before the administrative hearing commission state … · before the . administrative hearing...
TRANSCRIPT
Before the Administrative Hearing Commission
State of Missouri
, IN THE INTEREST OF , Petitioner, vs. CAMDENTON R-III SCHOOL DISTRICT, Respondent.
) ) ) ) ) ) ) ) ) ) ) )
No. 17-1340
DECISION
(Guardian) failed to carry her burden of showing the Camdenton R-III School District
(District) denied Student a free appropriate public education (FAPE).
Procedure
On August 16, 2017, Guardian filed a due process complaint against the District on
behalf of Student. On August 16, 2017, we sent the parties our notice of pre-hearing conference
and notice of hearing. On August 28, 2017, the District filed its answer to the due process
complaint. On August 30, 2017, the Guardian and the District filed their pre-hearing conference
statements. On August 30, 2017, we continued the pre-hearing conference to September 6, 2017.
On September 6, 2017, we held a pre-hearing conference, and issued an order granting the
District’s motion to continuing the hearing to November 6-7, 2017.
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On November 6-7, 2017, we held a hearing in this matter. Guardian appeared pro se.
James G. Thomeczek and James V. “Jake” Thomeczek of Thomeczek & Brink, LLC, appeared
on behalf of the District. The case became ready for decision on November 24, 2017, when the
last brief was filed.
Findings of Fact
1. Student is nine years old and is in the 3rd grade in the Camdenton R-III School
District.
2. Student is a child with a disability under the terms of the Individuals with
Disabilities Education Act (IDEA). He has an educational diagnosis of Emotional Disturbance,
and medical diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), and Autism.
Student has an Individualized Education Program (IEP).
3. The District consists of a central campus with administrative and ancillary services,
along with the following academic buildings: Camdenton High School (Grades 9-12),
Camdenton Middle School (Grades 7-8), Dogwood Elementary (Grades Pre-Kindergarten-2),
Hawthorn Elementary (Grades 3-4), and Oak Ridge Intermediate (Grades 5-6).
4. In addition, there are two elementary schools separated from the main campus:
Hurricane Deck Elementary (Grades Pre-Kindergarten-4) located in Sunrise Beach, Missouri,
and Osage Beach Elementary (Grades Pre-Kindergarten-4) located in Osage Beach, Missouri.
5. Until the 2016-17 school year, student attended Hurricane Deck Elementary School.
Student’s Behavioral Issues
6. Mike Wonderly was Student’s 2nd grade teacher at Hurricane Deck Elementary
during the 2016-17 school year.
7. The longest periods Student was present in Wonderly’s classroom was one full day
and one half day. Wonderly testified “there were parts of many days he was in there as well.” Tr.
265.
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8. During one of the days Student was present in Wonderly’s classroom, Student
lunged at another student (Student #2) because Student did not like the way that Student #2 was
staring at him.
9. Student was rarely present in Wonderly’s classroom because he exhibited problem
behaviors before class, and would have violent outbreaks when he did appear in his classroom.
10. On at least one occasion, Wonderly had to move thirteen 2nd graders into another
classroom after observing Student attempt to stab another student with a pencil.
11. It was easier for Wonderly to move the other 2nd graders into another classroom than
to remove Student from the classroom during this episode.
12. On one occasion, Student kicked Wonderly.
IEPs
13. Guardian was present at the following IEP meetings involving Student: May 19,
2016, December 20, 2016, April 10, 2017, and May 19, 2017.
14. Guardian took notes during the IEP meetings.
15. The District’s IEP meeting notes indicate that Guardian expressed concerns about
Student’s IEP, and that Guardian did not agree with the District’s change in placement of
Student’s IEP from Hurricane Deck Elementary to Camdenton Middle School.
16. Student’s current IEP, dated May 19, 2017 places him 100% of the school week in
specialized instruction in social emotional skills in a self-contained classroom with the goal of
returning him to the regular education system.
17. The District considered Guardian’s request for homebound instruction for Student’s
special education program during the December 20, 2016 IEP meeting. The District believed that
homebound instruction would be a more restrictive environment than Learning Momentum.
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18. On January 11, 2017, the District sent Guardian a Notice of Action, rejecting
Guardian’s request for a homebound placement for Student.
19. On January 18, 2017, Guardian filed a child complaint with the Department of
Elementary and Secondary Education (DESE) raising seven issues including: that the District
violated state and federal regulations by not providing written notice in the December 16, 2016
draft IEP of the change in placement for Student’s IEP, from Hurricane Deck Elementary to
Camdenton Middle School. Furthermore, Guardian asserted in the complaint that the District
inappropriately changed the placement of Student from an elementary school setting to a middle
school setting.
