Shaler Area School District | Case 8128-07-08 | 2008-06-28

This is a redacted version of the original decision. Select details have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. SPECIAL EDUCATION HEARING OFFICER DECISION Child’s Name: KL Date of Birth: xx/xx/xx Date(s) of Hearing: November 5, 2007, December 10, 2007, December 11, 2007, January 24, 2008, January 28, 2008, April 16, 2008* CLOSED HEARING ODR NO. 8128/07-08AS Parents Parents’ Representative: Mr. and Mrs. Jeffrey Ruder, Esq. 710 Fifth Avenue, Suite 2600 Pittsburgh, PA 15219 School District: District Representative: Shaler Area School District Christina Lane, Esq. 1800 Mt. Royal Blvd. Andrews & Price Glenshaw, PA 15116 1500 Ardmore Blvd., Suite 506 Pittsburgh, PA 15221 Date Record Closed: May 20, 2008 Date of Decision: June 28, 2008** Hearing Officer: Margaret Drayden, Esq. * Parties waived the 45-day time period. ** Decision was delayed due to a medical emergency.

2 Précis Student is a teen age student in the Shaler Area Sc hool District (“District”). Student is identified as qualifying for special education due to needs in the areas of speech/language (“SL”), occupational therapy (“OT”), and developmen tal delays due to mental retardation (“MR”). After several years of receiving the major ity of Student’s educational program in a learning support (“LS”) class, the District be lieves that Student needs the assistance of a blended program, including life skills. Pare nts disagree and believe that life skills is a more restricted educational environment. Findings of Fact 1. Student is a resident of the District and has atten ded District classes since kindergarten with learning support, SL, OT and phys ical therapy (“PT”). (NT at 1095-96; SD-1, SD-2.) 1 2. In the 2005-06 school year (“SY”), Student received a blended program of learning support services as well as life skills, a long with SL and OT. (NT at 1096-97; SD-1, SD-2.) 3. On 1/12/06 the IEP team determined additional infor mation was needed to determine Student’s appropriate placement for the upcoming 2006-07 SY. (SD-1.) 4. On 2/21/05, Student was evaluated by Dr. [redacted] of the [redacted] Institute. Student obtain a FSIQ of 46 on the Wechsler Intelli gence Scale for Children – Fourth Ed. (WISC-IV) and a Test Composite score of 58 on the Stanford Binet Intelligence Scale – Fifth Ed. (SB-V); these scores are indicative of Mild to Moderate Mental Retardation. Student was administer ed the Woodcock Johnson Tests of Achievement – Third Ed. (WJ-III) where Stu dent obtained a Broad Reading score of 65 and a Broad Math score of 68; t hese scores are significantly below grade level. Student showed a relative stren gth with tasks reliant on rote memorization, suggesting Student can learn discrete functional skills with repetition. Parent completed the Vineland Adaptive Behavior Scale – the total score was 43, which was also consistent with a find ing of Mental Retardation. The Asperger Syndrome Diagnostic Scale and Childhoo d Autism Rating Scale – parent as well as the Conners’ parent Rating Scale – Revised, Short Version did not indicate any concerns with Asperger’s or ADHD. (NT at 29-;SD-1.) 5. On 5/8/06 the District’s Reevaluation Report (RR) i ssued. The RR incorporated the information from Dr. and in addition the follow ing tests/rating scales were 1Parents’ exhibits are noted as “P-”; District exhib its are noted as “SD-”; Hearing Officer exhibits ar e referenced as “HO-”; Noted Transcript is referenced as “NT”; Findings of Fact are noted as “FF”.

3 administered: WISC-IV, WIAT-II, Test of Nonverbal Intelligence (TONI-3), Adaptive Behavior Assessment System – Teacher Form (ABAS-II), ABAS-II – parent Form, and the CADS – Teacher and Parent Vers ions. Student earned a FSIQ of 48 on the WISC-IV; the TONI-3 IW score of 8 3 is in the 13 th percentile (“Significantly low scores are percentile ranks bel ow 16 or quotients below 85.”); the WIAT-II – Student’s scores were all in the “ext remely low” range with the single exception of Pseudoword Decoding, where Stud ent’s score was in the Borderline range. The RR noted that “Reading Compre hension is a particular area of difficulty”; the ABAS-II Teacher form composite score was 72 (which indicates that Student’s current adaptive skills ex ceed approximately 3% of same age peers); the ABAS-II Parent form composite score was 82 (which indicates Student’s current adaptive skills exceed approximat ely 12% of same age peers). The CADS – Teacher Version – was assessed by two te achers, and each teacher’s total DSM-IV score was 63; Parent Version was asses sed by Parent and the total DSM-IV score was 64. A T-score of 65 and above ind icates the student exhibits behaviors to a greater frequency, magnitude, or int ensity when compared to same age peers. The Oral and Written Language Scales (O WLS), Receptive One-Word Picture Vocabulary (ROWPVT) and the Expressive One- Word Picture Vocabulary Test (EOWPVT) revealed that Student has expressive and receptive language skills fell 2 standard deviations below th e average range, indicating a moderate delay in Student’s language skills. The T erraNova CAT Survey (a group administered achievement test) was administered in May 2005, and Student obtained a Total Reading percentile of 1, Total Mat hematics of 11%ile, Total Language – 3%ile, with a Total Battery – 3%ile. T he RR concluded that Student’s primary disability category was mental re tardation and a secondary disability category was SL impairment, and the reco mmendation was for a special education program incorporating both life skills an d learning support. (NT at 26- 43, 77-134; SD-1, SD-3.) 6. The RR observations/present levels of academic perf ormance by teachers and related service providers for the 2005-06 SY includ ed information, inter alia, that Student performed below grade level in English, rea ding, math, science, and social studies; that while Student received average to above average grades in English, Student “demonstrate[d] significant diffic ulty passing tests. [Student’s] rates of acquisition and retention [were] significa ntly lower than peers” and Student received adaptations including reduced assignments, adapted tests, special seating, and working with a partner to keep up in c lass. Student’s reading fluency score averaged 90 wpm on a 3d grade level, spelling skills indicated Student was spelling on a 4 th grade level. All services were in a small group setting. (SD-1.) 7. The school psychologist, opined that Student has ad aptive skill deficits, requires a lower instructional level with functional academics, has “extremely low reasoning skills”, relies on rote memorization, and cannot ma ke meaningful educational progress in a learning support classroom. (NT at 42, 51-53, 199.) 8. Although the RR states the testing and classroom ob servations were in May 2005, the school psychologist testified that “I collected data only May of 2006.” (NT at 48, 50; SD-1.) 9. The intermediate school has adapted texts but the h igh school learning support

