Wilson Area School District | Case 10272-08-09 | 2010-03-15

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. PENNSYLVANIA SPECIAL EDUCATION HEARING OFFICER DECISION Student: RV Date of Birth: xx/xx/xxxx Hearing Dates: September 2, Novemb er 2, November 10, 2009, January 11, and January 12, 2010 ODR File No.: 10272-08/09LS CLOSED HEARING School District: W ilson Area School District Parties: Representatives: Parent Attorney: Jonathan S. Corchnoy, Esq. Law Offices of Jonathan S. Corchnoy 1515 Market Street, Suite 1510 Philadelphia, PA 19102 Wilson Area School District School District Attorney: Sharon Montayne, Esq. Sweet, Stevens, Katz & Williams, LLP P.O. Box 5069 331 Butler Avenue New Britain, PA 18901 Date Record Closed: March 1, 2010 Decision Date: March 15, 2010 Hearing Officer: Gloria M. Satriale, Esquire

1 INTRODUCTION AND PROCEDURAL HISTORY This case concerns the provision of a Free A ppropriate Public Education (hereinafter FAPE) for Student (hereinafter referred to as “S tudent”), an eligible 10 year old student, who resides with his mother in the District and who has been identif ied with a variety of diagnosis including Autism Spectrum Disorder (hereinafter ASD). The parent challenges the provisions of a FAPE during the 2007-2008 and 2008-2009 school years. Due process concerning the current matte r was filed with the Office for Dispute Resolution on June 26th, 2009. A Resolution meeting was conducted on July 7 th, 2009. The due process hearing was held over five (5) se ssions from September 2009 to January 12, 2010. Following the submission of written closing arguments, the record was closed on March 1, 2010. For the reasons that follow, I find in favor of the PARENT IN PART in that that the District denied the student FAPE by failing to pr ovide appropriate instruc tion in reading and in failing to provide related services for vision therapy and will ORDER reimbursement to the Parent for the costs of the priv ate evaluation and cost s of privately secure d reading and vision therapies as well as to order compensatory education for the 2008 and 2009 ESY term; and find IN PART for the DISTRICT with respect to the remaining claims. ISSUES Was the program and placement the District o ffered to the Student for the 2007-2008 and 2008- 2009 school years appropriate? Specifically: 1. Whether the District’s provision of programming for the 2007-2008 and 2008-2009 school years in the areas of reading, math and the provision of rela ted services in the areas of occupational therapy (hereinafter OT); speech and language, behavior; vision therapy and assistive technology and the accompanying extended school year (hereinafter ESY

2 programming) constituted FAPE. The Student seeks a compensatory education and reimbursement of expenses as a remedy1 FINDINGS OF FACT 1. [Parent] is an individual and the parent of the minor child, Student , who reside within the District. P - 33. 2. Student (hereinafter “Student”), [Redacted], is in 4 th grade for the 2009-2010 school year. S-16 3. Student attended the District during the 2007-2008 and 2008-2009 school years. 4. The Student was enrolled by his Parents in the [Redacted Private School] which is a private school for students with learning disabilities for the 2009- 2010 school year. NT 26, 103. 5. The Student is currently classified as a child with a disability unde r the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1400 et. seq. and has been receiving special education serv ices in the (District) since the beginning of school year 2005 - 2006. P - 33 6. The Student has had an IEP during all releva nt time periods. S-4, S-5, S-7, S-8, S-10, S- 11, S-14, S-17, S-18 7. The (District) by Stipulation agrees that the District is a Local Education Agency (LEA) and a federal funds recipient as defined by §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794(a). NT p. 10 1 In his opening argument before Hearing Officer Meyers, counsel for the Parent asserted claims under section 504 which were objected to by School District Counsel as such claims were not originally raised in the complaint filed in this matter. As the complaint was not timely amended to include the 504 claims, those claims are not properly at issue and are not addressed. Additionally a claim is made for future services. Payment for future services that are not in the form of compensatory education are not cognizable under IDEA as all rulings by a Hearing Officer are based upon a finding of denial of FAPE 34 C.F.R 300.513

