|
RE-PUBLICATION OF STATE DUE PROCESS HEARING OFFICER
ORDER FOR
MARY JO WEAVER AND HER DAUGHTER
[State HO's are available
at the asking from the Oregon Department of Education, but are
not sent as email attachments or in electronic form. This is a
re-publication of the official order. Please read
Mary Jo Weaver - Hannah
for the story behind this order. The format has been altered
slightly to save space, and the footnote designation symbols are
different. It is our desire to leave as much formatting out as
we can so that persons with older browsers can nevertheless read
this information. Webmaster]
BEFORE THE STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION
IN THE MATTER OF THE
EDUCATION OF H.B. and THE CORVALLIS SCHOOL DISTRICT
509J
FINAL ORDER
CASE NO: DP98-111
REF. NO. 80563
JURISDICTION AND
PROCEDURAL HISTORY
Persuant to OAR
581-015-0081 and USC Section 1400 et seq, a hearing was
held in this matter on May 27 and 28, 1998. The hearing was
requested on behalf of H.B. ("the student") by letter dated
February 19, 1998 from her attorney and the State Superintendant
of Public Instruction, who appointed hearings officer David N.
Lackey to conduct the hearing. At the request of the parties,
the 45-day time limit to conduct a hearing and issue a decision
was waived.
ISSUE:
Is the student eligible
for a special education under the Individuals with Disabilities
Education Act ("IDEA")?
FINDINGS OF FACT
1. Corvallis School
District ("the District") receives federal funds under IDEA.
These funds are used by the District to maintain special
educational programs appropriate for the educational needs of
disabled children who reside within the District.
2. The student is a
13-year-old girl who resides with the boundaries of the
District. She currently attends Zion Lutheran School, a private
parochial school in Corvallis where her mother placed her in
September 1997.
3. The student attended
the District's public schools from kindergarten through sixth
grade, completing sixth grade at Western View Middle School
during the 1997-97 school year.
4. The student suffers
from Asperger's Syndrome, which is an autism spectrum disorder.
She has been evaluated by the District several times, beginning
in first grade, for eligibility under the IDEA. In each
instance, the District's multidisciplinary team concluded that
she was not eligible.
[p.2]
5. The parent filed a
request for due processing hearing in May 1996 to contest the
District's determination that the student was not eligible under
IDEA. That dispute was resolved by a mediation agreement on June
6, 1996, and the hearing request was withdrawn.
6. In accordance with
this mediation agreement, a Student Services Plan was developed
and signed by the parties, including the parent, in September
1996. The plan was implemented at Western View Middle School
during the 196-97 school year.
7. The Student Services
plan also provided that the student would be reviewed for
potential eligibility under Section 504 of the Rehabilitation
Act of 1973. The student was referred for this determination and
found eligible under Section 504 on January 21, 1997.
Eligibility was based on a medical diagnosis of Pervasive
Developmental Disorder, which created a need for support with
organizing and completing assignments. After the student was
found eligible under Section 504, her Student Services Plan was
converted to a 504 plan.
8. The student made
academic progress at Western View during the 1996-97 school
year. She did fail to turn in a substantial number of homework
assignments, resulting in grades of incomplete in Science and
Social Studies; however, she received grades of A in math, B in
P.E. and P (pass) in enrichment.
9. The student also made
progress in most of the areas addressed in her 504 plan during
the 1996-97 school year. She participated in a social skills
group led by school counselor Judy Riggs and her social skills
improved and she made some friends (although she occasionally
needed help resolving disputes with them). She also learned to
organize her locker. [*]
10. The student's parent
made a request in the summer of 1997 that the student be
transferred to Highland View Middle School. The student's parent
also requested that the student be placed in the Essential
Learning Skills class there and that the student be retained in
sixth grade.
______________________________________
* - [Footnote:]
To assist the student in her
social skills, homework assignents, and in her grooming skills,
a Responsibility Card was developed which was used daily with
the student taking it to each teacher who would list the day's
assignments and note whether the student had satisfied her
designated responsibilities. The student's case manager, Ms.
Lynn, collected data from these cards and reported this data at
the monthly meetings with staff and the parent. The student did
well in areas except homework completion, which continued to be
a problem and was frequently discussed at the monthly meetings.
When the student was given time to complete her assignments at
school, she did not exhibit difficulty in understanding the
assignments and they were completed satisfactorily. But when
work was sent home, it often was not completed or turned in.
__________________________________________
[p.3]
11. In response to these
requests, the District approved the student's transfer to
Highland View.
