Moon Area School District | Case 6283-05-06 | 2006-06-08

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. PENNSYLVANIA SPECIAL EDUCATION HEARING OFFICER DECISION Child’s Name: C. N. Date of Birth: xx/xx/xx Date(s) of Hearing: March 13, 2006; April 3, 2006, May 1, 2006, May 2, 2006 CLOSED HEARING ODR NO. 6283/05-06 LS Parents Parents’ Representative: Mr. and Mrs. Parent Jefferey Ruder, Esq. 1717 Murray Avenue, Suite 101 Pittsburgh, PA 15217 School District: District Representative: Moon Area School District Michael Brungo, Esq. 8353 Moon Boulevard Maiello, Brungo & Maiello Moon Township, PA 15108-2509 1 Churchill Park, 3301 McCrady Pittsburgh, PA 15235 Dated Transcript Received: 5/8/06 Date Closing Arguments Received: 5/24/06 Date Record Closed: 5/24/06 Date of Decision: 6/8/06 Hearing Officer: Margaret Drayden, Esq.

2 Précis Student is a xx-year old child identifie d with multiple needs including mental retardation, speech and language delays, occupational therapy needs, epilepsy, and, possibly, autism. Currently, Student attends an early intervention program 5 days a week because the District and Parents have not agreed upon what constitutes an appropriate placement for Student. The District believes Student needs a part-time life skills program and part-time regular education kindergarte n program while Parent s believe Students needs can be provided in a regular educati on classroom with supplementary aids and services. Stipulations 1. Dr. M is an expert in the areas of child development, school psychology and autism. (NT at 25.)1 2 Findings of Fact 1. Student was born on xx/xx/xx and is currently [school aged]. (D-1, D-9.) 2. Student has received early in tervention services since infancy and is currently in an early intervention education al program wh ere she also receives speech and language (“S/L”) and occupational (“OT”) therapies. (Id.) 3. Student has a history of neonatal seizures and complex partial seizures which are primarily nocturnal. (Id.; NT at 149-50.) 4. As of 5/6/05 [date of the initial Evaluation Report (“ER”)], Student was identified as a child with disability categories in autism , mental retardation (f ull scale IQ score: 40), S/L, other health impairment (“OHI”), pervasive developmental disorder – not 1 Parents’ exhibits are noted as “P-“; District exhibits are noted as “D-“; Hearing Officer exhibits are referenced as “HO-“; Noted Transcript is referenced as “NT”; Findings of Fact are noted as “FF”. 2 The quality of transcripts for the first two hearings were exceptionally poor and replete with errors which made citing to it problematic.

3 otherwise specified (“PDD-NOS”), and in need of specially designed instruction. (Id., D-39; NT at 142-144.) 5. The ER was comprised of information gath ered from the AIU Early Intervention Report of October 2004, an Assessment Information of March/April 2005, a telephone conversation with Student’s speech pathologists on 5/10 and 11, 2005, Behavior Assessment System for Children (“BASC”) scores dated 3/15 and 4/7, 2005, Stanford-Binet Intelligence Scales – 5 th Ed. (“SB-5”) scores dated 4/8 2005, a classroom observation of 4/6, 2005, parental input (undated), and included a summary of outside reports from Children’s Ho spital, Watson Institute psychological evaluations and a Wesley Institute Family and Child Development Center report. (D- 9; NT at 126-59.) 6. The ER noted Student’s Strengths as: Gr oss motor strengths; positive response to dietary changes; pleasant, compliant de meanor; developing la nguage skills; and Needs were noted as: Increase functional communication skills, develop interaction skills, increase adaptive skills and func tional independence, increase academic readiness, and increase task focus and attention. (Id.) 7. The school psychologist administered the S cales of Independent Behavior – Revised (“SIB-R”) on 4/7/05 and found that Student’s overall measure of adaptive behavior was, on that date, “comparable to that of an average individual at age 1 year 9 months. Her functional independence is very limited…..[her] motor skills are limited. Her social interaction and comm unication skills, personal living skills, and community living skills are very limited.” The school psychologist found limitations in 13 adaptive skill areas a nd opined that Student “will ne ed frequent support, much more than others her age, primarily because of very limited adaptive behavior.” (D- 38; NT at 127-28.) 8. The school psychologist found Student eligible for special education with an autism spectrum disorder due to her PDD-NOS dia gnosis, a S/L impairment, a diagnosis of moderate mental retardation, and OHI due to a seizure disorder. (NT at 159-60.) 9. The school psychologist recommended a pa rt-time life skills class with some mainstreaming. (NT at 160-65.) 10. The District’s life skills program currently has a life skills special education teacher, 2 full-time and 2 part-time instructional assistants for 4 pupils; if Student were to attend this class, she would be the 5 th student in the class. (NT at 165.) 11. The school psychologist only “briefly cons idered” full inclusio n in the regular education kindergarten class because she fe lt it would be “setti ng [Student] up for a lot of frustration and lack of success.” (NT at 166.) 12. The psychologist testified that an adaptive curriculum is offered in learning support class and there are students with mental retardation a nd autism in learning support

4 classes but she believes Student’s needs ar e such that they ne ed an alternative curriculum, which is offered in the life skills class. (NT at 166-69.) 13. The psychologist testified th at learning support students are on “possibly the same grade level” and use the same texts and materials as the regular class, but with some supplemental services. (NT at 222-224.) 14. The school psychologist testified she believes Student needs an alternative curriculum and opined that this could not be successfully administered in a regular classroom setting. (NT at 167-170.) 15. The school psychologist considered and rejected an approved private placement. (NT at 224.) 16. The school psychologist opined that the difference between a life skills class and a regular education classroom with a one-on-one aide would be the “life skills teacher …is trained and able to facil itate her learning much more appropriately with all of the supplemental aids and supports available within that classroom in terms of being able to design learning situations for her that she can be successful with as opposed to a kindergarten classroom of anywhere from probably 20 other students with an instructional assistant that is going to be reinforcing the skill that a regular kindergarten teacher is going to be instructi ng the entire class at one time. I think the instruction is going to be much less indi vidualized, because the instruction doesn’t come from the instructional assistant….I th ink it would be difficult for an assistant to break a task down in a kindergarten environmen t. I think that would have to be done – that would have to be done by the teacher.” (NT at 265-266.) 17. The school psychologist testified that sh e did not believe a regular education kindergarten teacher could “bridge the gap” between a regular kindergarten curriculum and Student’s needs because “I don’t think a kindergarten teacher would have the skills to be able to do that.” (NT at 267-68.) 18. When asked if coloring or cutting, whic h are part of the Kindergarten Curriculum, could be broken into the necessary task s for Student, the psychologist testified instructional aides could facilitate Student but that she wasn’t sure Student “could do them with a reasonable level of success comp ared to her peers” and “I think she to perform as a typical participating kinderg arten kid, she would have limited success with coloring and cutting, because part of what tasks she would need [would include] … be[ing] able to identify which color she is being directed on.” (NT at 269-70.) 19. The psychologist testified that she thought Student would make some progress in a regular classroom with a one-on-one aide but she would ma ke more progress in a life skills class. (NT at 271-272.) 20. The psychologist testified that she feels a li fe skills teacher is better at breaking down complicated tasks into manageable steps th an a regular education teacher and that