20. On April 27, 2017, DESE issued a final decision on Guardian’s child complaint.
DESE’s final decision found in favor of the District on six of Guardian’s seven complaints, but
found that the District erroneously classified Student’s move from Hurricane Deck Elementary to
the Learning Momentum program within Camdenton Middle School as a change of location, as
opposed to a change in placement to a private separate day facility, and that it failed to provide
appropriate written notice for the change of placement for Student’s special education program.
21. Student’s May 19, 2017 IEP correctly reflects that the Learning Momentum program
is a private separate (day) facility in accordance with DESE’s decision on the matter, and by
letter dated August 17, 2017 from Stephen Barr to Superintendent Tim Hadfield, DESE
approved the District’s corrective actions.
Learning Momentum
22. On December 12, 2017, the District entered into a contract with Learning
Momentum, a private contractor located in O’Fallon, Missouri, to provide educational and
behavioral services on-site at a District-owned facility.
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23. Learning Momentum is housed within Camdenton Middle School about 25 to 35
minutes away from Hurricane Deck Elementary. It is in the basement, along with the Special
Education Services office.
24. In between the Learning Momentum classroom and the Special Education Services
office, there is a math and engineering classroom, a boiler room, and a shop classroom. There is
also a shed, which is sometimes used as an additional classroom. The shed has an overhead door
entrance into Camdenton Middle School that is used for large items to be brought into
Camdenton Middle School. The shed is rarely opened.
25. Upon leaving the Learning Momentum classroom, one would have to make a
number of turns and walk past office staff in order to leave the building.
26. Learning Momentum has been approved by DESE to provide special education
services to public agencies.
27. On January 9. 2017, Learning Momentum’s Camdenton Middle School location
opened and it started its Rage to Reason program.
28. Learning Momentum serves school districts by using applied behavior analysis in the
form of consultation, training and programing.
29. Board Certified Behavior Analysts (BCBA) look at how positive reinforcement can
increase positive behavior, how consequences decrease negative behavior, and what these
models and behavioral principles tell about how people learn. Applied behavior analysis is used
to teach new skills and decrease problem behavior.
30. A BCBA must complete course work and take an exam that covers the principles of
applied behavior analysis.
31. Learning Momentum hires and supervises the classroom teachers for its program.
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32. One of Learning Momentum’s goals is to build capacity within school districts that
may not have access to BCBAs so that they will ultimately be able to handle the needs of
students on their own.
33. On February 15, 2017, Student began attending the Rage to Reason program at
Learning Momentum.
34. On February 18, 2017, Guardian filed a due process complaint on behalf of Student
with this Commission alleging that the Learning Momentum classroom was a more restrictive
environment that the homebound instruction placement she had requested and been denied.
35. On February 20, 2017, as part of the mediation agreement that resolved the prior
case, Guardian signed a consent form allowing Learning Momentum to provide treatment on a
trial basis to Student. Guardian has since signed a full consent form.
36. The goal of the Rage to Reason program is to get the students who are enrolled in the
program to follow directions in the classroom without problem behavior, and to respond
appropriately when people tell them “no.” Rage to Reason also teaches the students “coping
skills” so that they can be returned to a less restrictive environment, ideally the general education
classroom.
37. As stated in the May 2017 monthly report for Learning Momentum, the Rage to
Reason program is composed of four phases:
PHASE 1 Assessment and Reinforcement - During this phase there are no demands placed on the student. The staff is forming a relationship with the student and gathering data to complete a [FBA] and reinforcer assessment. The student is asked to engage in preferred activities both with staff and independently. During this phase we also work with the students on transition from one task to another and stopping preferred tasks. The goal of this phase is to determine reinforcers that are motivating for student and for the student to build positive relationships with staff. PHASE 2 Functional Communication Training (FCT) - During this phase the student is presented with work tasks "Green tasks", they can however choose not to do this by using appropriate functional communication such as "no thank you",
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or "maybe later". As long as the student uses appropriate language they will gain access to reinforcers. The goal of this phase is to have the student use appropriate words to escape undesirable tasks rather than challenging behaviors. PHASE 3 Differential Reinforcement- Information from Phase 1 & 2 are used to determine highly reinforcing activities/items (A List) and less reinforcing activities/items (B List). During this phase the student is again presented with work, they can choose to engage in the work and earn an A List reinforcer or choose to use FCT to escape the task and earn a B List reinforcer. The goal of this Phase is for the student to recognize that completing optional "Green Work" will result in a better reinforcement than opting not to complete the work. PHASE 4 Extinction - During this Phase there is an introduction into what we call "Red Work" this is work that the student does not have a choice to complete and always results in an A List reinforcer. The student is presented with the "Red Work" and told what the expectation is the staff will assist the student if necessary in completing it or wait them out if they refuse. Once the "Red Work" is presented the student is not allowed to engage in any other task other than completing it (not including bathroom and lunch). The goal of this Phase is to teach the student that certain work when presented ("Red Work") must be completed and will never go away despite any challenging behaviors that may occur.
