Philadelphia City School District | Case 7398-06-07 | 2007-08-07

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 RG Date of Birth: xx/xx/xx File Number: 7398/06-07 AS Dates of Hearings: 4-23-2007, 5-21-2007, 6-12-2007, 7-16-2007, 7-26-2007 CLOSED HEARING Parties : Representatives : Mr. and Mrs. David Thalheimer, Esq. 1831 Chestnut Street, Suite 300 Philadelphia, PA 19103 School District of Philadelphia Mimi Rose, Esq. 440 North Broad Street Office of General Counsel Philadelphia, PA 19130 440 North Broad Street, 3 rd Floor Philadelphia, PA 19130 Date Transcript/Exhibits Received: 7-31-2007 Date of Decision: 8-7-2007 Hearing Officer: Ronald Fischman, Ed.D.

Page 2 I. BACKGROUND Student is a xx and a half year old male resident of Philadel phia who is currently attending grade 3 of the [Private School], a private school for childre n with learning differences. The student has a lengthy history of a non-ver bal learning disability, an attention deficit disorder, inattentive type , impaired non-verbal me mory, deficits in communications and in social skills, co ncrete thinking, and difficulty with comprehension, abstraction, dysgraphia, executive functioning difficulties, and a significant emotional overlay which affect s his behaviors. He had an Individual Educational Plan for Ea rly intervention. He is currently receiving psychiatric treatment at parents’ expense for depression and for low self-esteem. The student has never attended a public school. The Philadelphia School District offered the parents an Individual Educational Program (IEP) in November, 2006 with subsequent revisions at a public school four blocks fro m the student’s home. The parents do not believe that this IEP provides a free, appr opriate public education for their son. The parents assert that the student is making me aningful progress in his current, private school placement, a school for students with reading disabilities, and they are requesting tuition for this private school placement a nd reimbursement for ex penses for related services. The Philadelphia School District asserts that the student, a thir d grade student at the time of the initiation of this due process proce dure, never attended a publ ic school, and it was never the intention of the parents to allow placement at the ne ighborhood public school, just four city blocks from the student’s home. Instead, the School District asserts that the intention of the parents is to gain public school funding for the private school placement and related educational services. Findings of Fact 1. The student began to have difficulties with speech production at two and a half years of age, and when he coul d not express himself, he would bang his head against the wall (NT 25). 2. At about three years of age, th e student began speech therapy and participated in a pre-school program fo r a year in which he had difficulty interacting with peers (NT 25. 27-28). 3. The parents’ private psychologist obs erved the student in the pre-school and recommended a different educational setting with better acoustics and more student-teacher interaction (NT 28-29). 4. The Early Intervention evaluation performed by [Agency] , dated 10-30-01, reported that the student functioned within normal limits on personal-social development, on self-help and adaptive behavior skills with some distractibility, with sensory issues and with cognitive skills; however, the student demonstrated delays in grosst, fine and per ceptual motor areas, and a 25% delay in communication development (NT 31, P 1).

Page 3 5. The Early Intervention report, date d 10-30-01, recommended enhancement of communication and motor skills in a community based setting (P 1). 6. An occupational therapy report, dated August and September, 2002, described the student as delayed in moto r skills, in pre-writing skills and as having an attention problem, tiring quickly when his motor skills are challenged (NT 32; P 2). 7. A sensory integration occupational th erapy report, dated 11-29 and 11-30- 2002 reported that the student is a child with a low level of frustration tolerance, visual-motor deficits, a uditory processing difficulties, and decreased strength, factors which impact upon his ability to interact with adults and peers and to perform suc cessfully in his e nvironment (NT 36, P3). 8. An IEP, developed by Agency on be half of the School District, dated February 22, 2003 provided speech and language services and occupational therapy in addition to the regular pres chool program that he was attending (NT 38; P 4). 9. In a regular preschool program with no special services or accommodations in which the parents enrolled the st udent, the student had difficulty in interacting with other students in play activities, in attending to small group activities, in relating with other students, in small motor activities and in verbal expression and auditory reception (NT 39-45). 10. In preschool, the student also demonstrated the need for sensory integration development in that high noise leve ls caused anxiety for the student, leading him to become anxious and to stop and stare (P 47, 49). 11. The parents placed the student in a private boys’ school for kindergarten and provided speech and occupational therapies privately, services which continued during the summer after the kindergarten year (NT 52). 12. From the student’s kindergarten year until grade 2, the parents provided private reading tutoring to develop pre-reading skills which were not provided by the student’s private kindergarten program (NT 53-4). 13. The student had difficulty transitioning from his kindergarten to his first grade program due to increased acad emic demands of his private boys’ school (NT 55). 14. In first grade, the student had difficu lty with math concepts, with reading comprehension even though he did very well on spelling tests, with handwriting and with homework (NT 56-57). 15. When troubled with homework, the student would berate himself by calling himself “stupid” or an “idiot,” a behavior which has stopped since his attendance at his current privat e school placement which offers accommodations for the student’s areas of difficulty (NT 63). 16. A private psychological evaluation of the student in Ma y and June, 2005, initiated by a request from the priv ate school that the student attended, described difficulty in auditory processing and in copying information from the chalkboard while other activi ties are going on and a need for preferential seating, co ntinuation with a math tu tor and consideration of