3 8. Maxine L. Young’s, CCC-A/SLP, FAAA, was retained by the Parents to conduct an Independent Auditory-language Processing Ed ucational Evaluation (I EE) as Exhibit P - 8. NT, p. 10. The District reimbursed the cost of said evaluation to the parents by the agreement. Exhibit P-8 NT, p. 10 9. Maxine Young is a Pennsylvania a licen sed Speech/Language Pathologist and Audiologist. She is certified by the Amer ican Speech-language-Hearing Association (ASHA) as a certified Speech and Language Pa thologist; has a B. S. in speech/language pathology, a Master’s degree in both sp eech/language pathology and audiology from Hahnemann Medical School and Graduate Sc hool in 1978. She has a Certificate of Clinical Competence conferred by the American Speech and Language Hearing Association, is Board Certified by the Ameri can Board of Audiology, is a Fellow of the American Academy of Audiology, and is a Fellow of the Academy of Doctors of Audiology. She has been in private practi ce in audiology for 18 years where she specializes in the area of a uditory processing evaluations , management treatment. NT 359-363, 402-407; P-34 10. Maxine Young was admitted as an expert in the areas of Audiology, Auditory Processing Disorder (APD), and Speech/Language Pathology. NT pp. 362 - 63, 402 - 407 11. Maxine Young’s testimony was credible. 12. Maxine Young evaluated the Student on February 24th, March 10th, and March 18th, 2009, and reported her results and recommenda tions in her report, dated March 25 th, 2009, and an addendum to that report dated June 26th, 2009 P-8; P-9; NT, pp. 363, 392-93 13. Maxine Young diagnosed Auditory Processing Disorder and noted the degree of the disorder significant to affect his ability to access his education by making it difficult to process spoken language when the conditions in the listening environment are not favorable, cause difficulties making academic progress where students must listen to

4 spoken language instruction, and would cause di fficulties in age peer social interaction, NT, pp. 419 - 21 14. Maxine Young recommended  research-based auditory training programs such as Fast ForWord Literacy and Fast ForWord Literacy Advanced for 30 minutes per day to address noted deficiencies with speech perception, b ackground noise, temporal processing, and word retrieval P-8, p. 8; NT, pp. 395 - 401, 413 - 16, 419, 487 - 89, 498 - 99  one-to-one reading tutoring for comprehe nsion in a quiet environment using multi-sensory reading programs such as Wilson Reading until eleven or twelve years of age, when support for his auditory processing will probably plateau P - 8, p. 8; NT, pp. 401 - 407, 489 - 91  work with an occupational therapist due to his problems with the mechanics of handwriting which she noted when (the Student) took the WORD-R test NT, pp. 459 - 60, 474 - 75  speech/language therapy one-to-one by a certified Speech/Language pathologist three 45-minutes to 1-hour sessions per week to develop his receptive and expressive skills, to help with his word retrieval, and to develop cognitive based “central resources” listening skills with minimal background noise P-8, pp. 8 - 9; NT, pp. 391 - 94  accommodations in his classrooms P- 8, pp. 9 - 10;NT, pp. 386 - 90, 408 - 11  A mobile FM listening system, such as th e Edulink system, should be used in all environments where “spoken language instruction” is given P - 8, p. 10; NT, pp. 408 - 11, 421 - 22, 438, 500 - 501.

5 15. The District implemented the recommendati ons regarding classroom accommodations, but did not implement any other of the recommendations included in Maxine Young’s evaluation. S-4; NT 901 16. The District engaged in a trial of a fixed FM system during the 2007-2008 school year. S- 7 at 5 17. The District assessed the efficacy of the FM trial through the use of the Listening Inventory for Education (L.I.F.E) which dem onstrated no meaningful benefit of the use of the FM system for the Student. S-13pp 22-23; S-30; N.T. 902-903 18. Meaningful progress was achieved on speech goals NT 759; S-26; S-10 19. An FBA was conducted in March of 2007 during first grade to address off-task fidgeting behaviors. S-4 at 6. A Positive Behavior S upport Plan (hereinafter PBS) was developed and implemented for the remainder of the first grade school year. S-4 at 30-32. 20. Organizational difficulties addressed by the PBS were remediated. NT 977-978 21. Meaningful progress was achieved in the area of occupational therapy. S-13; S-16; S-25 22. By March 2008, the IEP team determined that continuation of the Positive Behavior Support Plan was not necessary because the St udent demonstrated appropriate behavior in the classroom, was able to follow the classroom rules, attend to the teacher during large and small group instruction, work in small groups with peers and work independently. S-10 at 6, 7-8. 23. The Student was proficient in his PSSA in 3 rd grade in 2008-2009. S-24 at 3. He was at or above expected 3rd grade levels for all math skills. Id. at 4-5. 24. Robert Copeland, O.D was retained by the Pare nts to conduct an independent evaluation regarding the students vision and additionally treated the Student for Convergence Insufficiency using Vision Therapy P-17, P-18, P-35, P-36; NT, pp.592-659

