DOCKET NO. 117-SE-0206
N.W.,
B/N/F M.W.
VS.
NORTHWEST INDEPENDENT
SCHOOL DISTRICT
§
§
§
§
§
§
BEFORE A SPECIAL EDUCATION
HEARING OFFICER
FOR THE STATE OF TEXAS
§
DECISION OF THE HEARING OFFICER
Statement of the Case
Northwest Independent School District (“the district” or “Respondent”) filed a request for
hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20
U.S.C. §1400, et seq., against N.W., by his next friend M.W. (“the student” or “Petitioner”)
alleging that the student’s parent had failed to consent for evaluation of the student. Consent was
later obtained and the district’s claim became moot.
But counter-claims were filed in behalf of the student and the hearing on the merits in this
matter involved the claims of the student.
The original request for hearing was filed on February 2, 2006. By agreement of the
parties, this matter came on for hearing on August 16 and 17, 2006, in the offices of the district.
The parties were afforded an opportunity to file written closing arguments and agreed that the
decision in this matter would be timely issued on or before October 13, 2006.
The student was represented by Susan Feller Heiligenthal, an attorney in Austin, Texas.
The district was represented by Marianna M. McGowan with the firm of Abernathy, Roeder,
Boyd & Joplin in McKinney, Texas.
The student’s next friend and mother alleged:
LB14608P
1.
the student was denied a free appropriate public education because his individual
education plan (“IEP”) was not implemented; the district failed to reevaluate him;
and he was discharged from special education;
2.
the district’s special education program for the student was insufficient and cost
him to repeat the first grade and tutoring had to be secured for him;
3.
the district failed to provide prior written notice to the parent on numerous
occasions including a transfer admission, review and dismissal (“ARD”) meeting
and a dismissal ARD meeting;
4.
the district failed to evaluate the student in all areas of suspected disability
including a possibility of classification as emotionally disturbed;
5.
the parent was told at an ARD meeting in the district that the parent could not see
a psychological evaluation from a previous school district because of
confidentiality; and
6.
the district failed to advise the parent about the availability of free or low cost
legal services.
As relief, Petitioner sought compensatory educational services, reimbursement for
tutoring and counseling, occupational therapy, speech therapy, special education tutoring, parent
and in-home training, and identification of the student as eligible as a learning disabled student,
and an appropriate IEP including reading goals and objectives in special education counseling.
Just a few days for the hearing on the merits, however, the student was withdrawn from
the district and enrolled in another school district. As a consequence, the issue remaining for the
hearing is whether or not the student received an appropriate educational placement while
enrolled in the district and, if not, whether the district must provide compensatory educational
services for the student.
LB14608P
2 of 14
Based upon the evidence and argument of counsel, the Hearing Officer makes the
following findings of fact and conclusions of law:
Findings of Fact
1.
N. is a student who resides with his next friend and mother in the Birdville
Independent School District. N. was enrolled in the Northwest Independent School District in
January 2004 and attended school in the district until he moved to the Birdville Independent
School District in August 2006. In the fall of 2003 and until his move to the Northwest
Independent School District, N. attended school in the Lake Travis Independent School District.
[Petitioner’s Exhibit 2]
2.
Northwest Independent School District requested information from Lake Travis
Independent School District about N.’s educational placement while in that district. Records
obtained from Lake Travis Independent School District are unclear about N.’s status while
attending school there. NISD personnel were told by Lake Travis personnel that N. had not been
served as a special education student.
Additionally, N.’s enrollment card for Northwest
Independent School District which was completed by N.’s mother did not indicate that N. was a
special education student. [Respondent’s Exhibit 5] and [Transcript Pages 300 & 495]
3.
When N. began attending school within NISD, school personnel observed
developmental difficulties and spoke with both of N.’s parents at a parent-teacher conference.
N.’s parents did not tell district personnel that N. had been previously been served as a special
education student. [Respondent’s Exhibit 4] and [Transcript Page 63]
4.
NISD later learned that prior to his attending school in Lake Travis ISD, N. had
attended school in the Grapevine-Colleyville Independent School District. The district contacted
Grapevine-Colleyville ISD and learned that N. had been served in that district as a special
education student. The district obtained a copy of an IEP for him from February 2003. N. was
LB14608P
3 of 14
served by Grapevine-Colleyville ISD as an emotionally disturbed student. [Joint Exhibit 1 and
Respondent’s Exhibit 6] and [Transcript Pages 303 & 304]
5.
