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Special Education Compliance

 

BEFORE THE THREE-MEMBER DUE PROCESS HEARING PANEL

IN RE:

_____

vs.

ST. LOUIS CITY SCHOOL DISTRICT

COVER SHEET OF PERSONALLY IDENTIFIABLE INFORMATION

The parties to this hearing are:

____, Student

DOB: _

Grade Level: 8th

Stevens Middle School

St. Louis City School District

____, Mother

Petitioners

St. Louis City School District

c/o Ms. Kathy B. Thomas, Special Education Supervisor

St. Louis City School District

911 Locust Street

St. Louis, Missouri 63101-1401

Margaret Mooney, Esq.

Attorney for St. Louis City School District

Lashly & Baer, P.C.

714 Locust

St. Louis, Missouri 63101

Petitioner did not attend the hearing and was in default.

BEFORE THE THREE-MEMBER DUE PROCESS HEARING PANEL

IN RE:

_______

vs .

ST. LOUIS CITY SCHOOL DISTRICT

ISSUE AND PURPOSE OF THE HEARING

The issue was identified in Petitioner's letter to the Department of Education in care of Heidi Atkins-Lieberman, Legal Counsel, requesting a due process hearing. Mrs. _ stated in that letter that "I am not in agreement with the alternative educational setting proposed by the IEP Committee for her." The purpose of the hearing is to determine whether _ proposed temporary placement in the King Tri-A Middle School and High School, an alternative school, is appropriate.

TIME-LINE INFORMATION

The request for hearing was received by the Department of Education on February 25, 1998. The hearing date was delayed because the Petitioner, Mrs. _ neglected to select a panel member, and the Department of Education ultimately selected a panel member in her behalf. The Chairperson received confirmation of his appointment to serve on March 11, 1998.

The Chairperson attempted to contact Mrs. _ by telephone at home and at work on more than one occasion on each of the following days, March 11, 12, and 16. On March 16, 1998 the Chairperson spoke by telephone with an individual who identified herself as _ and asked that

she in turn ask her mother to call the Chairperson as soon possible. On March 12, 1998, the Chairperson wrote a letter to Mrs. _ requesting that she contact him as soon as possible that the expedited hearing requested by her could be set as soon as conveniently possible. A date of March 24, 1998 was suggested in that letter. Mrs. _ did not respond. Nor did Mrs. _ respond to any of the telephone messages which were left in her voicemail at her residence and at her work. Consequently, on March 18, 1998 the Chairperson mailed a letter to Mrs. _ at _, advising here that the expedited hearing would be held on March 24, 1998 at the conference room, The Michael High School, 5101 McRee Avenue, St. Louis, Missouri 63110, beginning at 9:30 a.m. The letter included the following statement:

"If this hearing date is inconvenient, as Chairman of the Hearing Panel, I will entertain a request for continuance; however, this request must be received not later than Monday, March 23."

Mrs. _ did not respond to this letter. The expedited hearing was held on March 24, 1998, starting at 9:30 a.m. and concluded at approximately 12:45 p.m. that same day.

FINDINGS OF FACT

1. _ is an 8th Grade student at Stevens Middle School (DOB __), identified with an educational diagnosis of learning disability in basic reading skills and reading comprehension. She has been receiving special education services from a substitute special education resource teacher, Paul Gross. Mr. Gross is certified as an elementary teacher K-9 and as a reading specialist.

2. _ resides with her mother and siblings at _.

3. _ most recent evaluation on April 20, 1994 diagnosed her as being "learning disabled" in the areas of basic reading skills and reading comprehension. Her current IEP dated 3/27/97 identifies goals to improve reading skills, math skills, written expression, pre-vocational skills and socialization skills through special education instruction in the resource room in a modified regular educational placement. She was scheduled for such instruction 225 minutes per week and was scheduled for regular education services 1,575 minutes per week, per the School

District's Exhibit No. 20. However, Mr. Gross testified that _ had an attendance problem and quite often did not attend her scheduled resource reading class.

4. _ IEP called for the special education services to begin April 7, 1997 and to conclude March 27, 1998. The IEP Committee is scheduled to convene an IEP Committee meeting on

March 27, 1998 to review the services to be provided.

5. On or about January 9, 1998, _ was involved in a melee outside the Stevens School, immediately after school. The fighting took place on the sidewalk and Whittier Street adjacent to the school grounds. An unknown number of students were involved in the fight. When up to six police vehicles converged on the scene, the children disbursed. However, _ and her brother remained. _ was defiant and kicked at one of the police officers. She had to be restrained and was taken to juvenile authorities. Prior to being taken away from the scene, _ was found to have two box cutters in her possession. One had a blade approximately three inches in length and a handle four inches in length. _ admitted to having the box cutters in her possession.

6. _ has a history of fighting, using profanity, generally being uncooperative, and cutting class. She received out-of-school suspensions and "adjustment transfers" beginning in the 1992-93 school year and continuing to present.

7. During the current school year, Mr. Gross, _ resource teacher, testified that on many occasions she was disrespectful and used profanity, particularly when other children were in her presence. Mr. Neals, the principal of Stevens Middle School testified that _ was included on the list of the 14 worst girls at the school which was compiled by the teachers. _ committed what were described by witnesses as "Type I" school district offenses and, as a consequence, received the following discipline:

a. In October, 1997 she was suspended for 3 days of out-of-school suspension for truancy.

b. In December, 1997 she was suspended for 3 days of out-of-school suspension for fighting and profanity.

c. In January, 1998 she was suspended for 10 days of out-of-school suspension for fighting and weapons possession in the incident described above.

