alj: south whidbey cause no. 2003-se-0138 · appropriate sensorimotor test, such as the sipt, the...

DEC 0 3 OFFICE OF

ADMINISTRATIVE HEARINGS STATE OF WASHINGTON

OFFICE OF ADMINISTRATIVE HEARINGS FOR THE SUPERINTENDENT OF PUBLIC INSTRUCTION

IN THE MATTER OF:

SOUTH WHIDBEY SCHOOL DISTRICT

S PECl AL E DUCAT10 N CAUSE N0.2003-SE-0138

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Administrative Law Judge Janice E. Shave conducted a hearing in Freeland,

Washington, on November 14,2003. The parents of the student whose education is at

issue in this proceeding (hereinafter the Parents and the Student) were assisted by non-

attorney advocate (who is also the aunt by marriage of the student). The

South Whidbey School District (hereinafter the School District) appeared through its

director of special services, Diane Watson, and was represented by J. Lane Crowder,

attorney at law.

Witnesses appearing and testifying were as follows: Diane Watson, director

of student support for the School District; , school psychologist; the

Mot her; , school counselor; , Ph.D., occupational

therapist (OT) and behavioral biologist; , speech and language pathology

(SLP) therapist); and , OT.

The following exhibits were admitted: Joint (J) 1 - 17; School District’s (S) 1 - 24; Parents’ (P) 8, 9, 10, 12, 13, 15, 16, 18, 21, 22, 28, 33 and 34.

PROCEDURAL STATEMENT

1. The Parents requested the School District provide an independent

educational evaluation (IEE) at public expense by means of a letter to the School

District, dated and received October 7, 2003. Exhibit J 1. The School District then sent

a request for administrative due process hearing to the Office of Superintendent of

Public Instruction (OSPI). It was received by OSPl October 21, 2003,and assigned

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER -

Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle. WA 98101-1 100 (206) 464-6322 1-800-583-8270 FAX (206) 587-51 36

Special Education Cause No. 2003-SE-0138. A Notice of Prehearing Conference and

Notice of Hearing were mailed to the parties October 23, 2003.

2. The School District’s hearing request in this matter relates to the

Parents’ request for an independent educational evaluation (IEE) at public expense, and

the School District’s request to override the Parents’ refusal to consent to a re-evaluation

performed by personnel chosen by the School District.

3. On October 27, 2003, OSPl received a due process hearing request

submitted by the Parents. It was assigned Special Education Cause No. 2003-SE-0139.

The School District’s request for hearing (2003-SE-0138) and the Parents’ request for

hearing (2003-SE-0139) both involve the same child and the same School District.

4. The Parents’ hearing request (2003-SE-0139) restates the Parents’

request for an IEE, and also includes allegations that the School District failed to provide

the Student with a free appropriate public education (FAPE). The matters were not

consolidated.

ISSUES AND REMEDIES

The issues for hearing are:

Whether the School District may override the Parents’ refusal of the School

District’s request to conduct a complete re-evaluation of the Student;

Whether the School District has appropriately evaluated the Student in all

suspected area(s) of disability;

And, whether the Parents are entitled to their requested remedy, or other

equitable remedies, as appropriate. The Parents’ requested remedy is the provision of

an IEE at public expense. The Parents identified a specific provider - the University of

Washington Center for Human Development and Disability (CHDD) - to perform the IEE.

FINDINGS OF FACT

1. As of the date of the hearing, the Student was currently enrolled in the

seventh grade at Middle School ‘ ) in the School District. He is

twelve years old. He has been educated as a special education student by the School

District each year from preschool to the present, with the exception of 1 st and 2nd grades,

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ~

Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270

. FAX (206) 587-51 36

when his Parents withdrew him from public school and home-schooled him. The School

District has prepared a number of individualized education programs (IEPs) for the

Student as a special education student. Those IEPs are not at issue in this proceeding.

The Student presents a complex picture of abilities, disabilities and

educational needs. The Student has been diagnosed with the following conditions:

bipolar affective disorder - predominant depressed mood; intermittent explosive disorder;

attention deficit activity disorder - hyperactive subtype; Asperger Syndrome; significant

weight loss (in 2001); and learning disorder - not otherwise specified (NOS). The

diagnoses have been provided by various health care providers at various times.

