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13671doe2.pdf

BEFORE THE HEARING OFFICER PANEL
STATE OF OREGON
SUPERINTENDENT OF PUBLIC INSTRUCTION

In the Matter of the Education of
( FINAL ORDER
Lincoln County School District
HISTORY OF THE CASE
A.A.’s parents filed a due process hearing request with the Superintendent of Public Instruction on November 6, 2001, alleging that the Lincoln County School District (District) had, during the 2000-2001 school year, failed to provide A.A. with a Free Appropriate Public Education (FAPE) under both Section 504 of the Rehabilitation Act of 1973 (§504) and the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., (IDEA) and asking that they be reimbursed for expenses they had incurred in providing A.A. with an education in private placements since June 2001. The Department of Education referred this matter to the Hearing Officer Panel on November 6, 2001. The District requested a waiver of the 45-day time frame. That request was granted, with the Final Order due 30 days after the close of the record. A pre-hearing conference was held on January 30, 2002. A hearing was held in Newport, Oregon on February 5, 6 and 7, 2002. The parents were represented by Mary Broadhurst. The District was represented in the hearing by Nancy Hungerford and Rich Cohn-Lee who were joined on the briefs by Andrea Hungerford - all of the Hungerford Law Firm. Administrative Law Judge Darrell D. Walker presided. The District presented testimony by the following witnesses: JD McMahan, principal of Newport High School (NHS); Jon Bartlow, former counselor at NHS; Pamela Gill, English teacher at NHS; Mike Jakobsson, Wood Shop and Algebra teacher at NHS; Jeannine Brucha, Keyboarding and Computer Applications teacher at NHS; Erik Green, PhD, special education teacher at NHS. The parents presented testimony by the following witnesses: Brian Montgomery, Computer Programming, Web Page, and Chemistry teacher at NHS; Dr. Rory Richardson, licensed clinical psychologist; Nancy Smith, “educational consultant”; Penelope Kaczmarek, licensed clinical social worker; Sharon Bitz, private school administrator; and L.A., A.A.’s mother. The record closed with the receipt of the parents’ closing brief on March 8, 2002. In the Matter of A.A v Lincoln County School District, Page 1 of 25 EVIDENTIARY RULINGS
District’s exhibits 1 - 24 and parents’ exhibits 200 - 232 were admitted. During the 2000-2001 school year, did the District fail to provide A.A. with a FAPE under §504 and/or the IDEA and, if so, what reimbursement, if any, are his parents entitled to for the costs of the private programs secured for A.A.? FINDINGS OF FACT
(1) A.A. is a seventeen-year-old child whose parents have resided in the District since (2) A.A. has anorexia nervosa (AN), a chronic, progressive, and, if untreated, potentially fatal eating disorder. Although an irrational fear of overweight, an irrational body perception, and resulting emaciation are the primary diagnostic criteria, AN consists of several dysfunctional attitudes, internal drives and tendencies. Persons with AN frequently have concurrent mental health diagnoses. The constellation of possible adverse symptoms/diagnoses frequently occurring with AN includes not only the popularly known one of emaciation but also obsessive/compulsive behaviors and anxieties along with extraordinary competitiveness, perfectionism and low self esteem which interact in a downward spiral of impossibly high goals, impossibly strict standards judging those goals, and inevitable failure resulting in depression and validating the low self-esteem. It is not unusual for AN patients to suffer repeated relapses/decompensations in which they begin the spiral which can culminate in emaciation requiring intensive treatment with possible hospitalization to prevent death by starvation. Depending on where they are in the cycle, persons with AN often have concurrent diagnoses of depressive, obsessive-compulsive, anxiety, and/or personality disorders. The associated mental disorders sometimes persist during some or all of the period between decompensations. AN is much akin to an addiction disorder. Not wanting to eat is only one of many possible features of AN. A 12-step program is often an effective component of treatment. Medication and counseling are the common long-term treatments. (Exhibits 201 & 203, Testimony of Dr. Richardson.) (3) A.A.’s statewide assessment scores are very high. He is intellectually capable of sustaining A and B grades. A.A.’s onset of AN manifested itself in his seventh grade year with a slight decline in his grades and behaviors - such declines are not unusual for healthy seventh graders. His grades went from all A’s and B’s with a 3.4 GPA in the fall of 1998 (seventh grade) to B’s and C’s with a 2.6 GPA in the spring of 1999 to A’s and C’s with a 3.0 GPA in the fall of 1999 (eighth grade) to an A, B’s, and a D with a 2.8 GPA in the spring of 1999. (4) In the fall of 1999 (ninth grade and first year of high school at NHS), he suffered a decompensation resulting in emaciation compromising his cardiovascular system. He was hospitalized at Emmanuel Hospital in Portland for thirty-one days for his AN during September In the Matter of A.A v Lincoln County School District, Page 2 of 25 and October 1999. He missed classes those thirty-one days while hospitalized. He missed numerous other days during that term due to his need to travel to the Kartini clinic in Portland for follow-up medical and psychological care and counseling. During this period he was also diagnosed with Major Depression (Exhibit 218). (5) Because of the long distance to Portland’s Kartini Clinic, A.A.’s parents employed a local licensed clinical social worker, Ms. Kaczmarek, to counsel A.A. on a regular basis. (6) He received one A, three C’s, and an F for a 2.17 GPA the fall semester of 1999. (7) During A.A.’s hospitalization, his mother inquired of his high school counselor, Ms. Barnstetter, about possible tutoring help for him. She was informed that A.A. had not missed enough school to be eligible for tutoring help from the District. (8) A twenty-eight page “Student Handbook” tabloid (Exhibit 24) is distributed to high school families each fall by the District. It has one full page describing the eligibility criteria for, and the content of, programs within the District for academically gifted students. The tabloid mentions “disabled students” and “IEP’s” twice. Under the heading of “Discipline” and sub-heading of “Discipline of Disabled Students,” it describes the procedures for disciplinary suspension of disabled students being served by an IEP. Under the headings of “Penalties and Disciplinary Procedures,” “Expulsion Procedures,” and “Students with Disabilities” the handbook describes the special procedures for expelling students with disabilities - beginning with, “The District’s Attorney shall also be notified as promptly as possible, to assure compliance with applicable federal law (20 USC 1425).” Those are the only references in the tabloid to disabled students and programs to serve them. Although the families of students evaluated for §504 and/or IDEA eligibility receive more information about programs for disabled students, the tabloid is the only information on such programs distributed to all NHS families. (9) During the spring semester of 2000, although he was taking his Prozac as prescribed, A.A. exhibited behavior problems at home (physical altercations with his father) and seemed to his parents to be having difficulty grasping mathematics and doing any homework. He was argumentative with his teachers. His mid-term grades were consistently a grade or more lower than his final grades. His parents took him to Dr. Rory Richardson, a licensed clinical psychologist, for an evaluation of a possible learning disability. Dr. Richardson’s speciality is eating disorders. He has authored a text for clinicians on the subject. After interviewing A.A. and his parents and conducting extensive testing of A.A. - including the Wide Range Achievement Test-3, the Family Apperception Test, the Devereux Scale for Mental Disorders, the Yale-Brown Obsessive-Compulsive Scale, and the MMPI - Dr. Richardson opined in his report of June 10, 2000 that, although A.A.’s math abilities were his weakest (being slightly below grade level whereas his verbal skills were either at or significantly above grade level), he suffered no learning disability but did instead suffer the chronic effects of his AN causing both the conflicts with his family and his school problems. Dr. Richardson found that his school problems directly resulted from his rigidity and perfectionism and from the social anxiety - all flowing from his AN. Dr. Richardson further noted that A.A. was at that