THE STATE OF NEW HAMPSHIRE
DEPARTMENT OF EDUCATION
In Re: IDPH # FY 03-07-05 / Raymond School District DUE PROCESS HEARING DECISION
I. Introduction
This hearing was held and the decision written pursuant to the Individuals with Disabilities Education Act (hereinater "IDEA"), 20 USC Section 1400, et seq., and New Hampshire RSA 186-C, and accompanying regulations. The first request for due process hearing was received on July 16, 2002, by letter from Attorney McCormack, for the District. The prehearing conference was set for August 6, 2002, and hearing dates of August 19 and 20, 2002 were used. Seven witnesses testified. Documentary evidence consisting of 538 pages was submitted by the District. Documentary evidence consisting of 57 pages was submitted by Parents. The parties submitted a document titled, PARENTS' AND RAYMOND SCHOOL DISTRICT'S AGREED UPON STATEMENT OF FACTS, received on August 20, 2002. The parties submitted requests for findings of fact and rulings of law within the agreed deadline of August 23, 2002.
The case involves a coded child (hereinafter "Student") whose date of birth is within the provisions of the special education laws. The parties did not contest evaluations or coding. Student has just completed the tenth grade at a private residential school in the State of Maine, and Student had an IEP for the 2001-2002 school year pursuant to a settlement agreement reached last year. The IEP for the 2002-2003 school year was in issue, and Parents demanded a continuing placement at the same private residential school in Maine. The parties agreed that the private residential school in Maine was not approved for delivery of special education services by the State of Maine.
The parties agreed that Student is eligible for special education services with a code of speech/language disabililty. The District witnesses utilized an evaluation and report from Dr. Robert Kemper and the the parties agreed that recommendations from that report were added to the offered IEP. Parents did not sign the offered IEP. Parents presented a list of IEP requests by a document titled PARENTS' INDIVIDUALIZED EDUCATION PLAN PROPOSAL, dated August 14, 2002. These items were not presented to the Team prior to the request for due process hearing.
II. Procedural Violations No procedural violations were alleged or found during this due process hearing.
III. Issues/Discussion
1. Did the Raymond School District offer Student an appropriate IEP for the 2002-2003 school year, and was the offered placement appropriate.
2. Is the proposed IEP for the 2002-2003 school year reasonably calculated to provide Student educational benefit in the least restrictive environment.
3. Was there sufficient evidence of the District's prior bad faith so that the Parents were entitled to send Student to an out of district residential placement (not approved for delivery of special education services) at District expense to ensure that Student received a free and appropriate education.
The agreed statement of facts contains numerous items of import, but for purposes of this decision, not all agreed facts will be restated. Student was coded speech-language impaired on November 29, 1989, at the age of four. Student attended local public schools in elementary school years. Student repeated first grade in the 1991-1992 and 1992-1993 school years. The parties added specific learning disability to Student's code on May 20, 1992. Student was discharged from special education on May 26, 1995, by agreement of the parties. Student remained uncoded for the school years from September 1995 through June 2000, grades four through eight. Student's grades gradually declined between grades four to eight, and Student was re-identified as an educationally disabled child on May 31, 2000, with a speech-language impairment. The parties agreed on an IEP for the ninth grade year, 2000-2001. Student "passed" ninth grade Physics, Economics and English Skills, but failed English, Math and Government, and was not promoted to the tenth grade.
Student was unilaterally enrolled in the Hyde School summer program in July, 2001. Student was unilaterally enrolled in the Hyde School program for the 2001-2002 school year, repeating the ninth grade. The parties agree that Student has received good grades at the Hyde School while receiving no special education services other than close personal attention and small classes with under twelve children per class.
Witness number one for the District was Lisa Long, the Special Education Coordinator for the District's High School. Ms. Long's resume is at District Exhibits page 529. Ms. Long described her typical duties, and described her knowledge of Student. Ms. Long testified to various observations of Student during the 2000-2001 school year and the impact of certain personal relationships on Student's attention to his studies. Ms. Long testified there was an "unfortunate incident" during the 2000-2001 school year when Student's english teacher asked Student if he was "stupid" after repeating directions to the class a couple of times. Ms. Long testified that the teacher is no longer employed by the District. Ms. Long agreed that Parent expressed concern that there had been a large turnover of District staff over the last couple of years and Ms. Long testified that fifty to sixty-five percent of the District's staff had turned over in that time. Ms. Long testified to a new set of procedures for special education implementation in the District and a more stable staff. Ms. Long testified that over the last two years, class sizes had been reduced generally from a student teacher ratio of twenty-five to one to the current twenty to one. Ms. Long testified that in response to the recommendations of Dr.