On March 22, 2004, district personnel and N.’s parents met to review information
from the Grapevine-Colleyville ISD which included a full individual evaluation (“FIE”), ARD
documents, and the IEP from February 2003. The Grapevine-Colleyville records showed that N.
had been served in that district based upon eligibility of emotional disturbance and received
occupational therapy, counseling, and content mastery. Minutes for this meeting in NISD on
March 22, 2004, were entitled “Admission, Review, and Dismissal (ARD) Committee Meeting
for Temporary Placement or Transfer of Student”.
The minutes conclude: “Due to
academic/emotional growth and the outside services provided by parents, the educational need
w/ in educational setting no longer requires special education services. Counseling will be
provided as a regular education student at the campus level. Dismissed.” [Respondent’s Exhibit
9]
6.
N.’s parents told school personnel at the meeting that they did not want N. served
as a special education student. [Respondent’s Exhibit 9] and [Transcript Page 344]
7.
Conversations with school personnel and the parents in March 2004 left some
school personnel believing that N. had been dismissed from special education by Lake Travis
ISD. Additionally, Lake Travis ISD personnel told NISD personnel that N. wasn’t served in
special education. [Transcript Page 339]
8.
NISD had, however, no direct evidence that N. had been dismissed from special
education and knew that he had been served in special education when he moved into the Lake
Travis school district. [Petitioner’s Exhibit 8] and [Transcript Pages 346, 355, 495 & 496]
LB14608P
4 of 14
9.
N.’s performance in school in the spring of 2004 and until he was withdrawn from
the district demonstrated some need for intervention. [Petitioner’s Exhibits 2-4, 7-9, 12-13, &
16-20 and Respondent’s Exhibits 12-16 & 24]
10.
The district in its delivery of a regular educational placement for N. did utilize
strategies to improve his opportunities to benefit from instruction. Specifically, the district
sought through a reading program accommodations and strategies to deal with deficits in
language skills. [Respondent’s Exhibits 17-20]
11.
The district promoted N. into the second grade at the beginning of the 2005-2006
school year, but N.’s mother at her own request had N. retained in the first grade for the 20052006 school year. [Transcript Pages 7-12 & 17-25]
12.
N.’s teacher in the fall of 2004-2005 school year encouraged N.’s mother to have
him tested for special education. N.’s mother did not want him assessed or identified as a
student eligible for special education services. [Transcript Pages 73 & 100]
13.
A special education referral for N. was initiated in November 2004. N.’s mother,
however, consented for assessment only in the areas of speech and occupational therapy.
[Respondent’s Exhibits 19, 20 & 21]
14.
An ARD committee for N. was convened in March 2005 after several attempts to
schedule a meeting with N.’s mother. Proper notice of the meeting was provided to the parent.
The assessment completed for speech for N. indicated that he did not qualify for speech services.
The district’s speech therapist offered to conduct more testing but N.’s mother declined the
testing saying she would pursue speech services outside of school. The ARD committee also
conducted a review of evaluation data and discussed the possibility that N. could qualify for a
special education as other health impaired (“OHI”).
N.’s mother consented to additional
intelligence and academic testing for N. [Respondent’s Exhibits 22-24]
LB14608P
5 of 14
15.
After the assessment was completed, an ARD committee meeting convened for N.
in May 2005. Notice was provided to Petitioner and N.’s mother attended and participated in the
ARD committee meeting. The ARD determined that N. was eligible for special education
services with eligibility criteria of a specific learning disability and OHI based upon attentiondeficit disorder (“ADD”). The district’s speech therapist offered again to conducted additional
assessment but N.’s mother refused the assessment.
School personnel also suggested
psychological testing but N.’s mother refused consent for such assessment. [Respondent’s
Exhibit 28]
16.
The district provided N. one-on-one school-based counseling and group
counseling for N. until N.’s mother objected in October 2005. [Respondent’s Exhibit 34] and
[Transcript Page 329]
17.
During the 2005-2006 school year the district implemented N.’s IEP and also
provided additional one-on-one instruction and tutoring. [Transcript Page 119]
18.
In October 2005, N.’s mother presented to an ARD committee information about
a diagnosis of Asperger’s Syndrome, but the documentation supporting the diagnosis was
incomplete. The ARD committee asked N.’s mother to consent to an autism assessment but she
refused consent. [Respondent’s Exhibits 38 & 39] and [Transcript Pages 363-380]
19.
