ALJ: Harvin-Woode       

Issues: Accommodations, Behavior, Compensatory Education, ESY, IEP Appropriateness, LRE, Private School Reimbursement, Reevaluation, Statute of Limitations

BACKGROUND: The parents alleged that the district did not provide the student with a FAPE during most of his fourth grade and start of his fifth grade years.  The parents allegations included the failure to develop an IEP that: (1) included speech, OT, and ESY services; (2) appropriately address SDI in all areas of need; (3) address the student’s behavior based on an FBA; and (4) include needed accommodation to address her medical condition.  The parents also alleged that the district failed to recognize homebound instruction as the student’s LRE.  They requested compensatory services and asked for a private placement.  

CONCLUSIONS AND ORDERS:   (For the District)  The ALJ concluded that the District substantially met the procedural requirements with respect to its evaluations and delivery of services to the student.  The ALJ also concluded the district followed procedures in identifying the student’s placement.  The ALJ further concluded that the evaluations completed for the student were appropriate to address all areas of suspected disability.  The ALJ concluded that the evidence established that the student did not need OT, SLP or ESY services during the time period at issue.  The ALJ denied the parents’ request for private school reimbursement and compensatory services.

2005-SE-0129  Seattle SD   

ALJ: Conklin    

Issue:  Statute of Limitations

BACKGROUND:  The parents filed a due process hearing request related to issues arising two years prior to the filing of the request.  The parents claimed that it was a violation of IDEA for the district to change classroom aides, and that the aide was not qualified.  The parents also claimed that the district retaliated against them by restricting the times they could visit the classroom. The district filed a motion for summary judgment, claiming that the issues exceeded the statute of limitations under IDEA 2004.

CONCLUSIONS AND ORDERS: (For the District) The ALJ noted that OAH did not have jurisdiction over claims of retaliation.  Turning to the issue of the statute of limitations, she noted that while IDEA 2004 has a 2 year statute of limitation, it is silent about retroactivity.  She also noted that the state did not have a specific statute of limitation addressing timelines for claims prior to IDEA 2004.  Turning to state law, the ALJ found that the most applicable statute of limitation in this state is a two year limit on actions for relief not otherwise provided for within a specific statute of limitations.  Based on this analysis, the parents’ claims were dismissed as time barred. 

2005-SE-133 Vashon Island SD, OSPI, Puget Sound ESD; Edmonds SD, Seattle SD, Bellevue SD   

Click here for the complete decision

ALJ: Conklin

Issues: Jurisdiction; Statute of Limitations

BACKGROUND: The parents requested a hearing claiming multiple school districts and educational agencies failed to identify that the student had autism.  The hearing request spanned the period beginning when the student was 3 years old. The student was over the age 18 at the time the hearing was requested.  The parents had brought a due process hearing against Vashon Island School District (VISD) in 1995 claiming it did not provide the student a FAPE.  The district subsequently requested a hearing in 1996 and the cases were consolidated. Those hearing requests resulted in a decision in VISD’s favor which was later appealed to federal district and then circuit court. On appeal the claims brought against VISD and OSPI were dismissed.  In February 1996 the parents began home schooling the student and have continued to home school the student each school year, thereafter.  The parents have not enrolled the student in a school district since that time.  The school districts and agencies involved in this hearing filed motions for summary judgment on a variety of jurisdictional issues. 

CONCLUSIONS AND ORDERS:  (For the Districts and Agencies)  The ALJ applied a two year statute of limitations against all of the parents’ claims.  The ALJ also determined that because the student was home schooled after February 1996 Seattle and VISD were not required to provide a FAPE or evaluate the student.  The ALJ also concluded that principals of res judicata and collateral estoppel prevented the parents from re-litigating issues that had previously brought against VISD and OSPI.  The parents’ claims against Puget Sound ESD were dismissed as the parents did not establish the agency had an independent duty to the student.  Based on these conclusions the ALJ dismissed all the claims against all the agencies involved.   

2005-SE-0135 Northshore SD           Click here for the complete decision

ALJ: Harvin-Woode       

Issues: IEP Content; LRE; Parent Participation; Pre-school; Private School Reimbursement

BACKGROUND:  The parents of a five year old student with autism requested a hearing and alleged that the district failed to develop and provide an appropriate pre-school program for the student.  They stated that the student required a placement in a private pre-school that included general education instruction with nondisabled peers. 

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded that the placement identified by the district represented the student’s LRE.  The district’s preschool program included a low student to teacher ratio with a teacher experienced in instructing students with autism.  The evidence supported placing the student in the integrated developmental preschool proposed by the district.  The ALJ also concluded that the two to one ratio for applied behavioral analysis instruction proposed by the district was appropriate.  The ALJ further concluded that the student’s IEP did not require the cognitive annual goals proposed by the parents.

2005-SE-139 Name of District Withheld    Click here for the complete decision

ALJ: Conklin    

Issues: FAPE; Qualifications

BACKGROUND:  The parent of a student with autism requested a hearing claiming the para-educator assigned to work one-on-one with her child was not qualified and could not be trained to work with the student.  The parent claimed that the student was denied FAPE during the time the para-educator was assigned to work with the student.  The parent removed the student from the school while the hearing was pending.

CONCLUSIONS AND ORDERS: (For the District)  The ALJ found that the parent demonstrated that when hired, the para-educator did not have the experience with autistic students to be able to work with the student.  The ALJ concluded that this did not deny the student a FAPE because the aide was trained in the one area required by the IEP, picture exchange communication systems (PECS).  The para-educator also received training from the parent.  The parent claimed the para-educator was un-trainable.  However, the ALJ determined that the parent did not demonstrate that the para-educator, who had only been assigned to the student for a short time, was unable to learn the skills needed to implement the student’s IEP.  

2004 Due Process Decisions

2004-SE-001 Bremerton SD        Click here for the complete decision

ALJ: Shave   

Issues:  ESY; FAPE; IEE; Private School Reimbursement; Reevaulation

BACKGROUND: The Parent of a student with dyslexia filed a due process request alleging that the district failed to fully re-evaluate the student.  They alleged that IEPs developed for the student were inappropriate and failed to provide the student a FAPE.   As a remedy, the Parent requested reimbursement for private school placement and requested that the district provide an IEE to determine whether or not the student also had a diagnosis of ADHD.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found that the under the IEPs developed for the student, the student made appropriate educational progress.  The ALJ also found no evidence to support an evaluation to determine whether the student had a diagnosis of ADHD.  The ALJ determined that the District’s offer of a program for the 2003-2004 school year was appropriate and denied the Parent’s request for private school reimbursement.  (She also noted that the Parents had not provided notice of their intent to remove the student and request reimbursement as required by the regulations.)  Finally, while the Parents were denied their request for an IEE, the ALJ found sufficient evidence that the student was experiencing anxiety and ordered an IEE for anxiety.

2004-SE-009 Richland SD    Click here for the complete decision

ALJ: Sullivan    

Issues: Childfind; Consent; Eligibility; Parent Participation; Prior Written Notice

BACKGROUND:  The parent of a sixth grade student who was homeless and residing in the district requested a hearing claiming the district did not follow referral and eligibility determination procedures.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ determined that the district did not properly document the student’s referral and provide the parent with notice of the referral.  The ALJ also determined that the district did not properly inform the parent of the participants in the eligibility meeting.  The ALJ concluded that these violations were de minimus and did not deprive the student of a FAPE.

2004-SE-010 Mukilteo SD         Click here for the complete decision

ALJ: Conklin    

Issues: Accommodations; Assistive Technology; Compensatory Education; ESY; FAPE; IEE; Initial Evaluation; Native Language; Related Services; Transition

BACKGROUND:  The Parents of a student with cerebral palsy and a hearing impairment requested a hearing claiming that the student’s IEPs over the previous 2 school years were not appropriate.  The Parents also claimed that transition services and ESY were inappropriate, that the District had failed to provide an FM system, the District had failed to consider an IEE the Parents obtained privately, and failed to provide sign language training for the parents.

CONCLUSIONS:  (Split for the Parents and the District) The ALJ concluded that the District failed to provide ESY services and failed to consider the IEE.  Even though the student did not meet his IEP goals he did progress on basic daily living skills when it was extremely difficult for him to do so which demonstrated that the District had provided a floor of opportunity and meaningful educational benefit.  The transition program offered was appropriate.  The District did not provide an FM system, however, such a system was not appropriate.  The Parents were provided sign language training and they were given an opportunity to observe the student use sign language in the classroom.  The ALJ ordered ESY for the summer of 2004 as compensatory education.

2004-SE-011 Everett SD        Click here for the complete decision

ALJ: Shave   

Issues: Residency

BACKGROUND:  After agreeing to a settlement stating that the student was not a resident of the District the Parent claimed that the student’s situation had changed and that even though the student’s domicile was with the Parent who lived outside of the District the student was a resident of the District because he lived a majority of the time in the separate homes of his aunt and uncle who were both within the District.  The ALJ considered the residency issue in this matter as a first part to this decision. 

CONCLUSIONS AND ORDERS:  (For the Parent) The ALJ concluded that even though the student rotated through three separate households throughout the week he was a resident of the District.  Washington state law provides that a student’s residence is where he lives a majority of the time, even if the student lives in a different household than the parent.  The student’s primary domicile was with his father who lived outside the District.  However, the student spent a slight majority of his time in the homes of his uncle and to a greater extent his aunt during the school week.  The District was obligated to provide the student with an education.

2004-SE-013 Bellevue     Click here for the complete decision

ALJ: Conklin     

Issues: IEE; Reevaluation; Prior Written Notice; Qualifications

BACKGROUND: The district requested a hearing in response to the parents request for an IEE.  The parent’s IEE request was for a speech and language pathologist’s evaluation which determined that the existing reevaluation was not sufficient in reading and a neuropsychological evaluation.

CONCLUSIONS AND ORDERS: (Split for the Parents and District) The ALJ reviewed the district's most recent reevaluation to determine its procedural and substantive appropriateness.  The ALJ found procedural flaws in the prior written notice provided to the parents of the district’s proposal to evaluate the student because it did not provide enough information to fully inform the parents of the reason for the reevaluation and need for consent.  The ALJ also found substantive deficiencies because the reevaluation did not address the appropriateness of the services being delivered in reading.  The ALJ determined that there was no evidence to support the parent’s request for an IEE with a neuropsychologist but awarded the parent’s request for reimbursement for the speech pathologist’s report because the evaluator was qualified to evaluate reading.

2004-SE-014 & 2004-SE-104 Clover Park SD     Click here for the complete decision

ALJ: Woode    

Issues: Behavior; FAPE; IEE;    Performance Levels

BACKGROUND:  The parents requested a hearing claiming the Student’s IEP did not properly state present levels of performance or include an appropriate behavior plan.  The hearing was pending for some time so that the parent could receive and review an IEE obtained by the district.  After the IEE was provided that parent requested another IEE at public expense and the district requested a hearing to demonstrate that the current reevaluation was appropriate and another IEE was not necessary.  The hearings were consolidated.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District) The ALJ concluded that the student’s present levels of performance were adequately documented in the IEP.  The ALJ determined that the behavior plan did not list specific interventions and needed to be amended.  The ALJ found the current reevaluation to be appropriate and another IEE, therefore, not necessary.  The ALJ stated further that the parents had already been provided an IEE and would not be entitled to a second IEE.

2004-SE-018 and 2004-SE-038 Seattle SD        Click here for the complete decision

ALJ: Conklin   

Issues: Behavior; Consent; Reevaluation; Residential Placement

BACKGROUND:  The Parents and the District requested a due process hearing concerning a student in ninth grade who was eligible to receive special education services and experiencing behavioral issues.  The District requested a hearing to override the Parent’s refusal to consent to a reevaluation related to a risk assessment of the student’s behavior and drug use.  The Parent’s requested a hearing seeking reimbursement for placement in a private residential care facility.  Related due process decisions were previously issued under case numbers 2003-SE-140 and 2002-SE-140.

CONCLUSIONS AND ORDERS:  (Split For the Parents and the District) The ALJ concluded that the Parents were not entitled to reimbursement for their unilateral placement of the student in a private setting. The Parents did not provide the required 10 day notice to a request private school reimbursement before placing the student in the residential schools and the placements the Parents chose were not appropriate.  The ALJ ordered the Parents refusal to consent to a risk evaluation overridden.  The ALJ further concluded that the District had failed to complete the IEP meeting within the time frame ordered in 2003-SE-140 and ordered three weeks of tutoring as compensatory education to make up for the violation.  The ALJ refused the District’s request to require the Parent’s to submit to an evaluation.

2004-SE-022 Issaquah SD    Click here for the complete decision

ALJ: Shave    

Issues:  IEE; FAPE; Parent Participation; Private School Reimbursement; Statute of Limitations

BACKGROUND:  The parents requested a hearing claiming the district failed to provide a FAPE during fifth and sixth grade and that the student was entitled to reimbursement for their unilateral placement in a private school during his seventh and eighth grade years.  The parents also contested the student’s placement in ninth grade and requested an IEE.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District)  The ALJ applied a three year statute of limitations and supported the district’s position on the date the claim accrued.  The ALJ determined that the district offered a FAPE and allowed for parent participation during sixth grade and the first school year of the student’s unilateral placement in the seventh grade.  She also noted that the parents failed to give proper notice of their intent to place the student unilaterally.  The ALJ concluded that the district failed to include the student’s private school teachers in IEP meetings held at the beginning and middle of the eight grade year and ordered reimbursement up to the point when an appropriate IEP meeting was held.  Because the district did not request a due process hearing within 15 days of the parents request for an IEE, the ALJ granted the parents’ request.

2004-SE-028 Cascade SD     Click here for the complete decision

ALJ: Geary    

Issues: Behavior; IEE; LRE;  Reevaluation; Residential Placement

BACKGROUND:  The Parents of a seventh grade student who has attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder (ODD) requested a hearing claiming the District did not provide a restrictive enough setting for the student’s behaviors.  She asked the student be placed in a residential setting.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District) The ALJ concluded that the District had not fully evaluated the student, given their knowledge of the student’s severe behaviors both in and out of school.  While acknowledging that the Parent had provided the District with limited medical and psychological releases, she found that the District had a duty to fully evaluate. Based on District and expert testimony, the ALJ ordered the District to reevaluate the student and propose an appropriate private placement for the student.  (The parent’s proposal of placement in a religious based setting raised constitutional issues regarding use of state money.)

