1. education
2. school

COVER SHEET
IMPARTIAL DUE PROCESS HEARING ON BEHALF OF
DATE OF HEARING: JANUARY 21, 2003 (THE RECORD HAS BEEN
SUPPLEMENTED BY BOTH PARTIES SINCE THAT DATE AS WELL).
HEARING INITIATED BY, MOTHER OF.
SCHOOL DISTRICT: NORTHWEST LOCAL SCHOOLS – HAMILTON
COUNTY – REPRESENTED BY: J. MICHAEL FISCHER, OF ENNIS,
ROBERTS & FISCHER, CO., L.P.A., 121 WEST NINTH STREET,
CINCINNATI, OH 45202
PARENT:
DATE WRITTEN REQUEST FOR HEARING RECEIVED: NOVEMBER
7, 2002
DATE FINAL DECISION SUBMITTED: APRIL 2, 2003
IMPARTIAL HEARING OFFICER:
STATEMENT OF ISSUE FROM WRITTEN REQUEST FOR HEARING:
SEE EXHIBIT 1 ATTACHED HERETO. THIS HEARING OFFICER
NEVER CLEARLY UNDERSTOOD MS. HILL’S REQUEST AND AS
THE PROCESS PROGRESSED IT BECAME LESS AND LESS CLEAR
EXACTLY WHAT MS. HILL WAS REQUESTING AND SINCE SHE
WAS NOT WILLING TO RECONVENE AND COMPLETE THE
HEARING; NEVER PROVIDED SWORN TESTIMONY FROM
HERSELF; AND WITHDREW HER SON FROM THE SCHOOL
SYSTEM WHILE THE DUE PROCESS WAS BEING CONDUCTED.
CERTAIN ASSUMPTIONS AS TO HER DESIRES ARE STATED
BELOW AND WITHIN THE DECISION.
PETITIONER REQUEST/POSITION FROM TESTIMONY: THOUGH IT
IS NOT SPECIFICALLY CLEAR, THE HEARING OFFICER BELIEVES
PETITIONER ASSERTS THAT HER SON HAS SO MANY HEALTH
PROBLEMS (ADD, ASTHMA, VISION DIFFICULTIES, THYROID
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DISORDER, DEPRESSION AND AN UNDIAGNOSED SLEEPING
DISORDER) THAT HE QUALIFIES AS A CHILD WITH A DISABILITY
WHICH NEEDS TO BE SERVED BY AN IEP.
RESPONDENT REQUEST/PETITION FROM TESTIMONY: IS NOT A
DISABLED STUDENT UNDER IDEA AND IS NOT ENTITLED TO AN
IEP. THE INTERVENTIONS AND TREATMENT OF BY THE SCHOOL
HAS PROVIDED HIM WITH A FREE APPROPRIATE PUBLIC
EDUCATION UNTIL HIS MOTHER WITHDREW HIM FROM
SCHOOL.
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STATE OF OHIO
DEPARTMENT OF EDUCATION
OFFICE FOR EXCEPTIONAL CHILDREN
IN THE MATTER OF:
IMPARTIAL DUE PROCESS
HEARING REQUESTED BY
PARENT ON BEHALF
BEHALF OF STUDENT,
CASE NO. SE-1197-2002
PETITIONER,
HEARING OFFICER
Linda R. Warner
P.O. Box 686
Pomeroy, Ohio 45769
AND
NORTHWEST LOCAL SCHOOL DISTRICT,
RESPONDENT.
DECISION OF IMPARTIAL HEARING OFFICER
PRO SE AND ON BEHALF
OF HER DAUGHTER
J. MICHAEL FISCHER, ATTORNEY
NORTHWEST LOCAL SCHOOL DIST.
Ennis, Roberts & Fischer, Co., L.P.A.
121 West Ninth Street
Cincinnati, OH 45202
PROCEDURAL HISTORY:
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On or about November 7, 2002, the Ohio Department of Education received
a request for Due Process Hearing from Parent, on behalf of her son, Student,
regarding the Northwest Local School District. See attached exhibit “A”.
The Ohio Department of Education provided the names of three hearing
officers to both parties and asked that they attempt to agree on one hearing officer.
On November 19, 2002, the Ohio Department of Education found that the
parties failed to mutually agree upon a hearing officer and therefore, the
Department designated the undersigned, Linda R. Warner, as the impartial hearing
officer. See attached exhibit “B”.
On November 21 and 22, 2002, Parent, on behalf of her son, J. Michael
Fischer, on behalf of the Northwest Local School District, and this hearing officer
took part in telephone conferences regarding Parent’s request for due process
hearing. The phone conferences were to further define and explain issues,
schedule deadlines, disclosure conference and hearing date, time and location.
At the time of the conferences, the hearing officer attempted to schedule a
hearing in early December, however, both parties requested an extension of the
deadline as neither party could be prepared or participate in a hearing until
sometime later in January 2003. The parties reduced their request to writing, as
evidenced by the attached exhibit “C”.
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During those initial phone conferences, with the participation of both parties,
another phone conference, originally intended to be the disclosure conference, was
set for January 8, 2003 at 9:00 a.m. Also, during the initial phone conferences the
due process hearing was scheduled for January 21, 2003 at 9:30 a.m.