Exhibit 1 at 141-42.
38. At the end of Phase 4, students in the program are transitioned out of the program,
and back into the general education classroom.
39. Student started Phase 2 of Rage to Reason on February 23, 2017, after spending a
total of 6 days in Phase 1.
40. Student started Phase 3 of Rage to Reason in May 3, 2017. Student spent a total of
34 days in Phase 2 of the program. Ex. 1 at 142.
41. As of the date of the hearing, Student is still in Phase 3 of the Rage to Reason
program.
42. Kathleen Henson is Student’s teacher in the Rage to Reason program.
43. Henson assigns classroom work to Student within the bounds of the Rage to Reason
program based upon third grade lesson plans and materials provided by Michelle Rohrer from
her classroom at Hawthorn Elementary. While Student may do fewer problems or otherwise have
an adjusted work load, his assignments come from the general education curriculum.
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44. Rohrer is Student’s regular classroom teacher. Rohrer created the 3rd grade lesson
plans for Student, and provided books and materials to Student at Learning Momentum.
45. Rohrer and Henson are regularly in contact with one another in regard to Student’s
3rd grade curriculum.
46. Rohrer visits Learning Momentum once a week to observe Student. Rohrer brings
books that Student likes to read. Rohrer also observes how Student interacts with the curriculum
at Learning Momentum.
47. When Rohrer visits Student at Learning Momentum, she sits by him. Student is
generally the one who starts talking with Rohrer. Rohrer provided Student with online math
games that were played by students within her class. Student is able to compete against other
students within her classroom during the online math games.
48. Although there may be a small delay in the lesson plans that were sent to Henson for
Student to complete at Learning Momentum, Rohrer believed that Student completed her lesson
plans at the same pace as the rest of her 3rd grade class.
49. Examples of the ways Learning Momentum can modify Student’s 3rd grade
curriculum are by allowing Student to watch a science experiment online or read a science book
while Rohrer’s 3rd grade class conducts a science experiment.
50. As a student in Henson’s classroom at Learning Momentum, Student has kicked,
slapped, spit, bitten, used profanity, and yelled at Henson. Student hits other people with the
intent to leave a mark upon the person.
51. There is currently one other student in Student’s Learning Momentum classroom.
Student has attempted to attack the other student by charging or throwing items at the student.
52. Student’s behavior has improved since starting Learning Momentum; however, it is
inconsistent. Student’s good behavior can last for weeks and be followed by periods of
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significant aggressive behavior, yelling, and use of inappropriate language. These periods where
Student is exhibiting problem behavior could last between 0.5 to 1.5 hours per day and may
occur at multiple times throughout the day.
53. Henson does not believe that Student is ready to transition back to the regular
classroom based upon Student’s inconsistent behavior and inability to consistently utilize the
functional communication skills that he is being taught at Learning Momentum.
Independent Educational Evaluation Of Student’s Disability/December 2, 2016 FBA
54. On December 2, 2016, Tara Hayes, a BCBA, completed a Functional Behavior
Assessment (FBA) on Student.
55. An FBA is an ongoing assessment of what happens in the classroom.
56. An FBA was conducted on Student in order to identify 1) behaviors that impede
Student’s progress in a school setting, 2) antecedent events that predict when these behaviors
may occur, and 3) consequence events that maintain the behaviors of concern.
57. Student’s FBA indicated that the behaviors of concern included the following:
• Inappropriate language (30 incidents across 5 days of data collection),
• Elopement ( 8 incidents across 5 days of data collection),
• Aggression ( 138 incidents across 7 days of data collection),
• Refusal ( 23 incidents across 5 days of data collection), and
• Property Destruction (18 incidents across 5 days of data collection).
58. The FBA also concluded that Student engaged in these behaviors in order to escape
non-preferred academic demands and non-preferred academic settings, and to gain attention from
teachers and access to sensory input.
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59. Student’s FBA also stated the following: “Since behaviors serve multiple functions,
minimal data was collected, and automatic function is suspected it is recommend[ed] that further
analysis be conducted to confirm hypotheses.” Ex. K.
Request for IEE
60. On March 6, 2017, Guardian requested an educational evaluation for special
education services of Student because of her belief that the December 2, 2016 FBA conducted by
Hayes may have been inaccurate due to Student being in a “constant state of dysregulation.” Ex.
1 at 91. On March 7, 2017, Shana Weber e-mailed Guardian acknowledging her request, and
attached a copy of the Procedural Safeguards and the District’s policy regarding IEEs.
61. On March 29, 2017, Weber e-mailed Guardian with two individuals that could
conduct an IEE for Student: Helen Nuelle and Heather Oelrichs.
