The Defense Office of Hearings and Appeals adjudicates special education cases under Parts 57 and 80 of Title 32 of the Code of Federal Regulations.
The Judge's findings and conclusion that Respondent properly identified the nature both of Petitioner's communication problem and his learning disability are supported by the record evidence. The record does not support Mother's contention that Petitioner had not made progress under his IEPs. The weight of the record evidence supports the holding of the Judge that Respondent did not deny Petitioner or his parents their procedural rights in developing his special education program. Furthermore, the weight of the record evidence supports the holding of the Judge that Respondent did not deny Petitioner a FAPE, in accordance with IDEA, Rowley, and the Instruction. There is a presumption that administrative decision makers, including Administrative Judges employed by DOHA, act with the appropriate degree of impartiality.
There is no basis to support Petitioner's claim that the parents were denied the opportunity to play a meaningful role in developing the child's IEP. The weight of the record supports a conclusion that Respondent provided Petitioner with educational benefit and a FAPE. The record does not support a conclusion that Judge acted in a way that would cause a reasonable person to believe he lacked impartiality. Petitioner has not demonstrated that she was denied due process rights. In special education cases the Board gives deference to the Hearing Officer's credibility determinations and resolutions of conflicting evidence so long as they are based on a preponderance of the evidence. Hearing Office decision affirmed.
Petitioner complained that the Respondent DoDDS school denied him FAPE. Petitioner cited to the school's failure to include specifically requested services, instructional methodologies, and method-based programs on his IEP, which was otherwise appropriately developed and IDEA-compliant. Among other issues raised, Petitioner also argued that school violated IDEA by failing to make guaranties and assurances regarding his testing and rate of development. Petitioner failed in his burden to show that FAPE was denied or IDEA violated.
Petitioner attended a Department of Defense Education Activity (DoDEA) elementary school. Her mother was dissatisfied with the education her daughter was receiving under her individualized education plan (IEP). She complained the school limited the parents' ability to participate in the development of the IEP and claimed her daughter had shown no educational growth in school's program. She petitioned for review of the IEP under the procedural safeguards section of the Individuals with Disabilities Education Improvement Act (IDEA). Petitioner failed to persuasively show procedural or substantive error in the school's execution of the IEP and failed to persuasively show the child was denied a free and appropriate education (FAPE).
The Instruction states "The DOD school system, the CSC, and a hearing officer appointed under this instruction shall consider any evaluation report presented by a parent. The provision is broad and unambiguous. The Judge's exclusion of this document is clear error. Petitioner's current school shall hold a a CSC meeting which shall consider the parent obtained IEE, the school obtained evaluation, all evidence considered in the 2006 school evaluation and all current educational reports and assessments of Petitioner. The CSC meeting shall be convened within 15 school days. The Judge's order for a new IEE is vacated.
Petitioner is a student attending a Department of Defense Education Activity (DoDEA) middle school. Her mother disagreed with Respondent's evaluation and determination that the child did not have a specific learning disability under the Individuals with Disabilities Education Act (IDEA) and requested an independent educational evaluation (IEE). She failed to show significant error in the eligibility determination, but demonstrated flaws in the provision of the IEE that violated her right to an IEE under the IDEA's procedural safeguards. The school is ordered to provide Petitioner with an IEE that can serve its proper function under IDEA.
Parent filed for Due Process hearing regarding the failure of DoDDS to educate her child only in what she felt was his native language, which was not English. She also complained about the evaluations that were done of her child and the qualifications of the evaluators. Found that the evaluators were appropriate. Insufficient evidence shown to require the child to be taught only in another language. The evaluation of the child, as a whole, was comprehensive, appropriate, and was conducted in accordance with the IDEA and the DoD Instruction.
Board’s standard of review on appeals in special educations cases discussed in detail. U.S. Department of Education regulations on special education are not legally binding on the Department of Defense. Whether a document issued by DDESS is legally binding on DDESS depends on whether the document is legally binding under federal statute, Executive Order, or federal regulation. DDESS is not legally obligated to accept and apply a non-DoD IEP. Hearing Officer’s determination that DDESS did not deny the Child a FAPE is supported by a preponderance of the evidence and applicable legal principles. DDESS must evaluate a child to determine whether the child needs special education and the nature and extent of special education and related services that the child needs. Petitioner has failed to raise any factual or legal claim that would warrant vacating the Hearing Officer’s evaluation order. Decision below affirmed.
Found that the Individual Education Plans for the Child were proper and he received a Free Appropriate Public Education during the period in question. The Case Study Committee (CSC) did not use the proper standard when determining whether the Child required transportation in order to participate in a special education program. Ordered that the CSC meet and use proper standard in determining issue.
Failure to provide educational services specified by IEP raises serious question whether there has been a denial of a FAPE. Record evidence supports Hearing Officer's finding that disabled child did not receive an independent evaluation as previously ordered. Resolution of substantive cross-appeal issues renders unnecessary award of relief for procedural errors during hearing process. Totality of record evidence shows ability of parents to meaningfully participate in decision-making process concerning their disabled child's education was adversely affected. Parents entitled to relief, including compensatory education for child for denial of FAPE during 1997-1998 school year.
Government failed to demonstrate Appeal Board erred in its March 24, 1998 decision. Motion for reconsideration denied.
Party challenging adequacy of IEP bears burden of proof. DDESS does not have to comply with state law. Hearing Officer should decline to permit parties to litigate moot issues. Analytical framework for evaluating adequacy of IEP. Both school and parents have obligations under IDEA and DoD special education regulation. Award of reimbursement affirmed in part and reversed in part. Hearing Officer acted ultra vires by granting relief that had practical effect of micro managing DDESS. Decision affirmed in part and reversed in part.
Preponderance of evidence did not support Hearing Officer's finding that Child's Individualized Education Program (IEP) required individual aide for Child. Compliance with IEP is important measure of whether child is receiving or has received a free appropriate public education. Hearing Officer had authority to order independent evaluation of child at DoDDS' expense to determine amount of compensatory education. Hearing Officer erred by trying to retain jurisdiction over case. Hearing Officer's decision affirmed in part and reversed in part.
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Last updated 28 Feb 2015