At the ARD meeting in October 2005, N.’s mother asked for an independent
educational evaluation (“IEE”). The district personnel stated that the district must be provided
an opportunity for assessment before consideration of an IEE and explained the requirements for
an IEE. N.’s mother was unhappy with the explanation about the IEE and refused to continue to
participate in the ARD committee meeting and left. The district sought to reconvene within ten
days. N.’s mother did not respond to the ARD notice and did not attend another ARD until May
2006. [Respondent’s Exhibit 38] and [Transcript Pages 367-385]
LB14608P
6 of 14
20.
The district thereafter filed a request for hearing.
21.
N.’s mother signed a receipt for procedural safeguards at the initial ARD meeting
in NISD. [Respondent’s Exhibit 10]
22.
Notices of ARD meetings or waivers of notice were provided for ARD meetings
in March 2005, May 2005, October 2005, and May 2006. [Respondent’s Exhibits 23, 28, 38 &
48]
23.
N.’s report cards in the district show that he was progressing in his educational
placement. N. has significant deficits in reading and N. had tutoring services at home to deal
with his reading deficit. [Respondent’s Exhibit 1] and [Transcript Pages 249-258]
24.
During the 2005-2006 school year, N. showed progress in his IEP goals but did
not master any of them. [Respondent’s Exhibit 48]
25.
Expert witnesses for Petitioner testified that N. should have received special
education services from the time he enrolled in the district in January 2004. [Transcript Pages
180-181 & 228-238]
26.
When the first ARD committee meeting was convened for N. on his enrollment in
the district, the committee met and discussed N.’s previous involvement in special education.
N.’s mother was denied an opportunity to see a psychological assessment from GrapevineColleyville ISD because NISD personnel incorrectly told the parent that the assessment was
confidential. The records of Grapevine-Colleyville ISD indicate that the parent was provided
with the assessment prepared by Grapevine-Colleyville ISD, and N.’s mother testified that she
doesn’t remember whether or not she was provided with the assessment. Additionally, N.’s
mother was provided with her procedural safeguards at the initial ARD in NISD in March 2004.
[Respondent’s Exhibit 1] and [Transcript Pages 475-478 & 497]
LB14608P
7 of 14
27.
At the ARD committee meeting in the district in May 2006, the district offered
compensatory educational services for N. Witnesses for Petitioner testified at the hearing about
their opinions as to the level of compensatory services which would be necessary for N. to
perform where he would have performed had he been given appropriate services. Their measure
for services was based on the services initially provided by the Grapevine-Colleyville ISD when
N. attended school there. Based upon the testimony, Petitioner asserts that N. is entitled to 170
minutes per week of services in special education instruction for the first year and a half that he
attended NISD for a total of over 8,000 minutes. [Transcript Pages 180 &181]
28.
Petitioner’s IEP from May 2006 provides for 155 minutes per week of special
education services. [Respondent’s Exhibit 48]
29.
A speech pathologist testified that Petitioner should receive 81 hours of
compensatory speech therapy services to bring him to the level where he would have been had he
received his services when they were denied him. [Transcript Pages 228-238]
30.
If N. had received counseling services provided him at GCISD, he would have
received 10 minutes of direct counseling and 15 minutes a week of consulting counseling for the
108 weeks N. received no counseling through special education service. [Joint Exhibit 1]
31.
In considering the level of occupational therapy (“OT”) services for N. provided
by GCISD, N. would have received 13.5 hours of additional OT than he actually received in the
district. [Joint Exhibit 1 and Respondent’s Exhibit 48]
32.
At an ARD committee meeting on May 30, 2006, Petitioner requested as
compensatory services academic services for a total of 22 days for 6 hours a day, OT of 1,440
minutes, counseling services of 240 minutes direct and 240 minutes of consult by a licensed
specialist in school psychology, and 81 hours of speech therapy. The district offered extended
school year services as compensatory services for a total of 3 days a week for 15 days which
LB14608P
8 of 14
would include academic services, OT services, speech therapy, and counseling services. In an
attempt to reach a resolution of their dispute the district offered a total of 105 hours of
compensatory educational services. [Respondent’s Exhibit 48] and [Transcript Pages 417-418]
Discussion
N. is a student who is entitled to special instruction and related services so that he
receives a free appropriate public education. N.’s experience in the district has been complicated
by the confusion about his educational status when he transferred into the district in the spring of
2004. N.’s parents, unfortunately, withheld information from the district about N.’s previous
experience in special education. When N. attended school in the Grapevine-Colleyville ISD, he
was identified as a special education student based upon an eligibility criterion of emotional
disturbance. When N. and his mother moved to the Lake Travis Independent School District, he
attended school there in the 2003-2004 school year and his status as a special education student
is unclear. Records from the district do not tell whether or not he received special education
services or whether he was dismissed from special education. When N. and his mother moved
into NISD, N.’s mother did not inform the district that N. had previously been a special
education student.