2.

3. The diagnosis of Asperger Syndrome was made by

Ph.D., (one of the Student’s health care providers) in or about August, 2001. The

Asperger Syndrome symptoms include but are not limited to extreme difficulty with

changes of place, people, or activity, and difficulty with social interaction

4. Shortly after the Parents received the diagnosis of Asperger Syndrome

they provided information about it to the School District. Exhibit J 17. The Parents and

the School District both wanted the Student to be reevaluated after the new diagnosis.

5. Following the new diagnosis, the School District conducted an

evaluation of the Student in the following areas: speech and language, academic,

cognitive, behavioral, fine motor, and adaptive skills. The School District utilized its own

staff to perform the majority of the 2001 reevaluation. Exhibits J 8, 14 and 15.

6. The School District contracted with the Center for Human Development

and Disability (CHDD) of the University of Washington to do a portion of the 2001

reevaluation, specifically, a psychological evaluation and a pediatric medical evaluation.

Exhibits J 9, 10, 12, and 13. Although any change in routine is upsetting to the Student

due to the Asperger Syndrome, he was able to tolerate the CHDD evaluation well. Prior

to his evaluation appointment, the Parents drove him to Seattle and showed him the

building where the evaluation would take place. They role-played the evaluation with

him, so that he would not be overwhelmed by the newness of his surroundings or the

strangeness of the testers or the testing.


Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270 FAX (2061 587-51 36

7. The CHDD evaluation was performed by many individuals. The Parents

were pleased with the evaluation process. Individuals from many different areas of

practice were brought in to the evaluation as it occurred. This meant the Student did not

need to schedule multiple days of evaluation, which would have been more stressful to

him than testing which took place during a single day, at a single location.

8. The Parents do not disagree with the 2001 CHDD evaluation, and have

not expressed disagreement with the School District’s portion of the 2001 reevaluation.

9. Based upon the Asperger Syndrome diagnosis and the CHDD

evaluation and recommendations, the IEP team, including and consistent with the

wishes of the Parents, initiated speech and language pathology (SLP) services (due to

difficulties with social aspects of communication) and occupational therapy (OT)

services.

10. On October 16, 2002, the Parents made a telephone request to the

School District, asking the School District to discontinue SLP services for the Student.

On October 17, 2002, the School District issued a Prior Written Notice to the Parents

proposing to dismiss the Student from his SLP services. Exhibit D 15, in response to the

Parents’telephone request. SLP services were discontinued effective October 17,2002,

and have not been restarted.

11. The Parents requested the School District discontinue occupational

therapy (OT) services in mid-March, 2003. OT services were discontinued at their

request on or about March 17, 2003, and have not been restarted. Exhibit D 14.

12. The Parents assert they requested SLP and OT services be

discontinued because the recommendations contained within the CHDD report were not

being followed. That was not the School District’s understanding of the Parents’ request,

at the time it was made. The Parents do not have confidence in the professional

capabilities of the School District’s SLP and OT

13. The School District issued a Prior Written Notice on September 8,2003,

in order to convene an IEP meeting, pursuant to the results of a citizen’s complaint made

by the Parents to OSPI. The citizen’s complaint is not at issue in this proceeding.


Oflice of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270 FAX (206) 587-5136

Exhibits D 12 and 13. On September 16, 2003, the parties participated in an IEP

meeting. Exhibits D 12 and 13. The Parents were accompanied by

who has a doctorate in behavioral biology and is a licensed OT.

completed a screening of the Student on or about September 6, 2003. At that IEP

meeting the Parents provided the School District with screening results.

Exhibits J 4 and 5. Although the definition of a “screening” was not provided, it is

something less than a “total evaluation.” A screening precedes and determines the need

for a full evaluation or reevaluation.

14. The Student’s first encounterwith * was due to the Parents’

concerns about the Student’s sensory issues, also described as neuro-integration. The

Student has hypotonia (low muscle tone) and has difficulty maintaining attention and

alert states. believes the Student needs to be reevaluated, and the most

comprehensive test is the Sensory Integration and Praxis Test (SIPT). She notes the

Student has extreme defensiveness, and some unintegrated primitive reflexes, due to

his various disorders. This causes him to go into a fight/flight/fright response when

stressed. It can lead to rages.