5 even if a regular education teacher was trained in how to break down tasks for Student that “there would be the issue of implementation” which would still remain. (NT at 278.) 21. When asked “Do you have any way of know ing, … whether or not [Student] would be capable of making meaningful educational benefit in a mainstream classroom with all the supports that we ju st talked about? Do you have any way of knowing whether she could or could not?” the psychologist testified, “No, I wouldn’t have any way of knowing for certain.” (NT at 285.) 22. The psychologist testified that she believes Student would receive meaningful educational benefit in the life skills clas s, but could not state Student would not receive a meaningful educational benefit if provided with all the supplemental aids and services in a regular education class. (NT at 311, 328-330, 332-33.) 23. The psychologist testified sh e believes Student would have better interaction with children with similar cognitive and developmental delays rather than in a regular education classroom. (NT at 351-352.) 24. The psychologist testified that special e ducation teachers consult with regular education teachers when there are identified children in the classroom. (NT at 353.) 25. The psychologist testified th at the regular education ki ndergarten classroom teacher would have regular access to the special education teacher. (NT at 354.) 26. The psychologist understands “meaningful educational benefit” to mean, in her professional opinion, “making progress toward goals that were delineated to be necessary for the child to have appropria te educational participation in a school environment.” (Id.) 27. The psychologist has not seen personal living skills, such as toileting and dressing, addressed in a regular education classroom. (NT at 356-57.) 28. Student’s 10/15/04 Early Intervention IEP – under “Present Levels of Educational performance” – described Student, inter alia, as an affectionate and fun-loving child who enjoyed coming to school and was able to communicate her needs; that she “seeks out adults, gains eye contact, will poi nt or ‘pull’ adult to what she wants.” Student “is able to imitate one-step direct ions, follow the daily routine with minimal prompts, participate in circle time and work activities with verbal and physical prompts, and wait for her turn….[She] greets familiar adults spontaneously, discriminates between familiar and unfamiliar persons, expresses emotions, knows her first name and age, and follows directions related to the daily routine, and waits her turn for teacher or adult attention. [She] was able to match a circle, triangle, and square is able to sort forms by shape a nd color. [Student] can give 2 objects on request, and respond to one more when presen ted with manipulatives.” Student uses “at least 25 words or parts of words in the classroom setting.” (D-1.)

6 29. Student’s 10/15/04 E.I. IEP contained 5 Measurable Annual Goals, each with multi- Short-Term Objectives/Benchmarks. The Goals included the areas of language and vocabulary, total communication, sensory motor skills, fine motor skills, and self-care skills. There were also 3 Annual Goals pert aining to staff assisting with transition to the District. Specially designed instructi on contained 20 separate entries, including TSS support which would fade. (Id.) 30. Student’s 10/15/04 E.I. IEP st ated Student “will particip ate with non-e ligible peers 100% of the time.” (Id.) 31. Parents and the District mutually agreed to an independent education evaluation, entitled Psychological Evaluation, dated 11/16/05, was conducted by Dr. M [from] The Watson Institute. (D-28; NT at 26.) 32. Dr. M had previously conducted a wrap ar ound evaluation of Student at The Watson Institute in July of 2003 and on 10/19/05. (NT at 27.) 33. Dr. McAllister noted that Student’s only problematic behaviors had been directed towards her TSS but said behaviors were “manageable on the days that the TSS was not able to attend.” (D-28; NT at 32.) 34. Dr. M observed Student in the classroom, th e hallways during transi tions, and in the gross motor room in activities for 70 minutes. The evaluation was based upon this observation, a Parent report, input from Student’s EI program, discussions with the EI program director and EI personnel. Additionally, he ha d read the school psychologist’s report, the District’s proposed IEP, and previous wrap-around reports. (D-28; NT at 26-32, 36, 75-80.) 35. The Psychological Evaluation concluded th at Student’s presentation was more consistent with “global retardation that w ith an autism spectrum disorder.” This conclusion was based on Student obtain ing a score of 22 on the Childhood Autism Rating Scale (“CARS”), where scores “of 30 and above are considered to fall within the autistic range” as well as by observing St udent’s social skills are more advanced than a child with autism. He “would not expect a level of engagement or social engagement [Student] shows, smiling, rec ognition of people, reciprocal smiling, interest in other people. Just general so cial orientation she is displaying is more social skill that I would expect in a child with autism at this age.” (D-28; NT at 44- 45.) 36. Dr. M found Student’s skills on par with a 1-1/2 to 2-1/2 year old child. (NT at 45-6.) 37. Dr. M’s “professional opinion is that stude nt’s primary diagnosis would be mental retardation. I don’t see the autism diagnosis as fitting at this time.” (NT at 46.) 38. Dr. M’s diagnosis is contrary to the Distri ct school psychologist’s primary diagnosis

7 of autism with mental retardation as a s econdary category. However, the school psychologist did not find that inconsistent with her assessment. (D-9; NT at 172.) 39. Dr. M opined that Student would receive a le sser level of educational benefit from a full-time regular Kindergarten class than a part-time life skills class but could not state Student would not receive a meaningf ul educational benefit from a full-time regular education Kindergarten class with a full range of suppl ementary aids and services. (NT at 83-87, 97, 100-101.) 40. Dr. M opined that if Student were in a fu ll-time regular education class, “a menu of possibilities – not necessarily something th at you would recomm end” could include an aide, a second teacher in the class, cons ultants, and ancillary supports such as S/L and OT. (NT at 83-84.) 41. Dr. M opined that Student could do parallel academic activities in a regular education class. For example, if regular peers we re adding and subtracting numbers, Student could work on coins. (NT at 109-111.) 42. Dr. M testified that his prefer ence would be to transition St udent from the life skills class to regular Kindergarten “on a gradual basis” and that “if the transition goes smoothly, that might happen in a matter of weeks in introducing academic tests.” He did not project a lengthy pe riod of time for increasing her inclusion in regular education. (NT at 110-114.) 43. The school psychologist testified she did not see Student transiti oning into a regular education classroom on a full-time basis. (NT at 345-46.) 44. Dr. M opined that while it is “desirable in terms of inclusion” to have Student’s education program mirror what is being taught in the regular education classroom, “it is not an absolute requirement.” (NT at 114-15.) 45. On 12/15/05, Student was observed for an Assistive Technology Consultation (“ATC”), and the report issued on 12/28/05. (D-30.) 46. The ATC noted Student followed verbal dir ections, “demonstrated a significant level of eye contact and was observed to respond with appropriate actions and imitation/approximations of sign/gestures /vocalizations.” The ATC recommended “implementation of a total communication approach that includes the use of vocalization, sign/gesture, and visual supports/picture symbols.” (Id., NT at 450-52.) 47. Student has limited verbal speech and has sign language skills. (NT at 342, 451, 501.) 48. The District’s proposed IEP, dated 1/19/ 06, incorporated the present levels of academic achievement from the ER. Unde r “Effect on Involvement and Progress in General Education Curriculum” it states: “[Student] has difficulty integrating sensory

