Schuylkill Haven Area School District | Case 5950-05-06 | 2006-03-04

In re: Student Page 1 of 21 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 Student Date of Birth: [ ] File Number: 5950/05-06 Dates of Hearings: December 2, 2005; January 20, 2006; February 17, 2006 CLOSED HEARING P a r t i e s : R e p r e s e n t a t i v e s : Mr. and Mrs. Parents Elizabeth Kapo, Esq [ ] 2123 Pinehurst Road [ ] Bethlehem, PA 18018 Mr. Thomas Camise Gina DePietro, Esq Schuylkill Haven Area School District PO Box 5069 East Main Street 331 Butler Ave Schuylkill Haven, PA 17972 New Britain, PA 18901 Date Transcript Received: February 22, 2006 Date of Decision: March 4, 2006 Hearing Officer: David F. Bateman, PhD

In re: Student Page 2 of 21 I. BACKGROUND Student is a fourth grade student in the Schuylkill Have n School District (hereinafter District) eligible for special education and related services as a student with a learning disability. The Parents and the District participated in a previous due process hearing and subsequent appe al relating to her identification and eligibility for special education and relate d services. A part of the Appeals Panel decision included an Order for the District to complete a reevaluation. The District completed an educational evaluation, a nd found Student no longer eligible for special education and related services. Th e Parents disagreed w ith the findings of the District’s evaluation report. The Di strict requested the present due process hearing for determining whether Student was eligible for special education and related services. The Parents moved to have the Hearing dismissed having appealed the other part of the Appeals Panel decision to Federal Court.

In re: Student Page 3 of 21 II. FINDINGS OF FACT1 A. Background 1. Student was born on [ ]. Student is currently xx years of age (S-2). 2. Dr. T completed a psychoeducational ev aluation of Student in July 2003. Her report found that Student had dyslexia and dysgraphia (P-10, p. 21). 3. Student was found eligible for special education and related services in October 2003 (S-2, p. 10). The District recommende d her eligibility as a student with a learning disa bility, and that Student n eeds help in class despite Student trying really hard. 4. The District developed an IEP on Decem ber 2, 2003 (S-3). This IEP provided for Student’s education with the assi stance of a learning support teacher. A NOREP was developed (S-3, p. 18) providing for Student to receive supportive intervention in a regular classroom. 5. Reporting of progress indi cates Student made progress on Student’s goals and objectives in the spring of 2004 (S-4). 6. Student is currently in fourth grade (NT 23). 7. Student was identified as a student with a specific learning disability in second grade (NT 23-24). 8. The parties participated in a previ ous due process hearing (P-14) with a subsequent appeal. The Hearing Officer found the student no longer eligible for special education and related se rvices on April 26, 2005 (S-5). The 1 References to notes of testimony will be designated “NT” followed by the relevant page number. References to District evidentiary exhibits will be designated “S” followed by the relevant exhibit number. References to Parents’ evidentiary exhibits will be designated “P” followed by the relevant exhibit number.

In re: Student Page 4 of 21 Appeals Panel found 2: The District shall complete an educational evaluation as described earlier in this opinion w ithin 30 days of the beginning of the school year. The District shall reconvene a meeting of a properly constituted IEP team to prepare a new IEP consistent with conditions specified earlier in this order and Commonwealth law (S-5, p. 19). 9. The Parents filed a Motion to Dismiss relating to the present due process hearing (P-20). The Parents Moti on avers the Hearing Officer lacks jurisdiction to hear the present matter. Additionally, parts of the previous matter are in Federal Court (P-2, P-7). 10. Progress reports for Student on Student’s IEP goals and objectives indicate on going/appropriate progress being made in June 2005 (S-20). 11. The District sought permission to eval uate on July 6, 2005 (S-6). The Parents disagreed with the evaluation. 12. The District continued to seek a reevaluation of th e student on July 22, 2005 (S-8). The Parents sought clarity about the specific assessments that were to be used and the language of the request to the Parents (S-9). 13. The Parents requested the Student’s PSSA results on August 4, 2005 (S-10). The Student’s scores on the PSSA’s indicated Student scored in the advanced level in reading and mathematics (S-15). 14. The District sent a lett er to the Parents on August 24, 2005 relating to a desire for remedial reading programming for th e student (S-11). Remedial reading was included in the pendent IEP (NT 33). 2 In re: A.D. v. Schuylkill Haven, Pa. SEA no. 1611, June 17, 2005.

