THE STATE OF NEW HAMPSHIRE
DEPARTMENT OF EDUCATION
IDPH # FY-04-04-081 / Timberlane Regional School District
HEARING OFFICER DECISION
I. Introduction
This matter was scheduled for a due process hearing as a result of a request from Timberlane Regional School District (hereinafter "District"). The request is dated 4/15/04, and was received at the Department of Education on that date. The matter was scheduled for prehearing conference on May 7, 2004 by Department of Education letter dated 4/19/04. On May 5, 2004, Parent called the Hearing Officer to demand a continuance of the prehearing due to a medical appointment for Student on the day of the prehearing conference. Parent followed the telephonic request for a continuance with a written request. Parent declined to follow the Department procedures and the suggestions of the hearing officer for a continuance, in that Parent declined to contact the District and ask their view of the continuance request and Parent declined to offer an alternative dates for the prehearing conference and hearing. Parent's request for continuance to an indefinite date was denied.
Parent's request for a continuance also contained a request for due process hearing. Parent's request is stated as: "Dismiss the District's request for the Due process hearing and schedule the Parenst (sic) 3 rd due process hearing, about the IEP and related issues, including compensatory education, and independent evakuaryion (sic) at public expense." Other requests and statements contained in the continuance request were not considered relevant to the status of the case as parents declined to appear and explain their requests and statements further. The due process hearing was scheduled for May 20 and 21, 2004. The District was encouraged to have the District witnesses file affidavits of proposed testimony. The District did so. No procedural violations were noticed by Parent. Parent did not appear for the hearing. The due process hearing was heard on May 20, 2004. The District presented its testimony by affidavit on the limited issue of the appropriateness of the offered IEP. Parents offered no testimony on their issues. The District did not request additional time for submission of findings of fact or rulings of law.
Procedural Violations Parent made no allegations of procedural violations, and none were found.
Discussion
The burden of proof is placed on the party requesting the due process hearing. The District requested the due process hearing and presented its case first. The District witness, Edwina Lovett appeared for the hearing. The District presented affidavits of certain witnesses. The District was asked if the other Affiants were available for testimony, and the response was, "yes." Attorney McCormack was asked to make an offer of proof. Attorney McCormack reviewed the affidavits of Jean Banville and Susan Fichera, both employed by the District as school nurses. Both ladies are Registered Nurses. Both ladies have frequent contact with Student in the Nurse's Office doing review of Student's diabetic issues and monitoring Student's blood sugar levels. The ladies monitor Student's Health Plan. The ladies had a conversation with Dr. Casalla about Student's health and welfare. As stated in the affidavits: On April 1, 2004, I spoke with Dr. Casalla on the telephone. He indicated he would write a follow up. However, no letter has been received. There was extensive discussion during this telephone conversation about (Student's) health concerns.
At the April meeting, I reported on my telephone conversation with Dr. Casalla. (SD Exhibit 17, p. 155). I asked Dr. Casalla if there had been any emergencies with (Student). He was not aware of any. I also asked during the telephone conversation if (Student) was too medically fragile to be in school. He responded that (Student) should be in school. Dr. Casalla stated that we should follow the most recent medical orders. (SD Exhibit 62, p. 60)…. At the time of the April meeting, I did not see (Student) experiencing any unusual amount of stress. I have never observed in school the kind of events or blood sugar counts reported to have occurred at home…. When I have inquired of (Student) whether (Student) was ill when (Student) has been absent, (Student) has replied, "No." (Affidavit of Jean Banville).
According to both affidavits, the Nursing Plan and Health Plan in Student's IEP is appropriate for Student's medical needs as disclosed in the records and by the conversation with Dr. Casalla. According to the affidavits, Nurse Banville attempted to talk with Parent about Parent's specific concerns at the April IEP meeting, Parent was talking about other things than specific changes to Student's IEP health or nursing plan. Nurse Fichera, at paragraph 6 of her affidavit, states: "The health plan provided to (Student) in school is appropriate. Oversight is daily and continuous."
