Imani Education Circle Charter School | Case 7373-06-07 | 2007-04-04

This is a redacted version of the original hearing officer decision. Select details may have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. Decision Due Process Hearing for ZW Date of Birth: xx/xx/xx File Number: 7373/06-07AS Date of Hearing: March 19, 2007 OPEN HEARING Parties : Mr. and Mrs. Francine Fulton Imani Education Circle Charter School 5612 Greene Street Philadelphia, PA 19144-2808 Date Transcript Received: March 21, 2007 Date of Decision: April 4, 2007 Hearing Officer: David F. Bateman, PhD

Page 2 of 12 I. BACKGROUND Student is a xx-year old student who attends the Imani Education Circle Charter School (hereinafter Charter School). She is elig ible for special education and related services as a student with au tism and PDD. She also receives speech and occupational therapy services, and has problems with a seizure disorder and scoliosis. Student has attended the Charter School since kindergarten. The Parent requested the due process h earing because they feel the program offered by the Charter School is inappropr iate and is requesting a placement at either an Approved Private School (APS) or an Alternative Education School (AES). The Charter School feels it has an appropriate program and placement for Student.

Page 3 of 12 II. ISSUES PRESENTED 1) Is the IEP appropriate for Student’s needs? 2) Is Student eligible for placement at either an APS or AES? III. FINDINGS OF FACT 1 1. Student was born on xx/xx/xx. She is currently xx-years of age (NT 11). 2. Student lives in Philadelphia, Pa (P-4, 5, 6). 3. Student is eligible for special educati on and related services as a student with autism and pervasive developmental disability (NT 11). She also is eligible for speech and occupational thera py, has a seizure condition, and has scoliosis (NT 11). 4. Student has attended the Imani Edu cation Circle Charter School since kindergarten (NT 12). 5. Student is currently in third grade (NT 11) at the Charter School (NT 11). 6. The Parents requested a psychoeducati onal evaluation for Student on March 27, 2006 (P-6). The specific request fo r the evaluation was due to concerns of how Student was progressing in the curriculum. 7. Dr. H completed a psychological evaluation on March 31, 2006 (P-2; NT 19- 21). The evaluation found a WISC-IV full scale IQ of 83, and WIAT-II 1 References to notes of testimony will be designated “NT” followed by the relevant page number. References to Charter School evidentiary exhibits will be designated “S” followed by the relevant exhibit number. References to Parents’ evidentiary exhibits will be designated “P” followed by the relevant exhibit number.

Page 4 of 12 standard scores of 94 in word reading, 80 in reading comprehension, 93 in numerical reasoning, 87 in math reasoni ng, 92 in spelling, and 90 in written expression. The report’s recommendations indicate Student is eligible for special education and related services due to her probl ems with reading comprehension. The report also indicat es she may be eligible under other health impaired, and she should have her vision checked. 8. The Charter School held an IEP team meeting on June 5, 2006 (P-4). The IEP indicates she is eligible for special education and related services for a specific learning disability, with a seconda ry disability being that of speech and language impairment. 9. A notice of recommended educational placement (NOREP) was issued on June 5, 2006 (P-5). The NOREP listed as the placement a learning support instructional group with speech/language support. There is no indication whether the Parents accepted or rejected the placement. 10. Dr. M, psychiatrist with the [redact ed] Hospital, completed a psychiatric evaluation on July 10, 2006 (P-1). Sp ecific recommendations include further management of medication, and medi ation to pursue an appropriate educational program. 11. On July 11, 2006, the second grade teacher wrote a letter describing Student’s academic progress. He is uns ure of what is needed to address her difficulties (P-8). 12. The Parents and the Charter School pa rticipated in medi ation on July 12, 2006 (SD-1). There were numerous poi nts of agreement including: the

