DUE PROCESS HEARING DECISIONS AND APPEAL REVIEWS JULY 1, 2006-JUNE 30, 2007

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) PART B

SANDY GARRETT, STATE SUPERINTENDENT OF PUBLIC INSTRUCTION OKLAHOMA STATE DEPARTMENT OF EDUCATION

SUMMARY Due Process Requests (July 1, 2006-June 30, 2007)

Due Process Cases

¹Due Process Request Received 31
Due Process Hearings Cancelled, Withdrawn, or Resolved 25
Resolution Sessions 16
Resolution or Mediation Agreement 12
Due Process Hearing Decisions Rendered 4
Due Process Hearing Appeal Reviews 2
Appeal Reviews Appealed to District Court 0
District Court Decisions Appealed to 10thCircuit Court 0

This report was compiled by:

SPECIAL EDUCATION RESOLUTION CENTER
OKLAHOMA STATE UNIVERSITY
4825 S. Peoria, Suite 2
Tulsa, OK 74015
(918) 712-9632
(918) 712-9058

^I Includes 8 case received in FY 2005-06 and resolved in FY 2006-07

Due Process Hearing Decisions and Appeal Decisions (July 1,2006 - June 30, 2007)

Due Process Number

1860 Hearing
Decision Date: August 7, 2006

1861 Hearing
Decision Date: August 7, 2006

1875 Hearing
Decision Date: September 25, 2006

1896 Hearing
Decision Date: May 1, 2007

Due Process Appeal Number
1860 Appeal
Decision Date: January 22,2007

1861 Appeal
Decision Date: January 22,2007

Due Process Hearing 1860
Decision and Opinion August 7, 2006

(stamped) SERC Received Aug 10 2006 (initialed S. Esmeyer)

BEFORE THE DEPARTMENT OF EDUCATION
STATE OF OKLAHOMA

Student/Claimant,
)
v. ) Due Process Hearing # 1860
)
)
)
District/ Respondent

DECISION & OPINION COVER SHEET

Student/Claimants

Attorney

District/Respondent

Attorney

Hearing Dates: January 19,20; February 20,23,24; March 20, 21,22,23,24; April 17, 18, 19,20,21; 2006

Briefs: In Chief -May 26, 2006 (Both Parties Filed)
Response -June 7, 2006 (District Only Filed)
Decision Date August 7, 2006
Hearing Officer Leslie L. Conner, Jr., Esquire

BEFORE THE DEPARTMENT OF EDUCATION STATE OF OKLAHOMA DECISION & OPINION

Due Process Hearings # 1860

INTRODUCTORY STATEMENT

1. This matter comes on for Hearing based on a Request for Due Process dated
October 21st, 2005, and filed October 25th, 2005, by the Parent of Student/Claimant
alleging the denial of a Free Appropriate Public Education by District/Respondent in
thirteen counts. After appointment of a Hearing Officer and the setting of a Hearing
date for December 8th,2005,the Parties requested, and the Hearing Officer concurred,
that this case be consolidate with Student/Claimant's sibling as the issues alleged in
both cases were identical as was the diagnosis of Autism. The District/Respondent
joined the issues by filing a Response on November 3,2005, a PreHearing was set
and the Parties undertook resolution of the dispute.

2. On November 10,2005, Student requested a continuance of the scheduled
hearing to January 19th,2006, to allow the attendance of Student's Father and further
allow the parties to pursue further dispute resolution. The District did not object and
on November 17th,2005, the Hearing Officer issued an Order Continuing PreHearing
and Hearing. The PreHearing was continued to January 5th,2006 and the Hearing was
scheduled for January 19th,2006.

3. Subpoenas were requested and issued by the Hearing Officer, and, after
failing to resolve the matter, a combined PreHearing took place at which both parties
appeared by Counsel. Some Subpoena issues were resolved, issues for hearing were
refined and determined. The Student/Claimant elected to have the hearing Open. A
verbatim record was made of the PreHearing Conference (73 pages) which was
appended to the Hearing Record as Hearing Officer Exhibit (Hr.Off. Ex. or H.O.) #1.

4. The Hearing commenced on January 19th and continued on January 20th,
2006. The Parties were unable to agree on one set of exhibits and therefore anyone
document may have both Student and District Exhibit Numbers. Unless required this
Decision will only refer to a document by one designator. The Parties had estimated
two (2) days to present their positions but it became apparent that more time would
Page 1of 16 be needed. The Parties reached a consensus and the Hearing was continued for
several days with testimony heard: February 20th, 21sl& 24th; March 20th,21st,22od,
23rd& 24th;and, April 17th,18th,19th,20th,& 2P\ 2006, for a total of fifteen (15)
days.. The last brief was filed June 7th,2006.The decision due date was July 7,2006,
but because of health problems of the Hearing Officer, the Parties agreed to extend
the due date to August 7, 2006.

THE HEARING

5. At the Hearing the Parties appeared. The Parents of Student/Claimant
(hereinafter "Student") were present with Counsel and the District/Respondent
(hereinafter "District") appeared through the Superintendent with Counsel. The
Student did not appear. District presented a Motion in Limine to exclude certain
Student Exhibits. After full presentation and response, the Motion was Sustained and
Student Exhibits 50, 51, 53, 54, 55, and 56 were excluded. This ruling did not affect
Student Exhibits 50A, 51A, 53A, 54A, 55A & 56A. The District invoked the Rule of
Sequestration of Witnesses. Opening Statements were made by the Parties (with
District reserving it's Opening to presentation of it's evidence), Witnesses were
sworn and examined and Exhibits were admitted into evidence (referred to as:
Student="PX" & District="DX"), the number and identification as shown by the
Record.

6. Five (5) witnesses testified on behalf of the Student, to-wit: Student's
Father, Mother, Physician, Expert on Autism and the Business Associate of the
Expert. Five witness testified on behalf of the District, to-wit: Superintendent,
Speech-Language Pathologist from District's Cooperative, District's Elementary
Principal/Special Education Director, Special Education Teacher at District's
Cooperative Special Education Classroom, and Expert on Autism.

7. The proceeding, which was quite contentious at times, was taken verbatim
by a Certified Shorthand Reporter furnished by the District. The record is contained
in XV (15) Volumes consisting of 2,916 pages and when cited herein is referred to
as "Tr. Vol. #, p.#".

8. The Hearing Officer appended two exhibits to the Record identified as HO
#.HO#1 is the transcript of the Pre-Hearing Conference and H0#3 is The Assessment
of Basic Language and Learning Skills (The ABLLS). During the Hearing some
questions arose as to whether or not the Student's Autism Expert had complied with
a Subpoena Duces Tecum. The Hearing Officer recalled the Expert to the witness
stand, marked H0#3, discussed and appended it to the record. HO #2 was marked at
one time and then later marked, identified and admitted as DX# 122.

9. At the conclusion of the introduction of evidence, and after the Parties had
acknowledged they had nothing further to present, arguments were made and the
Hearing adjourned after a briefing schedule was requested by the Parties and
established. The Hearing was to close upon receipt of the last Response Brief filed.
Post Hearing Briefs were filed simultaneously on May 25th, 2006, with Student filing
a Fifty-Three (53) page Brief and District filing a Fifty-One (51) page Brief. Student
submitted 189 proposed Findings of Fact contained in 30 pages and 11 Exhibits with
District submitting 605 proposed Findings of Fact contained in 138 pages. Student
submitted 71 proposed Conclusions of Law contained in 9 pages with District
submitting 40 proposed Conclusions of Law contained in 16 pages. Response or
Reply Briefs, if any, were to be received on or before June 7th,2006. District filed a
twelve (12) page Response Brief on June 7th,2006.

PROCEDURAL SAFEGUARDS

10. Prior to the hearing, a determination was made that the District had
complied with all aspects of the required procedural safeguards as provided by 20
USC §1415 (d) and this was acknowledged at the Hearing (Tr. Vol. I, p 15). Some
questions arose at the Hearing as to whether the provisions of 20 USC§1415(f)(2)(A)
had been met by Student disclosing all items required to be disclosed at least five
days prior to the Hearing. (Tr. Vol. I, p 16) The District presented an oral Motion in
Limine to exclude certain Student exhibits. Argument was heard, negotiations took
place between Counsel with the Hearing Officer ruling on those items not resolved
by Counsel. (Tr. Vol. I, p. 25 et. seq.)

ISSUES

11. No issue was raised regarding the Student being qualified for or entitled
to Special Education. The issues to be heard were established by the Request for
Hearing as responded to and joined by the Response and are generally a complaint
of the alleged failure of the District to provide special education and related services
to the Student resulting in denial of Free Appropriate Public Education (FAPE).The
Student' s specific allegations follow numbered as in the Request for Due Process
Hearing although the specific allegation is paraphrased):

(1) On or before August 30th,2005, District failed to respond to parental
requests to provide for Student an Applied Behavioral Analysis (ABA)
program and further failed to provide written notice of the refusal and other
procedural safeguards.

(2) On or before May 26th, 2005, District failed to provide appropriate
Extended School Year (ESY) Services by limiting the type, amount and
duration of services provided based on a predetermined district-wide schedule

(3) On May 26th,2005, District agreed to sign a contract with a specific Speech
Therapist but failed to ever take action on that agreement.

(4) District failed to provide proper notification of a September 20th, 2005,
meeting, resulting in delays in services and preventing the Individual
Education Program (IEP) team from discussing the parents concerns as
provided to the school in writing.

(5) District failed to provide written notice to parents regarding the refusal to
discuss parents' concerns at both the August 30th and September 20th, 2005, IEP
meetings

(6) District failed to initiate and implement Applied Behavior Analysis
program and related services since on or before August 30th, 2005.

(7) District refused the training of personnel and parents at the Sundburg
conference for Applied Behavior Analysis and did not provide proper written
notice to parents in a timely manner denying the parents the opportunity to
decide whether or not to attend at their own expense.

(8) On or before August 30th,2005, District refused to increase speech therapy
to four (4) days per week and failed to provide a written notice of refusal.