2004-SE-031 North Kitsap SD        Click here for the complete decision

ALJ: Kingsley    

Issues:  Jurisdiction; Private School Reimbursement; Residential Placement

BACKGROUND: The Parents requested a due process hearing seeking reimbursement from the District for a private residential placement that the Parents obtained privately.  The Parent’s also alleged procedural defect occurring in the student’s IEP development during the time the student was unilaterally placed in the residential school.  This case is related to two earlier due process decisions 2002-SE-098 and 2003-SE-087.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ denied the parents’ request for reimbursement.  The ALJ based his decision on the parents’ failure to notify the district of their intent to unilaterally place the student in a private setting and on his previous determination that the parent’s choice of placements was inappropriate (2002-SE-098).  The ALJ concluded that the parents’ had not provided any new evidence that changed this determination.  Having determined reimbursement was inappropriate the ALJ concluded that the student was a private school special education student and while the district was responsible for developing a services plan for the student, complaints about the inadequacy of that plan could not be raised through due process.

2004-SE-065 Tacoma SD     Click here for the complete decision

ALJ: Conklin   

Issues: Behavior; Consent; Reevaluation

BACKGROUND: Parents initially filed a due process request contesting the District’s proposed placement in a self- contained setting (2004-SE-047).  The District responded with the current due process hearing request asking that the ALJ override the parent’s refusal to consent to a reevaluation and requesting access to medical records.  The student had exhibited many troubling behavioral issues and the district was unable to determine the cause of the behaviors.  The Parents refused to provide the District with any of the student’s medical or psychological information. The Parents withdrew their hearing request, noting their intent to home school the student

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found that even though the Parents intended to home school the student, the District needed to proceed with a reevaluation.  Given the student’s erratic behaviors in the school setting, reevaluation was appropriate.  The judge overrode the parent’s refusal to provide consent for the reevaluation and also overrode the Parents’ refusal to provide consent for the release of the student’s medical information.

2004-SE-069 Everett SD        Click here for the complete decision

ALJ: Shave   

Issues: Behavior; Placement

BACKGROUND:  The District filed a request for a due process hearing, to show that its proposed placement was appropriate.  They proposed to place the student in an ESD center for students with emotional/behavioral disabilities.  The Parent did not object to the program offered, but objected to the physical layout of the program.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ found that the center more appropriately met the student’s needs than the elementary school.  This decision was limited to the physical appropriateness, and did not address other programmatic issues. 

2004-SE-072 Clover Park SD    Click here for the complete decision

ALJ: Conklin   

Issues: Compensatory Education; Discipline; ESY; Jurisdiction; Qualifications

BACKGROUND:  The parents of a student who was disciplined repeatedly through in school and out of school suspensions requested a hearing claiming the district did not follow procedures.  The parents also claimed the district inappropriately denied their request for ESY.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District)  The ALJ concluded that even though out of school suspensions total more then 10 days in the school year, the removals were not 10 or more consecutive days and were spread out of the year in a manner that did not create a pattern of removals resulting in a change of placement.  However, because the student was removed for more then 10 days in the school year the district was required to provide services for the excess days, which it failed to do.  During the in school suspensions the district provided appropriate services.  ESY were services were not appropriate.  The ALJ ordered tutoring as compensatory education.

2004-SE-076 Selah SD (Order on Summary Judgment)    Click here for the complete decision

ALJ: Shave

Issues: Initial Evaluation; Jurisdiction; Statute of Limitations

BACKGROUND:  The parent requested a hearing claiming multiple violations by the district beginning in February 1993, and culminating with the allegation that the district did not properly evaluate the student from the time period beginning in December 2002 and continuing.  The parent also named the Office of the Superintendent of Public Instruction (OSPI) as a party to the hearing claiming OSPI had improperly conducted several citizen complaints involving the student and that its policies and procedures with respect to identification and evaluation students were inadequate.  The district filed a motion to dismiss claiming the majority of the parents claims were barred by the statute of limitations, previous hearings, or were outside of the ALJ’s jurisdiction.  OSPI moved for summary judgment to dismiss all claims against it arguing it was not a public agency and, therefore, could not be subject to a special education due process hearing.

CONCLUSIONS AND ORDERS:  (For the District and OSPI)  The ALJ upheld the district’s motion to dismiss, applying a three year statute of limitations and determining that a previous hearing had addressed claims that the parent sought to include in this case.  The only remaining issue was whether the district had properly evaluated the Student during the time period after the previous hearing and within the statute of limitations.  The ALJ dismissed OSPI from the proceeding.  The hearing was subsequently dismissed by party agreement.

2004-SE-081 Lake Washington SD    Click here for the complete decision

ALJ: Conklin

Issues: LRE; Placement

BACKGROUND:  The parents of a junior high school student who was to receive services in the general education environment with one special education class requested a hearing to dispute the physical location of the junior high school in which the district proposed implementing the student’s IEP.

CONCLUSIONS AN ORDERS:  (For the District)  The ALJ noted that a student’s educational placement does not refer to the physical location of a student’s school but to the implementation of the IEP in the LRE and to the maximum extent appropriate in the general setting.  The ALJ concluded that the physical location of the student’s junior high school was not an issue for the student’s IEP team.  The ALJ went on to conclude that even if the actual location of the school was a question for the IEP team the district established that the school it proposed would provide a reasonably high probability of assisting the student in attaining the annual goals in his IEP.

2004-SE-087 & 2004-SE-094 Clover Park    Click here for the complete decision

ALJ: Shave

Issues: Accommodations; Behavior; Compensatory Education; ESY; FAPE; IEE; Performance Levels; Progress Reporting

BACKGROUND:  The parents requested a hearing alleging the ninth grade IEP developed for the student who has Tourette’s Syndrome and other impairments did not offer a FAPE.  While the hearing was pending the parents requested an IEE at public expense and the district requested a hearing to contest the IEE.  The cases were not consolidated but the decisions were identical.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District)  The ALJ agreed that the evaluations the district conducted were appropriate and therefore, denied the request for an IEE.  The ALJ also upheld the district’s position that ESY was not appropriate.  The ALJ concluded that the IEP that was developed did not properly address the student’s current level of performance in behavior, or progress reporting.  The ALJ ordered that the revised IEP include using a tape recorder as an accommodation for a trial basis.  The decision also stated that the district failed to include SLP services in the student’s IEP and required a reevaluation of the student’s speech needs.  The ALJ ordered compensatory services in the form of tutoring and speech services.

2004-SE-097 Seattle SD    Click here for the complete decision

ALJ: Conklin

Issues: Jurisdiction; Related Service

BACKGROUND: The parent requested a hearing claiming that the student should receive a one-on-one aide.  The district moved for summary judgment because it agreed a one-on-one aide was appropriate.  The parent objected to summary judgment because she believed the particular aide the district chose would not be able to properly implement services.

CONCLUSIONS AND ORDERS: (For the District)  The ALJ granted summary judgment based upon both parties assertions that an aide was appropriate.  The ALJ determined the parent’s concerns about the aide to be a new issue that was raised at the pre-hearing conference and concluded that issue would have to be brought through a separate hearing because it was not included in the original hearing request.

2004-SE-096 & 2004-SE-099 Everett SD    Click here for the complete decision

ALJ: Shave

Issues:  Parent Participation; Placement; Reevaluation

BACKGROUND:  The parents of a 16 year old student with developmental disabilities requested a hearing to contest the district’s proposed change in placement from a combination of an out of district placement in a private school and the district high school to a placement solely in the district high school.  The parents claimed that district’s proposed change in placement was inappropriate and, was not supported by a proper reevaluation.  They also alleged the district did not allow parent participation in the IEP process to before proposing to the change in placement.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District)  The ALJ concluded that the district was not required to conduct a new reevaluation before proposing the change in placement because the existing evaluation adequately supported the proposal.  The ALJ also determined that the existing evaluation was appropriate and refused to adopt the parents position that it was completed by the district simply to support the proposed change in placement.  The ALJ found that the district committed a procedural violation in not including a representative from the student’s current private placement in the IEP meeting where the change in placement was considered and that this resulted in a denial of FAPE to the student.  The ALJ ordered a new IEP meeting that included a private school teacher to address the student’s placement.

2004-SE-101 Kent SD Click here for the complete decision

ALJ: Woode

Issues: FAPE; Harassment; IEP Content; Parent Participation; Private School Reimbursement

BACKGROUND:  The parents requested a hearing alleging that the district did not include required participants on the student’s IEP teams, denied the student a FAPE by not providing an appropriate education program including “direct instruction” and exposed the student to an unsafe environment.  The parent requested reimbursement for private school.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found that the special education and general education teachers that attended the student’s IEP meeting were able to interpret the instructional implications of the psychological and neuropsychological evaluations.  The ALJ also found that an SLP participated in the development of the student’s IEP but was not required to attend the IEP meetings and that a private school teacher attended the IEP meeting.  The ALJ concluded that the district did not deny the student a FAPE and specifically found that she was provided with “direct instruction” as recommended by the evaluators and reflected in her IEP.  Because the ALJ concluded that the student was not denied a FAPE, private school reimbursement was denied.

2004-SE-106 Central Valley SD         Click here for the complete decision

ALJ: O’Brien Persons

Issues: IEE; Initial Evaluation

BACKGROUND:  The district requested a hearing in response to the parents’ request for an IEE.  The parents requested an IEE after the district conducted an evaluation in response to the parent’s referral and found that the student did not require special education services.  The evaluation involved a review of existing data including a recent psychological evaluation and the student’s education performance under a 504 plan that was developed earlier in the school year after the determination had been made through a reevaluation that the student was no longer eligible for special education. 

CONCLUSIONS AND ORDERS:  (For The District)  The ALJ concluded that the district’s evaluation, based in part upon the fact that the district had shown the student was performing at or above grade level under the current 504 plan, was appropriate.  The district denied the parent’s request for an IEE at public expense.

2004-SE-119 Federal Way SD (Order on Summary Judgment and Final Order)        Click here for the complete decision

ALJ: Conklin

Issues: IEP Implementation; Jurisdiction; Transition

BACKGROUND:  The adult student with the assistance of two non-attorney advocates requested a hearing alleging failure to implement his transition plan, retaliation, and other issues.  These other issues were the subject of a previous due process hearing that had been resolved by a settlement agreement.  The student sought to include some of those issues in this hearing and the district moved that those issues be dismissed based upon the settlement agreement.  The district also moved that the student’s advocates be excluded from the hearing due to conflict of interest and unauthorized practice of law.

CONCLUSIONS AND ORDERS:  (Summary Judgment Order) (Split for the Parent and the District)  The ALJ granted the district’s motion to dismiss in part, concluding that the settlement agreement barred consideration of the issues it addressed.  The ALJ refused to disqualify the student’s advocates because she determined unauthorized practice of law was not an issue for the hearing and the district had not demonstrated a conflict of interest.  The advocates were allowed to accompany and advise, but not represent, the student.

(Final Order) (For the District) The ALJ determined that the district developed an appropriate transition plan.  She also concluded that she did not have jurisdiction to consider a claim for retaliation but did determine that the district made reasonable efforts to have him attend school and did not deny the student a FAPE by requiring that he complete enrollment paperwork.

2004-SE-122 Clover Park SD    Click here for the complete decision

ALJ: Woode

Issues: Compensatory Education; Jurisdiction; Placement

BACKGROUND:  The Parent requested a hearing claiming the district’s action of changing the student’s general education math class to a special education math class was change in placement.  The parent asked for compensatory education as a remedy.  Prior to the hearing, the district moved for summary judgment claiming the district’s action was a schedule change and not a change in placement.

CONCLUSIONS AND ORDERS: (For the District) The ALJ denied the district’s motion for summary judgment because she concluded material facts were is dispute.  After the hearing the ALJ concluded that the student’s IEP and placement were for services in the special education math class and that the student had erroneously been placed in general education math.  Therefore, the district did not change the student’s placement when it moved him into the special education math class.  The ALJ denied the parent’s request for compensatory education.

2004-SE-123 Federal Way SD    Click here for the complete decision

ALJ: Woode

Issues: Assistive Technology;  Compensatory Education; ESY; IEP Goals; Progress Reporting; Related Services

BACKGROUND:  The parents requested a hearing for a student in high school claiming the IEPs developed when the student was in middle school and during the student’s freshman year did not address the needs of her learning disability.  The parents also claimed that the IEPs did not address assistive technology, ESY, related services and that the parents were not provided progress reports.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District)  The ALJ concluded that the annual goals contained within the student’s IEPs appropriately addressed her learning disabilities and that the IEPs properly considered the student’s need for related services (other than assistive technology).  The ALJ found that the parents were not provided with progress reports and that this procedural error denied the student a FAPE.  The ALJ concluded that the district applied the wrong standard to determine the student’s need for assistive technology because it did not consider the student’s assistive technology needs on an individual basis.  The ALJ determined the student did not require ESY.  The ALJ ordered the district to complete an assistive technology assessment of the student’s needs and provide 30 hours of private tutoring as compensatory education.

2004-SE-128 Federal Way SD    Click here for the complete decision

ALJ: Conklin

Issues: Compensatory Education; ESY; FAPE; Graduation; Parent Participation; Related Services; Transition

BACKGROUND:  An adult student requested a hearing claiming the district did not have a general education teacher or a district representative at an IEP meeting; the IEP did not include a transition plan, related services, ESY, or accommodations; and that the district did not explain how the student could obtain a high school diploma based upon her IEP.  The adult student requested compensatory education and other equitable remedies designed to make up lost high school credits and transition services.

CONCLUSIONS AND ORDERS:   (Split for the Student and the District)  The ALJ concluded that while a district representative did attend the IEP meeting, the  general education teacher did not.  This was a violation resulting in a loss of a FAPE because the most recent evaluation recommended general education placement and the student was currently served in general education.  The ALJ determined that the student had not accessed tutoring that the district hade made available and ESY was not appropriate.  The ALJ also determined that the student could obtain a regular high school diploma if she attended all her classes and that the transition plan was appropriate.  The ALJ found unpersuasive the district’s argument that the student should not be entitled to compensatory education because she moved to another district.  The ALJ order 20 hours of tutoring service provided that the student returned to the district and attended 20 consecutive school days without an excused absence.

2004-SE-130 Spokane SD        Click here for the complete decision

ALJ: O’Brien Persons

Issues:  Consent; Eligibility, Reevaluation

BACKGROUND:  The district requested a hearing in response to the parent’s request that the student be exited from special education and refusal to provide consent to reevaluate the student’s ongoing eligibility for services.  The ALJ considered whether the parents could revoke their initial consent for special education services, whether consent was needed for the reevaluation, whether the parents’ refusal to provide consent for the reevaluation should be overridden and whether the student remained eligible for special education.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ determined that the most recent reevaluation already supported services and that the student remained eligible for special education.  The ALJ refused to override the parents’ denial of consent to a reevaluation in math because she determined the existing reevaluation was appropriate and the student should not be exited.

