Zachary Deal V. Hamilton County Department of Education

Maureen Deal; Phillip Deal, Parent, on behalf of Zachary Deal, Plaintiffs-Appellants, v. Hamilton Country Board of Education, Defendant-Appellee, is about a young boy named Zachary who has autism spectrum disorder ("United States Court of Appeals," n.d.) and his rights as they relate to the Individuals with Disabilities Education Act. Zachary's first "individualized education program" ("IEP") was developed in 1997. At this time Zachary was three years old. This IEP was developed by Zachary's parents (Maureen and Phillip Deal) and the Hamilton County Department of Education (the "School System"). Zachary's IEP called for him to attend a preschool comprehensive development class. While Zachary was attending this class, his parents decided to take an active part in their son's education and teach him things outside of the classroom. The program they were using to teach their son had been created by the Center for Autism and Related Disorders. One-on-one applied behavioral analysis ("ABA") was the foundation of the program. Other key components of the program included structured teaching and wide-ranging analysis and data collection ("Zachary Deal v. Hamilton County Board of Education." n.d.).

Zachary's IEP team met again on May 11, 1998, to determine if an extended school year ("ESY") should be implemented in Zachary's IEP. The Deal's felt that Zachary was making tremendous progress in the home based program they had been using and they asked the School System to provide the funds so they could implement the program in their home during the summer. They also requested for Zachary to have year-round speech therapy. While the School System agreed to the speech therapy sessions at a rate of 3 times per week and 45 minutes for each session, they denied the Deal's request to fund their home based program. The School System also failed to provide data relating to the efficiency of the School System's methods regarding the instruction of autistic students which also had been requested by the Deal's ("Zachary Deal v. Hamilton County Board of Education." n.d.). It should also be noted that throughout this process the School System failed to truly consider the ABA program Zachary was using as a viable means of education ("Ohio Legal Rights Service," n.d.)

During October of 1998, Zachary's IEP team convened to construct his IEP for the 1998-1999 school year. It was determined that he would receive special education services at a rate of 35 hours per week. It was also determined that he would receive physical therapy and speech therapy. The Deal's, hoping for the School System to fund their home based program, filed a "minority report." Additional IEP meetings were held in November and December and February and March of the following year to consider the progress Zachary was making in the curriculum and also allow for the Deals' to voice their concerns. Zachary only attended the School System's program 16% of the time during the 1998-1999 school year ("Zachary Deal v. Hamilton County Board of Education." n.d.).

In May of 1999 the Deals' again requested 43 hour per week ESY services for Zachary's ABA therapy in addition to speech therapy services. Because Zachary was only present 16% of the time during the 1998-1999 school year, Zachary's IEP team concluded they would have no way of documenting any regression that Zachary could potentially experience so they rejected to offer ESY services. Zachary's IEP team met twice in August of 1999 to develop his IEP for the 1999-2000 school year. The provisions of the IEP called for Zachary to be in a regular kindergarten classroom for 3 sessions each week at a rate of 15 minutes per session. This included eating lunch with the regular class. If Zachary could show that he could handle this placement, his time would be increased above the 15 minutes. Speech therapy and physical therapy were still present in the IEP and occupational therapy services were also added ("Zachary Deal v. Hamilton County Board of Education." n.d.).

In the early stages of the 1999-2000 school year, Zachary's parents enrolled him at Primrose School. This was a private preschool that Zachary attended 2 times a week for 3 hours each time. His parents also paid for him to have a personal aide at this preschool. The Deals' felt that Zachary should be in a regular classroom for more time than his IEP identified and this was their reason for not accepting Zachary's IEP and sending him to the private preschool. A due process hearing was requested by the Deals' in September of 1999. Zachary's 2000-2001 school year IEP was developed in August of 2000. Despite calling for Zachary to spend the majority of his day in a regular kindergarten classroom, the Deals' refused to accept the IEP because the School System would not pay for Zachary's home based program ("Zachary Deal v. Hamilton County Board of Education." n.d.).

The due process hearing the Deals' had requested in September of 1999 was concluded in February of 2001. The administrative law judge ("ALJ") determined that the School System had not followed many requirements as set out in the Individuals with Disabilities Education Act ("IDEA"). Those requirements included the right to a free and appropriate public education and the requirement of having a general education teacher present at IEP meetings. The School System was also required to reimburse the Deals' for the ABA program they had been using with Zachary at home while also providing the funds to continue the ABA program until an appropriate IEP could be implemented ("Zachary Deal v. Hamilton County Board of Education." n.d.).

In May of 2002, the School System requested to present additional evidence to a district court regarding the ruling by the ALJ. After hearing evidence, the district court ruled a year later that some of the ALJ's decisions should be reversed and some decisions affirmed. The district court stated that no substantive or procedural violations pertaining to IDEA had been carried out by the School System. The Deals' appealed this decision by the district court in the United States Court of Appeals for the Sixth Circuit. The appeal was argued on August 12, 2004, and decided on December 16, 2004 ("Zachary Deal v. Hamilton County Board of Education." n.d.).

The Court of Appeals affirmed the decision by the district court to allow the School System to present additional evidence. Their affirmation was based on the fact that allowing additional expert testimony could be very helpful in the district court's decision making process. The Court of Appeals also affirmed the district court's decision regarding judicial notice and the refusal of declarations. The Court of Appeals justified this decision based on the fact that an expert witnesses (School System witness) lack of credibility could not be confirmed. The Court of Appeals reversed the decision by the district court stating that no procedural violations had been carried out by the School System. This decision was based on the fact that the Deals' did not have ample opportunity to participate in the decision making process regarding their son's education and the School System was to blame for this. The court believed ultimately this resulted in Zachary being denied a free and appropriate public education. Regarding a general education teacher being at IEP meetings for Zachary, the Court of Appeals reversed the ruling by the district court regarding this matter. The Court of Appeals justified this reversal because they believed a regular education teacher could have brought a much needed component to the IEP meetings. Finally, the Court of Appeals also reversed the decision by the district court regarding reimbursement. They based this decision on the fact that IDEA violations had occurred at many turns and the School System was responsible for these violations. Further, they believed the Deals' provided their son with an appropriate private education as it relates to the rules of IDEA ("Zachary Deal v. Hamilton County Board of Education." n.d.). References

Ohio Legal Rights Service. Retrieved from

http://olrs.ohio.gov/other/dealolrsbrief.pdf

United States Court of Appeals. Retrieved from

http://www.ca6.uscourts.gov/opinions.pdf/04a0434p-06.pdf

Zachary Deal v. Hamilton County Board of Education. Retrieved from

http://wrightslaw.com/law/caselaw/04/6th.deal.hamilton.tn.htm