62. On June 26, 2017, Guardian sent the following e-mail to Weber:
At this time, I would like to revisit obtaining an [IEE] to determine the appropriate learning environment for [Student]. Please let me know if I may contact the providers you had suggested before, or if I’ll need to start that search for providers again. 63. On July 7, 2017, Weber responded to Guardian’s June 26, 2017 e-mail and stated
that Guardian could use either of the individuals that she previously sent Guardian, or any other
individual that meets the District’s criteria.
64. Between July 19, 2017 and September 6, 2017, there were several e-mails exchanged
between Guardian, the District, and prospective IEE evaluators for Student. However, no one
was chosen to perform the IEE.
65. On September 6 and 8, 2017, Guardian sent e-mails to Dr. Julie Donnelly and Ms.
Allen, respectively, inquiring into whether they could provide an IEE for student.
66. On September 14, 2017, Guardian e-mailed Weber asking whether the District had
been in contact with Donnelly and Allen in regard to their IEE proposals for Student. On
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September 22, 2017, Weber replied to Guardian’s e-mail by stating that Donnelly was not a
BCBA and that Allen’s fees exceed the District’s policies regarding IEEs.
67. On October 9, 2017, Weber e-mailed Guardian and stated that Allen could perform
the IEE on November 20 and 21, 2017.
Witnesses at the Hearing
68. Michelle Rohrer is a 3rd grade teacher at Hawthorn Elementary. She received her
bachelor’s degree in elementary education and master’s degree in educational administration
from Southwest Missouri State University, and a specialist in educational administration from
Southwest Baptist University located in Bolivar, Missouri. Rohrer has been in education for 26
years, and has previously held the position of assistant principal at Westport elementary school
in Springfield, Missouri. Rohrer is Student’s regular classroom teacher. Rohrer creates the 3rd
grade lesson plans for Student, and provides books and materials to Student at Learning
Momentum.
69. Kathleen Henson is Student’s teacher at Learning Momentum. Henson has been
employed at Learning Momentum since January 2017. Her duties include guiding Learning
Momentum staff, communicating with the classroom teachers and general education about work
that needs to be completed, and communicating with the District about any patterns she sees
based upon the data collected at Learning Momentum. Henson has an undergraduate degree in
graphic design and a graduate degree in elementary education from the University of Phoenix.
Henson holds Missouri certifications in elementary education, special education, and early
childhood special education. Prior to joining Learning Momentum, Henson was the Assistant
Director of Special Education at the Eldon R-III School District.
70. Dr. Julie Dill is the Assistant Superintendent of the District. In that position, Dill
serves all elementary schools in the District and oversees the special education program at the
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school. Hadfield is Dill’s supervisor, and Dill is Shana Weber’s supervisor. Dill received her
ED.D from William Woods University. Prior to joining the District as Assistant Superintendent,
she was the Superintendent of Schools at Johnson County R-VII for four years. Dill has been in
education for 27 years.
71. Amy Buie is the CEO of Learning Momentum. Prior to Learning Momentum, Buie
opened and served as Executive Director for the Center for Autism Education (CAE) for 14
years in O’Fallon, Missouri. Buie currently serves on the Board of CAE as its President. Buie
has a masters’ degree in special education from the University of Missouri in St. Louis. Buie
received her BCBA certification from Penn State University.
72. Shana Weber is the Director of Special Services at the District. In that position,
Weber oversees the special education services that are provided to the students in the District.
Weber is in charge of making sure that the needs of students at Learning Momentum are being
met and that they are progressing through their IEP goals. Prior to Weber’s current position, she
served as the Director of Special Services for the Warren R-3 County School District in Warren
County, Missouri, for three years. She has been in education for 26 years, and has held the
positions of Principal, Special Education Director, and Life Skills-Self-Contained Teacher
(LSSCT). As an LSSCT at Winfield Intermediate School in Winfield, Missouri, she worked with
students that were significantly cognitively impaired and unable to access the general education
curriculum. Weber holds Missouri certifications in emotional disturbance/behavioral disorders,
specific learning disabilities, elementary administration and special education administration.
73. Mike Wonderly is currently an art teacher at Oak Ridge Elementary School.
Wonderly received his bachelor’s degree in elementary education from the College of the
Ozarks, and holds Missouri teaching certificates in Pre-K through Kindergarten, grades 1
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through 6, and Kindergarten through 8th grade. Wonderly has spent his entire 18-year teaching
career within the District.
74. Timothy Hadfield is the Superintendent of the District.
75. Rebecca Martinek is a BCBA and has worked at Learning Momentum for three
years. She has been serving as a behavior analyst as Camdenton Middle School since September
2017.