During the 1997-98 school year, _ has been suspended for a total of 16 days of out-of-school suspension with no services provided on the 11th to the 16th day. Due to the weapons offense, the SLPS also placed _ in an alternative educational setting at the King Tri-A Alternative School for 45 days at an IEP meeting held February 6th, 1998.

8. Following the 10 day suspension for fighting and possession of the box cutters on January 9, 1998, _ was returned to Stevens Middle School and placed in special education program for the majority of her day with her resource teacher present while she was integrated into physical education, music, and other non-academic classes. She did not leave the presence of her resource learning disability teacher. There is no indication of any IEP meeting to implement this program. This constitutes a change in placement for _ unilaterally of the IEP process.

9. An Individual Behavioral Management Plan was developed for _ on October 10, 1997 as a result of her first . During the 10 day out-of-school suspension in January, 1998, a Functional Behavioral Assessment and Manifestation Determination was completed by the resource teacher as the only member of the team. Another Functional Behavioral Assessment and Manifestation Determination was completed on February 6, 1998 at the IEP meeting with the resource teacher, math teacher and special education team member as members of the team. Information considered included teacher observation and _ records, including the diagnostic summary dated April 20, 1994. The diagnostic summary data is more than three years old and, by law, _ was to be re-evaluated no later than April, 1997. A priority request for re-evaluation was initiated on March 6, 1998 by Ms. Kathy Thomas, Special Education Supervisor of the district.

10. Shortly after her return to Stevens Middle School, _ IEP team was reassembled on February 6, 1998. Mrs. _ attended the meeting late and indicated her disagreement with the

placements recommendations of the other members of the team. The IEP recommended that _ be transferred for 45 days to an alternative school, namely King Tri-A. Since her placement at the alternative school, Tri-A, _ is progressing with special education services as described in her IEP with L.D. support and intense counseling. _ is reported to have improved attendance, and has had no reported behavior incidents. _ has continued access to the general education curriculum as described in the Tri-A Program.

St. Louis City School District has tried several interventions to address _ behaviors:

a. Beginning with the referral by the Superintendent for the initial evaluation and

b. continuing with attempts to address the peer conflicts by transfers to other schools.

c. Also there have been some short term social work and counseling services provided.

d. Resource teacher, regular education teacher and principal conferences with _ and her mother.

e. Short term suspensions and the regular discipline of the school district.

f. Attempted to involve _ mother in all of the special education processes.

All of these attempts to change behavior have not been successful.

DECISION AND RATIONALE

12. The Panel concludes that _ temporary placement at the alternative school, King Tri-A, where she will receive intensive counseling on self-esteem and behavior modification is appropriate based upon records and testimony presented by SLPS. In addition, Mrs. _ has enrolled _ at the King Tri-A Alternative School where SLPS staff indicate that she has been successful to date. The Panel recommends that _ remain in King Tri-A until such time that the re-evaluation is completed and the IEP team meets to develop an appropriate program. Her placement after her temporary stay at King Tri-A should be consistent with the reevaluation and the modified IEP. The Panel recommends that the reevaluation include a comprehensive behavior component including a new behavior assessment to determine if all diagnoses have been identified and to develop an effective plan of addressing _ behaviors. This reevaluation should be expedited by the district and completed immediately.

The IEP team should be reconvened following the reevaluation to determine a free appropriate public education in the least restrictive environment for _ upon this new data and with input from specialists in the area of learning disabilities and behavior. It is suggested that the IEP team include certified special education staff and/or a specialist in the field of behavior management.

13. The Panel notes the SLPS district has not complied with IDEA in the following instances:

a. The re-evaluation is more than one year over due;

b. placement was changed unilaterally in January, 1998 from modified regular education to self-contained without an IEP or proper notification;

c. The Functional Behavioral Assessment and Manifestation Determination held on January 15, 1998 was completed solely by the resource teacher. In addition, the diagnostic information considered dated back to 1994; and

d. was suspended for 16 days for the 1997-98 school year, and no services were provided on the 11th to the 16th day.

The Panel sympathizes with the difficulties involved in administering an urban educational program, and the Panel is aware of the shortage of special education teachers. However, the SLPS needs to address the concerns indicated.

APPEAL PROCEDURE

PLEASE TAKE NOTICE THAT THE FINDINGS OF FACT, DECISION, AND

RATIONALE CONSTITUTE THE FINAL DECISION OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION IN THIS MATTER.

PLEASE TAKE FURTHER NOTICE that you have a right to request review of this decision pursuant to the Missouri Administrative Procedure Act, Section 536.010 et seq. RSMo., specifically, Section 536.110 RSMo. which 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 30 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 . . ."

PLEASE TAKE FURTHER NOTICE that, alternatively, your appeal may be taken to the United States District Court for the Eastern District of Missouri in lieu of appeal to the state courts. 20 U.S.C. § 1415.

Dated this 27th day of March, 1998

SUE DAME, Panel Member

NANCY HOMAS, Panel Member

GEORGE J. BUDE, Chairperson