moment functioning In the Matter of A.A v Lincoln County School District, Page 3 of 26 relatively well. He assigned A.A. a Global Assessment of Functioning (GAF) score of 60, indicating a level of psychological impairment which should be expected to cause moderate symptoms and moderate difficulties in school and social functioning. He opined that his Prozac regimen was responsible for the relative mildness of his current symptoms. Since A.A. had already established a patient-therapist relationship with Ms. Kaczmarek, his parents did not have A.A. begin counseling with Dr. Richardson. (10) The following semester, Spring 2000, he received an A, four C’s, and a D for a GPA (11) During summer school 2000, A.A. enrolled in the math class (Integrated Math I) in which he had received a D in the spring of 1999. He failed to improve that grade. During June and July 2000 he did not take his Prozac. (12) In the fall of 2000, his parents counseled him to take the Math I course again. He refused and chose instead to take Integrated Math II along with English, chemistry, Spanish, computer, and PE classes. In addition, he was enrolled in a Technology Support class (a class period for students who in days past were known as audio-visual aids/assistants). (13) A.A. did not do well in the fall semester of 2000. He became quite stressed at his difficulty in mastering his course material. He began to more adamantly voice his belief that his subjects and school itself were irrelevant and that school was, in fact, a prison. And, he seemed to put his parents in the categories of irrelevant and prison keepers also. A.A. was flunking his math, computer, and Spanish classes. He was doing well in chemistry and was maintaining, with many conflicts with his teacher over assignments, a C in English. He was continually failing to do assigned work and continually expressing to his teachers his belief that the work was irrelevant and that they were merely on a power trip. He wanted to choose what he would learn, what assignments he would do, and how he would do them. He expressed these beliefs and desires adamantly and frequently to his teachers, counselors, school administrators, and parents. These beliefs and desires were perceived by all involved as more extreme than the usual adolescent feelings of being put upon by the school system and parents. As Mr. Bartlow testified, “AA was a more severe case.” (14) A.A. ceased taking his prescribed Prozac in October 2001. He believed it was increasing his appetite and causing hand tremors. Dr. O’Toole, his treating psychiatrist at the Kartini Clinic, acquiesced in A.A.’s decision. (15) A.A.’s parents hired a tutor to help him with his math. The tutoring did not help his performance in class or on his homework and did not seem to help him grasp the material. He continued to tell his teachers and parents that he did not want to go to school. His parents became fearful that he would drop out of school. His mother had heard from an acquaintance that there was something called a “504 plan” which could help children who had problems in school caused by their health problems. In November 2000, she visited A.A.’s school counselor, Mr. Bartlow, and asked if the school could do anything to help A.A. in school. She mentioned In the Matter of A.A v Lincoln County School District, Page 4 of 26 that she had heard of something called a “504 plan” which she understood could help students like A.A. (16) Ms. Barnstetter, A.A.’s counselor during the 1999-2000 school year, had alerted Mr. Bartlow in September 2000 that A.A. had been hospitalized for AN the previous year and that Mr. Bartlow should be aware of A.A. as he might need services during the coming year. (T-79). Mr. Bartlow never approached A.A. or his parents about services the District could offer, but when A.A.’s mother asked about help for A.A. and mentioned a §504 plan, Mr. Bartlow gave her a “Student Study Team (SST) Referral” form to complete regarding A. A. The referral form makes no mention of the IDEA, of IEP’s, or of “special education.” Neither did Mr. Bartlow. (17) The SST is the methodology employed by the District to screen all referrals for students who might need the assistance of §504 plans or IEP’s. There are no established standards and procedures for that screening process. There are no established standards or procedures for any resulting §504 eligibility evaluation and plan development. There is no formal §504 evaluation done. (T 145, 215, 393) Any decision not to evaluate for IDEA eligibility is a decision by default. If no one on the team brings the subject up, there is no IDEA eligibility evaluation done on the child. No written information about the IDEA is given to the parents. No notice is given to the parents that a decision not to evaluate for IDEA eligibility had been made. (18) A.A.’s mother completed the referral form (Exhibit #3, page 1) and appended two single-spaced typewritten pages of detailed information about A.A., his AN, and his past and current difficulties in school. She gave her lay analysis of how his AN may, or may not, have been causing some or all of his academic and behavioral/attitudinal problems. She was never asked about A.A.’s current or former medication regimens and did not volunteer to District staff - in the referral, in any of the SST meetings, or at any time - that A.A. had been prescribed, but had ceased taking, Prozac. The District did not ask her to obtain, or to sign any releases so that it could obtain, any of A.A.’s medical records. (19) In preparation for the SST meeting, Mr. Bartlow had each of A.A.’s teachers complete a “Teacher Response Form” (Exhibit #4). Other than his PE instructor, in whose class he was doing fine, his five teachers all found him to have problems completing assignments and homework. Four out of five opined that he was withdrawn. At least two others also opined that he was anxious, non-compliant, and depressed. The forms indicted that at that time A.A. had two F’s, one C, and two D’s in his academic classes. A.A. and each of his parents also completed and submitted a Teacher Response Form, although those were not the usual assessment instruments which would be completed by a student and his parents for an SST evaluation. (20) The SST met on December 8 and 15, 2000. A.A.’s parents were provided with a written copy of the “Parent/Student Rights in Identification, Evaluation and Placement” form which describes rights under §504. (Exhibit 6.) Its first sentence declares, “The following is a description of the rights granted by federal law to students with disabilities.” Nothing in the form offers any indication that there is also an IDEA which provides additional rights - such as In the Matter of A.A v Lincoln County School District, Page 5 of 26 independent educatio nal evaluations, prior written notice including sources for the parents to contact to obtain assistance in understanding the IDEA, parental consent, stay-put provisions, interim alternative educational setting procedures, state complaint procedures, and the transfer of rights at the age of majority - for eligible students and their parents. And, the notice did not advise the parents of their obligations under the IDEA to notify the District in advance of unilateral private placements. (21) The SST, at one or both of its meetings, consisted of A.A.’s parents, A.A., Mr. Bartlow, Pat Cowan (the high school principal), Dr. Eric Greene (special education teacher at the high school with a PhD in special education), Jeni Greening (a child development specialist with the District), JD McMahan (assistant high school principal), and Sue Stater (a classroom teacher who has never been one of A.A.’s teachers but who had suffered from an eating disorder herself). Although Dr. Greene had some prior experience as a music therapist and addictions counselor in mental hospitals in which some of the young adults he interacted with were diagnosed with AN, none of the team members were knowledgeable and experienced in the evaluation and education of children with A.N. The team made its decision based upon the Teacher Response Forms, the referral form completed by A.A.’s mother, and its discussions. The team had no other material, was offered none, and requested none. There was no discussion by the team of whether further information or evaluations were necessary. (22) At the beginning of the first session, Dr. Greene explained §504 plans to A.A.’s parents. His general practice is to also say something in his opening remarks about the IDEA and IEP’s. He may have done so on December 8. No one remembers him doing so. In the meeting, Ms. Greening expressed concern about the “dark side” of some of A.A.’s writings, which his parents had not seen before, in which he discusses