8 information as needed for organized purposef ul activities at school and at home. She struggles with the use of her hands for all fine motor activities a nd self-care tasks. Student has limited pre-writing and pre-cutti ng skills for academics in the classroom. [Student] exhibits severe needs in the ar eas of receptive and expressive language.” (D-31.) 49. The 1/19/06 proposed IEP contains 7 Annual Goals with multiple Short Term Objectives. (Id.) 50. The Program Modifications (“PM”) and Sp ecially Designed Inst ruction (“SDI”) are to be provided in a special education class, a regular education class, speech room, and throughout the school as needed. (Id.) 51. The school psychologist testified that the PM and SDI were, to a large extent, pre- academic in nature. (NT at 189.) 52. The District’s 1/19/06 Notice of Recomm ended Educational Placement (“NOREP”) recommended a part-time life skills support program as well as S/L therapy. It shows the only other placement considered was learning support. (D-32.) 53. The part-time life skills cla ss and part-time regular edu cation kindergarten class as currently set forth in the 1/ 19/06 proposed IEP is based on a ½ day – consisting of 160 minutes per day. However, this could change for the 2006-07 school year to a full-day program. (NT at 425-433.) 54. Student’s proposed ½ time in life skills and ½ time in regular kindergarten was considered by the life skills and regular kindergarten teachers, and they proposed a schedule of: Regular Kindergarten Life Skills classroom Monday: 65 minutes 95 minutes Tues/Wed/Thurs: 95 minutes 65 minutes Friday: 85 minutes 75 minutes (NT at 425- 431.) 55. Student could attend school in the fall with a ½ day in a kindergarten class or a ½ day in a first grade class with the remainder in her life skills class. (NT at 372.) 56. On 2/22/06, the EI program issued a Progress Monitoring Report to Parents which reported Student making progress on her IEP go als. Seven goals were either totally or partially mastered; 4 goals showed “S” for “steady, consistent progress; and 15 goals were listed as “E” for emerging skill/inconsistent progress. (P-2.) 57. The life skills K-2 teacher wr ote the Measurable Annual Goals (except for the S/L goals) for the District’s proposed 1/19/06 IEP. (NT at 373-384.)

9 58. The life skills K-2 teacher wrote those goa ls without having observed Student but by just reading the ER. (NT at 393.) 59. The life skills K-2 teacher testified that Student could address those goals in the kindergarten classroom but she would be wo rking on a separate curriculum from the other kindergarten students for approximately 80% of the goals. (NT at 393-94.) 60. The life skills K-2 teacher testified that a benefit to a life skills class is small group work which she believes is optimal but she would not state that the regular education classroom, whether kindergarten or first grade, would be unproductive for Student. (NT at 397.) 61. The life skills K-2 teacher testified that when she attended the IEP meeting on 1/19/06, there was a high probability that sh e would be Student’s teacher as that was why she was invited to attend. (NT at 408, 437, 441-43.) 62. The proposed January 2006 IEP was written for a 30-day period upon the assumption that Student would have already learned 40-50% of the skills, so a 30-day trial period was proposed to see her true current levels. (NT at 397-98.) 63. The life skills K-2 teacher came to the IEP team meeting with goals written “because it was assumed that I would be the teacher.” (NT at 402.) 64. The only placements consider by the IEP team were learning support and life skills. (NT at 413-14, 417.) 65. The EI coordinator testified that Student attends class with non- eligible peers 100% of the time. (NT at 475.) 66. Student attends the EI program 5 days a week with 2 different peer groups. Students usually attend a Tuesday/Thursday or Monday/Wednesday/Friday schedule. However, an agreement was reached for Student to attend 5 days per week so she would receive the same amount of schooling as she would if attending the District kindergarten program. (NT at 476-77, 579.) 67. On Monday/Wednesday/Friday, Student’s class has 13 students with 2 who are typically developing, 1 student has only a S/L delay, ot hers have various needs in social, adaptive, behavior or cognitive areas. (NT at 477-78, 532-34.) 68. On Tuesday/Thursday, Student’s class has 10 students, 2 who are typically developing, 1 has only social needs, 5 have developmental delays and 2 have autism. (NT at 479.) 69. The adults are the same for both classes. There is the special education certified classroom teacher and 2 teaching assist ants; on Monday/Wednesday/Friday a 3 rd

10 teaching assistant is assigned as a one-on-one assistant for one of the students. Both classes have S/L therapists, OT and PT working in the class. (NT at 480, 522-23, 529, 534-35.) 70. The EI curriculum parallels that of the District’s kindergarten curriculum in many areas, including, inter alia, coloring, cutting, r eading readiness, math and science skills, prereading and identifying letters, lear ning sight words. (D-23; P-1; NT at 480-90.) 71. The EI coordinator testified she has known Student for 3 years and while Student’s communication delays are a signi ficant barrier to her social interaction because other children expect her to respond verbally, Student imitates ot her children and want to be with them. (NT at 510-11.) 72. The EI coordinator testified that it is best practices to have typi cal peers/models for children with special needs. (NT at 514.) 73. The EI coordinator testified that the onl y time the needs of typical children are impeded by being with identified children is when there are behavior problems but that Student does not have behavior issues that would interfere with other students’ learning. (NT at 516-17.) 74. Student is not toilet trained, but her needs are met by having a se t bathroom time and Student wears pull-ups. (NT at 517-18.) 75. The toileting schedule in the District’s life skills class would be handled primarily by a TSS or teacher assistant. (NT at 373-74.) 76. Student wants to communicate with other ch ildren and the special education teacher created a “communication book” for her so she could participate in activities. (NT at 552-555.) 77. The EI classroom teacher testified that St udent has made “great progress” – more than she expected when she first met her. The teacher also testified that Student has experienced great progress with peer interaction. ((NT at 558-59.) 78. Student had a TSS until Janua ry; since that time Student has become increasingly verbal, more interactive with peers, ha s shown more growth in skills, and the classroom teacher is seeing skills which Pa rent has reported seeing in the home. (NT at 559-575, 602-03.) 79. Student lacks skills typical of most kindergarten students. (NT at 580-590.) 80. Dr. M – B.A. in psychology from Wheeli ng Jesuit University, 1978; M.S. and Ph.D. in psychology from the University of R hode Island, 1985. He is certified as a school psychologist in Pennsylvania since 1990 and since 1983 in Maryland and is a licensed