12. The District,
however, denied the parent's request that the student be placed
in the Essential Learning Skills class because that class is
designed for severely retarded students and is not appropriate
for a student whose cognitive functioning is in the average
range.
13. The District also
denied the parent's request that the student be retained in
sixth grade. The parent requested retention in sixth grade
because the student received an Incomplete in two of her
academic subjects, Humanities and Science. On August 27, 1997, a
meeting was held at Highland View to consider the request. The
meeting was attended by several representatives of Highland
View, including the principal, a counselor, and three teachers;
two school psychologists; and the student's case manager, sixth
grade Humanities Teachers teacher (Pat Warnell) and Science
teacher (John Otto) from Western View. The parent was invited
but was unable to attend. Mr. Otto and Ms. Warnell reported that
the student's Incompletes in their classes were based on missing
assignments, but the student had otherwise met course objectives
and was ready for the seventh grade. Mr. Otto reported that the
student learned the subject material in his class and her work
was competent and occasionally outstanding. Ms. Warnell reported
that, when the student completed assignments, her work was
excellent and she generally earned A's and B's. She also
reported that the student liked reading; put in a great deal of
effort and became genuinely involved in her work, and often went
further than she needed to. She noted that the student's score
on the District Reading Test increased from the 58th percentile
at the beginning of sixth grade to the 83rd percentile at the
end of the year. Based on this information, the team unanimously
determined that there was no reason to retain the student and
recommended that she be placed in seventh grade and that a
meeting be convened at the start of the school year to review
and revise her 504 Plan as needed.
14. The parent,
dissatisfied with this decision, enrolled the student in sixth
grade at Zion Lutheran for the 1997-98 school year. At Zion
Lutheran, as at Wesdtern View, the student had a total of three
teachers, two for academic subjects and one for PE. The class
size was 24, with the same group of students moving together
from class to class throughout the day.
15. The student has done
well at Zion Lutheran. She has earned above average grades in
her academic subjects and demonstrated satisfactory progress in
her social skills (except for cleanliness and neatness), as well
as her work and study habits.
16. The student's
teachers at Zion Lutheran report that she has several areas of
strength. Specifically, she is very good in math and with the
computer. She is strong in spelling and memorization skills. She
does a good job on assignments completed at school, although
homework continues to be a problem. Her teachers list ofhter
strengths as enthusiasm, on-task behavior, and willingness to
ask questions, to participate, and to cooperate.
[p.4]
17. The student's
teachers at Zion Lutheran report that organization may be her
greatest weakness. They also report that she forgets to bring
materials to class, has difficulty with written directions and
measurements, has poor handwriting skills, and sometimes loses
track of time. They have successfully addressed these needs with
simple accomodations such as verbal reminders, a portable file
for keeping papers organizated, and visual cues.[**]
18. At home and in the
community, the student has exhibited behavior problems,
including verbal and physical aggression, emotional outbursts,
running away, and defiance. These behavior problems, however,
have not been exhibited at Zion Lutheran. Her relationship with
staff and other students has always been appropriate in that
setting. Likewise, she was not seen as a discipline problem at
Western View. She did receive four detentions and on in-school
suspension during sixth grade[;] however these involved minor
infractions (being overly social in class, forgetting her gym
shoes, throwing a piece of food in the cafeteria, and engaging
in an argument and pushing match with a girlfriend), all of
which were described by her teachers as being misbehaviors not
outside the norm for girls of her age.
19. The student was
referred for another evaluation of her eligibility for special
education on April 3, 1998. A multidisciplinary team met on
APril 21, 1998 to plan the evaluation. The team included the
parent, Adam Reed (one of the student's teachers at Zion
Lutheran), Jim Honbaum (principal at Zion Lutheran), Meg Grear
(a special education teacher at Western View), Ellen Parker (a
school psychologist), Kim Gillis (an autism specialist with the
Cascade Regional Autism Program), Tass Morrison (student
services director for the District), and the attorneys for the
parties. The team agreed that an indepenedent evaluator would
conduct the assessments. The parent and her attorney requested
that the evaluation be conducted by the Education Evaluation
Center at Western Oregon University. The District agreed and
made the necessary arrangments.[***]
20. The Education
Evaluation Center is part of the Teaching Research Division,
Western Oregon University, which has been evaluating
disabilities in children for more than 37 years. Its evaluation
of the student was conducted in April and May 1998, by a
multidisciplinary team of disability specialists using a variety
of formal and informal assessment tools.