the evilness of the school system and its effects on his individuality. A.A.’s parents suggested that the District’s Alternative High School might be appropriate for A.A. District staff told them that it was full for the year. No one mentioned any possible need for an evaluation of A.A. (23) The “504 Action Plan” finalized on December 15 for A.A. determined that “[A.A.] qualifies for a 504 plan based on his past medical history, current recovery, and some specific behavioral issues manifested in his class work, and academic performance.” It listed many of his current “problems,” including his “recovery from a confidential medical condition that has historically affected his educational success,” his desire not to come to school, his argumentativeness in class and other groups, his low performance and apparent high ability, his negative attitude toward public education, his problems completing assignments, and other problems. It provided that the following accommodations would be made: he would be allowed to apply at least 3.5 credits of work experience to his academic program; his school counselor would (if requested by A.A.) help him develop a resume for job search; he would be allowed (as long as there was no expense to the District) to complete required credits though challenge testing or correspondence work or through the local community college; A.A. could propose and complete alternative assignments in class if his teacher approved it, it was as difficult as the regular assignment, it met the academic goals of the class, and the request was made timely; A.A. could leave class at any time to visit a school counselor if he felt confronted; A.A.’s teachers would not confront him publicly and would try to avoid punitive consequences. The In the Matter of A.A v Lincoln County School District, Page 6 of 26 team felt these accommodations would solve some of A.A.’s AN- induced problems by giving him the feeling of some control over his educational program and lessen his confrontations with his teachers over his educational program. Mr. Bartlow was assigned to assure implementation of A.A.’s 504 plan. (24) Some team members who missed the first part of the first meeting did not know what the “confidential medical condition” was. Mr. McMahan thought for a “long time” after the plan was written that the condition referred to was drug abuse rather than AN. (T 62). (25) Mr. Bartlow met with A.A.’s teachers individually and went over the §504 plan. (26) In January 2001 A.A. completed the fall 2000 semester with F’s in Spanish, Math, and Computer Technology; a D in Chemistry, a C in English, a B in PE, and an A in Technology Support - a GPA of 1.43 including the A in the audio- visual aid class (Technology Support) and the B in PE; a GPA of 0.6 counting only his academic classes. (27) A.A.’s computer teacher, Ms. Brucha, who had had a particularly difficult time with A.A.’s defiance and questioning of her curriculum in the fall semester of 2000, went beyond the §504 plan. She took the initiative in designing, in consultation with A.A. and Mr. Bartlow, alternative assignments for A.A. which developed into an alternative course, a “second course,” for A.A. And, she “changed her fundamental teaching style” to accommodate A.A. (T 110-117).1 A.A. never requested the alternative assignments, but he participated (with much debate) in their development and generally completed them. He had a B in the class through the first half of the final exam which was spread over several days in May. As discussed below, before he could complete the final exam, he was removed from NHS by his parents. (28) A.A.’s other teachers followed the plan. They pointed out to him - within the plan’s guidelines - that he wasn’t completing required work. They sent home progress reports to his parents. They waited - while he continued not to do his assignments and to grouse about their irrelevancy - for him to propose some alternative assignment. In his English class, the students were asked to write a paper on Elizabethan England and/or classical Rome after having the topic approved. A.A. submitted the topic of recreational drug use in classical Rome and Elizabethan England. His teacher thought he was joking and told him to find another topic. He never did. He did e- mail Mr. Bartlow in late February demanding that he not be required to participate in the English assignment, but he did not propose any alternative (Exhibit 211, p3). He e- mailed Mr. Bartlow many times during the term. He proposed in early March 2001 that homework be optional (Exhibit 211, p 4). He finally submitted to Mr. Bartlow in mid-March 2001 his “Academic Plan” in which he proposed, among many other things, that his past failing grades be eliminated and that he be allowed to obtain a drivers license - all in exchange for his beginning to complete his assignments and/or challenge tests (Exhibit 7). He frequently made similar 1 Here I give more weight to Mr. Bartlow’s detailed recollections of the process he arduously mediated and monitored than I give to Ms. Brucha’s self-effacing recollection that A.A. had merely decid ed to buckle down in her class. In the Matter of A.A v Lincoln County School District, Page 7 of 26 demands and proposals along with rambling and irrational comments about education, his parents, and the world in general. (29) A.A.’s mental health continued to decompensate over the course of the spring semester of 2001 to the point that his GAF score would have been in the 40 to 50 range, indicative of serious symptoms and serious impairments in functioning. (T 470) His writings and comments became more disturbing. Among other things, some of his writings and comments could, and were, reasonably construed to make references to suicide and homicide. After one of the possible references to suicide, Mr. Bartlow alerted A.A.’s parents who had him evaluated by Ms. Kaczmarek. She opined that he was at low risk for violence to himself or others. A.A.’s parents subsequently had him also evaluated for his depression and myriad behavioral problems by Dr. Thiel on the recommendation of Dr. O’Toole. Dr. Thiel did not share her evaluation with the parents. Although labeled a “psychiatric evaluation” it made no mention of diagnoses and gave no prognoses other than that A.A. was not currently a danger to himself or others. (30) One or both of A.A.’s parents spoke on the phone and met in person many times during spring semester 2001 with various teachers of his, school counselors, and administrators - as they had during the previous semesters - trying to get a handle on how he was doing and what they might do to help him do better. They asked for and began receiving assignment logs. A.A.’s mother spoke with Ms. Greening and Mr. Bartlow and Mr. McMahan several times in the spring semester of 2001 expressing her concerns about A.A. not doing well in school. (31) The SST meets at least monthly to discuss new referrals for §504 plans as well as current §504 students who might need further services. A.A.’s name never came up in an SST meeting after December 15, 2000. (32) In addition to his continuing relapse into AN, A.A. began smoking marijuana in approximately January 2001. By mid-February his parents suspected he was using due to his sudden interest in the subject and to his frequent trips into the woods behind his house. They began closely watching for any overt signs of actual use. Nevertheless neither they nor any school staff, who are all trained in recognizing such overt signs, observed any signs of actual use - until his father discovered two plants in the woods in mid-May. His marijuana use would not likely have caused significant motivational problem syndrome until June 2001 at the earliest. (T 381). (33) By mid-March 2001 A.A. had F’s in English and Chemistry, a C in Health, a D in math, and a B2 in Computer Applications - a GPA of 1.2 in his academic classes. Other than in Computer Technology he was not completing assignments and was in all classes continuing to adamantly and frequently express his loathing for the education offered him as well as for his parents. 