ADMINISTRATIVE LAW JUDGE DECISION

Transcription

1 STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS _Student, by and through Parent_ Nos.C-DP-01-ADE C-DP-00-ADE C-DP-01-ADE Petitioners, C-DP-02-ADE C-DP-0-ADE -v- (Consolidated) Sierra Vista Unified School District No., Respondent. ADMINISTRATIVE LAW JUDGE DECISION HEARING: August -1, APPEARANCES: Parent _ appeared on behalf of herself and Student and was assisted by advocate David Beinke; attorney Denise Bainton, DECONCINI, McDoNALD, YETWIN & LACY, PC, appeared on behalf of the Sierra Vista Unified School District No. ("SVUSD"), accompanied by Kriss Hagerl, Assistant Superintendent, SVUSD. Certified Court Reporter Raynbo Silva of Raynbo Court Reporting, Ltd. was present and recorded the proceedings as the official record of the hearing. WITNESSES: Kriss Hagerl, Assistant Superintendent, SVUSD David Lujan, IT Supervisor, SVUSD Fred Martin, IT Computer Technician, SVUSD Lori Garcia, Special Education Teacher, SVUSD Juan Carlos Villafane, Paraprofessional, SVUSD Lisa Luick, RN, School Nurse, SVUSD Mark Cruz, Special Education Teacher, SVUSD Chris Albrecht, Physical Therapist, SVUSD Karen Gunn, Occupational Therapist, SVUSD Student Mother, ADMINISTRATIVE LAW JUDGE: Eric A. Bryant Parent brings this due process action, on behalf of Student, challenging the implementation of an individualized educational program (IEP) by Respondent School District. The law governing these proceedings is the Individuals with Disabilities Education Act ("IDEA"), United States Code (U.S.C.) 0-2 (as re- Office of Administrative Hearings 0 West Washington, Suite 1 Phoenix, Arizona 00 (02) 2-2

2 ' authorized and amended in 0),' and its implementing regulations, Code of Federal Regulations (C.F.R.) Part 00, as well as the Arizona Special Education statutes, Arizona Revised Statutes (AR.S.) 1-1 through 1-, and implementing rules, Arizona Administrative Code (AAC.) R-2-01 through R Procedural History Petitioners filed the initial due process complaint on March,. Petitioners then amended the complaint numerous times and the timelines for response and resolution were reset each time. After the final amendment, eight issues were presented by the amended complaint: (1) refusal to provide training in use of Student's palm pilot (timer); (2) change in IEP without evaluation of Student; () failure to maintain IEP equipment (timer); () denial of 1 minutes of IEP training four times per week; () request for a "Neuropsych evaluation" and "an lee for O&M"; () failure to provide IEP nursing services; () denial of a qualified teacher for first period class (:2 to :00 am every day); and. () failure to provide nursing services during summer school. 1 All of these complaints relate to a May 1, 0 IEP and the many subsequent addendums to it. After a telephonic pre-hearing conference on July,, issues () and () had been resolved; the remaining six issues went forward to hearing. 1 The parties presented testimony and Exhibits at a formal evidentiary hearing held on August and 1, in Sierra Vista, Arizona. The parties presented testimony from the witnesses listed above and offered into evidence Petitioners' Exhibits P1 through P and Respondent School District's Exhibits R1 through R1, all 2 of which were admitted into the record By Public Law -, known as the "Individuals with Disabilities Education Improvement Act of 0," IDEA 0 became effective on July 1, 0. 2 It is noted that these rules have not yet been published by the Arizona Secretary of State. Although many of the amendments were styled as separate complaints, they concerned Student and the same IEP as the initial complaint. Therefore, in order to preserve the effect of the statutory amendment provisions in the IDEA, this tribunal treated the separate complaints as requests to amend the initial complaint. The list of issues above was drafted by the Administrative Law Judge prior to the pre-hearing conference and is based on the complaint and amendments. Petitioners did not object to this statement of the issues, although they were given an opportunity to do so. Therefore, the issues on the list, and only those issues, were the subject of the hearing and will be addressed in this decision. 2