(9) District failed to appropriately transition the child from Part C to Part B of
the IDEA by failing to provide evaluations, special education, and related servIces.

(10) From December pt, 2004, through August 30th,2005, District failed to
increase Occupational Therapy services to two (2) days per week which
resulted in Parents paying for these services.

(11) District failed to provide Certification of Competency for the teachers and
related service providers who would be providing services.

(12) On or before March 25th,2005, the District had not provided an assistive
technology evaluation or services.

(13) District has required the parents to pay for special education and related
servIces.

DISCUSSION OF THE ISSUES

12. These Parents were thrust into a situation for which no Parent is prepared.
Student was born prematurely in ____, and Parents were referred to SoonerStart
in July 2001. With Parents consent and involvement, Student was evaluated by
Soonerstart in October 2003, and determined to "be developmentally delayed in
several areas. Student received services from SoonerStart.

13. On May 13,2004, after one canceled meeting, Student was transitioned
from SoonerStart to District as the result of an IEP (PX #12) drawn up at a meeting
conducted by Student's Mother, SoonerStart Coordinator and District's Special
Education Teacher,Speech Pathologist, Elementary Principle and Regular Classroom
Teacher. This same group (less the SoonerStart Coordinator) made up the Multi
disciplinary Evaluation & Eligibility Team (MEETS) that reviewed SoonerStart's
Evaluation with the written consent of Mother(PX# 10) and determined Student
eligible for Special Education Services (PX #11). Mother consented to the initial
placement in the IEP which provided the District was to provide "no service" and
Student would be placed with Headstart and RiteCare in _____ .The record as a
whole discloses that Mother appeared to rely upon the advice of the SoonerStart
Representative at this meeting. The Speech Pathologist testified that the Mother was
advised of the District's Cooperative Special Education Facility in and the
services available to Student there and declined participation and services from the
District (Tr. Vol. VIII, pp 1691-1701). Special Education Teacher also testified that
Parents were adamant that they wanted no services from the District (Tr. Vol. XI, p
2156).

14. In June, 2004, on a trip to see relatives out of state with Mother, Student
and her sibling exhibited maladaptive self-injurious behaviors. Parents undertook to
discover the reason for this incident by consulting their Doctor who referred them to
the Jim Thorpe Rehabilitation Center where Student was evaluated for Occupational
Therapy in July 2004 (PX# 13). Student began receiving speech and language
services from Scottish Rite Care in ______ August, 2004, where she began
receiving services at that time continuing to February, 2005. Parents had Student
evaluated at the Oklahoma Child Study Center at the Oklahoma Health Science
Center in September, 2004, where the diagnoses was Autism (PX# 16). Student was
then evaluated for Speech at Jim Thorpe (PX# 17) Shortly thereafter, Parents
employed a private Autism Consultant who established an Applied Behavioral
Analysis (ABA) therapy in Student's home. Student began receiving services from
Jim Thorpe Rehabilitation Facility in Oklahoma City in October, 2004, and continued
into September, 2005.

15. At the request of Parents (SD# 27), another IEP Meeting was convened on
February 18, 2005,which was attended by both Parents, Parent's Autism Consultant,
Oral Motor Feeding Specialist and Advocate, District Special Education Teacher,
Superintendent, Speech Pathologist and Occupational Therapist. Parents gave the
team all the Thorpe, Scottish Rite and Child Study evaluations they had obtained
along with a report and recommendation from their Autism Consultant dated January
30,2005 (PX# 77). Parent's Autism Consultant explained the ABA, the program &
methodology she had established at Student's Home and her recommendations.
Parent's requested feeding intervention by their Oral Motor Feeding Specialist. The
Team noted proposed speech, occupational therapy and physical therapy evaluations
and observations in the home and determined it was not appropriate for evaluations
to be performed in a school setting after hearing of Student' s severe anxiety problems
when physically transitioned and/or separated from Parents. The Superintendent was
to investigate the requested feeding intervention and the Team was to reconvene Mar
4, 2005. (PX# 21). Superintendent set out to investigate Oral Motor Feeding Therapy
(Tr. Vol. XIII, p. 2438 et seq.). Mother signed consents for records so District could
acquire all of the Thorpe & Rite Care records on the Student and they were received
by the District. The Speech Pathologist testified that Student's Mother advised the
ABA home program was being paid by anther source (Tr. Vo. X, p. 1893) and
Parent's Autism Consultant testified she had never signed a contract to provide
services to Student with the Parents but had signed a contract with Parent's Insurance
Provider. (Tr. Vol. VIII, p. 1383 et seq.).

16. The IEP Team reconvened on March 25,2005, after the noticed meeting
of March 4, 2005, was cancelled by Parents. A MEETS meeting also convened at the
same time. Parents and their Autism Consultant were present along with the Districts
representatives. The MEETS report (PX# 28) determined Student qualified for
Special Education services with the disability of Autism. The IEP Review (PX# 29)
recommended increased services of Speech and Occupational Therapy in the home
because of anxiety outside of the home which was confirmed in the IEP (PX#31).
This subsequent IEP for pre-K Student provided for the District to furnish specific
services (Early Childhood, Speech & Language, Occupational and Physical Therapy)
outlined on Page 6 of 8 and stated the private ABA consult in the home would
continue as a supplementary service per the Parents. Least Restrictive Environment
was determined to be the home because of the reported anxiety of Student outside of
the home. It should be noted here that this March 25,2005, IEP was subsequently
modified on August 30, 2005, as hereinafter discussed, and neither Party was able to
present a non-modified or non-interlineated document.

17. On May-26, 2005, the IEP Team met again with Parents and their Autism
Consultant participating (PX# 36) to determine the need for Extended Year Services
(ESY) and receive and discuss the Feeding Therapy report (PX#32) which had been
faxed to the District April 7,2005,along with an offer to provide goals and objectives
for the IEP. The Superintendent was directed to obtain a contract from the Feeding
Therapist and he requested same along with her qualifications (Tr. Vol. XIII, p. 1441
et seq. ). The credentials were never received prior to the filing of this matter ( Tr.
Vol. XIII, p. 2445) although it developed in the testimony that the proposed contract
had been faxed in June, 2005 (PX# 38). The Team determine PT and Speech was
appropriate from June 1as specified on page 3of6 with the goals on the current IEP
to be followed. The Team determined the frequency of services to be provided and
all members of the Team signed off on the IEP without further comment.

18. It is important to note at this point that the May 26, 2005, IEP, as all the
others up to now and following, did not indicate any written Parent objections or
concerns to what was to be provided, although Parent Father testified he orally
objected at the May meeting that services were being reduced (Tr. Vol. III, p. 640).
No other witnesses substantiated this claim. Parent's Autism Consultant testified she
had never made notations or objections on any of the IEPs or ask for any notations
or objections be made on the IEPs (Tr. Vol. VI, p. 1335).

19. On August 2, 2005, Parents requested the next IEP meeting to discuss the
next school year schedule for Students occupational, physical and speech therapy.
The meeting was scheduled on one of the dates requested (Tr. Vol. XI, p. 2043 et
seq. & DX 46) and then canceled by the Parents (Tr. Vol. III, p. 644-645). The
Parents expanded the items they wanted discussed at the meeting and Mother visited
the Districts cooperative classroom along with their Autism Expert. The IEP Team
finally met on August 30, 2005 with both Parents and their Autism Consultant in
attendance and Parents presented a written attachment stating their initial requests or:
Student to be provided a 40 hour per week, year around home ABA education
program to be provided by the District; reimbursement for the private ABA program
up to that time; increased speech service to four days per week;District to provide an
Aid for Student; District to provide oral motor feeding therapy with their requested
provider; increased occupational therapy to two days per week; attendance at a
specified conference and other training for team members and District personnel; and,
District to furnish the certifications of District personnel. (PX# 49). The Autism
Consultants written evaluation of the Districts Cooperative Classroom which
concluded the Classroom was not appropriate for Student was also presented to the
Team. Parents also requested an assistive technology evaluation of Student. The team
concluded an increase in service would benefit Student and set physical therapy at
240 minutes monthly, increased speech to three times weekly and occupational
therapy to twice weekly. The March 25, 2005, IEP was interlineated and initialed to
show the changes. The teem also agreed to meet on September 20, 2005 to discuss
Parents written requests and educational placement. The District expressed a need for
review of the records from the home program that had been provided by Parents
Autism Consultant to assess the educational benefit of the program.

20. The records were not forthcoming and in September, 2005, the District
asked for a release by Parents to receive the records of the home program direct from
the Consultant anticipating the ability to review data and records that the Consultant
had been keeping as the program progressed. District also requested Parents
assistance in obtaining the credentials of the Feeding Therapist. When these requested
records had not been received by September 16, 2005, the District notified Parent
by letter it would be unable to make a decision at the September 20,2005, planned
IEP Teem meeting but it would still be beneficial to meet and hear from the
Consultant directly what her plans were for Student.

21. At the September 20,2005, meeting, Parent attended with an Advocate and
Parent Father signed the release so District could get records direct from the
Consultant. Parent requested District underwrite attendance of Parents and District
Personnel at the Sundberg Conference to be held September 22 & 23, 2005. Parent
Father was already aware that District had orally declined such attendance which was
later confirmed in a letter dated September 27, 2005 (Tr. Vol. IV, p. 771; Tr. Vol.
XIII, p. 2454; & DX# 61). The District declined attendance as the IEP did not provide
for such. Parents did not attend due to financial considerations (Tr. Vol. IV, p. 772).

22. Parents furnished District the itemized list of costs they sought to be
reimbursed on September 23, 2005 (SD# 56). District completed the paperwork for
the assistive technology consultation on September 26,2005, and continued attempts
to obtain the qualifications of the Feeding Therapist requested by Parents in a letter
dated September 27,2005, (SD# 62) a copy of which went to Parents (Tr. Vol. IV, p.
806).