_______________________
[**, *** - Footnotes:]
** At home, the student's
parent has had trouble getting the student to bathe and brush
her teeth and hair. At Zion Lutheran, her teachers have noted
that her cleanliness needs improvement, in that she does not
seem to care if her clothing gets dirty at school, but they do
not believe poor grooming has caused problems for her at school.
*** It was further agreed that
the evaluation would cover four potential IDEA categories:
specific learning disability, serious emotional disturbance,
other health impairment, and autism.
__________________________
[p.5]
21. Five specialists on
four different days, in structured and unstructured school
settings, in a clinical setting, and in unstructed social
setting observed the student. On the day of her clinical
assessment at the Education Evaluatiion Center, three disability
specialists observed her. All three noted that she was very
socially appropriate, talkative, and cooperative. She made
appropriate "small talk" regarding testing tasks and her
surroundings and followed socially appropriate conversation
rules. She was very oriented to space and timne, providiing
information on her life and her daily and weekly schedules. A
clinical psychologist also observed the student in an informal
setting in the college student center cafeteria, which was busy
and noisy at the time. The psychologist reported that she was
friendly,, cooperative, and verbally skilled, and expressed
herself at a developmentally appropriate level. He also reported
that she appeared immature for her age and socially isolated,
and had limited conception of future plans for her life. A
learning disability specialist from the Education Evaluation
Center, using the Achenbach Child Behavior Checklist, Direct
Observation Form, also observed the student in a classroom at
Zion Lutheran. This specialist rated the student's behabvior as
not significantly difference from other girls her age, observed
her talking with the student sitting in front of her during an
unstructured time, and noted that she complied with the
teacher's requests, attended to a lecture for 60 minutes, making
eye contact with the teacher, looking at the classroom map, and
taking notes from information written on the board. The learning
specialist also observed the student chewing her nails, doodling
on her paper, and wearing a bulky outdoor coat and mismatched
clothing. Finally, an autism specialist from the Cascade
Regional Autism Program observed the student on two different
days during a math class, bible study class and 20-minute break
at Zion Lutheran. The autism specialist observed no autistic
characteristics in the areas of (1) relating to people or the
environment, (2) development of physical, language, social, or
cognitive skills, or (3) social communication. She did observe
four sensory characteristics more frequent or different from her
peers, including chewiing her fingernails, wiggling her foot or
leg, playing with a thread in a bookmark, and wearing a jacket
on a warm day.
22. The evaluators at
the Education Evaluation Center noted that the student seemed
comfortable during her formal assessment at Western Oregon
University. They also noted that her social interactions were
appropriate despite the unfamiliar surroundings and persons
evaluating her. The evaluators characterized her social
interactions as appropriate. They also characterized the student
as being very focused and as following directions well, and as
working diligently. She was described as being very cooperative
and a delight to work with.
23. The evaluators and
the Education Evaluation Center also conducted a psychological
assessment of the student using the WISC-III. This assessment
placed her verbal, performance, and overall cognitive abilities
within the average group. Her scores indicated that her
receptive and expressive language skills and auditory/verbal
processing skills were well developed.
[p.6]
24. The Education
Evaluatiion Center administered the Woodcock-Johnson Tests of
Achievement Revised (WJ-R) to assess the student's academic
standing. Her scores indicated that she was at or above grade
level in all areas and significantly above grade level in
reading and math. She performed at the college level in math
calculation and on the writing sample.
25. The student's
hearing and speech was[sic] tested. The test results were
normal. In testing of auditory memory, the student's performance
was in the low average range for rote-sequential memory and in
the below average range for short-term verbal memory and
attention.
26..The student's
language, problem solving, and functional communication skills
were tested. The test results again revealed no deficiencies.
The student's receptive vocabulary was in the above average
range; her problem-solving ability was in the average range, and
her listening comprehension was in the high average range. In
the area of functional communication, it was noted that she
spoke in grammatically correct sentences and demonstrated
appropriate pragmatic conventions such as maintaining eye
contact, observing the conventions of conversation such as
turn-taking, adapting her speech to fit the situation, and using
appropriate politeness markers.
27. The Education
Evaluation Center used the Achenbach Child Behavior Checklists
and the Social Skills for Daily Living Rating Scale to assess
the student's social and emotional status. On the Aschenbach,
two of her teachers, the student herself and the student's
mother rated the student's behavior. The teachers and the
student did not rate her significantly different than other
girls of her age range. The student's mother, however, rated her
significantly above the normal range on six of the eight
categories included on the checklist. On the Social Skills
Rating Scale, the student's teachers indicated that her relative
strengths were answering questions, accepting no, following
instructions, getting help, and asking for feedback, while her
relative weanesses were making friends, giving compliments, and
joining and starting group activities.
