equipment is addressed under Goal #1 regarding adapted switches and toys; under Goal #2, regarding a “lower extremity support stander”; and, under Goal #4, regarding use of a spouted cup. Applicable law, 20 USC § 1414(1)(A)(ii) endorses the references to this information in the body of the IEP only by providing: RULE OF CONSTRUCTION- Nothing in this section shall be construed to require-- (i) that additional information be included in a child's IEP beyond what is explicitly required in this section; and (ii) the IEP Team to include information under one component of a child's IEP that is already contained under another component of such IEP.
Classroom aides are clearly part of the special education staff, required by law to be present in any MD classroom, and to perform duties as assigned by the teacher. R.C. 3319.088(C); OAC 3301-51-09(G)(3)(e)(ii). As the IEP neither specifies any particular duty that must be performed by an aide, nor calls for an aide to work exclusively with the student, there is no requirement to specify the service in the IEP service summary section. School nursing services are only required in the case that such services are required to assist a child with a disability to benefit from special education. As the term is defined, services include preventive services. OAC 3301-51-01(JJ)(1)(r). As the record shows, the only services provided was administering Diastat, oxygen and suction in the case of seizure or calling the parents in the case of seizure and/or fever. Mrs. Fuelling testified that the only medical information that would be included within the IEP is the Background Information sheet and apparently for some unknown reason a copy was not included. Nursing services in this matter did not assist the student to benefit from special education. Based upon the record, there is no evidence that the student or Petitioners suffered any substantive harm as a result of the omission of such data, and thus nothing to connect the procedural shortcomings as they claim to actual denial of educational opportunities for the student.
57 2. Delay Providing IEE Criteria and Imposition of Cost Restrictions. The Petitioners requested and the school district has consented to an Independent Education Evaluation. The progression of email activity that started in May of 2006 to September is included in Exhibit LL. While this matter has been litigated, one has to wonder why the Petitioners did not follow through with at least gathering information as to the experts they wanted and the cost associated for their services. The school district’s only “condition” regarding the IEE is contained in an email of November 15, 2006 (Exhibit 42) regarding the cost that the school district is willing to pay. Mr. Billau testified that the school district reserved the right to object to the cost. “School districts are permitted to consider cost in devising an appropriate educational program.” Clevenger v. Oak Ridge School Board, 744 F2d 514, 516-17 (6th Cir. 1984). However, cost must be weighed against Congressional intent and the public interest. The record indicates that the school district would accept evaluations conducted by a psychologist, physical therapist, occupational therapist and a speech therapist. The only criteria upon the Petitioners are the location of the evaluation and the qualifications of the examiner must be the same as the criteria that the school district uses when it initiates an evaluation. 3301-51-05(F)(8). The Petitioners insisted that they choose the experts that are to perform the evaluations. Petitioners have not completed their tasks. Therefore, even though there is a delay, there is no violation of the IDEA in this matter. 3. Not Providing All Student Records. Mrs. LeBlanc testified to the use of tally sheets in the services she provided to the student. (R-536). Tally sheets are used to keep track of each student. (R-537). No tally sheets were included within the records provided on request to the Petitioners. The IDEA provides the parents the right to examine all educational records directly related to the student with exceptions for specific circumstances. 20 USC §1415(b)(1). The purpose is to allow the parents to meaningfully participate in the IEP process. Other than the description given at the hearing, it is not known whether the information that is contained on the tally sheets was transferred to other reporting records. OAC 3301-51-04(B)(1) states that “The school district shall permit the parents … to inspect and review any
58 educational records relating to their children that are collected, maintained, or used by the school district…” These records have not been provided. The Petitioners also complain that the bates numbering system was out of numerical order and questioned whether the school district failed to provide all records as required. The school district appears to have committed a procedural violation but the violation does not result in substantial harm in this matter preventing educational benefits to the student and therefore is not a denial of a FAPE. 4. Designed Parent Involvement Activities. Petitioners allege that the school district has failed to provide parent involvement activities contrary to OAC §3301-51-09(D)(3)(d). The code states that school-age service providers shall under subsection (d) design parent involvement activities. As Petitioners point out in Exhibit 1-31, B00876, the school district does not have a parent involvement policy at Educare. Therefore, Petitioners allege a denial of FAPE. A letter from Thomas Billau to the Petitioners answered the reason why there is no policy but invited the Petitioners to participate at the Open House at the school concerning the matter. Any perceived procedural violation herein does not rise to the level of substantive harm preventing educational benefits to the student, and thus does not constitute a denial of a FAPE. 5. Breakfast Program and Private Changing Area. Petitioners allege that eating breakfast in the hallway and not providing a sanitary and private changing area is a safety issue. There are no facts concerning these two issues that make it a matter for determination under the IDEIA.
