Seattle School District, Special Education Cause No 99-90

Transcription

1 February 17,2000 STATE OF WASHINGTON OFFICE OF ADMlNl.STRATlVE HEARINGS One Union Square Suife Universify Slreef Seaffle WA Charlotte Cassady Attorney at Law PO Box 2877 Vashon. WA Brenda J. Little Deputy General Counsel Seattle School District 81 5 Fourth Ave N Seattle, WA RE Seattle School District, Special Education Cause No Dear Parties Enclosed please find a copy of the Order of Dismissal in the above referenced matter This Order does not preclude either party from requesting a new due process hearing should further disputes arise. The entry of this Order completes this matter. The file (including all submitted documents) will be sent to the Legal Services ofice of the Office of Superintendent of Public Instruction (OSPI) for record keeping If you have any questions please contact the Legal Services at OSPl at (360) Sincerely, h-@& JL-G William L Lemke Administrative Law Judge c Legal Services, OSPl OAH ALJ Hearing Coordinator FAX (206) t"j

2 STATE OF WASHINGTON OFFICE OF ADMINISTRATIVE HEARINGS FOR THE SllPERlNTENDENT OF PUBLIC INSTRUCTION IN THE MATTER OF SEATTLE SCHOOL DISTRICT SPECIAL EDUCATION CAUSE NOS ORDER OF DISMISSAL - -1 Several prehearing conferences concerning the above-entitled matter were held before Administrative Law Judge William Lemke in Seattle, Washington including prehearing conferences held September 23, 1999 and November 19, 1999, a prehearinghotion conference held on January 4,2000, and a motionlsettlement conference held on February 1,2000. Charlotte Cassady, Attorney at Law, appeared on behalf of the parents and the student. Brenda J. Little, Deputy General Counsel, appeared on behalf of Seattle School District ("District"). The Administrative Law Judge having heard argument for both parties, hereby enters the following: Procedural Histow The above parties and counsel participated in a due process hearing in Seattle School District Special Cause Number in July 1999 before an administrative law judgewith the Office of Administrative Hearings in Seattle, Washington. The administrative law judge issued findings of fact and conclusions of law and an order on August He ruled, among fourteen other requirements, that the district should retain an autism specialist and have the student participate in a social skills class. The exact language of the August order provided that: (1) An autism specialist shall be made available for the first month to consult with the student's teachers, the aide, and the student for one hour a day, five days a week, for a total of twenty hours. After the first month, the autism specialist shall be available to consult for one and one half-hours every week; and (2) The student shall participate in a social skills group or friendship group on a weekly basis. It is believed this can be coordinated with the high school counseling department. Similar therapy groups have been organized for students of divorced parents, as well as students with substance abuse problems, and for children new to the schools. The District received the order from the Office of Administrative Hearings on August 23,,1999. The parties requested clarification of portions of the decision not at issue herein and the administrative law judge issued an order regarding the motions for reconsideration on September 20, School started on September 7, The parents filed the due process hearing at issue herein on September 15, 1999 The parents alleged that no element of the relief ORDER OF DISMISSAL - 7