2 Per the testimony of Ms. Brucha, he had earned a grade of approximately B at this time. His transcripts indicate a grade of P, but the grade was changed at the end of the semester as described in Finding #42, below. In the Matter of A.A v Lincoln County School District, Page 8 of 26 (34) By the end of April, his grades in his academic classes were an F in chemistry and an F in English, D’s in Health and Math, and a B in Computer Applications. His GPA in his academic classes was 1.0. (35) In March, A.A.’s parents consulted with the county juvenile department and the state Department of Human Services about help for A.A. and learned that, short of giving up control and custody of A.A. to the courts, there was no help available from those sources. District staff suggested that A.A. could reduce his class load to two hours per day if that would keep him interested in continuing to attend school. (36) A.A.’s parents never asked the District to evaluate A.A. for IDEA eligibility. They were not aware of the IDEA. With the exception of a possible reference by Mr. Green at the beginning of the December 8, 2000 SST meeting, which if made is not now remembered by anyone, no one ever mentioned the IDEA to the parents during the 2000-2001 school year - not any District staff, not any of A.A.’s many treating and examining professionals, and none of the county and state agencies contacted by the parents. (37) On May 3, 2001, Mr. Bartlow advised A.A.’s parents that A.A. had been overheard telling other students that he thought it would be more humane to kill his parents with a gun than with a machete. Mr. Bartlow also told them that the District had offered A.A. all the help that it could. A.A.’s mother began surfing the internet searching for private schools that might be able to help A.A. She found information on and contacted the Cascade School in California. Staff at that school referred her to Nancy Smith, a self-employed educational consultant in Oregon who had referred several students to the Cascade School. (38) A.A.’s parents asked Ms. Kaczmarek to write a summary of A.A.’s condition for Ms. Smith’s information. Ms. Kaczmarek did so on May 8. She noted, among other things, that “his anorexia symptoms seem now to translate into hypersensitivity to anything symbolizing lack of control over his personal freedom.” (39) A.A.’s parents met with Ms. Smith on May 11, 2001. They told her that they were thinking of enrolling A.A. in the District’s alternative high school, which they understood relied to a large extent on a student’s self-direction and self- motivation, in the fall if there was space available for him. Ms. Smith suggested that seemed unwise given A.A.’s history. She advised them to get A.A. enrolled in a wilderness program as soon as possible and, if that program’s evaluation was what she suspected it would be, to get him enrolled in a therapeutic residential high school program immediately thereafter. (40) On May 31, in a letter to the parents’ health insurance company, Ms. Kaczmarek opined, among other things, that: 1) A.A.’s affect was “blunted” and “remarkably similar” to that of his father’s whom she suspected also suffered depression, 2) She did not suspect that his AN was reemerging, 3) She believed he currently met the criteria for Oppositional-Defiant Disorder and possibly for Major Depression and Substance Abuse, and 4) The Freer program was necessary to, among other things, assess what educational/therapeutic placement he should have. In the Matter of A.A v Lincoln County School District, Page 9 of 26 (41) A.A.’s parents chose the Catherine Freer Wilderness Therapy Expeditions (Freer) and enrolled A.A. to enter the program on June 10, 2001. Fearing that A.A. might bolt if he found out before hand, they did not tell A.A. or anyone else other than Ms. Kaczmarek of the placement until shortly before A.A. was picked up by a secure transport service on that date. His mother notified Mr. Bartlow on June 11 that A.A. was in the Freer program and would probably be going to Mt. Bachelor Academy (MBA). Mr. Bartlow notified A.A.’s teachers the following day that A.A. would not be returning to school that term. (42) A.A.’s final grades for the spring 2000 term were F’s in che mistry (which he had dropped too late to avoid the failing grade), English (which had consistently been an F), Algebra (in which his grade had deteriorated to an F by the time he left school), and Health (in which he might or might not have maintained his last mid-term grade of D if he had not left school). Ms. Brucha determined that, although A.A. had not completed the computer applications final exam, he had done well enough in the extensively modified curriculum that he had earned the equivalent of a passing grade in basic keyboarding. Therefore, she had A.A.’s mid-term grades in Computer Applications changed to P’s, gave him no final grade for Computer Applications, but had basic keyboarding entered on his transcript for that semester with a grade of P. His GPA for the term was 0.00. If he had finished the semester and maintained his D in Health and his B in Computer Applications, his GPA would have been 0.8. (43) The Freer program is a twenty-day wilderness camping trip for adolescents with drug and/or behavioral problems. The trip is supervised by masters degree level counselors who provide daily individual counseling therapy and lead daily group educational/therapy sessions. During the course of A.A.’s trip he admitted to having used marijuana two to three times weekly for the previous five months. The counseling staff was of the opinion that he was using marijuana to self- medicate his depression. A.A., as he always had, initially denied that he experienced any depression. He eventually admitted to having felt depressed 90% of the time. Staff felt he gained some insight into his AN-induced need to over control his environment and the negative effects his control attempts had on himself and his family. (44) A.A.’s parents placed him in MBA on July 9, 2001. MBA is a coeducational boarding school which offers an accredited high school program and is approved by the Oregon Department of Education to provide special education programs and services to children with disabilities. It provides instruction in the usual academic subjects as well as special workshops in emotional growth subjects. Each child is assigned a mentor, one of the teachers, who meets with the child individually outside of class for counseling. (45) MBA had A.A. evaluated by a clinical psychologist, Dr. Conway, in September 2001 for the purposes of assisting MBA staff in planning appropriate personalized program goals. Dr. Conway’s evaluation gave no Axis I or II diagnoses. It did opine that: A.A. had severe discrepancies between his predicted and actual skill levels in math calculation which were suggestive of a mathematics disorder; A.A.’s personality inventory results were suggestive of, among other things, under-reporting of negative symptoms, negative body- image and self-image, insecurity around peers, social insensitivity, family discord, and inflated attitude of omnipotence and self-assurance, dysthymia with pessimism and anhedonia, and an inability to In the Matter of A.A v Lincoln County School District, Page 10 of 26 tolerate humiliation which may have contributed to his depressive turn. He suggested remedial instruction in math, emphasis on getting A.A. to understand that he has no special entitlement/control in life while at the same giving A.A. recognition to help counteract his propensity to withdraw under any stress, and watching carefully for any signs that his depressed mood might require further evaluation or treatment. (46) MBA developed a Student Action Plan (Plan) for A.A. with academic, emotional, family, social, and physical goals and objectives. The Plan specified that if A.A. fell behind in any class, the teacher would immediately notify his mentor who would develop a sub-plan to deal with that. In the fall 2001 semester, A.A. received A’s in Science and Algebra, a B in Literature, and C’s in Social Studies, Communication Skills, and History. In peer group sessions and in individual sessions with his mentor he worked on his self- judgement and insecurity and on his communication skills - with some progress. (47) A.A.’s mother may have mentioned in passing to Mr. McMahan in late June 2001 when she was cleaning out A.A.’s school locker that A.A. was going to enroll in MBA. She did inform Mr. McMahan on August 22 that A.A. was enrolled in a private school. (48) The parents filed this due process hearing request on November 6, 2001. Sometime after that, the District offered to evaluate A.A. for IDEA eligibility if the parents accepted that in complete satisfaction of all their claims. The District made an unrestricted offer to evaluate A.A. for IDEA eligibility for the first time a few days prior to the pre-hearing conference on January 30, 2002. (Pre-hearing conference tape). CONCLUSIONS OF LAW
The District failed to provide A.A. with a free appropriate public education (FAPE) under §504 and under the IDEA and it must reimburse his parents for their costs incurred for A.A. in the Freer program and at MBA. I. Burden
In a due process hearing, the District has the burden of proving compliance with the IDEA. Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396 (9th Cir. 1994). The district failed to meet
that burden.