2004-SE-132 Central Valley SD    Click here for the complete decision

ALJ: Hansen    

Issues: Behavior; Discipline; Initial Evaluation; Qualifications; Transition

BACKGROUND:  The parents requested a hearing claiming a high school student was improperly excluded from school due to his behavior, the student’s IEP did not include appropriate transition services, the student was not properly evaluated, and the district did not adequately train staff.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that the district did not violate discipline procedures because the total exclusion did not exceed ten cumulative days.  The ALJ found that the transition plan in the Student’s IEP was appropriate because the district offered a program using highly trained staff able to provide transition services in a small teacher to student ratio and the parent rejected this placement in favor of services at the student’s neighborhood school.  The district provided a variety of transition activities at the neighborhood school.  The ALJ concluded that staff working with the student was adequately trained.  The student’s teachers received routine training from the district behaviorist and were informed of the requirements of the student’s behavior plan.  The district properly relied upon the evaluation conducted in a private setting in developing the student’s initial evaluation and subsequent IEPs. The ALJ also found that the parent did not inform the district of inadequacies within the independent evaluation that might have triggered the need for a reevaluation.  The student’s progress under the IEPs demonstrated that a reevaluation was not necessary.

2004-SE-140 Colville SD    Click here for the complete decision

ALJ: O’Brien Persons   

Issues: IEP Content; Parent Participation; Performance Levels; Placement; Progress Reporting; Qualifications

BACKGROUND:  The parents requested a due process hearing for a student with autism who transferred into the school district at the beginning of the year.  The parent claimed the new IEP was not developed using proper procedures and did not include necessary information.

CONCLUSIONS AND ORDERS: (For The District) The ALJ concluded that a general education teacher participated in the development of the IEP.  A member of the former school district was not required to participate in the development of the IEP.  The parent was provided an opportunity to participate in IEP, placement and evaluation meetings but the district was not required to include the parent in preparatory meetings.  The ALJ determined the IEP goals, present levels of performance, progress reporting and components of the IEP were appropriate.  The ALJ stated that the IEP should be amended to include a statement regarding the number of hours the student would spend in the special education and general education classroom each day but did not include this in her order.

2004-SE-147X Evergreen SD        Click here for the complete decision

ALJ: Conklin   

Issues: Discipline: Jurisdiction; Parent  Participation

BACKGROUND:  The parent requested a hearing to contest the district’s exclusion and manifestation determination that the student’s conduct of bringing a toy gun to school was not a result of his disability.  In addition to substantive claims, the parent claimed that the district violated procedures by failing to provide her with her procedural safeguards and proper notice of the manifestation determination meeting.  The district argued that the hearing was moot because the student had served the 30 day suspension it required due to the toy gun incident.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ rejected the district’s mootness argument because she determined the parent could still contest the manifestation determination.  The ALJ concluded that even though the district did not provide the parent with notice of procedural safeguards when it provided her notice of the student’s exclusion, this procedural violation did not result in harm sufficient to deny the student a FAPE.  The ALJ also concluded that the evidence at the hearing did not support the parent’s argument that she did not receive sufficient notice of the manifestation determination meeting.  The ALJ determined that bringing the toy gun to school was not a manifestation of the student’s disability.

2004-SE-161X Omak SD        Click here for the complete decision

ALJ: Sullivan    

Issues: Discipline; Jurisdiction

BACKGROUND:  The parents of a student who was expelled for smoking marijuana requested an expedited hearing to contest the manifestation hearing determination.  The parents also sought a finding that the conduct did not occur.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded that in the context of a special education due process hearing, she did not have authority to determine whether the misbehavior actually occurred, noting that this would be contested in the districts discipline procedures for all students.  The ALJ upheld the determination that the conduct was not a manifestation of the student’s disability and stated that courts have specifically rejected the argument the alleged smoking of marijuana at school is caused by the student’s disability, when the act is undertaken by a student with a disability in order to fit in or to win the approval of peers and avoid being considered different.

2003 Due Process Decisions

2003-SE-010 Highline SD    Click here for the complete decision

ALJ: Geary

Issues: IEE

BACKGROUND:  District requested a hearing in response to parents request for an IEE after the 15 day deadline expired.

CONCLUSIONS AND ORDERS:  (For the Parents) District’s violation of 15 day rule for requesting a due process hearing to contest the Parent’s request for an IEE required that the ALJ order the IEE.  The ALJ refused the district’s request that based upon fairness it not be penalized for violating the 15 day rule by having to complete the IEE, holding that strict application of the rule maintained predictability and speedy resolution of IEE requests.

2003-SE-025 & 2002-SE-121 (Consolidated) Name of District Withheld

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ALJ: Geary

Issues: Accommodations; Eligibility

BACKGROUND:  The Parent filed a due process request challenging the district’s determination that a four year old child with an orthopedic impairment that prevents the complete use of her arm was not eligible under the IDEA.   

CONCLUSIONS AND ORDERS: (For the Parent) The ALJ found it significant that the student needed continual OT service incorporated into her general education curriculum in order to prevent regression and fully develop and maintain a full range of motion in her arm.  Noting that the student’s disability was not “static”, the ALJ based her findings on the student’s need for continual instruction on how to move her arm and use accommodations throughout the day in order to be successful and that pull-out OT sessions were not sufficient.

2003-SE-034 Mercer Island SD                  Click here for the complete decision

ALJ: Geary

Issues: Behavior; Child find; Compensatory Education; Eligibility; IEE; Initial Evaluation

BACKGROUND: The Parents of a 9^th grade student with a neurological impairment requested a hearing contesting the district’s decision that the student was not eligible for special education services.  The Parents also alleged that the district had failed in conducting its child find obligations, and requested that the district reimburse them for an IEE they obtained.

CONCLUSIONS AND ORDERS:  (For the Parents) The ALJ determined that the district failed to act on a referral of a child suspected as having a disability within the required 25 school days.  This was an inappropriate delay of the evaluation process and obligated the district’s reimbursement of the parents’ IEE.  Analyzing the eligibility question, the ALJ determined the student was eligible to receive special education services under the category of health impaired and the district was required to provide compensatory education.

2003-SE-037 Snohomish SD                  Click here for the complete decision

ALJ: Geary

Issues: Behavior; Discipline

BACKGROUND:  The Parents of a 9^th grade child requested a due process hearing to contest the district’s expulsion of the student.  The student had been hospitalized for depression and made threats of physical violence toward his special education teacher while in group therapy at the hospital.  As a result, the district held a behavior manifestation hearing and determined that the threats were not a manifestation of the student’s learning disability. 

CONCLUSIONS AND ORDERS:  (For the Parents)  The ALJ held that the District  should not have relied solely on the eligibility category and information it had at the time of developing the IEP, and should have considered the more recent mental health information when conducting the manifestation determination.  The ALJ ordered that the student be returned to his prior educational setting, that the district conduct an FBA and convene the IEP team.

2003-SE-040  Name of School District Withheld  Click here for the complete decision

ALJ: O’Brien Persons

Issues: Accommodations; Behavior; Qualifications; Reevaluation; IEE

BACKGROUND:  Parent of a 10 year old child with multiple mental impairments that result in the need for suicidal monitoring requested a due process hearing alleging that the district had failed to evaluate the student in response to her referral and that the Parent be reimbursed for a private evaluation.  The district maintained that the student was making adequate academic progress and did not require an additional evaluation.

CONCLUSIONS AND ORDERS:  (Split for the Parent and District) The ALJ determined that the School District failed to determine whether to evaluate the student within the requisite 25 school days and that the district was required to make an evaluation based upon the criteria outlined in the special education regulations.  However, the ALJ determined that the request for an IEE was premature, and the proposed evaluator not qualified.  Based on this the ALJ denied the request for the IEE.

2003-SE-041 Central Valley SD                    Click here for the complete decision

ALJ: Hansen

Issues: IEP Implementation

BACKGROUND:  Parents filed a due process hearing request on behalf of an 8^th grade student qualifying for special education services under the category of mental retardation.  The Parents claimed the district failed to implement the student’s IEP requiring grade appropriate general education, when it offered a music class containing only 6^th grade students, except for a few other 7^th and 8^th grade students also receiving special education services. 

CONCLUSIONS AND ORDERS: (For the Parents) The ALJ determined that the district’s music class was not a general education class because it did not include age appropriate peers.

2003-SE-068 Olympia SD        Click here for the complete decision

ALJ: Geary

Issues: Child Find; Compensatory Education; Initial Evaluation; Jurisdiction; Private School Reimbursement; Statute of Limitations

BACKGROUND: Parents of an adult high school student with Attention Deficit Disorder (ADD) and currently enrolled in a private residential school requested a hearing.  The Parents claimed that during the time the student was enrolled in the District it improperly exited her from special education services and failed to execute its child find obligations.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ noted that a student’s drug use does not excuse a school district from its child find obligations.  However, the ALJ concluded that in this case the District’s conclusions that student’s behaviors including skipping class, hanging out with socially undesirable peers, disobeying her parents, spacing out and not participating in school were reasonably linked to her marijuana use was appropriate.  The District’s knowledge of the student’s ADD diagnosis, previous special education eligibility, and attendance problems coupled with its knowledge of her drug use did not trigger the duty for the district to suspect an emotional/behavioral disability and complete an evaluation for special education services  The ALJ determined that the Parents had standing even though the student was an adult because the District had failed to raise the standing issue on a timely basis and the student authorized the Parent’s attorney to represent her interests.  The ALJ applied a three year statute of limitations and excluded issues arising before that time.  On reconsideration the ALJ concluded that there is nothing within WAC 392-172-307 that requires a District to provide notice of procedural safeguards indicating a right to reimbursement for private residential placement as distinct from a private placement.

2003-SE-072 Yelm SD                            Click here for the complete decision

ALJ: Geary

Issues:  FAPE; IEP Implementation; IEP Content; Initial Evaluation; Prior Written Notice

BACKGROUND:  Parents requested a due process hearing alleging multiple violations regarding IEP procedures and implementation.  The Parents also alleged the District failed to implement the ALJ’s order in 02-031 Yelm SD.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District) The ALJ found that the District took immediate steps to implement the prior order, including scheduling evaluations.  While a “formal” IEP meeting may not have been convened in 30 days, the ALJ found that the parents and district had a series of meetings to address the steps necessary to comply with the order.  To the extent that timelines were not met for additional evaluations and counseling, the ALJ found that the district took steps to accommodate the parent’s preferences.  The ALJ also found that the district considered input and evaluations provided by the parents.  The ALJ did find that goals and objectives were not measurable in the area of written expression, and this failure denied FAPE to the student.  Parents requests for additional evaluations were denied.

2003-SE-076 Lake Washington SD        Click here for the complete decision

ALJ Woode

Issues: Behavior; Child Find; FAPE; IEP Content; Initial Evaluation; Private School Reimbursement

BACKGROUND:  The Parent of a student who transferred into the district in the fourth grade from a private school requested a hearing claiming that the district failed to exercise its child find obligations and identify the student.  The parent’s attorney eventually requested a referral and the District found the student eligible to receive special education services.  The Parents claimed the IEPs that the District prepared failed to offer a FAPE over several years and requested reimbursement for private school.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District)  The District failed to meet its child find obligations.  Relevant facts included that: the student had been diagnosed with ADHD; the student had behavioral issues resulting in suspensions and that had caused the district to conduct an FBA and develop a BIP; the student had made statements regarding committing suicide and was reported to have been hospitalized for suicidal ideation; the student was recommended to perform better in a structured environment by his psychologist; the student’s classmates had written letters pleading with the student’s teacher to “do something about him”; and that the student had written death threats toward his classmates.  The ALJ concluded that the District’s pre-intervention and referral policies violated child find regulations to the extent that the policies did not allow District staff to make a referral.

The IEP offered during the first year the student was determined eligible for special education services failed to offer a FAPE.  That IEP was also inappropriately developed because the district’s special education director could not substitute for the role of the student’s special education teacher on the student’s IEP team and the school principal could not substitute for the student’s regular education teacher.  The IEP offered in the next school year did represent an offer of FAPE.  The ALJ ordered reimbursement for private school services for some of the time the parent requested and denied reimbursement for time in which FAPE was offered.  The ALJ ordered compensatory education in the form of reimbursement for private counseling the Parents had obtained to make up the period of time in which the District had failed to identify and evaluate the student.

2003-SE-084 Camas SD                       Click here for the complete decision

ALJ: Shave

Issues: Compensatory Education; Graduation; Transition

BACKGROUND:  The parent of an 18 year old student who had graduated from high school with a regular diploma, requested a due process hearing challenging the student’s prior IEPs and the District’s implementation of the student’s transition program (prior to the student’s graduation).  The Parent requested reimbursement for tuition and other costs for the student to attend a culinary arts vocational program.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District) The ALJ concluded the IEPs were appropriate in academics.  The District failed to provide appropriate detail of transition services in the IEPs and failed to appropriately support the student’s transition program.  The requirements for graduation were met and the student appropriately received a regular diploma.  Because the student graduated with a regular diploma he was no longer eligible for special education services.  However, the ALJ ordered that the District’s violations regarding the student’s transition services required one year of compensatory education at the District’s skills center. 

2003-SE-087 North Kitsap SD                 Click here for the complete decision

ALJ: Kingsley

Issues: Compensatory Education; Private School Reimbursement; Residential Placement

BACKGROUND:  The parents of a 14 year old 8^th grade student receiving special education services under the category of health impaired requested a hearing challenging the district’s proposed placement and requesting reimbursement for a private residential placement.  The parent’s claimed the district had failed to implement the ALJ decision as ordered in case number 02-098 North Kitsap SD.

CONCLUSIONS AND ORDERS:   (Split for the Parents and the District) The ALJ concluded the district failed to consider services of a neuropsychologist or a psychotherapist as ordered in case number 2002-SE-098.  The ALJ further concluded that the district failed to offer FAPE in that the student was not receiving appropriate service towards behavioral goals.  The educational services provided by the private residential setting were appropriate.  However, the ALJ concluded a residential setting was not necessary for educational benefit.  The ALJ ordered reimbursement to the parents for the private placement but excluded the portion of: (a) costs for medical expenses unrelated to evaluation; (b) room, board, and other costs related to residential care; and (c) costs associated with parents’ monthly visits.

