Disagreeing with the CSE's placement recommendation, Evans insisted that the hearing scheduled for October 26 proceed.
As noted above, following that meeting, Mabie declined to provide the multi-sensory services to Frank. Thus, the District was not in a position to implement its IEP. On October 26, the parties met just prior to the commencement of the impartial hearing. At that meeting, the parties came to an agreement that obviated the need for a hearing. The terms of that agreement are highly disputed, but the result was that the impartial hearing was called off and Frank continued at the Kildonan School at the expense of the District. The parties asked the hearing officer to retain jurisdiction, in the event that there was a subsequent disagreement.
On Nov. 7, the District hired a substitute multi-sensory reading and writing instructor, Constance Moore, who was to tutor Frank 40 minutes each day and spend the extra 20 minutes of the hour consulting with Frank's core curriculum teachers. Moore is currently a private tutor. She has a teaching degree in elementary education, and a permanent teaching certificate for kindergarten through sixth grade. She has taught kindergarten, second grade and elementary reading, and at least one highschool boy. She is not certified in either special education or Orton-Gillingham instruction. She taught at the Kildonan school part-time for three years, and full-time for five years, where for less than a year, she was trained in Orton-Gillingham instruction by King.
King testified that Moore is not qualified "for work with an adolescent. Under supervision, in a structured supervision she works well with young children. . . . With an adolescent you have to be prepared to go into the more advanced language skills. You have to be well organized and appropriate in your relationships with an adolescent." King testified that Moore is not qualified in those areas of work required by adolescents. She further testified that Moore is not qualified or competent to instruct, train or otherwise consult with other teachers as to how to work with a specific student under the Orton-Gillingham approach.
Sometime after November 14, Evans informed Zeisler that she had spoken with Moore and concluded that she was not qualified to provide Frank with the instruction he required. In a letter, dated December 5, Zeisler informed Evans that the District would no longer be responsible for paying Frank's tuition at the Kildonan School. In response, Evans requested another meeting of the CSE, and in a letter dated January 4, 1995, she requested an impartial hearing.
The CSE did not meet until January 19. Thus, it was not until January 19 that Frank's IEP was amended to reflect the changes made after Mabie declined to accept Frank as a student and the parties came to their October agreement that obviated the need for a hearing. On January 19, Evans reiterated that she would pursue the impartial hearing. The District agreed at that time to pay Frank's tuition at the Kildonan School until the hearing officer rendered his decision.
The impartial hearing began on February 8 and, after 11 sessions, concluded on June 6. In his decision, dated July 10, the hearing officer found that the current designation of Frank's handicapping condition was "unknown," that the District was reasonable in proceeding cautiously in classifying Frank when he first arrived in the District, that a detailed plan of action for addressing Frank's needs was agreed to after the CSE meeting in June of 1994, that "there is nothing in the record to refute the fact that the school district established an appropriate IEP for [Frank] for 1994-95," that the record indicated that the District had complied with the procedural requirements for preparing Frank's IEP for the 1994-95 school year and that the IEP was reasonably calculated to provide education benefit in the least restrictive environment. He directed the District to put in place immediately a program similar to that outlined in the October 1994 IEP, but also to update it.
Evans appealed this decision to the State Review Officer. In a decision dated September 29, 1995, the State Review Officer dismissed the appeal on the grounds that the IEP proposed by the CSE was appropriate and that it was available as of January 19, 1995.
Except for a brief period following the District's decision to terminate its tuition payments on December 5, 1994, Frank attended the Kildonan School at the District's expense from October 1994 until December 1995. Evans made two unsuccessful attempts to send Frank to Rhinebeck's high school in January and February of this year, but Frank ran away. Thus, Frank has not attended any school from January through April of this year, when this Court granted Evans' motion for a preliminary injunction.
1. Legal Standards
The IDEA permits an aggrieved parent to bring an action in district court. In reviewing the decision of the state educational agency,
the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
20 U.S.C. § 1415(e)(2).
The role of the reviewing court, however, is circumscribed. Rowley, 458 U.S. at 206, cautioned that "the provision that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." The Court held that "due weight" must be given to the state administrative proceedings. See Rowley, 458 U.S. at 206. In this regard, " [a] number of other courts, including the Second Circuit, have held that the administrative findings in lawsuits brought under the [IDEA] should be accorded some degree of deference." Mavis v. Sobol, 839 F. Supp. 968, 986 (N.D.N.Y. 1993) (quoting Hiller v. Board of Educ., 743 F. Supp. 958, 968 (N.D.N.Y. 1990). See Karl v. Board of Educ., 736 F.2d 873, 876-77 (2d Cir. 1984).
In assessing the appropriateness of the educational program offered by the state, Rowley held that the proper inquiry is twofold: "First, has the State complied with the procedural requirements set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?" Rowley, 458 U.S. at 206-07. As the party challenging the findings of the administrative determination, Evans has the burden of proof. See Hiller v. Board of Educ., 743 F. Supp. 958, 967-68 (N.D.N.Y. 1990).
