Post on 19-Jul-2020
Advocacy for Speech/Language Evaluations and Services Under the
Individuals with Disabilities Act (IDEA)
Michael A. O’Connor Mauk & O’Connor, LLP mike@maukoconnor.com
Appendices
A. CPS Domain and Consent forms
B. Graphic Bell Curve Chart
C. Extract from Due Process Decision, ISBE 2010-0317
D. Extract from Due Process Decision, ISBE 2014-0157
E. Extract from Due Process Decision, ISBE 2013-0045
F. OSEP, Letter to Fisher
G. Kevin T. v. Elmhurst Community School District
Chicago Public Schools Assessment Plan
1. Identification Information Student Name: B M Date of Meeting: 04/16/2015 Student ID: 4xxxxxx Gender: Male Current CPS School: Citywide Specialized Schools and
Services Phone: Area: School ID: 610497
Birth Date: 05/28/1998 Grade: 10 Homeroom/Division: 084 Parent/Guardian: V M (Mother) Case Manager/Telephone: Address: 2740 W Cxxxxxx St Chicago, IL 606xx Parent's Phone Numbers Home Voice: 773-xxx-xxxx
2. Disabilities Specific Learning Disability, Other Health Impairment, Speech or Language Impairment
3. Purpose of the Conference Purpose of the Conference: Assessment Planning
4. Assessment Planning Participants
Title Name Signature Title Name Signature
Case Manager: Bilingual Specialist:
District Representative
Erin Abbott Nurse:
Special Interpreter/ Education Alexander Laube Translator: Interpreter Teacher:
General Education GenEd Teacher Occupational Kathryn Puszynski Teacher:
Therapist:
Evaluation Physical Representative: Erin Abbott Therapist:
Parent/Guardian: V M Psychologist:
Parent/Guardian: J G Social Worker: Christine Grene
Speech- Student*: B M Language Susie Gray
Pathologist:
Surrogate Transition Parent: Representative: Alexander Laube
Community OSS Agency: Representative:
Teacher Of Teacher of the Visually Deaf/Hard of Impaired: Hearing:
Certified Orientation and Audiologist: Mobility
Appendix A - 1 Advocacy for Speech/Language Evaluations and Services
Consent For Reevaluation
Date: 04/16/2015 Student Name: B M Birth Date: 05/28/1998 Student ID: 42141577
Dear V M,
School Name: Citywide Specialized Schools and Services
The purpose of a full and individual evaluation is to determine:
Whether any additions or modifications of the child's special education and related services are needed to enable the child to meet the measurable annual goals in the Individualized Education Program (IEP) and to participate appropriately in the general curriculum, extracurricular activities and other nonacademic activities.
An evaluation considers domains (areas related to the suspected disability) that may be relevant to the educational problems experienced by the individual child under consideration. The nature and intensity of the evaluation, including which domains will be addressed, will vary depending on the needs of your child and the type of existing information already available. The IEP Team, of which you are a member, determines the specific assessments are needed to evaluate the individual needs of your child. Upon completion of your child's special evaluation, a conference will be scheduled with you to discuss the findings.
PARENT/GUARDIAN CONSENT TO COLLECT ADDITIONAL EVALUATION DATA
I understand the school district must have my consent for the reevaluation. If I refuse consent, the school district may, but is not required to, pursue override procedures through due process. If the school district chooses not to pursue such procedures, the school district is not in violation of the required evaluation procedue. Furthermore, I understand my rights as explained to me and contained in the Explanation of Procedural Safeguards. I understand the scope of the evaluation as described on page 2 of this form.
I give consent I do not give consent to collect the evaluation data as described on page 2 of this form.
Signature of Parent/Guardian: Date:
If you have any questions, please contact Erin Abbott at 773-230-8237
Appendix A - 2 Advocacy for Speech/Language Evaluations and Services
Assessment Plan Student Name: B M Student ID: 42141577 Date: 04/16/2015
DOMAIN RELEVANT Yes No
EXISTING INFORMATION
ABOUT THE CHILD
ADDITIONAL EVALUATION DATA
NEEDED
SOURCES FROM WHICH DATA WILL BE
OBTAINED Health Current or past medical difficulties Yes No affecting educational performance.
N/A N/A N/A
Vision Visual problems that would interfere with testing or Yes No educational performance. Date and results of last vision test.
03/10/2006 04/01/2009 10/01/2012 N/A
N/A N/A
Hearing Hearing problems that would interfere with testing or educational Yes performance. Date and results of last No hearing screening/audiological test.
03/10/2006 04/01/2009 N/A
N/A N/A
Social/Emotional Status Information regarding how the environment affects educational performance (life history, adaptive Yes No behavior, independent functioning, personal and social responsibility, cultural background).
Social Work assessment 5/8/2014
Social History Update Cove Social Worker
General Intelligence Data regarding intellectual ability, how the child takes Yes No in information, understands information and
N/A N/A N/A
Appendix A - 3 Advocacy for Speech/Language Evaluations and Services
DOMAIN RELEVANT
Yes No
EXISTING INFORMATION
ABOUT THE CHILD
ADDITIONAL EVALUATION DATA
NEEDED
SOURCES FROM WHICH DATA WILL BE
OBTAINED
expresses information.
Academic Performance Current or past academic functioning data
Yes No pertinent to current educational performance.
N/A N/A N/A
Communication Status Information regarding communicative Yes No abilities (language, articulation, voice, fluency) affecting educational performance.
Speech and Language assessment 5/8/2014
updated Speech and Language assessment
Cove Speech and Language Therapist
Motor Abilities Fine and gross motor coordination difficulties, functional mobility, Yes No or strength and endurance issues affecting educational performance.
Occupational Therapy assessment 4/29/2014
Updated Occupational Therapy Assessment (fine motor, sensory, executive functioning, and organization)
Cove Occupational Therapist
Appendix A - 4 Advocacy for Speech/Language Evaluations and Services
Appendix B
b. no Assistive Technology evaluation recommendation consistent with the student’s identified needs;
c. no rating scales to measure the student’s attention span;
d. BASC scores, relied upon by the Psychologist but administered by the classroom teacher
were not given, yet it is in the report that the results say “normal”. This is not consistent with teacher reports, where teacher indicates multiple domains in “at risk” category. (protocol at PD 584-9)
5. Speech evaluations conducted throughout the student’s academic history reflect inconsistencies.
1. Schaumburg School District 54, in its 2008 evaluation (PD 156-9) found mild-moderate expressive language impairment in the following areas:
a. Articulation problems (PD 159)
b. Language organization problems (PD 158-9) c. Provided 60 mpw direct speech language therapy ( PD 125)
2. The District’s Speech Language evaluation dated 1/9/09 (PD 149-50)
a. reports “zero” (emphasis added) articulation problems,
b. provided “only” (emphasis added) 15 minutes per month (“mpm”) consultative services,
c. provided no assessment of written expression or phonological skills.
3. A speech report dated 1/19/09 from the University of Chicago, found the student to possess a
“moderately impaired swallowing function.” (PD 283)
4. A 2010 District Speech Language evaluation (PD 145-7) found:
a. articulation errors described as “mild” despite a standard score of 40 which is 3 standard deviations below the mean;
b. weakness in phonology; c. d. IEP provides for:
i. 30 mpw direct speech;
ii. 15 mpm consultative service; PD 028
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -1
iii. while next year PD 145-6 found 40 SS – commensurate with a severe-profound level;.
e. no assessment of written language;
f. no assessment of phonological skills;
6. No assessment by an occupational therapist appears to have been conducted despite psychological reports of weakness in writing and problems in organization and attention (PD 142) 7. No assessment for assistive technology has been conducted by the District, despite a showing of significant academic delays and reports of weakness in writing as evidenced by both the 2/25/09 Psychological Report and the Special Psychological Reports. (PD 142-3 & SD 167 and PD 136-137 & SD SD 53) 8. The District has not undertaken a full and complete evaluation of the student and has not made an “eligibility determination” on a timely basis given its knowledge of the student’s attendance problems and his severe emotional disturbances and hospitalizations.
a. A domain meeting held on 9/25/09 at Shoop Elementary School; (PD 115-117) b. An IEP meeting to review evaluations was not convened until 4/2/09; (PD 52) c. District psychological evaluations conducted on behalf of the student omitted the following
assessments: i. academic skills in areas of phonological and decoding skills – The District’s psychologist
report of 1/20/10 (PD 136) states that the student. “has difficulty using phonetic rules to decode unfamiliar works. He seemed to lack knowledge of phonetic rules…”. (PD 137)
ii. the lack of use of tests such as, Conors, Vineland, and/or BASC to assess
functional/developmental delays; iii. the lack of full cognitive testing, such as the WISC IV to assess processing speed;
iv. the absence of a written expression assessment, KTEA II, due to “time constraints,”
according to testimony given by the District’s school psychologist Cynthia Rene Christian.
9. The District has not provided related services in the areas of psychological, nursing and social work services with sufficient intensity and duration:
i. No psychological services appear to be offered in any of the District’s proposed IEP’s originating at Shoop Elementary in 2008, Wentworth in 2009 and Parker in 2009-10;
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -2
ii. Social work services were not offered in the 2008-9 school year until April 9, 2009. (PD 052, 067) In fact, there appears that before that time, no IEP was in effect. From April to June 2009, social work services were offered at 15 mpw. (PD 067) The current IEP, 2/24/2010, offers no direct social work services, only 30 minutes per month “(mpm”) consultative service to general education and special education teachers. (PD 028) The student’s treating psychiatrist, Dr. Brown, recommended regular support and access to a social worker and or psychologist. Testimony provided at the hearing by therapists at Beacon Therapeutic Day School, Mary Atchison and Natalie Fitzgerald also recommended regular support from a counselor at school.
iii. Three school nurses gave testimony at the hearing: Ms. Jeanette Dennard, Ms. Ann
Freirson and Ms.Freida Cynthia Gault-Taylor. All three testified to having minimal contact with the student. Ms. Gault Taylor testified having the most familiarity, but only on a consultative basis. It was the consensus that the School Nurse was the pivotal contact person when it came to implementing the Emergency Asthma Plan developed for the student. All agreed the student’s medical concerns could be addressed in the regular school setting. Ms. Gault-Taylor admitted that no other back up plan should a nurse was in place other than calling “911” should he have a medical problem on a day when a school nurse is not assigned to the school. Ms. Gault-Taylor recommended consultative nursing services “only” (emphasis added) for the student. (SD 62)
10. The District has not undertaken the development of an adequate functional behavior analysis and behavior intervention plan (“FBA/BIP) for the student in a timely fashion:
i. No FBA/BIP was listed in the previously developed 504 Plan of 11/17/08; ii. A FBA/BIP was provided for in April 2, 2009 IEP however, the record lacks any
evidence of anecdotal or other outcome measures called for in the BIP (PD 077)
Dr. Charlene Brown, the student’s treating psychiatrist, testified on day 5 of the hearing that lack of behavior outbursts at school in the past two months is not an assurance that behavioral problems have ended, especially in light of the student’s diagnosis of bi-polar disorder which carries a long term risk of mood dysregulation 11. The District was slow in developing appropriate modifications and accommodations to address the student’s multiple medical needs. The Asthma action plan incorporated into the 11/17/08 504 Plan developed while student attending Shoop elementary school (PD 102, at 108-112 & SD 143) was created after an emergency arose and the student was taken by ambulance to hospital from school This was supported by the testimony of Lisa Marie Moreno, Principal on day 1 of the hearing and the Parent on day 5 of the hearing. The Asthma action plan was left off of the 2/17/10 IEP developed at Wentworth school. (PD 013 & SD 41) Modifications/accommodations for swallowing disorder were also left off IEP developed at Wentworth School. (PD 013) 12. The District delayed providing homebound services as requested by the student’s physician, Dr. Raul Wolf of LaRabida Children’s Hospital. No evidence was provided by the District showing that homebound services were provided the student. The administrator of Home/Hospital services, Linda
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -3
Mayster, testified on day 4 of the hearing and could provide no additional clarifying information. She stated she could not print out data in the office computer. The Parent testified that homebound services were offered one day prior to Christmas/Winter break, and that authority had expired after the break. Ms. Mayster stated she did not recall seeing the Medical Referral For Adjustment of Education Program Forms in the Student’s file which are the forms utilized by the District to initiate home/hospital services. (PD 189 & 199) 13. The District has not offered a placement with sufficient structure and support to manage the student’s emotional disturbances:
i. All IEP’s developed for the Student by the District provide for the majority of his time in a
regular education classroom which puts into question whether sufficient structure and individualized attention is provided to address the student’s medical and behavioral problems. The District developed IEP of 4/2/09 states the student “is able to work with one other child in a small group setting.” (PD 066) Dr Brown testified that based on her experience at SEDOL, Lake County Special Ed Coop, she believed the student required a small, structured classroom.
ii. The Parent enrolled her son at Wentworth School in September 2009 and stayed enrolled
through April, 2010 although the parent never sent her son to school due to the fact that the school did not have elevators and her child could not climb stairs to attend classes that were not on the main floor. Wentworth staff obtained the student’s case file on the day parent sought to enroll him. School staff did not offer a classroom at his grade level in a facility that was consistent with his medical restrictions. Testimony of the parent and the Principal of Wentworth school verified that the student was offered placement in a third grade class room although he was a 4th grade student.
iii. The student was placed at Parker School after a special evaluation was conducted by the
District’s school psychologist and an IEP team convened. The Principal declined to accept the student at the initial referral because the IEP lacked information regarding the asthma action plan and swallowing disorder. The IEP team met at resolution session and agreed not to accept the student for enrollment, pending more information on medical needs. The student was enrolled with the addition of the elements of the 4/2/09 IEP from Shoop School that had been omitted from the Wentworth IEP of 2/24/10 (compare amended IEP (PD 1-12) with Shoop IEP of 4/2/09 at PD 58-63 and PD 77-78). The case manager, Zaneta Lane at Parker School, testified on day 2 of the hearing that she could not state that the current placement was appropriate for the student. Ms. Lane also testified that she was his special education teacher and although the student’s IEP calls for 200 mpw of support from a special education teacher (PD 28) (half in resource room and half in regular education classroom) she admits that she had not been providing special education instruction because of a schedule conflict.