2003-SE-088 South Kitsap SD                Click here for the complete decision

ALJ: Geary

Issues: IEP Content; LRE; Placement

BACKGROUND:  The Parents of a ninth grade student with autism requested a hearing alleging the offered placement was not the LRE and that the student had not made meaningful progress during the school year.  The Parents requested a remedy requiring placement in the student’s home school that also allowed for home instruction (home schooling).

CONCLUSIONS AND ORDERS:  (Split for the Parents and District) The ALJ upheld all components of the IEP except in the area of math where one of the goals was inappropriate.  The LRE was in the life skills setting.  The parents proposed program involving shuttling the student back and forth between the home school and the life skills setting and including home instruction would have been more restrictive.  The district was ordered to convene a new IEP to adjust the math goals.

2003-SE-100 West Valley SD                      Click here for the complete decision

ALJ: Sullivan

Issues: IEE

BACKGROUND:  The district requested a hearing to contest parents’ request for reimbursement for an IEE.

CONCLUSIONS AND ORDERS:  (For the District) The district’s evaluation that the student was not eligible for special education service was appropriate and the parents were not entitled to reimbursement.

2003-SE-111 Northshore SD                   Click here for the complete decision

ALJ: Shave

Issues: IEE; Jurisdiction

BACKGROUND:   The parent of student receiving special education services requested an IEE.  The District denied the request and requested a due process hearing to demonstrate that its evaluations of the student were appropriate.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded the district’s evaluations were appropriate.  The ALJ determined there was no jurisdiction to consider the other Parent’s handwritten letter indicating the Parents had joint decision making authority and requesting that the request for an IEE be withdrawn.

2003-SE-122 Everett SD                      Click here for the complete decision

ALJ: Shave

Issues: IEE; Statute of Limitations

BACKGROUND:  The ALJ considered the issue of the parents request for reimbursement of an IEE on cross motions for summary judgment.  The district argued the parents claim for reimbursement was barred and the parent claimed the district was outside of the 15 day deadline to request a hearing contesting a request for an IEE.

CONCLUSIONS AND ORDERS:  (For the Parent) The ALJ applied a 3 year statute of limitations based upon Washington Law.  The ALJ declined to create an exception to the 15 day deadline for contesting a request for an IEE.  The ALJ ordered reimbursement.

2003-SE-126 & 2003-SE-127 Seattle SD (Consolidated)       

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ALJ: Geary

Issues: Behavior; Consent; Placement; Private School Reimbursement; Reevaluation; Related Services; Residency; Residential Placement

BACKGROUND: The District requested a hearing after the Parents refused to allow the District to conduct a 90 day evaluation in a residential setting.  The Parent’s responded by requesting a hearing to dispute the appropriateness of the previous year’s IEP and the District’s current proposed residential placement.  They requested reimbursement for their preferred private residential placement.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District)  The District failed to provide the student a FAPE the previous year in that it did not include a BIP or behavior component in the student’s IEP and did not revise the student’s IEP when her placement changed to provide services at the student’s home.  The District’s proposal to place the student for a residential evaluation for a 90 day period in the Seattle Children’s Home was appropriate.  However, the Parent’s were denied private school reimbursement due to their refusal to allow the District to reevaluate the student.  The ALJ did not order the parent’s consent overridden because the student had moved to an out-of-state residential placement.  The ALJ found the student was no longer a resident of the District.

2003-SE-131 Spokane SD        Click here for the complete decision

ALJ: O’Brien Persons

Issues: Behavior; Discipline; IEP Content; Placement; Prior Written Notice; Reevaluation

BACKGROUND:  The Parents of a seven year old student with autism requested a due process hearing to challenge the district’s proposed change of placement; failure to appropriately incorporate the student’s BIP into the IEP; procedural violations in developing and revising the IEP and determining placement; and failure to follow appropriate procedures in disciplining the student through a suspension that resulted in a change of placement.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that the proposed change in placement was appropriate.  The district failed to follow procedures in providing prior written notice of the change in placement, however, this failure did not deny a FAPE.  The district also failed to follow IEP procedures, however, this violation also did not deny FAPE because the procedurally inadequate IEP meeting was followed close in time by an IEP meeting that met procedural requirements.  Because the change in placement was due to behavior by the student that was substantially likely to result in injury, the district was required to conduct a manifestation determination review within 10 days after the date on which the decision to remove the student was made.  The district failed to conduct this review within the required 10 days.  However, the harm to the student from this failure was de-minimus.  The IEP was appropriate in that it incorporated some of the recommendations and from the student’s FBA and the IEP team had appropriately considered all the recommendations of the FBA.

2003-SE-133 Issaquah SD                    Click here for the complete decision

ALJ: Furtado

Issues: Parent Participation

BACKGROUND:  Parent requested a due process hearing to contest the District’s refusal to allow tape recording of their student’s IEP meetings.

CONCLUSIONS AND ORDER:  (For the District)  Basing his decision on OSEP policy the ALJ concluded that district has discretion in allowing  tape recording of IEP meetings, but if a district has a policy limiting tape recording of IEP meetings the district must allow exceptions necessary to ensure the parent is able to participate in the IEP process.  In this case the district did not abuse its discretion because the parents were able to meaningful participate in the IEP process. 

2003-SE-137 Vancouver SD           Click here for the complete decision

ALJ: Ebbeson

Issues: Child Find; Eligibility, FAPE; Private School Reimbursement

BACKGROUND:  The parent of a high school student requested a hearing seeking private school reimbursement claiming that the district failed in its child find obligations to identify the student.

CONCLUSIONS AND ORDERS (For the Parent):  The ALJ concluded that the district failed to meet its child find obligations and should have suspected the student of having a disability after the student returned from two months of psychiatric hospitalization and exhibited behaviors that could have indicated the presence of an emotional/behavioral disability.  The ALJ also determined that the student was eligible for special education services.  The district’s procedural violations denied the student an opportunity to receive a FAPE.  The ALJ ordered reimbursement in a private setting.  The length of reimbursement was limited because the parent did not provide adequate notice of intent to unilaterally place the student.  The ALJ set aside the scope and amounts of the reimbursement for a further proceeding.

2003-SE-138 South Whidbey SD            Click here for the complete decision

ALJ: Shave

Issues: Consent; IEE; Qualifications; Reevaluation

BACKGROUND:  The parents of a child with multiple disabilities including Asperger’s Syndrome, requested an IEE and refused to consent to the district’s proposed reevaluation.  The district responded by requesting a due process hearing to contest the requested IEE and override parents refusal to consent.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ found the District’s proposed evaluators to be qualified professionals knowledgeable about the student’s suspected disabilities and overrode the Parents refusal to consent.  As the District had not completed the evaluation the Parents were not entitled to an IEE at public expense.

2003-SE-140 Seattle SD                   Click here for the complete decision

ALJ: Conklin

Issues: Compensatory Education; Eligibility; Jurisdiction; Reevaluation

BACKGROUND:  Parents requested a hearing claiming the district failed to follow procedures in conducting a reevaluation and failed to follow requirements for exiting the student from special education services.  Parents had previously obtained a hearing decision under case number 2002-SE-140 and the findings of fact for that case were adopted in this one.

CONCLUSIONS AND ORDERS:  (For the Parents) The ALJ concluded the doctrine of collateral estoppel precluded re-litigation of the facts at issue in 2002-SE-140.  The district failed to follow reevaluation procedures prior to exiting the student from special education services.  The ALJ awarded compensatory education for four months to compensate the student for the loss of services and ordered the student’s IEP team be convened immediately to develop an IEP for the student for the current school year.

2003-SE-148 Everett SD

ALJ: Shave

Issues: Jurisdiction; Residency

BACKGROUND:  After entering into a settlement agreement the Parent filed a motion requesting that the ALJ enforce a portion of the settlement agreement and determine that he was not bound by another portion of the settlement agreement.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ determined that the settlement agreement released the District from all claims encompassed within the agreement.  The ALJ further determined that special education regulations did not provide authority to enforce the provisions of a settlement agreement in a due process hearing.  The ALJ ordered dismissal of the hearing and added that an additional reason for dismissal could be found in the Parent’s agreement that the student was no longer a resident of the school district.

2003-SE-155 Mukilteo SD        Click here for the complete decision

ALJ: Kingsley

Issues:  IEE; Jurisdiction

BACKGROUND:  The District requested a hearing to contest a parent’s request for an IEE.  The Parent did not appear at the hearing and the District has been unable to contact her.

CONCLUSIONS AND ORDERS:  The ALJ determined the Parent’s request for an IEE was moot and ordered the hearing dismissed.

2003-SE-159 Evergreen SD        Click here for the complete decision

ALJ: Hale

Issues: Assistive Technology; Compensatory Education; Jurisdiction; LRE; Private School Reimbursement; Statute of Limitations

BACKGROUND:  The parents requested a hearing alleging that the district did not provide appropriate transition and assistive technology to the high school student.  The student was a senior at the time the hearing was requested.  During the pre-hearing conference the district successfully moved to dismiss claims that did not involve the IDEA.

CONCLUSIONS AND ORDERS: (For the Parent)  Applying a three year statute of limitations the ALJ determined that she had jurisdiction beginning in the student’s freshman year.  The ALJ concluded that the district failed to provide the student with assistive technology throughout high school because evaluations recommended an “FM” hearing device.  The ALJ also determined the transition services and plan offered throughout high school was not appropriate because it put the responsibility on the parent to contact outside agencies; the plan lacked a clear set of coordinated activities; and the plan failed to offer a transition experience that considered the student’s unique needs created by his disabilities and his vocational interests.  The lack of an “FM” system combined with the failure to include a general education teacher in many IEP meetings, which eventually resulted in a reduction in the student’s participation in general education classes, led the ALJ to conclude that the district failed to offer the student a FAPE in his LRE.  The ALJ ordered compensatory education in the form of a vocational program as determined by his IEP team, an assistive technology evaluation, and purchase of an “FM” hearing device for the student.

2003-SE-161 & 2003-SE-163 Peninsula SD (Consolidated)       

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ALJ: Geary

Issues: Compensatory Education; Consent; Eligibility; ESY; FAPE; IEE; IEP Implementation; Initial Evaluation; Qualifications

BACKGROUND:  Parents of a student with Asperger’s Syndrome requested a hearing contesting the appropriateness of the IEPs offered in the student’s kindergarten and first grade years, whether the student was properly evaluated, and several procedural errors.  The District requested a hearing contesting IEE requests.

CONCLUSIONS AND ORDERS:  (Split for the Parents and District) The ALJ found that the district did not delay in implementing a program when the student transferred to the district.  While the ALJ found that areas of the district’s evaluation were incomplete due to failure to include qualified professionals in all areas of the student’s disability, the ALJ found the student’s IEP was appropriate in all areas except speech pragmatics.  The district was ordered to provide compensator education in this area.  Originally the ALJ ordered the district to reimburse the parents for costs of IEEs however, on reconsideration, she found the district was within its 15 day timeline and revised this portion of the order. 

2003-SE-165 Vancouver SD       Click here for the complete decision

ALJ: Kingsley

Issues:  Behavior; Eligibility; LRE

BACKGROUND:  The Parent requested a hearing arguing that the District’s placement of the student over the previous two school years was too restrictive.  They also contested the District’s categorization of the student as having an emotional/behavioral disability.

CONCLUSIONS AND ORDERS:  (For the District)  The ALJ concluded that the District’s most recent reevaluation supported a determination that behavior was the student’s greatest education impediment.  The ALJ upheld the student’s placement based upon his application of the Ninth Circuit’s test established in Holland, to analyze the appropriateness of a placement outside of the general education setting.

2003-SE-167 Seattle SD        Click here for the complete decision

ALJ: Conklin

Issues:  Accommodations; Assistive Technology; Compensatory Education; FAPE; IEE; IEP Implementation; Jurisdiction; Parent Participation; Qualifications; Transition

BACKGROUND:  Parents of a high school student with a physical impairment requested a due process hearing alleging several violations relating to implementation and development of the student’s IEP over the previous two school years.

CONCLUSIONS AND ORDERS:  (Split for the Parent and District)  The ALJ concluded that she did not have jurisdiction over allegations pertaining to the student’s 504 plan or the District’s refusal to assign a new special education teacher.  While the ALJ found procedural violations in the prior IEP, and in IEP team participation, these violations did not deny the student a FAPE.  The ALJ found that the District did not provide the accommodations described in the current IEP, including large print books and an evacuation plan.  She also found that some of the goals were inappropriate. The ALJ found that the District failed to provide accommodations for the student which may have impacted the student’s ability to enter college. The District was ordered to convene an IEP meeting. It was also ordered to write a letter to higher education facilities explaining that its failure to provide the student with a large print SAT may have affected the score.

2003-SE-169 Highline SD        Click here for the complete decision

ALJ: Conklin

Issue:  IEE

BACKGROUND:  Parent of a ten year old student requested a hearing in support of her request for an IEE at public expense for speech services.

CONCLUSIONS AND ORDERS:  (For The District)  The ALJ upheld the district’ speech evaluation and denied the parent’s request for an IEE.

2003-SE-170 Clover Park SD        Click here for the complete decision

ALJ: Conklin

Issues:  IEE; Reevaluation

BACKGROUND:  The District requested a hearing to contest a parent’s IEE request for her eight grade son who was receiving special education services under the category of specific learning disability.

CONCLUSIONS AND ORDERS:  Because the school district’s most recent reevaluation was appropriate, the ALJ denied the parent’s request for an IEE at public expense.

PART C HEARING (To obtain redacted copies of Part C hearings contact DSHS at their webpage at: http://www1.dshs.wa.gov/iteip/)

01-2003-A-1059

ALJ: Shave

Issues:  IFSP

BACKGROUND:  Parents of a 2 year old child with autism filed a request for a due process hearing under Part C of the IDEA, which concerns early intervention services for children between the ages of birth to 3.  The hearing was filed with the Department of Social and Health Services (DSHS).  Respondents were the DSHS Department of Developmental Disabilities (DDD) Infant and Toddler Early Intervention Program (ITEIP) and the Provider of developmental services.  Parents claimed that the Individual Family Service Plan (IFSP) was inappropriate in that it did not include the level of services the Parents’ autism expert determined was appropriate for their child (those services included addition hours of one-on-one applied behavioral analysis (ABA)).

CONCLUSIONS AND ORDERS:  (For ITEIP and the Provider) The ALJ determined that the additional private services the Parents were providing in excess of what was required in the IFSP, may have maximized the child’s progress.  However, the IFSP itself was reasonably calculated to provide meaningful developmental benefit to the child.