Page 4 placement of the student in another sc hool program to meet his needs (NT 64, 73, 456, 994-995; P 5). 17. The student’s auditory processing pr oblems and low frus tration tolerance led him to slap another student after that student called him names in the lunchroom of his private school, and th e student had difficu lty in adjusting to a new teacher who replaced a teacher with whom the student had a good rapport (NT 68-69). 18. In grade two, school personnel notifie d the mother that the student attempted to harm himself in the cla ssroom, and the parents initiated play therapy for the student with a psychiatrist (NT 69). 19. In grade two, the student continued to have difficulty with writing legibly, and he also had difficulty with written expression unless a teacher worked with him directly (NT 71). 20. During the summer between second and third grade, the student attended a private school program for children with learning disorders (NT 73). 21. The student support team and the sc hool psychologist of the student’s private boys’ school recommended to the mother that the student should attend a school for children with learning differences (NT 73,456, 994- 994). 22. The parents registered their son in the local neighborhood public school on the last day of school of the 2005- 2006 school year, several weeks after their applications to three private schools in April or May, 2006, only because of their concern that he would not be accepted by the private schools for children with learning differences. (NT 75, 461-462, 487, 995, 998). 23. When the student’s mother attempte d to register the student in his neighborhood school on the last day of the school year, before the summer vacation, a school secretary told her that she could not register at that time; however, a school guidance counselor pr ovided the necessary registration information (NT 77-78, 667). 24. The student’s father delivered th e private psychologist’s psycho- educational evaluation report to the neighborhood public school on the day after the mother’s initial contact (NT 78). 25. During the summer of 2006, no one from the Philadelphia School District contacted the parents with regard to the student (NT 510). 26. The student was accepted to the private school he now attends in July, 2006 while he was attending the summer progr am of that school and the parents responded to the acceptance with the required tuition deposit in July, 2007 (NT 489). 27. During a meeting with school distri ct personnel in September, 2006, the mother explained that the student wa s going to be evaluated by a private neuropsychologist in October, 2006 and that the parents would provide the results of that evaluation when they were available (NT 493). 28. The mother asked the private neuropsychologist to observe the local public school placement only after the initia tion of the due process hearing (NT 495).

Page 5 29. The parents rejected the November 29, 2006 IEP presented by Philadelphia School District personnel because of their concerns about the noisy atmosphere of the school and the school’s playground in light of the student’s auditory processing difficulties (NT 471). 30. Philadelphia School District personnel provided additional modifications of the draft IEP of November 29, 200 6 on January 8, 2007 and on February 13, 2007 (NT 474, P 11, P23., P 30). 31. The IEP of December 8, 2006 included a one to one assistant for the student and more integrated speech services during his school day (NT 475). 32. After consultation with the child’s private neuropsychologist and speech therapist, the mother concluded that the addition of a one to one assistant for a child with auditory processing di fficulties would be distracting for the student (NT 476). 33. The student participates in seasonal team sports and is now taking drum lessons (NT 80). 34. The private neuropsychologist that eval uated the students at the parents’ request is well trained and has extens ive experience in her relatively short career (NT 110-123, P 6). 35. During the neuropsychologist’s observa tion of the student in his current educational placement, the student was at times behaviorally explosive and acted in a socially immature, inappr opriate manner, making noises, having both gross and fine motor control problems, and difficulty in understanding and responding to social cues of other students (NT 135- 140, 189). 36. In his current placement, the student is in a class with a one to five teacher to pupil ratio (NT 143, 320). 37. Academically, the student exhibits strength in read ing fluency and spelling and he has deficits in mathema tics, processing speed and motor manipulation of objects (NT 153). 38. During formal assessment, the student also had difficulty with visual memory tasks and with fine motor tasks and demonstrated intellectual rigidity (NT 156-163; P 7). 39. The student’s difficulty in attending to tasks during formal assessment necessitated frequent breaks and may have depressed his formal assessment scores (NT 160-162). 40. When frustrated during formal asse ssment, the student threw things, crawled underneath the desk and refu sed to continue working, telling the neuropsychologist that he hated th e work, behaviors consistent with descriptions of parents and teachers (NT 165-166), 41. The student’s attention problems, hyperactivity, soci al interaction problems, memory problems and fine motor and visual motor skill problems all indicate a non-verbal l earning disorder with a mathematics learning disorder (NT 175-176). 42. Teaching the student keyboarding will ma ke written expression, an area of difficulty for the student, easier and may increase written expression (NT 191, 232-233).