Conclusions of Law
This Commission has jurisdiction over this case. Section 162.961.1 The burden of proof
is on the party seeking relief, in this case the Guardian. Schaffer v. Weast, 546 U.S. 49, 62
(2005). Guardian must prove her case by a preponderance of the evidence. Tate v. Dept. of Social
Services, 18 S.W.3d 3, 8 (Mo. App., E.D. 2000). A preponderance of the evidence is “evidence
which as a whole shows the fact to be proved [is] more probable than not.” State Bd. of Nursing
v. Berry, 32 S.W.3d 638, 642 (Mo. App. W.D., 2000).
We must judge the credibility of witnesses, as well as the weight and value of the
evidence. Faenger v. Petty, 441 S.W.3d 199, 204 (Mo. App., W.D., 2014). We have the
discretion to believe all, part, or none of the testimony of any witness. Dorman v. State Bd. of
Registration for the Healing Arts, 62 S.W.3d 446, 455 (Mo. App. W.D., 2001).
FAPE in General
Under the IDEA, all children with disabilities are entitled to FAPE designed to meet their
unique needs. 20 U.S.C. § 1400(d)(1)(A) and 34 C.F.R. §300.1(a). Missouri’s State Plan for
Special Education (2016) (State Plan) generally defines FAPE as regular and specialized special
education and related services provided at public expense, under public supervision and direction
1 Statutory references, unless otherwise noted, are to the 2016 RSMo.
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without charge to the parents that meet the educational standards of the state educational agency
and are provided in conformity with the Student’s IEP. State Plan, Regulation I, § 3, page 3.2
The primary vehicle for carrying out the IDEA’s goals is the IEP. 20 U.S.C. § 1414. An
IEP is a specialized course of instruction developed for each disabled student, taking into
account that child's capabilities. 20 U.S.C. § 1414(d)(1)(A). The IEP is not required to
maximize the educational benefit to the child, or to provide each and every service and
accommodation that could conceivably be of some educational benefit. Board of Education of
Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 207
(1982). “To meet its substantive obligations under the IDEA” an IEP must be “reasonably
calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Endrew F. v. Douglas Cnty. Sch. Dist., 137 S. Ct. 988, 999 (2017). This is not a bright-line rule
and it “requires a prospective judgment by school officials” that is a “fact-intensive exercise”
incorporating information from both school officials and the child’s parents. Id., citing Rowley,
458 U.S. at 207.
The absence of the court providing a “bright-line rule” is not “an invitation to the courts
to substitute their own notions of sound educational policy for those of the school authorities
which they review” and such deference is “based on the application of expertise and the exercise
of judgment by school authorities” and “[a] reviewing court may fairly expect those authorities
to be able to offer a cogent and responsive explanation for their decision that shows the IEP is
reasonably calculated to enable the child to make progress appropriate in light of his
circumstances.” Endrew, 137 S. Ct. at 1001-1002, citing, in part, Rowley, 458 U.S., at 206.
Nevertheless, this does not negate a hearing officer’s duty to weigh the credibility of the
witnesses, as noted above, and consider the impact of the testimony of experts.
2Also see, 20 U.S.C. §1401(9).
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If a child's special education program or placement, as defined in the child’s IEP, is
disputed by the child's parents, the IDEA provides for a review procedure. 20 U.S.C. § 1415(a),
(b), (d); 34 C.F.R. §§ 300.500–.580.
Issues in the Case
Guardian raised nine issues in her due process complaint. We address them in turn.
Issue #1 In violation of IDEA, on December 27, 2016, Camdenton School District denied FAPE by failing
to provide written notice prior to changing placement to a private day facility.
Under 34 C.F.R. §300.503 and State Plan, Regulation V, §3, page 59, a school district is
required, in part, to provide parents with written notice within a reasonable time whenever it
proposes to initiate, change, or refuse to initiate or change, the identification, evaluation, or
educational placement of the student, or a FAPE provision.
Per 20 U.S.C. §1415(c)(1), the written notification to the parents shall contain:
• a description of the action proposed or refused by the district;
• an explanation of why the district proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action;
• a statement that the parent of a child with a disability have procedural safeguard protection as defined by the IDEA and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
• sources for parents to contact to obtain assistance in understanding the provisions of applicable law;
• a description of other options considered by the IEP Team and the reason why those options were rejected; and
• a description of the factors that are relevant to the local education agency’s proposal or refusal.
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The procedural safeguards set forth in IDEA “. . . emphasize collaboration among
parents and educators and require careful consideration of the child's individual circumstances.”
Endrew F., 137 S. Ct. at 994, citing §1414. However, not every procedural violation amounts to
a denial of FAPE. Whether a procedural violation amounts to a denial of FAPE depends on
whether the violation impeded the child’s right to FAPE, significantly impeded the parent’s
opportunity to participate in the decision-making process regarding the provisions of FAPE to
the student, or caused a deprivation of educational benefits. 34 C.F.R. §300.513(a)(2)(i)-(iii).