Parent requested a neutral location for the hearing (not within the school
system complex) and Mr. Fischer was directed to find such a location and to hire
and schedule a court reporter. During the November 2002 telephone conferences,
Parent stated that she wanted help with her son’s education; wanted to see her son
graduate; and believed her son was entitled to and in need of an Individual
Education Program, hereafter IEP. The school explained their position to be that
they did not believe Parent’s son qualifies for an IEP under IDEA. On December
20, 2002, Parent faxed a note and attachment marked exhibit “D”. In this
communication, Parent stated that she was requesting an IEP and/or a 504 for her
son. Attached to her fax coversheet was a written statement from Dr. John
D’Imperio, M.D. stating: “Student is under the care of Dr. John D’Imperio and
Children’s Hospital Medical Center Sleep Disorders Clinic. At present, the clinic
is investigating the cause of Student’s sleep problems. If you need any further
information, please feel free to call”. Again, see attached exhibit “D”.
On January 6, 2003, this hearing officer received communications from
Parent, a form on Northwest Local School District letterhead purportedly signed by
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Dr. Dominic Kiamento, dated January 6, 2003, attached hereto and marked exhibit
“E”.
On January 7, 2003, a similar communication from Parent was received by
this hearing officer, apparently prepared and signed by another professional,
although the signature is not legible. See attached copy marked exhibit “F”.
The telephone conference occurred on January 8, 2003, as scheduled.
During that telephone conference this hearing officer attempted again to have
Parent define her issue for due process hearing with more specificity. This hearing
officer, in summary, understood Parent as presenting her issue for due process
hearing to be as follows:
Student qualified for special services as a child with disabilities and that the
school denied him those services. Mr. Fischer explained that multi-factor
evaluations had occurred in 1997 and in 1999 and that there was a request for a
multi-factor evaluation in October 2002. The school system’s position continues
to be that Student does not qualify for an IEP under the multi-factored evaluation.
During the January 8, 2003 telephone conference the parties were given a
deadline within which to exchange the disclosure of witnesses and documents,
which may be used at trial. Mr. Fischer would provide Parent with his list by the
end of school Friday January 10, 2003 and Parent would leave her documents at
the school for Mr. Fischer by Wednesday January 15, 2003. Parent requested to
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see her son’s “tests” and Mr. Fischer agreed that Parent could view the tests upon
appointment with the school psychologists who could assist in explaining the
evaluation of the answer. Parent was to notify or cause her son’s psychologists to
notify the school of the time she or the psychologist wished to review the records.
The hearing officers never received information at a hearing or otherwise as to
whether this meeting occurred.
Also, on January 8, 2003, telephone conference, a final disclosure
conference was then scheduled for and held on January 14, 2003, at least 5 days
prior to the due process hearing.
During the disclosure conference on January 14, 2003, both parties
supplemented and/or substituted potential witnesses on their list. During the
January 14, 2003 disclosure conference, Parent reviewed with the school attorney
and this hearing officer a recent fax transmission regarding clarification of her
requests on behalf of her son. See exhibit “H” attached hereto. During this
telephone conversation, both parties verbally agreed that the school would do an
assessment of Student for vocational schooling. However, there was no testimony
regarding this during the due process hearing. Since there was no testimony or
argument regarding vocational schooling at hearing, this hearing officer will not
further address the subject of vocational schooling in this decision.
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Also, during the January 14, 2003, disclosure conference, Parent also
initiated a conversation regarding some transportation issues, which, like the
vocational assessment, were not subsequently addressed at the hearing and will not
be addressed in this decision.
Both parties were notified of the final disclosure conference, the hearing
date, time and location and their respective rights. See attached exhibits “I” and
“J”.
Evidence was taken at the hearing on January 21, 2003. A transcript of that
hearing has been provided to both parties. At the end of the day on January 21,
2003, both parties had several more witnesses scheduled to testify. It was ordered
that the case would re-convene first on Friday, January 24, 2003, for Dr.
D’Imperio’s testimony at the end of another due process hearing where Dr.
D’Imperio was being called and next, the remainder of the witnesses was
scheduled to return for their testimony on February 5, 2003, at 10:00 a.m.
However, on Friday, January 24, 2003, this hearing officer was given a
message from Dr. D’Imperio that the doctor understood Parent no longer wanted
him as a witness. The doctor understood that Parent planned to offer his written
statement, which was previously disclosed to the school as an exhibit, without
testimony. During a recess in another hearing where Mr. Fischer was also acting
on behalf of Northwest Local School District, this hearing officer called Parent in
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the presence of Mr. Fischer. During that telephone conversation, Parent directed
this hearing officer to release Dr. D’Imperio from his subpoena and also expressed
that she could not reconvene as originally scheduled on February 5, 2003, due to a
scheduling conflict. Given the circumstances of this brief conversation and the fact
that it was conducted during a break in another case, the undersigned directed the
parties to contact me the following Monday, January 27, 2003.
During the telephone conference on Monday, January 27, 2003, at the
request of Parent, the 2nd part of the bi-furcated hearing was then re-scheduled
from February 5, 2003 to February 14, 2003, at 10:00 o’clock A.M.
On Thursday, January 30, 2003, after business hours, Parent faxed
correspondence to this hearing officer, which is attached hereto as exhibit “K”. In
this fax correspondence, Parent asked that a decision be made upon what evidence
had been submitted to that date, without further testimony. The following
Tuesday, February 4, 2003, this hearing officer conducted a telephone conference
with both Mr. Fischer and Parent. The parties discussed the fact that neither party
had finished their case or presented all their witnesses on January 21, 2003. Parent
sated that she had a couple more witnesses plus the doctor’s statement she intended
to offer into evidence. Neither Parent nor her son testified under oath or provided
a written, sworn affidavit. Not only did Parent, carrying the burden of proof, not
finish her witnesses, but, according to Mr. Fischer, the school district also had 3 or
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4 more witnesses they intended to call. After discussion of some possibilities
regarding completing the case as quickly and completely as possible, including reconvening the hearing, sworn written statements, oral arguments etc., this hearing
officer gave both parties under the following day at 8:00 a.m. to attempt an
agreement as to whether they would agree to either re-convene the hearing or
submit additional evidence, by agreement, upon sworn written statements.