4 students are on grade level. (NT at 244.) 10. A learning support teacher, testified that she had Student daily for 9th grade Earth Science and that Student was “so willing to please” but that Student’s “skill level created frustration for Student when attempting a task. Student’s skills were lower than the other students and so as much as Student w ould try, Student would fall behind because of Student’s basic skills. [Student] exhibits frustration by – I mean, [Student] would cry sometimes, sometimes [Stu dent] would go – need to go to the guidance office, see the school counselor , and a lot of times, [Student] would also say Student didn’t feel well, to go to the nurse.” (NT at 225-6, 249.) 11. The learning support teacher would further modify/a dapt the classroom work by eliminating various assignments, limiting the numbe r of questions, eliminating open-ended questions “or any type of sentence...cre ate a sentence, eliminated true/false questions, provided word banks and one-on-one instruction. (NT at 225- 227.) 12. Student was unable to demonstrate knowledge of the curriculum because it was so highly adapted. (NT at 246.) 13. Student’s processing skills are slower than the oth er learning support students, and Student could not keep up either academically or socially. (NT at 246.) 14. Student has difficulties with socialization - Student doesn’t understand that staring makes other students uncomfortable and Student is u nable to maintain peer relationships. (NT at 248, 398.) 15. Study guides for class tests and quizzes were sent home a full week before the exams. The study guides were duplicates of the tes t/quizzes being given. (NT at 250.) 16. On the 9 th grade Life Skills English final, Student received 60%; on the final Reading Test Student received 61%; on the English 9 final exam, Student received 123 points out of 135; on the 9 th grade Life Skills Social Studies final exam, Student received 30/30; on the Pre-Algebra fi nal – Adapted exam, Student received 26%; and, on the Life Skills Earth Science 9 th grade final exam Student received a 92% (Student had the study guide with an swers provided). (NT at 250, 253-54, 441-46; SD-10.) 17. The learning support teacher sought advice from the life skills teacher regarding additional adaptations to help Student experience m ore success, but all recommendations had been implemented and there were no additional accommodations to be made. (NT at 400-01.) 18. The learning support teacher recommended that Stude nt receive all academic classes in the life skills classroom. (NT at 400.) 19. Ms. [ ] was Student’s 8 th grade Sonday reading program teacher and 9 th grade reading teacher. (NT at 409.) 20. The Sonday reading program (available through 8 th grade in the District) is for lower level reading students who experience weaknes ses in reading fluency, reading recognition and comprehension. It focuses on phonetics with continuous drill and practice, and requires small group work. It is an oral program – no worksheets are used, just reading and repeating. (NT at 411-12, 417-21.) 21. The 9 th grade reading program , The Rewards Program (directed at 6-12 th grades), like the Sonday reading program, is also orally bas ed with drill and practice