Page 6 43. The student is benefiting from th e use of assistive devices and motivational, game-type, teaching activities (NT 194, 201-205, 216). 44. The student’s teachers and school psychologist in his current, private school placement use a positive beha vior modification program with a token economy (NT 218). 45. Most of the student’s current classmat es have adequate social skills (NT 220). 46. The written description of the studen t prepared by the School District’s psychologist is consistent with the findings of the neuropsychologist (NT 228; P 9). 47. During her visit to the public school proposed for the student, the neuropsychologist found the public school classr oom proposed for the student to have 25 students with a high level of noise in the classroom and in the entire school environment (NT 237, 243,: P 10A). 48. While a one to one assistant may be of benefit to the student, the assistant would have to be trained to work w ith children with non verbal learning disorders (NT 245; P 10A). 49. The proposed Individual Educational Pl an (IEP) for the student does not specify training for aides and professiona ls working with the student or the setting in which various activities and services are provided (NT 248, 250- 251; P 11). 50. Medication prescribed by a pediatric psychiatrist led to improvements in the student’s attention and behavior, but not with social interaction, emotional and intellectual rigidity, a nd his non-verbal learning disorder (NT 85, 267-269). 51. The school psychologist of the stude nt’s private sc hool program was informed by the school psychologist who worked at the private school during the summer of 2006 that the stude nt had difficulty with the summer program at the private school (NT 300; P 12). 52. At the beginning of his school year at the private school, the student required a small instruc tional group and also i ndividual attention and redirection and could not perform school tasks independently (P 12). 53. The student made his anxiety con cerning an upcoming medical and an upcoming dental procedure known to his educational staff (P 12). 54. Parent teacher conference notes fo r the summer program of 2006 also recommend consideration of speech and language and psychiatric consultations (P 12). 55. Despite the concern of the private school staff regarding the student’s inappropriate behaviors during the su mmer session of 2006, the staff did not perform a complete functional beha vior assessment for the student at the beginning of his school year at the private school to establish baseline behavior for targeted inappropriate behaviors (NT 308) 56. The occupational therapist of the priv ate school provided for the student a sensory diet of activity to limit self stimulatory behavior and to encourage appropriate stimulation and movement (NT 310).

Page 7 57. The private school staff had difficulty in establishing a menu of positive reinforcements for the student to motivate appropriate behaviors, and during his first few months at the private school, the student’s behavior was inconsistent and rarely compliant (NT 312, 317-319). 58. Football related reinforcements in school and time to use a Gameboy at home did motivate the student to perfo rm appropriately in the private school situation (NT 312). 59. The only formal assessment of the stude nt at the private school was the use of the Woodcock-Johnson Test of Achiev ement, a standardized test, at the beginning and at the end of the school year. No classroom assessments were charted to asses the student’s progress during the school year (NT 313, 356-357; P 13). 60. The private school’s psychologist assessed the student in a small room with minimal distraction over several asse ssment periods, providing extensive cueing and redirection to task (NT 315-317). 61. Only one of the two staff members in the student’s class of ten students at the private school is identified duri ng these proceedings as a certified, special education teacher (NT 320). 62. The student has made progress with social communication and interaction with peers; however, no systematic, objective data was gathered to demonstrate this gain (NT 348-349, 4-17-418, 428). 63. The student is also receiving intensive instruction in reading comprehension, especially with inferences, abst ractions, and multiple meanings of words (NT 351-356). 64. The student is benefiting from a mu ltisensory writing program which minimizes graphomotor activity (NT 360). 65. The student receives occupational thera py in his private school program to address sensory integration issues su ch as his level of arousal and to address small motor activity such as writing (NT 362-363, 365-366). 66. The student also requires a specially designed, multisensory program for instruction in mathematics (NT 367-369). 67. The student demonstrated minimal gains in his performance on the Woodcock-Johnson Achievement Test ad ministered toward the end of his current school year when compared with his performance on this instrument at the beginning of the sc hool year; however, it is difficult to assess whether this gain is the resu lt of his increased cooperation with assessment at the end of his curr ent school year (NT 313, 372-373; P 13, P 16). 68. On an individual, voluntary basis, so me of the student’s educational staff provided formal rating forms and anec dotal information to the student’s psychiatrist so that the psychiatrist could assess the student’s reactions to medication that he was taking; howeve r, ratings are no t consistent and several teachers elected to provide no data (NT 389-392). 69. At his current private school progra m, the student receives occupational therapy and speech services funded by his parents in addition to those