15. As of the date of the hearing, had observed or tested the

Student a total of 4 to 5 times, each session lasting 2 to 2.5 hours. She has worked with

the Student at her home/office and at the Student’s home. The mother drove the

Student by home/office prior to his visit there, in order to

introduce/desensitize him to it.

16. determined the School District should perform an

appropriate sensorimotor test, such as the SIPT, the Winnie Dunn Sensory Profile, or

the DeGangi-Berke test of sensorimotor function. Exhibit J 4. She also recommended

the Student receive OT services, and made specific OT program recommendations.

She also recommended the Student participate in an adaptive physical education class.

He was not participating in PE classes due to ankle instability from soccer injuries in two

previous consecutive years.



. ’ FAX (206) 587-5136

17. The September 16, 2003, IEP meeting was adjourned for the School

District to review the new Struthers information. The IEP meeting was reconvened

October 6, 2003. Exhibit D 10. The School District prepared a proposed IEP for both

the September 16 and October 6, 2003, IEP meetings. Exhibits J 6 and D 8.The draft

IEPs included some information on SLP and OT goals. Drafting the SLP and OT

portions of the proposed IEP was made difficult by the lack of current information on

those topics. For example, it was not possible to complete the portion of the IEP which

requires information about present levels of performance. The Parents did not sign a

new IEP at the September or October 2003, IEP meetings.

18. Following the discussions of September 16 and October 6, 2003,

School District personnel realized they needed updated information about the Student

to draft an appropriate IEP, based upon the additional information presented by the

Parents and their care provider to the School District, and the Parents’ requests for

various reevaluations.

19. On October 7, 2003, the School District issued a Prior Written Notice,

advising the Parents the School District proposed to conduct a new OT and SLP

evaluation, utilizing the School District’s own middle school staff. Exhibit J2. In

response to the School District’s proposal, the Parents submitted a written notice also

dated October 7, 2003. Exhibit JI. The Parents felt strongly the Student needed

evaluation and services, in OT and SLP. However, they expressed their belief the

Student would not be best served if those evaluations were done by School District

personnel. They renewed their request for a physical evaluation for PE, and requested

the Student have a comprehensive evaluation (physical, general intelligence, academic

performance and SLP and OT needs) by CHDD.

20. On October 21, 2003, OSPl received the School District‘s request for

due process administrative hearing, seeking to override the Parents’ refusal to allow the

School District to conduct the reevaluation, and seeking to demonstrate that the Parents

were not entitled to an IEE at public expense. This occurred 14 days after the School

District received the Parents’ October 7,2003, request for comprehensive reevaluation.


Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270 FAX (206) 587-51 36

The School District also prepared a Prior Written Notice addressed to the Parents and

dated October 21, 2003. It notified the Parents the School District was proposing to

conduct a comprehensive evaluation by evaluators selected by the School District.

Exhibit D7.

21. The School District notified the Parents of the identities of the

individuals it proposed to conduct the comprehensive reevaluation, and offered the

Parents copies of the curricula vitae ( c . v . ~ ) of the three primary individuals,

22. holds a doctorate in developmental and clinical

neuropsychology. He is the director of the Neuropsychological Consultation Service at

Children’s Hospital and Regional Medical Center (hereinafter Children’s) in Seattle,

Washington. He is an acting assistant professor at the University of Washington (UW)

Medical School Department of Psychiatry and Behavioral Sciences. He has been active

as an assistant professor or instructor of neuropsychology and/or behavioral sciences

from 1979 to the present time. His work has been published in peer reviewed journals,

and has spoken at national and international conferences on neuropsychological topics.

He is recognized as an expert in his field. He is a qualified professional and is

knowledgeable about at least one of the known areas of disability of the Student.

23. holds a Master’s degree in speech pathology. She has

worked in the field of communication disorders since 1975. She has worked at

Children’s as an SLP since 1993. She has held several positions of responsibility

related to the field of communication disorder, including supervisory positions over

graduate and undergraduate students, and including being the chairperson of the UW

Communication Disorders Specialist Professional Education Advisory Board, for many

years. The choice of as a reevaluation team member was made by Mr.