2002 Due Process Decisions

2002-SE-015 & 2001-SE-132  (Consolidated) Name of District Withheld

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ALJ: O’Brien Persons

Issues: IEE; Initial Evaluation

BACKGROUND: Parents requested a due process hearing contesting the district’s evaluation finding that the student who was diagnosed with ADHD did not qualify for special education services.  Parents later requested an IEE and the district requested a due process hearing in response.

CONCLUSIONS AND ORDERS: (For the District) The ALJ held that the student did not require specially designed instruction.  His 504 plan was adequate at accommodating his needs.  An IEE was not required because the district’s evaluation was appropriate. 

2002-SE-025 Clover Park SD  Click here for the complete decision

ALJ: Shave

Issues: Behavior; Compensatory Education; Discipline; Reevaluation

BACKGROUND: Parents of a student disciplined for making threats to kill his teacher and another student requested a hearing to contest the determination that such threats were not a manifestation of his disability.  They also contested the current IEP alleging it was not appropriate because it failed to consider his new diagnosis of Tourette’s Disorder.

CONCLUSIONS AND ORDERS: (For the Parents) The ALJ concluded that the district failed to evaluate the student for Tourette’s Disorder after receiving sufficient information to suspect that he had this disorder.  His IEP was, therefore, inappropriate.  The ALJ also concluded that because the student’s IEP was not appropriate the first prong of the manifestation determination was not satisfied.  Even if that prong had been satisfied the information in existence was insufficient whether the student could control his action.  The IEP team was ordered to reconvene to determine appropriate compensatory education.

2002-SE-030 Issaquah SD  Click here for the complete decision

ALJ: Radcliffe

Issues: Initial Evaluation

BACKGROUND:  Parents of a student diagnosed with Autism in addition to several other impairments, requested a due process hearing, contesting the district’s determination that the student’s impairments were most appropriately classified in the “health impairment” category and not the “autism” category.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that the “health impairment” category was the most appropriate as the student’s behavior issues were the primary impediment to his educational performance.  The ALJ further instructed that once determined eligible for special education, the eligibility category does not define the scope of services.

2002-SE-031 Yelm SD  Click here for the complete decision

ALJ: Geary

Issues: Compensatory Education; IEP Content; Parent Participation; Residential Placement; Related Services; Statute of Limitations

BACKGROUND: Parents of a student receiving special education services under the category of health impaired who transferred into the district in 1997 requested a hearing alleging multiple violations beginning from when the student began residing in the district.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District) Applying a 3 year statute of limitations the ALJ barred the earlier issues raised by the parents.  The ALJ concluded that the procedural errors alleged by the parents did not seriously infringe on the parents opportunity to participate in the IEP process.  Goals contained in the student’s IEPs were not clearly measurable and the IEPs failed to address the student’s need for counseling.  These errors resulted in substantive violations.  The district was ordered to institute appropriate goals and objectives; appropriate methodology; retain a consultant to assist it in completing these orders and provide compensatory education as needed. Parent’s proposed residential placement was not appropriate, not the LRE and could potentially cause the student harm.

2002-SE-036 Clover Park SD  Click here for the complete decision

ALJ: Kingsley

Issues:Behavior; Discipline

BACKGROUND: Parents requested a due process hearing contesting the school’s manifestation determination regarding his assault of a gym teacher and services provided after expulsion. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded the BIP in place at the time of the assault was appropriate and upheld the manifestation determination.  The services provided in the alternative high school after the expulsion were appropriate.

2002-SE-043 Shoreline SD  Click here for the complete decision

ALJ: Woode

Issues: Accommodations; Assistive Technology; Behavior; ESY; IEP Content; IEP Implementation

BACKGROUND: Parent requested a due process hearing claiming the student’s IEP was not properly implemented in that a specific learning program was not fully provided and the IEP was not appropriate in that it did not include keyboarding, a BIP or ESY.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that evidence did not support that the IEP was not implemented and that the additional components parent requested were not required in order for the IEP to be appropriate.

2002-SE-044 Seattle SD  Click here for the complete decision

ALJ: Conklin

Issues: IEP Content; LRE

BACKGROUND: Parents of a child with a hearing impairment in both ears, who has received a cochlear implant in one ear, requested a due process hearing, contesting what method, total communication or auditory-verbal to use to teach the student.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that this was a case of methodology and ruled in favor of the District.  Even though studies may show that auditory-verbal may provide more benefit than total communication, some meaningful benefit was provided by total communication.  The pre-school program providing total communication was the LRE even though it did not contain typically developing peers.

2002-SE-048 Ferndale SD  Click here for the complete decision

ALJ: Geary

Issues: Compensatory Education; Parent Participation; Reevaluation; Statute of limitations; Transitions

BACKGROUND: Parents requested a due process hearing disputing the IEP and evaluation procedures over several years.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District) The ALJ concluded that the 3 year Washington statute of limitations controlled and did not begin to run until the parents received appropriate notice of their procedural safeguards.  The district failed to properly provide procedural safeguards and, therefore, failed to provide a meaningful opportunity to participate to the parents resulting in a denial of FAPE.  The district also failed to adequately share the results of the most recent reevaluation, effectively denying FAPE. In not adequately coordinating with other agencies and assigning responsibilities the district failed in its obligation to provide transition services.  The district was ordered to provide compensatory education in the form of an outside evaluation and to pay for remedial courses at community college, but not tuition for college level courses.  The student’s requests for payment for college books, equipment, tools and other supplies for college classes was denied, however, the district was required to pay for supplies related to the remedial courses.

2002-SE-049 Name of School District Withheld           Click here for the complete decision

ALJ: Kingsley

Issues: ESY

BACKGROUND: Parent requested a due process hearing contesting the proposed level of ESY services.

CONCLUSIONS AND ORDERS: (For the Parents)  Noting that he had previously found appropriate 8 weeks of ESY proposed by the district in due process hearing 2001-SE-033, the ALJ pointed out that the district provided no new evidence justifying its reduction to 6 weeks.  The Parent presented evidence that the 8 weeks was appropriate and that occupational therapy (OT) was needed.  The ALJ agreed with the Parents and ordered 8 weeks of ESY with OT services.

2002-SE-054 & 2002-SE-055 North Kitsap SD    Click here for the complete decision

ALJ: Shave

Issues: Eligibility

BACKGROUND:  Parents of a 13 year old child suffering from multiple impairments including a blood disorder, chronic fatigue immune disorder and multiple chemical sensitivity disorder requested a hearing contesting the School District’s determination that the student was not eligible for special education.

CONCLUSIONS AND ORDERS: (Split for the Parents and the District) The ALJ found that the student’s impairments met the requirements for the category of “Other Health Impairment.”  However, the student’s environmental needs could be accommodated to allow the student to access the regular curriculum.  The ALJ concluded the student did not require specially designed instruction and was not eligible for special education.  The ALJ ordered an additional evaluation.

2002-SE-056 West Valley SD  Click here for the complete decision

ALJ: Thompson

Issues: Eligibility

BACKGROUND: The district requested a hearing alleging that the student and his parent have refused special education services.

CONCLUSIONS AND ORDERS: (For the Parent) The ALJ concluded that the student was not eligible for special education services.  In coming to this conclusion the ALJ relied upon the following factors: there was no evidence that the student was benefiting from special education services; the initial evaluation came about because of the discrepancy between the student’s ability and academic performance; the student and his father firmly believe that the student does not need special education services; and the evidence does not establish that it would be detrimental to the student to remove services.

2002-SE-063 Olympia SD   Click here for the complete decision

ALJ: Geary

Issues: IEP Implementation; Related Services; Jurisdiction

BACKGROUND:  Parents of a child attending high school with multiple severe disabilities raised numerous concerns, the majority of which involved implementation of her IEP, including contesting the provision of services in a storage room.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District) The ALJ determined she did not have the authority to enforce a mediated agreement entered into between the parent and the district.  The ALJ found a loss of FAPE in failing to provide the parent an opportunity to participate in the development of the IEP and in changing the student’s communication objective outside of the IEP process.  The ALJ concluded that the district compensated the student for loss of FAPE through tutoring and music therapy and declined to order further compensatory education.  The ALJ ordered the district to stop providing services in the storage room until it could provide the parent with written assurances from the appropriate governmental agency of the room’s compliance with health and safety codes.  The ALJ denied the parent’s other requests for relief.

2002-SE-078 Clover Park SD  Click here for the complete decision

ALJ: Radcliffe

Issues: Behavior; Disciple

BACKGROUND:  Parents of a third grade child with autism requested a due process hearing to challenge the School District’s use of discipline procedures.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded that the District properly implemented the child’s BIP and did not violate discipline procedures.  The in-school and out of school suspensions and removals implemented did not total more then 10 days or create a pattern of exclusions and no manifestation meeting was required.  Even thought the ALJ found that the child did not benefit from out of school suspensions the District was not required to adopt a plan that prohibited them.

2002-SE-082 Spokane SD  Click here for the complete decision

ALJ: Hansen

Issues: Behavior; Child Find

BACKGROUND:  Parents of a child diagnosed with ADHD requested a due process hearing alleging that the School District should have known the child was suspected as having a disability sooner than the time the Parents made the referral because the student had been diagnosed with ADHD and was having academic and behavior problems.

CONCLUSIONS AND ORDERS: (For the District) The ALJ noted that the facts that the student was diagnosed with ADHD and had poor academic performance did not, individually on their own, create a sufficient basis that the student was in need of a special education referral.  The District presented logical and rational reasons for not referring the student.  The student’s poor classroom performance could have arisen from the student’s frequent suspensions, refusal to perform assignments and missed classes.

2002-SE-084 Renton SD  Click here for the complete decision

ALJ: Conklin

Issues: Eligibility; IEE; Reevaluation

BACKGROUND:  Parent of a student with a disability found in the autism spectrum of impairments who had received special education services beginning before age 3, claimed that the School District’s most recent reevaluation was insufficient and requested an IEE.  In response the School District requested a hearing.

CONCLUSIONS AND ORDERS:  (For the Parent) The ALJ determined that the psychologist, SLP and PT all lacked sufficient knowledge about the student’s particular disorder to evaluate her needs.  General knowledge of autism was not sufficient.  Even if the district’s experts had sufficient knowledge, the reevaluation that it completed lacked an evaluation of the student’s vision, hearing, PT/OT and social/emotional needs.  The ALJ rejected the district’s argument that the student did not need to be evaluated in the area of hearing because she was nonverbal.  The ALJ ordered a comprehensive IEE.

2002-SE-086 Shelton SD  Click here for the complete decision

ALJ: Shave

Issues: ESY; FAPE

BACKGROUND:  The Parent of a 7 year old boy with multiple disabilities receiving special education services under the autism category requested a due process he aring to contest procedural violations in developing the IEP and a number of different implementation issues, including providing ESY in a standardized and not individualized manner.

CONCLUSIONS AND ORDERS:   (Split for the Parent and the District) The ALJ concluded that the School District’s unilateral limitation of 15 hours of one-on-one services per ESY student violated the IDEA because it did not allow for individualized determination of the student’s ESY needs.  The ALJ further found the School District’s failure to provide the Parent an invitation to the student’s most recent IEP meeting and failure to determine if a student required a surrogate parent to appear at the IEP hearing while that student was in juvenile custody would, in most cases, be a per se denial of FAPE.  However, because the School District adopted word for word an IEP that the Parent was present for, there was no loss of FAPE, except to the extent that the second IEP left out the need for SLP, PT and OT consultations.  The School District was ordered to provide these. 

2002-SE-087 North Shore SD  Click here for the complete decision

ALJ: Shave

Issues: Placement

BACKGROUND:  Parent of a student with multiple impairments, restricted to a wheelchair and requiring continual monitoring and readjustment and socialization through sign language and interaction with other students requested a hearing.  The Parent contested the school district’s offer to place the student half day in a self-contained Kindergarten classroom and half-day in full inclusion.  The Parent maintained the student should remain half-day in her self-contained pre-school class with an experienced special education teacher familiar with the student and spend half-day in the full inclusion Kindergarten setting.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ determined that the District offered a setting that would provide “more than minimal or trivial” educational benefit.  Even though the district’s proposed placement would be provided through a special education teacher in her first year of experience that was not fluent in sign language and in an unfamiliar setting with some students who would not be able to socially interact with the student, the placement was not inappropriate.

2002-SE-089 Renton SD  Click here for the complete decision

ALJ: Radcliffe

Issues: Behavior; IEP Procedures; LRE

BACKGROUND:  The Parents of a 14 year old student in 8^th grade receiving special education services under the EBD category, placed in the district’s self-contained setting for middle school students with behavior disorders, requested a due process hearing alleging the IEP meeting did not provide the family with their right to participate and failed to meet the student’s needs.  They requested the remedy of timely convening a new IEP meeting, and more time in the regular setting.

CONCLUSIONS AND ORDERS:  (For the District) The School District properly implemented the reevaluation in its proposed IEP and presented sufficient flexibility at the IEP meeting to allow the family meaningful participation.  The family’s proposal, immediate placement in the regular education setting was not supported by the reevaluation which recommended a self-contained classroom.   The School District’s response, to conduct a new reevaluation, was appropriate and not unreasonable.  The ALJ determined that the School District’s self-contained setting was the LRE.

2002-SE-094 Selah SD  Click here for the complete decision       

ALJ: Sullivan

Issues: Statute of Limitations

BACKGROUND:  In July 2002, Parents filed a request for a due process hearing claiming among other issues, the child was eligible for special education services in the school years of 1989-90 and 1990-91.  The Parents did not claim that the student was currently eligible for special education services.  The School District alleged the Parents’ hearing request was outside of the statute of limitations.

CONCLUSIONS AND ORDERS:  (For the District) Noting that the statute of limitations is calculated based upon when the Parents or an adult student could have reasonably discovered IDEA violations, ALJ applied state law determining that IDEA violations must be filed within 3 years of discovery of the violations.

2002-SE-098 North Kitsap SD  Click here for the complete decision

ALJ: Kingsley

Issues: Behavior; IEE; IEP Content; IEP; Private Placement

BACKGROUND:  Parents of a 14 year old 8^th grade student receiving special education services under the category of health impaired with direct services in written language, requested a due process hearing to contest the School District’s implement of the IEP in 7^th grade, proposed IEP for 8^th grade, refusal to fund IEE and private school placement.

CONCLUSIONS AND ORDERS: (Split for the Parents and the District)  While the IEP for the 7^th grade year was flawed in that it failed to appropriately include goals, objectives and specific services that addressed the student’s emotional difficulties, the student did not suffer a substantial loss of educational opportunity.  The IEP proposed for the 8^th grade year did not include additional services necessary for transition to high school and required consideration of the student’s needs for social adjustment into the general education setting, including an FBA and regular neuropsychological or psychotherapeutic consultation, as outlined in the existing evaluations.  An IEE was premature at this time as the prospective relief ordered was sufficient and the private placement requested was not evidenced as appropriate.