23.Parents requested and IEP meeting by letter dated October 10, 2005, for
either October 19 or 20 to discuss several things (SD#63). Parents Autism Consultant
advised District on October 12,2005, that she would charge for graphing the raw data
that had been collected during the home ABA program and for updated reports on
Student. She also set out the proposal for a continuing ABA Home program (SD#64).
District responded on October 13,2005, that the information it needed to evaluate the
home ABA program should not require any updated reports but that it just needed to
see the documentation referred to the Consultants time logs given to the District at
the September 20,2005, IEP Meeting so it could evaluate the existing education level
of Student (SD# 65). District also responded to Parents request for an IEP that it
needed some other dates from Parents as Team members were already scheduled for
the requested dates and it was investigating ABA (SD# 66). On the same date, Parent
wrote to District stating they and their experts had provided sufficient data to support
their requests and adding that if anything else was needed the District should ask for
it with specificity prior to the next requested IEP meeting (SD#67). On October 18,
2005, Parents wrote Districts Special Education Director forwarding a letter from a
Physician (SD# 68). Three days later Parents signed their Due Process request and
filed it seven days later.

24. After the filing of this matter, the District had the Student evaluated by an
Autism Expert and she testified and her report was introduced into evidence as
SD#104. She found the home program data to be spotty and educational opportunities
applied sporadically. She did recommend the Student continue in the home program
with transition goals having priority and the one on one ABA therapy applied
regularly. This Expert also reviewed the Cooperative Classroom and found it could
ultimately meet the needs of Student (SD# 103).

DISCUSSION OF THE LAW

25. The Individuals with Disabilities Education Act (IDEA) requires a school
district that accepts federal funds to provide disabled children within its jurisdiction
a "free appropriate public education (FAPE). 20 V.S.C. §§ 1400(d)(1)(A),
1412(a)(1)(A). To provide FAPE to a student, a district must formulate an
individualized education plan (IEP) which is tailored to the unique needs of the
disabled child. 20 V.S.C. § 1414(d).The district must also provide extended school
year (ESY) services if the IEP team determines them as necessary to provide FAPE
to the disabled child.34CFR §300.309(a)(2).

26. If parents become dissatisfied with a child's IEP, substance or
implementation, they may ask for a due process hearing before an Independent
Hearing Officer (IHO). 20 V.S.C. §1415(f).The IHO conducts a hearing on the issues
joined between the parties at which the parents have the burden of proof[ Schaffer ex
reI. Schaffer v. Weast, 126 S.Ct. 528 (2005)] and makes a decision based on the
substantive grounds of whether or not the child received FAPE. The IHO can
determine a child did not receive FAPE based on procedural issues but only if the
IHO finds the procedural issues interfered with the provision of FAPE, or,
significantly impeded the child's parents rights to participate in the decisions to
provide FAPE, or, caused a deprivation of educational benefits. 20 V.S.C.
§1415(f)(3)(E).

27. IDEA provides to parents a significant role in the IEP process requiring
they be informed about their child and includes them as members of the IEP team
where they have the right to review records concerning their child. Justice
O'CONNOR, writing in Schaffer v. Weast, supra, at 537, stated that "The core of the
statute... is the cooperative process..." that IDEA establishes between parents and
schools.

28. After reviewing the Request for Due Process Hearing, the Response
thereto, the record of the Hearing, the testimony of witnesses, the documents admitted
into evidence, the post hearing briefs and responses, and based upon a preponderance
of the evidence from the Record as a whole, I enter the following:

FINDINGS OF FACT:

29. This matter was commenced on October 25,2005, by the filing with the
Oklahoma State Department of Education (OSDE) of a Parent Request For Due
Process Hearing (OSDE Form 9) dated October 21, 2005, signed by Student's
Parent/Guardian, Esquire, of

30. On October 26, 2005, OSDE appointed Leslie L. Conner, Jr., Esquire, as
Hearing Officer.

31. Student was born _____ (Tr. Vol. I, P. 73)

32. Student's Mother participated in the transition of Student from Part C to
Part B of IDEA (Early Intervention with SoonerStart to Special Education with
District) on May 13, 2004, as a member of the IEP and MEETS Teams where she
heard explanations of need for evaluation, gave written consent to use SoonerStart
evaluations, heard explanation of services available from District and declined
service selecting to seek services privately.(PX#'s 1112,Tr.Vol.VIII,pp 16911701).

33. Beginning with the February 18,2005, IEP Meeting, Parents were always
accompanied by consultants or advocates who were familiar with the IEP process and
were advising Parents. Record as a whole.

34. The IEP Team determined the amount of ESY for Student at the May 26,
2005, IEP Team Meeting and all team members approved the IEP with no notations
or objections made thereon (PX# 36).

35. At the May 26, 2005, IEP Team meeting the IEP Team did not agree to sign
a contract with the Oral Motor Feeding Therapist. The IEP Team agreed to further
investigate the matter and the District requested the qualifications and a proposed
contract from the Oral Motor Feeding Therapist which the Parents requested be used
for their child (Tr. Vol. XIII, p. 1441 et seq.). The Contract, goals and objectives were
received but the qualifications were received after the filing of Due Process (Tr. Vol.
XIII, p. 2445).

36. District never refused to provide Oral Motor Feeding Therapy or to provide
ABA Therapy. District did investigate the need for both and was doing so when
Parents filed this proceeding.

37. At the August 30, 2005, IEP (PX# 49) Meeting the team agreed to meet
September 20,2005 to discuss the Parent's request from the August IEP meeting and
Student's educational placement. Parent signed the IEP. District's letter of September
16, 2005 (SD X51) advising of inability to acquire needed information and Parent
testified he had not been to his post office box to get the letter (Tr. Vol. V, p. 881).

38. District never refused to discuss Parents concerns at August or September
IEP Meetings. Record as a whole.

39. Parent's request to attend the Sundberg Conference had been made orally
by Parents and denied orally by the Superintendent prior to the September IEP. The
request was made in writing on September 20,2005, at the IEP meeting after being
denied orally (Tr. Vol. IV, P. 771 et seq.). The oral denial was memorialized in a
letter from the Superintendent to the Father stating the reasons for the denial. (DX or
SE # 61). The IEP in effect did not provide for these types of services.

40. Parents requested speech therapy four times per week for the first time at
the August 30,2005, IEP Meeting and it was increased to three times per week by the
IEP team with no dissent noted on the IEP (PX# 49). Final action on the Parent's
specific request was pending when this proceeding was filed.

41. The IEP Team set the Occupational Therapy (OT) sessions in the IEPs
which the Parents and their consultants and advocate signed off on with out noting
objections between December 1,2004, and August 30,2005. OT was not provided
in the ESY May 26, 2005, IEP (PX# 36).

42. District provided Parents certification of service providers.

43. At the March 25, 2005, IEP, the Team considered Assistive Technology
(AT) for Student as shown by PX#31 but no requirement for an evaluation was made
in the IEP. Parent later requested an AT evaluation at the September 2005 IEP and
District moved to obtain the evaluation (Tr. Vol. XI, p. 2077, and p. 2176).

44. Parent father told Parent's Autism Consultant he did not want Student
attending District's Cooperative Special Education Class (Tr. Vol. VI, Question @
p. 1238, line 7-9, Answer @ p. 1239, line 17).

45. District had not received any records on the home ABA program from
Parents or their Autism Consultant by October 18, 2005 (Tr. Vol. XI, pps. 20852088).
46. Based upon the entire record in this proceeding and the above Discussion
of the Issues and Findings of Fact, I arrive at the following:

CONCLUSIONS OF LAW:

47. This proceeding was properly and legally conducted pursuant to 20 V.S.C.'
§ 1400, et seq., and 34 C.F.R. § 300.1 et seq.

48. The School District's obligation under the IDEA is to provide the Student
a "free appropriate public education." The IDEA defines a free appropriate public
education" in 20 U.S.C.A. § 1401(8) and 34 C.F.R. § 300.13 to mean special
education and related services that-

(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
C) include an appropriate preschool, elementary, or secondary school
education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 1414(d) of this title.

49. The burden of proof in an administrative hearing challenging an IEP is
properly placed upon the party seeking relief. Schaffer v. Weast, 546 U.S. ____, 126
S. Ct. 528 (2005); Johnson v. Independent School District No.4 of Bixby, 921 F.2d
1022, 1026 (10th Cir. 1990).

50. Student was properly evaluated and transitioned from SoonerStart to
District by a team that included Mother of Student and the use of the SoonerStart
evaluation data was proper and authorized by the Oklahoma State Department of
Education Policies and Procedures for Special Education in Oklahoma 2002 (PX #
120),page 52.. 20 U.S.C. § 1414, 34 C.F.R. §§ 300.320,300.533.

51. The IEP Team provided appropriate ESY Services for Student in the May
26, 2005, IEP. Johnson v. ISD# 4 of Bixby, Tulsa County, Oklahoma, 921 F.2d 1032

52. District took sufficient steps to notify and insure Parent was notified early
enough of the problems interfering with District's abilities to completely discuss and
come to a conclusion on Parents request of August 30 at the September IEP Meeting.
34 C.F.R. 300.345(a).

53. District was not required to provide written notice under 20 V.S.C. § 1415 .
and 34 C.F.R. § 300.503 as it never denied or refused to discuss Parent's concerns at
August and September, 2005, IEP meetings. 34 C.F.R. §300.503(a).

54. The oral notification and the follow-up letter denying attendance at the
Sundberg Conference amount to reasonable notice, was timely and did not deprive
the Student ofF APE. 20 V.S.C. § 1415(b)(3)requires prior written notice to a Parent
when the District refuses a change that affects FAPE. FAPE is defined at 20 V.S.C.
§ 1401 (9) and 34 C.F.R. § 300.13. The notice sufficient to meet intent of IDEA.

55. No notice of refusal to provide speech therapy four times weekly is
required as there has never been final action on the request due to the filing of this
matter. 34 C.F.R. §300.503(a).

56. Alleged denial of FAPE based on lack of District providing certification of
service providers is moot.

57. Parents fail to meet their burden on proving denial of FAPE based on
failure to provide Assistive Technology evaluation or services as District provided
same as soon as it was requested in September, 2005.