6 25. Dr. Robert Copeland is a Pennsylvania licen sed Optometrist, who practiced at the Wyomissing Optometric Center for over 30 years, until his retirement on June 31 st, 2010. He has a B. A. Degree in biology from LaSalle University, a B.S. in visual science from the Illinois College of Optometry and a degree in Optometry from the Illinois College of Optometry. He is a Fellow of the College of Vision Development and he has treated more than 5,000 patients with Vision Therapy, and Convergence Insufficiency. He is a member of the Pennsylvania Optometric Association; the American Optometric Association, and the College of Optometrists in Vision Development (COVD) NT. 592-662 26. Dr. Robert Copeland was admitted as an expert in Optometric sub-specialty of Convergence Insufficiency NT, pp. 625 27. Vision Therapy is a research ed based medical treatment for Convergence Insufficiency. NT 594-597 28. Dr. Robert Copeland’s testimony was credible. 29. Dr. Robert Copeland evaluated the Student on July 16 th, 2008, January 6 th, 2009, and April 29 th, 2009, and reported his resu lts and recommendations in his reports, dated August 21st, 2008, and February 26th, 2009. P - 18; P - 17; P - 35; P - 36; NT, pp.627 30. As a result of the above referenced evaluati ons, Dr. Copeland determined that the student exhibited heterophoria, which is a tendency for the eye to turn outward or away from the nose leading to an inability to control eye movement; fluctuations and fusional reserves were noted to be very poor indicating a n eed for glasses and vi sion therapy. P-35, p-.3 N.T. pp632-637. 31. Dr. Copeland’s findings and recommendations are medical in nature. NT 602 32. The Re-evaluation Report of March 5 th, 2007 S-1, completed at the end of first grade showed a decline in the Student’s word r eading, reading comprehension, spelling, and written expression NT, pp. 37 - 38;

7 33. The Plaintiffs consulted with Dr. Hain who, after evaluating the Student in April, 2007, recommended a multi-sensory approach r eading program that teaches phonological awareness and processing skills, including the Wilson reading program P - 27; NT, p. 43 34. The District responded to Dr. Hain’s re commendations by offering a multi-sensory reading program within the Districts Autistic Support Classroom. NT. 44, 107-108 35. Linda Bell was privately retain ed by the parents to provide additional instruction to the student in the area of reading. P-1; P-15 36. Linda Bell has a Master’s degr ee in Curriculum and Instruc tion, a Master’s equivalency in Education, and a B.S. in Elementary Education. She has a Pennsylvania Reading Specialist Certification and is a Wilson Reading certified instructor. She has taught reading in elementary school as an instructor and as a reading specialist for over 25 years and is currently is a Reading Specialist for the Twin Valley School District NT 125-134 37. Linda Bell was admitted as an expert in the area of Reading. NT, p. 133 38. The cost of remedial Reading instruction is $4,900.00 P-1, P-15 1-34 N.T 46, 63 39. The Student was found eligible for ESY services for the 2007-2008 and 2008-2009 school years. S-4; S-11 40. The District offered ESY services which in cluded: .5 hours of speech and .5 hours of O.T. per week, work on social skills goals with the District social worker. The District offered to provide services in either the au tistic support class or in the learning support class. The Parent rejected these placement options as the offer did not constitute the least restrictive environment. S-11; NT 522-524. 41. The District offered appropriate ESY serv ices for the summer of 2009, which were intended to continue working on goals from the proposed IEP. The Student did not participate in the District’s proposed ESY program. S-17 42. The cost of the evaluation by Dr. Lisa Hain was $2,200.00. P-1; P-15; pp 35-38