2002-SE-107 Bainbridge SD  Click here for the complete decision

ALJ: Kingsley

Issues: Private School Reimbursement

BACKGROUND:  Parents of an 11 year old student receiving special education services under the category of health impaired contested the district’s placement in a separate setting allowing for one-on-one and small class instruction.  They claimed a private setting focusing on self-regulation was more appropriate and requested reimbursement for the private placement.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ held the District’s proposed modifications did not have to be formally offered because an IEP offering FAPE was already in effect.  The placement for which the parents sought reimbursement was not appropriate as the evidence did not support that the self-regulation model provided would offer meaningful educational progress.

2002-SE-113 & 2002-SE-114 (Consolidated) North Kitsap SD  

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ALJ: Shave

Issues: Eligibility; IEE; LRE; Prior Written Notice

BACKGROUND:  Parents of a 10 year old child diagnosed with learning disabilities, requested a due process hearing contesting the School District’s determination that the student was eligible for special education services and further maintained that the LRE is the regular education classroom (and not integrated with the resource room).  The Parents also requested reimbursement for private summer tutoring.  The School District requested a hearing to contest the Parents’ request for an IEE for a neurological evaluation.  During the course of the hearing the ALJ raised the issue of prior written notice.

CONCLUSIONS AND ORDERS: (Split for the Parents and the District) The ALJ determined that the student was eligible under the category of specific learning disabled and that the current placement integrating the regular classroom and the resource room was appropriate. The ALJ ordered the School District to provide a neurological IEE.  The School District failed to provide the required procedural safeguards in conducting the initial evaluation and IEP meeting.  Noting that even though the educational services provided to the student appeared beneficial, the ALJ concluded that the School District’s failure to follow the procedures designed to provide the Parents the full information needed to be able to participate in and understand the student’s special education program left the Parents feeling mistrustful of the District and undermined their relationship with the District. 

2002-SE-124 Selah SD  

ALJ: Sullivan

Issues:  Consent; Initial Evaluation

BACKGROUND:  The School District requested a due process hearing to override Parents refusal to consent to a proposed evaluation of the student.  After a pre-hearing conference the Parents agreed to the evaluation but still contested the choice of evaluators.

CONCLUSIONS AND ORDERS:  (For the District) On motion from the School District the ALJ dismissed the case as WAC 392-172-108 provides that as a matter of law, districts may select their own certified or licensed staff to conduct the evaluation.

2002-SE-134 North Kitsap SD  Click here for the complete decision

ALJ: Lemke

Issues:  Compensatory Education; Private School Reimbursement; Statute of Limitations

BACKGROUND: Parents of a 7 year old child with Autism requested a due process hearing claiming the district should pay for the student’s home instruction from a private one-to-one autism teacher and compensatory education dating back to when the child initially began receiving special education services from the district.

CONCLUSIONS AND ORDERS: (For the District) The ALJ determined the parents were barred for claiming compensatory education for services provided under past IEPs because the parents had agreed to those IEPs, failed to raise any objections to those IEPs and later agreed to a subsequent IEP.  The School District offered FAPE when it invited the parents to re-enroll under the current IEP and offered to hold a new IEP meeting.  The parents failed to re-enroll their child and placed him in a private at-home setting when FAPE had been offered.

2002-SE-139 Cheney SD  Click here for the complete decision

ALJ: O’Brien Persons

Issues: Accommodations; Behavior; Child Find; Eligibility; Related Services; Transportation

BACKGROUND: Parents of a student in 8^th grade requested a due process hearing claiming the student was eligible for special education and required compensatory education for the district’s failure to identify the student.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded that the student’s impairments qualified under the category of emotional/behavioral disorder and that his disability was adversely affecting his educational performance.  However, the student did not require specially designed instruction.  The student was adequately served under his 504 plan providing for independent transportation to school, reduced classes, an aide and physical searches before arrival. 

2002-SE-140 Seattle SD  Click here for the complete decision

ALJ: Woode

Issues: Behavior; Compensatory Education; Discipline; Residential Placement

BACKGROUND: Parents of a student determined eligible for special education services under the category of emotional/behavioral disorder requested a due process hearing contesting the district’s provision of services during his 5^th-7^th grade years.  The student had a long history of behavior problems that the Parents claimed the district failed to appropriately address.  The student was expelled by the district and the Parents placed him in a private residential setting after the District offered a program the Parents rejected.

CONCLUSIONS AND ORDERS: (For the Parent) Taking each school year separately the ALJ determined that the School District failed to provide FAPE in the 5^th grade year when it did not follow procedures to amend the student’s IEP to correct an error entered in the number of special education minutes.  In the 6^th grade year the District made a number of errors including; failing to amend the IEP after services that had stopped, resumed; failing to consistently implement the IEP because the special education teachers stopped going to the student’s classes; and failure to monitor the student’s progress.  The ALJ further found that the 25 disciplinary referrals resulting in suspensions, in-house detentions and removal of services consisted of a change in placement; the School District failed to conduct a Manifestation Determination; failed to make a FBA and BIP; and failed to properly indicate these behavioral problems in the student’s IEP.  In the 7^th grade year, the ALJ concluded that the School District failed to appropriately address the child’s behavior by doing an FBA or BIP; failed to provide services after expelling the student; failed to hold a timely manifestation hearing immediately; and failed to convene the IEP team to do an FBA or BIP after the expulsion.  After expulsion, by trying to hold the reevaluation meeting, manifestation determination and IEP meeting at the same time the School District failed to allow the parent an opportunity to participate because it rushed through the meeting and did not give the parent the proper notices, time to review the reports or IEP, and made the placement decision prior to the meeting.  The ALJ awarded compensatory education at the private residential placement continuing until the district completed a reevaluation and IEP with a transition plan.

2002-SE-144 Name of District Withheld  Click here for the complete decision

ALJ: Shave

Issues:  Behavior; Compensatory Education; IEP Appropriateness; Parent Participation; Reevaluations; Transportation

BACKGROUND:   Parents of 12 year old student in 7^th grade alleged violations of the IDEA involving failure to provide procedural safeguards, transportation, conduct an FBA and other issues.

CONCLUSIONS AND ORDERS:  (Split for the Parents and the District) The ALJ determined that even if the School District had failed to provide Parents with procedural safeguards, the Parents had not demonstrated any harm.  The ALJ found a violation of FAPE in the School District’s failure to complete an FBA after identifying behavior issues.  The assessment that the District did complete was not comprehensive.  Though the Parents refusal to return the child to school mitigated the School District’s failure in completing the FBA, the fact that the Parents were difficult to deal with did not.  The ALJ ordered completion of the FBA and compensatory education.  The ALJ did not find any other violations.

2002-SE-146 North Kitsap SD  Click here for the complete decision

ALJ: Geary

Issues: Behavior; Compensatory Education; IEP Content; Placement; Private School Reimbursement

BACKGROUND:  Parents of a 9 year old child qualifying for special education services under the category of emotionally/behaviorally disabled requested a due process hearing alleging that the School District failed to provide the child with FAPE over several years by failing to properly implement IEP procedures and failing to provide an appropriate placement.

CONCLUSIONS AND ORDERS:  (For the Parents) The district denied a FAPE in failing to have a representative from the child’s new placement attend an IEP meeting prior to the child’s transition to that placement.  The placement was inappropriate even though the student had progressed on his behavioral goals and objectives within the classroom because this progress came at the cost of behavioral deterioration at home.  Considering the next school year, the ALJ concluded that the School District had failed to timely convene an IEP meeting and the School District’s oral offer of 2 different placements placed an undue burden on the Parents to decide which placement was appropriate.  The ALJ ordered a year of compensatory education at the parent’s requested private placement.

2001 Due Process Decisions

2001-SE-003 & 2001-SE-130 Federal Way SD (Consolidated)     Click here for the complete decision

ALJ: Woode

Issues: IEE; IEP Implementation; Initial Evaluation; Native Language

BACKGROUND: The district initially filed a due process request to show that its evaluation was appropriate in response to the parent’s request for an IEE.  The parents then filed a request alleging that the district did not appropriately implement the prior district’s IEP, failed to properly reevaluate the student and failed to translate all documents in the school’s possession for one of the parents. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ found that the district appropriately implemented the prior district’s IEP. The ALJ also found that the reevaluation properly included all of the required group members the student was evaluated in all areas of suspected disability.  The district had appropriately translated documents for the parent to enable participation and was not required to translate all document s in the district’s possession.  The request for an IEE was denied.

2001-SE-008 Issaquah SD    Click here for the complete decision

ALJ: Geary

Issues: Compensatory Education; Reevaluation; Residential Placement

BACKGROUND: Parents filed a hearing request challenging the district’s proposed residential placement for the student, and requested its own placement.  The parents and district agreed that the current day treatment was not appropriate but disagreed on the appropriate placement.  The parents also amended their request to include a request for compensatory education.

CONCLUSIONS AND ORDERS: (For the Parents) The ALJ reviewed the reevaluation conducted in 1998 which was the basis for the subsequent years’ IEPs.  The ALJ found the district failed to evaluate in all areas of suspected disability or have all the appropriate members at the meeting.  The ALJ also found the reevaluation process conducted in 2000 to be deficient.  When a new IEP was drafted for the purpose of proposing an appropriate placement, changes to the IEP were made outside of the meeting by one person, without input from other team members, denying the parents meaningful participation. The ALJ found that because of the procedural and substantive violations, the student should be placed in a residential facility.

2001-SE-015 Shoreline SD    Click here for the complete decision

ALJ: Geary

Issues: Child Find; Private Placement; Statute of Limitations

BACKGROUND:  Parents of a student diagnosed with ADD requested a due process hearing claiming the district failed to implement its child find obligations, evaluation and IEP procedures and should be responsible for reimbursement of the parent’s expense in placing the child in a private setting.

CONCLUSIONS AND ORDERS: (Split for the Parents and the District) Applying Washington State law the ALJ determined the statute of limitations for IDEA violations was three years and did not begin to run until the Parents received notice of procedural safeguards.  The district did not meet its child find obligations, after learning he was diagnosed ADD, in failing to refer the student because he was performing at average.  The initial evaluation and IEP completed by the district were sufficient.  The district was offering FAPE at the time the parents unilaterally placed the student in a private setting and, therefore, the parents were not entitled to reimbursement, for the private placement.

2001-SE-021 Shoreline SD    Click here for the complete decision

ALJ: Radcliffe

Issues: Compensatory Education; Initial Evaluation

BACKGROUND: The district filed a due process request to override the parent’s denial of consent for a specific evaluator.  The parents objected to the evaluator because of past experiences with the particular evaluator.  The district contended that it had the right to select its own evaluator for the purposes of evaluation.

CONCLUSIONS AND ORDERS: (For the District) The ALJ considered testimony that would raise the question of the appropriateness of the particular evaluator, given the parent’s concerns.  Reviewing the statutes, the ALJ determined that the school district was entitled to make determinations of who would be members of its evaluation group.

2001-SE-025 Federal Way SD    Click here for the complete decision

ALJ: Geary

Issues:  Child Find; Residential Placement; Residency

BACKGROUND:  Parents requested a due process hearing after withdrawing the student from school and placing him in a residential setting before the district had an opportunity to evaluate the student for learning disabilities.  Parents claimed that the school district failed in its child find responsibilities.

CONCLUSIONS AND ORDERS: (For the District) Analyzing current case law, the ALJ concluded that the district’s procedural violations in administering its child find obligations were not so egregious that it could responsible for reimbursement for the time before the parents expressed their disagreement.  Noting the parents did not express disagreement until the child was no longer a resident of the district, the district was not responsible for reimbursement.  The district was responsive to the parents throughout the referral process and delay in evaluation was partly the failure of the parents.

2001-SE-026 Sumner SD    Click here for the complete decision

ALJ: Geary

Issues: Behavior; Placement; Residential Placement; Stay Put

BACKGROUND:  Parents of a student with behavior issues requested a hearing to contest the school district’s placement, contending that the student required a self contained classroom and contesting the state hospital’s discharge.

CONCLUSIONS AND ORDERS:  (For the Parents) Initially the ALJ determined that when the student was in residential placement, the school district was not responsible for his education as he was not enrolled in the district when he entered residential care and the residential placement was not in the district.  The school district failed to provide appropriate placement after the student returned to the district as the IEP indicated the placement should be in a self-contained classroom and the district placed the student in a modified resource room.  The ALJ ordered an IEE to determine the lost educational benefit so that the IEP team could determine the appropriate compensatory education.  The ALJ found that the state hospital was subject to IDEA regulations.  In discharging the student the state hospital violated stay put, however, that violation did not deny FAPE.

2001-SE-033 Name of District Withheld    Click here for the complete decision

ALJ: Kingsley

Issues: ESY; Parent Participation

BACKGROUND: The parent requested a hearing on the district’s proposal of ESY services, contesting the adequacy of the length and duration.

CONCLUSIONS AND ORDERS: (For the District) The ALJ found no procedural defects in the district’s meeting composition and parent participation which would result in a finding against the district.  The ALJ found the district’s proposal appropriate and denied the parent’s request for additional services, but did order the IEP team to reconvene to address self-help skills.

2001-SE-038  West Valley SD    Click here for the complete decision

ALJ: Sullivan

Issues: IEE; Initial Evaluation

BACKGROUND:  The district filed a request for hearing to show that its evaluation was appropriate.  The parents requested an IEE.

CONCLUSIONS AND ORDERS: (For the District) While there were inconsistencies in some of the evaluation findings and the IEP goals, the areas of these inconsistencies were not of concern to the parent at the hearing.  The parent was unable to articulate what type of IEE might be appropriate.  Finding that the district complied with the procedural requirements for evaluations, the ALJ concluded the district’s evaluation was appropriate.

2001-SE-041 Puyallup SD    Click here for the complete decision

ALJ: Radcliffe

Issues: Placement

BACKGROUND: The parent filed a due process request challenging a school district’s failure to offer a continued program at its district.  The district had provided services to the student for many years under an inter-district agreement with the student’s resident district.  The resident district contended that it could provide an appropriate program. The parent felt that the student’s proposed transfer from the current district to the resident district was retaliation for past complaints.

CONCLUSIONS AND ORDERS: (For the District). The ALJ joined both the contracting district and the resident district as parties.  After testimony, the ALJ determined that the resident district proposed an appropriate program, and the contracting district was dismissed from the hearing.

