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Special Education Compliance

 

BEFORE A HEARING OFFICER

EMPOWERED BY THE

DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION

In the matter of _____, Petitioner, and Department of Mental Health, Respondent.

CONFIDENTIAL COVER PAGE INFORMATION

1.The child is the son of _____ ("Parent"). The child was born on _____. In the record, reference is erroneously made to the child. Such references refer to the child.

2.At all times material to this due process proceeding, the child has resided with the parent at _____ which is within the State of Missouri and within the jurisdiction of the Missouri Department of Mental Health and the Kansas City Regional Center.

FINDINGS OF FACT, CONCLUSIONS OF LAW,

DECISION AND ORDER

The Hearing Officer, after hearing the evidence in this matter makes the following Findings of Fact and Conclusions of Law and issues the following Decision and Order:

FINDINGS OF FACT

The Hearing Officer, after hearing the evidence in this matter makes the following Findings of Fact:

THE PARTIES

1.The child at all times relevant to this proceeding, resided with the parent within the State of Missouri and thus, within the jurisdiction boundaries of the Missouri Department of Mental Health ("DMH") and the Kansas City Regional Center ("KCRC").

2.DMH is an Agency of the State of Missouri established pursuant to Missouri law. One of its divisions is the Division of Mental Retardation and Developmental Disabilities which is statutorily responsible for administration of the regional centers in the State of Missouri, including the KCRC.

3.KCRC is a Regional Center for persons with developmental disabilities administered by DMH. KCRC’s offices are located at 821 E. Admiral Boulevard, Kansas City, Missouri 64106.

4.During all times material to this matter, the following persons were engaged in the assessment of the child for KCRC:

Linda Ballard Registered Nurse
Linda Castillo First Steps Coordinator
Cynthia Darby Speech and Language Pathologist
Susan Duffy Associate Psychologist II
Dr. Theodore Edwards Physician
Dr. George Harris Supervising Psychologist
Jamie Henderson Associate Psychologist II
Donna (Babson) Thompson Intake/Evaluation Section Supervisor
Christy Vopat Registered Occupational Therapist

5.The Hearing Officer in this proceeding was:

Ransom A. Ellis, III

Ellis, Ellis, Hammons & Johnson, P.C.

901 St. Louis Street, Suite 600

Springfield, MO 65806-2505

6.The child and parent were not represented by Counsel. At the hearing the parent stated that she knew she had the right to be represented by Counsel of her choice or to be accompanied by a person who was knowledgeable about the law, but had voluntarily elected to not be represented at the hearing.

PROCEDURAL BACKGROUND

7.On or about September 6, 1998, the parent sent a letter to Ms. Paula Goff, Director of the First Steps Program for the Missouri Department of Elementary and Secondary Education ("DESE") requesting a hearing. (EX 1). The request was received by DESE on September 9, 1998.(EX 1).

8.On or about September 15, 1998, Ms. Heidi Atkins Lieberman, Legal Counsel, Special Education Services for DESE notified Mr. Ellis that he had been assigned as the Hearing Officer this case. (EX 2). On that same day, Ms. Lieberman notified the parent and DMH that Mr. Ellis would be serving as the Hearing Officer in this case. (EX 3-4).

9.On September 18, 1998, the Hearing Officer transmitted a copy of the Your Parental Rights In The First Steps Program, which is published by DESE, to the parent. (EX 5). At the hearing, the parent stated that she had reviewed and understood her rights as set forth in said document.

10.On or about September 18, 1998, Mr. Ellis notified the parent and DMH that he had been appointed the Hearing Officer and mailed to the parties within thirty (30) days following receipt of the parent’s request by DESE or by October 14, 1998. (EX 6).

11.On September 18, 1998, the parent by letter dated September 17, 1998, requested a request for an extension of time lines in the case. (EX 7). On September 18, 1998, the Hearing Officer extended the hearing time lines to November 13, 1998. (EX 8).

12.On September 18, 1998, the Hearing Officer transmitted a Notice of Hearing to the parent and DMH/KCRC. Both the parent and DMH/KCRC received the Notice. (EX 9). The Notice scheduled the hearing for 9:00 a.m. on October 28, 1998, in Conference Room 1, KCRC offices, 821 E. Admiral, Kansas City, Missouri.

13.At 9:00 a.m. on October 28, 1998, the Hearing Officer convened the hearing in Conference Room 1, KCRC offices, 821 E. Admiral, Kansas City, Missouri. The hearing was closed by request of the parent. The hearing concluded and the record was closed at approximately 11:30 a.m. on October 28, 1998.