On February 5, 2003, the parties, again, participated in a telephone
conference. At that time, both agreed to submit any additional evidence in writing
and under oath by affidavit rather than further live testimony. Each party was
given until February 14, 2003 to submit any further documents and/or statements,
under oath, in writing for consideration as evidence.
On February 11, 2003, this hearing officer was sent another correspondence
from Parent, marked as exhibit “L”, attached hereto. The correspondence sets
forth an allegation that Parent still has not been provided with all the records at
Northwest Local School District regarding her son, Student. Parent states that the
school said that they must charge a per page fee to copy her son’s file and that she
could not view her son’s file unless an appointment was made in advance with an
administrator or counselor who would be present while she viewed her son’s file.
The letter sets forth a number of specific individuals and allegations. The letter
also indicated that Student would no longer be attending Northwest Senior High as
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Parent withdrew him February 7, 2003. Nevertheless, Parent requested a decision
on the due process hearing.
As a result of this most recent correspondence and the earlier telephone
conferences, an ORDER was drafted and circulated to the parties. See attached
copy of this ORDER marked exhibit “M”.
Per the ORDER, both parties participated in another telephone conference
with this hearing officer on February 14, 2003. During the February 14, 2003
telephone conference, Parent affirmed that she had withdrawn her son from the
Northwest Local School System, but was still requesting a decision on the due
process hearing. During the February 14, 2003 telephone conference, Mr. Fischer
stated that approximately 150 pages of records were provided to Parent after the
January 21, 2003 hearing, in anticipation of Parent’s preparation for the remainder
of the hearing. Parent continued to accuse the school of incomplete disclosure and
sharing of her son’s records. After both sides had an opportunity to state their
relative positions, it was agreed that Parent would come to the school
administrative building Friday, February 21, 2003 at 2:00 p.m. and would have
complete access to all of Student’s records so that she could compare, sheet by
sheet, what she had prior to that date with what the school administration had on
February 21st. Any records Parent did not have would be copied for her, free of
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charge. At the end of the telephone conference, Parent expressed her distrust for
the school and it administration.
Mr. Fischer submitted supplemental affidavits from Carol Meibers and
Tamara Huffman; said affidavits are attached hereto as exhibit “N”. Mr. Fischer
submitted the “Post-hearing brief of Northwest Local School District” on March 5,
2003, attached hereto as exhibit “O”. Parent submitted a written statement by fax
communications March 6, 2003, attached hereto and marked exhibit “P”.
On March 10, 2003, Parent called this hearing officer and requested more
time to supplement her records before a decision was given on her due process
request. Parent was told to reduce such a request to writing and share the same
with Mr. Fischer. On March 12, 2003, Parent faxed a written request for extension
for two weeks, stating that she was waiting on testing results for her son. She
stated that she planned to submit additional information later. See attached copy
marked exhibit “Q”.
On March 20, 2003, this hearing officer caused both parties to participate in
yet another telephone conference. During the conference I explained that I would
not continue extending deadlines for the submission of evidence and had to either
close this matter with a decision or give Parent an opportunity to withdraw her
request for due process (without prejudice) and with the right to re-file once she
had all the information she wished to submit for consideration.
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Parent was told, during the March 20, 2003 telephone conference, that if she
withdrew her request for due process and subsequently made a new request for due
process, so long as the same issue is submitted upon the next due process hearing
request, the same hearing officer would be assigned. In any event, whether the
same hearing officer or a new one is assigned, the parties agreed that none of the
testimony already submitted need be re-done, as the parties would stipulate to its
admission (by judicial notice or stipulation) and review as it currently exists on the
record, along with any new evidence either side by present.
After consideration of her options, Parent elected not to withdraw her due
process hearing and asked that I proceed with what evidence I have so far. Also,
as a result of the March 20, 2003 telephone conference, Parent sent two more fax
communications. In the first fax, however, despite requesting that this hearing
officer proceed to decision with evidence currently submitted, Parent seemed to
still think she could submit supplemental information. See attached exhibit “R”.
Due to the ambiguity in this exhibit and in order to give Parent every opportunity
to present additional evidence within her requested extension period, this hearing
officer has waited until past the 2 week extension requested on March 12, 2003, to
allow for late arrival of affidavits or documentation from Parent before submitting
this decision.
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Also, on March 20, 2003, Parent set another fax, attached hereto as exhibit
“S”. Although this hearing officer has reviewed the documents, some of the
documents cannot be considered or given any weight in my decision, as they are
not legible nor understandable. The letter dated January 21, 2003, however, has
been taken into consideration.
Also, Parent indicated during the March 20, 2003 telephone conference, that
she had decided not to go to the Northwest Local School Administrative building
on February 21, 2003, for review of her son’s school records, as arranged at her
request during the February 14, 2003 phone conference.
Parent has attempted to get through this process without the assistance of
counsel and is to be commended for all of her effort. However, Parent stopped
short of completion of the case and short of meeting her burden.