Kemper, Student's english class under the proposed IEP would have a ratio of eight children to one teacher. Ms. Long testified that the proposed IEP had all mainstream classes, except for english, and that all classes had aides, "alert sheets" (to focus the teacher's attention on special education needs of Student), and weekly plans to meet with special education staff on Student's progress. Various other provisions of the implementation of the IEP were stated. Ms. Long testified that Dr. Kemper's report did not require a low student/teacher ratio in all classes. Student's scores on the Woodcock-Johnson III Tests of Achievement were all within the average range. The one score which was low in the average range was the dictation subtest. This is the area of special education addressed by Dr. Kemper's evaluation and report.
Based on Ms. Long's experience and training, the IEP offered by the Team is appropriate to meet Student's special educational needs for the 2002-2003 school year. Based on Ms. Long's experience and training, the offered IEP is reasonably calculated to enable Student to make appropriate educational progress. This testimony was credible.
During cross-examination, Ms. Long was asked about the responsibility for implementation of an IEP. Ms. Long testified that the principal, the case manager and the named teachers are responsible to implement an IEP. Ms. Long testified that information about problems implementing an IEP can come from a variety of sources. Ms. Long agreed that during the 2000-2001 school year, the special education system was "in some chaos," but that "things were better now." Ms. Long testified about the implementation of Student's 2000-2001 IEP. This testimonial direction is not found informative. It is recognized that Parents' relevance argument is that the prior failure to implement Student's IEP was controlling evidence of the present inability to implement any IEP for this Student. As cross-examination continued, Ms. Long's direct testimony was again recited with no new information presented. Ms. Long did testify that it is generally the responsibility of the classroom teacher to get work commensurate with a child's intelligence quotient out of a child. Ms. Long also testified that Student "has a good work ethic" and "works well with attention." Ms. Long agreed that Student did not work well within the IEP for the 2000-2001 school year and she understood Parents' concerns over the failure of the 2000-2001 IEP.
Witness number two was Suzanne Puchacz, a Guidance Counselor at the High School. Ms. Puchacz testified about contacts with Student in the Guidance Office, over the emotional status of a classmate. Student's condition was described as "pretty upset" and Ms. Puchacz testified her job was to get Student back to class, "ready to learn." Ms. Puchacz testified to various conversations with Student about attending Hyde School.
Witness number three was Veronica McNallen-Formon, a certified Guidance Counselor and Crisis Intervenor. Ms. McNallen-Formon also met Student numerous times over the emotional status of a classmate. The personal details of the classmate's situation were mentioned, but will not be repeated here. She also testified to certain personal difficulties discussed between her and Student, which will not be repeated here. Suffice it to say, school districts generally receive children for special education under a variety of personal circumstances and the IDEA has no waiver of services exception for children undergoing a personal crisis during the school year. The District agreed that the special education system was "in some chaos." (Student's personal issues during the 2000-2001 school year were not reflected in the meeting minutes and thus the impact of those personal issues and the Team's efforts to remediate such issues is disregarded for purposes of this decision.)
Witness number four was Beth Ann Mince-Ennis Fortier, a New Hampshire licensed Speech/Language Pathologist. See District Exhibits page 524 for her resume. Ms. Fortier did a Speech-Language Evaluation found at District Exhibits page 238a to 238e. Ms. Fortier recommended discontinuation of Student's coding based on the scores in her evaluation. If Student returned to the District school, she would be the Case Manager and provide speech-language services. Ms. Fortier reviewed Dr. Kemper's evaluation and report and rewrote the speech-langauge goals and objectives based on that report. Ms. Fortier testified that Dr. Kemper got lower scores on certain similar subtests by focusing on "grammer" testing. Ms. Fortier testified she would not typically do that, as in her experience this focus of the test was not within design parameters of the test, although she was not sure Dr. Kemper's usage was improper. Since the District was not opposing Dr. Kemper's recommendations, further discussion of this subject is not relevant to the decision.