5 without any supplementary writing. (NT at 425-428.) 22. Student did not achieve Student’s 9 th grade annual goal of “reading a given passage at the 3d to 5 th grade level and answer 4 out of 5 comprehension questions correctly on 4 out of 5 trials.” The rea ding teacher testified that the 4 th quarter progress report which indicated “achieved” should have read “partially achieved”. (NT at 431-35; P-2.) 23. Student did not achieve Student’s 9 th grade annual goal of interaction with others. Although the reading teacher would encourage classm ates to interact with Student, Student did not socialize with the other l earning support students; Student did not initiate any conversations and when other students would attempt to converse, Student would just answer in a “yes/no ” fashion. Student was withdrawn, would sit with shoulders slumped, head d own. (NT at 435-440, 579- 80; P-2.) 24. The reading teacher recommended to the IEP team tha t Student continue with reading development in the 10 th grade. The reading program in the 10 th grade is offered only through the life skills program. (NT at 448-49, 594-95.) 25. The reading teacher testified that Student reads 3 d grade material fluently but has difficulties with reading comprehension. (NT at 455-56, 506-07, 586-588.) 26. Student was in the lowest reading level in the 9 th grade reading class. (NT at 560- 61.) 27. The reading teacher testified that it is her belief that the IEP team’s recommendation that Student’s academic classes be p rovided in life skills was appropriate. (NT at 568.) 28. The 9th grade learning support English teacher, testified that the class is a lower level than the typical learning support English cla ss, and that she adapted the modified 9 th grade curriculum still further to meet Student’s n eeds by adapting the tests, reading aloud to Student, spending 1-on-1 ti me with Student to assist Student in writing paragraphs, taking notes for Stu dent, restating things in different terms for clarification. (NT at 608-610.) 29. Student was successful with basic concepts in LS En glish, but had significantly more difficulty with abstract thinking. (NT at 612-13.) 30. Student was at the bottom of the lowered 9 th grade LS English class. (NT at 629- 30.) 31. After a year of instruction in the lower level lea rning support class, Student had not mastered writing a sentence or paragraph, despi te modifications, accommodations, 1-on-1 support. It was the 9 th grade learning support English teacher’s opinion that Student needed life skills English. (NT at 634-43, 647.) 32. Learning support English is inappropriate for Stude nt because it focuses on writing which demands more than rote memory. Rote memory allows Student to state the elements of a paragraph [topic sentence, 3 details, conclusion] but that does not help in ascertaining whether a particular sentence is the topic sentence, if the paragraph structure is proper, etc. (NT at 645-46.) 33. The learning support and life skills teacher, taugh t Student in 8 th grade for life skills science, extended school year (ESY) life ski lls summer camp after 8 th and 9th grades, and 9 th grade for social studies and life skills (a commun ity-based instruction program) for the full year and 2d semester for English. (NT at 651-54.)

6 34. The learning support and life skills teacher testi fied she was part of the IEP team which developed the 9 th grade IEP and the majority of the team believed it was in Student’s best interests to focus on life skills, h owever, Parents disagreed but permitted a social studies class in life skills. (NT at 658-59.) 35. Student’s community-based instruction (CBI) skills were lower than the learning support and lfe skills teacher anticipated – Studen t is very dependent and needs safety/survival skills as well as basic communication skills. (NT at 659-71.) 36. The learning support and life skills teacher opined that Student needs a life skills curriculum because Student needs skills with a real life focus – Student needs to develop social communications skills, the ability t o “survive independently” and understand how to make purchases, count money, etc. (NT at 682-84.) 37. Student made minimal/no progress on numerous annual goals. (NT at 710-21; SD-8.) 38. Student has difficulty with long-term retention eve n when provided intense drilling and adaptations. (NT at 727-31, 814-15; P-10.) 39. The learning support and life skills teacher opined that the level of adaptations required for Student to experience educational succ ess is found in life skills support rather than in learning support – such thin gs as social cues and manners, such as saying hello rather than staring at someone , safety concerns such as seeking needed help/assistance. (NT at 736-38.) 40. Grades differ from IEP goals in that grades include completing homework and classroom assignments, coming to class prepared, an d classroom participation as well as test scores while IEP goals monitor progres s on the goal and does not factor in those additional components. (NT at 739-41.) 41. CBI is limited to life skills students. (NT at 746.) 42. Student experienced difficulty in 9 th grade ESY in math activities such as counting change and rounding to the next dollar. (NT at 747-48, 897-98.) 43. The IEP team met at least 3 times from April – Augu st 2007 and revised the proposed IEP and one of the meetings included a med iator. (NT at 765-68; SD- 21.) 44. The proposed IEP, dated 8/8/07, and the accompanyin g NOREP, provides for a “blended program”, with the type of service noted a s Resource and the type of support listed as “Life Skills and Learning Support and Speech”, not a full-time life skills program. (NT at 772-73; SD-20; P-9, P-10.) 45. The proposed IEP provides for a placement of 20 hou rs of the educational week and the IEP team checked the box showing 21-60% for the LRE Category; the 9 th grade IEP provided 22.05 hours in special education for and the LRE Category was 61+% in special education. Student’s 8 th grade IEP provided for 25.5 hours in special education, again with a 61+% in special education, as did Student’s 7 th grade IEP. (NT at 774-77; SD-5; P-10, P-19, P-25, P-28.) 46. The District’s life skills curriculum provides for developing skills such as writing simple sentences, basic math and statistics, intera ction with classmates, peers and co-workers, demonstrating money skills and time skills. (NT at 815-825, 859; SD- 24.) 47. The proposed 8/8/07 IEP was based on Student’s need s as evidenced by Student’s present educational levels not on the District’s li fe skills curriculum. (NT at 869-