28. In the area of
adaptive behavior, the evaluators interviewed the student's
mother, and the student using the Vineland Adaptive Behavior
Scales--Interview Edition. They also asked one of the student's
teachers to rate her usiing the Vineland Adaptive Behavior
Scales" Classroom Edition. The student's mother reported severe
deficits in the areas of daily living skills, socialization, and
motor skills. She indicated that the student is extremely
non-compliant, refuses to assist with home living or personal
groomiing routines, and becomes extremely physically aggressive
whenm pressured to comply, and that no form of discipline is
effective with the student. The interview of the student using
the Vineland revealed a high level of skills on tasks within the
communication domain, which measures receptive, expressive, and
written communication. The student confirmed her mother's report
of deficit in daily living skills, but did not acknowledge
deficits in socialization. She reported [p.7] having
friends at an after school drop-in center, Sunday school, in her
neighborhood, and at school. The evaluators noted, however, that
her social activities were not typical of a 13-year-old girl in
that most of the friends outside of school were not in her age
group and the friends at the drop-in center were mentally
retardedd males ages 18 to 21. The student's teacher did not
rate the student as significantly different from her peers
overall, but did rate her low in the play and leisure time areas
of socialization.
30. The Education
Evaluation Center concluded that the student did not meet DSM-IV
Diagnostic Criteria for Learning Disorders. There was no
significant discrepancy between ability and achievement. Her
intelligence levels were measured in the high average range. Her
scores on standardized achievement tests were above expected
levels for her age, schooling, and level of intelligence in all
areas. Further, her teacher reported that her current academic
performance was at or above grade level in all areas except
handwriting, where she was estimated to be one grade level below
her peers. Her teacher further noted that she does not
satisfactorily complete and turn in her homework, but this
appear to be due to motivational factors rather than lack of
academic ability.
31. The Education
Evaluation Center further concluded that the student did not
meet DSM-IV Diagnostic Criteria for any form of Communication
Disorder, expressive or receptive, and did not have any
significant paralinguistic abnormalities or physical impairment
of speech or language function.
32. The Education
Evaluation Center team did not observe clinically significant
levels of the behaviors associated with Asperger's Disorder in
the clinical, informal, or school settings,k but noted that the
student's mother reported very significant levels of these
behaviors at home.
33. The Education
Evaluation Center team determined that the student did not
exhibit the behaviors or deficits required to satisfy the
eligiblity criteria for emotional disturbance under the IDEA
during the evaluation or at school.
24. The Education
Evaluation Center's evaluation team concluded that, based on its
evaluation, the student does not require specially designed
instruction in order to benefit from public education.
35. The MDT met as
scheduled on May 15, 1998. The participants were the same
individuals who attended the meeting on April 21, 1998, and
included at least one specialist [p.8] knowledgeable and
experienced in the evaluation and education of children with
each of the disabilities being considered. The team considered
the results of the evaluation conducted by the Education
Evaluation Center and other information, including a physician's
statement, observation reports, and information submitted by the
parent and the student's teacher and principal from Zion
Lutheran. The team concluded that the student does not qualifiy
for special education under the IDEA categories of specific
learning disabillity, serious emotional disturbance, other
health impairment, or autism. The team decision was unanimous
with respect to specific learning disability. On each of the
other categories, the decision was unanimous with the exception
of the parent, who noted her disagreement on the eligibility
statements.
CONCLUSIONS AND
REASONS
Districts have a duty to
identify and evaluate resident children who may have
disabilities and be in need of special education. ORS 343.157.
"Children with disabilities" are school age children who have
been evaluated as having one or more of certain qualifying
disabilities and who, because of those disabilities, require
special education. OAR 581-015-0005(5); 34 CFR 300.7(a)(1).
"Special education" is
defined as specifically designed instruction to meet the unique
needs of a child with a disability. OAR 581-015-0005(22); 34 CFR
3000.17(a). Although neither the state nor federal regulations
define the phrase "specially designed instruction" it has been
interpreted to mean individualized instruction planned for a
particular child. Letter to Smith, 19 IDELR 494 (OSEP 1992). In
the matter of the education of D.F. and the Salem Keizer School
District No. 24JU, Case No. 94-010-34, Final Order, p.6 (Jan 6,
1995).