Parents' case does not dispute the offered IEP goals and objectives, rather, Parents' case was focused on the lack of trust in the ability of the District to implement the proposed IEP. Witness number five was Sandra Lyon, a special education teacher who taught Student in the ninth grade (2000-2001 school year). Ms. Lyon taught the English "essential skills" class and helped Student in a directed study, or homework class. Ms. Lyon also testified about certain personal issues with Student. Again, because the meeting minutes do not reflect this as a Team topic of discussion, further mention will not be made of these matters.
Witness number six was Ellen Kelsall, present Director of Special Education for Raymond School District. Ms. Kelsall started work for the District on 8/13/01, and on her second day on the job, Parents' Attorney sent a letter saying Student was going to attend Hyde School. Ms. Kelsall testified she made a visit to Hyde School to observe Student in class, and saw Student in Art and Math classes. Ms. Kelsall testified that when she saw Parents' IEP requests, she added a one to one aide to the offered IEP. Ms. Kelsall testified to the new special education system operated by the District.
Ms. Kelsall testified about her review of Student's case and the continuum of educational placements under the IDEA. When this was discussed at the Team meeting on June 28, 2002, the District offered placements at Learning Skills Academy and Brentwood School. Ms. Kelsall testified that neither Parents nor Ms. Young (a teacher from Hyde School) offered any objection or discussion with the Team about the proposed placement. Ms. Kelsall testified that her opinion was that Student could be successful at the local High School with the offered IEP. Ms. Kelsall testified that the offered IEP could not be implemented at Hyde School.
During cross-examination, Ms. Kelsall testified about grades Student received at Hyde School. Ms. Kelsall acknowledged Student received higher grades at Hyde than those received at the District's schools, but Ms. Kelsall testified that the Hyde School grading system was based on very different measurements than those in a typical public high school. Ms. Kelsall testified that Dr. Kemper's report states that Student has processing difficulties and needs special education instruction to remediate those specific deficits. The teaching at Hyde was described as "supportive teaching." Ms. Kelsall would not agree that supportive teaching would remediate Student's educational disability as contemplated under the IDEA. Under the requirements of the IDEA, Student needs to learn about the disability and to learn ways to work around the disability. After the testimony of Ms. Kelsall, the District's case was concluded. Parents' first witness, number seven in the due process hearing, was Student's Mother. Mother testified to the family history, and confirmed the biographical details already in the record and the agreed statement of facts.
Mother testified giving more details of Student's educational history than were reflected in the exhibits and the agreed statement of facts. Mother testified that Student was disorganizd, and despite the special education, he "still seemed to be struggling." Mother testified that Student did not seem to have a real understanding of what was expected. Mother remembered a lot of papers with "x" grades, rather than "c" grades. Based on the lack of understanding, Mother testified that she was very apprehensive about Student's promotion to the high school.
Mother testified that Student's eighth grade english teacher recommended keeping a close eye on Student, as "sometimes children get lost" in the high school. Mother testified she called Lisa (White) Long, the Special Education Director for the high school, to get weekly progress reports. Mother testified that Ms. Long directed her to the Guidance Counselor and no progress reports were received. (Further recitation of Mother's testimony on Student's ninth grade IEP experience will not further expand the knowledge of this case. The District admitted that the ninth grade year was a year of "some chaos.")
Mother testified that the personal problems related by the District witnesses were not factually as related by the District witnesses. Mother was a credible witness, and relating the facts and circumstances of her testimony here will not enhance an understanding of the case. See the Agreed Statement of Facts signed by the parties for more details. Mother testified that in March 2001, Diane Muse, Student's case manager called to tell her that Student was not attending classes. Mother testified she had received no calls from the school personnel from December to March. Parents first contacted Hyde School in mid-April, after a referral from someone in Mother's work. Because Student had an incident with property damage, and because Parents were shocked that this incident would occur, they looked at Hyde School. Because of the prior difficulties at the local high school, and the difficulties with the special education services, Parents presently have no faith that the future delivery of special education services will be successful. Mother testified that Student is successful at Hyde School, and gets good grades, and has good self-esteem. At Hyde School Student does not have to go to the "Retard Room" for special education services at Hyde School. Cross-examination was deferred.
At the close of the hearing, the Parents agreed that the last proposed IEP, at District Exhibits pages 270 through 284, and the academic goals and objectives is accepted, with the one exception. Parents' exception is that the resource room not be a part of the IEP.
Discussion for this decision is focused on two unique circumstances of this case. First, the District has agreed that the special education services provided to Student in the 2000-2001 school year were provided in a year which had some "chaos" in the special education department. This admission gives some credence to Parents' concerns about IEP services in any subsequent year. The second unique circumstance is that the only alternative special education proposal from Parents is a private residential school that, by agreement of the parties, delivers no special education as contemplated in the IDEA.