58. Parents do not have the right under IDEA to compel District to provide a
specific program or employ specific methodology for education of Student. Lachman
v. Illinois Bd. Of Educ., 852 F.2d 290,297 (7thCir. 1988) cert. denied 488 U.S. 925,
109 S. Ct. 308, cited in Loque v. Shawnee Mission Public School Unified School
District No. 512, 959 F. Supp. 1338 (USDC Kansas 1997). Nor must a District
maximize a Student's potential. Bd. Of Educ. of Hendrick Hudson Public School
District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034.

59. Parents' decision to place Student in private ABA Therapy was made
unilaterally and IDEA does not require District to reimburse Parents for costs of such
program. Tucker v. Calloway County Bd. Of Educ., et aI., 136 F.3rd 495 (6thCir.
1998).

60. Student fails to meet the burden of proof on all specific allegations. District
did not fail to provide a free appropriate public education for Student. Parent
continued a pattern of unilateral action by moving to Due Process to quickly.
Student's IEP Team should convene and consider an appropriate individual education
plan in light of this Decision, said plan to include but not be limited to the goals,
objectives, and educational value of all methodologies.

DECISION

61. There was no denial of FAPE by District to Student. The Student's IEP
team shall be convened within twenty (20)days to draw an appropriate individual
education plan in consideration of this Decision. The team shall consider the goals,
objectives, and educational value of all methodologies and will complete a properly
written plan with procedures, goals (to include transition to a less restrictive
environment, i.e., out of the home and into a classroom) and measurable data
collection for analysis and determination of progress or lack thereof.

CONCLUDING STATEMENT

62. Unless appealed, this decision is binding upon all parties. Either party may
appeal this decision by filing a written request with: The Oklahoma State Department
of Education in care of Special Education Resolution Center, 4825 S. Peoria, Suite
2, Tulsa, OK 74105. The appeal must be made with 30 days of the receipt of this
decision.

So Ordered.

Dated: August 7, 2006.

(signature) Leslie L. Conner, Jr, Hearing Officer

CERTIFICATE OF MAILING

On August 7, 2006, this Decision & Opinion was filed by email with the
Oklahoma Special Education Resolution Center with the signed original mailed to the
Oklahoma Special Education Resolution Center and signed copies mailed to Student
and District and forwarded by email.

(Signature) Leslie L. Conner, Jr, Hearing Officer

Due Process Hearing 1861
Decision & Opinion
August 7, 2006

(stamped) SERC Received Aug 10 2006 (intialed S. Esmeyer)

BEFORE THE DEPARTMENT OF EDUCATION
STATE OF OKLAHOMA

)
Student/Claimant, )

v.
)
) Due Process Hearing# 1861
)
)
)
District/Respondent )

DECISION & OPINION COVER SHEET

Student/Claimants

Attorney

District/Respondent

Attorney

Hearing Dates: January 19, 20; February 20, 23, 24; March 20, 21,
22,23, 24; April 17, 18, 19, 20, 21; 2006

Briefs: In Chief -May 26, 2006 (Both Parties Filed)
Response-June 7, 2006 (District Only Filed)

Decision Date: August 7, 2006

Hearing Officer: Leslie L. Conner, Jr., Esquire

BEFORE THE DEPARTMENT OF EDUCATION
STATE OF OKLAHOMA
DECISION & OPINION

Due Process Hearings # 1861

INTRODUCTORY STATEMENT

2. On November 10, 2005, Student requested a continuance of the scheduled
hearing to January 19th,2006, to allow the attendance of Student's Father and further
allow the parties to pursue further dispute resolution. The District did not object and
on November 17th, 2005, the Hearing Officer issued an Order Continuing PreHearing
and Hearing. The PreHearing was continued to January 5th,2006 and the Hearing was
scheduled for January 19th,2006.

3. Subpoenas were requested and issued by the Hearing Officer, and, after
failing to resolve the matter, a combined PreHearing took place at which both parties
appeared by Counsel. Some Subpoena issues were resolved, issues for hearing were
refined and determined. The Student/Claimant elected to have the hearing Open. A
verbatim record was made of the PreHearing Conference (73 pages) which was
appended to the Hearing Record as Hearing Officer Exhibit (Hr.Off. Ex. or H.O.) # 1.

4. The Hearing commenced on January 19th and continued on January 20th,
2006. The Parties were unable to agree on one set of exhibits and therefore any one
document may have both Student and District Exhibit Numbers. Unless required this
Decision will only refer to a document by one designator. The Parties had estimated
two (2) days to present their positions but it became apparent that more time would
be needed. The Parties reached a consensus and the Hearing was continued for
several days with testimony heard:February 20th, 21st and 24th; March20th, 21st, 22nd,
23rd & 24th; and, April 17th,18th,19th, 20th, and 21st 2006, for a total of fifteen (15)
days.. The last brief was filed June 7th,2006. The decision due date was July 7,2006,
but because of health problems of the Hearing Officer, the Parties agreed to extend
the due date to August 7, 2006.

THE HEARING

6. Five (5) witnesses testified on behalf of the Student, to-wit: Student's
Father, Mother, Physician, Expert on Autism and the Business Associate of the
Expert. Five witness testified on behalf of the District, to-wit: Superintendent,
Speech-Language Pathologist from District's Cooperative, District's Elementary
Principal/Special Education Director, Special Education Teacher at District's
Cooperative Special Education Classroom, and Expert on Autism.

7. The proceeding, which was quite contentious at times, was taken verbatim
by a Certified Shorthand Reporter furnished by the District. The record is contained
in XV(15) Volumes consisting of 2,916 pages and when cited herein is referred to
as "Tr. Vol. #, p.#".

8. The Hearing Officer appended two exhibits to the Record identified as HO
#.HO#1 is the transcript of the Pre-Hearing Conference and HO#3 is The Assessment
of Basic Language and Learning Skills (The ABLLS). During the Hearing some
questions arose as to whether or not the Student's Autism Expert had complied with
a Subpoena Duces Tecum. The Hearing Officer recalled the Expert to the witness
stand, marked H0#3, discussed and appended it to the record. HO #2 was marked at
one time and then later marked, identified and admitted as DX#122.

PROCEDURAL SAFEGUARDS

10. Prior to the hearing, a determination was made that the District had
complied with all aspects of the required procedural safeguards as provided by 20USC
§1415 (d) and this was acknowledged at the Hearing (Tr. Vol. I, p 15). Some
questions arose at the Hearing as to whether the provisions of 20 USC §1415(f)(2)(A)
had been met by Student disclosing all items required to be disclosed at least five
days prior to the Hearing. (Tr. Vol. I, p 16) The District presented an oral Motion in
Limine to exclude certain Student exhibits. Argument was heard, negotiations took
place between Counsel with the Hearing Officer ruling on those items not resolved
by Counsel. (Tr. Vol. I, p. 25 et. seq.)

ISSUES

11.No issue was raised regarding the Student being qualified for or entitled
to Special Education. The issues to be heard were established by the Request for
Hearing as responded to and joined by the Response and are generally a complaint
of the alleged failure of the District to provide special education and related services
to the Student resulting in denial of a Free Appropriate Public Education (FAPE).The
Student's specific allegations follow numbered as in the Request for Due Process
Hearing although the specific allegation is paraphrased):

(I) On or before August 30th, 2005, District failed to respond to parental
requests to provide for Student an Applied Behavioral Analysis (ABA)
program and further failed to provide written notice of the refusal and other
procedural safeguards.

(2) On or before May 26th, 2005, District failed to provide appropriate
Extended School Year (ESY) Services by limiting the type, amount and
duration of services provided based on a predetermined district-wide schedule

(3) On May 26th,2005, District agreed to sign a contract with a specific Speech
Therapist but failed to ever take action on that agreement.

(4) District failed to provide proper notification of a September 20th,2005,
meeting, resulting in delays in services and preventing the Individual
Education Program (IEP) team from discussing the parents concerns as
provided to the school in writing.

(5) District failed to provide written notice to parents regarding the refusal to
discuss parents' concerns at both the August 30th and September 20th, 2005, IEP
meetings

(6) District failed to initiate and implement Applied Behavior Analysis
program and related services since on or before August 30th, 2005.

(7) District refused the training of personnel and parents at the Sundburg
conference for Applied Behavior Analysis and did not provide proper written
notice to parents in a timely manner denying the parents the opportunity to
decide whether or not to attend at their own expense.

(8) On or before August 30th,2005, District refused to increase speech therapy
to four (4) days per week and failed to provide a written notice of refusal.

(9) District failed to appropriately transition the child from Part C to Part B of
the IDEA by failing to provide evaluations, special education, and related
servIces.

(10) From December 1st 2004, through August 30th, 2005, District failed to
increase Occupational Therapy services to two (2) days per week which
resulted in Parents paying for these services.

(11) District failed to provide Certification of Competency for the teachers and
related service providers who would be providing services.

(12) On or before March 25th,2005, the District had not provided an assistive
technology evaluation or services.

(13) District has required the parents to pay for special education and related
servIces.

DISCUSSION OF THE ISSUES

12. These Parents were thrust into a situation for which no Parent is prepared.
Student was born prematurely in ____, and Parents were referred to SoonerStart
in July 2001. With Parents consent and involvement, Student was evaluated by
Soonerstart in October 2003, and determined to be developmentally delayed in
several areas. Student received services from SoonerStart.

13. On May 13, 2004, after one canceled meeting, Student was transitioned
from SoonerStart to District as the result of an IEP (PX #12A) drawn up at a meeting
conducted by Student's Mother, SoonerStart Coordinator and District's Special
Education Teacher, Speech Pathologist Elementary Principle and Regular Classroom
Teacher. This same group (less the SoonerStart Coordinator) made up the Multi
disciplinary Evaluation & Eligibility Team (MEETS) that reviewed SoonerStart's
Evaluation with the written consent of Mother (PX# lOA). and determined Student
eligible for Special Education Services (PX #IIA). Mother consented to the initial
placement in the IEP which provided the District was to provide "no service" and
Student would be placed with Headstart and Rite Care in The record as a
whole discloses that Mother appeared to rely upon the advice of the SoonerStart
Representative at this meeting. The Speech Pathologist testified that the Mother was
advised of the District's Cooperative Special Education Facility in and the
services available to Student there and declined participation and services from the
District (Tr.Vol.VIII,pp 1691-1701).Special Education Teacher also testified that
Parents were adamant that they wanted no services from the District (Tr. Vol. XI, p
2156).