14. The student’s IEP’s for the 2008-9 and 2009-10 school years:
i. Included statements of present levels of performance that do not accurately and objectively state the student’s skills and functional levels;
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -4
(a) Reading goal in 4/2/09 IEP states that the student has difficulty decoding due to his
weaknesses in visual scanning. (PD 064) Visual scanning is noted as a weakness in the psychological report at (PD 143), but no objective data reported.
(b) Reading goal in 2/24/10 IEP (PD 024) states that the student “knows all the letter sound
relationships.” The District’s psychologist report of 1/20/10 (PD 136) repeats the phrase quoted above, and also states that the student “has difficulty using phonetic rules to decode unfamiliar works. He seemed to lack knowledge of phonetic rules…”. (PD 137).
ii. Provides goal statements that are vague and not measurable, and where the goals set an
increase in skill level, the goal is not commensurate with the student’s potential for development. Reading goals for 4/2/09 IEP (PD 064) and 2/24/10 IEP (PD 024) do not reference objective reading levels that can be compared to the student’s present level of performance;
iii. Fail to address attention and organizational limitations of the student. The
modifications/accommodations do not reference monitoring, pre-teaching, chunking, and other strategies for monitoring and improving functional performance in the classroom that may be affected by attention and organizational deficits;
iv. Fail to identify what methodology will be used to remediate student’s reading and math
skills. None are noted in the respective IEP’s; v. Provides for an inadequate level of related services in Speech language; services are
authorized at 30 minutes per week, but should be at least 60 minutes per week and additional consultative time with staff for a child with significantly depressed receptive language skills and impaired swallowing function;
(a) SD 54 created an IEP with 60 mpw of direct speech services in 2007-8 school year (PD
125& SD 99), based on findings that the student possesses “moderate deficits with his language organization, which includes auditory comprehension, following auditory directions, and verbal problem solving.” (PD 159)
(b) Despite documentation of a swallowing disorder over the last two years, no remedial
support from a speech pathologist was provided other than “consultative.” Ms. Caroll Sher, a speech pathologist working at LaRabida Children’s Hospital “Feeding Clinic” testified that school speech pathologist has a role in remediating swallow disorders. Ms. Margaret Kane, speech/pathologist at Parker, admitted in her testimony that such a remedial role for school speech pathologist was appropriate.
vi. Fails to offer direct psychological and social work services, despite evidence of poor
social interaction by the student. Two staff members of Beacon Therapeutic Day School and Dr. Brown testified regarding the need for social work and/or psychological support.
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -5
vii. Fails to offer appropriate occupational therapy (“OT”) services to address attention, organizational and executive functioning difficulties. No OT services have been offered. Additionally, the student’s teacher reports of weakness in writing support that the student needs an OT assessment to rule out whether he has mechanical difficulties in writing.
viii Fails to provide support for use of assistive technology (“AT”). No AT services were
offered. Testimony provided by the various case managers at Shoop/Parker, could not recall any discussion concerning an AT need at respective IEP meetings.
ix. Fails to offer extended school year (“ESY”) services. No ESY services have been
offered. The student’s case managers testified that no evidence of regression/recoupment problems were apparent, which, standing alone, should not be sufficient to rule out ESY under any circumstances of this case; (January 3, 2005 memo from Rene Grant-Mitchell, Chief Specialized Services Officer to Principals and Case Managers on the subject of Extended School Year). The memo lists other factors, which would apply to the student, including “behavioral need, particularly the need for highly structure programming to maintain behavioral controls established during the previous school year; areas of learning crucial to student’s attainment of self-sufficiency and independence”.
15. The District’s shortcomings in following procedural safeguards have given rise to the denial of the student’s right to a free and appropriate education:
i. The District did not secure and implement the student’s IEP from the previous school district of residence in the 2007-8 school year. Shoop case manager, Regina Ross Ude, on day 1 of the hearing, testified that she could not recall when the Schaumburg School District 54 IEP (PD 118) was received and whether it was reviewed and implemented. Progress notes of related service provider show “no IEP” in September, 2008. (PD 551) The District did not develop an IEP until 4/2/09. (PD 052)
ii. Failure by the District to provide accurate and timely progress reports during the 2008-9
school year. The Social Worker’s quarterly progress report of April, 2009 is the only progress report provided through Pre-Hearing and Hearing Disclosure and incorporated into the Parent’s evidence document binder. (PD 172)
iii. Failure by the District to provide school records within 15 business days of receipt of a
written request. (1) The following items were requested in a formal motion filed on March 26, 2010:
(a) email correspondence – the letter requesting records lists 18 District staff who were
requested to be asked to search for email and other correspondence;
(b) IMPACT records for attendance and grades, discipline and incident reports for past three years;
(c) related service providers progress notes;
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -6
(d) IEP quarterly progress reports; (e) written denial of requests for homebound services.
(2) Progress notes have been produced by the District in incomplete form – some reports
omit narrative portion, other reports omit name of provider, a process which even though presumably unintentional on the part of the District’s attorney, continued throughout the course of the hearing as testimony was elicited by District employee’s called to testify at the hearing.
(3) Three incident reports, printed out in early May, 2010, were produced after the close of
testimony which prevented the Parent from examining school staff about the reports. (4) It is particularly noteworthy that no email messages have been produced, with 18 District
staff involved with the student from three separate schools, central office and regional offices: (a) School Nurse Freida Cynthia Gault-Taylor testified on day 3 of the 5 hearing that she
had found a few emails but none were provided to the Parent.
Burden of Proof
The parents have the burden of proof as they filed the due process complaint. Schaffer v. Weast, 126 S.Ct. 528 (2005). Under Illinois law, the school district must provide evidence that the special education needs of the child have been appropriately identified and that the special educational program and related services proposed to meet the needs of the child are adequate, appropriate and available. 105 ILCS 14-8.02a(g).
Discussion and Conclusions of Law Failure to provide the student with a Free and Appropriate Public Education (FAPE) by the District from September 5, 2008 to the present
Determining whether a student has received a FAPE begins with the two-prong analysis set out in Bd. Of Educ. Of Hendrick Hudson Central Sch. Dist. V. Rowley, 458 U.S. 176 (1982) (“Rowley”). First, the district must comply with IDEA’s statutory procedures; second, it must develop an IEP reasonably calculated to enable the student to benefit from the special education and related services. Once the school district has met these two requirement, the courts cannot require more; the purpose of IDEA is to ‘open the door of public education’ to [disabled] children, not to educate a [disabled] child to his/her highest potential. Board of Ed. Of Murphysboro Community Unit School Dist. No. 186 v. Illinois State Board of Educ. 41 F.3d 1162, 1166. (7th Cir. 1994).
The student is not entitled to the "best" education. Rowley, 458 U.S. at 198, 200-01. Nor may parents specify what methodology must be used with their children. Lachman v. ISBE, 852 F.2d 290, 296 (7th Cir. 1988). However, the student is fundamentally guaranteed a FAPE.
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -7
A. Failure to conduct timely and adequate assessments of all areas of potential disabilities, with the result that the student’s educational program did not address, or addressed inadequately emotional/behavioral difficulties.
An evaluation of the student is the mandatory first step in the provision of special education and
related services to a student with a disability. School districts are required to abide with procedures to ensure the evaluation is legally compliant with the requirements of the IDEA. See 34 CFR 300.301 (a); 300.305; 300.306. It is the responsibility of the "state educational agency, other State agency, or local educational agency" to conduct a "full and individual" evaluation of the student. 20 USC 1414 (a)(1)(A). By definition a free appropriate education means at no cost to the parents. See 34 CFR 300.17; see also Rowley, 458 U.S. at 188. It is accordingly neither the parents' responsibility to obtain or to fund any evaluations delineated in the required domains. Illinois law also requires that the IEP team identify and notify the parents of necessary assessments to evaluate the student each of the eight domains or why none are needed. 23 Ill. Adm. Code 226.110(c)(3)(B).
Every three years, the District is required by law to reevaluate the student with regard to his need for special education. 34 CFR 300. 303; 23 Ill. Adm. Code 226.120. The District’s Psychologist, Cynthia Renee Christian, conducted a psychological evaluation on 2/25/09. (PD142) This date appears to raise the issue of timeliness of conducting the evaluation as per the 1/29/10 IEP and the reference date of “Most Recent Eligibility IEP 11/15/06)”. (PD 82) Ms. Christian, in her report, summarized her findings as follows: “This is an initial evaluation of an 8 year, 8 month old student who currently receives speech/language services. The referral was initiated due to child receiving a psychiatric diagnosis and exhibiting some maladaptive behavior at school as well as having a myriad of health issues. Current cognitive measures reflect low average abilities on the WISC IV, with verbal measures stronger than performance skills Achievements reflect delays for language arts and math involving word problems.” (PD 144)
The Psychological Evaluation dated 2/25/09 did not contain the following: writing assessment despite teacher reports indicating need; Assistive Technology evaluation recommended consistent with the student’s identified needs; rating scales to measure the student’s attention span; BASC scores, relied upon by the Psychologist but administered by the classroom teacher were not given, yet it is in the report that the results say “normal”. This is not consistent with teacher reports, where teacher indicates multiple domains in “at risk” category. (protocol at PD 584-9).
The District’s Speech Language evaluation dated 1/9/09 (PD 149-50), reports “zero” (emphasis added) articulation problems; provided “only” (emphasis added) 15 mpm consultative services; provided no assessment of written expression or phonological skills.
1. A speech report dated 1/19/09 from the University of Chicago, found that the student to possess
a “moderately impaired swallowing function.” (PD 283)
2. A 2010 District Speech Language evaluation (PD 145-7) found articulation errors described as “mild” despite a standard score of 40 which is 3 standard deviations below the mean; weakness in phonology; an IEP provides for 30 mpw direct speech; 15 mpm consultative service PD 028; while next year PD 145-6 found 40 SS – commensurate with a severe-profound level; no assessment of written language; no assessment of phonological skills
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -8
No assessment by an occupational therapist appears to have been conducted despite psychological
reports of the student’s weakness in writing and problems in organization and attention. (PD 142) conducted by the District, despite a showing of significant academic delays and reports of the student’s weakness in writing as evidenced by both 2/25/09 Psychological Report and Special Psychological Reports (PD 142-3 and PD 136-137) The lack of adequate and/or omitted assessments on the part of a School District justifies the ordering of independent educational evaluations to provide better insight into a student’s learning. Independent School District No. 70, Hibbling Schools v. J.T., 45 IDELR 92, 106 LRP 12718, (U.S. Dist. Ct. Minn.) In the instant case and by the District’s own school psychologist, Ms. Boyle, “the student lags in reading and mathematics.” Ms. Boyle also identified difficulty in correlating the effect of the student’s absenteeism with his academic gain. These factors, along with the above noted omissions in other areas of assessment, clearly establish the need for conducting independent evaluations to be provided at public expense.
Based upon the testimony and evidence produced at hearing, the parent has met her burden of proof regarding this issue.
B. Failure to conduct a full individual evaluation and make an eligibility determination on a
timely basis in violation of specific “child find” provisions, given knowledge of the student’s attendance problems and his severe emotional disturbances and hospitalizations
The District convened a domain meeting on 9/25/09 at Shoop Elementary School (PD 115-117). An
IEP meeting to review evaluations was not convened until 4/2/09 (PD 52) District psychological evaluations conducted on behalf of the student omitted the following assessments:
a. academic skills in areas of phonological and decoding skills – The District’s psychologist
report of 1/20/10 (PD 136) states that the student. “has difficulty using phonetic rules to decode unfamiliar works. He seemed to lack knowledge of phonetic rules…”. (PD 137)
b. the lack of use of tests such as, Conors, Vineland, and/or BASC to assess functional/developmental delays,
c. the lack of full cognitive testing, such as the WISC IV to assess processing speed,
d. the absence of a written expression assessment, KTEA II, due to “time constraints,” according to testimony given by the District’s school psychologist Cynthia Rene Christian.
Given the incomplete nature of the assessments conducted, IEE’s are appropriate at public expense.
Based upon the testimony and evidence produced at hearing, the parent has met her burden of proof regarding this issue.
