Philadelphia City School District | Case 7272-06-07 | 2007-03-10

This is a redacted version of the original hearing officer decision. Select details may have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. Decision Due Process Hearing for KF Date of Birth: xx/xx/xx File Number: 7272/06-07LS Date of Hearing: February 23, 2007 CLOSED HEARING Parties : R e p r e s e n t a t i v e : P r o S e School District of Philadelphia Kimberly Caputo, Esq. 440 North Broad Street Office of General Counsel Suite 313 440 North Broad Street Philadelphia, PA 19130 Suite 313 Philadelphia, PA 19130 Date Transcript Received: February 28, 2007 Date of Decision: March 10, 2007 Hearing Officer: David F. Bateman, PhD

In re: Student Page 2 of 16 I. BACKGROUND Student is a xx-year old resident of the School District of Philadelphia (hereinafter District) elig ible for Section 504/Chapter 15 Service Agreement as a handicapped student. He currently attends eighth grade at [redacted] School. The Parent requested the present due process hearing to determine the appropriateness of the Section 504 plans of February 2005, December 2005, and December 2006. She alleges the plans as offered by the Di strict are inapprop riate and are denying Student a free appropriate pub lic education. Specificall y, she states the service agreements lack specificity and lack st andards for measuring progress. Finally, she alleges the service agreements deny St udent the private sc hool education that has been recommended by licensed behavioral and mental health professionals. The District stated the Service Agreemen ts are appropriate and are designed to provide Student with the opportunity to make meaningful educational gain consistent with the requirements of Section 504.

In re: Student Page 3 of 16 II. ISSUE PRESENTED The adequacy and appropriateness of the February 2005, December 2005, and December 2006, Section 504 Service Agreements. III. FINDINGS OF FACT 1 A. Background 1. Student was born xx/xx/xx. He is currently xx-years of age (HO-2). 2. Student is an eligible for a Sect ion 504 plan as a protected handicapped student with a mental behavioral health disability (NT 10-11). 3. Student is a resident of the School District of Philadelphia (NT 11). 4. A Guardian Ad Litem Order appoin ting [name redacted] was issued on January 17, 2007 (HO-2). The Order states the Guardi an Ad Litem shall be and is hereby permitted to see and cons ult with the child, and to take all necessary steps appropriate to and cons onant with the representation of said child in this matter. 5. A psychoeducational evaluation was co mpleted on July 29, 2004 (P-4) by Dr. B. The report lists a WISC IV fu ll-scale IQ of 98, along with high achievement in reading and listening comprehension (P-4, p. 10). The report 1 References to notes of testimony will be designated “NT” followed by the relevant page number. References to District evidentiary exhibits will be designated “S” followed by the relevant exhibit number. References to Parent evidentiary exhibits will be designated “P” followed by the relevant exhibit number. “HO” followed by the rele vant exhibit number will designate references to Hearing Officer exhibits.

In re: Student Page 4 of 16 recommends an instructional milieu that is therapeutic in nature and able to accommodate his high levels of anxiety a nd difficulties adhering to externally imposed time constraints. It further states Stude nt is a good candidate for alternative therapeutic private schools such as [redacted] or [redacted]. It also recommends he be considered for placement in one of the newly established onsite partial hospital day programs, currently being implemented in the public schools in collaboration with local mental health agencies. 6. [Redacted Psychiatric] Hospital in Philadelphia discharged Student on September 2, 2004 after a stay relating to suicidal ideation (P-5). The discharge summary recommends a referral to short term partial hospitalization program with outpatient individual therapy, fam ily therapy, outpatient psychiatrist and behavioral sessions and referral for long-term partial hospitalization program. 7. The District issued an evaluation repor t on October 29, 2004 (S-3). Student’s current level of functioning was descri bed as very high, such that he was recommended as a potential candidate fo r participation in the Johns Hopkins University Talent Search Program (S-3, p. 3). The report summarizes Student’s problems with mental health issues. The report reviewed his eligibility for the category of emotiona l disturbance. (S-3, p. 10). The report concluded he was not eligible for special education and rela ted services as a student with an emotional disturbance because he did not require specially designed instruction (S-3, p. 11). The report states he is eligible for a Section 504 plan.