Page 8 occupational therapy services provided by the school as part of his educational programs (NT 406). 70. The student’s behaviors ar e different from those of his classmates in his current private school program (NT 412-413). 71. The “dramatic progress” that the student made at the current private school program is relative to his own perfo rmance in the summer and fall of 2006 and is supported by anecdotal, not by objective measures (NT 414-415, 432-433). 72. The student’s progress at his current private sc hool placement coincided with the removal of his adenoids in October, 2006 and the initiation of psychiatric treatment in November, 2006 (NT 415, 482). 73. The parents were not notified of the student’s having been accepted to his current private school placement until th e school received its license to operate in July, 2006 (NT 426). 74. The speech therapist for the School Dist rict has a Master’s degree plus 60 additional credits of graduate work and a Certificate of Clinical Competence in speech pathology from the American Speech and Hearing Association, has had 9 years of wo rk experience at the student’s neighborhood school and pres ents as an experien ced, credible expert witness (NT 524-528, 530). 75. Speech and language services provided by the School District’s speech therapist are individualized, dependi ng upon the needs of individual students (NT 529). 76. At an intake meeting in early Se ptember, 2006, the parents asked the speech therapist not to repeat alre ady performed evaluation techniques when assessing the student (NT 534, 551-552). 77. The father stated to the speech ther apist and School District educational staff that he had no intention of enro lling the student in a public school program, and he inquired about reimbursement procedures for the student’s previously completed private evaluations (NT 535, 673, 676, 846, 954). 78. During the School District’s speech therapist’s first observation of the student in his private sch ool placement, the student’s social interaction and social communication with peers were inappropriate; however, during her second visit to the private school to assess the student’s pragmatic language, his social interaction and social communication were greatly improved (NT 537, 544, 606-609). 79. Although the results of the private sp eech therapist indicated scatter of strengths and weaknesses which were subsequently demonstrated in a consistent manner, the student functioned generally in the average range on various assessment techniques of the private speech therapist and of the School District’s speech therapist (NT 553-557; P24). 80. The School District’s speech therapist had adequate data to formulate IEP goals for grammar, but she stated th at she needs to observe the student more in his specific educational situation to formulate social communication and interaction goals (NT 557-559, 567, 591-592, 596; P 11, 23).

Page 9 81. The parents and school district pers onnel agreed that the student had a social language pragmatic disorder (NT 567). 82. The School District’s speech therapist has studied with Michelle Garcia Winner, the current leading expert on social pragmatic language disorders, the language therapist whose work provides the model for language therapy at the student’s private school (NT 571-572). 83. The playground of the neighborhood public school that the student would attend is an area as large as a base ball field, and the School District’s speech therapist stated that the noise le vel is no different from sports fields on which the student plays (NT 579 ; P10A). 84. Students with communication and social interaction disorders may choose an alternative to the school yard for recess (NT 580). 85. At the neighborhood public school propos ed for the student no stigma is attached to the many students who come to class and leave class for various services during the course of the school day (NT 581). 86. At the neighborhood public school that the student would attend, visual scheduling prompts are provided in cl assrooms in which students require such presentation of daily events (NT 582). 87. At the neighborhood public school that the student would attend, many students have a set of school books kept in school and a set of school books kept at home, and augmentative sup port systems are prov ided to students who require them (NT 584). 88. Individual aides for students use nonve rbal cues when necessary to avoid distracting the student, and assistive de vices are available as necessary to help the student focus on the classroom tasks (NT 585). 89. At the neighborhood public school that the student would attend, the lunchroom has poor acoustics, and student s with problems in this situation are provided with alternative settings for eating their lunch prior to going to outdoor activities (NT 586-587). 90. The proposed IEP, dated November 29, 2006 discussed with the parents did not indicate a one to one aide for the student and provision of visual cues and simplified directions (NT 593-594; P 23). 91. It is unusual for a child of almost 9 years of age to cover himself in a one to one speech therapy evaluation (NT 621-622). 92. Teacher reports documented in various assessments of the student indicate difficulties with attend ing, invading personal space of others and in misinterpreting social cues of others and acting in a disruptive manner (NT 630-634, 651). 93. All versions of the IEP offered by the School District indicate the frequency of reporting of data on the st udent’s progress, not the frequency of gathering that data (NT 640-643; P11, P 23, P30). 94. At the IEP meeting with personnel of the Philadelphia School District, the parents did not provide th eir own input for the development of their son’s IEP (NT 557, 657, 658,659). 95. During the summer of 2006, the school’s counselor notified the special education case manager for the neig hborhood public school of the parents’