14.During the hearing the parent and representative from DMH/KCRC were advised and acknowledged that they understood that they had the right to:

Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to early intervention services for children eligible under Part C of the IDEA;

Present evidence, and confront, cross-examine, and compel the attendance of witnesses;

Prohibit the introduction of any evidence at the proceeding that has not been disclosed to the parent at least five days before the proceeding;

Obtain a written or electronic verbatim transcription of the proceedings; and,

Obtain written findings of fact and a decision concerning the issues presented to the hearing officer.

15.During the hearing:

Neither the parent nor DMH/KCRC were accompanied by or advised by counsel or by individuals with special knowledge or training with respect to Part C of the IDEA;

Both the parent and DMH/KCRC presented evidence, confronted and cross-examined witnesses;

At the conclusion of the hearing arrangements were made for both parties to receive a written transcription of the proceedings.

ISSUE

16.At the hearing the parent and DMH/KCRC agreed that there was one issue they desired the Hearing Officer to review. The issue was whether the Department of Mental Health should continue to provide speech services to the child.

17.On and around December 17, 1996, immediately following the child’s first birthday, KCRC conducted an evaluation of the child at the request of the parent. Parent testified the nature of evaluation process was explained to her before the evaluation and she gave her consent for the evaluation. The evaluation consisted of a nursing assessment conducted by Linda Ballard; a speech and language assessment conducted by Cynthia Darby; an occupation therapy assessment conducted by Christy Vopat; and, a psychological assessment conducted by Jamie Henderson and Dr. George Harris.

18.Following the assessments, KCRC’s mult-disciplinary team met to determine whether the child was eligible for services. At that time, the multi-disciplinary team prepared an Assessment Staffing (REX 1) which contained the individual assessment reports and which diagnosed the child as follows:

AXIS I: 313.9 Disorder of Infancy Childhood or Adolescence, NOS
AXIS II: V71.09 No Diagnosis
AXIS III: Failure to Thrive (By History)

Intrauterine Growth Retardation (By History)

The multi-disciplinary team determined that the child was eligible for services through the Department of Mental Health and the First Steps Program. The multi-disciplinary team summarized their decision as follows:

"The child is currently _____ years old. The Bayley Scales of Infant Development/Mental scale indicate cognitive skills at approximately the 10-12 month level. The child is demonstrating a nearly 50% delay in both gross motor development as well as in expressive language. Delays in the acquisition of these developmental skills as well as the child’s history of Failure to Thrive and Intrauterine Growth Retardation strongly suggest the need for specific interventions. The child is in need of specific therapies to address his developmental delays."

The multi-disciplinary team made the following recommendations regarding the services to be provided to the child through the First Steps Program, as follows:

"1.Results of this evaluation be shared with [Parent], [the child], mother to assist her in work with and planning for [the child].

2.The child receive specific therapies as outlined in the Occupational therapy and Speech and Language therapy section of this report.

3.The child receive case management follow-along within the First Steps framework to include possible transition into his local school district at age 3.

4.The child receive a follow-up developmental evaluation at approximately 2 ½ to 3 years of age to determine continue eligibility for services."

19.In her December 18, 1996, speech and language assessment of the child Speech and Language Pathologist Cynthia Darby recommended as follows:

"…it is recommended that the child receive formalized speech and language therapy up to one hour per week. It is felt that therapy should focus on improving the following unique needs: increasing phonemic repertoire, giving specific items on request, following simple directions, imitating sounds and increasing jabbering."

20.In her December 18, 1996, occupational therapy assessment of the child, Occupational Therapist Christy Vopat recommended as follows:

"…It is…recommended that he receive occupational and physical therapy for facilitation of motor and oral motor development. The child’s specific needs lie in the area of muscle strengthening, gross motor development and oral motor control. It is recommended that the child receive a thorough oral motor assessment by occupational therapy.

Occupational and physical therapy is therefore recommended 2 to 3 times weekly up to a total of 2 hours per week."

21.Following the Assessment Staffing in early 1997, the child began receiving Occupational Therapy and Speech/Language services from KCRC through the First Steps Program. These services were being continued at the time of the hearing on October 28, 1998 as a result of the "stay-put" provisions of the IDEA.