Guardian argues that the District denied Student FAPE by failing to provide written
notice of the change in Student placement to a private separate day facility. Although DESE’s
April 27, 2017 decision held that the District failed to provide Guardian with written notice of
Student’s change in placement to Learning Momentum – a private separate day facility – that
error has been corrected to DESE’s satisfaction. Moreover, the IEP under review in this case
correctly reflects the placement. Finally, Guardian failed to provide any evidence that the
District’s procedural violation impeded Student’s right to FAPE.
Issue #2 In violation of IDEA, on December 20, 2016, Camdenton School District erroneously identified
Learning Momentum as a change in location, denying Guardians meaningful participation in the IEP meeting.
Guardian argues that the District violated the IDEA by failing to correctly identify
Learning Momentum as a private separate day facility, denying meaningful participation in the
IEP meeting held on December 20, 2016, and that “district staff misrepresented, failed to
correctly identify, and misled guardian regarding program and placement.”
Under the IDEA, the District must provide meaningful participation by the Parent at the
IEP meeting. As long as the District attends the IEP meeting with an open mind, is “receptive
and responsive” to the Guardian’s position at all stages of the IEP, considers Guardian’s
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suggestions, and to the extent appropriate, incorporates them into the IEP, the Guardian is not
deprived of meaningful participation. See R.L. v. Miami-Dade County School Board, 757 F.3d
1173 (11th Cir. 2014); Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004).
Guardian attended all scheduled IEP meetings for Student. In addition, the IEP that
erroneously identified the District’s action has been superseded by a new IEP. We do not believe
District staff intentionally misled Guardian regarding program and placement. The record
reflects the determination was made with the assistance of legal counsel. And by the time of the
May 19, 2017 (current) IEP meeting DESE’s determination was known to everyone involved.
The December 20, 2017 IEP and the District’s notes state the concerns Guardian had regarding
Student’s change in placement. Although DESE’s April 27, 2017 final decision found that the
District erroneously classified Student’s change of placement from the Hurricane Deck
Elementary to the Learning Momentum program within Camdenton Middle School as a change
of location, as opposed to a change in placement to a private separate day facility, Guardian did
not provide any evidence as to how she was harmed by the District’s misclassification of
student’s change in placement. Therefore, Guardian failed to meet her burden in proving that she
was denied meaningful participation in the preparation of the IEP.
Issue #3 In violation of IDEA on January 11, 2017, Camdenton School District rejected Guardian’s
request for homebound instruction.
The IDEA states that, to the maximum extent appropriate, children with disabilities must
be educated with children who are not disabled, and special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment should occur
“only when the nature or severity of the disability of a child is such that education in regular
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classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20
U.S.C. § 1412 (a)(5)(A). This concept, known as the “least restrictive environment” (LRE), is
the vehicle through which Congress sought to bring children with disabilities into the
mainstream of the public school system. See Mark A. v. Grant Wood Area Education Agency,
795 F.2d 52, 54 (8th Cir. 1986); Rowley, 458 U.S. at 189.
The concept of educating students in the LRE reflects a “strong preference” that disabled
children attend regular classes with non-disabled children. T.F. v. Special Sch. Dist. of St. Louis
Cnty., 449 F.3d 816, 820 (8th Cir. 2006). But the mainstreaming preference of the IDEA is not
absolute; 20 U.S.C. § 1412(a)(5)(A) “calls for educating children with disabilities together with
children who are not disabled ‘[t]o the maximum extent appropriate.’” C.B. ex rel. B.B. v.
Special School Dist. No. 1, 636 F.3d 981, 991 (8th Cir. 2011). Under the IDEA, districts are
allowed to treat placement decisions as administrative decisions made by school personnel.
Letter to Wessels, 16 IDELR 735 (OSEP 1990).
Guardian argues that the District violated IDEA by rejecting her request for homebound
instruction. During the December 20, 2016 IEP meeting, the District believed that Student’s
placement in a self-contained classroom at Camdenton Middle School would be a less restrictive
environment than homebound placement. The federal regulation supports the District’s
interpretation. 34 CFR 300.115 refers to a “continuum” of alternative placements. By way of
example, it lists, “instruction in regular classes, special classes, special schools, home instruction,
and instruction in hospitals and institutions.” In other words, the only environment it considers
more restrictive than homebound instruction is hospitalization or institutionalization. The District
is correct that under the IDEA, it must educate Student in the LRE. Therefore, the District is not
in violation of the IDEA by placing Student in a special education program located at
Camdenton Middle School.
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Issue #4
In violation of IDEA, Camdenton School District located the self-contained classroom based on availability of space and the convenience of administration.
Guardian cites to a response to a comment on proposed regulation § 300.116(b)(3):
In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.