11 psychologist. He has 28 years relevant e xperience and has been the Director of Psychological Services at The Watson Institute since January 2000. (D-37; NT at 23- 25.) 81. The school psychologist has a B.A. in sc hool psychology and sociology from Ball State University, a Master’s in school psychology, post Master’s work from Ball State, Indiana Universit y, Bloomington, University of Pittsburgh, and Duquesne University. She is a Level Two certified school psychologist in Pennsylvania and has a certificate for W. Virginia and license for Indiana. She has 27 years experience as a school psychologist and is in her 8 th year as a school psychol ogist with the District. (NT at 119-120.) 82. The life skills support teacher has a dual certification from Pennsylvania State University in elementary and special education, and has a Master’s degree in teaching the developmentally impaired from the Un iversity of Pittsburgh. She has been a teacher “off and on” for 22 years and employed with the District for 5 years. (NT at 366.) 83. The speech pathologist has both a Bachelo r’s degree in speech, language and hearing and a Master’s in speech a nd language from W. Virginia University. She has a certificate of clinical competence from the American speech and Hearing Association and Pennsylvania and W. Virginia certifications to teach in public schools. She has 19 years’ experience and is employed by th e [local] Intermediate Unit. (NT at 445- 46.) 84. The Early Learning Institute center coordina tor of the Ohio Va lley preschool center has a Bachelor’s degree in child development and child care and a Master’s degree in special education with a teaching certificat e for special education in Pennsylvania. She has 13 years experience at the Institute and has been the center coordinator for 3 years. (NT at 470-72.) 85. The Early Learning Institute special educa tion teacher has a B.S. in education from California University, is certified in both special education and elementary education, has an unspecified number of years of experience, but has been with the Institute for 2 years. ((NT at 520-21.) Witness Credibility 1. This Hearing Officer finds the testimony of Dr. M, who is the expert mutually agreed upon by Parents and Distri ct, to be highly credible. He has 28 years of relevant, extensive experience in the field of autism sp ectrum disorders; he ha s researched, taught and publicly addressed a wide variety of audiences. His demeanor throughout his testimony was professional and his commitment to educational practices obvious. Dr. M had prior experiences with Student and saw her in various educational settings for over an hour, spoke with her school administrators, an d reviewed records be fore preparing his IEE. Due to his years of experience in the field of autism spectrum disorders, his

12 testimony was persuasive that Student does not meet the diagnosis of autistic, but rather is mentally retarded and that Student’s edu cational program must address that particular need. While Dr. M found Student would initially benefit from a part-time life skills class, his focus was on increasing Student’s inclusion in the regular education classroom. This was highly persuasive in light of the congressional mandate for mainstreaming. 2. The school psychologist has post-Mast er’s work in school psychology and 27 years of experience as a school psychologist. She spoke knowledgeably and maintained a professional demeanor throughout the hearing, including extensive time testifying. Her concern for Student was obvious and it was clea r that she wanted Student to obtain the best possible education the District offers. However, this Hearing Officer discounted her testimony for failure to consider well-accep ted inclusionary practices which permit disabled students with signi ficant disabilities to successf ully experience a full-time regular education classroom as well as reject ing those which were pos ited to her during her testimony. Additionally, her determinations regarding the lack of skills that a regular education teacher has to meet the needs of identified children, including things such as coloring or cutting, were such that this Hearing Officer found her testimony less credible. 3. The life skills support teach er has a Master’s degree and 22 years of “off and on” teaching. She presented herself well and this Hearing Officer believes she is a capable teacher. However, her test imony had limited value for determining whether or not Student should receive full-time or part-time regular education. 4. The speech pathologist also presented he rself in a professional manner, is well educated – possesses a Master’s degree in speech and language – and has 19 years of experience and attested to Student’s need for speech and language, but was unable to add weight one way or the other as to whethe r Student should be in a regular education classroom full- or part-time. 5. The Early Learning Institute coordinato r has a Master’s degree in special education and 13 years’ experience with 3 of those years as Coordinator. She has known Student for those 3 years and has seen Stude nt’s educational advancement. She was professional and had a calm demeanor, totally believable and reasonable, presented a clear picture of Student – her strengths and needs. Her testimony was very persuasive. 6. The Early Learning Institute special educat ion teacher has a B.S. in education and is dually certified and is an experienced teacher. Sh e presented herself as knowledgeable about Student, expressed a very pleasant surprise at the ways in which Student has grown recently, most particularly due to the absenc e of the TSS. The teacher was professional and eager to share her insigh ts about Student, and she also was professional, totally reasonable and believable in her testimony. Her testimony was very persuasive as well.

13 Issues 1. Can Student’s receive a free appropriate public education in a regular education classroom or does she require a part-time life skills kindergarten class?3 Discussion and Conclusions of Law Jurisdiction A due process hearing is a hearing authorized through sp ecial education laws of both federal and state legislation. The jurisdiction of such a hearing is highly circumscribed. A hearing officer cannot de cide any issue – no ma tter how significant – which is outside those narrowly defined para meters. Thus, any concerns parents may have regarding education se rvices which concern matters beyond those parameters are beyond the purview of this process and this Hearing Officer. Witness Credibility Within the context of the special educa tion arena, however, “Hearing officers are empowered to judge the credibility of witnesses, weigh evidence and, accordingly, render a decision wherein the hearing officer has included ‘findings of fact, discussion and conclusions of law. . . [and] the decision shall be based solely upon the substantial evidence presented at the hearing.’”4 Quite often, testimony – or documentary evidence – conflicts; this is to be expected for, had the parties been in full accord, there would have been no need for a hearing. Thus, as stated , part of the responsib ility of the Hearing Officer is to assign weight to the testimony and documentary evidence of facts which 3 This is the agreed upon issue as set forth in the NT at 19. While Parent’s counsel then stated there would be an issue of what supplemental aids and services were considered, that is subsumed in the agreed upon least restrictive environment issue. (NT at 20.) 4 Spec. Educ. Op. No. 1528 (11/1/04), quoting 22 PA Code, Sec. 14.162(f). See also, Carlisle Area School District v. Scott P., 62 F.3d 520, 524 (3rd Cir. 1995), cert. denied, 517 U.S. 1135 (1996).