C. Failure to provide essential related services in the areas of psychological, nursing and social work services with sufficient intensity and duration
ISBE 2010-0317 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx
Appendix C -9
7
IDEA requires a school district to allow parents or their representatives to inspect and review records “without unnecessary delay and before any meeting regarding an IEP, or any hearing…” 34 CFR §300.613(a). With respect to procedural violations of IDEA, only “procedural inadequacies that result in the loss of educational opportunity constitute a denial of FAPE.” Evanston Community Consol. School Dist. No. 65 v. Michael M., 356 F. 3d 798, 804 (7th Cir. 2004); Board of Ed. Of Township High School District No. 211 v. Michael R., 2005 WL 2008919 (N.D. Ill. 2005). IDEA-2004 which became effective on July 1, 2005, also requires that, where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies: (I) impede the child’s right to a FAPE; (II) significantly impede the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE; or (III) cause a deprivation of educational benefits. 34 CFR §300.513(a)(2)(ii).
Up to and including during the hearing, records were identified which the school did not provide to the Parent. This impeded the Parent’s ability to participate both in the decision-making process regarding the provision of FAPE to the Student and impeded her ability to participate in the process and present evidence at hearing. This process would include the resolution/settlement process where having such records might have assisted Parent in demonstrating to the District why she believed that the Student was being denied a FAPE. Thus, the Parent has met her burden in proving a procedural violation regarding denial of FAPE. 34 CFR §300.513(a)(2)(ii).
II. The District failed to provide a comprehensive evaluation through the present: including psychological, cognitive, academics, speech language, auditory processing, visual processing-fine, fine motor, gross motor skills, AT, sensory, functional behavior assessment, attention, executive functioning, adaptive, and other areas as noted in the IEEs. With respect to its request for a due process hearing in response to Parent’s request for an IEE, the District has a burden of proof for the appropriateness of its evaluation. 105 ILCS 5/14-8.02(b). IDEA defines an evaluation as procedures mandated to determine whether a child has a disability and the nature and the extent of the special education and related services that a child needs. 34 CFR § 300.15. Based on IDEA requirements, the evaluation materials include those tailored to assess specific areas of educational need including that the district “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information.” 34 CFR §300.304 (c)(2). IDEA requires that a full and individual evaluation include all components that are needed to identify a student’s disability and educational needs including related services. 34 CFR § 300.301(a). The Illinois School Code sets the standard of “a carefully completed case study.” 105 ILCS 5/14-8.02(b). The District has failed to meet its burden of proving the appropriateness of its evaluation. The District did a number of evaluations when the Student first came to the school in January 2013 because his three-year re evaluation was due. Due to his behavior problems it was difficult to complete testing. A number of school staff testified that the use of certain words produced behavioral problems. The Student would bang on the desk, cry, fall to the floor, and scream. Based on Parent’s testimony, the issue of non-preferred
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 1
8
words began when the Student transferred from a suburban school. At the suburban school the Student had a teacher trained in Applied Behavior Analysis (ABA) who taught the Student to use phrases such as, “I want this, please” and to use the word, “yes.” When he transferred to a public school his teacher felt he should learn less rigid phrasing and tried to dissuade him from using certain words. The Student developed an aversion to non-preferred words. Parent began to notice a problem at home. Parent testified that she alerted school personnel that the testing would likely not get accurate results because the Student was “unhappy.” She recommended postponing the evaluations but the school decided to proceed. She also contacted the District’s Specialized Services Administrator (SSA) by email on January 15, 2013, to inform him that she did not think the school, “will be able (to) do accurate evaluations of him at this time.” PD 396. He replied on the same day that he believed the evaluations should proceed, even though, he wrote, it can be noted, “that the results may not be completely reflective of his true ability due to his emotional state.” PD 394. The record reflects that after these initial evaluations the school did not do any further evaluations even though the evaluators were not able to conduct full evaluations due to his behavior. His behaviors had abated somewhat after the summer of 2013 when he had attended ESY and the school could have considered additional testing. The Parent’s outside evaluators were able to conduct more successful evaluations, partly because of these changes in his behavior starting at the beginning of the 2013-2014 school year. The outside evaluations were far more detailed than the school evaluations-- involving testing, findings, and recommendations. PRIVATE EVALUATIONS All four evaluators found deficits and made recommendations, including goals for the IEP. The information on their testimony regarding the IEPs is reviewed in the third issue regarding the IEPs. The four evaluators testified at the hearing and their testimony about their findings and recommendations are reviewed below. The evaluators were credible and persuasive. (1) Speech/Language and Assistive Technology Evaluation Dr. Jan Marsden-Johnson has been a speech/language pathologist since 1984 and obtained a PhD specialization in augmentative communication and child language in 1990. She teaches assistive technology use to graduate students in the Department of Human Development and Disabilities, to adapt curriculum for special needs kids. Her curriculum vitae is included in the exhibits, PD 645-649, as is her report. PD 635-643. Parent contacted her for an evaluation of the Student which she conducted November 29, 2013, and an observation which she conducted on February 14, 2014. Prior to the evaluation she reviewed documents Parent provided. In reviewing previous documents, she noted the use of non-preferred words impacted his behaviors. PD 245-247. The use of non-preferred words provoked behaviors consistently for two years and created
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 2
9
anxiety. Dr. Marsden-Johnson believes that there is a lot more going on than word triggers. There was also a death in the family and transition issues. Although in the evaluation she sometimes referred to him by his legal, non-preferred name, he did not mind. He was in a good mood, cooperative, and took short breaks at his own request. Dr. Marsden-Johnson determined that the testing results are a valid indicator of his achievements. PD 636. She found that the Student’s deficit areas are extensive and require goals for auditory comprehension. Seeing his progress from the November evaluation to the February observation and seeing him in a class that could be a good place for him she believes that the school can make the current class work for him, but he needs a lot of services. He needs an increase in speech and language and to be compensated for lack of services in the past to make progress. During her evaluation, she administered the Peabody Picture Vocabulary Test IV-B (PPVT-IV B). PD 636. He achieved a standard score of 91 and ranked in the 27th percentile, which indicates his receptive vocabulary is in the average range. She described the Student as quick and deliberate, giving appropriate answers. His expressive vocabulary, where a child is shown a picture and asked to name it, in contrast, reflected a standard score of 86, and a ranking in the 18th percentile which is below the average range. On responses, his expressive vocabulary is splintered, which is typical of a child with autism but his single word vocabulary is a strength. Dr. Marsden-Johnson also administered the Test of Auditory Perceptual Skills-3 (TAPS-3) Taps 3. PD 637. This test looks at the ability to do three types of auditory processing: discrimination, memory, and cohesion. PD 637. The test is broken into three groups: the first is word discrimination, including phonological segmentation, and phonological blending. He tested in the average/high average range in ability to discriminate. Second is the memory test which looks at numbers and sentences. His memory for numbers is in the average range but for sentences there is a below average discrepancy between the 37th and 9th percentile. His memory is rote skill, rather than processing and understanding what he is hearing. Processing words is more difficult and putting words in sentences is much more challenging for him. Dr. Marsden-Johnson testified that this is notable because rote memory is one of his skills but he does not always understand what he is repeating. The third group of the test is looking at auditory comprehension and reasoning, where the subject is asked to remember and answer questions, to dissect information and explain it. Auditory reasoning, explained Dr. Marsden-Johnson, involves understanding inference – i.e. the subject must understand a question regarding having a weekly birthday party and being able to answer by inference: a person cannot have a birthday party every week because a person has a birthday only once a year. His standard scores were phonologic - 99, which is average; memory - 86; cohesion (auditory comprehension and reasoning) - 60, which is significantly impaired, reflecting that he has vocabulary but cannot always put it to use, especially when hearing something for the first time. PD 637.
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 3
10
The Student was also given the Clinical Evaluation of Language Fundamentals 5 (CELF 5), which looks at language from different parts, in a global way. PD 638. Based on the testing Dr. Marsden-Johnson found that the Student has no understanding of idioms, i.e. “it’s raining cats and dogs.” He takes language as having a very concrete meaning. His core language score is 73, reflecting that his generalized language skills are significantly below average (4th percentile). His receptive language score is 75, which is better than his expressive language score of 69 (with a percentile of 2) but both are significantly impaired. Language content and language memory index scores are different combinations of tests given. With respect to reading comprehension, the Student did not understand because he could not read enough to understand questions. His scores in CELF 5 show a range of 37th to first percentile, some skills in the average range and some at the very lowest range. The Student could not pull deficits to average, even with his splintered skills. He demonstrated a significant language deficit. He had a standard score of 73 and anything less than 85 is below average. His scores on formulated sentences, where a picture prompt is given and the subject must use a targeted word to describe the picture, reflected difficulty. This is something new and not practiced and the picture is unrelated to the sentence. With respect to understanding paragraphs, he did not achieve a score, meaning that he got nothing right. He could answer no questions about the paragraph which was read to him. The Student did not understand how words go together, i.e. apples, bananas. His understanding of flexibility within language use is poor because his language is rigid. He showed errors with syntax and grammar. His abilities are deceptive. Dr. Marsden-Johnson explained that percentile rank is a number between 1 and 100. 100 is the best and one is last. If the Student is at 25 he is in the middle Between 16 and 85 is average; below 16 is significantly below average. His scores show he is at 1 or less or 9, which is at the very bottom end of the bell curve, and reflects a significant language deficit. The Student had brought two trains to the evaluation and when he was stressed by writing four sentences and he had his trains talking to each other. The more complex the task, the more stressed he was, and the more the trains talked to each other. Dr. Marsden –Johnson could understand him. A sing song pattern is the only way he knows how to say something. For AT there is no standardized test to give. It is an individual test because every child has different needs. Dr. Marsden Johnson did the speech and language testing first so she knew his deficits. She was then looking for ways to provide technology to make the more challenging tasks less challenging and adapt the material so that it is available. His spelling and phonics skills are adequate. On a practical basis he can read, write, spell, manage simple structured writing without AT. On a practical level he does not need AT at school to do some tasks. He could complete spelling tests; use pencil, paper, workbook; his writing is legible; he can read without support. Dr. Marsden-Johnson testified that this means looking at AT for a different purpose than for students who cannot do those things. The Student has difficulty with longer, more complex texts and
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 4
11
cannot process them, even though he can read the words. If he is asked what he has read, he cannot relay it, which causes him frustration. In the assessment, he could copy text but he “baled” when asked to write a story. The goal for AT is to give him strategies to make tasks less unpleasant. His AT is more complex because he does not have to use it all the time but it should be made available when he needs it. He will not always know when he needs it and thus he needs a cohesive presentation on AT across areas. He lacks the skill to find main ideas and process text, so his language skills impact comprehension. The use of AT will lessen the disparity. She tried several computer programs. He liked using the computer. The most successful programs he used were Write: Outloud 6, as well as Co:Writer 6. He was also particularly interested in word banks. During her hour-long observation of the Student in his school autism classroom in February (PD 640), Dr. Marsden-Johnson noted she was pleasantly surprised at how much better he looked than at the evaluation in November. He had no “stim” things, i.e., trains. He was interacting with peers and doing well. His progress is notable at school. She was with the school speech pathologist who was with him for the 30 mpw of speech and language. The school speech pathologist said the Student has been a different person this year, even though he still “has moments,” but overall he is appropriate and functioning well in class. During the observation, he complied with requests to do his work, completed tasks, was able to independently transition between activities, and had appropriate interaction with peers, based on their skill level. He enjoyed being with peers. PD 640. Dr. Marsden-Johnson noted he was able to complete a reading assignment of a paragraph and had the option of clicking so he could listen again. He had to answer three questions and he did, with the use of the technology. Screen Reading will assist him, giving him a sense of control. He can listen and repeat, and this is a good tool to help him expand his rigid way of looking at text. She had a follow up conversation with his classroom teacher and the speech pathologist who confirmed that the Student has access to Raz Kids and Capstone computer programs that provide screen reading. PD 640,1. There was screen reading technology but she did not see the Student using these programs, although the teacher and pathologist stated he uses them “independently with success.” PD 641. With Capstone he can do some writing; he uses pencil and paper for short tasks. They also reported that when the Student selects preferred topics he writes lengthier stories. They both expressed interest in learning more. Dr. Marsden-Johnson testified that these programs are not enough because they are packaged programs--rote, not flexible. Based on her assessment, he needs screen reading material. The Student likes having things read to him. The screen reading technology would give him access to all material, past his level, especially higher comprehension. Additionally, he could use Bookshare.org, which comes with screen reading technology and can be accessed through a computer. She did not ask staff if they had screen reading. Word prediction program, Write: Outloud, and Screenwriter 6; are not packaged programs. Write: Outloud and Co Writer 6 allow him to write about new topics, as opposed to Raz Kids and Capstone. The class had computers and an ipad. The Student likes to use the computer.