3 1 The Administrative Law Judge has considered the entire record, including the testimony and exhibits, and now makes the following Findings of Fact, Conclusions of Law, and Order finding no violation of the IDEA. FINDINGS OF FACT 1. Student is a _ear-old with multiple disabilities and an IEP. Student is currently in the _ grade. This complaint concems the IEP and events from the prior school year 0-, but student's condition and abilities have not substantially changed since then. Student also has visual impairments. Student has been, and is, educated fully within the general education environment and with the general education curriculum, but with the addition of supports and senices to meet needs. Student's intellectual abilities are within the average range reminded to do these things. Student's aide assists Student during process by obsening Student and providing verbal cues and reminders.. Student needs to be. In May 0, the relevant IEP was created by Student's IEP team. It included a full-time paraprofessional aide to assist Student independent. The IEP noted that Student could assistance from the aide. Student performs that task in in becoming more with verbal cueing Mother procured a watch with an alarm for The Administrative Law Judge has read and considered each admitted Exhibit (and watched each DVD exhibit), even if not mentioned in this Decision. The Administrative Law Judge has also considered the testimony of every witness called, even if not mentioned in this Decision. See R, MET report from September 0. Exhibit R2.

4 Student to use to remember the Mother also went over the process with the nurse and aide. The aide was to be in Student to observe Student and cue Student if necessary. The aide was to contact the nurse if an "emergency" occurred.. In September 0, nursing services were added to Student's IEP Also in September 0, the IEP team began to look at the issue of a timer for Student to use to cue when~as to occur and. In late September 0, the team noted that Student was independent with regard to The team also decided to add specially designed instruction for workplace skills and transition life skills in the amount of 0 minutes per day.". The evidence shows that the schedule for the school began at :0 AM with a time called "Wildcat Read." Based on the testimony at hearing, this time was an independent study time in which students could read silently to themselves or catch up on homework in preparation for the school day. This time lasted until the bell rang at : AM. First period classes then started at :1 AM.. Student used the Wildcat Read time to prepare for the day too. This was the time tfiat the team agreed ~ould be used. Because this required I parties agreed that it should be done outside Student's Wildcat Read classroom. Thus, these activities were done in an empty classroom next door to Student's Wildcat Read classroom. Student was assisted with these tasks by the aide and the Wildcat Read teacher was in the classroom next door. Some of the> days there was enough time to take Student_ 2 ~ver to the Wildcat Read classroom. But many days Student stayed in the room next door until first period class began, as that was the room in which Student had first period. 2 2 Exhibit R. Exhibit R. 0 Exhibit R. " /d.

5 Student's first period class was the workplace transition and life skills time in Student's IEP. A special education teacher worked with Student during that time on various skills such as learning to working with a laptop computer and its software. Student's special education teacher credibly testified that she usually came in to the classroom at around :00 AM, although sometimes she did not make it until :1 AM. First period lasted from :1 AM until :0 AM, fifty minutes. During the last portion of that class, Student would second period with the rest of the school (Student had reading class at that time) at : AM.. In early October, after the parties went to mediation, several provisions were added to Student's IEP. One of those provisions was that the parties would research "a functional timer" for Student to use to alert Student to times for The documentation again notes that Student was able to selfbut the parties agreed that some system for helping Student remember the schedule was needed. 1. In November 0, upon Respondent School District's recommendation, Student began using a Palm Pilot PDA (Personal Digital Assistant) device that would set off a small alarm for a reminder. The Palm Pilot was owned by Respondent School District. Respondent School District agreed to train Student and Mother as to how to set alarms. Credible evidence shows that the training was given during Student's first period life skills class. 1. Student was allowed to take the Palm Pilot home and use it at home. Throughout the school year ther was periodic trouble with the Palm Pilot and Respondent School District addressed those problems in a timely manner, maintaining the usefulness of the Palm Pilot at a timer. At some point in early, Respondent School District acquired another Palm Pilot and began rotating the use of them so that whole one was being used the other was charging. During those times when there was The bell schedule for the school and Student's personal schedule are documented at Exhibit R1. 1 Exhibit R. 1 Exhibit R.