14 concern a child’s special education experience. Hearing Officers have the plenary respons ibility to make “e xpress, qualitative determinations regarding the relative credibility and persuasiveness of the witnesses” and “give some reason for discounting” 5 or crediting evidence. Further, Hearing Officers’ decisions are to “specifically mak[e] credibility determinat ions among the various witnesses and contrary expert opinions”. 6 The Third Circuit, in Shore Regional High School Bd. Of Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004), held that “if a state administrative agency has heard live test imony and has found the testimony of one witness to be more worthy of belief than th e contradictory testimony of another witness, that determination is due special weight. Id.; 7 Carlisle Area School v. Scott P., 62 F.3d 520, 527-29 (3d Cir. 1995). Specifically, this means that a District Court must accept the state agency’s credibility determinations ‘unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.’ Ca rlisle, 62 F.3d at 592 (emphasis added). In this context the word ‘justify’ demands essentially the same standard of review by a federal appellate court. See A nderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985).”8 This court further held that “t he task of evaluating [witnesses’] conflicting opinions lay in the first instan ce with the ALJ in whose presence they testified.”9 Similarly, credibility has been addre ssed in various jurisdictions. Looking to California, Stevens v. Parke Davis & Co., 9 Cal.3d 51, 67-68 (1973) held that a trier of fact may “accept part of the testimony of a wi tness and reject anot her part even though 5 Blount v. Lancaster-Lebanon Intermediate Unit, 2003 LEXIS 21639 at *28 (2003). 6 Id. at *34. 7 Citing S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003) 8 Shore Regional at 199. 9 Id. at 201.

15 the latter contradicts the part accepted….[and also] reject pa rt of the testimony of a witness, though not directly contradicted, a nd combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected material.” Further, a fact finder may reject the testimony of even an expert witness, although not contradicted. Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 890 (1971) And California c ourts have also found that “one credible witness may constitute substantial evid ence”. Kearl v. Bd. Of Medi cal Quality Assurance, 189 Cal.App.3d 1040, 1052. (1986). Burden of Proof The burden of proof consists of both the burden of production and the burden of persuasion. Neither the IDEA nor the IDEIA 10 addressed the subject of burden of proof and therefore the question of which party bore the burden was handled on a state-by-state basis with only a handful of states passing an y laws or regulations on the matter. In Pennsylvania, the burden in an administrativ e hearing challenging an Individualized Education Program (“IEP”) generally fell to the LEA. Recently, however, the United States Supreme Court addressed this issue in Schaffer v. Weast, 126 S. Ct. 528 (2005). In the concluding paragraph of the Opinion of the Court, Justice O’Connor held: “The burden of proof in an admini strative hearing challenging an IEP is properly placed upon the party seeking relief.”11 In Antoine M. v. Chester Upland School District, Civ. Action No 05-3384, (E.D.Pa. Mar. 14, 2006), the Court held that even where the challenge is not to the sufficiency or appropriateness of an IEP, but rather for the failure to find a child eligible for one, “the overarching logic of Schaffer – that, in the context of the IDEA, the 10 The IDEIA is variously referred to in case law as the IDEIA or IDEA 2004. In either event, it is one and the same. 11 126 S.Ct. at 537.

16 party bringing the challenge bears the burden of proof…[and] [a] stude nt’s challenge to a district’s determination that he or she is not eligible for an IEP should not be treated any differently than a challenge to the adequacy of an IEP.” Thus, where a “case is brought solely under the IDEA and arises in a state lacking a statutory or regulatory provision purporting to define the burden of proof in administrative heari ngs assessing IEPs, Schaffer controls.”12 The burden of persuasion in an administrative proceeding lies with the party seeking relief.13 This requires the Hearing Officer to make a determination of whether or not the evidence is “equipoise” rather than preponderant. Preponderance of the evidence is defined as evidence presented by one party that is of greater weight or more convincing than the evidence offered by the other party. In other words, where there is evidence which tips the scales, the part y which presented that evidence prevails. However, where the Hearing Officer finds the evidence is e qually balanced on an issue, the non-moving party prevails. In Pennsylvania, the order of presentation of the case is left to the discretion of the Hearing Officer. The Pennsylvania Special Education Dispute Resolution Manual states, in pertinent part, in Section 810 – Burden of Proof – that “[d]espite this general rule, a Hearing Officer has discretion to change the orde r of presentation if he or she believes it is warranted. An example of where that may occur would be wh ere a school district seeks to change a student’s placement, and a parent initiates a du e process hearing to challenge the change of placement. In that instance, a hearing may be more efficiently 12 L.E. v Ramsey Bd. Of Educ., 435 F.3d 384, 391 (3d Cir. 2006). 13 Greenwood v. Wissahickon Sch. Dist., Civ. Action No. 04-3880 (E.D. Pa. Feb. 3, 2006) (“Hence, because there is no Pennsylvania law imposing the burden on the district, Schaffer applies and the burden of persuasion at the administrative level in Pennsylvania is now on the party contesting the IEP”.)

17 conducted by commencing with th e district’s explanation of the rationale for the change.”14 This case warranted such a change of presentation of evidence (burden of production) and the parties agreed that the District would present its case first. After a close examination and analysis of all of the evidence and the testimony, this Hearing Officer did not find “equipoise”. Thus, the burden of persuasion was not at issue in this case. Least Restrictive Environment Appropriate for Student While the IEP goals and objectives (ex cept for those for speech and language) were written prior to the Team meeting by the life skills teacher with that placement in mind, Parents are not questioning the appropria teness of the District’s proposed IEP but they do disagree with where it is to be implemented. The IDEIA provides that iden tified students are to be educated to the maximum extent appropriate with childre n who are not disabled. To that end, “special classes, separate schooling, or other removal of chil dren with disabilitie s from the regular educational environment occurs only when the na ture or severity of the disability of a child is such that education in regular classes with the us e of supplementary aides and services cannot be achieved satisfactorily.” 20 U.S.C. Sec. 1412(a)(5)(A); 34 C.F.R. Sec. 300.550. The Third Circuit addressed the issue of l east restrictive environment in Oberti v. 14 See 20 U.S.C. §§1401-1482; 34 C.F.R., Part 300; 22 Pennsylvania Code at Chapter 14.

