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.