22.At the hearing the parent presented a letter from Dr. Edward L. Hoffman, Director of the Neonatal Follow-up Clinics at Children’s Mercy South, and a Developmental Pediatrician who had been working with the child to Dr. Paul Brown dated May 1, 1998. (PEX 1). A copy of this letter was provided to KCRC around May 1, 1998. In this letter, Dr. Hoffman reviews the child’s history of joint laxity, expressive language delay, feeding problems and mild growth delays. Dr. Hoffman also suggests that the child may have an oral motor dyspraxia (motor planning disorder). However, Dr. Hoffman does not, in this letter, diagnose the child as having this condition.

23.Also at the hearing the parent presented an undated letter from Lydia Goodwin, a Speech/Language Pathologist with NovaCare who was providing outpatient services for the child. A copy of this letter is in the child’s file at KCRC. In her letter Ms. Goodwin states as follows:

"Although the child’s disorder is expressive in nature, it is more complex than a developmental, expressive language delay. He has definite characteristics of oral motor apraxia which affect his ability to motor plan may basic oral movements. This is different than a phonological delay or a developmental speech delay. In addition to the oral apraxia, the child has a very limited expressive vocabulary. Although he is progressing nicely, he often continues to use pointing and grunts to express his wants and needs. Another primary concern is the feeding issue which includes: peri/intr-oral defensiveness, gaging/choking, refusal to try a variety of textures and tastes and slow weight gain."

24.At the hearing the parent testified that she was unaware of any other diagnosis of the child other than those made by KCRC during their assessment of the child and the statements in the letters marked PEX 1 and 2.

25.On and around August 12, 1998, when the child was thirty-two (32) months old, KCRC conducted another evaluation of the child. Parent testified the nature of the evaluation process was explained to her before the evaluation and she gave her consent for the evaluation. The evaluation consisted of a nursing assessment conducted by Nancy Keene; a speech and language assessment conducted by Cynthia Darby; an occupational therapy assessment conducted by Christy Vopat; and, a psychological assessment conducted by Susan Duffy and Dr. George Harris.

26.Following the assessments, KCRC’s multi-disciplinary team met to determine whether the child was eligible for services. At that time, the multi-disciplinary team prepared an Assessment Staffing (REX 3) which contained the individual assessment reports and which diagnosed the child as follows:

AXIS I: 313.9 Disorder of Infancy Childhood or Adolescence, NOS
AXIS II: V71.09 No Diagnosis
AXIS III: Intrauterine Growth Retardation (By History)

Failure to Thrive (By History)

Hypotonia (By History)

The multi-disciplinary team determined that the child was ineligible for services through DMH and the First Steps Program. The team summarized their decision as follows:

"The child is a ___ month old youngster with a history of Intrauterine Growth Retardation, Hypotonia, and Failure to Thrive who lives with his mother. The child has received First Steps services since he was 13 months of age. This Psychological Assessment conducted during [his] re-evaluation revealed a Mental Developmental Age Equivalent of 25 months (22% delay) on the Baylay Scales and an Adaptive Age Equivalent of 19 months (41% delay) on the Vineland Scales.

Other Assessments conducted during this re-evaluation revealed a Receptive Language Age Equivalent of 28 months (12% delay), an Expressive Language Age Equivalent of 24 months (25% delay), a Fine Motor Age Equivalent of 20 months (37% delay), and a Gross Motor Age Equivalent of 19 months (41% delay).

From these Assessment results it has been determined that the child does not have a diagnosed medical condition that has resulted in atypical development or a 50% delay in one or more developmental areas and therefore is ineligible for services through the Department of Mental Health, Division of Mental Retardation and Developmental Disabilities."

27.On or around August 13, 1998, KCRC notified the parent in writing that the child had been found to be ineligible to receive services under the First Steps Program because he:

"…does not have a diagnosed medical, mental, or physical condition which has resulted in a 50% delay in any developmental area or atypical development in one or more areas."

28.On September 6, 1998, the parent initiated this proceeding by transmitting a letter to Paula Goff, of DESE appealing KCRC’s decision. (EX 1).

CONCLUSIONS OF LAW

The Hearing Officer, after hearing the evidence in this matter makes the following Conclusions of Law:

1.The Department of Mental Health ("DMH") is an Agency of the State of Missouri established pursuant to Section 630.003.1 RSMo. One of its divisions is the Division of Mental Retardation and Developmental Disabilities which is statutorily responsible for administration of the regional centers in the State of Missouri, including the Kansas City Regional Center ("KCRC") pursuant to Section 630.003.5 RSMo.