In re: Student Page 5 of 21 15. The District requested a meeting to re view the results of the reevaluation on August 31, 2005 (S-13). 16. The evaluation report found Student no l onger eligible for special education and related services (S-16, p. 14). The Parents disagreed with the results of the evaluation report. The District stated that the regular education curriculum has allowed Student to make meaningful progress. It went on to state that previously cited accommodations were no longer necessary for her to continue successfully in regular education. It al so stated Student does not demonstrate the need for specially designed instruction (S-16, p. 14). 17. A multidisciplinary meeting was held on September 23, 2005 (S-14). The District found Student does not need special education (NT 36-37) nor did Student need specially designed instruc tion. The District issued a notice of recommended educational placement ( NOREP) recommending education in the regular education classroom (P-6). The Parents disagreed with the recommendation. 18. The District provided additional docume nts to the Parents between the first two hearing sessions (P-17). The documen ts are work samples created by the Student. 19. Examples of the student’s work in fourth grade indicate above average performance (S-18, p. 6; S-21, S-22). 20. Dr. T completed a psychoeducati onal report on Student in December 2005/January 2006 (P-25). She describes signs of depression and anxiety, in addition attention deficit/hyperactivity disorder, dyslexia, and dysgraphia (P-23,

In re: Student Page 6 of 21 p. 3). Dr. T stated Student does not need to be in special education (NT 445, 521). III. ISSUE PRESENTED Is Student eligible for special education and related services? IV. DISCUSSION AND CONCLUSION OF THE LAW The District and the Parents participat ed in a previous due process hearing from October 2004 to February 2005. There were two issues in that hearing: was the Student eligible for special education a nd related services as a student with a learning disability and was the Student denied a free appropriate public education for the 2003-2004 school year by reason of a deficient IEP and insufficient implementation of the IEP. The hearin g officer found the St udent was no longer eligible for special education and related services as a student with a learning disability. The decision of the hearing officer was appealed to the Appeals Panel. The Appeals Panel ordered that the district should complete an educational evaluation within 30 days of the beginning of the year. It also ordered the district to reconvene a meeting of a properly const ituted IEP team to prepare a new IEP consistent with conditions specified in their order and with Commonwealth law. The order of the appeals panel was appealed to federal court. Specifically, the Parents appealed the lack of an award of compensatory education by the appeals panel.

In re: Student Page 7 of 21 The present due process hearing was requested because the District completed an evaluation of Student findi ng Student no longer eligible for special education and related services as a student with a disabili ty. The District completed the evaluation after being Ordered by the App eals Panel to complete a reevaluation. The evaluation completed by the District found Student no longer eligible for special education and related services. The Pare nts disagreed with the evaluation report, therefore, the District requested the pr esent due process hearing to determine whether Student was eligible for special education and related services. Student’s Educational Placement Before there is a discussion regardi ng Student’s educational placement, a review of the necessary components of the law is appropriate The definition for a learning disability is: §300.8 Child with a disability. (a) General. (1) Child with a disability means a child evaluated in accordance with §§300.304 through 300.311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as emotional disturbance), an orthopedic impair ment, autism, traumatic brain injury, an other health impairment, a sp ecific learning disability, deaf -blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.