FINDINGS OF FACTS:
This hearing officer has reviewed and considered all the evidence presented
at the hearing on January 21, 2003, as well as all documents and writings
submitted to this date. All testimony, exhibits, correspondence, affidavits, briefs
and statements have been reviewed prior to rendering this decision. Parent did not
provide a post-hearing brief other than to reiterate the statement that she believes
her son is eligible for special services. All relevant evidence, whether or not
specifically discussed in this order, was reviewed and considered in this decision.
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Based upon the testimony, documents, affidavits and arguments submitted
and admitted herein, this hearing officer makes the following Findings of Facts.
ACCESS TO SCHOOL RECORDS
It is necessary to first address and articulate my findings regarding a
recurring allegation throughout the proceedings that Northwest Local School
District failed to obey Federal Law and State Standards in providing Parent with
free access and copies of her child’s educational records. Parent repeatedly made
allegations that the school district failed to provide her with copies of all of
Student’s school records and that the school was not cooperative with her. Tr. P.
11-13, 154-156, and exhibits “L” and “P” attached hereto. Throughout this
procedure, the school district was ORDERED to review their records, wherever
located, to assure that all had been provided to Parent so that she may have
anything necessary to prepare for her hearing. Federal Law mandates the school to
provide complete records to Parent.
At the end of the first day of testimony, this hearing officer further
ORDERED the school district to review and exchange all of Student’s records
immediately so that if any were missing prior to the first day of the hearing, Parent
would have the opportunity to review and completely prepare for the hearing
before it was scheduled to re-convene in February. Tr. P. 230.
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Ms. Huffman’s post-hearing affidavit indicates that the school reviewed and
copied Student’s complete record after January 21, 2003, and provided the same to
Parent. See exhibit “N” attached hereto. Although not completely clear from the
affidavit, this hearing officer is assuming that the 125 plus pages of records Ms.
Huffman states she mailed to Parent were duplicates of records previously
provided. This hearing officer repeatedly told Parent that she would have to
carefully compare records she was provided at the disclosure conference with any
records subsequently provided to establish or prove her claim that the school failed
to provide her with complete copies before the due process hearing. As stated
above, arrangements were made for Parent to be able to make such a thorough
review of the records on February 21, 2003 at the administrative building. During
the telephone conference on March 20, 2003, however, Parent indicated that she
did not go to review the records on that date and time.
Also, this hearing officer never received any results from the instructions
from this hearing officer for Parent to review and compare records provided at
various times by the school district. In fact, beyond Parent’s mere allegations and
accusations there was no evidence offered to substantiate her claims and therefore,
it is my finding that Northwest Local Schools did not violate any procedural
safeguards in this matter, and did not fail to provide Parent with Student’s
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educational records. Therefore, it is the finding of this hearing officer that there
was no violation of Parent’s right to access Student’s records under federal law.
DOES STUDENT QUALIFY FOR SERVICES AS A
CHILD WITH A DISABILITY?
Prior evaluations and background:
As previously stated, this hearing officer is not clear as to Parent’s legal
position as to why she contends that her son is entitled to special services. This
hearing officer has made certain assumptions that Parent is alleging that her son is
a child with disabilities under federal law and as such is entitled to an IEP.
However, Parent failed to demonstrate that Student has completed requisite
evaluations or fits any of the definitions that would make him so eligible for
special services as a child with a disability under IDEA. First, it should be noted
that there was no current and requisite evaluation under 34 CFR 300.7. The school
district has made representations, however, that if an up-to-date multi-factored
evaluation is what Parent seeks, the school district will voluntarily comply with a
request for such if and when made by Parent.
In the instant case, there have been previous multi-factored evaluations for
Student in 1997 and 1999. Based upon those evaluations, Student was found NOT
TO BE ELIGIBLE FOR AN IEP. Tr. P. 63-70 and trial exhibits 2 and 4. There
was nothing in the record to indicate that Student’s family asked for a due process
hearing as a result of the findings from the 1997 and 1999 evaluations and
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findings. Despite finding that Student was not eligible for an IEP, after each
evaluation there were recommendations for certain interventions. See trial exhibits
6, 7, 8.
Also, the record demonstrates that despite not being under an IEP, Student
was provided with some interventions, some teachers even assert that they
developed elective or discretionary individualized programming to provide Student
with assistance with his education. For instance, the use of a behavioral contract
with Student in prior some year seemed to be effective according to the testimony
of Carol Haver. Tr. P. 74. Thus, the intervention team developed and attempted to
enter into a new and up to date behavioral contract with Student. Also, Ms.
Perkins’ class was one of “intervention” to assist students with proficiency
problems and to give them individualized attention after re-taking the proficiency.
Tr. P. 222-223. Ms. Perkins also testified that she didn’t need an IEP to recognize
differences and attempt to most effectively educate Student as an individual
student, and felt that her own individual planning was working effectively with
Student. Tr. P. 226. Mr. Slewitzke would move Student’s seating in an attempt to
keep Student’s attention and to keep him on task. Tr. P. 142-144.
Despite finding Student ineligible for an IEP, the school district felt that
certain interventions (in addition to those stated above) might be appropriate or
necessary for Student. In fact, during the 2002-2003 school year, the school had
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moved Student’s locker in an attempt to more centrally locate it for timely moving
between classes. Tr. P. 74. Student was to be permitted to take a break or work
individually if he needed to do so. Tr. P. 74, 95, 111 and trial exhibits 7 and 8.
Also, as mentioned above, a behavior contract was drafted to address specific
behaviors of concern with Student. See trial exhibits 7 and 8. Such a contract was
drafted and presented to Student for consideration and/or negotiation. Student did
not sign the contract because he wanted to first discuss it with his mother. Tr. P.