II. §504
Section 504 of the Rehabilitation Act of 1973 (§504) provides procedural and substantive rights to a “qualified student,” one who: “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” 34 CFR §104.3(j) In the Matter of A.A v Lincoln County School District, Page 11 of 26 34 CFR Part 104, Subpart D contains the regulations implementing §504 for preschool, elementary, and secondary education. Those regulations require the District to identify qualified handicapped persons and provide them with a “free appropriate public education” (§504 FAPE). An appropriate education under §504 is “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [34 CFR] §104.34, 104.35, and 104.36.” - 34CFR § 104.33(b)(1). Implementing an IEP developed in accord with the IDEA is “one means of meeting” the first part of that requirement. 34 CFR §104.33(b)(2). For a child who is not also IDEA eligible and under an IEP, the §504 requirements are not well detailed in the regulations. The regulations at §104.35(b) do mandate that each district: “. shall establish standards and procedures for the evaluation and placement of
persons who, because of handicap, need or are believed to need special education or
related services
which ensure that:
(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer; (2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and (3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).” There is no evidence that the District has established any standards and procedures for §504 evaluations. This could explain the vague and sometimes incongruous notions by the SST
member witnesses of what precisely the SST did and how precisely it did it. Dr. Green and Mr.
Bartlow both clearly testified that no §504 evaluation of A.A. was ever conducted. (T 393 and T
145 & 215). Even if it were assumed that reviewing the Teacher Response Forms and the two
page history of A.A. provided by his mother could arguably constitute an evaluation, it did not
conform with the above regulation’s requirements. The Teacher Response Form was used to
obtain a self-evaluation by A.A. and the forms are not validated for self-evaluation by the
student. (T 370).
In the Matter of A.A v Lincoln County School District, Page 12 of 26 Nevertheless, the parents did not specifically challenge the procedures the SST used to evaluate A.A. in developing his §504 plan. The parents did challenge the plan itself, claiming that it was not reasonably designed to meet A.A.’s individual educational needs as adequately as the needs of students without disabilities are met. However, Dr. Richardson opined that the §504 “plan itself is a really, really excellent plan” in that “it addresses several different areas that would be stumbling blocks for A.A.” (T-471). That is, based upon his evaluation seven months previously, when A.A. was taking his Prozac, and based upon the limited evaluative materials obtained by the SST, and based upon A.A.’s grades and writings, Dr. Richardson opined that the December 2000 §504 plan looked excellent. I think the opinion of the parents’ psychological expert regarding the educational sufficiency of the plan should be accorded some weight. A preponderance of the evidence shows that even with the problematic evaluation - the systemic problem of the failure of the District to either conform to IDEA standards and procedures or to establish its own standards and procedures for §504 evaluations and the specific problem of utilizing the Teacher Response Form for A.A.’s self-evaluation - the District developed a §504 plan which was reasonably designed to meet A.A.’s unique educational needs as adequately as the needs of students without disabilities. In addition to questioning the initial reasonableness of the §504 plan, the parents challenge the District’s failure to re-evaluate the plan after it became apparent during the spring 2001 semester that it was not working. “Reevaluation [The District] shall establish procedures in accordance with paragraph
(b) of this section
, for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent with the [IDEA] is
one means of meeting this requirement.”
Once again, the District appears to have not established any procedures. Mr. Bartlow testified that it was “typical” to review §504 plans at the beginning of the school year (T 229). Dr. Green testified that it would be reviewed whenever a teacher or parent requested it and otherwise it would not be reviewed. (T 384). The IDEA requires that a reevaluation be conducted “if conditions warrant” it, if requested by a parent or teacher, or at least once every three years. 34 CFR §33.536; OAR 581-015-0074. The parents believe that conditions warranted it and the District should have been alerted by mid-March when A.A. submitted his most unrealistic academic plan to Mr. Bartlow or by at least the second mid-term period (mid April) of the spring semester of 2001 that a reevaluation, or in this case an initial evaluation, of A.A. for his §504 plan needed to be done. The plan, which may have been reasonable when developed, was clearly not working. A.A. was in the In the Matter of A.A v Lincoln County School District, Page 13 of 26 midst of a relapse of his AN and related psychological conditions. As a result, A.A. was failing,
or close to failing, all his academic classes except Computer Technology, the one class in which
the teacher went beyond the §504 plan and, instead of waiting for A.A. to suggest alternative
assignments, rewrote her course for him. In addition, A.A. was continuing to exhibit
inappropriate behaviors and feelings and a pervasive mood of unhappiness/depression. Absent
any standards established by the District, I find that the District should, consistent with the IDEA
requirements discussed above, have begun an evaluation of A.A. for his §504 eligibility and re-
assessed his plan by at least mid-March 2001. By failing to evaluate A.A., the District failed to
adhere to the required procedures and thus failed to provide a FAPE under §504.