In re: Student Page 5 of 16 8. An IEP meeting was held on November 23, 2004 to review the evaluation report (S-4; NT 77). The meeting notes st ate, “Parent refused to participate in the IEP team meeting. The Parent wa s present but left the meeting during discussion of Student’s el igibility for services under IDEA (NT 79). The Parent returned to the meeting when di scussion proceeded to eligibility for Chapter 15 services.” 9. A Notice of Recommended Educational Placement (NOREP) was issued on November 23, 2004 stating Student is a child with a disability but does not require specially designed instruction/sp ecial education (S-4). Parent refused to sign the NOREP and requested a Chapter 15 meeting (S-4, p. 5). 10. On February 5, 2005 the First Judicial District of Penns ylvania Court of Common Pleas-Family Division-Juvenile Branch issued an Order stating Student is to stay with paternal grandmother (S-2). 11. The District held a Section 504 mee ting on February 10, 2005 (S-1). 15 individuals, including Stude nt’s parents and his gra ndmother, attended the meeting. The purpose of the meeting was to develop a plan for him to transition from [redacted] Partial Hospitalization Program to the sixth grade at the Elementary School (S-1, p. 2). The plan states Studen t does not require modification of the curriculum or instruction and that he will participate in the regular sixth grade curriculum. 12. The District completed a Section 5 04 Service Agreemen t on February 18, 2005 (P-7). The service ag reement lists among othe r items: Student will participate in the School Based Beha vioral Support program; ongoing data

In re: Student Page 6 of 16 will be collected and analyzed weekly across all settings within the school environment to determine progress on ta rget behaviors; Student will be provided with a homework protocol that will outline daily homework tasks; Student will be provided with a check sheet to remind him of all the things he must pack to prepare for home with an adult reviewing the sheet to assure completion; Student will be given the opportunity to ask questions about any home assignments before leaving for th e day; Student will receive curb to curb transportation. 13. A student history profile printed by the District on October 19, 2006 indicates suspensions in April 2005 and May 2006 (P-6). 14. The District completed a Service Agreement on December 16, 2005 (P-8). The service agreement lists among other ite ms: Student will participate in the School Based Behavioral Support program; ongoing data will be collected and analyzed weekly across all settings within the school environment to determine progress on target behaviors; An adult will review his assignment sheet for homework to check for completion and accuracy; Student will be provided with a section on the homework pr otocol to fill in any long range projects or assignments and a count dow n process to show how many days he has to complete the project; Student wi ll be given the o pportunity to ask questions about any home assignments before leaving for the day; Student will receive curb to curb transportati on; Student will be dismissed early once weekly for a standing outpatient therapy appointment; A consultation will be

In re: Student Page 7 of 16 made available to support Student’s teacher and school personnel and family members if requested. 15. Student’s grade seven report card indicat es an instructional level of 8 for reading, and C’s and D’s as final grades (P-11). 16. The District completed a Service Agreement on December 15, 2006 (P-9). The service agreement lists among other ite ms: Student will participate in the School Based Behavioral Support program; ongoing data will be collected and analyzed weekly across all settings within the school environment to determine progress on target beha viors; There will be on-going communication between staff and guard ian to report progress on target behaviors as long as treatment is me dically necessary; Student will copy homework assignments from the board every day and an adult will review for accuracy; Student will be given the oppor tunity to ask questions about any home assignments before leaving for th e day; Student will receive curb to curb transportation; Student will be dismissed early once weekly for a standing outpatient therapy appoin tment; a consultation will be made available to support Student’s teache r and school personnel and family members if requested. 17. Student’s mother filed fo r a due process hearing on January 9, 2007 (P-3). The Parent objects to the Section 504 Service Agreements of February 18, 2005, December 16, 2005, and December 15, 2006. She also seeks to have Student’s early acceptance into the [redacted high school].

In re: Student Page 8 of 16 18. The District completed a Functiona l Behavioral Assessment (FBA) on January 22, 2007 (P-1). The purpose of the FBA relate d to Student’s problems with aggression. The FBA stat es that when Student gets angry he will ask for time to “Take 5” and the program will be monitored. 19. Student was suspended for two days in January 2007 for disruption of school, reckless endangerment, assault on school personnel, and threats (P-10). 20. A manifestation determination meeting was held on January 22, 2007 (P-2). The meeting was a result of serious incident report where Student got mad and jerked a teacher’s arm. The team dete rmined the behavior was not the result of a failure to implement the service ag reement, but it was a manifestation of the student’s disability (P-2, p. 5).