15. At the request of Parents (SD# 27), another IEP Meeting was convened on
February18,2005,which was attended by both Parents, Parent's Autism Consultant,
Oral Motor Feeding Specialist and Advocate, District Special Education Teacher,
Superintendent, Speech Pathologist and Occupational Therapist. Parents gave the
team all the Thorpe, Scottish Rite and Child Study evaluations they had obtained
along with a report and recommendation from their Autism Consultant dated January
30,2005 (PX# 77A). Parent's Autism Consultant explained the ABA, the program &
methodology she had established at Student's Home and her recommendations.
Parent's requested feeding intervention by their Oral Motor Feeding Specialist. The
Team noted proposed speech, occupational therapy and physical therapy evaluations
and observations in the home and determined it was not appropriate for evaluations
to be performed in a school setting after hearing of Student's severe anxiety problems
wben physically transitioned and/or separated from Parents. The Superintendent was
to investigate the requested feeding intervention and the Team was to reconvene March
4, 2005. PX# 21A). Superintendent set out to investigate Oral Motor Feeding
Therapy (Tr. Vol. XIII, p. 2438 et seq.). Mother signed consents for records so
District could acquire all of the Thorpe & Rite Care records on the Student and they
were receIved by the District. The Speech Pathologist testified that Student's Mother
advised the ABA home program was being paid by anther source (Tr. Vo. X, p. 1893)
and Parent's Autism Consultant testified she had never signed a contract to provide
services to Student with the Parents but had signed a contract with Parent's Insurance
Provider. (Tr. Vol. VIII, p. 1383 et seq.).

16. The IEP Team reconvened on March 25,2005, after the noticed meeting
of March 4, 2005, was cancelled by Parents. A MEETS meeting also convened at the
same time. Parents and their Autism Consultant were present along with the Districts
representatives. The MEETS report (PX# 28A) determined Student qualified for
Special Education services with the disability of Autism. The IEP Review (PX# 29A)
recommended increased services of Speech and Occupational Therapy in the home
because of anxiety outside of the home which was confirmed in the IEP (PX#31A).
This subsequent IEP for pre-K Student provided for the District to furnish specific
services (Early Childhood, Speech&Language, Occupational and Physical Therapy)
outlined on Page 6 of 8 and stated the private ABA consult in the home would
continue as a supplementary service per the Parents. Least Restrictive Environment
was determined to be the home because of the reported anxiety of Student outside of
the home. It should be noted here that this March 25,2005, IEP was subsequently
modified on August 30,2005, as hereinafter discussed, and neither Party was able to
present a non-modified or non-interlineated document.

17. On May 26,2005, the IEP Team met again with Parents and their Autism
Consultant participating (PX#36A) to determine the need for Extended Year Services
(ESY)and receive and discuss the Feeding Therapy report (PX#32A) which had been
faxed to the District April 7, 2005, along with an offer to provide goals and objectives
for the IEP. The Superintendent was directed to obtain a contract from the Feeding
Therapist and he requested same along with her qualifications (Tr. Vol. XIII, p. 1441
et seq. ). The credentials were never received prior to the filing of this matter ( Tr.
Vol. XIII, p. 2445) although it developed in the testimony that the proposed contract
had been faxed in June, 2005 (PX# 38A). The Team determine PT and Speech was
appropriate from June 1as specified on page 3 of 6 with the goals on the current IEP
to be followed. The Team determined the frequency of services to be provided and
all members of the Team signed off on the IEP without further comment.

18. It is important to note at this point that the May 26, 2005, IEP, as all the
others up to now and following, did not indicate any written Parent objections or
concerns to what was to be provided, although Parent Father testified he orally
objected at the May meeting that services were being reduced (Tr. Vol. III, p. 640).
No other witnesses substantiated this claim. Parent's Autism Consultant testified she
had never made notations or objections on any of the IEPs or ask for any notations
or objections be made on the IEPs (Tr. Vol. VI, p. 1335).

19. On August 2, 2005, Parents requested the next IEP meeting to discuss the
next school year schedule for Students occupational, physical and speech therapy.
The meeting was scheduled on one of the dates requested ( Tr. Vol. XI, p. 2043 et
seq. & DX 46) and then canceled by the Parents (Tr. Vol. III, p. 644-645). The
Parents expanded the items they wanted discussed at the meeting and Mother visited
the Districts cooperative classroom along with their Autism Expert. The IEP Team
finally met on August 30, 2005 with both Parents and their Autism Consultant in
attendance and Parents presented a written attachment stating their initial requests for:
Student to be provided a 40 hour per week, year around home ABA education
program to be provided by the District; reimbursement for the private ABA program
up to that time;increased speech service to four days per week; District to provide an
Aid for Student; District to provide oral motor feeding therapy with their requested
provider; increased occupational therapy to two days per week; attendance at a
specified conference and other training for team members and District personnel; and,
District to furnish the certifications of District personnel. (PX# 49A). The Autism
Consultants written evaluation of the Districts Cooperative Classroom which
concluded the Classroom was not appropriate for Student was also presented to the
Team. Parents also requested an assistive technology evaluation of Student. The teem
concluded an increase in service would benefit Student and set physical therapy at
240 minutes monthly, increased speech to three times weekly and occupational
therapy to twice weekly. The March 25,2005, IEP was interlineated and initialed to
show the changes. The teem also agreed to meet on September 20, 2005 to discuss
Parents written requests and educational placement. The District expressed a need for
review of the records from the home program that had been provided by Parents
Autism Consultant to assess the educational benefit of the program.

20. The records were not forthcoming and in September, 2005, the District
asked for a release by Parents to receive the records of the home program direct from
the Consultant anticipating the ability to review data and records that the Consultant
had been keeping as the program progressed. District also requested Parents
assistance in obtaining the credentials of the FeedingTherapist. When these requested
records had not been received by September 16,2005, the District notified Parents
by letter it would be unable to make a decision at the September 20, 2005, planned
IEP Teem meeting but it would still be beneficial to meet and hear from the
Consultant directly what her plans where for Student.

21. At the September 20,2005, meeting, Parent attended with an Advocate and
Parent Father signed the release so District could get records direct from the
Consultant. Parent requested District underwrite attendance of Parents and District
Personnel at the Sundberg Conference to be held September 22 & 23, 2005. Parent
Father was already aware that District had orally declined such attendance which was
later confirmed in a letter dated September 27,2005 (Tr. Vol. IV, p. 771; Tr. Vol.
XIII, p. 2454; & DX# 61). The District declined attendance as the IEP did not provide
for such. Parents did not attend due to financial considerations (Tr. Vol. IV, p. 772).

22. Parents furnished District the itemized list of costs they sought to be
reimbursed on September 23, 2005 (SD# 56). District completed the paperwork for
the assistive technology consultation on September26,2005, and continued attempts
to obtain the qualifications of the Feeding Therapist requested by Parents in a letter
dated September 27,2005, (SD# 62) a copy of which went to Parents (Tr. Vol. IV, p.
806).

23.Parents requested and IEP meeting by letter dated October 10, 2005, for
either October 19 or 20 to discuss several things (SD#63).Parents Autism Consultant
advised District on October 12,2005,that she would charge for graphing the raw data
that had been collected during the home ABA program and for updated reports on
Student. She also set out the proposal for a continuingABAHomeprogram(SD#64).
District responded onOctober 13,2005, that the information it needed to evaluate the
home ABA program should not require any updated reports but that it just needed to
see the documentation referred to the Consultants time logs given to the District at
the September20,2005, IEP Meeting so it could evaluate the existing education level
of Student (SD# 65). District also responded to Parents request for an IEP that it
needed some other dates from Parents as Team members were already scheduled for
the requested dates and it was investigating ABA (SD# 66). On the same date, Parent
wrote to District stating they and their experts had provided sufficient data to support
their requests and adding that if anything else was needed the District should ask for
it with specificity prior to the next requested IEP meeting (SD#67). On October 18,
2005, Parents wrote Districts Special Education Director forwarding a letter from a
Physician (SD# 68). Three days later Parents signed their Due Process request and
filed it seven days later.

25.The Individuals with Disabilities Education Act (IDEA) requires a school
district that accepts federal funds to provide disabled children within its jurisdiction
a "free appropriate public education (FAPE). 20 U.S.C. §§ 1400(d)(1)(A),
1412(a)(1)(A). To provide FAPE to a student, a district must formulate an
individualized education plan (IEP) which is tailored to the unique needs of the
disabled child. 20 V.S.C. § 1414(d). The district must also provide extended school
year (ESY) services if the IEP team determines them.as necessary to provide FAPE
t6 the disabled child.34CFR §300.309(a)(2).

26. If parents become dissatisfied with a child's IEP, substance or
implementation, they may ask for a due process hearing before an Independent
Hearing Officer (IHO). 20 U.S.C. §1415(t). The IHO conducts a hearing on the issues
joined between the parties at which the parents have the burden of proof [Schaffer ex
reI. Schaffer v. Weast, 126 S.Ct. 528 (2005)] and makes a decision based on the
substantive grounds of whether or not the child received FAPE. The IHO can
determine a child did not receive FAPE based on procedural issues but only if the
IHO finds the procedural issues interfered with the provision of FAPE, or,
significantly impeded the child's parents rights to participate in the decisions to
provide FAPE, or, caused a deprivation of educational benefits. 20 U.S.C.
§1415(t)(3)(E).

27. IDEA provides to parents a significant role in the IEP process requiring
they be informed about their child and includes them as members of the IEP team
where they have the right to review records concerning their child. Justice
O'CONNOR, writing in Schaffer v. Weast, supra at 537 stated that "The core of the
statute... is the cooperative process..." that IDEA establishes between parents and
schools.

FINDINGS OF FACT:

36. District never refused to provide Oral Motor Feeding Therapy or to provide
ABA Therapy. District did investigate the need for both and was doing so when
Parents filed this proceeding.