Student is a child, handicapped within the meaning of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1400, et seq., and New Hampshire RSA 186-C. Student is of average intelligence, and is coded with a specific learning disability. Student's disability is in the area of both "process and express(ion of) both oral and written information." The IDEA requires a District to offer a free, appropriate public education (FAPE) to any child coded with an educational disability. The parties here do not dispute Student's code, or the appropriateness of the offered IEP, with the exception of use of the Resource Room in the IEP. Based on the agreements of the parties in this case, the critical inquiry in here is "whether a proposed IEP is adequate and appropriate for a particular child at a given point in time." Burlington v. Department of Educ., 736 F.2d 773,788 (1st Cir. 1984).
This Student has a speech/language disability. Caselaw exists which provides important information on the duties of a school district with the provision of services to a learning disabled or a speech/language coded child. "The IDEA does not promise perfect solutions to the vexing problems posed by the existence of learing disabilities in children and adolescents. The Act sets more modest goals: it emphasizes an appropriate, rather than an optimal, IEP. Appropriateness and adequacy are terms of moderation. It follows that, although an IEP must afford some benefit to the handicapped child, the benefit conferred need not reach the highest attainable level or even the level needed to maximize the child's potential." Lenn v. Portland School Committee, 998 F.2d 1083, 1086 (1st Cir. 1993), citing Board of Educ. v. Rowley, 458 U.S. 176, 1998, and Roland M. v. Concord Sch, Comm., 910 F.2d 983, 992 (1st Cir. 1990).
Parents' requested solution here, under the IDEA, is to provide Student with educational success, as measured by good grades and a supportive educational atmosphere. While this may be positive for Student's self-esteem, Hyde School, by agreement, provides no special education for Student's unique speech/language deficits. The IDEA does not recognize the ability of Parents to demand alternative learning as something to be ordered at District expense. The purpose of the IDEA and special education is to provide appropriate directed services to remediate Student's unique educational disability. Here, there is no contest that Student needs special education to address deficits in the processing and expression of oral and written information. Dr. Kemper did not testify. Thus there is no information that the use of small classrooms and a supportive learning environment would provide any remediation of Student's disability. Parents are, apparently, willing to waive special education services to meet other needs they perceive in their child. This type of choice is a legitimate role parents do serve as they determine the appropriate education of their child. Under the IDEA however, parents may not compel the District to provide such undirected education at public expense.
Parents' additional complaint is that the delivery of special education services to Student in the Resource Room will bring further social problems. This problem has a solution. If Student returns to the local public school, the Team shall design a program and place for services other than a Resource Room (or whatever other name the room might be called at the time). The IEP offered by the Team was agreed to be appropriate (with the exception of the Resource Room). The testimony indicated that Student's speech/language disability is relatively mild. Testimony that Student's Woodcock Johnson III achievement testing results were all in the average range was not contested. Parents argued that the average range was too wide, but that argument was not accompanied by any testimony on the appropriate impact of that argument on Student's current educational program (IEP).
The relatively "mild" disability in this case is factually different than the "severe non-verbal learning disability" found in the Lenn case, supra at 1085. The Lenn case resulted in a finding that the offered IEP was appropriate, despite a more egregious factual history than the instant case. Parents have cited the case of Florence County School District v. Carter, 510 U.S. 7 (1993), and that case is found inappropriate to the facts of this case. The Carter case facts include parent's unilateral placement in a school that provided special education services found "appropriate" by the Court. The Carter case involved a learning disabled child, and the facts of that case indicate that the private school where the child was placed was a "school specializing in educating children with disabilities." Again, the combined emphasis of the IDEA is that appropriate special education services be delivered to an educationally disabled child. Here, Parents' argument that a nurturing and supportive educational environment be considered special education will not fit within reasonable parameters of the IDEA, such that the public school could be required to fund such placement.
Finally, the relatively "mild" learning disability in this case would typically be easily served by special education services in a local public school. The Parents' argument that prior failure of the District to deliver appropriate services is not found proven. The initial burden of persuasion is placed on the District. See: Day v. Radnor Township Sch. Dist., 1993 WL 34761 *9 (E.D.Pa 1993); Hirsch v. McKenzie, 1988 WL 49155 *3 (D.D.C. 1988). The District's case, presented by a preponderance of the evidence, is that the prior difficulties with Student's 2000-2001 IEP, have been corrected. The District witnesses testified under oath, that the offered services in the IEP were appropriate for Student's disability. Parents did not contest that testimony. The District witnesses testified under oath, that the local public school could deliver those services, and that testimony was credible, by a preponderance of the evidence.