Of the four potential
categories considered by the MDT, only the team's decision
regarding autism was contested by the parent at the hearing. The
parent concurred in the team's determination that the student
does not have a specific learning disability.
At hearing, the District
produced testimony of a school psychologist (Ellen Parker) and
the case manager of the Education Evaluation Center's evaluation
team (Julia Bulen) that the student does not qualify for special
education as a child with a serious emotional disturbance. The
parent offered no expert testimony or other evidence to rebut
that conclusion. The student is not seriously emotionally
disturbed for the purposes of the IDEA.
The District also
presented testimony from Ms. Parker, Ms. Bulen, and an autism
specialist (Kim Gillis) that the student does not have a
condition that satisfies the eligibility requirements for other
health impairment under the IDEA. The parent offered no evidence
to rebut that conclusion. The student is not other health
impaired for purposes of the IDEA.
[p. 9] The
eligibility category the parent urged in her prehearing
memorandum and at hearing is autism. The student has been
diagnosed with Asperger's Disorder under DSM-IV criteria and the
District has not disputed that diagnosis. Although Asperger's
Disorder is an autism-spectrum disorder under DSM-IV criteria,
that diagnosis is not dispositive here. The diagnostic criteria
for Asperger's Disorder are not synonymous with the requirements
for autism eligibility under the IDEA. For eligibility under any
IDEA disability category, a multidisciplinary team must
determine that the impairment meets the minimum criteria set by
state law and that the student needs special education and
related services due to the impairment. Letter to Gallaher, 24
IDELR 177 (OSEP 1996). To be found eligible as a child with
autism, the student must satisfy all of the requirements of OAR
581-015-0051 (4).
OAR 581-015-0051(4)(a)
requires that an evaluation be conduted that includes the
following:
"(A) A developmental
profile which describes the child's historical and current
characteristics that are associated with autism as described in
subsection (1)(b) of this rule;
"(B) At least three
20-minute observations of the child's behavior in multiple
environments on at least two different days by an educator
knowledgeable about autism;
"(C) An assessment of
communication which includes measures of language semantics and
pragmatics completed by a speech and language pathologist,
licensed by a State Board of Examiners in Speech Pathology and
Audiology, or the Teacher Standards and Practices Commission;
"(D) Any medical
statement or a health assessment statement indicatingwhether
there are any physical factors that may be affecting the
child'seducational performance;
"(E) Assessments to
determine the impact of the suspected disability"
"(I) On the child's
educational performance when the child is at the age of
eligibility for kindergarten through age 21 ***and
"(F) Additional
evaluations or assessments that are necessary to identify the
child's educational needs."
It is undisputed that
the student's evaluation satisfied the requirements of OAR
581-015-0051(4)(a). Based on that evaluation, a child suspected
of having autism must meet all of the following minimum criteria
under OAR 581-015-0051(4)(b):
[p.10]
"(A) The child
has impaired verbal and or nonverbal language or social
communication skills;
"(B) The child has an
impaired ability to relate to people or the environment;
"(C) The child exhibits
or previously exhibited unusual response to sensory information;
and
"(D) The child exhibits
or previous exhibibited inconsistencies or discrepancies in the
development of physical language, social or cognitive skills."
Finally, even if the
child meets the minimum criteria, OAR 581-015-0051(4)(c)
provides that the MDT must determine that the child's disability
has an adverse impact on educational performance and the child
needs special education as a result of the disability.
"(c) For a child to be
eligible for special education services as a child with autism,
the child's multidisplinary team shall determine that:
"(A) The child's
disability has an adverse impact;
"(I) On the child's
educational performance***and
"(B) The child needs
special education services as a result of the disability."
The parties agreed that
the student met the fourth criterion for autism, but disagreed
regarding whether she met the other criteria required by OAR
581-015-0051(4)(b).
The district presented
evidence that the statudent does not have "impaired verbal
and/or nonverbal language or social communication skills." The
Education Evaluation Center's report noted that her language
skills were above average. The evaluation team found no
weaknesses in her functional communication skills and concluded
that the Basic Interpersonal Communication Skills were well
developed. The autism specialist (Ms. Ing), who observed the
student at Zion Lutheran on two different days, saw no
impairment in social communication. The case manager of the
evaluation team, Ms. Bulen, testified that she did not observe
any problems with verbal or nonverbal communication skills while
testing the student, despite the fact that the student was
required to relate to unfamiliar people in an unfamiliar
setting. The clinical psychologist on the evaluation team, Dr.