75 and trial exhibit 8. There was testimony that this type of “contract” worked
with Student in the past. Tr. P. 74 and 95.
As noted above, there is no up-to-date multi-factored evaluation in the
record. This hearing officer finds, however, that Parent requested the same to be
completed. See trial exhibit 13. In his March 5, 2003, Post-Hearing brief, Mr.
Fischer seems to be stipulating that the school would be willing to conduct another
multi-factored evaluation upon the request and consent of Parent. As the case was
presented to this hearing officer, there is no evaluation demonstrating that Student
has any of the requisite disabilities under 34 CRF 300.7. The school and Parent
should cause this to occur forthwith.
HEALTH ISSUES PRESENTED BY PARENT AT HEARING AND BY
OTHER DOCUMENTATION:
Despite the lack of requisite current evaluations of Student as addressed
above, this hearing officer will, nevertheless, attempt to address what evidence and
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statements Parent did present regarding Student’s health issues. Parent did
establish that Student currently has or has had a number of health problems. Parent
provided statements, testimony, and/or reports having to do with Student’s asthma,
attention deficit disorder, vision problems, thyroid conditions (including Grave’s
disease), depression and potentially a, not yet diagnosed, sleeping disorder.
This hearing officer finds that in the past Student has suffered from asthma
(based upon testimony of family members). Tr. P. 123-126, and 213-214. There
was no evidence or competent evaluation that indicated Student has any ongoing
severe asthma calling for any special accommodations for Student to be able to
receive appropriate education. Student’s grandmother’s testimony that she had to
take Student’s medication to school merely demonstrates the school’s policy with
regards to administration of prescribed medication. Tr. P. 125. There was no
evidence that Student’s asthma adversely affects his ability to be educated which is
required under 34 CFR 300.7(c)(9)(i) AND (ii). Therefore, it is the finding of this
hearing officer that the assertion of Student’s asthma does not qualify Student as a
child with a disability under IDEA.
Also, Student was previously (1998) diagnosed with attention deficit
disorder. Tr. P. 93-94 and 120 and trial exhibit 18. There is no current relevant
evidence, however, that Student currently suffers from or is being treated for ADD.
An attention deficit disorder, in and of itself, does not qualify a child for services
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under IDEA. As with asthma, the condition must limit the student’s strength,
vitality, or alertness due to the physical condition AND the physical condition must
adversely affect a child’s education performance. There was not persuasive
evidence that Student’s ADD adversely affected his education performance. Id.
Although there was no expert testimony provided, Parent did provide some
testimony and written documentation regarding Student’s vision problems. Tr. P.
123 and 95, 203 and trial exhibit 18 and supplemental documents attached hereto
and marked exhibit “S”. Testimony demonstrated that there had been interventions
through the years to accommodate Student by placing him close to the visual aids
due to his vision problems. Tr. P. 114, 203. However, in order for a visual
impairment to qualify a child as a child with a disability, the visual impairment
must adversely affect a child’s educational performance. This hearing officer finds
that there was no persuasive evidence that Student’s visual impairment adversely
affected Student’s educational performance.
There is evidence that Student has suffered from thyroid conditions (Grave’s
disease) and has been, or is, treating for these conditions. Tr. P. 33, 149, and trial
exhibits 10, 11 and 18. There was not, however, sufficient evidence to support that
the thyroid conditions adversely affect Student’s educational performance. See
trial exhibits 10 and 11 again. Therefore, this hearing officer finds that Student has
a medical diagnosis for thyroid conditions. This hearing officer, however, finds
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that there was insufficient testimony to demonstrate that his thyroid condition
qualifies Student as a child with a disability under the IDEA.
There was evidence that Student has been treated for and has a history of
depression. Tr. P. 31-32, 37-38, 44-46, 117 and see trial exhibit 18. Testimony
and exhibits dealing with Student’s depression, however, are not as significant as
they might have been since the doctor and counselor who provided testimony
regarding this issue based their opinion upon reports from Student and Parent and
not upon any prior medical records, evaluations or reports. Tr. P. 40-42 and 117,
121. Nevertheless, this hearing officer assumes that Parent offered this evidence to
argue that Student has an “emotional disturbance” under IDEA. First, Parent failed
to provide any evidence of the requisite evaluation for serious emotional
disturbance as provided in the first paragraph of 34 CFR 300.7. However, even
ignoring the lack of an evaluation, in order for depression to qualify as an
emotional disturbance it “must have one or more of the following characteristics
over a long period of time and to a marked degree that adversely affects a child’s
educational performance:…A general pervasive mood of unhappiness or
depression.” This hearing officer is not persuaded that Student exhibits a general
pervasive mood of unhappiness or depression over a long period of time and to a
marked degree. Additionally, this hearing officer was not persuaded that, if
Student suffers from some depression, that such depression adversely affects
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Student’s educational performance. The only evidence suggesting that Student
suffered from depression was from his immediate family, either directly or through
providing oral medical history to the current physician. There was no official
evaluation or medical diagnosis, other than the general practitioner taking Parent’s
limited information on the “diagnosis”. Tr. P. 40-42. Additionally, the
observations by many of the witnesses who would see Student daily at school were
not supportive of the depression allegation. Tr. P. 147, 171, 185-186, 203. The
fact that Student sometimes wanted to sleep and sometimes did sleep in class does
not mean Student is “depressed” as contemplated under the federal rules.