Page 10 attempt to register their son in late June, and the special education case manager invited the parents to a meeting on September 6, 2006 (NT 668). 96. The father called the special educati on case manager in August or early September, 2006 to discuss the student’ s registration in the public school and on September 5, 2006, the special education case manager issued an invitation to participate to meet and discuss the parent’s requests for an IEP (NT 669-671; P 25). 97. During a meeting with School Distri ct personnel on September 15, 2006, the father stated that he was looking for tuition reimbursement for his son who was attending a private school and that he had no intention of his son’s attending the neighborhood public school (NT 535, 673, 676, 846, 974). 98. At the initial meeting with School Distri ct personnel, the parents raised the issue regarding availability of a one to one aide if the st udent required that type of service (NT 675). 99. At the meeting with School Dist rict personnel on November 29, 2006, parents did participate in the deve lopment of a functional behavioral assessment (NT 684). 100. The special education case manager brought a draft of an IEP for the student to the November 29, 2006 meeti ng with the parents at which the educational report was discussed; however, the speech therapist’s input was not yet entered into the draft IEP (NT 687-688; P 23). 101. The special education case manager gave the father a copy of this draft as it existed on November 29, 2006 because he requested the copy (NT 689). 102. After the November 29, 2006 meeting, the father again inquired of the special education case manager about tuition reimbursement and equitable participation funding (NT 690). 103. Upon receipt of the rejected NOREP, the special education case manager set up an appointment for the father to discuss equitable participation with the case manager who is expert in that topic; however, the parents did not attend that meeting and told School District personnel by phone that they had retained an attorney (NT 694-695, P 29). 104. School District personnel revised th e draft IEP of November 29, 2006 to include the speech therapist’s input and to add a one to one aide in response to the parent’s request about a one to one aide for their son (NT 696: P 30). 105. The special education case manager scheduled an IEP meeting through the School District attorney with the pa rents’ attorney for January 29, 2007 (NT 704, 744). 106. The final IEP copy, marked,” propose d,” due to computer software problems, was sent by fax to the pa rents’ attorney on February 13, 2007 (NT 708, 721). 107. Due to computer software limitations, the IEP team had to handwrite specific information, individualized for this student (NT 711). 108. In spite of the requests of School District personnel for the parents’ input in the development of all three versions of their son’s IEP, the parents did not provide input (NT 716).

Page 11 109. In initiation of the psychological evaluation of the student, the School District psychologist, a well trai ned, experienced, highly qualified professional, obtained information from psychologists and educational staff who had previously worked with the student and spent a day observing the student in his private school setting due to social functioning and pragmatic language issues (NT 758-65, 767-768, 779-782). 110. The School District’s psychologist obs erved that while the student still appeared distractible and at times inattentive, his behavior had improved from the time of the speech therapist’s first observation (NT 775, 896-897). 111. The student was able to adjust to different, structured teaching styles during the course of his school day (NT 776-778). 112. In a lunch area and in the playground, the student was engaged with other students, and the st udent did not have difficu lty tolerating loud noises (NT 778-779). 113. The School District psychologist concu rred with previous evaluators that the student is a child with a speci fic learning disability, a non-verbal learning disability, and other health impairment, attention deficit/hyperactivity disorder and that the student’s disabilities are severe enough to have warranted a recommenda tion for a one to one aide in the regular classroom (NT 782-783, 785). 114. With itinerant supports both in the re gular education classroom and outside the classroom, a one to one aide in th e regular education program, and with an extensive special education pr ogram, the neighborhood public school is capable of providing the student with a free, appropriate, public education (NT 789). 115. If the student had entered the neighborhood public school in September, 2006, school staff would have made special provision to meet his educational needs until the evaluation report and the IEP would have been developed (NT 790). 116. The multidisciplinary team of the School District developed an IEP that is reasonably calculated to confer edu cational benefit fo r the student (NT 791-816, 837). 117. The private school which the student attended for grades 1 and 2 offered no supports or accommodations for students with special needs (NT 817). 118. In her report of her observation of the neighborhood public school, the private neuropsychologist did not consider the modifications that the public school would make to accommodate the student in that program (NT 826; P 10A). 119. In his current private school setting, the student deal s with noisy situations appropriately as a part of his school day (NT 826). 120. Because of the diversity of students with varying educational and physical needs at the neighborhood public school, there is no discrimination of any one child’s special needs (NT 828). 121. The private neuropsychologist declined the invitation of the School District psychologist to observe a student at the neighborhood public school with a one to one aide (NT 830).