Once the District has met its burden of persuasion, the burden of going forward may shift to the Parents to present sufficient proof that the offered services would be inappropriate. Parents' testimony, that because the prior year's special education services were lacking, any future offer of special education services would be inappropriate is not found proven by a preponderance of the evidence. No expert testimony was presented that would call into question the District's testimony that Student's special education needs would be met in the local public school setting. Parent's opinion testimony, that based on the prior failure of the District to deliver IEP services in the 2000-2001 school year is not credible in light of the offered testimony that the special education department had instituted major changes and accepted that the prior special education for this child was delivered "in chaos."
IV. Findings of Fact
A. Parents':
1. Granted: 1 to 7, 9 to 11, 13 to 24, 26 to 28, 30 to 32, 35, 39, 51 to 53, 55, 57 to 63, 66 to 74, 79, 80, 82, 83, 93, 94, 99, 102, 104, 106, 107, 108, 110, 111, 112, 114, 115, 117, 121, 122, 124, 125, 129, 132, 138, 140, 142, 143, 159, 160, 163, 168, 169, 171, 172, and 173;
2. Denied: 37, 75, 76, 78, 81, 86, 109, 123, 126, 127, 128, 130, 134, 144, 148 to 151, 161, 174, and 176;
3. Neither granted nor denied: (generally those requests for findings of fact are ruled neither granted nor denied because the statements are too argumentative for the testimony in the hearing) 8, 12, 25, 29, 33, 34, 36, 38, 40 to 50, 54, 56, 64, 65, 77, 84, 85, 87 to 92, 95 to 98, 100, 101, 103, 105, 113, 116, 118, 119, 120, 131, 133, 135136, 137, 139, 141, 145, 146, 147, 152 to 158, 162, 164 to 167, 170, and 175.
B. District's:
1. Granted: 1 to 21, 23, 24, and 26 to 29;
2. Denied: none;
3. Neither granted nor denied: 22 (Parents' issues were, IEP, distrust of prior efforts of District, impact of prior efforts on current IEP and placement), and 25.
V. Rulings of Law
A. Parents': Included in requests for findings of fact.
B. District's:
1. Granted: 1 to 5, 6 (with deletion of Resource Room and substitution of an alternative site for services), 7 to 18, 21 to 30, and 32;
2. Denied: None;
3. Neither granted nor denied: 19, 20, and 31.
VI. Order/Conclusion
Issue # 1. The District offered Student an appropriate IEP for the 2002-2003 school year, as stipulated by the Parents, and with the added proviso that the services to be offered in the Resource Room shall be conducted in another room, such as the library, or a conference room due to this Student's sensitivity to the local slang name for the Resource Room, unless otherwise agreed by the Parents.
Issue # 2. The offered IEP, with placement at the local public high school, is reasonably calculated to provide Student with appropriate eductional benefits in the least restrictive environment.
Issue # 3. There is insufficient evidence that the prior difficulties with services delivered in connection with Student's 2000-2001 IEP will prevent Student from receiving an appropriate education for the 2002-2003 school year. The District has presented sufficient proof, that despite earlier shortcomings in Student's IEP services in a prior school year, there is a new administration and new intention and ability to deliver appropriate special education to Student under an IEP which has been agreed by the parties is appropriate. The District is the prevailing party.
VII. Appeal Rights
If either party is aggrieved by the decision of the Hearing Officer as stated above, either party may appeal this decision to a court of appropriate jurisdiction. The Parent has the right to obtain a transcription of the proceedings from the Department of Education. The District shall notify the Commissioner of Education when either the District or Parent seeks judicial review of a decision.
VIII. Statement of Compliance with Ed 1128.22 (b)
If neither party appeals this decision to a court, then the District shall, within 90 days, privide to the office of legislation and hearings (Department of Education) and the Hearing Officer, a written report describing the implementation of this decision, and provide a copy to the Parents. If the Parents do not concur with the District's report, the Parent shall submit their iwn report to the office of legislation and hearings.
So Ordered
,
August 30, 2002
S. David Siff, Hearing Officer