In re: Student Page 9 of 16 IV. DISCUSSION AND CONCLUSION OF THE LAW Student is a xx-year old resident of the School District of Philadelphia (District). He is eligible for a Section 504 plan because he is a student with mental behavioral health disability. A Due Process Hearing was requested to determine if the Section 504 Plans of February 2005, December 2005, and December 2006 as offered and provided by the District are appropriate. Th e Parent alleges as a part of her opening statement the accommodation plans as provided by the District are inappropriate, do not provide him a free appropria te public education, lack sp ecificity or standards and guidelines for measuring his progress, there are no time lines in which the document is to be reviewed, and denies him a private school education. The United States Supreme Court has altered the burden of proof in cases brought under the IDEA. Even though this is not an IDEA case, the standards and procedures used are similar. In Schaffer v. Weast , 126 S. Ct. 528 (2005), the Court held that the party requesting an administr ative due process hear ing under the IDEA bears the burden of proof (i.e., the burden of persuasion) at the due process hearing. Thus, in this case, as the party requesting the hearing, the Family bears the burden of proof at the hearing. Student’s Educational Placement Before there is a discussion regarding Student’s educational placement, a review of the necessary components of the law is appropriate. It will start with a discussion of the Section 504 requirements.

In re: Student Page 10 of 16 To become eligible for services and protection against discrimination on the basis of a disability under Section 504, a student must be determined, as a result of an evaluation, to have a “physical of mental impairment” that “substantially limits one or more major life activities.”2 In addition, a student is protected from discrimination on the basis of a disability under Section 504 if a district trea ts him or her as if they have such an impairment, even if the student no longer ha s such an impairment or never had one in the first place.3 The statute holds that No otherwise qualified disabled individual in the United States....shall, solely by reason of a disability, be excluded fro m the participation in, be denied the benefits of, or be subject ed to discrimination under any program or activity receiving federal financial assistance.4 Regulations at 34 C.F.R. § 104.3(j)(i) in clude a catalogue of human misery, as set out below: (A) any physiological diso rder or condition, cosme tic disfigurement, or anatomical loss affecti ng one or more of the following body systems: neurological; musculoskeletal; speci al sense organs; cardiovascular; reproductive, digestive, genitourinary; hemic a nd lymphatic; skin and endocrine; or 2 29 U.S.C § 706(8)(B). 3 29 U.S.C § 706(8)(B). 4 Section 504, 29 U.S.C. § 794(a)

In re: Student Page 11 of 16 (B) any mental or psychological disorder , such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Note that the definition does not define specific diseases; nor is the regulation intended to limit the range of diseases of medical conditio ns that might come into play To be eligible for the protections un der Section 504, an individual must meet the definition of a person with a disability. This definition is "Any person who: i. Has a physical or mental impairment which substantially limits one or more of such person's major life activities, ii. Has a record of such an impairment, or iii. Is regarded as having such an impairment.” 5 Major life activities include self-care, performing manu al tasks, seeing, hearing, speaking, breathing, learning, and walking. Section 504 covers only those persons with a disability who would otherwise be qualified to participate and benefit from the programs or other activities receiving federal financial assistance. Additionally, individuals who are nondisabled are enti tled to protection against disability on the basis of discrimination, in the sense of exclusion from participation in, or denial of the benefits of, dist rict programs. The purpose of including nondisabled students within the reach of th e statute is to protect them from being injured by the prejudice of stereotypical attitudes of others.6 5 Section 504, 29 U.S.C. §706(7)(B) 6 See Southeastern Community College v. Davis, 1979-80 EHLR 551:177 (1979).

In re: Student Page 12 of 16 Under Section 504, school districts ha ve a child find requ irement. School districts are to annually “undertake to identify and locate every qualified handicapped person residing in [the district’s] juri sdiction who is not receiving a public education.”7 Section 504 also requires due process hear ings to be held to resolve disputes between parents and school districts. 34 C.F.R. § 104.36 compels school districts to establish and implement “an impartial hear ing with opportunity fo r participation by the [student’s] parents or guardians and representation by counsel, and a review procedure.” A school district meets the requirements by co mplying with the procedural standards of the Individuals with Disabilities Education Act.8 Just what actions are required has become a matter of debate within the past few years, as districts claim that the partic ular modifications and accommodations they propose meet their obligations under Sec tion 504. That obligation is found in 34 C.F.R. § 104.4, which states that, as a ge neral matter, a district must take all reasonable steps to ensure that a student w ith a disability is pr ovided with an equal opportunity to participate in, and benefit from, an educat ional program effective as that provided to nondisabled students. This imposition of a limitation of the district’s obligation to reasonable accommodation dove tails with the imposition of the same limitation capping a district’s obligation to alter an existing facility. 7 34 C.F.R. § 104.32 8 34 C.F.R. § 300.506