When the district became aware of problems with N.’s academic performance, they
sought records from Lake Travis ISD and learned of N.’s record at Grapevine-Colleyville ISD.
They then convened what appeared to be a transfer ARD committee meeting but acceded to the
parents’ demands that N. should not be placed in special education. The district failed at that
time to determine conclusively what N.’s status had been in the district sending him to Northwest
ISD and to determine an appropriate educational program for N.
At NISD, N. struggled in school because he did not have the specialized instruction and
related services which should have been afforded him in a special education placement. For
LB14608P
9 of 14
many months, N. did not have the educational services he needed. The district sought to provide
N. what it could outside of special education and sought to get N.’s mother to consent to
assessment. N.’s parents’ aversion to a special education placement interfered with the district’s
ability to provide him with an appropriate educational placement. The district’s obligation,
however, was to provide N. with an appropriate educational placement.
Counsel raised an issue of the statute of limitations and the period of time in which relief
could be granted in this matter. Counsel for Petitioner alleged that because school personnel
declined to show assessment from Grapevine-Colleyville ISD to N.’s parent at the transfer ARD,
that the statute of limitations should be tolled and that Petitioner should be able to claim
entitlement to relief from the time of enrollment in the district in January 2004. The evidence at
the hearing, however, was not persuasive. N.’s mother could not state that she was not shown or
in possession of the assessment when attended Grapevine-Colleyville ISD and the documents
from GCISD indicate that N.’s mother was provided with a copy of the assessment. Though
NISD should not have denied N.’s mother access to the assessment at the transfer ARD,
evidence does not suggest that the statute of limitations should be tolled. Accordingly any relief
ordered in this matter would be subject to the one year statute of limitations at 19 T.A.C.
§89.1151(c) so that any claim for Petitioner is one year prior to the filing of Petitioner’s claims
on March 15, 2006.
The issue presented for decision in this matter is whether or not N. was accorded a free
appropriate public education while he attended NISD in the period beginning March 16, 2005.
In Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245 (5th Cir. 1997), the Fifth Circuit
established a test as to whether or not a student’s IEP has been reasonably calculated to enable
the student to receive meaningful educational benefit. The court considered four factors: the
student’s educational program must be individualized on the basis of the student’s current
LB14608P
10 of 14
assessment and performance; the educational program must be administered in the least
restrictive environment; the educational services for the student must be provided in a
coordinated and collaborative manner by the key stakeholders; and positive academic and
nonacademic benefits must be demonstrated.
In reviewing these factors, the evidence demonstrates that the district failed to provide N.
with an appropriate educational placement. First, the district did not identify N. as a student
eligible for special education and related services because the parents sought to prevent such an
identification and because the district failed to investigate N.’s special education needs and
special education records. Accordingly, N.’s placement at the district until he was identified as
eligible for special education was not based upon current assessment and was not individualized
and did not provide an individualized educational program with strategies, supports,
modifications, and services.
N.’s educational program was administered in the least restrictive environment, but N.
did not receive the supports and services necessary for him to have an appropriate educational
placement.
The educational services for N. were not provided in a coordinated and collaborative
manner by the key stakeholders because the district and N.’s parents were not working together
during most of his programming in the district to provide him with a free appropriate public
education. Finally, N. did receive academic and nonacademic benefit from his educational
programming but the benefit was not what he could of received had he been provided the
placement and services he was entitled to under IDEA.
In fashioning relief, though, Petitioner’s evidence adduced at the hearing is unclear as to
the nature and extent of appropriate compensatory services. Petitioner seeks services for 108
weeks based upon his enrollment in January 2004.
LB14608P
11 of 14
In applying the statute of limitations,
Petitioner is entitled to approximately only 100 weeks of potential claims for relief. Determining
the appropriate measure of compensatory services is problematic. The testimony from the
witnesses at the hearing is conflicting. Essentially, it appears no one knows what N. needs to be
at the level he would have been if he had received an appropriate educational placement.