7 70.) 48. The 10 th grade life skills teacher, testified that due to S tudent’s strength in rote memorization, Student can memorize tests and thus s core well, yet still lack basic skills. (NT 876-78.) 49. The IEP team raised the goal attainment level to 10 0% due to Parents’ wishes. (NT at 894-95.) 50. The 6/29/07 Goodwill Industries’ Vocational Evaluat ion (VE) recommended, inter alia, that Student “engage in prevocational t raining activities … [which] may take place as part of Student’s current school situ ation”; that Student’s curriculum be reviewed and revised to “stress areas related to motor skills, sensory skills, emotional functioning, adaptive behavior/daily-livi ng skills, verbal-receptive language skills, discrimination recall, spatial rel ations, and auditory sequencing;” and that Student “secure job readiness training, pr ofessional job development and job coaching.” (SD-4.) 51. A sheltered workshop environment is considered a “p revocational activity” and is an appropriate option for Student. (NT at 980-81.) 52. Student’s average factor score on the McCarron-Dial battery of tests was 57.7, which falls within the special population standard average range of 40-70. (NT at 918-19, 926-34; SD-4.) 53. Student attained an age equivalency of 10 years 5 m onths on the Peabody Picture Vocabulary Test. (NT at 920.) 54. The Goodwill Industries vocational evaluations supe rvisor, testified that based on Student’s test scores, Student’s intellectual abili ties indicate Student may be successful in understanding a skill but unable to t ransfer that skill to another task. (NT at 922; SD-4.) 55. The VE reported that Student “may generally underst and simple concepts and analogies and may superficially relate these to Stu dent’s environment. Although Student may appear to function above the concrete o perational level of development, Student may not internalize concepts, and therefore have difficulty generalizing from one set of circumstances to anoth er. Others may often be misled by the apparent verbal-spatial-cognitive ski lls of individuals within this range…. Student may be able to rationalize this ina bility to transfer skills, thereby giving the appearance of functioning at a higher cognitive level.” (SD-4.) 56. On 10/05/07, Parent’s educational expert, issued a psychological evaluation (IEE) wherein they reviewed prior testing and records, co nducted a clinical interview with Parents and Student, and administered standar dized measures (WJ-III-COG and WJ-III-ACH) to evaluate Student’s intellectual functioning as well as academic achievement. Subsequent to the written ev aluation, the Parent’s educational expert did an observation. (NT at 1089-91; SD-2.) 57. The WJ-III-COG was administered and Student earned a General Intellectual Ability Score (GIA) of 40, which falls within the I ntellectual Disability Range and equals or exceeds the performance of 0.1% of al l other adolescents Student’s age. The Parent’s educational expert noted in the e valuation that this score is consistent with the May 2006 RR findings. (NT at 1135-37; SD-2.) 58. The Parent’s educational expert also found that Stu dent’s cognitive efficiency is significantly weaker than Student’s verbal skills a nd thinking ability, suggesting

8 that Student has difficulty completing tasks rapidly. (NT at 1137-41; SD-2.) 59. The Parent’s educational expert opined that Student ’s GIA score was lowered somewhat due to Student’s cognitive efficiency scor e, but that the GIA – which is a composite score – is the most accurate. (NT at 1 243-45, 1251.) 60. The Parent’s educational expert administered the WJ -III-ACH and found Student’s reading skills were significantly better and listening comprehension and academic knowledge were significantly worse than St udent’s other academic achievement skills. Also, reading comprehension di fficulty may be due to a lack of reading fluency, thus an inability to allow Stud ent’s working memory to hold concepts long enough to understand the meaning of w ords grouped together. Student’s reading skills fall within the Intellectu ally Deficient to Borderline Range. (NT at 1127-28, 1156-58; SD-2.) 61. The Parent’s educational expert opined that the WJ- III-ACH scores suggest that Student was benefiting from Student’s educational i nstruction and made good gains. (NT at 1110-1112.) 62. Student performed at a level commensurate with Stud ent’s cognitive ability in all areas of testing with the exception of listening co mprehension and academic knowledge. (Id.) 63. The Parent’s educational expert recommended a blend ed program of regular education classes, life skills and learning support in the 10/5/07 evaluation; however, testified that after observing Student, th ey would modify it slightly and recommend Student receive only math in the life ski lls class and opined that Student’s proposed IEP goals could be met in a gene ral education environment and that life skills did not represent the LRE. (NT at 1166-67, 1175, 1250-51; SD- 2.) 64. Student can benefit from peers who perform at a hig her academic level, which the Parent’s educational expert referred to as “structu red mediated social interaction”. (NT at 1171, 1173.) 65. The IEE included a DSM-IV diagnosis: Axis I: 315. 32 – Mixed Receptive- Expressive Language Disorder; Axis II: 318.0 Moder ate Mental Retardation; Axis III: None; Axis IV: Educational problems (Poor academic achievement); Axis V: GAF = 50 (current). 2 (NT at 1104, 1159, 1248-49; SD-2.) 2 The Diagnostic and Statistical Manual of Mental Di sorders (“DSM-IV”), published by the American Psychiatric Association, uses a multi-axial approac h. Axis I lists clinical (mental) disorders; Axis II – developmental disorders and personality disorders; Axis III – physical conditions; Axis IV – severity of psychosocial stressors; and Axis V – global assessm ent of functioning, which is the level of functioni ng at the present time and the highest level within the p ast year. Axis IV represented the clinician’s estim ation of the client’s overall severity of life stress in the past year. There are six categories/scores associ ated with this Axis: 1. No stress; 2. Mild stress; 3.Moderat e stress; 4. Severe stress; 5. Extreme stress; and 6. Catastrophic stress. That information was not note d on the report. Axis V (Global Assessment of Functioning) has scores ranging from 1 to 100, wit h 100 being optimal. A score in the 91-100 range shows no symptoms impairing functioning. The DSM-I V lists a score of 41-50 as Serious symptoms (e.g. , suicidal ideation, severe obsessional rituals, freq uent shoplifting) OR any serious impairment in soci al, occupational, or school functioning (e.g., no frien ds, unable to keep a job). Scores of 51-60 as Mode rate symptoms (e.g., flat affect and circumstantial spee ch, occasional panic attacks) OR moderate difficult y in social, occupations, or school functioning (e.g., n o friends, unable to keep a job). Scores of 61-70 are considered as Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but