In re: Student Page 13 of 16 In this case, there is no dispute that Student is eligible as a child with a disability. He has mental behavioral health disability (NT 11). The dispute lies in the appropriateness of the plan as offered by the District. In this case there was very little testim ony or evidence regarding the specific plans that are in quest ion. In fact, it was not until well in the hearing that the plans were even discussed (NT 95). Even then, it was just barely. The Parent made it clear as a part of the pre-hearing discussion she was seeking results from this hearing that could not be provided given the authority of the Hearing Officer. She did not, however, make it clear what her ultimate goal was as a result of the due process hearing process. The Parent alleges the 504 plans as offe red by the District did not provide Student a free appropriate public education. Both the IDEA and Section 504 mandate the provision of a free appropriate public education (FAPE) to covered students with disabilities. The procedur al requirements for FAPE ar e more detailed under the IDEA; the substantive requirements appear to be similar, if not the same, when considered on the basis of serving the needs of an individual student with disabilities. The IDEA sets forth the positive right to a free public education or FAPE, defined at 20 U.S.C. §1401 as special educ ation and related serv ices that: (1) are provided at public expense and under public s upervision; (2) meet the standards of the state educational agency ; (3) include an ap propriate preschool, elementary, or secondary school education; and (4) are provide in accordance with an IEP. While the Section 504 statute itself is a general prohibition of discrimination on the basis of disability, the DOE regulations include a FAPE requirement at 34 C.F.R.

In re: Student Page 14 of 16 §104.33(a): “A recipient that operates a public elementary or secondary education program shall provide a fr ee appropriate public e ducation to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” According to the Office of Special Education Programs, the most significant difference between the FAPE requirements of Section 504 and those of the IDEA is the latter defines FAPE as consisting of special education a nd related services, implemented on the basis of the IEP doc ument, whereas under Section 504 FAPE may consist of either regular or special e ducation, and related aids and services, as implemented by any appropriate means, including, but not limited to, an IEP. The obligation for Section 504 is found in 34 C.F.R. § 104.4, which states that, as a general matter, a district must take al l reasonable steps to ensure that a student with a disability is provided with an equal opportunity to participate in, and benefit from, an educational program effective as that provided to nondisabled students. This imposition of a limitation of the district’s obligation to reasonable accommodation dovetails with the imposition of the same li mitation capping a district’s obligation to alter an existing facility. Were the Section 504 accommodation programs offered to Student appropriate? In contrast to the IDEA, Section 504 leaves districts to their own devices in determining the range of information that should be contained in accommodation plans. Nevertheless, an accommodation plan should address the student’s disability, necessary accommodations, and placement in the least restrictive environment.

In re: Student Page 15 of 16 There was statement offered by the Pare nt that the Section 504 plans were inappropriate. There was no evidence placed in front of the Hearing Officer indicating additional or different supports we re needed, or that the current supports were not meeting his needs. Granted, Student has had some problems, including several days of suspension over three years, and an in cident in January 2007 where the District completed a manifestation evaluation. However, although a manifestation evaluation was necessary in January 2007, th e team completing the evaluation found the behavior to be a manifestation of hi s disability, but not due to a lack of implementation by the District. There was no disagreement from the Parent on that finding, nor was there any evidence or testimony provided indicating non- implementation of the Section 504 accommodation plan. Given the paucity of evidence and testimony provided, there is no reason to support a finding the Section 504 plans of February 2004, December 2005, and December 2006 are inappropriate. Even wit hout the testimony or evidence, a review of the Section 504 accommodation plans indicates services pr ovided to facilitate his education in the regular classroom. Secti on 504 is a nondiscrimination statute. As noted above, there is no require ment for the specificity the Parent alleges is missing. The plans as written clearly provide him supports for his educational needs. Finally, Section 504 at its heart is a nondiscriminati on statute. There was no evidence or testimony presented indicating he has been discriminated against on the basis of a disability.

In re: Student Page 16 of 16 V. ORDER In accordance with the foregoing findings of fa ct and conclusions of law, it is hereby ORDERED the Section 504 plans of Februa ry 2004, December 2005, and December 2006 provided to Student are appropriate. ________________ _____________________ Date Hearing Officer