8 43. The cost of vision therapy was $ 1, 487.58. P-15 44. The parties waived a resolution meeting. A due process hearing wa s conducted in this matter on September 2, 2009 (Hearing Officer Myers) 2, November 2, 2009, November 10, 2009, and January 11, 2010, January 12, 201 0 and January 12, 2010 (Hearing Officer Satriale). a. Exhibits were submitted on behalf of the Hearing Officer as follows:  September 2, 2009: HO-1  November 2, 2009: HO-1  November 10, 2009: HO-1  January 11, 2010: HO-1, HO-2  January 12, 2010: HO-1, HO-2 b. Exhibits were submitted on behalf of the Parent as follows:  September 2, 2009: P-1, P-2, P-7, P-8, P-10, P-15, P-17, P-18, P-23, P-24, P-25  November 2, 2009: P-1, P-2, P-7, P-8, P-10, P-12, P-15, P-17, P-18, P-23, P-24, P-25, P-27, P-28, P-29, P-32,  November 20, 2009: P-1, P-2, P-7, P-8, P-9, P-10, P-12, P-14, P-15, P-17, P-18, P-23, P-24, P-25, P-27, P-28, P-29, P-32, P-34  January 11, 2010: P-1, P-2, P-7, P-8, P-9, P-10, P-12, P-14, P-15, P-17, P-18, P-19, P-20, P-21, P-22, P-23, P-24, P-25, P-27, P-28, P-29, P-32, P-34, P-35, P-36  January 12, 2010: P- 1, P-2, P-7, P-8, P-9, P-10, P-12, P-14, P-15, P-17, P-18, P-19, P-20, P-21, P-22, P-23, 2 This matter was originally assigned to Hearing Officer Myers and reassigned to this Hearing officer following Hearing Officers resignation.

9 P-24, P-25, P-27, P-28, P-29, P-32, P-34, P-35, P-36, P-37 c. Exhibits were submitted on behalf of the District as follows:  September 2, 2009: SD-7, SD-8, SD-9, SD-10, SD-11, SD-10, SD-12, SD-13, SD-14, SD-15, SD-16, SD-17, SD-19, SD-22, SD-23, SD-24  November 2, 2009: SD-1, SD-4, SD-7, SD-8, SD-9, SD-10, SD-11, SD-12, SD-13, SD-14, SD-15, SD-16, SD-17, SD-19, SD-19, SD-22, SD-23, SD-24  November 10, 2009: SD-1, SD-8, SD-8, SD-9, SD-26, SD-14, SD-15, SD-28, SD-17, SD-18, SD-19, SD-22, SD-23, SD-24, SD-26, SD-28, SD-33  January 11, 2010: SD- 1, SD-2, SD-3, SD-4, SD-5, SD-6, SD-7, SD-8, SD-9, SD-10, SD-11, SD-12, SD-13, SD-14, SD-15, SD-16, SD-17, SD-18, SD-19, SD-22, SD-23, SD-24, SD-25, SD-26, SD-28, SD-32, SD-33, SD-34  January 12, 2010: SD- 1, SD-2, SD-3, SD-4, SD-5, SD-6, SD-7, SD-8, SD-9, SD-10, SD-11, SD-12, SD-13, SD-14, SD-15, SD-16, SD-17, SD-18, SD-19, SD-22, SD-23, SD-24, SD-25, SD-26, SD-28, SD-32, SD-33, SD-34 d. Stipulations:  Admitted: SD-20, SD-35, SD, P-3  Removed: P-3, P-4, P-6, P-30,  Admitted over Objection: P-16

10  Not Admitted - Objection Sustained3: P-11, P-19, P-20, P-31 DISCUSSION AND CONCLUSION OF LAW The Right to a Free and Appropriate Public Education and Burden of Proof The Individuals with Disabilities Education Act (“IDEA”) requires that a state receiving federal education funding provide a “Free Appropriate Public Edu cation” (“FAPE”) to disabled children. 20 U.S.C. § 1412(a)(1). In Pennsyl vania, the Commonwealth has delegated the responsibility for the provision of FAPE to its local school district s. School districts provide a FAPE by designing and administering a program of i ndividualized instruction that is set forth in an Individualized Education Plan (“IEP”). 20 U.S.C. § 1414(d). The IEP “must be ‘reasonably calculated’ to enable the child to receive ‘mean ingful educational bene fits' in light of the student's ‘intellectual potential.’ ” Shore Reg'l High Sch. Bd. of Ed. v. P.S., 381 F.3d 194, 198 (3d Cir.2004) (quoting Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182-85 (3d Cir.1988) . In assessing whether an individualized program of instruction is “reasonably calculated” to enable the student to receive mean ingful benefit, the progress noted must be more than a trivial or de minimis. Board of Education v. Rowley, 458 U. S. 176, 73 L.ed.2d.690, 102 S.Ct.3034 (182); Ridgewood Board of Educati on v. M.E. ex.rel. M.E., 172 F.3d 238 (3d Cir.1999) A parent who believes that a school has failed to provide a FAPE may request a hearing, commonly known as a due process hearing, to seek relief from the school district for its failure to provide a FAPE. 34 C.F.R. § 300.507. In Pennsylv ania, the hearing is conducted by a Hearing Officer. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir.1995). As the moving party, the student bears the bu rden of proof in this proceeding. The 3 Exhibits to which objections were sustained have not been considered as evidence in this decision but have been transmitted as part of this record and separate seal.