In re: Student Page 8 of 21 (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.304 thr ough 300.311, that a child has one of the disabilities identified in pa ragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part. (ii) If, consistent with §300.38(a)(2), th e related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child w ith a disability under paragraph (a)(1) of this section. (b) Children aged three through nine experi encing developmental delays. Child with a disability for children aged three through nine (or any subset of that age range, including ages three through five), may, at the discre tion of the State and the LEA and in accordance with §300.111(b), include a child-- (1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (2) Who, by reason thereof, needs special education and related services. (10) Specific learning disabi lity. (i) General. Specifi c learning disability means a disorder in one or more of the basic psychol ogical processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, r ead, write, spell, or to do mathematical

In re: Student Page 9 of 21 calculations, including conditions such as perceptual disabili ties, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (ii) Disorders not included. Specific learni ng disability does not include learning problems that are primarily the result of vi sual, hearing, or mo tor disabilities, of mental retardation, of emotional disturbanc e, or of environmental, cultural, or economic disadvantage. §300.307 Specific learning disabilities. (a) General. A State must adopt, cons istent with §300.309, criteria for determining whether a child has a specific learning disability as defined in §300.8. In addition, the criteria adopted by the State-- (1) May prohibit the use of a severe disc repancy between intellectual ability and achievement for determining whether a chil d has a specific learning disability as defined in §300.8; (2) May not require the use of a severe discrepancy betw een intellectual ability and achievement for determining whether a chil d has a specific learning disability as defined in §300.8; (3) Must permit the use of a process that determines if the child responds to scientific, research-based intervention as pa rt of the evaluation procedures described in §300.304; and 4) May permit the use of ot her alternative research-based procedures for determining whether a child has a specific learning disability as defined in §300.8.

In re: Student Page 10 of 21 (b) Consistency with State criteria. A public agency mu st use the State criteria adopted pursuant to paragraph (a) of this se ction in determining whether a child has a specific learning disability. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6)) §300.308 Group members. The determination of whether a child suspected of having a specific learning disability is a child with a disability, as defined in §300.8, is made by the child's parents and the group described under §300.306(a)(1) that-- (a) Is collectively qualified to-- (1) Conduct, as appropriate, individual diagnostic assessments in the areas of speech and language, academic achievement, intellectual development, and social- emotional development; (2) Interpret assessment and intervention data, and apply critical analysis to those data; (3) Develop appropriate educational and transitional recommendations based on the assessment data; and (4) Deliver, and monitor specifically designed instruction and services to meet the needs of a child with a specific learning disability; and (b) Includes--(1) A special education teacher; (2)(i) The child’s general education teacher; or

In re: Student Page 11 of 21 (ii) If the child does not have a gene ral education teacher, a general education teacher qualified to teach a child of the child’s age; and (c) Other professionals, if appropriate , such as a school psychologist, reading teacher, or educational therapist. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6)) §300.309 Determining the existence of a specific learning disability. (a) The group described in §300.308 may determine that a child has a specific learning disability if-- (1) The child does not achieve commensu rate with the child’s age in one or more of the following areas, when provided with learning experiences appropriate for the child's age: (i) Oral expression. (ii) Listening comprehension. (iii) Written expression. (iv) Basic reading skill. (v) Reading fluency skills. (vi) Reading comprehension. (vii) Mathematics calculation. (viii) Mathematics problem solving. (2)(i) The child fails to achieve a rate of learning to make sufficient progress to meet State-approved results in one or more of the areas identified in paragraph

In re: Student Page 12 of 21 (a)(1) of this section when assessed with a response to scientific, research-based intervention process; or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, or a pattern of st rengths and weaknesse s in performance, achievement, or both, relative to intellectual development, that is determined by the team to be relevant to the identificati on of a specific learni ng disability, using appropriate assessments consistent with §§300.304 and 300.305; and (3) The group determines that its fi ndings under paragraph (a)(1) and (2) of this section are not primarily the result of-- (i) A visual, hearing, or motor disability; (ii) Mental retardation; (iii) Emotional disturbance; (iv) Cultural factors; or (v) Environmental or economic disadvantage. (b) For a child suspected of having a specific learning disa bility, the group must consider, as part of the evaluation described in §§300.304 through 300.306, data that demonstrates that-- (1) Prior to, or as a part of the re ferral process, the child was provided appropriate high-quality, research-based instruction in regular education settings, consistent with section 1111(b)(8)(D) and (E) of the ESEA, including that the instruction was delivered by qualified personnel; and