9 66. The Parent’s educational expert agreed with the fin dings of the Goodwill Industries Vocational Evaluation and that Student h as adaptive functional/vocational needs. (NT at 1164.) 67. The Parent’s educational expert opined that Student ’s educational profile indicates the educational program should include vi sual, auditory, and direct learning approaches as well as concrete multi-senso ry approaches. (NT at 1144- 46, 1188, 1239.) 68. IEP Review Information sheets and Weekly Progress R eports clearly show that although Student tries hard and teachers are workin g diligently to adapt the information for Student, Student is struggling with the level of academics. Therefore, teachers recommend Student receive Student’s education in a life skills placement. (P-31, P-33, P-34, P-37, P-39, P-44.) 69. The 8/8/07 proposed IEP contains present levels in the area of post-secondary transition; present levels of academic achievement; present levels of functional performance; a list of strengths and needs related to Student’s disabilities; effect on involvement and progress in general education cu rriculum; 4 SL annual goals, 1 CBI annual goal, 2 reading goals, 2 writing goals , 3 math goals, 2 OT goals, 3 social competency goals, 1 goal for identifying mon ey and making change, 1 goal for telling time, 1 goal for learning to measu re in inches, and 1 goal for learning how to graph numbers; program modification s and SDI; related services, support for school personnel; a notation that Stude nt qualifies for ESY; and Student’s educational placement showing the type of service: Resource, and the type of support: Life Skills and Learning Support and Speech. (P-10; SD-19.) Witness Credibility 1. School Psychologist – Earned a B.A. in Psychology i n 1999 and a M.S. in Education in 2000 from [redacted] University. She also earned a Certificate of Advanced Study in School Psychology in 2002, which is NASP approved and has worked within the District since June 2002. She wa s credible – she answered without hesitation and was professional in her deme anor she was calm and assured, spoke knowledgeably and without hesitation. 2. 8 th and 9 th grade learning support teacher – Earned her underg raduate degree in Special Education/Elementary Education at [redacted ] College and will earn her Master’s in Special Education this December from [r edacted] University. She has 6 years teaching experience with the District and 1 year prior experience in [state redacted]. She presented herself professionally an d answered without hesitation. Her answers were well reasoned and articulate and h er concern for Student was obvious. She was credible. generally functioning pretty well, has some meaningful interpersonal relationships. Student received the same GAF score (50) from [reda cted] in the 2/21/05 Watson Institute neuropsychological evaluation.

10 3. 8th and 9 th grade learning support teacher – Attended [redacte d] University for undergraduate studies and received her certificate in Special Education; attended U. of [redacted] where she was certified in Element ary Education. She has taught reading and English in a learning support environme nt for 13 years in the District. She presented herself in a very professional manner; she is an experienced teacher and well-acquainted with Student. She answered the District solicitor’s questions quite readily and without hesitation but she appear ed somewhat resentful of Parents’ counsel’s questions. On the whole, howeve r, her testimony was credible. 4. 8th grade inclusion and 9 th grade learning support English teacher – She gradu ated from [redacted] University in 2000 and is certified in elementary; special education; and language arts (midlevel – grades 7- 9). She has 5 years experience with 3-1/2 of those years in the Distric t. She spoke easily and with confidence, and was knowledgeable. Her testimony was very credible. 5. Learning support teacher – Earned a Bachelor’s degr ee in Psychology from [redacted] University as well as early childhood, e lementary, and special education certifications; is certified in mid-level language arts and mid-level math (grades 7-9) and is currently working on a Master’s degree in Special Education at the University of [redacted]. She has approxima tely 4 years’ experience within the District. She was very professional, answered directly and without hesitation. She was very knowledgeable and showed no bias. Her testimony was highly credible. 6. High school life skills teacher – Earned a Bachelor ’s degree in Psychology from [redacted] University in 2003, recently earned her Master’s in Elementary Education from [redacted] University, and is certif ied in early childhood, elementary and special education. She has 4 years’ experience, all of which are with the District. She presented herself in a prof essional manner and answered directly and thoroughly and while she was unable to articulate a reason for the life skills math decision, her testimony was credible. 7. Goodwill Industries Vocational Evaluations Supervis or –holds a Bachelor’s degree for secondary education and social science a nd history from [redacted] College and has completed graduate-level coursework in vocational assessment. Additionally, she has additional training in vocati onal assessment, including the McCarron-Dial System which was used in Student’s ev aluation. She has 6 years experience as a vocational evaluator and 1-1/2 year s as a vocational evaluations supervisor. She presented herself as a competent, assured, and knowledgeable professional. Her answers were well reasoned and e ven-handed; she obviously had no bias toward or against the District or Stude nt. Her explanations were clear and understandable and she testified persuasively. This witness was very credible. 8. The Parent’s educational expert – Asst. Professor i n the School of Psychology, [redacted] University – The Parent’s educational ex pert has a BA in Psychology from [redacted] College, and both a Master’s and a Doctorate of Education in Educational Psychology from [redacted] University. Additionally she holds an Educational Specialist Certificate in school psycho logy from [redacted] University and is a nationally certified school psy chologist and a level two PA certified school psychologist. She was admitted as an expert in school