6 a low battery or maintenance issue with the Palm Pilot, a different timer was used to help Student. 1. As noted above,.student was to receive nursing services At hearing, Respondent School District next door on the same campus) was outside the_ under the observation and verbal cueing of the aide. Respondent School District admitted that there were a few days during the year when there was no nurse available and the school principal acted in place of the nurse.. Although Respondent School District may have failed to follow the letter of the IEP by not having a nurse on site the evidence shows that any failures were minor in nature and did not harm Student's education or put Student at greater risk. 1. There is no evidence that Respondent School District changed the IEP in violation of the IDEA by failing to obtain a required evaluation. CONCLUSIONS OF LAW 1. A parent who requests a due process hearing alleging non-compliance with the IDEA must bear the burden of proving that claim. The standard of proof is "preponderance of the evidence," meaning evidence showing that a particular fact is "more probable than not.,,1 Therefore, Petitioners bear the burden of proving by a preponderance of evidence that Respondent School District has failed to provide FAPE by failing to properly implement Student's 0- IEP. Petitioners have not met this burden. 2. In Van Duyn v. Baker School District, the Ninth Circuit U. S. Court of Appeals recently addressed the issue of a school district's failure to implement provisions of an 1 Exhibit R. Schaffer v. Weast, U.S., S. Cl. 2 (0). Petitioners' argument that the burden of proof is shifted in this case is without merit and is hereby summarily rejected. 1 Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 0 U.S. 02,, S. Cl., (1) quoting In re Winship, U.S., 1-2 (); see also Culpepper v. State, Ariz. 1,, 0 P.2d 0, 1 (Cl. App. ); In the Matter ofthe Appeal in Maricopa County Juvenile Action No. J-, Ariz., 2, P.2d, ().

7 IEP exactly as stated in the IEP. The court held that "when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child's IEP.,,' The court concluded that a material failure occurs "when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.,,. Here, the evidence does not show a material failure to implement the IEP, even if there were minor discrepancies. Respondent School District provided training for the Palm Pilot and reasonably maintained it. Respondent School District provided the required fifty minutes of life skills training each day, and even if the teacher happened to be late a time or two, the lost time was minimal. The proper teachers were involved in Student's education.. The evidence does not show that Respondent School District materially failed to provide the required nursing services.. The evidence does not show a violation of the IDEA. ORDER Based on the findings and conclusions above, IT IS HEREBY ORDERED that the relief requested in the amended due process complaint be denied. 1 2 Done this 2 nd day of September. OFFICE a OF ADMINISTR Eric A. Bryant Administrative ARINGS F.d ( th Cir. 0). 1 Id. at 1. Id. at 2. Indeed, Respondent School District went beyond its duty by letting Student use the Palm Pilot at home. Respondelit School District was under no obligation to allow use of the Palm Pilot at home.

8 1 RIGHT TO SEEK JUDICIAL REVIEW Pursuant to U.S.C. (i) and A.R.S. 1-(E)(), this Decision and Order is the final decision at the administrative level. Furthermore, any party aggrieved by the findings and decisions made herein has the right to bring a civil action, with respect to the complaint presented, in any State court of competent jurisdiction or in a district court of the United States. Any action forjudicial review must be filed within 0 days of the date of the Decision or, if the State has an explicit time limitation for bringing this type of action, in such time as the State law allows. corjarit1y electronic mail and regular mail thi Yldia~ of September 1 0, to: electronic mail and regular mail of September, to: Denise M. Bainton Deconcini, McDonald, Yetwin & Lacy, PC E. Broadway Boulevard, Suite 0 Tucson, AZ -00 Attorneys for Respondent School District dbainton@dmyl.com. () Copy mailed by interdepartmental r:,ail thi~_ ay of September, to: Colette Chapman, Exceptional Student Services Arizona of Education ATTN 2