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 5
12
In her Summary and Recommendations, she noted his strengths and weaknesses. His test scores show impairment. He demonstrates significant deficits with written language, which is limited. He requires 60 mpw to address deficits and he should continue in a small group social skills type class because he needs that. PD 642. He is getting 30 mpw of speech (PD 641) which she finds inadequate. Dr. Marsden-Johnson recommends: use of Write: Outloud and Co Write 6, word banks, structured writing and prompts. These programs require training and knowledge of options and a Bookshare.org subscription; there are free screen reading programs with Bookshare. The Student should have the option of listening to text to aid comprehension. She also recommends the Start to Finish series of books by Don Johnson. Additionally, she testified that he will need a personal laptop because reading and writing programs should move with him and he should have it at home too. She was impressed in his class at how much he tried to engage his peers. She recommends an additional 60 mpw of AT because AT must be delivered in a careful way. AT support should be provided in as unobtrusive way as possible; he should have his supports with him and, if they are needed for mainstream curriculum, they can be put into his laptop. The curriculum should be changing and increasing in complexity and must be integrated well. These AT minutes should not be taken from something else. These minutes should be dedicated to getting the Student and staff trained. The biggest issue, according to Dr. Marsden-Johnson, is training because implementation is critical. The technology must be integrated into the curriculum. Comparing the Student to his peers in class, he is functioning in the middle. PD 643. Dr. Marsden-Johnson believes that he is in a good classroom and needs more support. With the necessary supports in place he can achieve and be successful. The older a child gets the harder it is to get language in place. The Student is in a good emotional place. His teacher likes him. The school speech pathologist likes him. Dr. Marsden-Johnson wants to close the gap because the Student is far behind, based on language skills, which are very impaired. Dr. Marsden-Johnson assessed the Student’s skills as limited. He looks like he can do more than he can. If someone is reading below the 1 percentile, what you read, write, and learn, are limited, and below age limit. The Student does not understand what he hears. This would limit his ability to function in a regular class. Because he is now in a place where he can interact with peers, he could be included. (2)Neuropsychological and Educational Evaluation Dr. Jacqueline Rea is a pediatric neuropsychologist who holds a psychology license in Illinois. Her curriculum vitae is included in the documents (PD 632-34) as is her September 17, 2013, report which includes a school observation (PD 613-28) and an evaluation addendum, completed January 21, 2014, after she received the special ed teacher rating scale. PD 629-30. The special ed teacher indicated that she was “most concerned about (the Student’s) unpredictable outbursts, use of made up words and
ISBE 2014-0157 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appdendix D - 6
Illinois State Board of Education 2/11/2013 Due Process System Page 33
33
Independent Education Evaluations The parents had the student evaluated by three private clinicians. Dr. F.’s lengthy resume has been entered into evidence and so will not be reviewed here except to note that she is a licensed audiologist in Illinois and has a certificate of clinical competence in audiology. PD 341-353. She evaluated the student’s central auditory functioning on November 8, 2012. According to Dr. F., an evaluation for central auditory processing disorder (CAPD) assess how well the brain uses information that is sent by the ear to the brain: “what you do with what you hear.” The auditory tests she uses have no visual cues and are not timed. Based on her evaluation, she determined that the student has normal peripheral hearing sensitivity in both ears and age appropriate binaural and temporal processing. PD 330. On the CAPD tests, his scores were within normal limits on five tests and “below normal limits” on two tests. PD 329. Based on these results, Dr. F. determined that the student has CAPD and in particular, a deficit in frequency discrimination skills that “places him at risk for listening difficulties when noise is present” and ‘”when extra visual and/or contextual cues are not are not available.” PD 330. Dr. F. also reviewed the student’s records. She is not familiar with any research linking CAPD and cerebral palsy. However, she opined that cerebral palsy impacts one’s neurological functioning, which then has a general impact on the auditory system. According to Dr. F., the student’s history of ear problems and the mother’s report that he failed a hearing test at age two are “red flags” for the possibility of CAPD.16 Other “red flags” that she noted are reports that the student shows fatigue and frustration in school, has slower auditory processing, and has difficulty following multi-step directions. She opined that he should have been referred for a CAPD evaluation six years ago. Dr. F. testified that IQ is not relevant to CAPD because auditory processing is a sensory skill. Although she opined that untreated CAPD could make a person “look less bright” than s/he actually is and that un-remediated CAPD could result in a lowered IQ score, she did not testify that such is the case with this student. And, while CAPD could be co-morbid with several other diagnoses, she said it is not useful now to try to determine what part of this student’s difficulties are due to CAPD or a learning disability. The focus should be on providing the intervention he needs to address his frequency discrimination deficit. CAPD treatment utilizes both direct aural rehabilitation, which can be provided by a speech-language pathologist, and environmental modifications and educational accommodations. PD 330-331. Specific recommendations for aural rehabilitation and suggested IEP goals and benchmarks are included in Dr. F.’s 16 It is noted for the record that a report from the Rehabilitation of Chicago states that the parent reported that “newborn hearing screen revealed hearing loss in L ear; however, subsequent testing revealed hearing WFL.” PD 289.
2013-0045 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appendix E - 1
Illinois State Board of Education 2/11/2013 Due Process System Page 34
34
report. PD 335-339. She also recommended numerous educational accommodations and specific recommendations for classroom teachers. PD 332, 333. Dr. F. provided an itemized bill for her evaluation, which reflects a total amount due of $600.00. PD 340. The undersigned finds Dr. F.’s testimony credible. Her testimony was precise and concise. She clearly stated her evaluation results and how those results impact this student and offered specific recommendations for him. Ms. D. testified that Dr. F.’s recommendations could easily be implemented in the student’s educational program. Importantly, she noted that many of them are already in place. She expressed a concern about books on tape because the student has auditory fatigue, which could be increased by additional auditory stimulation. Dr. M-J conducted an independent speech/language evaluation and assistive technology evaluation of the student in November 2012. PD 358. Her extensive resume has been entered into evidence and thus is not reviewed here. PD 368-372. She clearly has the education, training, credentials, and expertise to conduct speech/language and assistive technology evaluations. She reviewed some of the student’s records, including his recent IEP, several evaluations, and some other documents. PD 358. She described him as cooperative and “exceptionally polite.” PD 359. Her report notes that he was “quite concrete and literal at times.” Id. In her testimony, she expanded on this by saying that he “could not” consider another person’s point of view. Id. Her report states that he expressed concerns about being bullied at school and lack of understanding by teachers and other students. Id. Dr. M-J’s speech/language evaluation included four different speech language assessments. The Peabody Picture Vocabulary Test IV-B (PPVT-IVB) tests single word receptive vocabulary. Id. The student received a standard score of 87 and a percentile rank of 19, which of which are at the low end of the average range. Id.17 Dr. M-J reported that this was the student’s “best test.” She administered the Expressive Vocabulary Test-2 to assess the student’s single word expressive vocabulary skills. He achieved a standard score of 82 and a percentile rank of 12 on this test. PD 360. Standard scores between 85 and 115 are considered within the average range. Id. The student was unfamiliar with many of the vocabulary items, and the report indicates that he appeared dejected and angry with himself when he was unable to answer a question. Id. 17 A standard score of 100 is considered average and would be at the 50th percentile. One standard deviation is 15 points, and so standard scores between 85 and 115 are within the average range (+/- one standard deviation from the mean). PD 360.
2013-0045 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appendix E - 2
Illinois State Board of Education 2/11/2013 Due Process System Page 35
35
Dr. M-J used the Adolescent Word Test (AWT) to assess the student’s expressive vocabulary and semantic language understanding. PD 361. He received the following scores. Id. Subtest Stnd. Score %ile Rank Association 83 12 Synonyms 81 10 Semantic Absurdities 46 <1 Antonyms 70 2 Definitions 77 6 Flexible Word Use 85 15 Total Test 72 3 Dr. M-J testified that all the student’s scores on this test are well below average, except for his score in Flexible Word Use. She opined that the student’s bullying allegations are related to his poor understanding of language: he perceives a threat even when one is not there. She said that he is “quite literal” and cannot keep up with words or with other children. She opined that this data shows a discrepancy between his understanding of words and the actual meaning of the words. She administered the Test of Auditory Perceptual Skills-3 (TAPS-3) to assess the student’s ability to discriminate, perceive, and process auditory information. PD 360. The student received the following scores: Subtest Scaled Score %ile Word Discrimination 10 50 Phonological Segmentation18 6 9 Phonological Blending 3 1 Number memory Forward 7 16 Backward 9 37 Word memory 5 5 Sentence memory 5 5 Auditory comprehension 10 50 Auditory reasoning 8 25 Stnd. Score Phonological 82 Memory 83 Cohesion 95 Overall 85 There is a variation in the student’s auditory processing skills. PD 360. His ability to discriminate between two words is average, but he has significant 18 During Dr. M-J’s testimony about these scores, she indicated that there was an error in this subtest’s scores. Parents’ counsel provided the correct scores by email. The scores in this decision are correct, and the undersigned has written in the corrected the scores in the parents’ evidence binder at PD 360.
2013-0045 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appendix E - 3
Illinois State Board of Education 2/11/2013 Due Process System Page 36
36
difficulty segmenting phonemes and blending words. Id. He had a very low on the memory subtests and had to work “really really hard” to do the test. His scores in comprehension and reasoning are within the average range. According to Dr. M-J, the student cannot remember everything but with support, he can “get it.” He needs repetition to help him process information. The Test of Written Language 4 (TOWL-4) was administered to assess the student’s written expression and to provide a baseline measure of his abilities without the use of AT. PD 361. The student scored as follows: Id. Scaled Score %ile Rank Vocabulary 5 5 Spelling 6 9 Punctuation 9 37 Logical Sentences 8 25 Sentence Combining 5 5 Contextual Conventions 2 4 Story Composition 2 4 According to Dr. M-J’s report, the student listened to instructions and then used them to improve his scores. PD 362. For example, when he was told that he would only be graded on a target vocabulary word, he did not concern himself with punctuation and lower/upper case letters. Id. Then, when he was told that he would be graded on spelling and punctuation, he more consistently used lower/upper case letters and appropriate punctuation. Id. However, he had difficulty carrying over those skills to writing a story. His story was simplistic and had many grammatical errors. Id. His written language reflects his limited oral language skills. Dr. M-J’s evaluation of the student’s AT needs found that he was able to improve his written language by using different AT devices. With the use of AT, the student was able to improve his grammar, spelling, and vocabulary. PD 362. He also used a talking word-processor to work on his reading skills and “enjoyed the independence the program gave him.” Id. Dr. M-J recommended that the student needs a comprehensive AT program that will provide him access to reading materials and writing supports in all his classes. PD 364. Training for the student, staff, and parents is an essential part of the AT program. Id. Recommendations for several AT programs and devices are included in Dr. M-J’s report. PD 365. It is important to note that her report also includes AT supports such as pre-teaching vocabulary, outlines for all written assignments, and a variety of test-taking options. Id. Dr. M-J recommends that the student receive 90 minutes/week of individual and/or small group speech/language services and 90 minutes/week of AT to address his reading and writing deficits and added time for consultation with staff and his family. PD 365. Finally, she recommends compensatory services for 60 minutes/week that focuses on 1:1 instruction in reading, writing,
2013-0045 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appendix E - 4
Illinois State Board of Education 2/11/2013 Due Process System Page 37
37
and auditory processing using computer based AT supports to reinforce curriculum-based goals. PD 366. Finally, she recommends placement in a smaller, more specialized and individualized setting. In response to the hearing officer’s question of whether her recommendations could be implemented in public school, Dr. M-J opined that they could be implemented in a public school but would be “less helpful” than in a private school that could provide a seamless system of support. Dr. M-J provided a comprehensive, thoughtful analysis of the student’s speech/language skills, and the undersigned finds her testimony credible. Ms. D. was asked about the IEE speech evaluation results. She said that her direct services address the student’s oral language deficits. His written language deficits are addressed in the classroom, not in direct speech/language services. She agreed that his difficulties in general grammar, defining words, and vocabulary impact his written language skills. He has difficulty with written language because it requires him synthesize information, which is hard him. The classroom accommodations and learning strategies, such as making a “sloppy copy” and then reviewing it for errors, support his learning in written language. She consults with the student’s regular education teachers on written language issues.
The student received an independent occupational therapy evaluation by Ms. B. As with the preceding IEE evaluators, Ms. B. has extensive education, experience, and certifications in her area of expertise. She holds national board certification and is a registered occupational therapist in Illinois. She works as an OT in school district north of Chicago. Her resume is in the record. PD 441-445. Her evaluation included an interview with the student and mother, classroom observations, and several formal assessments. PD 376, 377. She testified that the tests she gave are common in schools and “well thought of.” Ms. B. conducted an extensive evaluation, including four assessments, several types of observations of the student, classroom observations, and an interview with the student, mother, and school staff. PD 377. The Adolescent/Adult Sensory Profile is a self-report assessment that is administered as a structured interview. PD 379. The student’s sensory scores indicate that he might “prefer a quieter, more predictable environment” and would “thrive” with routines and organization. PD 380. He has difficulty visually finding information in crowded visual fields; prefers to maintain personal boundaries between himself and others; is unsure of his footing on stairways; has difficulty following what people are saying in noisy contexts and needs to ask for repetition; prefers to work on one task at a time; and, has difficulty concentrating in a long class. PD 380-382. Portions of the profile could be used to develop accommodations and modifications to address these sensory difficulties. PD 380, 381. Ms. B. asked the student to produce a writing sample of three to five sentences. PD 382. He wrote very slowly, producing only six words in one
2013-0045 (full text available at https://sec1.isbe.net/sedsinquiry/dueprocessdecisions.aspx)
Appendix E - 5
23 IDELR 56523 LRP 3411
Letter to Fisher
Office of Special Education Programs
December 4, 1995Related Index Numbers185.060 Evaluations, Scope of EvaluationProcedures
390.015 Procedural Safeguards, IndependentEducational Evaluations (IEEs)
26. ASSISTIVE TECHNOLOGYDEVICES/SERVICES
415.003 Related Services, Assistive Technology
Judge / Administrative OfficerThomas Hehir, Director
Case SummaryMust a local school system pay for independent
assistive technology evaluations as they must for
independent educational evaluations?