Page 5 of 12 school would reconvene the IEP team to include information from a functional behavioral plan. The hand writing on the Mediation Agreement is unclear making the other parts of the agreement difficult to read. 13. The Charter School completed disciplin ary reports on student R., who has hit Student, pulled her hair (twice), hit her in the face, and confronted Student at her desk (P-3). The events occurr ed in December 2006 and January 2007 (NT 25). 14. The Charter School completed a functional behavioral assessment (FBA) on March 14, 2007 (SD-2; NT 57-58). The FBA summary indicates Student is a student with mild to moderate difficulty with self-regulation. She tends to respond to verbal prompts and does not exhibit any oppositional behavior when redirected to task. The recomm endations include the IEP team should meet develop a plan to teach Stude nt appropriate le arning behaviors, specifically when she is receiving instruction in the general education class. 15. The Charter School offered an indivi dual education program (IEP) on March 15, 2007 (SD-4). 16. The IEP details Student’s present levels of academic achievement as: Student is performing as a level that is below her current grade assignment in reading especially and, to a lesser extent, in mathema tics reasoning. Her functioning in the latter domain appears to be a ffected by her difficulties in reading for understanding and delays in her general comprehension skills (SD-4, p. 4). 17. Student’s IEP contains speech goal s (SD-4, p. 8), an annual goal in reading/written expression (SD-4, p. 9), an annual goal in mathematics (SD-

Page 6 of 12 4, 10), an annual goal in occupational therapy (SD-4, p. 11), and three annual goals in social and emotional (SD- 4, p. 12-14). The IEP also contains specially designed instruction and an indi cation of the related services to be provided (SD-4, p. 15-16). 18. The Charter School provided a NOR EP on March 15, 2007 (SD-3). The NOREP recommended placement in a resource room learning support classroom with participation in th e regular classroom curriculum and modifications as needed. It went on to state Student would participate with her regular education peers for: r eading/language arts, lunch, specialty classes and social studies. 19. On March 16, 2007 the Parents provided information to the Charter School on how to recognize the signs of a stroke (P-7). They specifically pointed out that Student had a stroke in 2004 (NT 17).

Page 7 of 12 IV. DISCUSSION AND CONCLUSION OF THE LAW The Individuals with Disabilities Edu cation Act (IDEA) requires states to provide a "free appropriate public education" to all st udents who qualify for special education services.2 Pennsylvania implements IDEA by way of 22 Pa. Code Chapter 14. However, Pennsylvania charter schools are designed to be "independent public schools." Act 22 of 1997 provides charte r schools with autonomy from school districts and freedom from certain regul ations. Specifically, charter schools are exempt from complying with Pennsylvani a's special education regulations and standards.3 The Charter School Law was passed June 12, 1997. As of June 12, 1997 charter schools have had special education duties, as Act 22 of 1997 requires charter schools to comply with federal laws and regulations governing children with disabilities. However, on June 8, 2001, the Charte r School Services and Programs for Children with Disabilities Law, 4 was adopted and became effective on June 9, 2001 to specify how the Commonwealth of Penns ylvania would meet its obligations to ensure that charter schools comply with the IDEA and its implementing regulations.5 Accordingly, from June 12, 1997, to June 8, 2001, Pennsylvania charter schools were governed in the area of special educatio n under the Federal Laws. Effective 2 20 U.S.C. §1412. 3 22 Pa. Code Chapters 14 and 342. (See, the Charter School Law, Act 22 of 1997, 24 P.S. §17- 1732-A; see also, 22 Pa. Code §711.2(c)). 4 22 Pa. Code §711.1 et seq 5 34 CFR Part 300, and Section 504 and its implementing regulations in 34 CFR Part 104

Page 8 of 12 June 9, 2001, 22 Pa. Code §711.1 et seq., also governs special education in Pennsylvania Charter Schools. Specifically, the Charter School regulations regarding IEP’s state: § 711.41. IEP. When a child with an IEP transfers to a ch arter school from another public agency, private school, approve d private school or private agency in this Commonwealth, the charter school is responsible upon enrollment for ensuring that the child receives special education and related services in conformity with the IEP, either by adopting the existing IEP or by developing a new IEP for the child in accordance with the requirements of the IDEA. Student is an eligible handi capped student, as such is en titled to the protections of the Individuals with Disabilities E ducation Act as Reau thorized by Congress November, 2004, 20 U.S.C. Section 600-68 7 (“IDEA”) and its implementing regulations, 34 C.F.R. Part 300 , which entitle eligible students to receive a free appropriate public education. This entitle ment is conveyed by means of the IEP, a specific written document forged by the IE P team in consideration of the child’s strengths and needs from which flow e ducational goals and objectives that are addressed through various services. Oberti v. Board of Education , 995 F.2d 1204 (3d Cir. 1995). Is the IEP appropriate for Student? Before evaluating the Charter School’s act ions in this regard, the educational standard to which the Charter School is held must be briefly addressed. The IDEA does not require states to develop IEP’s that "maximize the potential of handicapped