Breiger. She is a qualified professional and is knowledgeable about at least one of the

known areas of the Student.

24. ‘ earned a doctorate of philosophy from the UW in a joint

program between the special education and rehabilitation medicine departments. She



is an OT and her specific area of expertise is assistive technology. She has worked as

an adjunct, assistant or associate professor in the OT field since 1992, and has worked

as a registered OT since 1985. She has published a variety of articles in peer

reviewedhefereed journals and books, and has presented papers at national and

international conferences. She is currently an associate professor at the University of

Puget Sound school of Occupational Therapy in Tacoma, Washington. She was

selected by the School District to be a member of the reevaluation team, and also to

provide specific on-site instruction and consultation support to School District personnel.

She is a qualified professional and is knowledgeable about at least one of the known

areas of disability of the Student.

25. The Parents object to the individuals selected by the School District for

a variety of reasons. One reason is that the Parents believe they should have had input

into which individuals were selected to conduct the reevaluation, just as the IDEA and

state law require parental participation into other aspects of special education decision-

making. The Parents also believe the CHDD staff are exceptionally well qualified to

conduct the reevaluation, since CHDD did the last evaluation. The Parents note the

Student may have significant difficulty participating in a comprehensive reevaluation at

a new location with new personnel. They fear the reevaluation will stretch over several

days if done by an organization or group of individuals other than CHDD.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties

and subject matter of this action for the Superintendent of Public Instruction as

authorized by 20 U.S.C. Section 1401 efseq. (Individuals with Disabilities Education Act

(IDEA)), Title 28A.155, 34.05 and 34.12 Revised Code of Washington (RCW), and the

regulations promulgated thereunder, including 34 CFR 300 ef seq., and Chapter 392-

172 Washington Administrative Code (WAC).

2. The Individuals with Disabilities Education Act (IDEA) (formerly the

Education for All Handicapped Children Act) and its implementing regulations provide

federal money to assist state and local agencies in educating children with disabilities,

FINDINGS OF FACT, CONCLlJSlONS OF LAW AND ORDER -

Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270 FAX’ (206) 587-5136

and condition such funding upon a state’s compliance with extensive goals and

procedures. In Hendrick Hudson District Board ofEducation v. Rowley, 458 U.S. 1786,

102 S. Ct. 3034 (1982), the Supreme Court established both a procedural and a

substantive test to evaluate a state’s compliance with the Act, as follows:

First, had the state complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the state has complied with the obligations imposed by Congress and the courts can require no more. 103 S. Ct. at 3051.

3. A “free appropriate public education consists of both the procedural and

substantive requirements of EHA. The Rowley court articulated the following standard

for determining the appropriateness of special education services:

According to the definitions contained in the (Education for All Handicapped Children Act) a ‘free appropriate public education’ consists of education instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the state’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items of the definitional checklist are satisfied, the child is receiving a ‘free appropriate public education’ as defined by the Act. 103 S. Ct. at 3041,3042.

4. Each school district is required to ensure that a reevaluation of each

special education student is conducted in accordance with the evaluation and

reevaluation procedures contained within Chapter 392-1 72 WAC if conditions warrant

a reevaluation, or if a special education student’s parents or teacher requests a

reevaluation, but at least once every three years. WAC 392-172-182.



5 . In the present case, the Parents requested reevaluation, and the

conditions warranted reevaluation. The specific conditions which warranted reevaluation

were the Parents’ request to reinstate OT and SLP services after a lapse of a significant

period of time, as well as the new screening report by , an OT who holds

an advanced degree in behavioral

sciences. It is not necessary for the parties to wait until the regularly scheduled triennial

(three year) reevaluation.

6. Parents shall be afforded an opportunity to participate in meetings with

respect to the identification, evaluation, educational placement and provision of a FAPE

to the special education student. WAC 392-172-105(1). A meeting does not include

preparatory activities that public agency (school district) personnel engage in to develop

a proposal or response to a parent proposal that will be discussed at a later meeting.