2.The Department of Elementary and Secondary Education ("DESE") is the Lead Agency for purposes of administering Part C of the IDEA in the State of Missouri. The Federal regulations require DESE, as lead agency, to, among other things, establish a complaint procedure to review a public agency’s decision with respect to services under Part C. (34 C.F.R. 303.510).

3.The eligibility criteria for the State of Missouri are established in the State Regulations for Part C of the IDEA ("State Plan For Part C") which constitutes the regulations for the State. In order to be eligible for services under Part C of the IDEA, these regulations require that an individual must be no more than two years of age (birth to 36 months of age) and must have been determined by a multi-disciplinary team as having either: (1) A developmental delay that meets state guidelines, OR, (2) a diagnosed physical or mental condition associated with developmental disabilities or has a high probability of resulting in a developmental delay or disability.

4.The multi-disciplinary evaluation conducted by KCRC on the child in August, 1998, met the requirements set forth in the Federal regulations (34 C.F.R. 303.322) and the State regulations (State Plan for Part C, Section VI, pp. 24-25) in that it:

was conducted only after parental consent was obtained by KCRC;

was conducted by personnel trained and qualified to utilize appropriate methods and procedures;

utilized appropriate diagnostic measures and procedures including informed clinical opinion;

included a review of current health records and medical history;

included an evaluation of the child’s level of functioning in each of the following areas:

cognitive development;

physical development, including vision and hearing;

communication development;

social/emotional development, and

adaptive development.

included an assessment of the unique needs of the child’s terms of each developmental area; and,

included the identification of services appropriate to meet those needs.

5.The multi-disciplinary team’s evaluation of the child in August, 1998, appropriately found that the child did not have a "Developmental Delay" which would allow him to be eligible for early intervention services pursuant to Part C of the IDEA. More specifically, the multi-disciplinary evaluation:

found that the child was not functioning at half (50%), or less than half (50%), of the developmental level that would be expected for a child considered to be developing within normal limits and of equal age; and

found that the child did not demonstrate atypical development in any one of the five specified developmental areas.

6.At this time, the child does not have a "developmental delay" as that term is defined by the IDEA, 20 U.S.C. 1432(3); the IDEA Regulations, 34 C.F.R. 303.10; and, the State Plan for Part C, Section I, pp. 19-20.

7.No evidence was presented to show that the child has "a diagnosed physical or mental condition associated with developmental disabilities or has a high probability of resulting in a developmental delay or disability," as required by the State Plan for Part C. Accordingly, it is found that the child does not have a "diagnosed physical or mental condition that has a high probability of resulting in a developmental delay" as that term is defined by the State Plan for Part C.

8.At this time, the child is not an "infant and toddler with a disability", as that term is defined in the IDEA, 20 U.S.C. 1432(5); the IDEA regulations, 34 C.F.R. 303.16; and, the State Plan for Part C, Section A, pp. 8-9.

9.At this time, the child does not meet the eligibility criteria for receipt of early intervention services under Part C of the IDEA. (State Plan for Part C, Section I, pp. 19-20).

DECISION AND ORDER

The Hearing Officer finds that the child does not meet the eligibility criteria for receipt of early intervention services under Part C of the IDEA. Accordingly, the Department of Mental Health appropriately found that it should discontinue such services to the child under Part C of the IDEA.

APPEAL PROCEDURE

PLEASE TAKE NOTICE that these Findings of Fact, Conclusions of Law, Decision and Order constitute the final decision of the Department of Elementary and Secondary Education in this matter.

PLEASE TAKE NOTICE that the Federal and State Regulations provide you with certain rights of appeal to this final decision. (See: 34 C.F.R. 303.424). The Federal Regulations, 34 C.F.R. 303.424 state as follows:

"Any party aggrieved by the findings and decision regarding an administrative complaint has the right to bring a civil action in State or Federal court under section 680(1) of the Act."

PLEASE TAKE NOTICE that you have a right to request review of this decision pursuant to the Missouri Administrative Procedures Act, Section 536.010 et seq. RSMo. Specifically, Section 536.110 RSMo. provides in pertinent part as follows:

"1.Proceedings for review may be instituted by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision…

3.The venue of such cases shall, at the option of the plaintiff, be in the circuit court of Cole County or in the county of the plaintiff or of one of the plaintiff’s residence…"

Ransom A. Ellis, III, Hearing Officer

Dated: 11/13/98