Advocacy for Speech/Language Evaluations and Services ......Speech- Student*: B M Language Susie...

Advocacy for Speech/Language Evaluations and Services Under the

Individuals with Disabilities Act (IDEA)

Michael A. O’Connor Mauk & O’Connor, LLP [email protected]

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


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


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 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;


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


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;


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.


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;


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.


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


Appendix C -8

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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


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


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.


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


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.


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


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


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.


Appendix E - 2


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.


Appendix E - 3


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,


Appendix E - 4


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


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

#--#



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



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



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.



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.



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



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



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



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



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



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



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



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



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"



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



Appendix G

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