Cooley, reported that the student was verbally skilled and
exdpressed herself at a developmentally appropriate level. Mrs.
Gillis, the autism specialist on the eligibility team, testified
that the record did not show evidence of any significant
communication dysfunction. The student's teacher, Mr. Reed, did
not identify any verbal or nonverbal communication problems
during his testimony [p.11] and, on a form completed as
part of the eligibility referral, indicated that there were no
communication problems other than that she "does not use voice
inflection much."
The district also
produced evidence that the student does not have "an imparied
ability to relate to people or the environment." Mr. Reed
testified that although she chooses not to interact with peers
in unstructured avtivities such as playground activities, she is
able to relate appropriately to others and her environment. He
stated that she has a good relationship with her teachers, gets
along with her peers, has some friends (though not many) at
school, participates appropriately in class discussions, and is
attentive and cooperative in class. The Education Evaluation
Center report indicates that the student was observed by three
disability specialists on the day of her clinical assessment and
that all three specialists noted that she was very socially
appropriate, talkative, and cooperative, made appropriate "small
talk" regarding testing tasks and her surroundings; followed
socially appropriate conversation rules; and was very oriented
to space and time. Dr. Cooley, the clinical psychologist,
reported that the student was very friendly and cooperative
during an interview in an informal setting. Mrs. Ing, the autism
specialist who observed the student in different settings at
Zion Lutheran, saw her talking with another student sitting in
front of her during an unstructured time, quickly complying with
a teacher's request to get out her text and materials for a
lecture on geopgraphy, and attending to the lecture for 60
minutes, making eye contact with the teacher, looking at the
classroom map, and taking notes from information written on the
Board. Ms. Lynn, the student's case manager at Western View,
testified that she had had a good relationship with the student
and saw the student make friends at Western View. Mrs. Gillis
testified that available data did not indicate a signficant
impairment in the student's ability to relate to others or the
environment.
The District introduced
evidence that the student does not exhibvit significant "unsual
response to sensory information." Although Ms. Ing observed for
sensory activities at Zion Lutheran, they were for short periods
of time and the evaluation team concluded that the student did
not exhibit clinically significant levels of such behaviors.
Mrs. Gillis testified that the level of unuusual sensory
responses was not significant.
The parent presented
evidence supporting her position that the student meets all four
of the criteria for autism eligibility, but this evidence was
not particularly persuasive.
As evidence that the
student has "impaird verbal and/or nonverbal lanauage or social
communication skills," a friend of the parent (Stephanie
Mehlenbacher) testified that the student does not "get" slang.
[p.12]
As evidence that the
student has an "impaired ability to relate to people or the
environment," the parent testified that the student is sometimes
aggressive and even assaultive toward caregivers and others, is
often defiant and oppositional to authority figures, and is
prone to emotional outbursts when she does not get her way. The
parent and other witnesses called by the parent testified that,
because of these behaviors, the student has few friends in the
neighborhood and is seldom invited to friends' houses. The
student's older brother testified that his friends don't come to
their house because his sister "bugs" them. The parent
acknowledged, however, that these behaviors do not occur at Zion
Lutheran because they are not allowed. This suggests that the
student has the ability to relate appropriately to others and
the environment, but sometimes chooses not to do so. Other
parent witnesses confirmed this conclusion. Mrs. Mehlenbacher
testified that the student has friends and is always polite.
Judy English, the student's occupational therapist, acknowledged
having a good relationship with the student and noted that the
student was verbal, friendly, and polite during their sessions.
Regarding "unusual
responses to sensory information," the parent testified that the
student chews on her nails, face, clothing, and other items and
does not like to bathe or brush or teeth or hair. Julie Conklin,
a friend called by the parent, testified that the student likes
to be squeezed hard (but also expressed the opinion that the
student does not bathe or brush her hair or teeth because she
simply "doesn't care" about personal grooming). Ms. English
testified that the student grips her pencil too tightly, but
acknowledged that this may indicate the lack of a good pressure
feedback system rather than an unusual response to sensory
information.
The parent's expert,
Mededyth Goldberg Edelson, Ph.D, is a licensed psychologist in
private practice and an assistant professor of psychology at
Willamette University. Dr. Edelson evaluated the student in
March 1997, at the request of the parent, and prepared a report
dated May 9, 1997. The purpose of the evaluation was to
determine if the previous diagnosis of Pervasive Developmental
Disorder was accurate and develop recommendations that could aid
the student at home and at school. She observed the student only
one time, in a clinical setting on March 11, 1997. She has not
seen or evaluated the student since that date and has never
obvserved the student in an educational environment. She did not
interview any of the student's teachers in connection with her
evaluation and did not request any teachers to complete the
Teacher's Rating Scales as part of the Connor's Rating Scale,
which she used as part of her assessment.