37. At the August 30,2005, IEP (PX# 49A) Meeting the team agreed to meet
September 20,2005 to discuss the Parent's request from the August IEP meeting and
Student's educational placement. Parent signed the IEP District's letter of September
16, 2005 (SD X51) advising of inability to acquire needed information and Parent
testified he had not been to his post office box to get the letter (Tr. Vol. V, p. 881).

38. District never refused to discuss Parents concerns at August or September
IEP Meetings. Record as it whole.

39. Parent's request to attend the Sundberg Conference had been made orally
by Parents and denied orally by the Superintendent prior to the September IEP. The
request was made in writing on September 20,2005, at the IEP meeting after being
denied orally (Tr. Vol. IV, P. 771 et seq.). The oral denial was memorialized in a
letter from the Superintendent to the Father stating the reasons for the denial. (DX #
61). The IEP in effect did not provide for these types of services.

40. Parents requested speech therapy four times per week for the first time at
the August 30, 2005, IEP Meeting and it was increased to three times per week by the
IEP team with no dissent noted on the IEP (PX# 49A). Final action on the Parent's
specific request was pending when this proceeding was filed.

41. The IEP Team set the Occupational Therapy (OT) sessions in the IEPs
which the Parents and their consultants and advocate signed off on with out noting
objections between December 1,2004, and August 30, 2005. OT was not provided
in the ESY May 26, 2005, IEP (PX# 36A).

42. District provided Parents certification of service providers.

43. At the March 25, 2005, IEP, the Team considered Assistive Technology
(AT) for Student as shown by PX#31A but no requirement for an evaluation was
made in the IEP. Parent later requested an AT evaluation at the September 2005 IEP
and District moved to obtain the evaluation (Tr. Vol. XI, p. 2077, and p. 2176).

44. Parent father told Parent's Autism Consultant he did not want Student
attending District's Cooperative Special Education Class (Tr. Vol. VI, Question @
p. 1238, line 7-9, Answer @ p. 1239, line 17).

45. District had not received any records on the home ABA program from
Parents or their Autism Consultant by October 18, 2005 (Tr. Vol. XI, pps. 20852088).

46. Based upon the entire record in this proceeding and the above Discussion
of the Issues and Findings of Fact, I arrive at the following:

CONCLUSIONS OF LAW:

47. This proceeding was properly and legally conducted pursuant to 20.V.S.C.
§ 1400, et seq., and 34 C.F.R. § 300.1 et seq.

48. The School District's obligation under the IDEA is to provide the Student
a "free appropriate public education." The IDEA defines a free appropriate public
education" in 20 V.S.C.A. § 1401(8) and 34 C.F.R. § 300.13 to mean special
education and related services that

(A) have been provided at public expense, under public supervision and
direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school
education in the State involved; and

(D) are provided in conformity with the individualized education program
required under section 1414(d) of this title..

49. The burden of proof in an administrative hearing challenging an IEP is
properly placed upon the party seeking relief. Schaffer v. Weast, 546 U.S. _, 126
S. Ct. 528 (2005); Johnson v. Independent School District No.4 of Bixby, 921 F.2d
1022, 1026 (lOth Cir. 1990).

50. Student was properly evaluated and transitioned from SoonerStart to
District by a team that included Mother of Student and the use of the SoonerStart
evaluation data was proper and authorized by the Oklahoma State Department of
Education Policies and Procedures for S ecial Education in Oklahoma 2002 (pX #
120), page 52.. 20 U.S.C. § 1414,34 C.F.R. §§ 300.320,300.533.

51. The IEP Team provided appropriate ESY Services for Student in the May
26,2005, IEP. Johnson v. ISD # 4 of Bixby, Tulsa County, Oklahoma, 921 F.2d 1032

52. District took sufficient steps to notify and insure Parent was notified early
enough of the problems interfering with District's abilities to completely discuss and
come to a conclusion on Parents request of August 30 at the September IEP Meeting.
34 C.F.R. 300.345(a).

53. District was not required to provide written notice under 20 U.S.C. § 1415
and 34 C.F.R. § 300.503 as it never denied or refused to discuss Parent's concerns at
August and September, 2005, IEP meetings. 34 C.F.R. §300.503(a).

54. The oral notification and the follow-up letter denying attendance at the
Sundberg Conference amount to reasonable notice, was timely and did not deprive
the Student ofF APE. 20 V.S.C. § 1415(b)(3) requires prior written notice to a Parent
when the District refuses a change that affects FAPE. FAPE is defined at 20 V.S.C.
§ 1401 (9) and 34 C.F.R. § 300.13. The notice sufficient to meet intent of IDEA.

55. No notice of refusal to provide speech therapy four times weekly is
required as there has never been final action on the request due to the filing of this
matter. 34 C.F.R. §300.503(a).

56. Alleged denial of FAPE based on lack of District providing certification of
service providers is moot.

57. Parents fail to meet their burden on proving denial of FAPE based on
failure to provide Assistive Technology evaluation or services as District provided
same as soon as it was requested in September, 2005.

58. Parents do not have the right under IDEA to compel District to provide a
specific program or employ specific methodology for education of Student. Lachman
v. Illinois Bd. Of Educ., 852 F.2d 290,297 (7th Cir. 1988) cert. denied 488 U.S. 925,
109 S. Ct. 308, cited in Loque v. Shawnee Mission Public School Unified School
District No. 512, 959 F. Supp. 1338 (USDC Kansas 1997). Nor must a District
maximize a Student's potential. Bd. Of Educ. of Hendrick Hudson Public School
District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034.

59. Parents' decision to place Student in private ABA Therapy was made
unilaterally and IDEA does not require District to reimburse Parents for costs of such
program. Tucker v.Calloway County Bd. Of Educ., et aI., 136 F.3rd 495 (6thCir.
1998).

60. Student fails to meet the burden of proof on all specific allegations. District
did not fail to provide a free appropriate public education for Student. Parent
continued a pattern of unilateral action by moving to Due Process to quickly.
Student's IEP Team should convene and consider an appropriate individual education
plan in light of this Decision, said plan to include but not be limited to the goals,
objectives, and educational value of all methodologies.

DECISION

61. There was no denial of FAPE by District to Student. The Student's IEP
team shall be convened within twenty (20)days to draw an appropriate individual
education plan in consideration of this Decision. The team shall consider the goals,
objectives, and educational value of all methodologies and will complete a properly
written plan with procedures, goals (to include transition to a less restrictive
environment, Le., out of the home and into a classroom) and measurable data
collection for analysis and determination of progress or lack thereof.

CONCLUDING STATEMENT

So Ordered.

Dated: August 7, 2006.

(Signature) Leslie L. Conner, Jr, Hearing Officer

CERTIFICATE OF MAILING

(Signature) Leslie L. Conner, Jr, Hearing Officer

Due Process Hearing 1875
Due Process Decision September 25,2006

(stamped) SERC Received Sep 27, 2006 (initialed S. Esmeyer)

DUE PROCESS DECISION
CASE NO. 1875
PETITIONER RESPONDENT
Name:
Address:

Date of Birth:
Home School:
Counsel for the Student:

Counsel for the School:

Hearing Dates: September 1, 2006

Brief Submitted: None

Petitioner: , Father of the Student
Respondent:

Background
On February 9, 2006 the Parent completed and signed a Parent Request/or Special Education
Due Process Hearing and submitted the same to the Special Education Resolution Center on
March 2,2006. A Hearing Officer was assigned to this case on March 6,2006. The hearing was
scheduled for Friday, April 14,2006 at 9:00 am with decision to be rendered on or before
Sunday, May 14, 2006.

A request for a telephone Pre-Hearing Conference was made by Counsel for the School to clarify
various issues in the case. This request was granted and a Pre-Hearing telephone conference was
made with Counsel for the Parent, father of the student and Counsel for the School on
Wednesday, April 28, 2006.

A written request from Counsel for the Parent requested an extension of the date of the hearing.
The request was granted in writing by the Hearing Officer and the hearing was rescheduled for
August 4,2006. A second written request from Counsel for the Parent on July 27,2006 to the
Hearing Officer indicated he would be out of town on the scheduled hearing date and requested
an extension. There was no objection to this request from the School stating "as it appears we are
continuing to make progress toward resolving all issues identified in the due process complaint."
The extension was granted with all parties being notified in writing a new hearing date was set for
Friday, September 1,2006, 9:00 am at a specified location.

Procedural Safeguards
Prior to the hearing, a determination was made the School District had complied with all aspects
of the required procedural safeguards. In addition, the full disclosure requirement was met by the
exchange of written evidence and lists of witnesses at least five days prior to the hearing. The
Parent had not exchanged witness list or written evidence in compliance with the full disclosure
requirement.

Upon opening the Hearing, Counsel for the Parent indicated that an agreement had been reached
by all parties (Tr.P. 4 & 5). The settlement (agreement) had been reduced to writing and had
been signed by the Parent and Representative of the School (Tr.P.4).
There being no other issues the hearing was concluded.

Concluding Statements
The transcript of these proceedings are on file with the Jo Anne Pool, Director of the Special
Education Resolution Center, 4825 S. Peoria, Suite 2, Tulsa Oklahoma 74105.

(signature) 9/25/06
Ben Harper, Ph.D
Hearing Officer for the State

Due Process Hearing 1896

Order
May 1, 2007

BEFORE THE STATE BOARD OF EDUCATION
STATE OF OKLAHOMA

)
on behalf of minor child, )
)
Student/Complainant, ) Due Process Hearing No. 1896
)
v. )
)
)
DISTRICT, )

District/Respondent. )

ORDER
This matter came on for due process hearing at 9:00 a.m. on April 19, 2007. Petitioners,
and _____________ appeared in person and by and through their counsel of record,
, Esq. The District Respondent, ______________ appeared through its attorney of record,

______________ Esq., of _______________Following a pre-,
hearing conference and conferences between and among counsel and their respective clients, the
Petitioners announced on the record that they have elected to dismiss their Complaint in its
entirety. The hearing officer, after making a record of the same, finds that both Petitioners are
comfortable with this request for dismissal and are in agreement with the same.

