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Winkelman v. Parma City School District (05-983)

Administrative Action

The Parma City School District (District) began providing educational services for Jacob when he was three years old for preschool during the 2000-2001 school year.  Jacob attended the morning preschool program and afternoon preschool program at the District.  At the end of the school year, the Winkelmans and the District agreed that Jacob should attend the Achievement Center for Children (Achievement Center) as the least restrictive environment (LRE) at the District's expense for the 2001-2002 school year.  The next school year, 2003-2003, the Individualized Education Program (IEP) team identified the Achievement Center as the LRE. 

On May 5, 2003, at the end of Jacob's preschool year, Jacob's IEP team met to discuss Jacob's school placement for the 2003-2004 school year.  The IEP team consisted of the following individuals:  (1) Sandee Winkelman, Jacob's mother; (2) Dr. Judith Hudgins, Director of Special Education for the District; (3) Jacqueline Gerber, Jacob's lead teacher at the Achievement Center; (4) Amy Lumadue, mental health therapist from Beechbrook; (5) Michelle Munici, speech language pathologist with the District; (6) Julie Peacock, occupational therapist with the District; (7) Julie d'Aliberti and Kim Tomco, special education teachers with the District.  The IEP team agreed that the LRE was a special education classroom at Pleasant Valley Elementary School.  Sandee Winkelman consented to the special education services, but disagreed with the placement. 

The District gave the Winkelmans' a “Written Notice to Parents” form regarding a change in placement.  In response, the Winkelmans' wrote a letter to the District requesting an impartial due process hearing.  The Winkelmans' challenged Jacob's placement at Pleasant Valley Elementary School for his kindergarten year, alleging that the District's proposed program failed to provide Jacob with a Free Appropriate Public Education (FAPE) under IDEA.  The substantive issue underpinning the case was whether the District's proposed program offered Jacob a FAPE.  The IEP team decided that the appropriate LRE for Jacob was the special education classroom at Pleasant Valley Elementary School.  Jacob's parents, however, wanted Jacob to attend the Monarch School, a private school for autistic children.  Impartial Hearing Officer Joy M. Freda (IHO) issued a stay-put placement order, ordering Jacob to stay at the Achievement Center until she resolved the placement issue.  The Winkelmans, however, enrolled Jacob at the Monarch School for the 2003-04 school year.   

The impartial due process hearing was held October 16th, 17th, and 27th, 2003 and November 6th, 2003.  At the hearing both parties were represented by counsel.  The Winkelmans argued that Jacob should continue his education at the Monarch School because it was an extension of the Achievement Center.  The Winkelmans alleged that the District failed to provide the required notice of a change of placement and they did not approve of the change of placement.  The Winkelmans also alleged that Jacob's previous placement at the Achievement Center had been successful and that the District had to justify a new IEP placement.

On February 25, 2004, the IHO issued their decision that the District's proposed program for the 2003-2004 school year was the LRE and provided Jacob with a FAPE under IDEA.  The IHO reasoned that the District offered sufficient specialized services so that Jacob would benefit from his education.  Consequently, the Winkelmans were not reimbursed for the tuition and transportation costs for the 2003-2004 school year.  The tuition at the Monarch School for the 2003-2004 school year was $56,000.00 per year, excluding transportation.  Furthermore, Jacob did not have an IEP for the upcoming 2004-2005 school year because he attended the Monarch School during the 2003-2004 school year.

The Winkelmans appealed the IHO's decision to the State Board of Education.  After independently examining the evidence from the impartial due process hearing, State Level Review Officer (SLRO) Theresa L. Hagan, Esq. affirmed IHO Freda's decision.

On appeal, the Winkelmans asserted both procedural and substantive errors of law under IDEA.  The Winkelmans asserted that IHO Freda committed procedural error because she employed an assistant, Attorney Ann Oakar, who attended the due process hearing. SLRO Hagan held that IHO Freda was permitted to have an assistant during the impartial due process hearing.  SLRO Hagan reasoned that it was common practice to use a law clerk or research assistant.  Furthermore, the parties had an opportunity to object to the assistant during the hearing and failed to do so.  SLRO Hagan also commented that the Winkelmans argument also failed as a matter of law because they failed to provide evidence as to the negative effect of the assistant on Jacob's educational progress. 

The Winkelmans additionally asserted that IHO Freda committed procedural error because she granted excessive time extensions during the case.  SLRO Hagan held that IHO Freda had appropriately granted the time extensions.  In fact, the Winkelmans had requested the first time extension and both parties had requested the second time extension.  SLRO Hagan further reasoned that the other three time extensions were necessary for IHO Freda to properly consider the evidence and reach a decision.    

On appeal, the Winkelmans also argued that IHO Freda committed five substantive violations of IDEA, arguing that IHO Freda erred because she: (1) assigned the burden of proof to the Winkelmans; (2) determined that the choice of placement was the central issue at the hearing; (3) determined that a smaller class size was not critical to Jacob's education; (4) minimized the importance of the treatment and education of autistic and related communication-handicapped children (TEACCH) methodology; and (5) failed to consider the Winkelman's expert witness's testimony.  The TEACCH methodology is a structured teaching program that emphasizes skills development and fulfillment of fundamental human needs.

In support of the Winkelmans argument that IHO Freda improperly placed the burden of proof on them, the Winkelmans relied on non-binding case law from West Virginia and New Jersey.  As SLRO Hagan noted, she was required to follow Ohio case law and place the burden of proof on the party challenging the IEP, which in this case was the Winkelmans. 

In response to the Winkelmans second assignment of substantive error, SLRO Hagan agreed with IHO Frida's decision that the choice of placement was the central issue at the hearing.  Moreover, SLRO Hagan affirmed IHO Freda's decision to place Jacob at Pleasant Valley Elementary School as the LRE. 

Next, the Winkelmans alleged Jacob required one-to-one instruction.  SLRO Hagan found their assertion unsupported by the record; to the contrary, SLRO Hagan reasoned that the record supported the opposite conclusion: Jacob required more social activities, which included small group instruction and peer and non-peer interactions. 

Furthermore, SLRO Hagan was not persuaded by the Winkelmans argument that IHO Freda minimized the importance of the TEACCH methodology.  SLRO Hagan reasoned that methodology decisions are within the District's discretion. 

Finally, SLRO Hagan determined that IHO Freda appropriately considered the Winkelmans expert witness's medical testimony.  The conflict centered on Dr. Morris Levinsohn's diagnosis of disruptive behavior disorder and his opinion that one-on-one instruction would be the best for Jacob.  On review, SLRO Hagan agreed with IHO Freda's conclusion that a mere diagnosis does not necessitate a particular conclusion as to the child's education.  At the due process hearing, IHO Freda did not, as the Winkelmans argue, completely disregard Dr. Levinsohn's testimony.  SLRO Hagan determined that IHO Freda thoroughly considered all of the testimony, including the Winkelmans expert witness's testimony.

On July 15, 2004, the Winkelmans appealed the decision of the state educational agency to the United States District Court for the Northern District of Ohio.