A public agency must evaluate a student in all
areas of suspected disability, including, if warranted,
whether a student's functional capabilities require the
use of assistive technology devices or services.
Likewise, a parent's right to seek an independent
educational evaluation (IEE) includes an assessment
that will enable an IEP team to determine a student's
needs for assistive technology. The right to an IEE
extends to situations where the school neglects to
evaluate the student for assistive technology needs, as
well as instances where the parent disagrees with the
school's evaluation in that area. Alternatively, a parent
can also request that the school conduct a reevaluation
of the student's need for assistive technology.
Full TextAppearances:
Mr. Joseph E. Fisher
Assistant Commissioner
Division of Special Education
132 Cordell Hull Building
Nashville, Tennessee 37243-0380
Text of ResponseThis is in response to your letter in which you
request clarification of the requirements for
independent educational evaluations (IEE) under Part
B of the Disabilities Education Act (Part B). Please
excuse the delay in issuing our response.
In your letter, you state that it is your office's
understanding that "the requirement to provide [IEEs]
applies only to those evaluation activities related to
the determination of a child's disability/eligibility for
special education and related services." Therefore,
your letter asks:
Must a local school system pay for independent
assistive technology evaluations as they must for
educational evaluations?
Under Part B, a public agency must conduct
timely evaluations of students who are disabled or
who are suspected of having disabilities and are in
need of special education and related services. 34
CFR # 300.121. The term "evaluation" is defined as
"procedures used in accordance with #
300.530-300.534 to determine whether a child has a
disability and the nature and extent of the special
education and related services that the child needs."
34 CFR # 300-500 (emphasis added). The term means
procedures used selectively with an individual child
and does not include basic tests administered to or
procedures used with all children in a school, grade,
or class. Id.
Public agencies are required to provide assistive
technology devices or services to a disabled student if
the participants on a student's individualized
education program (IEP) team determine that the
student needs an assistive technology device or
service in order to receive a free appropriate public
education (FAPE). See 34 CFR # 300.308. Depending
on the individual situations, assistive technology
could be designated special education, a "related
service," or a supplementary aid or service. Id.
Consistent with this responsibility, each public
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 1
Appendix F
agency must ensure that, as part of its Part B
educational evaluation when warranted by the child's
suspected disability, it assesses, in accordance with
the evaluation requirements of 34 CFR # 300.532, the
student's functional capabilities and whether they may
be increased, maintained, or improved through the use
of assistive technology devices or services. 34 CFR
## 300.5 and 300.6. The evaluation should provide
sufficient information to permit the IEP team to
determine whether the student requires assistive
technology devices or services in order to receive
FAPE.
As one of Part B's procedural safeguards, a
parent has the right to an IEE at public expense "if the
parent disagrees with an evaluation obtained by the
public agency." 34 CFR # 300.503(b) (emphasis
added). A parent's right to an IEE, therefore, is
available each time the public agency conducts a Part
B evaluation, including the child's preplacement
evaluation, the triennial reevaluation, or more
frequent reevaluations conducted at the request of the
child's parent or teacher or if conditions warrant. See
34 CFR ## 300.531 and 300.534(b).
If the public agency does not, as part of its
evaluation of the child in all suspected areas of
disability, assess the functional capabilities of the
child as they relate to the need for assistive
technology, the parents have a right to seek at public
expense an independent evaluation if they believe the
evaluation conducted by the agency fails to address
appropriately the child's needs in this area. Thus, the
issue is not the right to an "assistive technology
evaluation." Regardless of the terminology used, if
warranted by the child's suspected disability, an
appropriate Part B evaluation must include an
assessment that will enable the IEP team to determine
whether the child needs assistive technology in order
to receive FAPE.
So also, if the public agency does evaluate the
child's need for assistive technology and the parent
disagrees with the public agency's evaluation, the
parent may seek an independent evaluation at public
expense. In either case, the public agency has the
right to initiate a hearing under # 300.506 to
demonstrate that its evaluation is appropriate. If the
hearing officer determines that the public agency's
evaluation is appropriate, the agency is relieved of its
responsibility to pay for the IEE. 34 CFR #
300.503(b).
In addition to their right to an IEE, the parents
also have the option to ask the public agency to
conduct a reevaluation that assesses the child's
functional capabilities as they relate to the need for
assistive technology. If in response to a parent's
request, the public agency refuses to conduct the
reevaluation, it must provide the child's parents with
prior written notice of its action, including an
explanation of procedural safeguards and the right of
the parents to initiate an impartial due process hearing
if they disagree with the public agency's action. 34
CFR ## 300.504(a)(2) and 300.505.
I hope that the above explanation is helpful. If
we can provide further assistance, please let me know.
Thomas Hehir
Director
Office of Special Education Programs
Regulations Cited34 CFR 300.121
34 CFR 300.500
34 CFR 300.308
34 CFR 300.532
34 CFR 300.5
34 CFR 300.6
34 CFR 300.531
34 CFR 300.534(b)
34 CFR 300.506
34 CFR 300.503(b)
34 CFR 300.504(a)(2)
34 CFR 300.505
#--#
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 2
Appendix F
36 IDELR 153102 LRP 9030
KEVIN T., W.T., and K.T. Plaintiffs, v.ELMHURST COMMUNITY SCHOOL
DIST. NO. 205 and THE ILLINOISSTATE BOARD OF EDUCATION,
Defendants.U.S. District Court, Northern District of
Illinois01 C 0005
March 20, 2002Related Index Numbers410.015 Private School Costs
100.015 Required
100.003 Beyond Age of Entitlement
265.005 Contents of IEP
415.003 Assistive Technology
220.005 Criteria
Judge / Administrative OfficerManning, U.S. District Judge
Related cases reported at 34 IDELR 112 and 34
IDELR 202
Case SummaryThe district failed to review and revise the
student's IEPs even though it was aware of his
academic difficulties. By his senior year, he received
Ds and Fs in his classes. The court noted he possessed
average intellectual potential, but his IQ and academic
achievement scores had dramatically decreased. It
also found the district committed a procedural IDEA
violation by failing to consider the student's need for
assistive technology and waiting until he was 17
before formulating a transition plan. Additionally, the
district failed to follow state law by not including a
statement in the student's IEP explaining why a
statewide assessment test was inappropriate. Finally,
its decision to allow him to graduate was based on his
accumulation of required credits and not on his
progress toward IEP goals and objectives. The court's
remedy for the FAPE violations included
reimbursement for the parents' unilateral private
placement at a therapeutic day school, in addition to
an order directing the district to fund the day school
placement until the student reaches age 22.
Full TextAppearances:
APPEARANCES:
Counsel for Parent: Michael O'Connor
Counsel for District: John G. Foreman
Memorandum and OrderPlaintiffs Kevin T., W.T. and K.T., in their own
capacity and as parents of Kevin, filed this action,
pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. # 1401, et seq.,
appealing the decision of an Independent Hearing
Officer ("IHO") affirming the decision of Defendant
Elmhurst Community School District No. 205 ("the
District") to unilaterally graduate Kevin from high
school against the wishes of Kevin and his parents.1
The present matter comes before this Court on the
parties' cross motions for summary judgment. For the
reasons that follow, Plaintiffs' motion is GRANTED
and the District's motion is DENIED.
Background2
I. Educational HistoryIt is undisputed that Kevin is a person with a
disability under the IDEA. At the time this action was
filed, Kevin was a nineteen-year-old man who
suffered from multiple disabilities -- a learning
disability, an attention deficit hyperactivity disorder,
and a bi-polar disorder. To deal with these maladies,
Kevin takes various psychotropic medications which
in turn make him tired and impair his ability to
concentrate and function at school.
Since age six, the District has provided special
education services to Kevin at a number of different
schools. From the second semester of eighth grade
until the end of eleventh grade, the District placed
Kevin at Glen Oaks, a private therapeutic day school
in DuPage County that specializes in educating
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 1
Appendix G
children with severe learning disabilities and behavior
disorders. While at Glen Oaks, Kevin took some
non-academic courses at York High School ("York"),
a public high school located in the District.
As he entered the twelfth grade, Kevin enrolled
full-time at York for the 1998-99 school year.
Unfortunately, Kevin did not make very much
academic progress at York. He received D's in his
first semester academic classes and F's in the second
semester. The following school year (1999-2000), at
the urging of his parents, the District transferred
Kevin to Acacia Academy ("Acacia"), a therapeutic
day school that specializes in educating students with
severe learning disabilities.
Upon entering Acacia, Kevin tested at the
following levels: (1) reading between the third and
fourth grade level; (2) math between the fourth and
fifth grade level; and (3) writing skills between the
third and fourth grade level. After a successful and
productive 1999-2000 school year at Acacia, Kevin's
academic skills were measured in June 2000 as
follows: (1) reading between the sixth and seventh
grade level; (2) math between the seventh and eighth
grade level; and (3) writing skills between the sixth
and seventh grade level.
Despite Kevin's improved performance at Acacia
and his lack of academic achievement prior to that
time, the District decided to unilaterally graduate
Kevin from high school at the end of the 2000 school
year against the wishes of Kevin and his parents. The
District contends that Kevin should be graduated
because he has completed enough credits to graduate
from high school. Kevin and his parents, however,
assert that Kevin should stay at Acacia at least until
he turns twenty-one. As a result of this disagreement,
Kevin and his parents requested a due process hearing
before an IHO.
II. Procedural HistoryThe IDEA mandates that school districts
"establish and maintain procedures in accordance
with [the IDEA] to assure that children with
disabilities and their parents or guardians are
guaranteed procedural safeguards with respect to the
provision of free appropriate public education by such
agencies." 20 U.S.C. # 1415(a). The IDEA'S
procedural safeguards guarantee that parents are
entitled to an "impartial due process hearing" before a
local educational agency if they object to the
decisions of the local school regarding the education
of their disabled child. 20 U.S.C. # 1415(b)(2). The
parents then may appeal the decision of the local
school to a state educational agency, and then bring a
civil action in state or federal court. 20 U.S.C. #
1415(c), (e)(2).
Here, in May of 2000, Kevin and his parents
requested an administrative due process hearing to
challenge the District's decision to graduate Kevin.
The IHO issued an interim order, pursuant to the "stay
put provision" of the IDEA, directing the District to
continue paying for Kevin's placement at Acadia
during the pendency of the administrative hearing.
Pursuant to this interim order, Kevin started classes at
Acacia at the start of the 2000-01 school year.
On September 5, 2000, after a four-day hearing,
the IHO issued a decision affirming the District's
decision to graduate Kevin. The IHO found that the
District met its burden of providing Kevin with a
FAPE and that graduation was appropriate because
Kevin had earned sufficient high school credits.
Rejecting the parent's contention that Kevin's IEPs
were inadequate, the IHO found that Kevin's IEP
goals "were sufficiently quantifiable so that success
could be gauged" and that any alleged deficiencies
"did not materially compromise" Kevin's academic
progress "which was considerable." The IHO further
found that Kevin was provided with assistive
technology as required by the IDEA and that the
parents failed to request extended school year services
for Kevin. Consequently, the IHO concluded that
Kevin is not entitled to compensatory education and
the District can properly issue him a high school
diploma.
Thirty days after the IHO's decision, the District
terminated its financial support of Kevin's placement
at Acacia. Kevin, however, continued to attend
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 2
Appendix G
Acacia at his parent's expense, and filed the instant
action, pursuant to section 1415(i)(2) of the IDEA,
appealing the IHO's decision. Plaintiffs seek the
reversal of the IHO's decision and an order by this
Court requiring the District to provide Kevin with a
free education until he turns twenty-one, one
additional year of compensatory education, and to
reimburse Kevin's parents for expenses incurred at
Acacia after the District stopped funding Kevin's
education.
Shortly after the filing of the initial complaint,
Kevin and his parents filed a Motion for Statutory
Injunction, pursuant to 20 U.S.C. 1415(j), seeking an
order from this Court requiring the District to resume
paying for Kevin's placement at Acacia. On March
30, 2001, this Court granted Kevin's Motion for
Statutory Injunction and ordered the District to
promptly take all necessary action to pay for Kevin's
continued education at Acacia during the pendency of
this action.
Subsequently, both parties have filed cross
motions for summary judgment which are currently
before the Court.
Standard of ReviewIn reviewing a motion for summary judgment in
an IDEA action, the Court does not apply the
traditional summary judgment standard. Morton
Community Unit Sch. Dist. No. 709 v. J.M.,152 F.3d
583, 587-88 (7th Cir.1998). The IDEA dictates that
"the court shall receive the records of the
administrative proceedings, shall hear additional
evidence at the request of a party, and, basing its
decision on the preponderance of the evidence, shall
grant such relief as the court determines appropriate."
20 U.S.C. # 1415(i)(2). When neither party has
requested the court to hear additional evidence, the
"motion for summary judgment is simply the
procedural vehicle for asking the judge to decide the
case on the basis of the administrative record."
Heather S. v. Wisconsin,125 F.3d 1045, 1052 (7th
Cir.1997).
"The party challenging the outcome of the state
administrative decision bears the burden of proof."