IV. Conclusion and Order Based upon the testimony at hearing and the exhibits entered, it is the finding of this Hearing Officer that the school district predetermined the change of placement of the student; that the decision was made without basing the decision on the student’s IEP; that the Petitioners were not notified that the IEP meeting of April 3, 2006 was to confirm the change of placement; and, the school district’s lack of notification prevented the Petitioners the opportunity to meaningfully participate in the IEP meeting. The failure on
59 the part of the school district was a procedural violation of the IDEIA of 2004 and violated a substantive right of the student to a free appropriate public education. It is further found that due to the fragile medical condition of the student requiring continual observation and emergency care should the need arise, the least restrictive environment for the student is the Educare Center. It is further found that although the Petitioners demanded and have the right to an Independent Education Evaluation at the school districts expense, the Petitioners upon receipt of the school district’s conditions never determined who they desired to perform the evaluation of the student. It is therefore ORDERED that, 1. Within 10 school days of this order, the Petitioners at the school district’s cost will decide and obtain the names of the psychologist, physical therapist, occupational therapist and speech therapist that will perform an independent educational evaluation on the student. The criteria of the Petitioners to choose are limited to the location of the evaluation and the qualifications of the examiner which must be the same as the criteria that the school district uses when it initiates an evaluation. 2. Should the Petitioners not decide within the time limit specified, then Rehab Dynamics, Inc., of 3160 W. Central Avenue, Toledo, Ohio shall be appointed to perform the Independent Education Evaluation of the student. 3. Petitioners shall fully cooperate with the examiners and timely provide the necessary and updated medical information concerning the student to the examiners. Upon receipt of the their reports, Petitioners shall immediately provide to the Director of Student Services of the school district a copy of the examiners’ reports and a copy of the updated medical information on the student. Petitioners shall also make the student available to the school district psychologist and therapists for reevaluation and their reports will be made available to the Petitioners prior to the meeting in paragraph 4. 4. Once the reports are made available, a reevaluation of the student and IEP meeting shall be conducted and consolidated pursuant to 20 USC §1414(i)(E). Compensatory ESY services for the summer of 2007 shall be provided. Actual services to be determined jointly by the examiners chosen by the Petitioners, Petitioners and the IEP
60 team. The Petitioners shall be granted the opportunity to invite other specialists and providers to the meeting. 5. The least restrictive environment for the student’s educational instruction is the Educare Center. Once the student is back in school, the parents and the IEP team will call an interim meeting to determine the present levels of performance of the student and short term objectives until such time the consolidated meeting above meets and develops a new IEP. 6. The student shall be placed in the MH classroom of Mary Martin or whoever is teaching her class when the student returns to school. The age of the students in the classroom will comply with OAC 3301-51-09(G)(3)(e)(i). 7. Videotaping will only be permitted should the selected professionals and the educational staff mutually agree; the school district have available a separate room in which to perform the videotaping; and, the videotaping can be accomplished without changing the student to staff ratio presently in the classroom. If these conditions cannot be met, videotaping will not be permitted.
Respectfully submitted,
George F. Sprenger Impartial Hearing Officer
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