18 Board of Education of Clementon School District, , 995 F.2d 1204 (3d. Cir. 1993). 15 The court set forth what is now a famous two- part test to determine the appropriateness of a student’s placement. First, the court determines whether education in the regular classroom with supplementary aids and se rvices can be achieved satisfactorily. 16 T o accomplish this, Oberti set forth three factors: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom with supplementary aids and services; (2) a comparison of the edu cational benefits available in a regular class and the benefits provided in a special educ ation class; and (3) the possible negative effects of inclusion on the other children in the class.17 If there is a determination that the child cannot be educated in the regular educat ion classroom, the second part of the test is considered. At that point, the court must d ecide whether the district has mainstreamed the child to the maximum extent possible.18 Part I of II-Part Test Factor No. 1 – Reasonable e fforts to accommodate in the regular education classroom with supplementary aids and services Placement must be in the least restrictiv e environment where Student can receive a meaningful educational benefit.19 Oberti requires that before a placement other than the regular education class can be consid ered, “the school ‘must consider the whole range of supplemental aids and services, including resource rooms and itin erant instruction,’ 15 Oberti is particularly persuasive because Rafael Oberti, although 2 years older than Student and having a history of behavior problems which Student does not experience, had, by virtue of Down’s syndrome, severely impaired intellectual functioning and limited ability to communicate. Student also has a limited IQ and ability to communicate. Id. at 1207. 16 Id. at 1215. 17 Id. at 1220. 18 Girty v. Sch. Dist. of Valley Grove, 163 F.Supp.2d 527, 533 (W.D.PA 2001) 19 See S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 272 (3d Cir. 2003).

19 Greer, 950 F.2d at 696 , speech and language therapy, spec ial education training for the regular teacher, behavior modification programs, or any other available aids or services appropriate to the child’s particular disabili ties. The school must also make efforts to modify the regular education program to accommodate a disabled child.” Oberti, 995 F.2d at 1216 (emphasis added). Absent this “serious consideration to including the child in a regular class with such supplementary ai ds and services and to modifying the regular curriculum to accommodate the child, then it has most likely violated the Act’s mainstreaming directive. ‘The Act does not permit states to make mere token gestures to accommodate handicapped students; its requi rement for modifying and supplementing regular education is broad.’ Daniel R.R., 874 F.2d at 1048; see also Greer, 950 F.2d at 696.” Oberti, 995 F.2d at1216 (emphasis added.) While the District offers Student part -time life skills and part-time regular kindergarten class inclusion, there is no evidence in the record that there was any serious discussion of supplementary aids and services to enable Stude nt to remain in a regular classroom placement on a full-time basis. 20 Rather, the record shows just the opposite – the school psychologist only “bri efly considered” full inclusi on in the regular education classroom.21 Indeed, the life skills teacher was as ked to come to the IEP Team meeting with goals already prepared because there was a high probability that she would be 20 See F/F No. 52 – the NOREP shows the only other placement considered was learning support. 21 F/F No. 11. Further, The school psychologist was not persuasive when testifying that Student would have limited success compared to her peers when coloring or cutting in a regular class with the services of an instructional aide . It is not necessary for Student to attain the same level – or even broach the same level – of mastery of an academic area. Rather, one asks: “can the IEP be implemented in the regular education classroom?” As addressed by the court in Roncker v. Walter, 700 F.2d 1058 (6 th Cir. 1983), the issue of “bringing educational services to the child” rather than “bringing the child to the services” established a “principal of portability”, and held that “if a desirable service currently provided in a segregated setting can feasibly be delivered in an integrated setting it would be inappropriate under P. L. 94-142 to provide the service in a segregated environment.” Id. at 1063.

20 Student’s teacher. 22 Testimony and the District’s NOREP shows the only other placement considered was learning support.23 The school psychologist testified th at she did not believ e a regular education teacher could “bridge the gap” between the curriculum and Student’s needs nor “have the skills to be able do that.” 24 These conclusions were reached without the IEP Team’s consideration of a full range of supplementary aids and se rvices which could enable Student to remain in the regular education kindergarten class for academics. There was no discussion of special teach er training, co-teaching, use of an itinerant teacher trained in aiding students with mental retardation, consultation for the regular teacher, or any other well-accepted inclusion techniques. See Girty, 163 F.Supp.2d at 536 (“simple techniques exist which could be used to faci litate Spike’s inclusion in regular education instruction….with a small amount of research into the methods that many school districts already use, a program beneficial to Spik e could be developed.”); Blount, 2003 LEXIS 21639 at 27 (“A review of the record… does not show that the IU proposed any specific supplementary aids and services,….The IU did not present any ev idence as to what specific supplemental aids and services it considered. Its exhibits…make no reference either to those specific supplementary aids and services typically available to comparable children, or to any actually considered by the relevant decision-m akers in the instant case.”) and Oberti, 995 F.2d at 1211 (“a num ber of commonly appl ied strategies…could be used, in combination, by the Sc hool district to integrate Rafael in a regular classroom, including: (1) modifying some of the curriculum to accommodate Rafael’s different level of ability; (2) modifying only Rafael’s program so that he would perform a similar 22 F/F Nos. 57, 58, 61 and 63. 23 F/F No. 52. 24 F/F No. 17.

21 activity or exercise to that performed by the wh ole class, but at a le vel appropriate to his ability; (3) ‘parallel instruction,’ i.e., having Rafael work separately within the classroom on an activity beneficial to hi m while the rest of the class worked on an activity that Rafael could not benefit from; and (4) rem oving Rafael from the classroom to receive some special instruction or services in a resource room, completely apart from the class. Dr. Brown explained that with proper training a re gular teacher would be able to apply these techniques and that, in spite of Rafael ’s severe intellectual disability a regular teacher with proper training would be able to communicate effectively with Rafael. Dr. Brown also testified that many of the spec ial educational techni ques applied in the segregated Winslow class could be pr ovided for Rafael within a regular classroom….[Further] speech and language therapy Rafael needs could be most effectively provided within a regular cl assroom….language and speech therapy could easily be provided by a therapis t inside the regular class dur ing ongoing instruction if the therapist were able to collaborate ahead of time with the instructor regarding the upcoming lesson plans….Dr. McGregor…testified that, given the resources and expertise available to public schools … the School Distri ct should be able to design an inclusive program for Rafael with assistance from pr ofessionals who have experience integrating children with disabilities in regular classes.”) Steps such as these are what Oberti referred to as “reasonable efforts to include [Student] in a regul ar classroom with supplementary aids and services”. Oberti, 995 F.2d at 1204. The District offered no testimony to show there was any cons ideration of any combination of supplementary aids and serv ices or that Student would be unable to receive a meaningful educational benefit with such aids and services. Further, the school

22 psychologist testified she would have no wa y of knowing whether or not Student could experience a meaningful educational benefi t in the regular education classroom if provided all of the necessa ry aids and services. 25 Certainly absent the legally mandated full range of supplementary aids and services, Student is unlikely to receive educational benefit from the regular kinderg arten class. This Hearing Officer does not dispute that the life skills class could be the optimal placement. Nonetheless, the legal standard is not what is optimal. Rather, it is the least rest rictive environment where student can obtain an adequate or “meaningful educational be nefit in light of his individual needs and potential.26 This Hearing Officer finds the eviden ce not only preponderant but clear and convincing that the District failed to make reasonable efforts to accommodate Student in the regular classroom with appropriate supplemental aids and services. Factor No. 2 - A comparison of the educational benefits available in a regular class and the benefits provided in a special education class This portion of the analysis requires (1) a heavy reliance on the “testimony of educational experts”, and, (2) a requirement that the Hearing Officer “must pay special attention to those unique benefits the child may obtain from integr ation in a regular classroom which cannot be achieved in a segregated environment, i.e., the development of social and communication skills from interaction with nondisabled peers”. 27 (emphasis added.) The second element was discussed at length by the Oberti court. It found a “fundamental value of the right to public educ ation for children with disabilities is the right to associate with nondisabled peers ….Thus, a determination that a child with 25 F/F No. 21. 26 T.R. v Kingwood Township Bd, of Educ., 205 F.3d 572, 578 (3rd Cir. 2000). 27 Oberti at 1216.