III. IDEA
The IDEA provides greater procedural and substantive rights than does §504, but only to students who have, or who may have, specified disabilities and who require special education. In determining whether or not the District has complied with the IDEA, we must usually engage in a two-step analysis. First, we must determine if the District complied with the procedures set forth in the IDEA and its regulations. Second, we must determine whether the IEP developed through these procedures is reasonably calculated to enable the child to receive educational benefits. E.g., Board of Educ. v. Rowley, 458 U.S. 176 (1982); Seattle School District v. B.S., 82 F.3d 1493 (9th Cir. 1996); Choruby v. NW Regional ESD, Civil No. 01-54-JE (Or. Dist. 2002). In this case, since the District never got to the IEP stage, we determine only whether or not the District complied with the required procedures. It did not. “The term ''free appropriate public education'' means special education and related services that - (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.” The Department of Educatio n is Oregon’s “State educational agency” which sets the standards for a FAPE under §1401(8)(B), above. In the Matter of A.A v Lincoln County School District, Page 14 of 26 The primary obligation of school districts in Oregon under the IDEA is to “identify, locate and evaluate all resident children who may have a disability and need . special education or special education services.” -Emphasis added. This includes “children who are suspected of having a disability even though they are advancing from grade to grade.” OAR 581-015-0037(1); See, also, 34 CFR §300.125(a)(1)&(2). The “may” modifies both “have a disability” and “need special education services.” 64 FR 12557 of March 12, 1999. A school district’s obligation to evaluate a student is triggered when the district suspects that the child may be a child with a disability. “Letter to Anonymous,” 21 IDELR 998 (OSEP 1994). Oregon incorporates that requirement in OAR 581-015-0071 which provides: “Evaluation Required (1) Each school district shall conduct a full and individual initial evaluation, in accordance with OAR 581-015-0072, 0701, and 0051 before determining eligibility and before the initial provision of special education and related services to a child with a disability. (2) An initial evaluation shall be conducted to determine if a child is eligible for special education services when an educational agency suspects or has reason to suspect that: (a) The child may have a disability that has an adverse impact on the child's educational performance; and (b) The child may need special education services as a result of the disability. (3) The educational agency shall designate a team to determine whether an evaluation shall be conducted. The team shall include at least two professionals, at least one of whom shall be a specialist knowledgeable and experienced in the evaluation and education of children with disabilities, and the parent. This team may make this determination without a meeting. If a meeting is held, parents shall be invited to participate in conformance with OAR 581-015-0063. (4) Upon request for an initial evaluation, the school district shall: (a) Provide the parent with prior written notice under OAR 581-015-0075 of the school district's proposal to conduct an initial evaluation, and obtain written parent consent under OAR 581-015-0039; or (b) Provide the parent with prior written notice under OAR 581-015-0075 of the school district's refusal to conduct an initial evaluation. (5) The parent shall have the right to request a due process hearing pursuant to OAR 581-015-0081 if the parent disagrees with the educational agency's decision.” 34 CFR § 300.7 provides, in relevant part: In the Matter of A.A v Lincoln County School District, Page 15 of 26 “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 §§ 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. (c) Definitions of disability terms. The terms used in this definition are defined as follows: (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. (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.” - See, also, OAR 581-015-0005(3)(d). That is, a child does not have to be suicidal, homicidal, or suffering in order to fall within the definition of a child with an emotional disturbance. A child does not even need to have a DSM-IV clinical diagnosis such as Major Depression or Schizophrenia in order to fall within the definition. A child needs only to exhibit one or more of the named characteristics over a long period of time to a marked degree, a degree which adversely affects his educational performance. And, there need only be a reasonable suspicion that the child has the requisite characteristics for the evaluation requirement to kick in. The District itself noted in the §504 plan that A.A. was in “recovery from a confidential medical condition that has historically affected his educational success.” A preponderance of the evidence shows that A.A. is a child with an emotional disturbance as that term is defined above in subsections (4)(i)(C)&(D). His uniquely In the Matter of A.A v Lincoln County School District, Page 16 of 26 exaggerated need to be in control, his resulting failure to do work he did not control, his rigid thinking, his extreme feelings about the school system, as well as his written and oral expression to his teachers and parents were all inappropriate types of behavior and feelings in normal circumstances. Dr. Richardson’s analysis of A.A.’s relapse and the inappropriate behavior and feelings it triggered during the 2000-2001 school year is persuasive. (T471-478). His pervasive unhappiness and depression, particularly after October 2000 when he ceased taking his Prozac, is documented in the teacher response forms, Dr. Richardson’s testimony (T 479-483), A.A.’s writings, Ms. Kaczmarek’s reports and testimony, the Freer report, and Dr. Conway’s report. A.A. was a child with a disability, an emotional disturbance, under the IDEA. The District reasonably should have suspected that A.A. was a “child with a disability.” The District clearly knew - since it created the §504 plan for him - that A.A. not only “may,” but did indeed “have a disability [at least in the §504 sense of the term] that has an adverse impact on [his] educational performance.” Had it conducted any evaluation of A.A., even one complying with the minimal §504 requirements, it would, more likely than not, have ascertained his status as a child with a disability. And, the District clearly suspected, or had reason to suspect, that A.A. “may need special education services as a result of the disability.” 34 CFR §300.26 provides, in relevant part: (a) General. (1) as used in this part, the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including- (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and . (b) Individual terms defined. The terms in this definition are defined as follows: . (3) Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction - (i) To address the unique needs of the child that result from the child’s disability; and (ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” - See, also, OAR 581-015-0005(28). The term “related services” is defined in 34 CFR §300.24 to include “counseling services” for the child with a disability, “parent counseling and training” for the child’s parents, medical and psychological diagnostic and counseling services for the child and his parents, and social work services for the child and his parents. See, also, OAR 581-015-005(24). The District provided “special education” to A.A. under the §504 plan. It provided for, upon his reasonable request, the adaptation of the delivery and content of his instruction to meet In the Matter of A.A v Lincoln County School District, Page 17 of 26 his needs. In his computer class, Ms. Brucha made significant adaptations of the methodology and content of his instruction on her own initiative. Thus, the District knew, or should have known, that A.A. was both a child who may have a named disability that has an adverse impact on the child's educational performance and also a child who may need special education services as a result of the disability. The District was required by OAR 581-015-0071, above, to evaluate A.A. to determine if he was eligible for special education under the IDEA. That evaluation was required to be significantly more comprehensive and detailed than the SST’s review of A.A.’s case in December 2000. As noted above, OAR 581-015-0071 mandates that the required initial evaluation for IDEA eligibility conform with OAR 581-015-0051. Subsection (4) of that rule provides, in relevant part: “Criteria for Evaluation and Eligibility Determination For the disability categories below, subsection (a) sets forth the evaluation that shall be conducted, subsection (b) sets forth the minimum criteria the child shall meet and subsection (c) sets forth the requirement that the team shall determine whether a child needs special education or ECSE services. . (4) Emotional Disturbance: (a) If a child is suspected of having an emotional disturbance, the following evaluation shall be conducted: (A) An evaluation of the child's emotional and behavioral status, including a developmental or social history, when appropriate; (B) A medical statement or a health assessment statement indicating whether there are any physical factors that may be affecting the child's educational performance; (C) The completion of at least two behavior rating scales, at least one of which is a standardized behavior measurement instrument; (D) An observation in the classroom and in at least one other setting by someone other than the child's regular teacher; (E) Assessments