Heather S., 125 F.3d at 1052. In reviewing the
administrative record, the court "is required to give
'due weight' to the results of the administrative
proceedings," id. at 1052-53, and may not "substitute
[its] notions of sound educational policy for those of
the school authorities which they review." Bd. of
Educ. of the Hendrick Hudson Cent. Sch. Dist.,
Westchester County v. Rowley, 458 U.S. 176, 206
(1982). "[T]he 'due weight' which the court must give
to the hearings below is not to the testimony of
witnesses or to the evidence-both of which the court
must independently evaluate -- but to the decisions of
the hearing officers." Heather S., 125 F.3d at 1053.
"Due weight" implies "some sort of deference" to the
agency's decision, and thus to the decisions of the
hearing officers. Id. This deference results from
Congress' recognition of the "specialized knowledge
and experience" required to make complicated
educational choices. Rowley, 458 U.S. at 207-08.
Simply put, because the IHO "ha[s] much greater
expertise in educational policy," the court should not
"reverse the hearing officer's decision simply because
[the court] disagrees with the decision." Bd. of Ed. of
Arlington Heights Sch. Dist. No. 25 v. Illinois State
Bd. of Educ., 2001 WL 585149 (N.D. Ill. March
19,2001).
"Due weight," however, does not mean
"abdication of all judicial function." Nein v. Greater
Clark County Sch. Corp.,95 F.Supp.2d 961, 965 (S.D.
Ind. 2000) (quoting Patricia P. v. Bd. of Ed. of Oak
Park,203 F.3d 462,466 (7th Cir.2000)). The amount
of deference given to the IHO's decision is based in
part on whether the IHO's findings were "thorough
and complete." See, e.g., Adams v. State of Oregon,
195 F.3d 1141, 1145 (9th Cir.1999). The court,
therefore, is permitted to "take an independent and
critical look at the evidence." Nein, 95 F.Supp.2d at
965.
AnalysisKevin contends that the District failed to provide
Kevin a FAPE by: (I) violating IDEA procedures; and
(II) unilaterally graduating Kevin from high school.
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 3
Appendix G
Based on these alleged violations, Kevin contends
that he is entitled to compensatory education. The
Court will address each of these contentions in turn.
I. Procedural Violations of the IDEAThe IDEA seeks to "assure that all children with
disabilities have available to them ... a free
appropriate public education ("FAPE")...." 20 U.S.C.
# 1400(c). To assure that disabled children receive a
FAPE, the IDEA requires that school districts
cooperate with the parents in creating an
"individualized education program ("IEP")," which
sets forth the child's educational goals. 20 U.S.C. ##
1401(11), 1414(d); Honig v. Doe,484 U.S. 305, 311
(1988). To determine whether the school district has
provided a FAPE, courts must determine whether the
school: (1) complied with the IDEA'S procedural
requirements; and (2) developed an IEP that is
"reasonably calculated to enable the child to receive
educational benefits." Rowley, 458 U.S. at 206. See
also Heather S., 125 F.3d at 1054. "Once the school
district has met these two requirements, the courts
cannot require more; the purpose of the IDEA is to
'open the door of public education' to handicapped
children, not to educate a handicapped child to her
highest potential." Id. (quoting Board of Educ. of
Murphysboro Community Unit Sch. Dist. No. 186 v.
Illinois State Bd. of Educ., 41 F.3d 1162, 1166 (7th
Cir. 1994)).
Under Rowley, the district court must not only
ensure that the school district has adopted "the plan,
policies, and assurances required by the Act, but also
[ ] determine that the [district] has created an IEP for
the child in question which conforms with the
[statutory] requirements." Rowley, 458 U.S. at 206-07
n. 27. However, while the procedural requirements of
the IDEA have great importance, Congress
implemented them to achieve "full participation of
concerned parties throughout the development of the
IEP." Id. at 206. Therefore, where the parents fully
participate in the plan to develop the IEP, the first
prong of Rowley is usually met. See Doe v. Defendant
I, 898 F.2d 1186, 1191 (6th Cir.1990); Doe v.
Alabama State Dept. of Educ., 915 F.2d 651, 663
(11th Cir.1990).
Here, Kevin contends that the District failed to
provide Kevin a FAPE by: (A) drafting Kevin's IEPs
with vague and unmeasurable goals and objectives
and not amending the IEPs to meet his unique needs;
(B) failing to consider Kevin for assistive technology
("AT"); (C) not permitting Kevin to participate in
state-wide assessment tests; (D) failing to properly
implement a transition plan; and (E) not offering
Kevin extended school year services ("ESYS").
Unfortunately, in its decision below, the IHO did
not fully explain whether the District violated the
IDEA'S procedures. Instead, the IHO made a
conclusory finding that the alleged procedural
violations, "if they were violations, could have been
dealt with at the time or through due process
proceedings."3 Therefore, because the IHO found that
Kevin's parents were able to fully participate in
Kevin's education, the IHO concluded that the alleged
procedural violations did not violate Kevin's right to a
FAPE.
While parental participation is one of the key
components in assessing procedural violations, see
Rowley, 458 U.S. at 206, the fact that the parents had
adequate notice and were able to participate in the
proceedings does not end the inquiry. In addition, the
fact finder must determine whether the alleged
procedural violations deprived the student of an IEP
or resulted "in the loss of educational opportunity."
Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766
(6th Cir.2000). See also Bd. of Educ. of Oak Park &
River Forest High Sch. Dist. No. 200, 21 F.Supp.2d at
874 ("procedural inadequacies that result in the loss
of educational opportunity ... clearly result in the
denial of a [FAPE]"). Consequently, because the IHO
did not make a finding of whether the alleged
procedural violations resulted in a "loss of educational
opportunity" for Kevin, this Court will independently
address each of the above alleged procedural
violations to determine if they, in fact, occurred and
whether they resulted in a loss of an educational
opportunity.
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 4
Appendix G
A. Kevin's IEPThe IDEA requires that school districts include
the following information in the IEPs: (1) "a
statement of the child's present levels of educational
performance, including how the child's disability
affects the child's involvement and progress in the
general curriculum," section 1414(d)(1)(A); (2)
annual goals and short-term objectives for
improvements, id.; (3) "a description of the
specifically designed instruction and services that will
enable the child to meet those objectives," Honig, 484
U.S. at 311; and (4) a statement of "[h]ow the child's
progress toward the annual goals ... will be
measured." 34 C.F.R. # 300.347. In determining how
the child's progress should be measured, the Tenth
Circuit in Helms, 750 F.2d at 825, noted that the
predecessor to the IDEA, the Education for All
Handicapped Children Act, "clearly contemplates that
a handicapped child's progress in school should be
measured by objective, if not standardized,
standards." Additionally, section 1414(d)(4)(A)
requires that the school review the IEP at least
annually "to determine whether the annual goals for
the child are being achieved" and revise the IEP to
address "any lack of expected progress toward the
annual goals" and "the child's anticipated needs." See
also34 C.F.R. # 300.346(b).
Plaintiffs contend that Kevin's IEPs violate the
procedural requirements of the IDEA because they
contained vague and unmeasurable goals and
objectives and were not amended to address his
academic difficulties. Although characterized as a
procedural violation by Plaintiffs, other courts when
analyzing similar alleged defects in IEPs, have
analyzed such defects under the substantive analysis
of the second prong of the Rowley test. See Knable,
238 F.3d at 767-769; Nein, 95 F.Supp.2d at 971; TH,
55 F.Supp.2d 830. Consequently, this Court will
analyze the alleged deficiencies in Kevin's IEPs under
the Rowley substantive analysis.
As discussed above, Rowley mandates that IEPs
must be "reasonably calculated to enable the child to
receive educational benefits." Rowley, 458 U.S. at
206. The Rowley court specifically declined to set out
a bright-line rule for what satisfies a FAPE in part
because the court noted that children have different
abilities and are therefore capable of different
achievements.4Id. at 202. Therefore, the court
adopted an approach which would take into account
the potential of the disabled student but noted that the
school need not "maximize each handicapped child's
potential." Id. at 199. To satisfy the Rowley
reasonableness standard, however, the school must
offer more than "mere token gestures or a trifle,"
Nein, 95 F.Supp. at 973 (citations omitted), and where
the student "display[s] considerable intellectual
potential, [the] IDEA requires a great deal more than
a negligible [benefit]." Ridgewood Bd. of Ed. v. N.E
.,172 F.3d 238, 247 (3d Cir.1999). See also Hall v.
Vance County Bd. of Ed., 774 F.2d 629, 636 (4th Cir.
1985) ("Rowley recognized that a FAPE must be
tailored to the individual child's capabilities and that
while one might demand only minimal results in the
case of the most severely handicapped children, such
results would be insufficient in the case of other
children"). Therefore, in determining whether a
school district has provided a FAPE, the court must
analyze the child's intellectual potential and then
assess the student's academic progress. See
Ridgewood Bd. of Ed., 172 F.3d at 247 (reversing the
trial court, for failing to analyze the student's
academic potential).
Following the above standards, when analyzing
whether an IEP is reasonably calculated to provide
"educational benefits," courts examine the child's
intellectual potential and disability and the academic
progress the child has made under the IEP. For
example, in Nein, 95 F.Supp.2d at 971, the parents of
a disabled student challenged the administrative
appeal board's decision that the school district had
provided a FAPE. Relying on the student's scores on
academic achievement and intelligence tests, the
parents contended that the school violated the
substantive standards of the IDEA by failing to
provide the student with the minimum required
educational benefit. Id. at 971-72. The school district
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 5
Appendix G
argued that it supplied the student with "some
educational benefit" as demonstrated by the student's
progress in a special education reading course, his
grade level promotion, and "good academic grades."
Id. at 972.
Rejecting the school's argument, the court held
that "[i]f an IEP must be designed to take into account
a child's individual educational needs, it logically
follows that the child's capacity to learn should also
be considered in evaluating the IEP." Id. at 974. The
court found that the child was of "average
intelligence" and before entering the school district
had an IQ of 95. Id. at 963. After three years at the
school district, however, the student's IQ dropped "an
astonishing 20 points" to 75. Id. Despite this
significant drop, the school did not make or plan on
making any changes to the student's IEP to address
his academic difficulties. Id. at 975. Based on these
findings, the court held that "where a child with a
severe learning disability but significant potential
ma[kes] no transferable progress in three years, and
where there was no indication the public school was
ready and able to change direction, the limits of 'due
weight' and judicial deference to school authorities
have been exceeded." Id. Consequently, although
required to give "due deference" to the hearing
officer, the court held that the student's grade level
promotions were not sufficient evidence that the IEP
was "reasonably calculated to confer [an] educational
benefit upon" the student, and that the regression of
the student's IQ showed that the school district had
failed to provide the student with a FAPE. Id. at 975,
977-78.
Similarly, in Board of Education of Oak Park &
River Forest High School District No. 200, 21
F.Supp. at 877, in affirming the hearing officer's
decision that the district failed to provide a FAPE, the
court found that the student's poor academic record
indicated that the educational benefit she was
receiving was "minimal." The student failed half her
classes, and "except for passing several pass/fail
classes and making one B [in a reading class],
received Ds in the remaining half." Id. The court
agreed with the hearing officer's finding that the
district failed to institute a "systematic and
comprehensive plan to deal with [the student's]
reading difficulties," and that "[s]uch a failure was
manifested ... by the absence of any goals or
objectives that specifically addressed these reading,
deficits." Id.
Likewise, in Helms, 750 F.2d at 821-22, a
disabled student brought suit under the Education for
All Handicapped Children Act ("EAHCA"), the
predecessor to the IDEA, after the state administrative
review board ordered the student, who had received
12 years of education, to be graduated from high
school. The school district contended that the student
was not entitled to further education because she had
already received 12 years of free education under the
EAHCA and was therefore eligible to graduate. Id. at
824. Rejecting this argument and affirming the district
court's decision in favor of the student, the Tenth
Circuit held that under the EAHCA, a disabled
student's progress "from grade to grade is to be
measured by reference to his or her IEP rather than
the standardized curriculum." Id. Moreover, the IEP
should measure the student's progress "by objective, if
not standardized, standards." Id. Therefore, the
district court must examine the student's IEPs to
ensure that IEP objectives are being met and that the
student is not just advancing from grade to grade. Id.
at 825.
Applying these standards to the student's IEP,
the court found that it appeared to conform to the
statutory requirements because it listed the child's
"strengths and weaknesses and current achievement
levels." Id. The IEP also listed seven "instructional
objectives" with a description of when and how the
objectives would be completed. Id. Next to each
objective, the IEP had nine columns with "numbers
10 through 90 in increments of 10 for the indication
of the date on which the percentage of the objective is
mastered." Id. The columns listing the student's
progress, however, were completely blank. Id.
Consequently, the court found that "no attention
whatsoever had been paid to the extent to which [the
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 6
Appendix G
student] was accomplishing her objectives," and
therefore, the court held that the school had violated
the EAHCA because it failed to measure the student's
"success or failure by her ability to master specific
objectives." Id.