Petitioner’s position is that N. is entitled to compensatory services in instruction and related
services on a minute-by-minute, hour-by- hour reimbursement of instruction and services from
the time he entered NISD until he withdrew. This position is not supported by the evidence.
Experts testifying for Petitioner in support of this position were not persuasive, and petitioner is
limited by the statute of limitations for claims arising after March 16, 2005.
In May 2005, an IEP was finally drafted for N. which included specialized instruction in
a special education placement. At an October 2005 ARD committee meeting, N.’s mother and
the district could not agree about what further assessment should be done to consider N.’s speech
and behavior problems. As N. progressed during the 2005-2006 school year, it became clear that
his behavioral problems were affecting his academic progress and that psychological testing
should be performed. Again, N.’s mother did not consent to such assessment.
In considering the four factors of Cypress-Fairbanks ISD v. Michael F., supra, while
there is no dispute about the restriction of N.’s educational environment, N.’s special education
placement and services were not provided by the district based upon current assessment and
performance, services were not provided in a collaborative method by key stakeholders, and his
placement did not properly provide an opportunity for him to make academic and nonacademic
progress.
N.’s parents effectively intimidated the district and the district failed to timely seek an
order overriding the parents’ lack of consent for assessment. Essentially, the conflicts between
LB14608P
12 of 14
the parent and the district combined to prevent N. from receiving appropriate instruction and
services.
In fashioning relief for Petitioner, the evidence does not support Petitioner’s claim for
services on a minute-by-minute basis. The district’s offer, though, for a total of 105 hours of
compensatory hours is reasonable and supported by credible evidence. The district offered to
provide 52.5 hours of compensatory services over the course of two summers. The services
included counseling, academic instruction, occupational therapy and speech therapy. Petitioner
is entitled to such services.
Conclusions of Law
1.
N. is a student eligible for special education and related services under the
provisions of IDEA, 20 U.S.C. §1400, et seq., and related statutes and regulations.
2.
From January 2004 until N.’s withdrawal from school in August 2006, the
Northwest Independent School District was responsible for the delivery of the special education
and related services for N.
3.
The district failed to provide special education and related services under the
standards of Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S.
176 (1982), 34 CFR 300.552, and 19 T.A.C. §89.1055, and Cypress-Fairbanks ISD v. Michael
F., 118 F.3d 245 (5th Cir. 1997), 34 CFR 300.300, and 19 T.A.C. §89.1055.
4.
N. is entitled to compensatory educational services in a total amount of 105 hours
with 22.5 hours each of speech therapy, occupational therapy, and counseling and 15 hours of
academic instruction.
ORDER
Based on the foregoing findings of fact and conclusions of law, IT IS HEREBY
ORDERED that:
LB14608P
13 of 14
1.
The district make available to N. (either by district personnel or by contracted
services) compensatory services consisting of 22.5 hours of speech therapy, 22.5
hours of occupational therapy, 22.5 hours of counseling, and 15 hours of
academic instruction.
2.
Respondent shall timely implement this decision by making an offer of a plan to
implement the decision within ten (10) school days in accordance with 19 T.A.C.
§89.1185(q) and 34 CFR 300.514.
3.
To demonstrate their compliance with this decision, the Respondent shall furnish
to the Texas Education Agency within fifteen (15) school days from the date of
this decision documentation (with copies to Petitioner) demonstrating that the
decision is being implemented by the prescribed time. The district shall include a
signed assurance from the superintendent that the orders in this decision will be
implement.
All other relief requested by Petitioner is DENIED.
SIGNED this
13th
day of October, 2006.
/s/ Lucius D. Bunton
Lucius D. Bunton
Special Education Hearing Officer
LB14608P
14 of 14
LB14608P
DOCKET NO. 117-SE-0206
N.W.,
B/N/F M.W.
§
§
§
§
§
§
§
VS.
NORTHWEST INDEPENDENT
SCHOOL DISTRICT
BEFORE A SPECIAL EDUCATION
HEARING OFFICER
FOR THE STATE OF TEXAS
SYNOPSIS
ISSUE: Whether the Respondent failed to provide the student with a free appropriate public
education with individualized instruction and related services so that N. is entitled to
compensatory educational services.
CFR CITATIONS: 34 CFR 300.300 and 34 CFR 300.552.
TEXAS CITATION: 19 T.A.C. §89.1151(c), 19 T.A.C. §89.1055, 19 T.A.C. §89.1085(q).
HELD: For Petitioner.
LB14608P