to determine the impact of the suspected disability: (i) On the child's educational performance for a school-age child; or (ii) On the child's developmental progress for a preschool child; and (F) Additional evaluations or assessments that are necessary to identify the child's educational needs. (b) For a child suspected of having an emotional disturbance, the child shall meet the following minimum criteria: (A) The child's emotional or behavioral problems shall have existed over an extended period of time; and (B) The child exhibits one or more of the following: In the Matter of A.A v Lincoln County School District, Page 18 of 26 (i) An inability to learn at a rate commensurate with the child's intellectual, sensory- motor, and physical development; (ii) An inability to establish or maintain satisfactory interpersonal relationships with peers, parents, or teachers; (iii) A variety of excessive behaviors ranging from hyperactive and impulsive responses to depression and withdrawal; (iv) Inappropriate types of behavior or feelings under normal circumstances; or (v) A tendency to develop physical symptoms, pains, or fears associated with personal, social, or school problems. (c) For a child to be eligible for special education services as a child with an emotional disturbance, the child's team shall determine that: (A) The child's disability has an adverse impact: (i) On the child's educational performance for a school-age child; or (ii) On the child's developmental progress for a preschool child; and (B) The child needs special education, or for a preschool child, ECSE services, as a result of the disability; (d) A child who is socially maladjusted may not be identified as having an emotional disturbance unless the child also meets the minimum criteria under subsection (4)(b) of this rule.” OAR 581-015-0053 provides, in relevant part: “Eligibility Determination Procedures (1) Upon completing the administration of tests and other evaluation materials, a team shall determine whether the child is a child with a disability under OAR 581-015-0051 (2) The team shall include two or more professionals, at least one of whom is knowledgeable and experienced in the evaluation and education of children with the suspected disability, and the parent. This team may be the child's IEP team. (4) The team shall prepare a written statement of eligibility that includes: (a) All evaluation data considered in determining the child's eligibility; (b) A determination of whether the child meets the minimum evaluation criteria for one of the disability categories in OAR 581-015-0051 or OAR 581-015-0942; (c) a determination of whether the primary basis for the suspected disability is: (A) A lack of instruction in reading or math; or In the Matter of A.A v Lincoln County School District, Page 19 of 26 (d) A determination of whether the child's disability has an adverse impact on the child's educational performance; (e) A determination of whether, as a result of the disability, the child needs special education services; and (f) The signature of each member of the team indicating agreement or disagreement with the eligibility determination. . (6) The school district shall provide a copy of the evaluation report and the documentation of determination of eligibility to the parent. . (8) The team shall determine a child to be eligible under this rule if the child has a disability and needs special education and related services, even thought [sic] the child is advancing from grade to grade. (9) For a child who may have disabilities in more than one category, the team need only qualify the child under one disability category. However, the child shall be evaluated in all areas related to the suspected disability or disabilities, and the child's IEP shall address all of the child's special education needs.” OAR 581-015-0072 and -0073 provide, in relevant part: “581-015-0072 Evaluation Procedures Each school district shall ensure that: . (2) A variety of assessment tools and strategies are used to gather relevant functional and developmental information about the child, including: (a) information provided by the parent, and (b) information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities). (3) The assessment tools and strategies are selected to assist the team in determining: (a) Whether the child is a child with a disability under OAR 581-015-0051; and (4) Any standardized tests that are given to a child: (a) Have been validated for the specific purpose for which they are used; (b) Are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests; and (c) If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g. the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report. In the Matter of A.A v Lincoln County School District, Page 20 of 26 (5) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient; . (7) No single procedure is used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; (8) The educational agency shall designate trained and knowledgeable personnel to conduct the evaluation: (9) The child is assessed in all areas related to the suspected disability or disabilities, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status and motor abilities; and (10) In evaluating each child with a disability under OAR 581-015-0071–0074, the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category (or categories) in which the child has been classified; (11)The school district uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors; (12)The school district uses assessment tools and strategies that provide releva nt information that directly assists persons in determining the educational needs of the child; (13) The evaluation shall be completed within a reasonable period of time. (a) A "reasonable period of time" means within 60 school days unless special circumstances require a longer period. (b) "Special circumstances" are circumstances outside the school district's control. Lack of availability of qualified staff to conduct the evaluation shall not be considered a special circumstance. School districts shall document any special circumstances. (c) The 60 day period shall begin on the date the parent gives written consent for the evaluation or the date the evaluation is initiated under OAR 581-015-0042(2). (d) The evaluation shall be considered completed on the date of the meeting to determine eligibility or to consider the results in reviewing the child's IEP. 581-015-0073 Interpretation of Evaluation Data In interpreting evaluation data for the purpose of determining if a child is a child with a disability under OAR 581-015-0051, and the educational needs of the child, each team shall: In the Matter of A.A v Lincoln County School District, Page 21 of 26 (1) Draw upon information from a variety of sources, including but not limited to, aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior; and (2) Ensure that information obtained from all these sources is documented and carefully considered.” “Review of Existing Data and Evaluation Planning (1) As part of an initial evaluation (if appropriate) and as part of any reevaluation, the child's IEP or IFSP team, and other qualified professionals, as appropriate, shall: (a) Review existing evaluation data on the child, including: (A) Evaluations and information provided by the parents of the child; (B) Current classroom-based assessments and observations; and (C) Observations by teachers and related services providers; and (b) On the basis of that review, and input from the child's parents, Identify what additional data, if any, are needed to determine: (A) Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability: (i) For a school-age child, under OAR 581-015-0051, or (ii) For a preschool child, under OAR 581-015-0943 or 0946; (B) The present levels of performance and educational or developmental needs of the child; (C) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and (D) Whether any additions or modifications to the special education and related services or, for a preschool child, EI/ECSE services are needed: (i) To enable the child to meet the measurable annual goals in the child's IEP or IFSP and (ii) To participate, as appropriate, in the general curriculum or, for a preschool child, appropriate activities. (2) The group described in section (1) may conduct this review without a meeting. If a public agency holds a meeting for this purpose, parents shall be invited to participate in conformance with OAR 581-015-0063. (3) The school district shall administer tests and other evaluation materials as may be needed to produce the additional data identified under subsection (1)(b). In the Matter of A.A v Lincoln County School District, Page 22 of 26 (4) If the child's IEP or IFSP team determines that no additional data are needed to determine whether the child is or continues to be a child with a disability, the public agency shall notify the child's parents: (a) Of that determination and the reasons for it: and (b) Of the right of the parents to request an assessment to determine whether, for purposes of services under this part, the child continues to be a child with a disability. (5) The public agency is not required to conduct the assessment described in subsection (4)(b) unless requested to do so by the child's parents. (6) For purposes of Section (1), "other qualified professionals" means individuals who are knowledgeable about the child's disability and, for students with limited English proficiency, knowledgeable about the implications of the child's language proficiency on their special education or EI/ECSE needs.” A school district has extensive, detailed obligations to any child it suspects, or has reason to suspect, may have a disability which adversely impacts his educational