11 United States Supreme Court has held that the burden of proof in an administrative hearing challenging a special education pr ovision of FAPE is upon the party seeking relief, whether that party is the disabled chil d or the school district. Schaffer v.Weast_U.S, 126 S. Ct.528, 163L. Ed.2d 387 (2005). In Re J.L and the Ambridge Ar ea School District, Special Education Opinion No. 1763 (2006). Because a student’s parents seek relief in this administrative hearing, they bear the burden of proof in this matter., i.e., they mu st ensure that the evid ence in the record proves each of the elements of their case. The U.S. Supreme Court has also indicated that, if the evidence produced by the parties is completely balanced, or in equipoise, then the party seeking relief (i.e., student’s parents) must lose because the party s eeking relief bears the burden of persuasion. Schaffer v. Weast_U.S. _ , 126 S. Ct.528, 163L. Ed.2d 387 (2005); L.E. v Ramsey Board of Education, 435 F. 2d 384 (3d Cir.2006). Of course, where the evidence is not in equipoise, one party has produced more persuasive evidence than the other party. Compensatory Education as a Remedy Compensatory education is an appropriate remedy where a school district knows or should know that a child’s educational program is not appropriate or that the student is receiving only trivial educational benefit, and the district fails to remedy the problem. The period of compensatory education granted should be equa l to the period of de privation, excluding the period of time reasonably required for the district to act accordingly. Ridgewood Board of Education v. M.E. ex.rel. M.E., 172 F.3d 238 ( 3d Cir.1999); M.C. v. Central Regional School District, 81 F. 3d 389 (3rd Cir. 1996). However a technical violation alone does not entitle a student to compensatory education. A mere procedural glitch or t echnical violation of the IEP is insufficient. A violation must amount to a substantive effect on the child's abilit y to receive FAPE in order to hold the district responsible for any procedural gl itches--such as the instant issu e of difficulty with delivering

12 related services. 20 U.S.C. 1415(f)(3)(E)(ii), 34 C.F.R. 300.513(2) provides: (2) In matters alleging a procedural violation, a Hearing Officer may find that a child did not receive FAPE only if the procedural inadequacies — (i) Impeded the child’s right to a FAPE; (ii) (ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or (iii) Caused a deprivation of educational benefit. Having been found eligible for special educati on, the student is entitled by federal law, the Individuals with Disabilities Education Ac t (IDEA) as reauthorized by Congress December 2004, 20 U.S.C. Section 600 et seq. and Pennsylvania Special Education Regulations at 22 PA Code § 14 et seq. to receive a Free Appropriate Public Ed ucation (FAPE). FAPE is defined in part as: individualized to meet the educationa l or early intervention needs of the student; reasonably calculated to yield meaningful educational or early intervention benefit and student or child progress; provided in conformity with an Individualized Educational Program (IEP). As previously noted, a student’s speci al education program must be reasonably calculated to enable the child to receive meaningf ul educational benefit at the time that it was developed. Board of Education v. Rowley, 458 U .S. 176, 102 S. Ct. 3034 (1982); Rose by Rose v. Chester County Intermediate Unit, 24 IDELR 61 (E.D. PA. 1996) . The IEP must be likely to produce progress, not regression or trivial educational advancement Board of Educ. v. Diamond, 808 F.2d 987 (3d Cir. 1986 ]. Polk v. Central Susquehanna IU #16, 853 F.2d 171, 183 (3 rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989 ), citing Board of Education v. Diamond, 808 F.2d 987 (3rd Cir. 1986) held that “ Rowley makes it perfectly clear that the Act requires a plan of instruction under which educational progress is likely.” (Emphasis in the original). The IEP