Federal Register Vol. 71, No 156; 14 Aug 2006 at 46588 (emphasis added). This response comes
from the IDEA’s general preference that students be educated as close to home as possible. The
Learning Momentum program, which, as discussed above, is a private separate day facility,
exists in a 100% self-contained classroom within Camdenton Middle School. It is true that there
are certain administrative conveniences to its location. It is on the same hallway with the office
of the Director of Special Education Services. It is on the central campus for the District. But as a
placement for Student, it was not chosen solely for administrative convenience. While Student is
in a building with few, if any, of his same-age peers, he is in a self-contained classroom,
intended to bring his interaction with the general school population as near to zero as possible.
The classroom is, however, walking distance from the 3rd grade general education classroom,
from which Student receives his curriculum. Student knows and interacts with Rohrer, his 3rd
grade general education teacher.
That is not to say everything has gone perfectly. Guardian also argues that the District
violated the IDEA and denied Student FAPE by the change of placement from Hurricane Deck
Elementary to Camdenton Middle School because threats of violence were made on social media
by Camdenton Middle School students. Camdenton Middle School parents were given
automated notice of the threats. Guardian was not. At the time Guardian learned of the social
media posts made by Camdenton Middle School students, they were a month old. Guardian did
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not, however, provide any evidence that Student was bullied, affected by the threats made on
social media, or how these threats violated the IDEA or denied student FAPE. In addition, a
policy has been enacted whereby Weber is to personally notify the parents in the Learning
Momentum classroom should a similar situation or an emergency occur in the future.
Guardian also argues that the change in placement created an elopement risk for Student
when the Learning Momentum classroom was located near a shop, boiler room, and a
maintenance shed. Guardian asserts that the change of placement created an elopement risk for
Student. At the hearing, Weber testified that the shed entrance was rarely opened. Furthermore,
Guardian did not present any evidence of how the change of placement created an elopement
risk. As stated above, the District has the discretion in placement decisions. We find that Student
was not denied FAPE by reason of the District’s change of placement.
Issue #5 In violation of IDEA, Camdenton School District failed to provide an
adequate evaluation of disability.
Guardian argues that the District did not perform a sufficient evaluation of Student’s
suspected disability. In Guardian’s complaint, she asserts that the December 2, 2016 FBA
inaccurately stated that escape was a consequence of Student’s behavior, and that Student was
actually spending his days in dysregulation resulting from “staff’s use of physical and
mechanical restraint and verbal abuse student was subjected to.” Guardian also argues that
District has unnecessarily delayed the process of obtaining an IEE.
34 C.F.R. § 300.502(b) states:
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.
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The District argues that it has assisted the Guardian in finding an individual that meets
the District’s policies for performing an IEE on Student, and that Guardian has provided no
evidence that the District failed to provide an adequate FBA for Student. We agree.
At the hearing, Buie testified that “[i]n the very limited amount of time that we did the
FBA, which was one day of observation, you don't always see all of the variables.” Tr. 176. Buie
also testified that the FBA is an ongoing assessment, and that it is an “ongoing process that
happens in a classroom.” Tr. 129. Additionally, the FBA stated that “Since behaviors serve
multiple functions, minimal data was collected, and automatic function is suspected it is
recommend[ed] that further analysis be conducted to confirm hypotheses.” Ex. K.
We find, however, that Guardian has made it clear to this Commission that she is
requesting an IEE. Discussions at the hearing suggested that an IEE was to take place the week
of, or the week after, the hearing. We believe a great deal of valuable information could be
gleaned from a new evaluation. Rage to Reason is not intended to be a permanent program, and
no program is suitable for every student. It is important to know whether this program can
reasonably lead to this Student transitioning to a less restrictive, more academic setting within a
reasonable period of time. 34 CFR § 300.502(d) authorizes the hearing officer to order an IEE
and states that it must be at public expense. If no IEE has taken place since the November 6-7,
2017 hearing, we now order one, and order the District to consider and implement any new
findings from the IEE consistent with the requirements of the IDEA.
Issue #6 In violation of IDEA, Camdenton School District failed to provide Student with a Free and
Appropriate Public Education by not providing student with academic opportunities.
"A school must offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child's circumstances.” Endrew F. at 999. Student has extreme
behavioral issues. And although his disability does not appear to significantly interfere with his
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ability to recognize letters, manipulate numbers or formulate sentences, as of the date of his
current IEP, it was impossible for him to sit in a classroom to learn for any meaningful length of
time without behavioral programming. We believe it is appropriate for the District to make
behavior programming an educational priority. Even with behavior programming as a priority,
Student receives assignments in traditional school subjects that are the same or similar to his
peers’. Guardian claims that the location of the Learning Momentum program in the middle
school has led to Student being denied educational opportunities. But even before the change in
placement, Student’s behavior was out of control. Wonderly testified that Student lasted a full
day in the classroom only once while he was Student’s teacher. More often than not, he could not
make it into the regular classroom. While Student has made progress in the Rage to Reason
program, his behavior continues to interfere with his learning and that of others.