Attorney McCormack reviewed the affidavit of Kathleen Crotts. Ms. Crotts is the Case Manager and a special education teacher at the District's middle school. Ms. Crotts has frequent contact with Student, generally on a daily basis providing special education and case management services to Student. Ms. Crotts' affidavit states: In my opinion, the IEP is appropriate for (Student) based on my testing and my work with (Student) as student’s case manager and special education teacher for the 2003-2004 school year. It is appropriate to change (Student's) IEP from the prior year so that (Student) receives language arts in the mainstream with support. It is appropriate because the progress (Student) has made during the duration of the prior IEP. Compared to when I first met (Student) in September 2003, I have observed the following changes: A. (Student) is more socially outgoing. B. (Student) has more interaction with … peers. C. The testing of Ms. Daily, the parents' independent evaluator, and my testing show improvement in all academic areas except for math, which had not regressed. When (Student) is consistently in school, (Student) does very well functioning independently and with task completion. This is not so when (Student) is not consistently in school.
Attorney McCormack reviewed the affidavit of Edwina Lovett. Ms. Lovett is the Assistant Director of Pupil Personnel Services for the District. Ms. Lovett created a chronology found at SD Exhibit 1, p. 1-5. Ms. Lovett offered information on the efforts of the District to meet with Parents and review their legitimate educational and medical concerns for Student. Ms. Lovett testified that prior to the meeting on 4/5/04, she sent a draft IEP to Parents. The cover letter sent with the draft IEP was returned to Ms. Lovett with Parent's writing thereon stating, "We reject your IEP and your placement." See Ms. Lovett's affidavit at paragraphs 11 & 12. Parents appeared at the 4/5/04 meeting and refused to discuss anything but out of district placement. The District has produced a transcript of the 4/5/04 meeting and the transcript appears in the exhibits at SD Exhibit 17, pp. 135-177. Ms. Lovett was asked if there is any information on Parents' specific requests to change the offered IEP. The answer was none was known. Ms. Lovett testified the District's Team offered Student extended school year services. The District asked to amend the SD Exhibits relative to the IEP. The request was to fill in the dates of the offered IEP. The request was to add the dates of the start of the IEP as 4/5/04 to 6/17/04 and 8/31/04 to 4/4/05. This request to amend the IEP is granted.
Attorney McCormack reviewed the affidavit of Dr. John Secor, a School Psychologist who has experience dealing with "non-verbal learning disorders." Dr. Secor's experience with this learning problem and with Student's case has led to certain recommendations for Student's offered, draft IEP. Dr. Secor made specific recommendations as a part of Student's Team. Dr. Secor, in the affadivit, states that Student's IEP is appropriate for student’s needs and the District's public middle school is the appropriate educational setting for Student and the present level of needs.
Student is a qualified individual under the Individuals with Disabilities The offered IEP, at S D Education Act (hereinafter "IDEA"). 20 U.S.C. Sec. 1400, et seq. The purpose of the IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs. 20 U.S.C. Sec 1400(d)(1)(A). The fundamental effort stated in both statutory and caselaw for qualified disabled children is the development and implementation of an individualized educational program (hereinafter "IEP"). See: Honig v. Doe, 484 U.S. 305, 311-12 (1988). The IEP must contain various elements specified by statute. 20 U.S.C. Sec. 1414(d)(1)(A). The IEP must be revised at least annually. 20 U.S.C. Sec. 1414(d)(4)(A). The IDEA provides children and their parents various procedural safeguards, including the right to be a part of the team that develops the IEP. 20 U.S.C. 1414(d)(1)(B) and Sec. 1415(b).
The undisputed elements of this case show that Parents were given many opportunities to participate in the IEP process. The undisputed elements of this case show that Parents took the opportunity to participate in the IEP process and talk only about an out of district placement. Parents made no claims of procedural irregularities, and none were found. The District attempted on numerous occasions to engage Parents in the development of a new IEP and determine Parents view of the appropriate IEP. Student's last IEP expired in January, 2004. According to the evidence presented, Parents were provided an opportunity to participate, and elected to speak only to their demand that Student be placed out of district, at a specialized private school.