WAC 392-1 72-1 05(3).

7. The Parents were afforded an opportunity to participate in meetings

regarding the reevaluation. The School District was not required to include the Parents

in its internal discussions which were for the purpose of developing a response to the

Parents’ request for a comprehensive evaluation by CHDD, since the School District

later held a meeting to discuss the School District’s response.

8. An evaluation must be sufficiently comprehensive to identify all of the

student‘s special education and any necessary related service needs, pursuant to WAC

392-1 72-1 06. The Parents requested, and the School District proposes, a

comprehensive reevaluation. There is no dispute about the Student’s need for a

comprehensive reevaluation.

9. Most importantly for the dispute at hand, the reevaluation of a special

education school student shall be performed using the procedures established in

Chapter 392-1 72 WAC, and the evaluation of a student with a suspected disabilih, will

be conducted bv a qroup of qualified professionals selected by the school district and

knowledqeable about the student and the suspected areas of disabilities. WAC 392-

172-1 08(2)(a). Parents are accustomed to being full participants in the education oftheir


Office of Administrative Hearings 1904 Third Avenue, Suite 722 Seattle, WA 98101-1100 (206) 464-6322 1-800-583-8270 FAX (206) 587-5136

special education children. However, in the specific area of the choice of evaluators, a

school district is entitled by law to chose the evaluators, so long as the evaluators meet the requirements. It must be determined whether the evaluators chosen by the School

District meet the requirements of WAC 392-1 72-108(2)(a).

10. The evaluators chosen by the School District are qualified professionals

who are knowledgeable about the Student’s suspected areas of disabilities. They will

become knowledgeable about the Student, the last requirement, when they have had

an opportunity to review the Student’s records.

11. When a student is a candidate for evaluation, a school district shall

obtain consent, fully evaluate the student and arrive at a decision pursuant to WAC 392-

172-1 11 within thiw-five days after the date the refusal of the parents or the adult

- student to qrant consent has been overridden pursuant to a hearing in accordance with

WAC 392-1 72-350 et seg. Authority exists for a school district to override a parent‘s

refusal to consent to reevaluate.

12. Parents of a student referred for special education have the right to

obtain an independent educational evaluation (IEE) of the student if the parent disaqrees

with the District’s evaluation. WAC 392-1 72-1 50(1). The Parents do not disagree with

the School District’s current evaluation, which is the two-year old CHDD evaluation,

coupled with the School District’s own portions of the 2001 reevaluation. Therefore, as

a threshold matter, the Parents are not entitled to an IEE at public expense.

13. The parent may ask that the IEE be at public expense, and if the District

objects, the District must establish through the hearing process that its evaluation is

appropriate. WAC 392-1 72-1 50(5).

14. The School District’s proposed evaluation addresses all areas of

suspected disability, appears sufficiently comprehensive in design, and is scheduled to

be conducted by a qualified team, using a variety of assessment tools. The further

specifics of the reevaluation are not yet at issue, since it has not yet been conducted.



15. The School District’s proposed reevaluation meets the criteria of the

regulations contained within Chapter 392-1 72 WAC. There is no dispute that the School

District complied with the parental notification requirements of WAC 392-1 72-1 1 1.

16. The School District has met its burden of proof and has shown that its

proposed evaluation was appropriate.

17. The Parents’ concerns about their child’s difficulties with new

environments/staff/testing procedures are valid and reasonable. In order to obtain valid

reevaluation results, the School District and the selected evaluators will need to work

together with the Parents to minimize the stress to the Student. However, there is no

legal basis for the challenge of the School District’s chosen personnel to conduct the

reevaluation. The Parents are encouraged to share any additional information to reduce

stress to the Student, and to facilitate obtaining valid results to better determine and

serve the Student’s education needs.

DECISION AND ORDER

The School District has established that it is entitled to chose the evaluation

team members. The Parents’ refusal to consent to reevaluation is overriden. The

School District may proceed to reevaluate the Student’s areas of suspected disability.

The Parents’ request for an IEE at public expense is denied. The Parents are

ordered to cooperate with the School District in the reevaluation.

DATED at Seattle, Washington on the date stamped above.



. FAX (206) 587-5136

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