3 ordered in Seattle School District Special Cause Number99-34 was in place by September 7, 1999, the first day of school at Roosevelt High School. As a remedy, the parents sought compensatory education of four hours of tutoring for every day school was session at Roosevelt. At the initial prehearing conference held in this matter on September 23, 1999 District counsel stipulated that the student was entitled to 40 hours of compensatory education as requested by the parents with the understanding that form of the Compensatory education would be reviewed and determined as part of the student's IEP. The parents' attorney requested and the undersigned agreed to schedule a second prehearing conference to determine if the parent's requested relief had been granted. A second conference was held on November 19, Parties agreed that the Compensatory education initially offered by the District would be provided and agreed upon at a pending IEP meeting. The parents' attorney indicated that the parents still had some concerns about the implementation of the IEP and wanted to file an amended request for hearing indicating a request for additional compensatory education. Parties agreed that the amended request could be filed by mid-december. Parties further agreed to hearing dates of February 8 and 9, 2000 with exchange of witness lists and proposed exhibits on February.1,2000 and that the 45 day requirement would be extended until 30 days after the reqord in this matter was formally closed. On November30,1999 the parties and IEP team agreed to and signed the student's IEP for the school year. The District notified the undersigned administrative law judge that it had incorporated 40 hours of tutoring at Seattle Learning Center into the student's IEP. On December 16, 1999, the parents filed their amended due process hearing request to include additional hours of compensatory education. The parents also requested an independent assessment and the District requested a due process hearing to consider this issue which was docketed as Seattle School District Special Education Cause Number On December 20, 1999, the District moved to dismiss the parents' amended due process hearing request. The undersigned scheduled a conference on January 4,2000 to allow parties to present arguments on the District's motion to dismiss and to discuss consolidation of Seattle School District Special Education Cause Number with this case and other relief sought by parties. At the conference parties argued their positions concerning dismissal of all or part of the parent's amended hearing request. The undersigned ruled that School District Special Education Cause Number would be consolidated for hearing with this case ORDER OF DISMISSAL -. 2

4 and ruled that the parents' request to reopen Seattle School District Special Cause Number would be denied. By letter ruling dated January 13, 2000 the undersigned dismissed the portions of the parents' amended due process hearing request relating to additional compensatory education and held that the remaining issue of whether a social skills class was necessary for the student to receive a free appropriate education would proceed to hearing as previously scheduled. The undersigned indicated he would provide this document as an appealable order of his ruling on the dismissal of the parent's request for additional compensatory education. By letter dated January 24,2000 parents' attorney requested to further amend the parents' hearing request to indicate that as an alternative to a social skills class additional instruction by a speech and language pathologist. The. undesigned scheduled a conference for February 1, 2000 to discuss these issues. At that conference parties agreed that the parents had withdrawn their request for an independent assessment and that the District was withdrawing it's request for hearing for Seattle School District Special Education Cause Number The undersigned accordingly entered an Order of Dismissal for Seattle School District Special Education Cause Number on February 2, District counsel indicated that she would recommend inclusion of additional instruction by a speech and language pathologist to be determined at an IEP meeting scheduled with parties for February 4, The undersigned granted the parents' motion to amend the due process hearing request, extended thedate for exchange of documents to February.?, 2000, and indicated that the scheduled hearing dates of February 8 and 9, 2000 would remain as scheduled pending a determination of whether the remaining issue in this case was resolved. On February 4, 2000 the student's IEP team met and agreed to the counseling services requested by the parents. By telephone conference with the undersigned, counsel requested the hearing dates of February 8 and 9, 2000 be struck. By letter of February 14, 2000 parents' attorney withdrew the remaining issue for hearing indicting it was resolved. ISSUE PRESENTED BY THE DISTRICT'S MOTION TO DISMISS 1 I Whether the District's delay in obtaining an autism expenconsultant as indicated as an element of the student's interim program in the decision in Special Education Cause No and the district's failure to provide the student with the opportunity to participate in a social skills group constitutes a denial of a free appropriate public education, which requires an award of compensatory education. ORDER OF DISMISSAL -- 3