2001-SE-042 Northshore SD       Click here for the complete decision

ALJ: Radcliffe

Issues: Eligibility; Reevaluation

BACKGROUND:  The Parents of a six year old student who had been receiving special education services since age two under the category of developmentally delayed requested a hearing contesting the reevaluation the District completed in the 2000-2001 school year and the District subsequent determination that the student was no longer eligible for special education services.  The parent’s claimed the district cognitive testing was inaccurate and that the student should be eligible under the category of SLD.  The parents also claim that it the student’s ADHD should make the student eligible under the category of health impaired.

CONCLUSIONS AND ORDERS: The ALJ concluded that the District’s reevaluation had evaluated the student in all suspected areas of disability and that the cognitive testing aligned with the requirements set out in Washington State regulations.

2001-SE-045 Federal Way SD    Click here for the complete decision

ALJ: Lemke

Issues: IEE 

BACKGROUND: Parents requested an IEE and the district filed a request for a hearing.

CONCLUSIONS AND ORDERS: (For the District) On summary judgment the ALJ concluded that the existing evaluation was appropriate and the request for IEE was, therefore, denied.

2001-SE-048 North Kitsap SD    Click here for the complete decision

ALJ: Kingsley

Issues:  Consent; IEE; Reevaluation

BACKGROUND: The district requested a due process hearing to show the adequacy of its evaluation, permission to conduct additional testing, and denial of a parent’s request for an IEE.

CONCLUSIONS AND ORDERS: (For the District) The ALJ determined that the district met the burden of showing the appropriateness of its evaluation.  The parent’s concern over the district’s choice of eligibility category did not warrant a reevaluation.  The ALJ granted the district’s request to conduct additional testing.

2001-SE-056 Clover Park SD    Click here for the complete decision

ALJ: Radcliffe

Issues: Placement

BACKGROUND:  The parents challenged the district’s proposal to move the student from one elementary school to another. 

CONCLUSIONS AND ORDERS:  (For the District) The issue before the ALJ was whether a move from one setting to another was a change of location or a change of placement.  Finding that there was no material or substantial change in the services provided to the student, the ALJ did not find a change in placement.

2001-SE-061 Clover Park SD    Click here for the complete decision

ALJ: Geary

Issues:  Consent; Initial Evaluation

BACKGROUND The district filed a hearing to show that its proposed IEP was appropriate and to override the parent’s failure to consent to special education services.

CONCLUSIONS AND ORDERS: (For the District) The ALJ reviewed the student’s history and the school’s attempted interventions and evaluations and concluded that the student was appropriately identified for special education.

2001-SE-064 Shoreline SD    Click here for the complete decision

ALJ Woode

Issues: Behavior; IEP Content; IEP Procedures; Placement; Reevaluation

BACKGROUND: Parents of a sixth grade student with behavior issues who had been diagnosed with ADHD and ODD requested a hearing contesting the student’s most recent reevaluation because they alleged it failed to consider claims of discrimination and harassment the Parents made against school staff, improperly discounted the student’s diagnosis of ADHD and ODD, and wrongfully determined the student had a learning disability that primarily impacted the student’s learning.  The Parent’s also challenged the IEP the district development and implemented  based upon the reevaluation.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ upheld the District’s reevaluation and IEP, but indicated that the IEP should be amended to reflect special education services delivered in the general education setting.

2001-SE-081 Issaquah SD    Click here for the complete decision

ALJ: Shave

Issues: Eligibility

BACKGROUND:  Parents filed a due process hearing alleging procedural violations in the evaluation of the student for special education services.  Prior to the hearing, the parents moved to limit the ALJ’s determination to only whether the district had made procedural violations and not substantive violations, arguing that if the ALJ found a procedural violation she should remand proceedings for the district to complete a new evaluation before proceeding to the questions of substantive violations.

CONCLUSIONS AND ORDERS: (For the District) The ALJ declined to limit her review to procedural violations only.  Finding no substantive violations and that the student did not require specially designed instruction, the ALJ granted the district’s summary judgment motion.  Upheld on reconsideration.

2001-SE-084 & 2001-SE-085 Bellevue SD (Consolidated)

Click here for the complete decision

ALJ: Conklin

Issues: ESY; IEP Content

BACKGROUND: Parents filed a hearing request contesting the manner of the provision of extended school year services.  Services during the spring and winter breaks were provided on a reimbursement model. 

CONCLUSIONS AND ORDERS:  (For the District) In pre-hearing, both parties agreed to the appropriateness of the IEPs.  Given this agreement, and evidence of both students progress the ALJ found that the district’s provision of ESY which included a combination of district services and reimbursement during winter and spring breaks provided the students with a free appropriate public education.

2001-SE-090 Federal Way SD    Click here for the complete decision

ALJ: Geary

Issues:   Behavior; Compensatory Education; LRE

BACKGROUND:  The parent filed a request for hearing alleging that placement in a self contained classroom was not the least restrictive environment for the student.  Additionally the parent alleged that evaluation information was not properly considered, the parent was not allowed meaningful participation, and that the district did not properly make adjustments to the program after the student’s behavior deteriorated. 

CONCLUSIONS AND ORDERS: (Split for Parent and District) The ALJ considered the student’s initial placement in the self-contained classroom, and his continued placement after behavior deteriorated.  The ALJ found that the district complied with all procedures and properly considered evaluation data in its initial placement decision.  However, the ALJ found that once the student’s behavior deteriorated and the program was no longer effective, the district should have reevaluated the student.  The ALJ ordered a reevaluation by the district, and ordered an independent evaluation as requested by the parent to include consideration of compensatory education.

2001-SE-091 Name of District Withheld    Click here for the complete decision

ALJ: Lemke

Issues: Behavior; Consent; Initial Evaluation

BACKGROUND: The school district requested that the ALJ override a parent’s failure to consent.  The student exhibited behavioral issues that the district felt, warranted an evaluation of the student.  The parent initially provided consent, but did not consent to a release of records or further evaluations. 

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found the evidence supported further evaluation and overrode the parent’s denial of consent.

2001-SE-094 Eatonville SD    Click here for the complete decision

ALJ: Radcliffe

Issues: Aversive Intervention; Behavior; LRE; Private School Reimbursement

BACKGROUND: Parents of a student with repeated and escalating behavior issues requested a hearing alleging violations of placement requirements.

CONCLUSIONS AND ORDERS: (For the Parents) The ALJ found violations in the failure to include the parents in a placement decision; failure to place the student in the LRE, instead home schooling the student with a one-on-one aid when his evaluation called for a behaviorally focused, structured, academic approach; and failure to develop an FBA after a change in placement due to behavior related issues.  The ALJ also concluded that the district failed to provide a continuum of alternate placement options in only looking at home schooling as a placement; and that subsequent placement in a high stimulus, low structure, last chance setting at the end of the continuum of EBD day programs, composed mostly of older students was also inappropriate and not the LRE.  Finally, the ALJ found a teacher’s action of taking the student to the ground to avoid his harming others did not violate aversive intervention rules; and, continued private placement at a non-NPA school was appropriate, however, the school must satisfy health and safety requirements. 

2001-SE-098 Yakima SD       Click here for the complete decision

ALJ Radcliffe

Issues: Related Services; Transportation

BACKGROUND:  Parents of a student residing in Zillah school district but attending Yakima school district through the district’s choice policy due to parent’s enrollment after dissatisfaction with the services offered by Zillah, filed a due process hearing seeking transportation from Zillah to Yakima.  The Parent initially filed the hearing against Zillah school district.  The ALJ later joined the Yakima School District and dismissed Zillah.

CONCLUSIONS AND ORDERS:  (For the District) Concluding that WAC 392-172-235 transfers a student’s FAPE obligation to the accepting non-resident district the ALJ dismissed Zillah as a party.  The ALJ further concluded that the Yakima School District erred in not having the student’s IEP team consider the student’s transportation needs and the District’s procedural error was a denial of FAPE.  However, the student did not require transportation as a related service. The ALJ refused the parent’s request for reimbursement for transportation costs.

2001-SE-105 Washougal SD    Click here for the complete decision

ALJ: Radcliffe

Issues: Placement; Private School Reimbursement

BACKGROUND: Parents of a student enrolled in a Montessori school that was not approved by OSPI for NPA status requested a due process hearing after notified by the school district that the student’s placement would be changed due to the lack of NPA status. 

CONCLUSIONS AND ORDERS:  (For the Parents) The ALJ concluded that while the district was correct that it would be in violation of administrative regulations in continuing the placement at the Montessori school, it failed to follow the appropriate regulations in implementing a change of placement and denied the student a FAPE.  The ALJ ordered compensatory education in the form of reimbursement.

2001-SE-106 Clover Park SD    Click here for the complete decision

ALJ: Shave

Issues: Discipline

BACKGROUND: The student, diagnosed with ADHD, was removed in excess of 10 school days for taking marijuana at school and the parent requested a hearing to contest the manifestation determination.

CONCLUSIONS AND ORDERS: (For the District) The ALJ upheld the manifestation determination team’s decision.

2001-SE-107 Federal Way    Click here for the complete decision

ALJ: Geary

Issues: Eligibility; FAPE; Related Services

BACKGROUND: Parents requested a due process hearing to contest the school district’s pull-out of one hour per week from regular classroom to provide SLP services claiming that they could provide the services at home with a private SLP provider.

CONCLUSIONS AND ORDERS: (For the District) The ALJ concluded that the services provided by the district provided a FAPE.  The parents could unilaterally remove the student but the ALJ declined to rule on whether the district had to stop providing SLP services.  If the district agreed to discontinue services it was required to reinstate the services at the parent’s request.

2000 Due Process Decisions

2000-SE-010 Highline SD    Click here for the complete decision

ALJ: Radcliffe

Issues: IEP Content; Related Services

BACKGROUND:  Parents alleged that the district’s IEP failed to state the amount of classified staff services to be provided to the student and asked that the IEP be modified to include specific information regarding amount, location and duration of services.

CONCLUSIONS AND ORDERS:  (For the Parent) The ALJ found that the IEP was deficient because it failed to identify the student’s receipt of a related service and did not include the amount of services and amount of time.  The district was ordered to correct these deficiencies through an IEP team meeting.  The ALJ also determined that the procedural violation did not amount to a denial of FAPE. 

2000-SE-017 Kent SD    Click here for the complete decision

ALJ: Kinsley

Issues: Consent; Initiative Evaluation

BACKGROUND:  School district requested that the ALJ allow the district to evaluate the student and to determine the student’s appropriate placement.  After parents disagreed with portions of their child’s education, they removed the student from school. 

CONCLUSIONS AND ORDERS:  (For the District) Parents were ordered to make child available for observation so that the school could evaluate the student.  The members of the IEP team should be part of the observation group, in order to develop an IEP. 

2000-SE-024 Seattle SD    Click here for the complete decision

ALJ: Conklin

Issues:  Behavior; Compensatory Education; IEP Content; Residential Placement

BACKGROUND:  Parent alleged that the school district failed to provide the student with a FAPE, and requested placement in a residential setting.  The parent also requested compensatory education.  Both parent and school district agreed that given the student’s current medical and behavior issues current placement was not appropriate, but disagreed on the placement. 

CONCLUSIONS AND ORDERS:  (For the District) ALJ found that the student had made educational progress until he did not return to school after a hospitalization.  There was insufficient evidence to support the conclusion that a residential placement was the only appropriate placement.  District failed to provide a FAPE when it did not convene an IEP meeting to determine an appropriate program after the student did not return to school.  The district was ordered to convene IEP team to determine appropriate placement within the school setting and to provide compensatory education.

2000-SE-032 Pasco       Click here for the complete decision

ALJ: O’Brien Persons

Issues:   Consent; Parent Participation

BACKGROUND: The District requested a hearing concerning a father’s refusal to consent to initial special education services even though the mother did provide consent.  The father also contended that the District must hold IEP meetings in a “neutral location” and provide the Father with equal information and opportunity for discourse as the Mother.

CONCLUSIONS AND ORDERS: (For the District) The District was not required to obtain the father’s consent to services in addition to the Mother’s consent nor was the District required to obtain the father’s consent to IEPs as long as the father was provided a reasonable opportunity to participate in the IEP process.  This finding was based on a prior summary judgment order 1999-SE-072 regarding the Parents’ divorce decree.  The District was not required to provide equal information or opportunity for discourse to both Mother and Father on issues that did not constitute a significant change in placement.  The District was not required to conduct IEP meetings in a neutral location.

2000-SE-037 Name of District withheld    Click here for the complete decision

ALJ: Geary

Issues: Compensatory Education; IEP Implementation; Progress Reporting

BACKGROUND:  Parent filed a due process hearing alleging that the district did not properly implement the student’s IEP.  Primary concerns were the lack of Applied Behavioral Analysis drills and the lack of data collected to document progress.  The school contended that it substantially complied with the IEP and if it did not, it was due to initial lack of training and because some provisions in the IEP were not appropriate. 

CONCLUSIONS AND ORDERS: (For the Parent) Substantial portions of the IEP were not implemented.  Even after the district received training it was not clear everyone understood the importance or need for data collection.  If the district did not believe that the IEP as written was appropriate, it needed to take the proper steps to revise the IEP.  The district was ordered to implement the IEP or take proper steps to revise it; obtain training or provide trained staff to implement the IEP; monitor the IEP and provide monthly progress reports; provide compensatory education. 

2000-SE-040 & 2000-SE-042 (Consolidated) Seattle SD    Click here for the complete decision

ALJ: Shave

Issues:  Behavior;  Compensatory Education; Discipline; ESY; Prior Written Notice; Residential Placement

BACKGROUND:  Parent filed a due process hearing alleging that school had not provided a special education program for student.  The student moved to and enrolled in the district in November 1999.  The student needed an extremely structured, self contained, life skills program.  He was also violent. The district had provided limited services after enrollment and no services after the hearing was filed.  The district responded that the student could not be educated in the school environment and residential placement was appropriate for this student. 

The parties disagreed about scope or duration of district’s denial of FAPE. student was entitled to ESY, but district and parent had not agreed to form or scope of ESY.  Parties disagreed about the appropriate placement. 