Finally, the sleepiness (which Parent seems to use to support her argument
of depression) may be an indication that Student suffers from a potentially yet
undiagnosed sleep disorder. However, without medical records or evaluations, this
hearing officer finds no competent evidence in the records as to whether Student in
fact has a sleeping disorder or if he does have such a disorder, what, if any, affect it
has upon his education. The results of a sleeping disorder evaluation may have
been insightful and significant had they been available at the time of the hearing.
Without expert findings, documentation or testimony regarding any potential
sleeping disorder, this hearing officer finds that Parent established that Student
sleeps often in class and otherwise. Student’s doctor and counselor were
concerned about the sleepiness. Tr. P. 47-48, 121.
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However, Parent did not establish that Student’s sleepiness was anything
other than within his ability to control. Neither did she establish that Student’s
sleepiness in any way qualified him as a child with a disability within the meaning
of the IDEA.
Quite to the contrary, this hearing officer finds that the evidence indicated
that Student’s issues with sleeping in the classroom appear to be within Student’s
control. There was contradictory testimony from teachers who found Student
sleeping in their classes (Tr. P. 142-146, 169, 200) and those who simply would
not tolerate it and Student did NOT sleep in their classes (Tr. P. 184, 188-190, 219,
225).
In conclusion there was not sufficient evidence, however, presented to
demonstrate that any, or an accumulation of all of these health problems, entitled
Student as a student with disability within the meaning of the IDEA.
CONCLUSIONS OF LAW:
The school must permit parents to inspect and review any education records
relating to their children that are collected, maintained, or used by the school. 34
CFR 300.562. The school may charge a fee for copies of the records for parents IF
the fee does not effectively prevent the parents from exercising their right to
inspect and review those records. 34 CFR 300.566. Northwest Local Schools
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provided Parent with all of Student’s records at no cost to Parent and in no way
violated federal law.
Having found that there was no procedural violation in the pre-trial
procedure and exchange of school records and documents intended for use at
hearing, next, there must be an evaluation as to whether the party requesting due
process has met the requisite burden of proof. In order to make this decision, this
hearing officer must know what issue is before her.
Parent never clearly defined her requested or desired end for this due process
hearing and procedure. Despite this difficulty, this hearing officer finds, based
upon the statements of Parent and testimony and documents provided by her, that
Parent asserts that Northwest Local School District has failed to identify her child
as a child with disabilities and special needs and by failing to do so, has failed to
provide him with a Free Appropriate Public Education under 34 CFR PART 300.
As the party requesting due process, Parent must meet her burden of proof in
this matter. Doe v. Defendant I, 989 F. 2d 1186 (6th Cir. 1990); Cordrey v.
Euckert, 916 F. 2d 1460 (6th Cir. 1990; and Doe v. Bd. Of Educ. Of Tullahoma
City Schools, 9 F. 3d 455 (6th Cir. 1993). Parent has failed to do so.
Parent seems to allege that her child is a child with a disability and as such is
entitled to special services under IDEA. First, Parent must prove that Student
qualifies as a child with disabilities and is eligible under IDEA for specialized
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services within the public schools and must establish that Student fits the
appropriate federal definitions of a child with special needs or disabilities. IDEA
defines a child with disability as follows:
Sec. 300.7 Child with a disability.
(a) General. (1) As used in this part, the term child with a
disability means a child evaluated in accordance with Sec. Sec.
300.530-300.536 as having mental retardation, a hearing
impairment including deafness, a speech or language
impairment, a visual impairment including blindness, serious
emotional disturbance (hereafter referred to as emotional
disturbance), an orthopedic impairment, autism, traumatic brain
injury, an other health impairment, a specific learning
disability, deaf-blindness, or multiple disabilities, and who, by
reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is
determined, through an appropriate evaluation under Sec.
300.530-300.536, that a child has one of the disabilities
identified in paragraph (a)(1) of this section, but only needs a
related service and not special education, the child is not a child
with a disability under this part.
(ii) If, consistent with Sec. 300.26(a)(2), the related service
required by the child is considered special education rather than
a related service under State standards, the child would be
determined to be a child with a disability under paragraph (a)(1)
of this section.
(b) Children aged 3 through 9 experiencing developmental
delays. The term child with a disability for children aged 3
through 9 may, at the discretion of the State and LEA and in
accordance with Sec. 300.313, include a child—
(1) Who is experiencing developmental delays, as defined by
the State and as measured by appropriate diagnostic instruments
and procedures, in one or more of the following areas: physical
development, cognitive development, communication
development, social or emotional development, or adaptive
development; and
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(2) Who, by reason thereof, needs special education and
related services.
(c) Definitions of disability terms. The terms used in this
definition are defined as follows:
(1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social
interaction, general evident before age 3, that adversely affects
a child’s educational performance. Other characteristics often
associated with autism are engagement in repetitive activities
and stereotyped movements, resistance to environmental
change or change in daily routines, and unusual responses to
sensory experiences. The term does not apply if a child’s
educational performance is adversely affected primarily
because the child has an emotional disturbance, as defined in
paragraph (b)(4) of this section.
(ii) A child who manifests the characteristics of “autism” after
age 3 could be diagnosed as having “autism” if the criteria is
paragraph (c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual
impairments, the combination of which causes such severe
communication and other developmental and educational needs
that they cannot be accommodated in special education
programs solely for children with deafness or children with
blindness.
(3) Deafness means a hearing impairment that is so severe
that the child is impaired in processing linguistic information
through hearing, with or without amplification, that adversely
affects a child’s educational performance.
(4) Emotional disturbance is defined as follows:
(i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a
marked degree that adversely affects a child’s educational
performance:
(A) An inability to learn that cannot be explained by
intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal
circumstances.
(D) A general pervasive mood of unhappiness or depression.