11 psychology. The Parent’s educational expert was ex ceptionally well qualified and credible; she was well spoken and her testimony was evenhanded’ she presented herself in an assured, professional and confident m anner. She was highly credible. Discussion and Conclusions of Law Jurisdiction A due process hearing is a hearing authorized throu gh special education laws of both federal and state legislation. The jurisdictio n of such a hearing is highly circumscribed. A hearing officer cannot decide an y issue – no matter how significant – which is outside those narrowly defined parameters. Thus, any concerns parents may have regarding education services which concern mat ters beyond those parameters are beyond the purview of this process and this Hearing Officer. Witness Credibility Within the context of the special education 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.’” 3 Quite often, testimony – or documentary evidence – conflicts; this is to be expected for, had the pa rties been in full accord, there would have been no need for a hearing. Thus, as stated, part of the responsibility of the Hearing Officer is to assign weight to the testimony and do cumentary evidence of facts which concern a child’s special education experience. Hearing Officers have the plenary responsibility t o make “express, qualitative determinations regarding the relative credibility a nd persuasiveness of the witnesses” and “give some reason for discounting” 4 or crediting evidence. Further, Hearing Officers ’ decisions are to “specifically mak[e] credibility determinations among the various witnesses and contrary expert opinions”. 5 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 st ate administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contra dictory testimony of another witness, that determination is due special weight. Id. ;6 Carlisle Area School v. Scott P., 62 F.3d 3 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). 4 Blount v. Lancaster-Lebanon Intermediate Unit, 200 3 LEXIS 21639 at *28 (2003). 5 Id. at *34. 6 Citing S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003)

12 520, 527-29 (3d Cir. 1995). Specifically, this means that a District Court must accept the state agency’s credibility determinations ‘unless t he non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.’ Carlisle , 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 Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985).” 7 This court further held that “the task of evaluat ing [witnesses’] conflicting opinions lay in the first instance with the ALJ in whose presence they testified.” 8 Similarly, credibility has been addressed in vario us 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 witness and reject another part even though the latter contradicts the part accepted….[and also ] reject part of the testimony of a witness, though not directly contradicted, and comb ine 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 f inder may reject the testimony of even an expert witness, although not contradicted. Forema n & Clark Corp. v. Fallon , 3 Cal.3d 875, 890 (1971) And California courts have also f ound that “one credible witness may constitute substantial evidence”. Kearl v. Bd. Of Medical 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 9 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 any law s or regulations on the matter. In Pennsylvania, the burden in an administrative heari ng challenging an Individualized Education Program (“IEP”) generally fell to the LEA . Recently, however, the United States Supreme Court addressed this issue in Schaff er v. Weast , 126 S. Ct. 528 (2005). In the concluding paragraph of the Opinion of the C ourt, Justice O’Connor held: “The burden of proof in an administrative hearing challe nging an IEP is properly placed upon the party seeking relief.” 10 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, bu t rather for the failure to find a child eligible for one, “the overarching logic of Schaffe r – that, in the context of the IDEA, the party bringing the challenge bears the burden of pr oof…[and] [a] student’s challenge to a district’s determination that he or she is not elig ible 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 adminis trative hearings assessing IEPs, 7 Shore Regional at 199. 8 Id. at 201. 9 The IDEIA is variously referred to in case law as the IDEIA or IDEA 2004. In either event, it is one and the same. 10 126 S.Ct. at 537.