23 disabilities might make greater academic progress in a segregated, special education class may not warrant excluding that child from a regular classroom environment. We emphasize that the Act does not require states to offer the same educational experience to a child with disabilities as is generally provided for nondisabled children. [cites omitted.] To the contrary, states must address the unique needs of a disabled child, recognizing that that child may benefit differently from edu cation in the regular classroom than other students. See Daniel R.R., 874. F.2d at 1047. In short, the fact that a child with disabilities will learn differently from his or her education within a regular classroom does not justify exclusion from that environment.” Oberti at 1216-1217. A. Testimony of Educational Experts Dr. M testified his preference for a part-tim e life skills class to enable Student to transition to a regular Kindergarten class and opined that that could take place in a matter of weeks, as opposed to months or even years. 28 He further stated that Student could do parallel academic activities in a regular educa tion class; for example, while typical peers were adding and subtracting numbers , Student could be working on coins. 29 H i s professional opinion was that St udent would receive a lesser level of educational benefit from a full-time regular Kindergarten class than a part-time Kindergarten and part-time life skills class, but could not state that Student would not receive a meaningful educational benefit from a full-time regular placement with a full range of supplementary aids and services.30 28 F/F No. 42. 29 F/F No. 41. See Oberti at 1211. Parallel instruction is included as an inclusion technique. -- This position is at variance with the District. The District plans for all of Student’s academic activities to be provided for in the life skills class. 30 F/F No. 39. Additionally, the District and Dr. M’s observations and evaluations took place while Student still had a TSS. Student’s classroom teacher testified that Student has ma de remarkable progress this year without the TSS.

24 Also persuasive was Student’s program coordinator’s testimony that Student currently attends class with non-eligible peers 100% of her educational day and that it is best practices to have typical peers/ models for children with special needs. 31 Additionally, some of the identified students have minimal exceptionalities such as a speech and language delay or social needs. Student’s classroom t eacher testified very credibly that Student has recently experienced “great progress” since she has been without the TSS, thus forcing her to be more independent, that ther e has been progress with peer interaction - that Student is reachi ng out to these peers a nd is making effort to model herself after them, and Student is becoming increasingly verbal. 32 B. Requirement that Hearing Officers “must pay special attention to those unique benefits the child may obtain from integra tion in a regular classroom which cannot be achieved in a segregated environment.” As previously noted, Student has - ju st this year – started experiencing unexpected gains in her efforts at interaction with nondisabled peers. She is attempting to be more verbal and independent. Cert ainly the opportunity to model those more developed behaviors exists in the regular classroom. Opportunities for developing friendships with nondisabled students and peer modeling in academic areas such as coloring and cutting are available in the re gular classroom. While the District would have to modify the curriculum to meet Student’s needs, this is “’not a legitimate basis upon which to justify excluding a child’ from the regular classroom unless the education of other students is significantly impaired.” 33 On the other hand, there certainly are benefits to a life skills program. Small class size and a 1:1 ratio of adults to children is very appealing, as is the immediate access to a 31 F/F Nos. 65 and 72. 32 F/F Nos. 76, 77, 78. 33 Oberti at 1222.

25 special education teacher with the years of experience that the District is willing to provide. The school psychologist believes this is the setting where Student could benefit most from her educational program.34 In comparing the benefits, this Hearing O fficer must again turn to Oberti. “[A] determination that a child with disabilitie s might make greater academic progress in a segregated, special education class may not warrant excludi ng that child from a regular classroom environment.”35 Further, the Blount court found a Congressional preference for mainstreaming children “at the earliest possi ble time, rather than assigning a disabled child to special education with the hope that he will improve sufficiently to go into a mainstream educational setting.” 36 It appears to this Hearing Officer that while the life skills class could offer a higher degree of personal atte ntion, the testimony of the EI coordinator and classroom teacher, combined with that of Dr. M, lead s to the conclusion that if Student was provided with supplementary aids and services individualized to Student’s educational needs, Student could currently experience a meaningful educati onal benefit from a regular education class. As in Oberti, of c ourse, there is the possibility that as Student reaches higher grades, “inclusion in regular academic classes may become less appropriate” for Student. 37 That decision is not before this Hearing Officer, however, and it would certainly be premature to speculate upon. Factor No. 3 - The possible negative effects of inclusion on the ot her children in the class. 34 F/F No. 22. 35 Oberti at 1217. 36 Blount, 2003 LEXIS 21639 at 41, fn. 5. 37 Oberti, 995 F.2d at 1224.

26 Oberti requires a consideration of any disruptive behaviors which could negatively impact upon the educatio n of other classroom children. 38 There is no dispute that Student’s behaviors are within acceptable norms and this is not a concern. Part II of II-Part Test The second part of the test, which is a determination as to whether the school has mainstreamed the child to the maximum extent appropriate, is reached only if there is a finding that placement outside of the regular classroom is required. There is no need to address the second part of the test in this case. CONCLUSION The foregoing analysis leads to the conclu sion that the Parents met their burden of proving by a preponderance of the evidence 39 that District did not consider a regular education placement with supplementary aids an d services and that Student can receive a free appropriate public education in a regular education classroom. Compensatory Education Awards A student is entitled to compensatory e ducation starting when the District knew or should have known that it had not provide d FAPE. The period of compensatory education is equal to the period of deprivation, excluding the time reasonably required for the District to rectify the deprivation.40 38 Id. at 1217. 39 Parents chose to meet their burden through the testimony of the EI coordinator, classroom teacher, and Dr. M who was a mutually-agreed upon expert, as well as by Parents’ counsel’s cross-examination of District witnesses. 40 M.C. v. Central Regional Sch. Dist. 81 F.3d 389 (3d Cir. 1996).