In re: Student Page 13 of 21 (2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of stude nt progress during instruction, was provided to the child's parents. (c) If the child has not made adequate progress after an appropriate period of time, during which the conditions in paragrap hs (b)(1) and (2) of this section have been implemented, a referral for an evaluati on to determine if the child needs special education and related services must be made. (d) Once the child is referred for an ev aluation to determine if the child needs special education and rela ted services, the timelin es described in §§300.301 and 300.303 must be adhered to, unless extended by mutual written agreement of the child’s parents and a group of qualified professionals, as described in §300.308. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6)) §300.310 Observation. (a) At least one member of the group described in §300.308, other than the child's current teacher, who is trained in observation, shall obser ve the child, and the learning environment, including the regular classroom setting, to document academic performance and behavior in the areas of difficulty. (b) In the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6)) §300.311 Written report.

In re: Student Page 14 of 21 (a) For a child suspected of havi ng a specific learning disability, the evaluation report and the documentation of the determination of eligibility, as required by §300.306(a)(2), must include a statement of-- (1) Whether the child has a specific learning disability; (2) The basis for making the determin ation, including an assurance that the determination has been made in accordance with §300.306(c)(1); (3) The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning; (4) The educationally relevant medical findings, if any; (5) Whether the child does not achieve commensurate with the child’s age; (6) Whether there are strengths and weaknesses in performance or achievement or both, or there are streng ths and weaknesses in performance or achievement, or both, relative to intellectual development in one or more of the areas described in §300.309(a) that require special education and related services; and (7) The instructional strategies used a nd the student-centered data collected if a response to scientific, research-based intervention process, as described in §300.309 was implemented. (b) Each group member shal l certify in writing whether the report reflects his or her conclusion. If it does not reflect his or her conclusion, the group member must submit a separate statement presenting his or her conclusions. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

In re: Student Page 15 of 21 This case is unique in that Student was identified as eligible for special education and related services, but after an evaluation is no longer eligible. This case is also unique because of the previous due process hearing. The Appeals Panel decision was also in part appealed to Fe deral Court. The District completed an evaluation of Student as they were directed to do and that is the focus of the present due process hearing. The building principal/director of special education for the District testified Student did not need special education becau se Student is a straight A student (NT 37, 38). He did acknowledge the evaluati on report (S-16) that found a significant discrepancy between Student’s ability a nd Student’s achievement (S-16, p. 15) in spelling, writing fluency, passage comprehens ion, and reading vocabulary subtests. For the clusters, reading comprehensi on, written expression and broad written language fell at a level significantly discrepant from Student’s ability (NT 55). He went in to state Student still has a learning disability but does not need specially designed instruction. Student does well through accommodations and compensation (NT 73). The current specially designed instructi on Student receives includes: review and repetition, positive reinforcement, allow oral reading for comprehension instead of silent reading as needed, encour age Student to recheck written work and/or redo, and remedial reading (NT 74). The psychologist for the District who completed the initial and subsequent evaluations (NT 77) of Student testified he selected an ability and achievement testing to comply with the Appeals Panel order (NT 78) . He also said Stude nt is not eligible

In re: Student Page 16 of 21 for special education on the whole (NT 91). Student’s original problems were with the reading comprehension subtest (NT 96) . He is concerned about the problems Student may present in the future with St udent’s disability (NT 95). He decided Student did not need SDI or accommodations, based on Student’s strong current functioning (NT 119). Below are the results of testing completed by the District (S-16): Ability testing Fluid reasoning 118 Knowledge 108 Quantitative Reasoning 105 Visual Spatial Reasoning 117 Working memory 109 Nonverbal IQ 114, Verbal IQ of 111, and Full Scale of 113 (S-16, p. 6). Based on Grade Expectations SS PR Letter word identification 104 61 Reading fluency 106 66 Spelling 104 61 Writing fluency 100 50 Passage Comprehension 101 53 Writing Samples 106 66 Word Attack 107 68

In re: Student Page 17 of 21 Reading Vocabulary 96 39 Broad Reading 105 63 Broad Written Language 104 60 Basic Reading Skills 106 66 Reading Comprehension 98 45 Written Expression 102 56 Based on Age Expectations SS PR Letter word identification 100 51 Reading fluency 102 56 Spelling 97 41 Writing fluency 96 39 Passage Comprehension 98 45 Writing Samples 104 60 Word Attack 104 60 Reading Vocabulary 94 34 S S P R Broad Reading 100 51 Broad Written Language 97 43 Basic Reading Skills 102 56 Reading Comprehension 95 38