Page 12 122. The private neuropsychologist focused on situations as they existed during her observation rather than situations as they may be modified to meet the student’s individual needs (NT 831). 123. The private school that the student attends for grade 3 is a noisy environment (NT 833). 124. If the student does, ind eed, suffer from a centra l auditory processing disorder, he is not being treated for this condition at his current private school (NT 835). 125. The private neuropsychologist did speak with the special education teacher of the neighborhood public school, but she did not observe a special education class (NT 835). 126. The parents did not participate duri ng IEP meetings th at the School District’s psychologist attended, nor did they raise questions about the proposed IEP or related services (NT 840, 844-845). 127. The School District’s IEP was based upon the reports and recommendations of the private sc hool’s psychologist and the private neuropsychologist (NT 841). 128. The initial date of the private neuropsychological examination is September 14, 2006, and the parents signed a permis sion to evaluate form for the School District on September 15, 2006 without mention of the private examination which was initiated the day before (NT 857; P 26). 129. The parents received the School Dist rict Evaluation Report within 60 school days of the parent’s permission to evaluate the child (NT 86o). 130. The term, “proposed” on School District IEPs is a result of limitations in the District’s computer program for generating IEPs (NT 861-863). 131. The student is attentive in class when the lesson is engaging and involves hands on activity (NT 873, 966). 132. The student did interact appropriately in a discussion during class with one of his classmates; however, his conve rsational skills would be limited regardless of the educational or social setting (NT 873-875). 133. When not engaged in a learning activity or attempting to avoid an activity, the student will cover his head, fidget, look away, stare into space or whine (NT 878-879, 882). 134. During both assessment and instructi onal periods, the student requires varied activities and physical interaction to remain engaged in the task (NT 909-913). 135. The baseline behaviors charted in a f unctional behavior an alysis must be observed in the situation in which the behavior is to be modified (NT 922). 136. Both parties stipulate that the parents were not asked to sign a waiver of the ten day waiting period between the review of the educational report and the development of the first IEP (NT 937). 137. During a discussion between School Distri ct staff and the fa ther, the father would not discuss changes with regard to the third version of his son’s IEP (NT 955).

Page 13 138. The Specially Designed Instruction (S DI) portion of an IEP does not have to contain specific teaching strategies or day to day instruction activities (NT 969). 139. The parent did not want to discuss w ith the School District’s psychologist medication that the student was taking (NT 974-975). 140. At the first IEP meeting, the parent s asked for a copy of the proposed IEP after School District staff told them that the IEP was not the final copy (NT 976). 141. The School District psychol ogist was surprised that a one to one aide was not listed in the first draft of the student’s IEP (NT 977). 142. Even after School District staff attempted to elic it comment or recommendations from the parents about the first version of the IEP, the parents refused to respond (NT 978). 143. The IEP offered part-time special edu cation placement which varies in the actual time provided outside the regu lar education cla ss, depending on the needs of the individual child (NT 982). 144. The father’s first contact with the public school was next to the last day of school of the 2005-2006 school year (NT 73,456, 994-995). 145. The parents had no knowledge of the process to enroll their child in a public school program of special education (NT 996-997). 146. The School District’s special educa tion case manager explained to the father during a telephone conference the necessary steps required to place a child in a special education program of the School District (NT 1010- 1011). 147. The father offered to provide School District personnel with the various reports of the student to that point in time, and the father accepted an appointment to meet on September 15, 2006 (NT 1011). 148. The father inquired about “streamlini ng” the IEP proce ss since the child has had years of special services (NT 1012). 149. On September 6, 2006, the father contact ed the School Dist rict’s attorney to determine if there is a process a lternative to the one that the School District’s case manager had previously described (NT 1013). 150. At the meeting with the case manager, the father signed Permission to Evaluate the child (NT 1016). 151. The father asserts that he and his wi fe were cooperative and forthcoming during the September 15, 2006 meeting with School District personnel (NT 1021). 152. Because the parents had not receive d the Educational Report (ER) by November 19, the father called the School District psychologist, and she sent the copy of the ER with her input and without occupational therapy information to the parents by email on November 21, 2006 (NT1023). 153. The father also received the ER from the School District on November 21, 2007, and the missing occupational ther apy component was delivered on November 28, 2007 (NT 1025). 154. When the parents attended the meeti ng with School District personnel on November 29, 2006, the parents had not yet retained counsel (NT1027).