Similarly, in Hall, 774 F.2d at 635, the Fourth
Circuit affirmed the district court's finding that the
school district had failed to provide a disabled student
with an "education reasonably calculated to enable
him to receive educational benefits." In reaching this
decision, the court noted that the lower court properly
rejected the school district's contention that the
student's "academic progress, as measured by his
grade promotions ... evidences educational benefit"
under Rowley. Id. Instead, the court held that
independent evaluations and standardized test scores
demonstrated that the child did not receive
educational benefits as required by the IDEA and
Rowley. The student was of above average
intelligence, but his test scores indicated that he made
little improvement in his reading ability over several
years, despite the implementation of an IEP
supposedly designed to address his disability and
problems with reading. Id.
With these standards in mind, the Court now
turns to the analysis of Kevin's IEPs. Plaintiffs
contend that Kevin's IEPs violate the procedural
requirements of the IDEA because the IEPs contained
vague and unmeasurable goals and objectives and
were not amended to meet his unique needs. To
determine if Kevin's IEPs met the standards under the
IDEA, the central question before the Court is
whether Kevin's IEPs were reasonably calculated to
confer sufficient educational benefits upon Kevin. As
explained above, to make this determination, the
Court must assess Kevin's intellectual potential, given
his disability, and then determine the academic
progress Kevin made under the IEPs designed and
implemented by the District.
Kathy Fouks, the principal at Acacia, who has
over 29 years of experience in working with special
education students and a masters degree in special
education reading, testified that based on her
experience with Kevin and on his IQ scores that
Kevin is of "average" intelligence and possesses the
cognitive ability to improve his academic skills from
where they currently stand.
Despite his average intellectual potential,
Kevin's IQ and academic achievement scores
significantly decreased from 1990 to when he entered
Acacia.5 In 1990 Kevin had a full scale IQ of 101.
Three years later in 1993, however, Kevin's IQ had
dropped to 87 and fell another four points in 1999 to
83. Ms. Fouks testified that such a drastic departure in
IQ scores is generally the result of a deterioration in
academic skills or that the student's academic
functioning has not increased as the student has
progressed in age.
Ms. Fouks's opinion is buttressed by the fact that
Kevin's scores in academic achievement tests
decreased significantly from 1993 to 1999. After
completing a year at Acacia, however, Kevin's scores
improved. In 1993, Kevin tested at the following
levels: (1) reading at the seventh grade level; (2) math
between the fifth and sixth grade level; and (3)
writing skills at the low end of the third grade level.
The District assessed Kevin's academic skills again in
1996 and his reading and spelling measured at the
seventh grade level and math at the third grade level
without a calculator and eighth with a calculator.
Upon entering Acacia at the beginning of the 1999
school year, Kevin's academic skills were measured
as follows: (1) reading between the third and fourth
grade level; (2) math between the fourth and fifth
grade level; and (3) writing skills between the third
and fourth grade level. After a successful and
productive 1999-2000 school year at Acacia, Kevin
tested at the following levels: (1) reading between the
sixth and seventh grade level; (2) math between the
seventh and eighth grade level; and (3) writing skills
between the sixth and seventh grade level.
Reviewing his current level of academic
performance, Ms. Fouks testified that although Kevin
has improved in math, he still has significant
problems with basic multiplication and division and
needs additional instruction. She also stated that
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 7
Appendix G
although Kevin reads between the sixth and seventh
grade level, this level of performance is based mainly
on the fact that as a 19 year old, Kevin has a lot of
words memorized. When it comes to words that
Kevin has not memorized, however, Kevin has a very
difficult time determining the meaning of words
based on their context in a sentence. Ms. Fouks also
testified that Kevin has "severe writing problems" in
that he has great difficulty properly using correct
punctuation, capitalization, and grammar.
The decrease in Kevin's IQ and academic scores
is further demonstrated by his grades. For the 1998-99
school year, after previously attending schools for
special education students, the District enrolled Kevin
at York for his senior year. Unfortunately, however,
Kevin's lack of academic progress caught-up with him
at York where he received D's in his first semester
academic classes and F's in the second semester.
Ms. Fouks' testimony is further bolstered by the
testimony of Debra Homa, a vocational coordinator
with 23 years experience working with learning
disabled students. Ms. Homa evaluated Kevin in
October 1998 and found that he had "limited math
skills" (third grade level) without a calculator and that
his reading ability was at the sixth grade level. She
also found that Kevin had a very difficult time with
reading comprehension and had a limited vocabulary.
When asked about the tests that she administered to
Kevin, Ms. Homa stated that she believed the tests
were a "good indicator" of Kevin's abilities at that
time. Ms. Homa presented her findings and six
recommendations to the District at the October 1998
IEP conference. Ms. Homa stated that the District was
surprised about Kevin's low reading scores but not by
his poor math abilities.
To rebut Ms. Fouks's testimony, the District
presented Linda Johnson, the school psychologist at
York. Ms. Johnson testified that the decrease in
Kevin's IQ scores was not the result of a lack of
intellectual achievement under the IEPs. Rather, there
could be a "variety of reasons"and that she did not
"think that anybody would be able to say precisely
why that would have occurred." However, she later
testified that while there was a decline in the actual
scores, looking at all the tests as being within a range
of scores, Kevin's scores did not actually decrease at
all. The drop in Kevin's IQ scores, according to Ms.
Johnson, can be explained by the "statistical
structure" of the tests and Kevin's own mental state on
the test days. When asked to explain the "statistical
structure," Ms. Johnson stated that the test scores
reflect a "range" or "confidence level" of ten points.
For example, a score of 100 reflects a score in the
range of 110 to 90, and therefore, a subsequent score
of a 95 would be considered within the "range" and
not a decreased score.
In regards to Kevin's decreased scores on reading
tests, Ms. Johnson stated that a sixth grade reading
level was appropriate for Kevin given his limited
intellectual capacity. However, she also testified that
Kevin's reading difficulties were not the result of a
cognitive disability but rather resulted from Kevin's
ADHD. When asked what goals and objectives were
crafted for the IEPs to address her concerns about
ADHD interfering with Kevin's reading, Ms. Johnson,
after reviewing the IEPs, testified that reading was not
identified as an area of concern. Despite her
testimony laying the blame for Kevin's reading
problems on his ADHD, Ms. Johnson testified that by
1999 Kevin no longer had ADHD. Moreover, Ms.
Johnson stated that based on Kevin's grades that he
was making sufficient academic progress. However,
despite the above testimony, Ms. Johnson, after
reviewing Kevin's 1998 test scores, agreed that there
was a "severe discrepancy" between Kevin's grade
level/age and his reading ability which was measured
at the 4.6 grade level in 1998.
In contrast to Ms. Johnson's testimony, the
District's own witness, Pam Dreyer, a special
education teacher and Kevin's case manager, testified
that Kevin's reading scores were "much lower" than
his ability and that the text books used in some of
Kevin's classes, for which he received Ds and Fs,
were for students reading at the third/fourth grade
level.
Carefully reviewing the above evidence, this
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 8
Appendix G
Court finds that Kevin possesses average intellectual
potential and that from 1990 to 1999, Kevin's
academic skills stayed constant or decreased. In
making this determination, the Court finds the
testimony of Ms. Fouks, Ms. Homa, and Ms. Dreyer
to be much more credible than the testimony of Ms.
Johnson. Ms. Johnson, who is a psychologist and not
an expert in special education, gave evasive and
inconsistent answers regarding Kevin's intellectual
ability and the reasons for his decrease in IQ and
academic test scores. Moreover, her opinion that the
decrease in Kevin's IQ scores can be explained by the
"statistical structure" does not account for why or how
his IQ score dropped by almost 20 points over nine
years.
Next, in order to determine whether Kevin's IEPs
were reasonably calculated to confer sufficient
educational benefits upon Kevin, the Court must
assess Kevin's IEPs. In particular, the Court will
examine if the District failed to amend Kevin's IEPs
to meet his specific academic needs and difficulties.
Carefully reviewing Kevin's 1998, 1999, and
2000 IEPs, this Court finds that each IEP contains
almost identical goals, objectives, and present levels
of performance. As explained above, the District was
required to review and revise Kevin's IEPs at least
annually to determine if the current IEP goals and
objectives are sufficient to confer an educational
benefit upon Kevin. See20 U.S.C. # 1414(d)(4)(A);
34 C.F.R. # 300.346(b); Nien, 95 F.Supp.2d at 975.
Ms. Fouks testified that she attended two IEP
conferences. For the October 1999 and February 2000
meetings, Ms. Fouks presented the IEP team with a
list of what she believed were Kevin's strengths and
weaknesses. Of particular concern to Ms. Fouks was
Kevin's auditory ability. According to Ms. Fouks,
Kevin had an extremely difficult time processing
auditory information. Kevin also had difficultly with
reading comprehension and math calculation.
Ms. Fouks presented these concerns to the IEP
team and at the February 2000 meeting presented
draft goals and objectives. The District, however, did
not "feel [Kevin] had a reading problem, word
recognition or comprehension problem" and did not
adopt any of Ms. Fouks's goals and objectives as part
of Kevin's IEPs. In regards to Kevin's difficulties in
math, Ms. Fouks testified that math was not even
discussed at the October 1999 meeting and that until
February 2000, the District did not even include a
math objective in the IEP. Despite hearing Ms.
Fouks's concerns, the District did not make any
changes to the goals and objectives of Kevin's IEP.
Instead, Ms. Fouks testified that the District was
mainly concerned with whether Kevin was taking the
proper classes so that he had enough credits to
graduate in June 2000.
Ms. Fouks's testimony is consistent with other
witnesses who testified that the District failed to
review and revise Kevin's IEPs even though the
District was aware of Kevin's academic difficulties.
For example, Ms. Dreyer who testified that, despite
being aware of Kevin's poor reading scores, the
District did not make any changes to Kevin's goals
and objectives in his IEP to address his reading
difficulties. Similarly, Ms. Homa presented her
findings of Kevin's academic problems and six
recommendations to the District at the October 1998
IEP conference. Ms. Homa stated that the District was
surprised about Kevin's low reading scores but not by
his poor math abilities. However, the District did not
take any actions to adjust Kevin's IEPs to account for
these difficulties. Furthermore, Ms. Mayers testified
that she presented her assessment of Kevin's poor
reading scores to the District, but the District did not
make any changes to Kevin's IEPs. Finally, although
receiving all Ds in his classes his first semester at
York, the District did not adjust Kevin's IEP to
account for his poor academic performance.
Despite the above evidence of Kevin's academic
potential and his regression of skills from 1990 to
1999, the IHO found that Kevin's IEP goals "were
sufficiently quantifiable so that success could be
gauged" and that any alleged deficiencies "did not
materially compromise" Kevin's academic progress
"which was considerable." Although required to give
"due deference" to the IHO, after an extensive review
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 9
Appendix G
of the administrative record, this Court finds that
Kevin's IEPs were not "reasonably calculated to
confer [an] educational benefit upon" Kevin. Like the
student in Nien, F.Supp.2d at 971, Kevin possessed
average intellectual potential but his IQ and academic
achievement scores dramatically decreased from 1990
to 1999. Despite knowing of this decrease and of
Kevin's poor grades at York, the District failed to
review or revise Kevin's IEPs to address his
increasing academic difficulties. Accordingly, this
Court finds that the District failed to provide to
provide Kevin with a FAPE and thus reverses IHO's
decision that Kevin made sufficient progress under
his IEPs to provide him with an educational benefit.6
B. Other Alleged Procedural ViolationsIn addition, Kevin and his parents allege that the
District violated IDEA procedures by: (1) failing to
assess Kevin for AT needs; (2) not permitting Kevin
to participate in state-wide academic assessment tests;
(3) failing to properly make transition plans; and (4)
not offering Kevin ESYS. Because this Court must
determine whether the alleged procedural violations
resulted "in the loss of educational opportunity,"
Knable, 238 F.3d at 766; Bd. of Educ. of Oak Park &
River Forest High Sch. Dist. No. 200, 21 F.Supp.2d at
874, the Court will examine the alleged procedural
errors together to see if they resulted in the loss of an
education opportunity for Kevin.
1. Assistive TechnologyWhen drafting a student's IEP, the school district
"shall ... consider whether the child requires assistive
technology devices and services." 20 U.S.C. #
1414(d). AT devices includes "any item, piece of
equipment, or product system, whether acquired
commercially off the self, modified, or customized,
that is used to increase, maintain, or improve the
functional capabilities of a child with a disability." 34
C.F.R. # 300.5. AT "services" include evaluation of
the AT needs of the child, obtaining, designing, and
selecting appropriate AT devices, training personnel
to provide AT services. 34 C.F.R. # 300.6.
Here, several witnesses testified that Kevin
should have been assessed for and given AT to assist
him in overcoming his poor academic performance.
For, example, Ms. Fouks testified that Kevin's
inability to process auditory information was one of
the main causes of his failure to make academic
progress. To overcome this problem, Ms. Fouks
believed that Kevin needed "as much visual input as
possible," which could have been provided by AT.
Therefore, Ms. Fouks believed that Kevin could have
"definitely" benefitted from AT. Ms. Fouks, however,
testified that AT was not even discussed at the
October 1999 IEP meeting. Similarly, in her
vocational recommendation, Ms. Homa noted that
Kevin could benefit from the use of vocabulary
building software.
Despite the IDEA's requirement that the District
"shall consider" AT and Ms Fouks's and Ms. Homa's
opinions that Kevin needed AT, the District did not
"consider" let alone provide Kevin with AT. Ms.
Johnson testified that AT was discussed at IEP
meetings but "it wasn't discussed in any detail." Ms.