5 FINDINGS OF FACT RELATED TO THE DISTRICT'S MOTION TO DISMISS PARENTS' AMENDED REQUEST FOR ADDITIONAL COMPENSATORY EDUCATION..1. The student is- years old and resides with his parents in the District. The student has qualified for specialized instruction and related aids and sewices under two different categories: health impaired and autism. The student is currently attending Roosevelt High School. 2. The above parties and counsel participated in a due process hearing in Seattle School District Special Cause Number in July 1999 before an administrative law judge with the Office of Administrative Hearings in Seattle, Washington. The administrative law judge issued findings of fact and conclusions of law and an order on August 20,,1999. He ruled, among fourteen other requirements, that the district should retain an autism specialist and have the student participate in a social skills class. The exact language of the August 20, 1999 order provided that: (1) An autism specialist shall be made available for the first month to consult with the student's teachers, the aide, and the student for one hour a day, five days a week, for a total of twenty hours. After the first month, the autism specialist shall be available to consult for one and one half-hours every week; and (2) The student shall participate in a social skills group or friendship group on a weekly basis. It is believed this can be coordinated with the high school counseling department. Similar therapy groups have been organized for students of divorced parents, as well as students with substance abuse problems, and forchildren new to the schools. The District received the order from the Office of Administrative Hearings on August 23, The parties requested clarification of portions of the decision not at issue herein and the administrative law judge issued an order regarding the motions for reconsideration on September 20, The District was unable to immediately provide the student with an aide and the student did not start school until September 20,1999, two weeks after the start of school. When the student returned to school it was with an aide and the District proceeded to implement the other elements outlined in the order for interim placement. 4 The parents filed the involved due process hearing request on September 15,1999 and as a remedy, the parents sought compensatory education of four hours of tutoring for every day school was in session at Roosevelt. 5. On September23, 1999, during a prehearing conference, the District stipulated that the child was entitled to forty hours of compensatory education as requested by the parents and that the form of compensatory education would be decided by the IEP team. On November 30,1999 the parties and IEP team agreed to and signed the student's IEP for the school year On November 30, 1999, the District notified the ORDER OF OISMISSAL -- 4

6 undersigned administrative law judge that it had incorporated 40 hours of tutoring at Seattle Learning Center into the student's IEP. 6. After the parents filed this due process request, the District continued to meet with the parents in approximately20 or more hours of pre-iep meetings. During this period, the District proposed an autism specialist as its choice for the autism specialist ordered in cause number The parents Fejected the District's choice and recommended John Whitehead as their choice. The District entered into a contractual arrangement with Mr. Whitehead on December 9, At a November 1 9Ih prehearing conference, the parents' attorney indicated that the parents would not to withdraw their due process hearing request on the basis that the District fulfilled their request for 40 hours of tutoring as compensatory education. Rather than withdrawing their hearing request, the parents indicated that they had some concerns with the student's educational program and requested to file an amended hearing request for additional compensatory education. 8. During this period, the District continued to meet with the parents in the IEP meetings to discuss and renegotiate specific items perthe interim placement decision. The district believed that it was more appropriate to deliver social skills in a classroom setting and it enlisted the services of two of the student's teachers to teach the student these skills 9. During the District's consultation sessions with Mr. Whitehead the District discussed the feasibility and the appropriateness of a social skills class for the student and whether he could recommend other options because there were no other students at Roosevelt High School with similar needs to this studentwho could participate in a weekly social skills class. 10. Parties completed and signed an IEP for student for the school year on November 30, CONCLUSIONS OF LAW 1 The Office of Administrative Hearings has jurisdiction over the parties and subject matter of this action for the Superintendent of Public Instruction as authorized by 20 tj.s C Section 1401 et. seq. (Individuals with Disabilities Education Act (IDEA)), Chapter 28A 155 RCW, Chapter RCW, Chapter 34 f2 RCW, and the regulations promulgated thereunder, including 34 CFR 300 u, and Chapter WAC. 2 The Individuals with Disabilities Education Act (IDEA) (formerly the Education for All Handicapped Children Act) and its implementing regulations provide federal money to ORDER OF DISMISSAL _- 5