Page 14 155. The November 29, 2006 meeting began a bout a half hour late due to an emergency that necessitated the immediate attention of the principal (NT 1028). 156. At the November 29, 2006 meeting, th e father refused to sign an IEP or NOREP because neither he nor his private neuropsychologist had an opportunity to review these documents (NT 1032-1034). 157. The parents did not attend a meeti ng with School District personnel on December 27 due to a miscommunication (NT 1036). 158. School District staff did not notify the parents in writing in a timely manner of their intention to hold an IEP meeting on December 29, 2007 when they should have notified the parents’ counsel of the meeting(NT 1036). 159. The parent attended a meeting at the local neighborhood school on January 29, 2007 to discuss the second version of his son’s IEP which included a one to one aide, increased speech therapy time and consultation (NT 1039- 1041). 160. When the father left the January 29, 2007 IEP meeting, he was unaware that there was further business to be conducted at that meeting which might have required his presence (NT 1044). 161. The father asserts that while his s on’s progress at th e private school placement was improving, the parents would have considered a public school placement if they felt that the program was appropriate to meet their son’s needs (NT 1046). 162. The parents had experience with the IE P process when the student received occupational therapy and speech services from the preschool provider for the School District NT 1046). 163. Neither the student nor his younger brother has ever attended a public school program (NT 1049-1050). 164. On December 1, 2006, following the November 29, 2006 IEP meeting, the father wrote an email to the specia l education case ma nager to inquire about the School District’s funding of the student’s edu cation and related services at the private school he was attending (NT 158-159; P 35). 165. The father asserted that the testimony of three School District professionals was false when their testimony character ized his comment that he was not interested in public school placement (NT 535, 673, 676, 846, 954, 1060). IV. ISSUES 1. Did the District offer th e student a free, appropri ate public education in a timely manner? 2. Is the private school, selected by th e parents, providing an appropriate educational program? 3. Did the parents intend to enroll the student in a public school for instruction or to gain public tuition for private school placement?

Page 15 IV. DISCUSSION AND CONCLUSION OF THE LAW Both the personnel of the Philadelphia School District and the pare nts of Student agree that Student is a student with special needs. Specifically, this student is a child with a non-verbal learning disability, who has a specific learning disability, and who demonstrates Attention Deficit/Hyperactiv ity Disorder with bot h organizational and behavioral problems. Characteristics of this student’s behaviors are difficulty with social interaction and social communication, intellectual and emotional rigidity and difficulty in adapting to change (Finding of Fact 43, 44, 64, 172). The Philadelphia School District asserts that the parents never intended for their child to attend a public school program. Th e parents assert that the Philadelphia School District did not provide a free appropriate public education in a timely manner. The parents had medical, psychological and educational documentation that the student had special needs as early as the student’s third birthday. He had an Individual Education Plan and was receiving early intervention services from Agency, the early intervention service provider of the Philadelphia School District (FF 7, 9, 10, 11, 12). Yet, the parents chose to enroll the student in private, regular education pr ograms for kindergarten, first and second grade (FF 14, 18, 21). During his second grade, the private school staff recommended a psychological ev aluation as a result of th e student’s poor levels of performance, communication and social interaction problems (FF 23). Mrs. testified that in April or May, 2006, during the student’s second grade, the parents sought placement for their son at three different private schools for special needs students (FF 29). The mother explained that the pare nts attempted to regi ster Student in the neighborhood public school on the last day of the 2005-2006 school year because he had not yet been accepted to any of the private school programs to which they had applied, and the parents were concerned about a schoo l placement for their son for September, 2006 (FF 31). The parents paid to have their son attend a summer program at one of the three schools to which they had applied, and in July, 2006, wh en that school receiv ed its license to operate a school program, the school accepted the student for the coming school year. The parents responded to this acceptance with a tuition deposit for the 2006-2007 school year (FF 35, 36). Because the parents enrolled the student in their neighborhood public school on the day before the school closed for the summer and after School District computers necessary for registration were closed for the school year, personnel of the Philadelphia School District did not have the opportu nity to assess the student in April or May of 2006 and to consider a free, appropriate public education for September, 2007. The private school in which the child was enrolled for a summer prog ram at the parent’s expense had a period of evaluation of classroom and school perfo rmance and behavior during the summer and the fall of 2006 to develop the appropriate st rategies and motivational techniques to help the student benefit from its program (FF 94, 95, 96).