2. Procedural Requirements
Detailed procedural provisions lie at the heart of the IDEA. These processes are designed to guarantee that each handicapped student's education is tailored to his unique needs and abilities. The Act, and the regulations promulgated pursuant to it, contain procedures for determining whether the appropriate placement is regular or special education, for preparing an IEP, for changing the placement or the IEP, and for removing the child from regular education. 20 U.S.C. §§ 1412 & 1415; 34 C.F.R. §§ 300.300 - 300.576. "The Act's procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. Rather, 'the formality of the Act's procedures is itself a safeguard against arbitrary or erroneous decisionmaking.'" Daniel R.R. v. State Board of Educ., 874 F.2d 1036, 1041 (5th Cir. 1989) (quoting Jackson v. Franklin County School Board, 806 F.2d 623, 630 (5th Cir. 1986). Both Congress and the Supreme Court place great importance on the procedural provisions incorporated into § 1415. See Rowley, 458 U.S. at 102 ("the importance Congress attached to these procedural safeguards cannot be gainsaid.")
A violation of the Act's procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education and, thus, has violated the Act. See Daniel, 874 F.2d at 1041. Procedural flaws do not automatically require a finding of a denial of a free appropriate education, but procedural inadequacies that result in the loss of educational opportunity clearly result in the denial of a free appropriate education. See W.G. v. Board of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1991) (citing Burke County Board of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990).
Evans raises four claims of procedural error: (1) failure to convene an impartial hearing within 45 days of her request on July 7, 1994, in violation of 34 C.F.R. 300.512(a); (2) failure to have a proper IEP ready to implement at the start of the school year, in violation of 34 C.F.R. §§ 300.342; (3) failure to include in the IEP a statement of Frank's present level of educational functioning and strategies to evaluate progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§ 300.346(a); and (4) failure, when developing the IEP, to include Frank's classroom teacher in the evaluation team, to conduct a classroom observation of Frank, and to prepare a written report that included a statement of the basis for the determination that Frank was learning disabled, in violation of 34 C.P.R. §§ 300.543, 300.344(a)(1)-(2) & 300.540(a)-(c). I discuss each alleged error in turn.
In a letter, dated July 7, 1994, Evans requested an impartial hearing. A hearing was not scheduled, however, until September 21, after the school year had begun. The IDEA's implementing regulation provides that the District "shall ensure that not later than 45 days after the receipt of a request for a hearing . . . a final decision is reached in the hearing." 34 C.F.R. § 300.512(a)(1). Although a hearing officer may grant an extension of the 45-day limit at the request of either party, see 34 C.F.R. § 300.512(c), here, a hearing was not even scheduled until 71 days after Evans' request. Instead, the District arranged for mediation of the dispute.
The hearing officer made no specific findings or conclusions in connection with this alleged procedural violation. The State Review Officer specifically found that the District had failed to schedule promptly a hearing and found that it had offered no factual basis or legal authority in support of its argument that Evans waived her right to receive a written decision of the hearing officer within 45 days by agreeing to mediation. However, after noting "that both parties bear responsibility for the protracted proceeding which has occurred," the State Review Officer merely admonished the District to "ensure that hearings are commenced promptly after it receives hearing requests."
The Act, however, was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children. This includes, of course, the administrative review process. The legislative and administrative concern for prompt final resolution has been reflected in judicial opinions. See e.g. Spiegler v. District of Columbia, 275 U.S. App. D.C. 260, 866 F.2d 461, 466-67 (D.D.C. 1989). Section 300.512(a) specifically sets forth that it is the District's duty, and not the parent's, to ensure that a timely hearing and decision takes place after the parent requests an impartial hearing of the IEP decision. Thus, I believe that the State Review Officer's admonishment falls short of the mark, but I do not rest my decision on that basis alone.
Evans next alleges that the District failed to have a proper IEP ready to implement at the start of the new school year. The hearing officer found that the October 1994 IEP "was determined appropriate upon [Frank]'s arrival in the Rhinebeck School System at that time."
The State Review Officer found, however, that there was no dispute that the IEP which the CSE recommended on October 4 could not have been implemented at that time, because Mabie, who was to provide individual tutoring, had declined to provide her services. The State Review Officer found that, although a change in a child's service provider is not normally considered to be a change in a child's program, upon hiring Moore, the District also intended to change the amount of service, which required an amendment to Frank's IEP by the CSE. Thus, the State Review Officer found that the District "did not have an appropriate program" until January 19, 1995 when it amended Frank's IEP, and thus by implication, that the District did not have an appropriate program at the start of the school year.
Under the IDEA, the general rule is that placement should be based on an IEP. See 34 C.F.R. § 300.552. The IDEA's implementing regulation provides that
at the beginning of each school year, each public agency shall have in effect an IEP for every child with a disability who is receiving special education from that agency. . . . An IEP must . . . be in effect before special education and related services are provided to a child; and . . . be implemented as soon as possible following the [CSE] meetings.
34 C.F.R. § 300.342. The note following this provision states that "it is expected that the IEP of a child with a disability will be implemented immediately following the [CSE] meetings."
Here, as the State Review Officer found, the District did not have an appropriate program in effect until Frank's IEP was revised in January 1995, four months into the 1994-95 school year. Thus, the District's decision to place Frank at Buckeley at the start of the 1994-95 school year, before it had an IEP in effect on which to base that placement, constitutes a procedural violation of the Act. Cf. Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir. 1988).
The third alleged procedural error is the failure to include in the IEP a statement of Frank's present level of educational functioning and strategies to evaluate his progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§ 300.346(a)(1), (2) & (5). Under the Act, an IEP must be a written statement of specially designed instruction to meet the unique needs of a handicapped child, which includes:
(A) a statement of the present levels of educational performance of such child; (B) a statement of annual goals, including short-term instructional objectives; (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.