IN: Parents of special-ed child file federal lawsuit against HSE

By Tania E. Lopez
Posted: March 17, 2009
http://www.indystar.com/article/20090317/LOCAL0102/903170311/1015/LOCAL01

The parents of a former Hamilton Southeastern special education student -- who they claim was denied access to additional kindergarten sessions as doctors recommended --have taken their fight to federal court.

On Feb. 11, the Indiana Board of Special Education Appeals upheld the decision of an independent hearing officer who ruled Hamilton Southeastern Schools and the Hamilton-Boone-Madison Special Services Cooperative did not have to provide 6-year-old Michael Berns with two half-day sessions of kindergarten a day, as three doctors recommended.

His parents, Amy and Damian Berns, filed the complaint March 12 in U.S. District Court in Indianapolis. According to court documents, the family requested the special services after a heavy cabinet fell on Michael's head when he was at his grandparents' house in October 2007. He was identified as a student in need of special education the following April.

Armed with the doctors' recommendations, the Bernses asked for Michael to attend a morning kindergarten session and a duplicate afternoon session to reaffirm the lessons and help offset memory loss caused by the traumatic brain injury.

The district did not agree with the doctors, court documents show.

Instead, Fishers-based HSE developed an individualized education plan for Michael and would not enroll him in both sessions of kindergarten.

The Bernses requested mediation; the district declined.

The family then went through an unsuccessful case conference followed by the state's due process hearing, where the hearing officer sided with the school, despite the officer finding procedural errors committed by the school and the Carmel-based cooperative.

In federal filing, the Bernses charge Michael as a child with a disability was denied his right to a "free and appropriate public education" as guaranteed by the federal Rehabilitation Act of 1973, and they are seeking reimbursement for the private education they got Michael after the district denied their requests.

HSE will have about 20 days to respond to the filing, said family attorney Mitchell Pote.

But the school district's position has not changed, said spokeswoman Marianna Richards in an e-mail. Richards said a quick review of the complaint seemed to indicate that the issues are similar to those raised in the previous hearing.

She said the Indiana Board of Special Education Appeals' decision to uphold the ruling confirms that the program offered by Hamilton Southeastern provided an appropriate, customized instructional plan for Michael.

Since the case began, Michael and his family have moved from Noblesville to Marion County's Franklin Township, where he now attends South Creek Elementary School.