CONCLUSIONS AND ORDERS: (For the Parent) ALJ found the district violated implementing regulations by terminating the student’s educational services and placement in March 2000, without prior written notice to parent.  District did not comply with requirements to hold a manifestation determination before termination of services.  Districts are required to submit to parents a “formal”, “written” and “specific offer” regarding educational placement.  The Ninth Circuit has held this requirement “should be enforced rigorously.”  In suggesting a residential placement, district did not propose any specific placement for parent to evaluate.  Multiple violations, including adequate written notice, failure to conduct manifestation determination, failure to develop a functional behavioral assessment, failure to propose an IAES and failure to propose a formal written and specific placement resulted in the loss of educational opportunity and infringed on the parent’s opportunity to participate in the IEP formulation process, resulting in a denial of FAPE.  The District also failed to provide educational services or support services for student.  The District did not show that its proposed placement in a residential setting met LRE provisions for the student.  Where student had made progress at prior school in self-contained setting, and this was current setting in last IEP, there was insufficient information to determine that a residential setting was appropriate. The District was ordered to provide services in a self-contained setting with substantial safety precautions, evaluate the student as soon as possible in order to revise the IEP and placement options. The District was ordered to provide ESY to the student and ordered to provide compensatory education beyond age 21. 

2000-SE-044 Clover Park SD    Click here for the complete decision

ALJ: Kingsley

Issues: IEP Content; Parent Participation

BACKGROUND:  The District filed a due process to show its program was appropriate after parent removed student from school.  student had unsuccessful prior placements within the general education environment.  District invited the Parent to an IEP meeting to discuss educational goals and placement options.  The Parent did not attend meeting and told the district that her schedule did not permit attendance for the balance of the month. 

CONCLUSIONS AND ORDERS:  (For the District) ALJ found that the school’s attempts to involve parent in IEP meeting were reasonable.  ALJ also found that school’s proposal to develop program within a self-contained setting was appropriate and that education at home was not appropriate.  While IEP as proposed was incomplete, new IEP meetings were ordered to address specific school or program for student’s placement, to identify specific goals and objectives, and to review the behavior plan.

2000-SE-047 Shoreline SD    Click here for the complete decision

ALJ: Shave

Issues:  FAPE; Jurisdiction

BACKGROUND:  Parent alleged various failures of the school district in delivery of educational services.  There were several previous due process requests.  All were dismissed with prejudice after the parties reached agreement.  One month later parent filed a new due process request.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ would not review matters previously raised in due process hearings that had been dismissed with prejudice but addressed issues raised after March 2000.  Child missed two recesses for behavior.  Disciplinary actions taken by the school did not result in denial of FAPE.  School did not follow behavior plan for one of the disciplinary actions taken.  However, the failure to follow the plan was not a procedural violation that resulted in a denial of FAPE.

2000-SE-055 Chehalis SD    Click here for the complete decision

ALJ: Foster

Issues: IEE

BACKGROUND:  District filed a request to show that its current evaluation was appropriate after parents requested an IEE.  The district had conducted evaluations of the student and determined that the student no longer was eligible for special education. 

CONCLUSIONS AND ORDERS:  (For the Parents) The ALJ found that the district did not demonstrate that the evaluation conducted by the district was sufficient to determine that the student no longer qualified for services.  The ALJ also found that the district did not include all appropriate personnel or parents in making a determination that the student no longer qualified for special education services.  Parents were entitled to an IEE at public expense.

2000-SE-056  Ellensburg SD    Click here for the complete decision

ALJ: Kingsley   

Issues: Eligibility; IEE; IEP Implementation

BACKGROUND:  Parents contested the need for special education services. The student had attended several districts in state and out of state.  They alleged that the student did not need special education and that special education services would be detrimental to the student.  They also requested reimbursement for private evaluations.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found that the school’s implementation of the prior district’s IEP was appropriate.  The parents did not present evidence to show that the supplemental special education services provided in a resource room were detrimental to the student.  The ALJ also found that the private evaluations did not support a conclusion that the student was ineligible for special education.  While finding the program as proposed appropriate, the ALJ did order the district to reevaluate the student for possible health impairment issues raised at the hearing.  The ALJ denied the parent’s request for reimbursement for private evaluations.

2000-SE-070  Seattle SD   Click here for the complete decision

ALJ: Conklin

Issues:  Parent Participation; Private School Reimbursement; Related Services

BACKGROUND:  The District requested a hearing to show that its proposal to change the placement of a student from a private school to public school was appropriate.  The student first attended the district’s school for a number of years.  The parents later requested and were awarded a placement at private school.  After 2 years, the district conducted additional evaluations and proposed a new placement back at the public school, which the parents opposed.  The parents raised additional issues in pre-hearing motions and at the hearing including: failure to include necessary IEP team members; failure to write an evaluation report; and failure to consider continued placement at the private school.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ found that the procedural issues raised did not result in a loss of FAPE. The district was not required to include the parent’s expert as a member of its team, when it included an expert that had similar expertise and had knowledge of the child.  While the district did not include a general education teacher from the district, the attorney and parents both attended IEP team meetings and did not raise the issue prior to hearing.  In comparing programs, the ALJ determined that the public school placement proposal appeared to allow for educational benefit.  The ALJ also noted that of the students placed at the private school, the private school had never recommended transition back to the public school setting, unless the school had behavioral issues with the student.  The ALJ found the district’s offer appropriate and denied reimbursement for the parent’s private evaluation costs.  The district was ordered to reconvene the meeting to consider whether adaptive PE was appropriate, and was ordered to continue the current private OT/PT services. 

2000-SE-071 Bainbridge Island SD    Click here for the complete decision

ALJ: Radcliffe

Issues: IEE; Initial Evaluation; Private School Reimbursement

BACKGROUND:  Parent filed a due process hearing alleging the district failed to offer and appropriate program and failed to reimburse the student’s private school.  Parents alleged the evaluation group did not include anyone with specific expertise of the student’s disabilities, that the district did not evaluate the student in all areas of suspected disability, that the reports did not contain sufficient information to address the students adverse educational impact; that the district did not adequately monitor or measure progress and did not reevaluate the student when the conditions warranted a reevaluation. 

CONCLUSIONS AND ORDERS: (For the Parent) The ALJ agreed that the procedural violations alleged in fact occurred and the effect of the violations resulted in a denial of FAPE.  While the student made some limited progress prior to placement in a private school, the ALJ found that the progress was not commensurate with the student’s ability and that the stated progress was not always the actual progress, rather an attempt to enhance the student’s self esteem.  The District was ordered to reimburse parents for their private evaluations and to reimburse parents for its cost of placement in a private school. 

2000-SE-072 Bainbridge Island SD    Click here for the complete decision

ALJ: Radcliffe

Issues:  Assistive Technology; FAPE; IEP Content; Private School Reimbursement

BACKGROUND:  Parent filed a due process hearing alleging the district failed to offer an appropriate program and failed to reimburse the student’s private placement.  Parents alleged the evaluation group did not include anyone with specific expertise of the student’s disabilities, that the district failed to conduct appropriate assistive technology evaluations or consider the recommendation for assistive technology, that the IEP was not properly formulated and the team did not include the appropriate members; and that the district did not reevaluate the student when the conditions warranted a reevaluation. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ reviewed the IEPs for the student from school years 1996 to present.  While the ALJ found some procedural errors on the part of the district, including failure to comply with the plan for supervision of the paraprofessional (under old regulations) and failure to have a district representative present at one of the IEP meetings, these errors were not sufficient to find a failure to provide FAPE to the student.  The ALJ found that the progress made by the student was appropriate.  The parents request for private school reimbursement and private evaluation reimbursement was denied.

2000-SE-077  Eastmont SD    Click here for the complete decision

ALJ: Radcliffe

Issues: FAPE; Graduation; IEE;  IEP Implementation;  IEP Content; Prior Written Notice; Transition;

BACKGROUND:  The parent alleged that the school district failed to comply with regulations implementing IDEA in the development and implementation of the student’s senior year IEP, including transition, the triennial reevaluation, and the cessation of special education eligibility due to graduation.  The parent requested that the school pay for an IEE as a remedy for the alleged violations.  Originally, the district filed a request for due process contesting the parent’s request for an IEE.  This case was dismissed because the student graduated with a regular diploma.  The adult student initiated this hearing after the student was attending community college, and the student did not contest that the credits were appropriately issued.   

CONCLUSIONS AND ORDERS: (For the District) While the ALJ found that the district committed errors in the last year’s IEP, the May 2000 reevaluation, and the prior written notice of intent to graduate, the judge did not find that these errors deprived the student of a FAPE and denied the parent’s request for an IEE.  The ALJ noted that the student had resisted the special education classification in the last years of education, and that the student wanted to continue as a community college student. 

2000-SE-079 Highline SD    Click here for the complete decision

ALJ: Conklin

Issues: Jurisdiction; Placement

BACKGROUND:  The parents contested the district’s determination to advance the student to the seventh grade and if promoted, the district’s proposed placement.  The parent’s maintained that the student was not socially or emotionally prepared to transition to middle school. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ found no authority under IDEA to review a district determination to advance or retain a student if there were no substantive or procedural violations of IDEA.  Looking at the proposed placement the ALJ found that although the student would not attend the neighborhood school, consideration of the two programs supported the district’s proposed placement. 

2000-SE-099 Lake Washington SD    Click here for the complete decision

ALJ: Shave

Issues: Residency; Residential Placement

BACKGROUND: The district requested an order finding that its proposed placement in the school district was appropriate.  The parent filed a due process request 4 years earlier requesting placement in a residential facility.  The ALJ issued a decision denying the request.  This decision was reversed by a district court, and placement at a residential facility ordered.  The district court’s decision was eventually reversed.  In 2000 the parent’s attorney gave notice to the district that the parent was looking for a new residential placement after the 1999-2000 school year and the extended summer program.  The district began communicating with the parent’s attorney regarding evaluations conducted by its own experts.  After evaluations, the district proposed placement at a district high school. 

CONCLUSIONS AND ORDERS: (For the District) The hearing included testimony from staff and experts from the prior residential program, the proposed residential program, the summer residential program, and the school district. While the district contended that it had no responsibility to evaluate and offer a program to the student, given the length of time the student resided out of state, the ALJ found that the student was the district’s responsibility, based on the federal court placement out of state and the protracted federal court proceedings.  The ALJ found that the program proposed by the district was appropriate, and further found that the parent’s delay in participation in evaluation processes contributed to any delays by the district.  The ALJ considered the parent’s request for reimbursement for the summer program out of state but found that the parent failed to timely notify the district of a change in placement for the summer program and denied the request.  

2000-SE-102 Bainbridge SD    Click here for the complete decision

ALJ: Shave

Issues:   LRE; Residential Placement

BACKGROUND:  The Parents of a student with Asperger’s Syndrome who was receiving services in a private residential school for student’s with severe disabilities requested a hearing to contest the District proposed IEP and placement at a program within the district claiming that the student should remain in the residential setting.

CONCLUSIONS AND ORDERS:  (For the District) The ALJ concluded that the District’s proposed IEP and placement was appropriate.  The private residential setting requested by the parent did not reflect the least restrictive environment.  The ALJ order that steps be taken to begin transitioning the student to the new setting.

2000-SE-104  Clover Park SD    Click here for the complete decision

ALJ: Kingsley

Issues: Placement; Transportation

BACKGROUND: The parent’s disagreed with the school district’s proposal to change the student’s placement from elementary to a middle school.  The parents requested that the student remain at either the elementary school program or proposed a different middle school, nearer to the student’s residence. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ considered both proposed placements at middle schools and found that the districts proposal was appropriate given its goals of increased socialization, presence of a full time nurse and other supports in place.  The ALJ also found that the transportation time of 30 minutes was not excessive for the student. 

2000-SE-105 Renton SD    Click here for the complete decision

ALJ: Shave

Issues:  Behavior; Initial Evaluation

BACKGROUND: The district requested that the ALJ allow the district to evaluate a student for eligibility for special education services.  The student showed increasing behavioral issues at school that ultimately led to a suspension.  The district had reason to believe that the student might be eligible for special education services and asked the parent to consent for evaluation. The parent did not provide consent.

CONCLUSIONS AND ORDERS: (For the District) The ALJ found that despite the student’s high academic potential, the student’s behavior was impeding academic progress.  The ALJ also found that the school had tried other interventions without success and ordered the evaluation. 

2000-SE-112 East Valley SD   Click here for the complete decision

ALJ: O’Brien Persons

Issues: Accommodations; Child Find; Initial Evaluation

BACKGROUND: The parents contended that the district failed to identify the student as eligible for special education.  After contesting an expulsion, the parents requested a special education evaluation.  The district conducted the evaluation, but determined that the student did not qualify for special education services, and was more appropriately served with a 504 plan. 

CONCLUSIONS AND ORDERS: (For the District) The ALJ determined that the district appropriately conducted the evaluation and appropriately determined that the student did not need specially designed instruction.

2000-SE-124 Name of District Withheld    Click here for the complete decision

ALJ: Ebbeson

Issues:  Jurisdiction; Placement

BACKGROUND: Adult student requested due process hearing contesting the district’s decision to exclude him from his current placement due to his conviction a sex offender and RCW 13.40.215(5) that proscribes a sex offender attendance at a school attended by the victim.

CONCLUSIONS AND ORDERS: (For the District)  Relying upon state statute and finding the ALJ had no authority to overturn that statute the ALJ determined that the placement offered by the district, excluding him the student from his previous school was proper.

2000-SE-127 Seattle SD    Click here for the complete decision

ALJ: Woode

Issues: EIP Content; Initial Evaluation; Performance Levels; Placement; Private School Reimbursement

BACKGROUND:  The parents filed a request for hearing, alleging that the district failed to timely evaluate the student, timely offer an IEP, offer an appropriate program and that the district did not provide placement in the high school of the parent’s choice.  They requested reimbursement for private placement until an appropriate IEP was developed.  The parent made a written referral that the school district acknowledged.  Because the parent completed a portion of the paperwork rather than the private school, the district declined to evaluate the student.  It did not reconsider this refusal until four months later.

CONCLUSIONS AND ORDERS: (For the Parent) The ALJ found that the district had enough information in the initial referral to determine that the student was a candidate for evaluation.  Although the parent raised concerns about the evaluation, the ALJ found that the district appropriately conducted the evaluation.  The ALJ found, however, that the IEP team composition was inadequate at 2 meetings because no one was present who was familiar with the general education curriculum or availability of resource at the schools proposed by the district.  The ALJ also found deficiencies in the IEP, including present levels of performance, goals and objectives the duration and amount of services; and supplemental aids and supports.  Finally, the district’s contention that it could not complete the IEP until after it determined placement was flawed.  In corrected findings, the ALJ determined that without an appropriately developed IEP, the ALJ could not review the appropriateness of the district’s proposed high school placement or the parent’s proposed high school placement.  The parents were awarded reimbursement at the private placement, pending an appropriate IEP.  Requests for district payment for private school participants and payment for a private IEP consultant were denied.