27 The law does not require a finding of ba d faith or egregious circumstances in order to award compensatory education; ne ither does it depend upon the vigilance of the parents. M.C. v. Central Regional Sch. Di st., 81 F.2d 389 (3d Cir. 1996). Compensatory education is an appropriate remedy to cure the violation of statutory rights while the child is entitled to those rights. Big Beaver Falls Area Sch. Dist. V. Jackson, 615 A.2d 910 (1992); M.C. v. Central Regional Sch. Dist, supra. Courts have found that compensatory education is the appropriate remedy where ther e is a finding of deni al of a FAPE, even where the student maintained good grades and made educational progress. Punxsutawney Area Sch. Dist. v. Kanouff, 719 A.2d 198 (1999). Obviously, then, a program which confers only trivial or minimal be nefit is not appropriate. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988). Nature of Compensatory Education Award Three Appeal Panel decisions are particularly helpful in elucidating the nature of compensatory education awards and provide guidance for this decision. First, Spec. Educ. Op. No. 1481, p. 13, explains: The compensatory education may ta ke the form of any appropriate developmental, remedial or enriching e ducational service, product or device that assists him in overcoming the effects of ha ving been denied FAPE. To that end, the compensatory education shall be in addition to, a nd not supplant, educational services and/or products/d evices that should appropr iately be provided by the district through student’s IEP, to assure meaningful educational progress. These compensatory education services may occur after school hours, on weekends and/or during summer months when conve nient for STUDENT and his parents. The hours and nature of compensatory e ducation created by this paragraph may be implemented at any time from the present to student’s 21 st birthday, as determined by the IEP team. Second, Spec. Educ. Op. No. 1431 (2004), page s 10-13, clarifies the award should meet

28 the present need of Student, ra ther than provide a simple replacement of services denied through lack of FAPE: “Compensatory”, and court interpretations of it in educa tion, continue to suggest to this Panel, as they have in the past, a preferred remedy that replaces precisely what was denied. In a strict sense, compensating for educational deprivation entails, to the extent possible, providing those specific services that should have been a part of FAPE in the first place. Otherwise, the relationship between conduct resulting in denial of services and the remedy, likely necessary to prevent the latter from becoming punitive, can be tenuous. Nevertheless, service-for-service remedial replacement may not always be “compensatory”, particularly where a st udent can no longer derive “meaningful educational benefit” from them. Failing to provide that benefit, and in turn an appropriate education, is what we be lieve compensatory education seeks to address, and not the simple absence of a particular service. Conversely, awarding the identical service later, from wh ich obtaining such benefit has become impossible, is not compensatory and emphasizes the service rather than the benefit. Consequently, we believe the equitable nature of this remedy permits, when previously denied services are no longer appropriate, di scretionary substitution of others. In the first instance, the latter should be directed towards achieving what was or should have been the goals of the deprived services, but this too may fall victim to the deleterious effect time can have on appropriateness. Where that too is the case, then we see a substituted service in furtherance or enrichment of the student’s then current IEP documented educational goals generally as “compensatory”. Decisions as to the form, location, schedu ling, and costs, so long as they remain roughly equivalent to the public costs of these substituted services, can rest with no other than the parent. These controvers ies incept in district failure to provide “meaningful educational benefit”, and if th ey then influence substituted services to remedy that, the rule prohi biting their profit therefrom is besmirched. It is, in fairness, parents who expend the due pr ocess proof and remedy seeking effort, and who must likely deal with making the student available for compensatory services. We see no impropriety, therefore, in parental fashioning of the delivery vehicle for substituted services, if the se rvices are developmen tal, remedial, or enriching instruction in furtherance of the then pending or a future IEP. See In Re the Educational Assignment of B.R., Special Education Opinion 1102 (2001). Obviously, then parents’ discretion is not complete, and a district is not faced with a fait accompli, as it may challenge parent al selections in th e proper forum. It was, then, completely acceptable for this District not to have a role in determining the nature of the compensatory education remedy.

29 … It is insignificant that the goals and serv ices student is recognized as needing are not documented in an IEP, since the focus of compensatory education is and should be that which was denied and not where its need is memorialized. Further, in its Exceptions, the District seeks a limit on the rate for compensatory education services selected by parents. In fact, B. R. and too numerous to cite cases following it, in some instances, support limiting such costs to what the district would have incurred, since the se rvices are in the nature of compensation rather than damages. We believe th e line of demarcation for applying this limitation can only rest in the fact that this remedy is equitable, and facts such as parental inability to secure properly selected services at the dist rict’s rate or cost may justify not applying it. Nonetheless, on this record no factual basis is established for not applying the limitation…. Lastly, further discussion regarding the cost to the District for providing services and the Hearing Officer’s authority to order specific se rvices or programs is discussed in Spec. Educ. Op. No. 1122 (2001), p. 9: …. Except in unusual circumstances, the co st to a district of providing the awarded hours of compensatory education sh ould not exceed the full cost of the services that were denied. Full costs are the salaries and fringe benefits that would have been paid to the actual pr ofessionals and para professionals who should have provided the District servic es and costs for salaries, tuition and transportation, etc. for contracted services . This principle sets the maximum cost of all of the hours or days of compen satory education awarded. Parents may balance expensive and inexpensive instruction or services so that the average cost is below the maximum amount. Parents may also use fewer hours of expensive services as long as the maximum amount is not exceeded. Finally, parents may not be required to make co-payments or use personal insurance to pay for these services. …. By way of dicta, we inform the District (and other interested parties) that this rationale does not preclude a Hearing Offi cer from ordering specific services or programs as compensatory education in some cases. I hereby adopt the rationale of these thre e Appeal Panel decisions and award the following: Compensatory education is due from the date of the District’s January 19, 2006 proposed IEP - as by that date the District knew or should have known it was not offering

30 FAPE - through the end of the 2005-06 School Y ear, less any holidays, vacation days, or days Student was absent from school. The computation of compensatory education per day is the total amount of time the District would have educat ed Student in the life skills class. Attorney’s Fees 34 C.F.R. Sec. 300.513(a) provides that “In any action or proceeding brought under section 615 of the Act, the court , in its discretion , may award reasonable attorneys’ fees as part of the costs to the pa rents of a child with a disability who is the prevailing party.” Emphasis added. In light of the foregoing, a Hearing Offi cer is unable to award attorney’s fees ORDER For the reasons hereinabove di scussed, it is hereby ordered: 1. Student is to receive her free appr opriate public education in a regular education classroom. 2. The School District is ORDERE D to compute the number of hours Student would have attended a life skills classroom from 1/19/06 through the end of the 2005-06 school year and provide Student with compensatory education as provided in this Decision. 3. Parents are not awarded attorney’s fees. _________________________________ Margaret Drayden, H e a r i n g O f f i c e r June 8, 2006