Page 16 The student’s educational progress, social interaction and co mmunication began to improve only after a period of adjustment to that private school situation, psychological consultation, removal of the student’s adenoids and psychiatric medication and therapy in the late fall of 2006 (FF 122, 123). Reports of the student’s success are primarily anecdotal. Only some of the student’s teachers provided rating forms on a voluntary basis (FF 116). It is, theref ore, very difficult to ascribe the student’s progress in that private school to the private school and its program for the student alone. In her observation of the ne ighborhood public school which th e student would attend if enrolled in the School District, the pare nt’s privately retain ed neuropsychologist compared that public school s ituation with the private schoo l in which the student had great difficulties in grades one and two. The private neuropsychologist also reported that the student cannot tolerate loud noises (FF 66); yet, the mother reported that the student is currently taking drum lessons and that th e student does well in participating with organized sports teams (FF 38). The School Di strict’s psychologist observed the student participating in the general activity of a typically noisy recess period at the private school (FF 179). In accordance with IDEIA (34 C.F.R. 300.148) , the Philadelphia School District has demonstrated its ability to provide a pr ogram of specially designed instruction, individualized for the specific needs of the student (FF 134-138) as well as a willingness to revise its program based upon additional inform ation that is gathered for the student. The Individual Educational Plan and its subsequent revisions were reasonably calculated to provide some educational benef it for the student in accordance with Board of Education of the Hendrick Hudson Central Sc hool District vs. Rowley, 458U.S. 176, 102 S.Ct. 3034 (1982) 1981-1982 EHLR 553: 656. In considering whether the parents truly intended for their son to attend the neighborhood public school, it is signifi cant to note that the parents sought placement in the neighborhood public school for their son only after having sought private school placement and in response to their concern th at the private school placements that they chose may not have accepted their son. Had they enrolled their son in the School District at the same time that they had attempted to enroll their son in the private school programs in April, 2006, the School District would ha ve had sufficient time to prepare a free appropriate program of education for their child for September, 2006. There is ample testimony of school district personnel (FF 191) that the father made comments about completing the paperwork and assessments for the development of the ER and IEP to gain access to tuition reim bursement and to seek other avenues to “streamline” the process of gaining financial assistance for his son’s related services and tuition in the private school placement. The parents have failed to demonstrate that th e School District did not offer a program of free, appropriate public education in the leas t restrictive environment for Student. The Philadelphia School District succeeded in demo nstrating that the parents’ prime concern

Page 17 was to have the student educated in a pr ivate school placement at public school expense and that the IEP presented to the parents pr ovided for the student a free, appropriate public education in the least restrictive e nvironment. The parents are denied tuition reimbursement for their son’s private school tuition and related services.

Page 18 ORDER In accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED that: 1. The School District of Philadelphia will develop an interim Individual Educational Program of specially desi gned instruction for Student at the [redacted] Elementary School with appropr iate related services for a period of sixty school days to commence on the first day of school of the 2007-2008 school year. 2. Prior to the student’s entr y into the neighborhood public school in September, 2007, School District personnel will provide a plan to assist the student in adjusting to this new educational situation. 3. During the period of the interim IEP, Sc hool District personnel will develop an Educational Re-Evaluation report to include a review of records and reports gathered during the 2006-2007 school year as well as new data as necessary to provide an IEP for the remainder of the 2007-2008 school year to include if necessary a Functional Behavior Assessm ent in the new educational setting, a Behavioral Improvement Plan if necessary, and a program of pragmatic language development if necessary. 4. Goals and objectives of the student’s interim and annual IEPs will be written in a measurable manner to allow progre ss monitoring of those goals, and both summary written data and graphic repr esentation of data of the student’s progress will be presented to the parents in a meeting with the student’s teacher and special educational case manager every six weeks during the school year. 5. If the Multidisciplinary Team deems it necessary, a team will be convened to study the student in relation to his sc hool environment, the tasks to be completed in that environment, and the t ools to be used in accomplishing those tasks (SETT Team) to determine if as sistive devices are necessary for the student to benefit from his educational program. 6. If the Multidisciplinary Team deems it ne cessary to provide a one to one aide for the student, the members of the MDT team will confer with that aide so that the aide’s intervention during the school day is provided to Student in a manner to improve classroom and school performan ce rather than to detract from such performance. ________________ _____________________ Date Hearing Officer