It is, therefore, Ordered, Adjudged, and Decreed that the Complaint in Due Process
Hearing Number 1896 is dismissed in its entirety this 1st day of May 2007.

IT IS SO ORDERED.

Dated this 1st day of May 2007.

(Signature)

Catherine Welsh
Hearing Officer
1831 East 71st Street, Suite 305
Tulsa, OK 74136
(918) 585-8600-telephone
(918) 877-2787 - facsimile

Due Process Hearing Appeal 1860

Decision
January 22, 2007

Due Process Hearing Appeal Decision -#1860
Student:

Parent(s):

Attorney:

School:

Superintendent:

Attorney:

Dates:
Hearing Decision: August 7,2006
Appeal Request: September 6, 2006
Appeal Decision: January 22, 2007
Appeal Officer: Louis Lepak, Jr., Ph.D.

(stamp) SERC Received Jan 29, 2007

BACKGROUND

Parents of a Student with Autism filed a Due Process Hearing Request alleging denial of
a Free Appropriate Public Education (FAPE) by the School District.

The Hearing Officer's Decision was no denial of FAPE by District to Student. The
Hearing Officer ordered the Student's IEP team to convene within twenty (20) days to
draw an appropriate Individual Education Plan (IEP) in consideration of the Hearing

Officer Decision.

The Parent Appealed the Decision of the Hearing Officer.

ABBREVIATIONS

Appeal Officer -AO
Applied Behavioral Analysis -ABA
Autism Spectrum Disorder -ASD
Conclusions of Law -CL

Developmental Delays -DD
Early Intervention Program -EIP
Early Intervention Unit-EIU
Extended School Year -ESY

Findings of Fact -FF
Free Appropriate Public Education -FAPE
Hearing Officer-HO
Individualized Education Program -IEP
Individualized Family Service Plan -IFSP
Local Education Agency -LEA
Least Restrictive Environment -LRE
Multidisciplinary Evaluation and Eligibility Team Summary -MEETS
Occupational Therapy -OT
Physical Therapy -PT
Review of Existing Data -RED
Speech I Language Pathologist -SLP
Transition Planning Conference -TPC

ISSUE(S)

The Parent has appealed the Due Process Decision and identified twelve (12) specific
reasons for the request.

The specific reasons (#1-12) refer to the following issues: Advocacy/Consultants (#9);
Case Law/Educational Benefit (#4); Evaluation/IEP (#2,6,9); FAPE (#1,3,S,6);
Transition (#11); Unilateral Placement/Financial (#7,8); Written Notice (#10) and
previously filed briefs with proposed findings of fact and conclusions of law of May 26,
2006 (#12).

The Decision itself is found at #61 of the August 7,2006 Due Process Hearing Decision
and states: "There was no denial of FAPE by District to Student. The Student's IEP team
shall be convened within twenty (20) days to draw an appropriate Individual plan in
consideration of this decision. The team shall consider the goals, objectives, and
educational value of all methodologies and will complete a properly written plan with
procedures, goals (to include transition to a less restrictive environment, i.e., out of the
home and into a classroom) and measurable data collection for analysis and
determination of progress or lack thereof".

PROCEDURAL ISSUES

This matter was consolidated by the Hearing Officer (HO) as the Student's sibling has
identical issues alleged and an identical diagnosis of Autism. (Tr. Vol. I, p.S, Ln.6-10;
HO Decision, item #1)

The parties agreed that the two (2) cases were properly consolidated for hearing.
(Tr. Vol. I, p.12, Ln. 4-2S, p.13, Ln. 1)

The Appeal Officer (AO) received a request to submit new evidence from the Parent's
Attorney.

The new evidence related to a complaint filed by the Parent(s) during the Due Process
Hearing against the Licensed Psychologist who was a witness for the School District.

The complaint was filed with the State Board of Examiners of Psychology and this
matter became part of the Hearing record. (Tr. Vol. IV, p.674, Ln. 16 to p.732, Ln. 3' Vol.
XIV, p.2718, Ln.6 to p.2719, Ln.9; DE #122)

The Appeal Officer ruled this new evidence could affect the Appeal Decision under
(34CFR.300.S10(b)(2)(iii)) and granted specific extensions of time under
34CFR.300.S12(c) to include the date (January 20, 2007) at which time the final
complaint was to be received by the State Board of Examiners of Psychology.

Before the Appeal Decision was rendered the School District's Attorney requested an
opportunity to present new evidence regarding a complaint filed with the State
Department of Health against the Board Certified Behavioral Analyst who testified on
behalf of the Parent at the Hearing.

Before the Appeal Decision was rendered the Parent Attorney requested a continuance
of not more than thirty (30) days to allow for receipt of results of an investigation of a
complaint filed against the Parent Expert Witness alleging unauthorized practice of
behavioral health services.

The Parent Attorney advised the meeting of the State Board of Examiners in
Psychology scheduled for January 20, 2007 will be rescheduled due to the significant
and hazardous ice storm currently occurring in the state.

Expert witnesses for both Parent and School are thus involved in ongoing complaint
procedures with licensing boards in the state in which they practice.

These complaints are not moot and one or both could relate to matters raised in the
Due Process Hearing/Decision.

The Appeal Officer cannot extend the Appeal Decision indefinitely to allow for
completion of complaint procedures with licensing boards.

Any matter not resolved within the current timeframes will be reserved for a future
setting with appropriate jurisdiction.

The Appeal Officer denies the Parent request for a continuance and the District's
proposed new evidence.

FINDINGS OF FACT

1) The Parent testified the Student was born (blank) became Involved with the
state EIP in (blank) following release from the hospital NICU.The Student was born
approximately two (2) months premature and shortly after birth the Parent was advised
the Student was developmentally delayed because of the early birth. The state EIP was
recommended to the Parent. (Tr.Vol. I, p. 73, Ln.7-10, 20-25; p.74, Ln.1-5,p.75, Ln.1-5)

2) The Student was referred to the state EIP July 9, 2001. The referral reasons were the
Student was at home on an Apnea monitor, the gestation period was 32 weeks and the
Student was a premature identical twin. A family interview was conducted August 8,
2001. The Parent initiated another referral to the Early Intervention Program September
16, 2003 because the Student was not talking at all, was a little resistant to table food
and had tubes placed in January. The initial MEETS of October 6, 2003 determined the
Student was eligible for early intervention services because of a 50% delay in five (5)
developmental areas. The date of the initial/full lFSP was November 10, 2003. The
Parent Identified outcomes and a transdisciplinary approach In the home two (2) times
per month was agreed upon. Assistive technology was not needed to reach outcomes.
Services were to begin November 10,2003 and end at the six (6) month review May 10,
2004. The transition date was scheduled for June 7,2004 and the TPC was scheduled
for March 23, 2004. (PE 5,6; DE 12,14,16)

3) The EIP Resource Coordinator notified the District by phone March 22, 2004 the
Parent had cancelled the March 23, 2004 TPC. The District Elementary Principal/Special
Education Director had scheduled the TPC through the EIP Resource Coordinator in the
same fashion as always in her eleven (11) years as Elementary Principal and nine (9)
years as Special Education Director and the TPC had never been cancelled before in her
experience. She asked to reschedule the TPC but was advised by the Resource
Coordinator the Parent did not feel they needed a meeting and were not interested in
any services at this point. The District SLP called the Parents after the Principal/
Special Education Director informer her of the cancellation of the TPC. The SLP asked if
there were any services or something the School could do and what they thought
about going ahead and transitioning the Student. The Parents indicated they were
looking into other possibilities suggested by EIP staff and did not want School
services until the Student was school age. The SLP shared her experience of an easier
process if they could go ahead and transition the Student. At that point the transition
meeting was scheduled for May 13, 2004 with notification provided to the Parent. (TR.
Vol. X, p.1972, Ln. 4-7, Ln. 15-18, p.1974, Ln. 13-25, p.1975, Ln. 1-23, p. 1976, Ln.9
-25,p.1977, Ln.1-5;DE19,20;PE7A,8A;Tr.Vol.VIII,p.1668,Ln.20-22.p.1670,Ln.22
-25,p.1672,Ln.5-1 0,12-24)

4) The transition meeting was held May 13, 2004 and the Parent gave consent for the
pre placement initial evaluation. The MEETS indicated all testing was reflected on the

RED. The Student was determined to be multi handicapped and eligible for special
education and related services. An IEP was developed which Indicated the Student
showed delays In all areas of development, actively investigated the environment and
communicated through gestures and vocalization. Parent support was a strength and
the relevant special factor of communication needs would be addressed through
Related Service/Speech Therapy at Rite Care. A Special Education Consultation would
be provided one (1) time each nine (9) weeks to assist in the provision of Special
Education services at Head Start. LRE consideration of placement options resulted in a
decision of no service as the Student was full time Special Ed. ESY services were not
needed. The Parent received Parent Rights in Special Education and no disagreements
with the IEP were noted in the Additional Comments or otherwise on the document. One
of the considerations indicated modifications and one to one Instruction were needed
to maximize learning. (PE 7-12; DE 19,21,23.)