13 Schaffer controls.” 11 The burden of persuasion in an administrative proce eding lies with the party seeking relief. 12 This requires the Hearing Officer to make a deter mination of whether or not the evidence is “equipoise” rather than prepond erant. 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 o ther words, where there is evidence which tips the scales, the party which presented th at evidence prevails. However, where the Hearing Officer finds the evidence is equally b alanced on an issue, the non-moving party prevails. Interestingly, neither party claimed to be the part y requesting the hearing – or stated conversely – each party claimed the other wa s the one requesting the hearing. To enable the hearing to proceed, the District agreed to put on their case in chief while the issue of burden was decided. After reviewing the p arties’ briefs and supporting documents, I found that while Parents did not direc tly file a complaint, Parents had provided the District with two dated and signed req uests for a hearing. The District – through its correspondence and that of its counsel - requested confirmation that Parents were, in fact, seeking a due process hearing. When no answer was forthcoming, the District forwarded the Parents’ request to the Offi ce for Dispute Resolution and a hearing was scheduled. I found that the act of forwarding Parents’ request did not shift the mantle as the party seeking relief from Parent to the District. After the hearing concluded, I carefully examined a nd analyzed all of the evidence and the testimony and I did not find “equi poise”. Thus, the burden of persuasion was not at issue in this case. Issue 1. Is the 8/8/07 proposed IEP appropriate and does it provide Student FAPE in the least restrictive environment? To gauge an IEP’s appropriateness, it must be view ed in light of the IDEA and the relevant Regulations. It must include the student’ s present levels of academic achievement, whether and how the disability/disabil ities might affect involvement in regular education; annual goals designed to meet th e needs that result from the child’s disability; specially designed instruction and the related services and supplementary aids and services to be provided; the program modificati ons or supports for school personnel that will be provided; and it must identify the ant icipated date for beginning the services as well as the frequency, duration, and location of services. For older students, IEPs must include measurable postsecondary goals and transiti on processes. 13 Further, it must be 11 L.E. v Ramsey Bd. Of Educ ., 435 F.3d 384, 391 (3d Cir. 2006). 12 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”.) 13 34 C.F.R. §300.320(1-4).

14 “reasonably calculated” to enable the student to ac hieve a meaningful educational benefit. 14 While the IEP need not provide the optimum educational experience or benefit, it must provide for significant learning. 15 The question of whether an IEP is reasonably calculated to provide a student with an educational benefit can only be determined at the time it is offered, not some later date. 16 The 8/8/07 proposed IEP which was developed by the IEP team over a period of months conforms to the IDEA regulations and the goa ls therein are based on Student’s needs as determined in the District’s 5/8/06 RR. The question then turns to where Student’s needs c an most effectively be addressed. The crux of Parents’ concern is the Di strict’s conclusion that the majority of Student’s academic needs can no longer be adequatel y provided in the learning support classroom. It is not disputed that Student requir es much of Student’s educational day be provided in a classroom without typical peers - Stu dent has received special education services in learning support and/or life skills sin ce kindergarten. Parents are not arguing that a greater percentage of Student’s day be in a regular education setting – rather, Parents feel strongly that Student should continue in learning support rather than a life skills class where, they contend, Student would not be sufficiently challenged. 17 The Third Circuit court held, in Ridgewood Bd. Of Education v. N.E., 172 F.3d 238, 250 (3d Cir. 1999) that “IDEA’s central goal i s that disabled students receive an appropriate education, not merely an appropriate IE P.” The IEP team has urged for two years that the educational focus should address Stu dent’s more practical needs, such as social interaction; practical mathematics, making p urchases at a store and understanding how to count change; and telling time. These areas of instruction are not provided in learning support classes but are addressed in life skills classes. Further, testimony by Student’s teachers was persuasive that Student has achieved passing grades due to the extremely high level of modifications and accommoda tions, as well as the result of memorization due to study guides, which were copies of tests (which sometimes contained the answer sheet) being sent home at leas t a week prior to the test. However, Student is unable to generalize that knowledge, ref lecting that little or no real learning or understanding of that information is accomplished. 18 In Board of Educ. v. Rowley, 458 U.S. 176, 203, n. 25 (1982), the Supreme Court held that merely passing from grade to grade and achieving passing grades is not dispositi ve that a student has received a FAPE. 19 That is true in this instance. 14 Board of Educ. v. Rowley, 458 U.S. 176, 207 (1983) . 15 Ridgewood Bd. Of Educ. v. M.E., 172 F.3d 238, 247 (3d Cir. 1999). 16 Furhmann v. East Hanover Bd. Of Educ., 993 F.2d 10 31, 1040 (3d Cir. 1993); Daniel G. v. Delaware Valley Sch. Dist., 813 A.2d 36, 43 (Pa. Cmwlth. 200 2). 17 FF No. 45. The proposed IEP provides for a greater percentage of Student’s day with typical peers tha n prior IEPs. 18 Particularly persuasive was the explanation that w hile Student’s rote memory allows Student to state the elements of a paragraph that it does not help in as certaining whether or not a particular sentence is a topic sentence, if a paragraph is properly structured, etc. See FF No. 32. 19 See also, 34 C.F.R. §300.101(c)(1): “Each State mu st ensure that FAPE is available to any individual