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(E) A tendency to develop physical symptoms or fears
associated with personal or school problems.
(ii) The term includes schizophrenia. The term does not
apply to children who are socially maladjusted, unless it is
determined that they have an emotional disturbance.
(5) Hearing impairment means an impairment in hearing,
whether permanent or fluctuating, that adversely affects a
child’s educational performance but that is not included under
the definition of deafness in this section.
(6) Mental retardation means significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental
period, that adversely affects a child’s educational performance.
(7) Multiple disabilities means concomitant impairments
(such as mental retardation-blindness, mental retardationorthopedic impairment, etc.), the combination of which causes
such severe educational needs that they cannot be
accommodated in special education programs solely for one of
the impairments. The term does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic
impairment that adversely affects a child’s educational
performance. The term includes impairments caused by
congenital anomaly (e.g., clubfoot, absence of some member,
etc.), impairments caused by disease (e.g., poliomyelitis, bone
tuberculosis, etc.), and impairments from other causes (e.g.,
cerebral palsy, amputations, and fractures or burns that cause
contractures).
(9) Other health impairment means having limited strength,
vitality or alertness, including a heightened alertness to
environmental stimuli, that results in limited alertness with
respect to the educational environment, that—
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity order,
diabetes, epilepsy, a heart condition, hemophilia, lead
poisoning, leukemia, nephritis, rheumatic fever, and sickle cell
anemia; and
(ii) Adversely affects a child’s educational performance.
(10) Specific learning disability is defined as follows:
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(i) General. The term means a disorder in one or
more of the basic psychological processes involved in
understanding or in using language, spoken or written, that may
manifest itself in an imperfect ability to listen, think, speak,
read, write, spell, or to do mathematical calculations, including
conditions such as perceptual disabilities, brain injury, minimal
brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. The term does not include
learning problems that are primarily the result of visual,
hearing, or motor disabilities, or mental retardation, of
emotional disturbance, or of environmental, cultural, or
economic disadvantage.
(11) Speech or language impairment means a communication
disorder, such as stuttering, impaired articulation, a language
impairment, or a voice impairment, that adversely affects a
child’s educational performance.
(12) Traumatic brain injury means an acquired injury to the
brain caused by an external physical force, resulting in total or
partial functional disability or psychosocial impairment, or
both, that adversely affects a child’s educational performance.
The term applies to open or closed head injuries resulting in
impairments in one or more areas, such as cognition; language;
memory; attention; reasoning; abstract thinking; judgment;
problem-solving; sensory, perceptual, and motor abilities;
psychosocial behavior; physical functions; information
processing; and speech. The term does not apply to brain
injuries that are congenital or degenerative, or to brain injuries
induced by birth trauma.
(13) Visual impairment including blindness means an
impairment in vision that, even with correction, adversely
affects a child’s educational performance. The term includes
both partial sight and blindness.
(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))
As stated in the findings of fact above, Parent failed to establish that Student
was a child with a disability under the federal law. Since Student does not qualify
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as a child with disability under federal law, the school does not have to provide
him with special or individualized services.
Again, Parent failed to demonstrate that there were any requisite current
evaluations which demonstrated Student had any qualifying disability or that any
of his alleged disabilities adversely affected his educational progress. Parent
requested and consented to such evaluations as indicated in Trial exhibit 13,
however, there was no explanation offered as to why this was not completed prior
to the due process hearing. This hearing officer concludes that the required
evaluation(s) should be completed by the school as soon as possible, assuming
Parent still consents to such an evaluation.
Irrespective of the evaluation, Parent did establish that Student currently has,
or has had, a number of health problems. Despite this proof, there was no
persuasive evidence that any of the health disorders (asthma, attention deficit
disorder, vision problems, thyroid conditions – including Grave’s disease –
depression and potentially a, yet undiagnosed, sleeping disorder) adversely
affected Student’s education.
First, this hearing officer concludes that there is not persuasive evidence that
Student’s asthma is a current significant health problem or that it adversely
affected his education.
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Next, Student’s diagnosis for attention deficit disorder is too remote in time
to consider relevant in this claim. In any event, a diagnosis of attention deficit
disorder, in and of itself, does not entitle a child for services under IDEA. As with
asthma, the condition must limit the student’s strength, vitality, or alertness due to
the physical condition AND the physical condition must adversely affect a child’s
education performance. As stated above, this hearing officer concludes that there
was no persuasive evidence that Student’s ADD adversely affected his education
performance. See 34 CFR 300.7.
It has been established that Student has some vision problems. The school
has made accommodations and interventions necessary for Student to succeed in
school despite his vision problems. These accommodations have been satisfactory
to allow Student to receive an appropriate education. And, as with the other
medical conditions, in order for a visual impairment to qualify a child as a child
with a disability, the visual impairment must adversely affect a child’s educational
performance. This hearing officer concludes that Student’s vision problems do not
adversely affect his educational performance.
As set forth above, there was significant evidence that Student has suffered
from thyroid conditions (Grave’s disease) and has been or is treating for these
conditions. There was not persuasive evidence that his thyroid condition does not
qualify Student to receive an IEP due to this physical problem. In other words, this
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hearing officer concludes that Student’s thyroid conditions do not qualify him as a
child with a disability under the IDEA.