Page 9 of 12 children.” Board of Education v. Rowley , 458 U.S. 176, 189 (1982). What the statute guarantees is an "appropriate" edu cation, "not one that provides everything that might be thought desirable by ‘loving parents.’" Tucker v. Bayshore Union Free School District , 873 F.2d 563, 567 (2d Cir. 1989); See also Carlisle Area School District v. Scott P ., 62 F.3d 520, 533-34 (3d Cir. 1995) (School districts “need not provide the optimal level of service, or even a level th at would confirm additional benefits, since the IEP required by IDEA represents only a “basic floor of opportunity”) (quoting Rowley, 458 U.S. at 201). An appropriate IEP is one that meets the procedural and substantive regulatory requirements and is reasonably calculated to enable the child to receive meaningful educational benefit to the child at the time that it was developed. Rowley; Rose by Rose v. Chester County Intermediate Unit, 24 IDELR 61 (E.D. PA. 1996)). The IEP must be likely to produce progress, not regression or trivial educational advancement [Board of Educ. v. Diamond, 808 F.2d 987 (3d Cir. 1986)]. The IEP must afford the child with special needs an education th at would confer meaningful benefit. Polk v. Central Susquehanna IU #16 , 853 F.2d 171, 183 (3 rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989), citing Diamond, held that “ Rowley makes it perfectly clear that the Act requires a plan of in struction under which educational progress is likely.” (Emphasis in the original). An IEP need not provide “optimal” benefit. If personalized instruction is being provided with sufficient supportive services to permit the student to benefit from the instruction the child is receiving a “free appropriate public education as defined by the Act.” Polk, Rowley.

Page 10 of 12 The IEP for each child with a disability must include a statement of the child’s present levels of educational performance; a statement of measurable annual goals, including benchmarks or short-term objectiv es, related to meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum and mee ting the child’s othe r educational needs that result from the child’s disability; a statement of the special education and related services and supplementary aids and serv ices to be provided to the child...and a statement of the program modifications or s upports for school personnel that will be provided for the child to advance appropria tely toward attaining the annual goals (and) to be involved and progress in the ge neral curriculum...and to be educated and participate with other children with di sabilities and nondisabled children; an explanation of the extent, if any, to wh ich the child will not participate with nondisabled children in the regular class. CFR §300.347(a)(1) through (4). The school feels it provides Student with a free, appropriate public education. The Charter School presented testimony and evidence that it has provided significant learning and a meaningful benefit to Student , gauged in respect to her potential. See Ridgewood Board of Education v. N.E., 172 F.3d 238 (3d Cir. 1999); see also Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989). As a program, the March 2007 IEP offere d by the Charter School for Student contains every element required by fede ral regulations and by state regulations (which adopt the federal regulations in this area). Student’s IEP includes a statement of her present levels of educational perf ormance; a statement of measurable annual

Page 11 of 12 goals, including benchmarks or short-term obj ectives, related to her needs that result from her disability to enable her to be involved in and progress in the general curriculum and meeting her other educational needs that result from her disability; a statement of the special edu cation and related services and supplementary aids and services to be provided to Student and a statement of the program modifications or supports for school personnel that will be provided for Student to advance appropriately toward attaining her annual goa ls and to be involved in the progress in the general curriculum. The goals and obj ectives are specific and measurable with the method and schedule of evaluation set fo rth clearly. Modifications and specially designed instruction are extensive. Student is progressing from grade to grade, making adequate progress (NT 60). Granted, there have been some problems w ith another student in the class (FF:13), but according to testimony from the staff at the Charter School Student’s behavior do not rise to the level of needing addi tional supports (NT 61). Student is also functioning at the level of her peers (NT 60). There was no testimony or evidence placed on the record to indicate Student was not making appropriate progress, or the program and placement was not appropriate. Given the IEP is appropriate, as is the program and placement, an Order for Student to attend an approved private school (APS) cannot be issued. This is also clearly the case given there was no evid ence or testimony provided indicating the sought after APS’s are appropriate for Student and can meet her needs.

Page 12 of 12 VI. ORDER In accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED the Imani Education Circle Charte r School IEP is appropriate for Student and the Parents’ request for pl acement at an approved private school is denied. ______________________ _________________________ D a t e H e a r i n g O f f i c e r