performance and may need special education services as a result of that disability. As discussed above, the District had reason to suspect that A. A. had a disability which adversely impacted his educational performance and that he needed special education services as a result of that disability. The District suggests that A.A.’s treating and evaluating medical professionals such as Drs. Thiel and Richardson and Ms. Kaczmarek should have told A.A.’s parents that he needed to be evaluated for possible IDEA eligibility and services as emotionally disturbed. Not only do they not have the legal obligation, as the District does have, to refer A.A. for evaluation, but I can find nothing in the record to indicate that any of A.A.’s treating and evaluating medical professionals had knowledge of the IDEA and its evaluation provisions. The District suggests that the failure of Mr. Bartlow and Dr. Greene to refer A.A. for IDEA evaluation is proof that he did not require an evaluation. Given Mr. Bartlow’s and Dr. Greene’s misconception that extreme behavior such as documented, serious suicidal or assaultive tendencies of significant intensity and duration are necessary before a child might even be suspected of being emotionally disturbed, that suggestion lacks merit. (E.g., T 389.) The District makes many speculations about A.A.’s psychological conditions and implies that Dr. Richardson did not have proper bases for his conclusions. Psychologists in Oregon do not give opinions in litigation lightly. E.g. Loomis v. Board of Psychologist Examiners, CA A90800 (2-11-98), Cochran v. Board of Psychologist Examiners, CA A107069 (12-6-00). The District has school psychologists on staff. The District presented no expert testimony rebutting the testimony and reports of Dr. Richardson or Ms. Kaczmarek. The District suggests that it has no obligation to evaluate a child unless the parent is sophisticated enough to request an “IDEA” evaluation by name and that if a parent approaches the District with concerns about her child’s health and declining grades and asks about a §504 In the Matter of A.A v Lincoln County School District, Page 23 of 26 plan - the only program she has heard of - then the District need only hold a meeting to develop, without conducting an evaluation, a §504 plan. The law clearly requires more. The District was obligated to conduct an evaluation, in accord with all of the above provisions, of A.A. to determine his eligibility under the IDEA. If, after conducting the required evaluation, a child is found eligible under the IDEA, an Individualized Education Program (IEP) team is then formed to develop an IEP. That team must contain, among other persons, at least one of the child’s regular classroom teachers and at least one person knowledgeable about the child’s disability and who can interpret the instructional implications of the evaluation results. OAR 581-105-0066; 34 CFR §300.344. An IEP meeting must be held within 30 days of a District’s determination that a child is eligible for special education under the IDEA. OAR 581-015-0065. Thus, a child must be evaluated and an eligibility determination made within 60 days and, if found eligible, an IEP meeting held within another 30 days. The resulting IEP must meet the many detailed requirements of OAR 581-015-0068 including statements of measurable annual goals and short-term objectives and the criteria and time-table for measuring and reporting progress toward those goals and objectives. And, any IEP must be “reasonably calculated to confer a meaningful educational benefit on the child.” Adams v. State of Oregon, 195 F.3d 1141, 1150 (9th cir. 1999). Generally, if a district failed to follow the procedures required by the Act and state law, it is unnecessary to discuss whether or not any IEP or pseudo-IEP was reasonably calculated to enable the child to receive benefits. W.G. v. Target Range School Dist., 960 F.2d 1479, 1485 (1992). Even if we were to assume in this specific case that the §504 plan of December 2000 could be construed as the substantive equivalent of an IEP reasonably calculated to confer a meaningful education benefit on A.A., it was clear by mid March, as discussed above, that the plan was not working as calculated and that A.A. needed to be evaluated for IDEA eligibility and a properly developed IEP. The district failed to provide a FAPE under the IDEA to A.A.
IV. REMEDY
Prior to conducting the required evaluation, a school district must notify the child’s parents of their rights under the IDEA. At that same time, the school district must also notify the child’s parents of the parents’ responsibility under the IDEA to notify a district of their dissatisfaction with the child’s education and of their intent to enroll their child in a private school at public expense at least ten business days prior to doing so. If the parents do not comply with that notice requirement, they might be denied reimbursement for the costs of the private placement even if the school district had failed to provide a FAPE to their child. OAR 581-015-0079(2)(h); 581-015-0156. Of course, if the parents weren’t notified of this requirement, it is inapplicable. OAR 581-015-0156(6)(d). The District maintained that the tabloid sent to all NHS families advised the parents of their obligation. It advised them of very little about programs for disabled students. It did not advise them of their private placement notice obligations. Since the District never evaluated A.A. under the IDEA, the District had no occasion to, and never did, notify A.A.’s parents of the notice requirement. In the Matter of A.A v Lincoln County School District, Page 24 of 26 A.A.’s parents worked closely with the District for two years to get A.A.’s education on track. They did all they were asked to do and more. The District failed to do all that it was required to do. With A.A.’s continued failure in school and the District’s representations to them that they could do no more to help other than to reduce A.A.’s school day to two hours, his parents reasonably placed him in private schools which enabled A.A. to make educational progress. If a school district fails to provide a FAPE, parents have an equitable right to be reimbursed for their costs of a unilateral placement obtained for their child during the period the
district failed to offer a FAPE. Burlington v. Dept. of Educ. Massachusetts, 471 U.S. 358
(1985); Florence County School Dist. Four v. Carter, 114 S.Ct. 361 (1993). Procedural
inadequacies which result in the loss of educational opportunity or seriously infringe parents’
opportunity to participate in the IEP process will be considered violations of IDEA resulting in
an equitable right to reimbursement of the parents by a district for the expense of providing an
appropriate education. W.G. v. Target Range School Dist., 960 F.2d 1479, 1484 (1992).
Although the Freer program is not an accredited school, it provides some education during its twenty-day program in the mandatory daily journal writing by the participants and in daily education about drug and alcohol abuse and recovery. Those are important enough subjects in these times to warrant some days of intensive instruction. Furthermore, the Freer program offered an evaluation and assessment by trained therapists of the nature of A.A.’s behavioral proble ms and of the proper educational and/or therapeutic placement for A.A. after the twenty-day program. That is, A.A.’s placement in Freer was not only educational but was also for diagnostic and evaluation purposes. As such, its costs are recoverable by his parents. See, Department of Education v. Cari Rae S., 158 F.Supp.2d 1190 (D. Hawaii 2001). MBA is an accredited high school. It is providing A.A. an education under a unique student action plan which took into consideration the results of his evaluations by Freer and by Dr. Conway. A.A.’s academic performance and his behavior in school have improved. A.A. is making some educational progress. The District did not show that A.A. has received no educational benefit from his placement at MBA. The parents are entitled to reimbursement of their costs incurred in A.A.’s placement at MBA. They are entitled to reimbursement of such costs incurred through the date of the hearing and until the District provides a FAPE to A.A. by completing an evaluatio n and either offering an appropriate IEP or, if he has recovered sufficiently that he is no longer a child with a disability and/or no longer needs special education, giving the parents proper notice of his ineligibility under the IDEA. In the Matter of A.A v Lincoln County School District, Page 25 of 26 FINAL ORDER
The District has failed to offer A.A. a FAPE. It shall reimburse A.A.’s parents for the costs of his placement in the Freer Program in June 2001 and for the costs of his placement in the Mount Bachelor Academy through such time as the District offers him a FAPE. Darrell D. Walker, Administrative Law Judge APPEAL PROCEDURES

NOTICE TO ALL PARTIES : If you are dissatisfied with this Order you may, within 120 days
after the mailing date on this Order, commence a nonjury civil action in any state court of
competent jurisdiction, ORS 343.175, or in the United States District Court, 20 U.S.C. §
1415(e)(2). Failure to request review within the time allowed will result in LOSS OF YOUR
RIGHT TO APPEAL FROM THIS ORDER.

ENTERED at Salem, Oregon this 1st day of May, 2002 with copies mailed to:
Trudy Jaynes, Oregon Department of Education, Public Service Building, 255 Capitol St. NE,
Salem, OR 97310-0203


In the Matter of A.A v Lincoln County School District, Page 26 of 26

Source: http://www.ode.state.or.us/services/disputeresolution/dueprocess/DP-01-127.pdf

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