Most of Dr. Edelson's
report and testimony at the hearing focused on her conclusion
that the student meets DSM-IV criteria for Asperger's Disorder,
which was not disputed by the District, and Oppositional Defiant
Disorder, which was not at issue. Dr. Edelson's report did not
address the minimum criteria and other requirements for autism
eligibility under the IDEA.
With respect to the
minium criteria for autism, Dr. Edelson testified in response to
hypothetical questions posed by the parent's attorney. Dr.
Edelson testified that the hypothetical child could satisfy the
first criterion, impaired verbal or nonverbal language or social
communication skills, [p. 13] based on the child's
assumed inability to read nonverbal cues. She testified that the
child could satisfy the second criterion, impaired ability to
relate to people or the environment, based on the child's
assumed lack of any close friendships with age-appropriate
peers. She testified that the child could meet the third
criterion, usual responses to sensory information, based on
assumed evidence of tactile sensitivity, penchant for chewing on
things, and a tendency to hold and hit things too hard.
Although conflicting
evidence was presented, the prepoonderance of the evidence
supports a conclusion that the student does not meet the first
three of the four minimum criteria required for autism
eligibility under the IDEA. Although the parties agree that the
student meets the fourth criterion, all four must be met to
satisfy the requirements of OAR 581-015-0051(4)(b).
Even if the evidence
showed that the student met all four of the minimum criteria for
autism, this would not, by itself, be enough. It must also be
established that the disability adversely impacts the student's
educational performance and the student requires special
education as a result of the disability. OAR
581-015-0051(K4)(c). The need for special education is an
essential, and separate, requirement. Letter to Gallaher, 24
IDELR 177 (OSEP 1996).
"To be eligible under
the IDEA, the sudent must have a qulaiifying disabiliity and
that disability must cause a need for special education
services."
See e,g, Radnor
Township School District, 25 IDELR 1229 (SEA PA 1997)
"A student is eligible
for special education only if s/he meets the criteria
established under one or more of the eleven recognized
disability categories ***and as a consequence, needs special
education and related services." (Emphasis in the original;
citing 20 USC Section 1401(a)9(1)(A)(ii), 34 CFR Section
300.7(a)(1) , and other authorities)
Where the student's
needs can be met without special education, the student is not
eligible. As the Ninth Circuit stated in Ziskel v. Morgan Hill
Unified School District, 18 IDELR 831, 833 (9th Cir 1992), even
a student with learning difficulties is not eligible unless the
difficulties are "so severe that he cannot benefit adequately
from the regular education program." See also, Doe v.
Board of Education of
State of Connecticut. 753 F Supp 65. 70 (D Cpmm 1990). amd
Huntsville City Public Schools, 20 IDELR 970, 972 (SEA AL 1994)
("if a student does not need specially designed instruction for
academic success, he or shee is not a child 'with disabilities'
within the meaning of the Act"). Thus, when related services and
accomodations allow a student to make progress in the regular
education program, as indicated by grades or performance on
academic achievement tests, there is no need for special
education and therefor no eligibility under the IDEA. Wayne
Highlands School District, 24 IDELR 476, 477-478 (SEA PA 1996).
Related services are not "special education." They include
transportation and supportive servies such as psychological
services, [p.14] physical and occupational therapy,
special equipment, counseling services, parent counseling and
training, speech pathology, and school health services. OAR
581-015 -0005(20); 34 CFR 300.16(a).
By contrast, a student
with a disability may qualify for accomodations and related
services under Section 504 without showing a need for special
education. 34 CFR Section 104.33(b)(1). See, e.g., Zirkel,
Section 504, the Adad and the Schools, at three: 75 (1996).
"One of the significant
difference getween the IDEA and Section 504 is that a free and
appropriate public education under Section 504 includes related
services for disabled students in regular education, not just
those in special education."
Here, uncontroverted
evidence clearly establishes that the student, despite her
disability, does not require special education.
The parent acknowledges
that the student has been successful and made good progress at
Zion Lutheran. This conclusion is supported by the testimony of
her teacher, grade reports and other recorfds from Zion
Lutheran, and the Education Evaluation Center's report. The
evidence shows she also made educational progress at Western
View.