In addition to the above-mentioned medical or health concerns, there was
evidence that Student has been treated for and has a history of depression. Again,
this hearing officer makes the assumption that Parent offered this evidence to argue
that Student has an “emotional disturbance” under IDEA. Again, as with the other
alleged “disabilities”, Parent failed to provide any evidence of the requisite
evaluation for serious emotional disturbance as provided in the first paragraph of
34 CFR 300.7. In fact, all of the testimony from Student’s current medical doctor
and counselor indicated that the only basis for their opinion that Student suffers
from “depression” is that either Student himself or his mother provided them with
history and opinion that Student suffers from depression. There were no prior
medical records reviewed by those professionals, there was no official “diagnosis”
of depression or other competent and persuasive evidence of depression. However,
even ignoring the lack of an evaluation or expert diagnosis, under federal law, in
order for depression to qualify as an emotional disturbance it “must have one or
more of the following characteristics over a long period of time and to a marked
degree that adversely affects a child’s educational performance:…A general
pervasive mood of unhappiness or depression.” This hearing officer is not
persuaded that Student exhibits a general pervasive mood of unhappiness or
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depression over a long period of time and to a marked degree. Additionally, this
hearing officer was not persuaded that, if Student suffers from some depression,
that such depression adversely affects Student’s educational performance. The
only testimony suggesting that Student suffered from depression was from his
immediate family, either directly or through providing oral medical history to the
current physician. There was no official evaluation or medical diagnosis, other
than the general practitioner taking Parent’s limited information on the
“diagnosis”. Student’s abilities and behavior in some his classes indicate that
Student can function and perform appropriately and effectively in school.
Therefore, this hearing officer concludes that Student does not have a qualifying
“emotional disturbance” under IDEA.
Finally, the sleepiness (which Parent seems to at least partially use to
support her argument of depression) may be an indication that Student suffers from
a potentially undiagnosed sleep disorder. However, without expert testimony,
medical records or evaluations, this hearing officer concludes that there is no
competent evidence in the records as to whether Student in fact has a sleeping
disorder or if he does have such a disorder, what, if any, affect it has upon his
education. The results of a sleeping disorder evaluation may have been very
insightful had they been available at the time of the hearing. Without expert
findings, documentation or testimony regarding any potential sleeping disorder,
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this hearing officer concludes that Parent established that Student sleeps often in
class and otherwise, but that nothing about that behavior qualifies him for services
under IDEA.
In fact, this hearing officer concludes that the testimony established that
Student’s sleepiness was within his ability to control as he did stay awake in some
of his classes, depending upon the teacher’s tolerance for the same. Therefore,
Student’s sleepiness does not qualify him as a child with a disability, within the
meaning of the IDEA.
In conclusion, Parent has attempted to get through this process without the
assistance of counsel and is to be commended for all of her effort. However,
Parent stopped short of meeting her burden. There was not sufficient evidence
presented to demonstrate that any, or an accumulation of all, of these health
problems entitled Student as a student with disability within the meaning of the
IDEA.
DECISION:
The Northwest Local School District, with the consent of Parent, should
immediately complete an up-to-date multi-factored evaluation of Student as
requested in trial exhibit 13. Even though the school district failed to honor
Parent’s request for an evaluation, there has been such a dispute and lack of trust
between Parent and the Northwest Local School that there has not been a practical
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opportunity to conduct the evaluation. Therefore, this hearing officer concludes
that the Northwest Local School has not violated Student’s rights under federal law
at this time. Such a multi-factored evaluation may change the outcome of
Student’s educational situation. However, in rendering the decision on Parent’s
request for due process, this hearing officer had sufficient evidence to make the
decision herein.
This hearing officer, strongly suggests, however, that the Northwest Local
School make every effort to work with Parent to cause an evaluation to take place
forthwith.
That is, as to the issues submitted for due process consideration before this
hearing officer, Parent, on behalf of her son, Student, has failed to establish that
her son qualifies as a child with a disability under federal law.
Based upon the evidence before this hearing officer, Northwest Local School
has to this date provided Student with a Free Appropriate Public Education.
Respectfully submitted,
____________________________
Linda R. Warner (0040175)
Impartial Hearing Officer
P.O. Box 686
Pomeroy, OH 45769
(740) 992-2186 (phone)
(749) 992-5168 (fax)
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CERTIFICATE OF MAILING
The undersigned hereby certifies that a copy of the foregoing DECISION
was mailed by certified mail, return receipt requested, to both parties at the address
indicated herein and to the Department of Education, Office for Exceptional
Children at 25 S. Front Street, Mailstop 202, Columbus, OH 4315-4183, by
ordinary U.S. mail this 2nd day of April, 2003.
___________________________
Linda R. Warner
Impartial Hearing Officer
NOTICE OF OPPORTUNITY OR APPEAL AND RIGHTS
FOLLOWING THE HEARING
1. You can request a verbatim transcript of the hearing.
2. APPEAL RIGHTS: If you are not satisfied with the findings and
decisions of the impartial hearing officer, you may appeal such a
decision to the Department of Education within forty-five (45) days of
notice of the decision to the Department of Education. If an appeal is
filed, the Office for Exceptional Children, on behalf of the
Department of Education, will appoint a review officer to review the
decision and issue a final order. The address for appeal is:
Department of Education
Office for Exceptional Children
25 S. Front Street, Mailstop 202
Columbus, OH 43215-4183
614-466-2650
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3. APPEAL OF RIGHTS AFTER A STATE LEVEL REVIEW: If
you are not satisfied with the final order of the state level review
officer, you may appeal such order within forty-five (45) days of
receipt of notice of the order to the Court of Common Pleas of the
county in which the child’s school district of residence is located,
under Chapter 199 of the Ohio Revised Code.
OR
You may file an appeal with the federal district court of competent
jurisdiction.
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