7 assist state and local agencies in educating children with disabilities, and conditions strch funding upon a state's compliance with extensive goals and procedures. In Hendrick Hudson District Board of Education v. Rowley, 458 U S 176, 102 S.Ct 3034 (1982), the Supreme Court established both a procedural and a substantive test to evaluate a state's compliance with the Act, as follows: First, has the state complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the state has complied with the obligations imposed by Congress and the courts can require no more. 103 S Ct. at Clearly, a "free appropriate public education" consists of both the procedural and substantive requirements of IDEA (formerly EHA). The court articulated the fotlowing standard for determining the appropriateness of special education services: According to the definitions contained in the (Education for All Handicapped Children Act) a 'free appropriate public education' consists of education instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the state's educational standards, approximate the grade levels used in the state's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items of the definitional checklist are satisfied. the child is receiving a 'free appropriate public education' as defined by the Act. 103 S. Ct. at 3041, Equitable remedies of compensatory education may be awarded in cases where a child has been denied a free appropriate public education (FAPE). Burlinaton Sch. Ct. v. Massachusetts Dept. of Ed., 471 U.S. 359,370-71,105 S.U. 1996, (1985). See also, Meiner v. Missouri, 800 F.2d 749 (8Ih Cir. 1986). 5 The majority of the courts that have awarded compensatory education, however, have. required either egregious conduct by the school district or a gross prdcedural violation. E,.g. Carlisle Area School v. Scott P., 62 F.3'd at ; Garro v. State of &. 23 F,3rd 734 (Znd Cir.,1994); Maw C. v. Wheaton, 916 F.2d 69 (Znd Cir,,7990). 6. Neither egregious conduct nor gross procedural violation was involved in the District's failure to implement or timely implement the programs invotved in the parents' request for additional compensatory education. The delay in selecting and obtaining the ORDER OF DISMISSAL -- 6

8 services of an autism specialisffexpert occurred because of the necessary and to be expected negotiations and discussion between the District and parents over selection of the consultant as anticipated by the administrative law judge's order. The delay in implementing the social skills class occurred because of legitimate educational differences between the District and the parents over how best to implement the order. 7. The delay in the implementation of the autism consulting services and the social skills group have not resulted in a denial of FAPE to the student and loss of educational services when viewed in light of the implementation of the student's total interim educational program. Accordingly the student is not entitled to additional compensatory education and that portion of the parents' amended request for a due process hearing is dismissed. 8. The remaining issue regarding inclusion of a social skills group in the student's IEP has now been resolved by settlement and the parents' appeal with regard to that issue is dismissed. It is order that: ORUER 1. The parents' amended request for a due process hearing as it relates to the additional compensatory education over and beyond the 40 hours already awarded is denied and dismissed. 2. The remaining issue regarding inclusian of a social skills group in the student's IEP has now been resolved by settlement and the parents' appeal with regard to that issue is dismissed. Dated at Seattle, Washington this 17Ih day of February, APPEAL RIGHTS Administrative Law Judge Office of Administrative Hearings This is a final agency decision subject to a petition for reconsideration filed within ten days of service pursuant to RCW Such a petition must be filed with the ORDER OF DISMISSAL -" 7

9 administrative law Judge at hidher address at the Office of Administrative Hearings. The petition will be considered and disposed of by the administrative law judge. A copy of the petition must be served on each party to the proceeding and the Superintendent of Public Instruction, The filing of a petition for reconsideration is not required before seeking judicial review Pursuant to 20 USC Section 1415 (i) (Individuals with Disabilities Education Act) and Chapter RCW, this matter may be further appealed to a court of law. The Petition for Judicial Review of this decision must be filed with the coi~rt and served on the Superintendent of Public Instruction. the Office of the Attorney General, all parties of record, and this office within thirty days after service of the final order. If a petition for reconsideration is filed, this thirty-day period will begin to run upon the disposition of the petition for reconsideration pursuant to RCW (3). Otherwise, the 30-day time limit for filing a petition for judicial review commences with the date of the mailing of this decision. CERTIFICATE OF SERVICE This certifies that a copy of the above Findings of Fact, Conclusions f Law and Order was served upon the parties or their representatives on Februarv &2m, by depositing a copy of same in the United States mail, postage prepaid, addressed to the following: Parents Charlotte Cassady Attorney at Law PO Box 2877 Vashon, WA Brenda J. Little Deputy General Counsel Seattle School District 81 5 Fourth Ave N Seattle, WA ORDER OF DISMISSAL _- 8