15 The weight of the testimony and documentary evide nce is that while Student did make some progress due to extraordinary efforts by Student’s teachers and by Parents, as well, there cannot be a finding of meaningful educa tional progress or that Student receives an appropriate education with the majority of Student’s educational program remaining in a learning support environment. 20 Parents’ position is that not only will Student n ot be provided the opportunity to live up to Student’s potential if Student is moved to a life skills classroom but that life skills support is inherently a more restrictive pla cement and should trigger a LRE analysis. However, Parents’ position is misplaced. A LRE analysis looks to see whether a student is educated among typical, non-identified peers to the maximum extent appropriate while using supplemental aides and serv ices to assist in that endeavor, not whether a particular classroom of identified studen ts is more restrictive than another classroom of identified students. The pertinent IDEA implementing regulation defines LRE at 34 C.F.R. §300.114(a)(2): Each public agency must ensure that— (i) To the maximum extent appropriate, children wit h disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled (Emphasis added.) The Appeals Panel addressed a similar factual situ ation where parents raised the issue of LRE in Special Education Opinion No. 1290: “Thus, the law on LRE is strictly a determination t hat the student’s placement allows maximum appropriate education alongside nond isabled peers. The proposed life skills placement provides exactly the same amount of education with nondisabled peers. The hearing officer made a determination without basis in any law that life skills is inherently more rest rictive despite the fact that placement in life skills is not directly related to the amount of time Student will spend with his nondisabled peers. We see nothing i n the language of IDEA or the subsequent line of so called “inclusion cases” that draws a connection between LRE and the name of the service (life skills vs. le arning support), the number of students present (fewer in life skills), nor even t he nature of the specialized curriculum….Furthermore, we see nothing in the lang uage of the law that places life skills or learning support on the continuum of restrictiveness. Again, the child with a disability who needs special education and related services, even though the child has no t failed or been retained in a course or grade, and is advancing from grade to grade.” 20 In Board of Educ. v. Diamond, 808 F.2d 987 (3d Cir. 1986), the court “rejected t he notion that the provision of any educational benefit satisfies IDEA holding that IDEA ‘clearly imposes a higher standard.’” Ridgewood , 172 F.3d at 247.

16 plain language of the law refers to a continuum fro m all instruction in a general education setting (consultation or itinerant) to no instruction in a general education setting (a self-contained full-time speci al education placement). Thus, the law is clear that LRE is a time dimension with an underlying assumption that full time education alongside nondisabled peers is the least restrictive. The system of placements developed by Pennsylvania for service delivery includes both time and methodology/content dimensio ns. The time element is addressed by the continuum of amount of interaction with nondisabled peers (full time general education to full time special educati on in an environment with no nondisabled peers) and is the LRE component of the placement. The methodology/content dimension is not driven by LRE considerations, but rather by the student’s instructional (curriculum and methodology) needs. …. For the reasons described above, we determine that placement in life skills is not inherently more restrictive than learning support.” (Emphasis added.) Assuming, arguendo, the issue had required a LRE/Oberti analysis, part of that analysis would require a heavy reliance on the tes timony of educational experts. The Parent’s educational expert explained that Student’ s cognitive efficiency is significantly weaker than Student’s verbal skills and thinking ab ility, which suggests Student has difficulty completing tasks rapidly; certainly this is helpful in discerning that it could have a negative impact upon Student’s learning. Ho wever, the testimony from Student’s teachers was that Student was provided lengthy peri ods of time to accomplish a much smaller amount of work, in addition to all of the o ther accommodations and modifications, as well as study guides to prepare f or upcoming tests. Further, the Parent’s educational expert’s IEE as well as her di rect testimony was that Student would benefit from a blended program of regular education classes, life skills and learning support. 21 Therefore, although The Parent’s educational expe rt differs on the amount of time Student should receive instruction in life ski lls, her position is not diametrically different from that of the District and the IEP team. Looking again to Special Education Opinion No. 129 0, the Appeals Panel asked the question of which classroom – learning support or life skills – was appropriate for Student’s needs: “We must analyze the IEP to determine whether the g oals and objectives are more appropriately executed in learning support or life skills. The hearing officer agrees with the testimony of the district’s witness es that life skills are decidedly more appropriate for Student that learning support. The fact that learning support can be manipulated to resemble life skills is immat erial. Obviously, any child can be taught in any environment if the environment is changed enough to resemble the appropriate environment. This case hinges sole ly on the appropriate services and where they should be provided. If we followed the hearing officer’s logic to its ultimate conclusion we would arrive at a determ ination that life skills is never 21 FF No. 63.

17 an appropriate placement because learning support c an be altered to provide life skills type of services. Our analysis of the IEP lends considerable support to placement in life skills. As Student enters middle school, more and more of Stud ent IEP is devoted to development of functional skills designed to enhanc e Student independence as an adult. Even academic instruction is functional. I t is not designed to prepare Student for more complex academic tasks such as rea ding for pleasure or reading for scientific content, but rather reading to survi ve on a daily basis; that is functional reading. Likewise math goals are functi onal (money and time) rather than academic (pre-algebra, numerical systems). W e note again that the parents do not dispute the content of the IEP. Thus they a re in agreement with the needs….Twenty-three needs are identified. Of those , 14 are clearly functional skill needs. Another eight are clearly functional academic skill needs since they represent a basic level of proficiency necessary to perform everyday tasks. Thus, since (a) the parties have stipulated that the IEP is appropriate, (b) the proposed life skills services are not a more restrictive pla cement than learning support and (c) the needs identified in the agreed upon IEP are more functional than academic, it is our conclusion that the service needed by Student is life skills support.” (Emphasis in original.) Using the foregoing, I found the proposed IEP is a ppropriate, that the life skills services are not more restrictive placement than le arning support, and that the needs identified in the proposed IEP are more functional than academic and the service needed by Student is a blended program of life skills, learning support and regular education. ORDER For the reasons hereinabove discussed, it is hereby ordered: 1. That the 8/8/07 proposed IEP is appropriate and provides Student FAPE in the least restrictive environment. 2. The IEP team is directed to meet and update the IEP for the upcoming school year. Margaret Drayden Hearing Officer June 28, 2008

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