Dreyer, Kevin's case manager, was not even familiar
with what constituted AT. Furthermore, Ms. Swetin
testified that Kevin was never assessed for AT.
Consequently, after reviewing Kevin's IEPs and
the above testimony, this Court finds that the District
failed to consider or provide Kevin for AT in
violation of the IDEA.
2. State Achievement TestsIEPs must include a statement of any
modifications which are required for the child to take
state wide assessment tests. 34 C.F.R. #
300.347(a)(5). If the school district determines that
the child will not participate in "a particular State or
district-wide assessment of student achievement," the
IEP must include a statement of why the assessment
is not appropriate for the child and "[h]ow the child
will be assessed." Id.
Here, Bob Zenillo, director of pupil services,
testified that 97-98% of the District's special
education students take the IGAP state assessment
test. However, despite this testimony, Kevin's IEPs
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 10
Appendix G
after 1994 either state that IGAP testing is not
appropriate for Kevin, without explanation as to why
this is the case, or are silent on the issue of state
assessment tests. Accordingly, this Court finds that
the District has failed to follow section 300.347(a)(5).
3. Transition ServicesTo ensure that disabled students can adequately
function in society after graduation, the IDEA
mandates that "beginning at the age of 14," and every
year thereafter, the student's IEP must contain "a
statement of the transition service needs of the child."
20 U.S.C. # 1414(d)(1)(A)(vii). Once the child turns
the age of 16, the IEP must contain "a statement of
needed transition services for the child." Id. See
also34 C.F.R. # 300.347(b). The term "transition
services" means "a coordinated set of activities for a
student with a disability that":
(A) is designed within an outcome-oriented
process, which promotes movement from school to
post-school activities, including post-secondary
education, vocational training, integrated employment
(including supported employment), continuing and
adult education, adult services, independent living, or
community participation;
(B) is based upon the individual student's needs,
taking into account the student's preferences and
interests; and
(C) includes instruction, related services,
community experiences, the development of
employment and other post-school adult living
objectives, and, when appropriate, acquisition of daily
living skills and functional vocational evaluation.
20 U.S.C. # 1401(30).
Here, a review of Kevin's IEPs indicate that the
first transition plan for Kevin was implemented in
November of 1998, when Kevin was seventeen years
old. The District did provide Kevin with vocational
services to help Kevin secure employment after
graduation. Kevin, however, expressed an interest in
attending junior college at the College of DuPage
("COD"). The District, however, did not amend his
IEP transition plan to reflect Kevin's desire to attend
COD because the District believed, despite his limited
academic skills, that he could succeed at the COD.
Ms. Fouks and Ms. Homa, in contrast, testified that
they did not believe that Kevin had the necessary
skills to attend COD without staying in high school to
improve his basic academic skills.
Reviewing the above evidence, this Court finds
that the District failed to follow the IDEA by waiting
until Kevin was 17 years old to draft a transition plan
and that the transition plans the District did draft
failed to provide for Kevin's preference to attend
COD which, given his limited academic skills, would
have been very unlikely.
4. Extended School Year ServicesThe regulations implementing the IDEA require
school districts to ensure that ESYS "are available as
necessary to provide FAPE." 34 C.R.F. #
300.309(a)(1). Every disabled student, however, is not
entitled to ESYS. Reusch v. Fountain, 872 F.Supp.
1421, 1427 (D. Md.1994). Schools are only required
to provide ESYS if the child will suffer significant
regression of skills without ESYS, "so as to seriously
affect [the student's] progress towards
self-sufficiency." Cordrey v. R.J. Euckert, 917 F.2d
1460, 1470 (6th Cir.1990). To show that the student
will suffer significant regression, the student must
show empirical evidence that regression occurred in
the past or put on expert evidence that such regression
will occur without ESYS. Id. at 1471-72.
Here, the record reveals that the District did
discuss the possibility of ESYS for Kevin but that the
District believed that Kevin would not suffer
significant regression of skills. Because Kevin and his
parents have not set forth any evidence regarding
regression of academic skills over the summer
months, this Court finds that the District did not
violate the IDEA with regard to ESYS.
In sum, this Court finds that the District violated
IDEA procedures by: (1) failing to consider or
provide AT; (2) not permitting Kevin to participate in
state academic assessment tests; and (3) failing to
properly implement transition plans. Given Kevin's
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 11
Appendix G
academic problems, as discussed above, this Court
finds that these procedural violations resulted "in the
loss of educational opportunit[ies]" for Kevin, and
therefore, deprived him of a FAPE. See Knable, 238
F.3d at 766; Bd. of Educ. of Oak Park & River Forest
High Sch. Dist. No. 200, 21 F.Supp.2d at 874. This
Court accordingly reverses the IHO's decision that the
District provided Kevin with a FAPE.
II. The District's Decision to GraduateKevin
The District contends that because Kevin "can
graduate" with a regular high school diploma, the
District no longer has an obligation to provide Kevin
with a FAPE. The federal regulations implementing
the IDEA require that school districts provide a FAPE
to children with qualifying disabilities until the age of
twenty-one. 34 C.F.R. # 300.121. This obligation,
however, does not apply where the disabled student
has "graduated from high school with a regular high
school diploma." 34 C.F.R. # 300.122 .
To graduate a student with a disability under the
IDEA, the student must meet the general graduation
requirements and make progress on or complete the
IEP goals and objectives. Chuhran v. Walled Lake
Consol. Sch.,839 F.Supp. 465, 474 (E.D.Mich.1993),
aff'd, 51 F.3d 271 (6th Cir.1995). Automatic grade
promotion does not necessarily mean that the disabled
child received a FAPE or is required to be graduated.
See, e.g., Rowley, 458 U.S. 203, n. 25.
Here, after a careful review of the record, this
Court finds that the District's decision to graduate
Kevin was based on his accumulation of required
credits and not based on his progress on his IEP goals
and objectives. Ms. Fouks testified that she could not
recall whether the District discussed Kevin's IEP
goals and objectives when making the determination
to graduate Kevin. Instead, the District focused on
whether Kevin was passing his courses so that he
would have sufficient credits to graduate. Likewise,
Ms. Johnson and Mr. Patterson, both of whom were
called by the District, testified that in making the
determination to graduate Kevin, the IEP team
reviewed his grades, credit hours, and transition plan
but not Kevin's IEP goals and objectives. Similarly,
Kevin's father testified that the District's decision to
graduate Kevin was based solely on Kevin's grades
and credit hours and not on whether Kevin had made
progress on his IEP goals and objectives. Moreover,
Kevin's February 2000 IEP states that the District
recommends that Kevin graduate in June 2000
because he "will have completed all the required
credits for graduation ... by the end of the current
semester." Mr. Zenillo was the only witness who
testified that the District considered Kevin's progress
on his IEP goals and objectives in deciding to
graduate Kevin. However, he could not specifically
recall how the District assessed Kevin's progress in
making this determination. Carefully reviewing the
above evidence, this Court finds that the District did
not assess whether Kevin made any progress on or
completed his IEP goals and objectives, and thus,
inappropriately graduated Kevin. Therefore, this
Court reverses the IHO's decision affirming the
District's decision to unilaterally graduate Kevin.
Additionally, because the District inappropriately
graduated Kevin, this Court orders that the District
reimburse Kevin's parents for the reasonable expenses
incurred at Acacia after the District stopped its
funding of Kevin's education and before this Court
entered its stay put order. See Nein, 95 F.Supp.2d at
980-81 (award reimbursement to parents who
unilaterally placed child in school where district
failed to provide child a FAPE).
III. Compensatory EducationCompensatory education is "a legal term used to
describe future educational services" which courts
award to a disabled student under the IDEA "for the
school district's failure to provide a [FAPE] in the
past." Brett v. Goshen Com. Sch. Corp., 161
F.Supp.2d 930, 942 (N.D. Ind. 2001). Although the
IDEA only requires that school districts provide a
FAPE until the student reaches the age of 21, if the
district has failed to provide a FAPE, the court may
award the student free educational assistance after the
age of 21 to cure the school district's past failure to
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 12
Appendix G
provide the student with a FAPE. Bd. of Educ. v.
Illinois State Bd. Educ., 79 F.3d 654, 656 (7th
Cir.1996). Therefore, this Court may award
compensatory education to Kevin past his 21st
birthday to cure the District's past denial of a FAPE.
Here, as discussed above, the District did not
provide Kevin a FAPE. Therefore, to cure this
violation, the Court orders that the District continue to
pay for Kevin's education at Acacia until he reaches
the age of 22.
ConclusionFor the foregoing reasons, this Court GRANTS
Plaintiffs Kevin T., W.T. and K.T.'s Motion for
Summary Judgment [22-1] and DENIES Defendant
Elmhurst Community School District No. 205's
Motion for Summary Judgment [31-1]. Therefore, this
Court reverses the decision of the Independent
Hearing Officer and orders that the District:
(1) provide Kevin with a free education until he
turns twenty-one and one additional year of
compensatory education; and (2) reimburse Kevin's
parents for expenses incurred at Acacia after the
District stopped its funding of Kevin's education
before this Court's entered its stay put order. The
Court, having disposed of the litigants' claims, directs
the clerk of the court to enter a Rule 58 judgment and
to terminate this case from the court's docket. It is so
ordered.1On June 7, 2001, the Illinois State Board of
Education was dismissed from this action by
agreement.2The facts set forth in the Background section
are taken from the Administrative Record ("AR")
from the proceedings before the IHO. The parties
have submitted Local Rule 56.1 statements of
material facts. These statements, however, are not
applicable here because those statements are intended
to assist the Court in determining whether material
questions of fact exist. See Bd. of Educ. of Oak Park
& River Forest High Sch. Dist. No. 200 v. Illinois
State Bd. of Educ.,21 F.Supp. 862, 868 n. 2 (N.D.
Ill.1998), vacated on other grounds, 207 F.3d 931
(7th Cir.1999). Here, however, because the parties
have not requested the Court to hear additional
evidence, the Court is required to base its factual
conclusions on the AR. See20 U.S.C. 1415(i)(2)(B);
Heather S. v. Wisconsin,125 F.3d 1045,1052 (7th
Cir.1997).3In making this finding, the IHO appeared to
hold that because the parents did not point out the
alleged procedural defects at the time of the IEP
conferences that the parents and not the school are
responsible for the procedural defects. This
conclusion flies in the face of the law which holds
that "a child's entitlement to special education should
not depend upon the vigilance of the parents (who
may not be sufficiently sophisticated to comprehend
the problem) .... [r]ather it is the responsibility of [the
school] to ascertain the child's educational needs,
respond to deficiencies, and place [the child]
accordingly." M.C. v. Cent. Reg'l Sch. Dist ., 81 F.3d
389, 397 (3d Cir. 1996). Moreover, after reviewing
the evidence, including many letters to the District
from Kevin's parents, this Court finds that Kevin's
parents did an excellent job in attempting to have
Kevin educated to the fullest extent possible under the
IDEA.4In accordance with Rowley, the regulations
governing the IDEA require that IEPs should be based
on "the child's unique needs and not on the child's
disability." 34 C.F.R. # 300.300(a)(3)(ii).5The District contends that all events prior to
1998 are irrelevant because they fall outside the
IDEA'S two year statute of limitations. While the
Court acknowledges that the District cannot be held
accountable for action before 1999, as discussed
above, Kevin's IQ and academic test scores and his
IEPs before 1998 are relevant to the Court's
determination of whether Kevin's lEP's were
"reasonably calculated to enable [Kevin] to receive
educational benefits." Therefore, the Court will
examine evidence from before 1998.6The Court further notes that after a four-day
hearing and an administrative record of 1791 pages,
the IHO's "findings of fact" and "conclusions of law"
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 13
Appendix G
were only four pages and contained numerous
conclusory findings which do not have basis in the
factual record, and therefore, this Court need not give
as much deference to the IHO's decision as it would
typically give that of an administrative judge in an
IDEA action. See, e.g., Adams, 195 F.3d at 1145 (the
amount of deference given to the IHO's decision is
based in part on whether the IHO's findings were
"thorough and complete").
Statutes Cited20 USC 1415(i)(2)(B)
20 USC 1415(i)(2)
20 USC 1415(j)
20 USC 1415(a)
20 USC 1415(b)(2)
20 USC 1415(c)
20 USC 1415(e)(2)
20 USC 1400(c)
20 USC 1401(11)
20 USC 1414(d)
20 USC 1414(d)(1)(A)
20 USC 1414(d)(1)(A)(vii)
20 USC 1401(30)
Regulations Cited34 CFR 300.347
34 CFR 300.346(b)
34 CFR 300.300(a)(3)(ii)
34 CFR 300.6
34 CFR 300.5
34 CFR 300.347(a)(5)
34 CFR 300.309(a)(1)
34 CFR 300.122
Cases Cited21 F. Supp. 862
125 F.3d 1045
152 F.3d 583
458 U.S. 176
95 F. Supp. 2d 961
195 F.3d 1141
484 U.S. 305
41 F.3d 1162
898 F.2d 1186
238 F.3d 755
172 F.3d 328
774 F.2d 629
872 F. Supp. 1421
917 F.2d 1460
839 F. Supp. 465
161 F. Supp. 2d 930
79 F.3d 654
Special Ed Connection Case Report
Copyright # 2007 LRP Publications 14
Appendix G