In re: Student Page 18 of 21 Written Expression 98 46 Student’s teacher describes Student as outgoing and social (NT 127). Reading in the fourth grade is taught as a whole class instruction heterogeneously grouped (NT 127), and Student performs above av erage (NT 127), and fluently (NT 128). Student’s teacher has not not ed any specific needs in r eading (NT 128). Student’s teacher also noted that given that Student is at the top of Student’s class Student does not need any specially designed instruction (NT 131). The instructional support teacher also r ecommended that Student does not need specially designed instruction because Student is reading at the level of the classroom (NT 154-155). Student’s special education teacher has worked with Student for two years (NT 177-178). She meets with Student twi ce a week, one on one (NT 178). She described Student as very good in comprehension (NT 178-179). She has not noticed a problem with fluency, and the teachers have not noted any concerns regarding Student’s reading (NT 179-181). She does not think Student needs specially designed instruction (NT 182). She thinks SDI is above and beyond the regular class, and she thinks Student does not need this SDI (NT 183). She thinks Student needs no extra help despite the fact Student has a disability but does not require any extra help at this time (NT 184-185). Finally, after working w ith Student over the past two years she feels Student is making meaningful educational progress (NT 197). The reading specialist who works w ith Student twice a week (NT 202) administered the QRI-3 and found Student is at an independent level (NT 204-205).

In re: Student Page 19 of 21 She does not think Student is eligible for special education, because Student’s learning disability does not impede or impact Student adversely in Student’s education (NT 214). Finally, she thinks he r level of reading is appropriate (NT 210- 211). The only person who really described needs in school was [a family member of Student who] has a BA in nursing, and ha s certifications as a case manager and a certified disability management specialist. Her area of expertise is not educational matters relating to reading. She described Student’s problems with left and right (NT 288), and that Student still cannot tell time (NT 287). She also described problems Student ha s in learning to play [a musical instrument.] (NT 288-289). She has no edu cation training and ha s not completed an observation of Student in schools (NT 343) , and does not know how to determine fluency (NT 346). Though a helpful advocat e to the family, her lack of knowledge regarding special education issues in the schools, not obser ving Student in a classroom, and her lack of knowledge rega rding reading programs in the schools diminished her credibility. Parents testified they feel tricked by the District’s use of the Appeals Panel decision where it sought to determine eligibility and that the district sought to disqualify Student from sp ecial education services (NT 365). They do say, however, that Student has been successful in the regular education classroom (NT 375). The Parents expert witness, Dr. T, te stified that Student has no need for specialized instruction and no need for school based programs to improve Student’s

In re: Student Page 20 of 21 instruction. Student does not need to be pulled out, and that Student is not eligible for special education (NT 445, 521). As noted above, eligibility for special education and related services is contingent upon meeting a two-part test. A child needs to have a disability and needs to require specially designed instruction. There was testim ony as a part of this case that Student has a disability. Specifica lly, Student has a discrepancy between Student’s ability and Student’s achievement as documented by the District. There is no evidence, however, that Student requires sp ecially designed instruction. None of the teachers who work with Student i ndicates a need for specially designed instruction, and the Parents expe rt witness, Dr. T clarified that Student does not need special education. She stated Student n eeds the Orton-Gillingham reading approach outside of the classroom, but that no special education is required. The fact that Student is not eligible for special education and related services is not new. The Decision of the Hearing O fficer in the previous due process hearing also found that Student was not eligible fo r special education and related services. That determination, in addition to the rece nt evaluation completed by the District, the extensive testimony of those who work clos ely with Student indicating no need for specially designed instruction cl early indicate to this Hearing Officer that Student is not eligible for special education.

In re: Student Page 21 of 21 V. ORDER In accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED that Student is no longer eligible for special education and related services. ________________ _____________________ Date Hearing Officer