5) The Parent (Mother) attending the May 13, 2004 Transition meeting testified the
District SLP was In charge or seemed to be chairing the meeting, the relationship with
the Principal/Special Education Director who also attended was "struggling" related to
school issues with another of their children. The Co-op Special Education teacher said
the Student was beautiful and she noticed the Student still needed OT.(Tr.Vol.VIII
p.1524, Ln. 5-19, p. 130, Ln. 17-22,p. 1548,Ln.18-25, p.1549, Ln.1)

5) The Parent (Father) testified that, at the time of the Due Process Hearing, the Student
was age appropriate for the School District Pre-K. The Parent had become aware, after
age 2 or 3, the Student's actions compared to an older sibling and nieces and nephews
were not identical or similar based on age. The Student was approximately eighteen
(18) months behind others and the Parent attributed the Student's actions to the
developmental delay he had been previously advised of. (Tr.Vol. I, p.73, Ln. 16-17; p.74,
Ln.15-22; p.75, Ln.6-8)

6) The Parent (Father) testified over time he observed the Student to engage In odd
behaviors that were then attributed to developmental delay but later were recognized as
very typical with autistic children. Examples Included placing hands in the face and the
slow period of time to do things. (Tr. Vol. 1, p.75, Ln.9-18)

7) The Parent (Father) received an urgent call from the other Parent (Mother) in June of
2004. During an out of state trip to participate In a family wedding, the Student sibling
had started screaming, crying, banging her head, scratching and biting herself. The
behaviors were continuous and significant to a degree not seen before. Local police
had been called to the hotel by unknown persons which the Parent believes reflects the
severity of the behaviors exhibited by the Student. The behaviors worsened the next
day as the trip continued. The Parent then traveled to the out of state location of the
incident and along with two family members returned home with the Student and
sibling. In the month following, the self injurious behavior and screaming increased in
intensity. The Mother testified for months following she lived with the child screaming,
banging her head in the crib and hitting herself. The Parent cried, prayed and feared the
Student had gone insane and was going to end up in a mental institution. (Tr.Vol.I,
p.76, Ln.12-25, p.77, Ln. 1-25, p.79, Ln.24-25; Vol.VIIIp.1553, Ln. 3-14)

8) The Student was referred for an occupational therapy initial evaluation by her
pediatrician. The July 21, 2004 history and background section of the report indicated
no motor (occupational or physical therapy) services were in the IEP. Recommendation
included OT one (1) to Two (2) times per week for 45-60 minutes per session for a
minimum of six (6) months. The Parent testified the OT report was provided to the
District at the February, 2005 IEP meeting. (PE13; Tr.Vol.I,p.80, Ln.18-25, p.81, Ln.1-5)

9) The Parent testified the first time the Student received a definitive diagnosis of
autism was the September 14, 2004 Jumpstart Developmental Clinic Interdisciplinary
Assessment Report. The Department of Pediatrics Child Study Center Evaluation Team
assessed the Student as a then three (3) year, three (3) month old child who after a
difficult twin gestation had developed symptoms of autism and was severely .
developmentally delayed meeting criteria for the diagnosis of mental retardation. The
specific diagnoses were Autism Spectrum Disorder and Mental Retardation. The Parent
testified the report was provided to the District at the latest in February of 2005. (Tr.Vol
I, p.84, Ln. 3-22; PE 16; DE 26)

10) IEP meetings were held May 13, 2004, February 18, March 25, May 26, August 30
and September 20 of 2005. The Parent initiated a Request for Special Education Due
Process Hearing October 21, 2005. The Request was received October 25, 2005 at the
State Department of Education Special Education Resolution Center and the Due
Process Hearing timeline began on that date. (PE 12,21,29,31,36,49,57; DE
2,21,29,36,41,48,53; Tr.Vol.I,P.9, Ln.5-6)

11) The IEP of May 13, 2004 reflects Special Education and Related Services at Head
Start and Rite Care. The LEA initially was responsible for Special Education
consultation one (1) time each nine (9) weeks to help with the Student's program.
(PE12; DE21)

12) The February 18, 2005 IEP Review increased the amount of services by proposing
Speech, OT and PT evaluations and observations in the Student's home due to her
difficulty functioning and learning outside the home at that time. The Parents
requested feeding Intervention and the District was investigating this area. (PE21;DE29)

13) The March 25, 2005 IEP Review/Subsequent IEP increased services to 115 minutes
per week in home early childhood service/placement by the SLP/OT and Related SLP
Services 25 minutes three (3) times per week. PT 240 minutes per month and OT 30
minutes two (2) times per week were to begin August 30,2005. ESY Services were
deemed necessary and the Parents wanted to continue with ABA therapy. LRE
placement outside the home was not appropriate at that time due to anxiety and this
would result in the Student missing socialization. (PE31;DE36)

14) The The May 26, 2005 IEP Review proposed ESY Services of a minimum of nine (9)
hours PT beginning June 1, 2005 through August 1, 2005 and Speech Therapy 30
minutes one (1) time per week for six (6) weeks beginning June 8,2005. (PE36; DE41)

15) At the August 30, 2005 IEP Review the team felt the Student would benefit from
increased services. PT was increased to 240 minutes monthly, Speech to three (3) times
weekly for 25 minutes and OT two (2) times per week for 30 minutes. At this meeting the
Parent presented an attachment/reports containing proposed changes/
enhancements to the IEP.The Parent attachment stated the following concerns and
requests: The Parent experts have not been allowed to be members of the IEP team and
1.An in home fourty plus (40+) hours per week ABA program for the Student; 2.
Reimbursement of expenses from the first (1st) IEP to the present. The Parent and their
Autism consultant visited the District Co-Op Program and concluded it was not
appropriate, would not meet the Student's needs and safety and security there could
not be assured; 3. Increase of speech services to four (4) days per week; 4. Provision of
an aid; 5. Oral Sensory Motor Feeding Therapy with the Parent SLP; 6. increase OT to
two (2) days per week; 7. Increase OT Sensory Integration Disorder Training; 8. School
Board/ Administration attend IDEA/ No Child Left behind Act conferences or
individualized training; 9. Persons selected by the IEP team and LEA attend an Autism
specific conference at LEA expense (September 2005 -Sundberg Conference) and all
IEP team members receive ABA training from the Parent ABA consultant or her
designee; 10. Review of certificates of attendance/ completion of autism and/or
related courses of instruction; 11. LEA or consultants/ contractors reports be provided
to Parent or Parent representative the same day the LEA receives the report and in an
unaltered form. (PE49,a,b,c,d.; DE 48)

16) The September 20, 2005 IEP Review team continued the same type of service
delivery, discussed the specific methodology of ABA and data collection and the Parent
requested the District and Parent attend the Sundberg conference September 22 & 23,
2005. The Parent provided information regarding Feeding Therapy, OATC evaluation
and professional training were discussed and proposed costs were requested by the
Parent. The regular classroom teacher did not attend this meeting. Team input was the
basis for recommendations. (PE57Aabc, DE52,54)

17) The Student was determined to be eligible for early Intervention services based on
developmental delay October 6, 2003. The initial Evaluation (MEETS) determined the
Student was eligible for special education and related services May 13, 2004 as multi
handicapped. The Student was determined to have the disability of autism March 25,
2005 at the MEETS Reevaluation. (PE6,11,28 DE14,23,38)

18) The District Superintendent notified the Parent by telephone the District denied
their request to attend at school district expense a parent/staff training workshop in
Dallas in late September. The Superintendent confirmed this in writing September 27,
2005. (PE61; DE62;TR.Vol. XIII,p.2453, Ln.17-23, p.2454, Ln.23-25,p.2455, Ln.1-2,14
-25,p.2456, Ln.22-25,p.2457, Ln.1-8)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) was
signed into law December 3, 2004. Other than the personnel requirements which went
into effect when the bill was signed, the new statutory provisions went into effect July
1, 2005. The title may be cited as the 'Individuals with Disabilities Education Act'. (Pub.
L. 108-446)

1) Free Appropriate Public Education -FAPE means special education and related
services that
(A) have been provided at public expense, under public supervision, and without
charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school
education in the State involved; and
(D) are provided in conformity with the individualized education program required
under section 1414(d) of this title. (20 U.S.C. 1401 (9)

2) The transition from Part C to part B of IDEA shall be initiated by the EIU six to twelve
months prior to a child's third birthday. The EIU will notify the child's LEA, with
parental permission, at the appropriate time for a transition planning conference.
(34CFR300.132(a)(b)(c); Policies and Procedures for Special Education in Oklahoma,
p.49. 2002

3) Under the iDEA, the burden of proof in an administrative hearing challenging an IEP
is placed on the party seeking relief. Schaffer v. Weast, 126 S. Ct. 528 (2005)

4) The Education for All Handicapped Children's Act requirement of a "free appropriate
public education" did not require the state to maximize potential of each handicapped
child commensurate with the opportunity provided nonhandicapped children. Board of
Education of the Hendrick Hudson Central School District, Westchester County, et.al., v.
Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982)

5) Determination of whether a structured summer program was warranted for a multiply
handicapped child required consideration of not only retrospective data but predictive
data. Johnson by and through Johnson v. Independent School Dist. No.4 of Bixby,
Tulsa County, Okla., 921 F.2nd 1022,64 Ed. Law Rep. 1027 (10th Cir (Okla), Dec.11, 1990)
No. 89-5111)

6) Use of the term "autism" for eligibility purposes under IDEA may include related
spectrum disorders. (Policies and Procedures for Special Education in Oklahoma, p. 69.
2002)

7) Error, if any, in having expert witness give opinion as to weather child fit definition of
student who was "seriously emotionally disturbed" under regulation was harmless, as
it had been invited. A.E. by and through Evans v. Independent School Dist. No. 25 of
Adair County, Okla., 936 F.2d 472, 68 Ed. Law Rep. 278, 33 Fed.R.Evid. Servo247 (10th
Clr. (Okla), June 10, 1991) (No. 90-7018)

DUE PROCESS HEARING DECISIONS AND APPEAL REVIEWS JULY 1, 2006-JUNE 30, 2007

Due Process Hearing Decisions and Appeal Decisions (July 1,2006 - June 30, 2007)

Due Process Hearing 1860 Decision and Opinion August 7, 2006

BEFORE THE DEPARTMENT OF EDUCATION STATE OF OKLAHOMA

Due Process Hearing 1861 Decision & Opinion August 7, 2006

Due Process Hearing 1875 Due Process Decision September 25,2006

Due Process Hearing 1896

Order May 1, 2007

Due Process Hearing Appeal 1860

Decision January 22, 2007

Due Process Hearing 1860
Decision and Opinion August 7, 2006

BEFORE THE DEPARTMENT OF EDUCATION
STATE OF OKLAHOMA

Due Process Hearing 1861
Decision & Opinion
August 7, 2006

Due Process Hearing 1875
Due Process Decision September 25,2006

Order
May 1, 2007

Decision
January 22, 2007