This progress is evident
from the results of the Education Evaluation Center's
assessment. The student's academic achievement was found to be
greater in all areas than would be expected based on her
cognitive ability. Despite intelligence in the average range,
the student was found to have achievement levels at or above
grade level in alll areas and considerably above grade level in
several.
This progress has been
achieved without special education. At Western View, the student
received accomodations and related services pursuant to her
Student Services Plan/504 Plan, but not special education. At
Zion Lutheran, her needs have been met through simple
accomodations such as visual cues, homework reminders, and a
file box for keeping her papers organized and her desk neat. She
has not received special education at Zion Lutheran. She
receives the same instruction as the other students in her
class. In her prehearing memorandum and testimony, the parent
attributed the student's success at Zion Lutheran to smaller
class size, ( although it included 24 students), fewer changes
of classrooms and teachers during the day (although she had the
same number of teachers at Zion Lutheran as she had at Western
View), a safe environment, organizational aids such as a file
box, and a zero tolerance for misbehavior. None of these
attributes involves specially designed instruction.
The student has received
occupational therapy services from Judy English, an occupational
therapist at Old Mill Center in Corvallis. Occupational therapy
is a related service, not special education OAR
581-015-0005(20)' 34 CFR 300.16(a).
[p. 15]
None of the experts in
this case testified that the student requires special education.
The Education Evaluation Center team concluded that the student
does not require specially designed instruction. It recommended
a number of accomodations and related services, but not special
education. Furthermore, the parent's expert, Dr. Edelsoh, did
not testify that the student requires special education. The
recommendations in her report of May 9, 1997, include varieous
accomodations and supportive services (written instructions,
visual cues, seating preference, tasks broken down into
manageable pieces, consistent communication between school and
parent, reinforcers for completing tasks, and consequences for
inappropriate behaviors), but not specially designed
instruction.
Even the "proposed
solution" in the parent's request for due process hearing lists
accomodations and related services, but not special education.
The parent submits that her daughter needs concrete, visual
instructions regarding assignments; opportunity for individual
attention; follow-up to be sure assignments are turned in;
social skills training; strategy for managing outbursts; and
regular communication between school and parent.
Clearly, the student's
special needs at school can and have been successfully addressed
with accomodations and supportive services, which she is entitle
to by virtue of her eligibility under Section 504. She does not
require special educatioin and is not eligible under the IDEA.
ORDER:
The student is
ineligible for special education services because she does not
have a condition that satisfies requirements for autism
eligibility under the IDEA. Furthermore, even if her condition
satisfied the requirements for autism eligibility, she would
still be ineligible for special education services because her
disorder does not prevent her from making effective progress in
regular education. The District's decision, denying the student
special education services, is therefore affirmed.
[Signed]
David N. Lackey, Hearing
Officer
NOTICE TO ALL
PARTIES: If you are dissatisfied with this Order,you may,
within 120 days after the mailing date of this Order, commence a
nonjury civil action in any state court of competent
jurisdiction, ORS 343.175, or in the United States District
Court, 20 U.S.C. Section 1415(e)(2). Failure to request review
within the time allowed will result in LOSS OF YOUR RIGHT TO
APPEAL FROM THIS ORDER.
[p.16]
ENTERED at Salem,
Oregon this 20th day o9f July, 1998 with copies mailed to:
Sharon Gallagher, Oregon
Department of Education, Public Service Building,
255 Capitol St. N.E.,
Salem, OR 97310-0203
CERTIFICATE OF SERVICE
I hereby certify that I
served the foregoing FINAL ORDER in Case DP [blank] on the
foregoing parties on this 20th day of July, 1998 by depositing a
copy of said document in a sealed enveloped in the United States
Mail at Salem, Oregon, with the postage thereon fully prepaid,
and addressed to:
Ms. Mary Jo Weaver
c/o Mr. Jossie Davidson
Attorney at Law
PO Box 565
Silverton, OR 97381
Gene Carlson
Superintendent
c/o Mr. Graham Hicks
3500 US Bancorp Tower
Attorney at Law
111 SW 5th Avnue
Portland, OR 97204-3699
Jossi Davidson
Attorney at Law
PO Box 565
Silverton, OR 97381
Graham Hicks
Attorney at Law
3500 US Bancorp Tower
111 5th Avenue
Portland, OR 97204-3699
[Signed]
Jo Ellen Odle
© Copyright 1999
Oregon Parents United Unless Otherwise Noted
All Rights Reserved
Return to Our Stories Page
GO
TOP
|