Issue #7 Camdenton School District failed to provide written notice rejecting Guardian's request for
placement into an appropriate private day facility.
Guardian contends that on May 19, 2017, she requested placement into an alternative
private day facility – the High Road School of Boone County in Columbia, Missouri – that could
properly meet Student's needs, and that this placement was rejected without discussion or proper
written notice. As discussed above, Student was already in an alternative private day facility (the
Learning Momentum classroom) and the rejection of a different choice of school does not trigger
the notice requirement. In written argument, Guardian requested we order a change of school
district and place Student at the High Road School of Boone County. Because we find the
District did not deny Student FAPE by placing him at Learning Momentum at Camdenton
Middle School, we decline to order a change at this time.
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Issue #8
Camdenton School District failed to provide written notice rejecting Guardian's request for homebound instruction.
Guardian alleges that on May 19, 2017, she again requested a change of placement to
homebound instruction and that placement was rejected without proper written notice. The only
evidence in the record of Guardian’s request is her own notes from the May 19, 2017 IEP team
meeting. She notes asking for the change and being told that option had been rejected in
December. No record suggests that any District personnel thought a formal change of placement
was requested at the meeting. Even if a formal written response was necessary, we do not believe
Guardian has carried her burden to show that lack of a formal denial precluded her from
meaningful participation in the formulation of Student’s IEP.
Issue #9 In Violation of FERPA, on July 19, 2017, July 27, 2017 and August 14, 2017, Camdenton School
District denied Guardian access to educational records.
Guardian alleges she requested access to Student's records from Learning Momentum on
July 20, 2017. Buie responded on July 17, 2017 that the records were in the possession of
Camdenton School District. Guardian alleges she requested from Camdenton School District
access to Student's records on August 2, 2017, and the District replied that those records were in
the possession of Learning Momentum. Guardian alleges she requested of both Camdenton
School District and Learning Momentum access to records again on August 14, 2017 with no
response.
This Commission has no authority to decide issues or order relief under FERPA. And in
any case, the only evidence on this point suggests Guardian had received all the records prior to
the date of our hearing. To the extent IDEA is implicated, we do not believe Guardian has
carried her burden to show that lack of access to the records precluded her from meaningful
participation in the formulation of Student’s IEP.
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Conclusion
Guardian is, in our view, a caring and effective advocate for her grandson. We, along
with Guardian and the IEP team wish for nothing more than Student’s transition back to the
regular education setting. However, we are not to “substitute [our] own notions of sound
educational policy for those of the school authorities which [we] review.” Endrew F. at 992–93,
quoting Rowley, at 206. We are to give deference based on the application of expertise and the
exercise of judgment by school authorities. Id. In this case, we do not find fault with the
prioritization of behavior programming over purely academic work, and the school authorities
have determined that Student is simply not ready to resume his place in the regular education
classroom.
That is not to say we will accept the status quo forever. The Rage to Reason program
provided by Learning Momentum is intended to return students to general education with coping
skills that allow them to participate in class effectively. To that end, as noted above, we believe
an IEE is in order. If no IEE has taken place since the November 6-7, 2017 hearing, we now
order one at public expense, and order the District to consider and implement any new findings
from the IEE consistent with the requirements of the IDEA.
Summary
Guardian failed to carry her burden of showing the District denied Student FAPE.
SO ORDERED on December 7, 2017.
_______________________________ BRETT W. BERRI Commissioner
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Appeal Procedure Please take notice that this is a final decision of the Administrative Hearing Commission and you have a right to request review of this decision. Per §162.962, when a review of this decision is sought, either party may appeal as follows: (1) The court shall hear the case without a jury and shall:
(a) Receive the records of the administrative proceedings;
(b) Hear additional evidence at the request of a party; and
(c) Grant the relief that the court determines to be appropriate, basing its decision on the preponderance of the evidence.
(2) Appeals may be taken from the judgment of the court as in other civil cases. (3) Judicial review of the administrative hearing commission's decision may be instituted by filing a petition in a state or federal court of competent jurisdiction. Appeals to state court shall be filed within forty-five days after the receipt of the notice of the agency's final decision. (4) Except when provided otherwise within this chapter or Part 300 of Title 34 of the Code of Federal Regulations, the provisions of chapter 536 are applicable to special education due process hearings and appeal of same. (5) When a commissioner renders a final decision, such decision shall not be amended or modified by the commissioner or administrative hearing commission. The right to appeal is also addressed in 34 C.F.R. §300.516.