As to the adequacy of the IEP in evidence, the IEP is considered appropriate if it "provides instruction and support services which are reasonably calculated to confer educational benefits to the student" in the least restrictive environment. See: Hampton School District v. Dobrowolski, 976 F.2d 48, 50 (1 st Cir. 1992). The Team offered the IEP it deemed reasonably calculated to provide Student educational benefits to the Student. See Affidavits of John Secor at paragraph s 3, 4, 5, 6, 7, 8, and 9; Affidavit of Edwina Lovett at paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 20, 21, and 22; Affidavit of Jean Banville at paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, and 15; Affidavit of Susan Fichera at paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13; Affidavit of Kathleen Crotts at paragraphs 1, 4, 5, 6, 7, 8, 9, 10, and 11. Ms. Lovett also testified that Parents had presented no information that mandated any changes in the draft IEP found at SD Exhibits pages 74 to 88.
Parents stated that they had, or were arranging independent testing of Student, but no independent or credible information was presented that Student's present levels of performance are incorrect or that different instruction is mandated. "An IEP can provide FAPE even though it 'may not be the only appropriate choice, or the choice of certain selected experts, or the child's parents' first choice, or even the best choice.'" (citing: G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991), quoted in Amann v. Stow Sch. Sys., 982 F.2d 644, 651 (1 st Cir. 1992)).
The offered draft IEP, with amended dates as stated above, under the evidence presented is reasonably calculated to provide Student "instruction and support services sufficient 'to permit the child to benefit educationally from that instruction.'" Roland M v. Concord Sch. Comm., 910 F.2d 983, 994 (1 st Cir. 1990), quoting Board of Educ. v. Rowley, 458 U.S. 176, 203 (1982). See also Galina C. v. Shaker Reg. Sch. Dist., U.S.District Court, New Hampshire, case # 2004 DNH 058, 3/30/04 at page 9. Parents' written protests of inadequacy of the IEP and placement offered by the District are not backed by credible argument or facts or expert testimony/opinion presented to the Team. Parents have some obligation to present credible facts and argument to demand a result such as an out of district placement. See: Independent School District No. 432 v. J.H., 8 F.Supp 2d 1166, 1175-76 (D.Minn. 1998). Parents' "counterclaim" for due process hearing on the issues of "the IEP and related issues, including compensatory education, and independent evaluation at public expense" is dismissed for lack of information and prosecution of the case presented to the Team.
Student has been without an IEP for too many months. Student's ongoing education must be governed by the IDEA provisions, with or without Parent's cooperation. Districts have an obligation to attempt to engage a parent in the IEP development process. See 34 CFR Sec. 300.501(b)(1). The District has attempted to engage Parents' participation in the IEP development process, and Student's education must move on, with or without the participation of Parents.
Findings of Fact
• Parents' Requests for Findings of Fact: None presented.
B. District's Requested Findings of Fact: The District asked that the prior
• granted findings of fact from cases IDPH # 04-11-049 and # 04-01-065 be reaffirmed, and that request is granted.
Rulings of Law
• Parents' Requests for Rulings of Law: None presented.
• District's Requests for Rulings of Law: The District asked that the prior granted rulings of law from case IDPH # 04-11-049 be reaffirmed, and that request is granted.
Order/Conclusion
The District's request for due process hearing, at paragraph 5 of the LOCAL EDUCATION AGENCY (LEA) FORM TO REQUEST AN ADMINISTRATIVE DUE PROCESS HEARING is granted. The draft IEP at SD Exhibits page 74 to 88, with the dates stated above, is found appropriate and the placement at the District's middle school is appropriate. Parents' request for a due process hearing on the IEP, placement, compensatory education and an independent evaluation at public expense is denied for lack of such request to the Team. The District is the prevailing party.
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 party, Parent or District, seeks a judicial review of the decision.
Statement of Compliance with Ed 1128.22(b)
If neither party appeals the decision of the Hearing Officer to a court, then the LEA shall, within 90 days, provide to the office of legislation and hearings and the hearing officer, a written report describing the implementation of the hearing officer's decision and provide a copy of the report to the opposing party. If the opposing party does not concur with the LEA's report, he or she shall submit his or her own report to the office of legislation and hearings.
So Ordered,
May 21, 2004
S. David Siff, Hearing Officer