13 must afford the child with special needs an educa tion that would confer meaningful benefit. The court in Polk held that educational benefit “must be ga uged in relation to the child’s potential.” This was reiterated in later decisions that held th at meaningful educational benefit must relate to the child’s potential. See T.R. v. Kingwood Township Board of Education, 205 F.3d 572 (3rd Cir. 2000); Ridgewood Bd. of Education v. N.E., 172 F.3d 238 (3 rd Cir. 1999); S.H. v. Newark, 336 F.3d 260 (3 rd Cir. 2003.) (District must show that its proposed IEP will provide a child with meaningful educational benefit). The appropriateness of an IEP must be based upon information available at the time a district offers it; subsequently obtained information cannot be considered in judging whether an IEP is appropriate. Delaware County Intermediate Unit v. Martin K., 831 F. Supp. 1206 (E.D. Pa. 1993); Adams v. State of Oregon, 195 F.3d 1141 (9 th Cir. 1999); Rose supra. Districts need not provide the optimal level of service, maximize a child’s opportunity, or even a level that would confer additional benefits , since the IEP as required by the IDEA represents only a basic floor of opportunity . Carlisle Area School District v. Scott P., 62 F. 3d at 533-534.; Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4 th Cir. 1998); Lachman, supra. In creating a legally appropriate IEP, a school district is not required to provide an optimal program, nor is it required to “close the gap,” either between the child’s performance and his untapped poten tial, or between his performan ce and that of non-disabled peers. In Re A.L., Spec. Educ. Opinion No. 1451 ( 2004); See In Re J.B., Spec. Educ. Opinion No. 1281 (2002) What the statute guarantees is an “appr opriate” education, “not one that provides everything that might be thought desirable by ‘loving Parents.’” Tucker v. Bayshore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) . Under the IDEA pare nts do not have a right to compel a school district to provide a spec ific program or employ a specific methodology in educating a student. M.M. v. School Board of Miami - Dade County, Florida, 437 F.3d 1085

14 (11th Cir. 2006); Lachman v. Illinois Bd. of Educ., 852 F.2d 290, 297 (7 th Cir. 1988) If personalized instruction is be ing provided with sufficient supportive services to permit the student to benefit from the instruction the ch ild is receiving a “Fr ee Appropriate Public Education as defined by the Act.” Polk , Rowley. The purpose of the IEP is not to provide the “best” education. The IEP simply must propose an appropriate education for the child. Fuhrman v. East Hanover Bd. of Educ., 993 F. 2d 1031 (3d Cir. 1993) . (See also Board of Education v. Murphysboro v. Illinois B d. of Educ., 41 F.3d 1162 (7 th Cir. 1994) (Under the IDEA a District must follow the procedures set forth in the act, and develop an IEP through procedures reasonably calculated to enable the child to rece ive educational benefits. Once the district has done this the court cannot require more; the purpose of the IDEA is to open th e door of public education to handicapped children, not to educate a child to his/ her highest potential), citing Rowley, 458 U.S. at 206-07 .) More recently, the Eastern District Court of Pennsylvania ruled, “Districts need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by the IDEA represents only a basic floor of opportunity.” S. v. Wissahickon Sch. Dist., 2008 WL 2876567, at *7 (E.D.Pa., July 24, 2008), citing Carlisle, 62 F.3d at 534, citations omitted. . See also, Neena S. ex rel. Robert S. v. School Dist. of Philadelphia, 2008 WL 5273546, 11 (E.D.Pa., 2008). The IEP for each child with a disability must include a statement of the child’s present levels of educational performance; a stat ement of measurable annual goals, including benchmarks or short-term objectiv es, related to meeting the child’s needs that result from the child’s disability to enable the child to be involved in and pr ogress in the general curriculum and meeting the child’s other educational needs that re sult from the child’s disability; a statement of the special education and related services and supplementary aids and services to be provided to the child...and a statement of the program modifi cations or supports fo r school personnel that will be provided for the child to advance appropri ately toward attaining the annual goals (and) to

15 be involved and progress in the general curriculu m...and to be educated and participate with other children with disabilities and nondisabled children; an explan ation of the extent, if any, to which the child will not participate with nondisa bled children in the regular class... CFR §300.347(a)(1) through (4) An IEP must be crafted in such a manner th at provided it is implemented; there is a reasonable degree of likelihood that the student will make educational progress. Implementation of an appropriate IEP does not guarantee that the student will make progress. The starting point for the determination of th e appropriateness of an offer of a FAPE is the initial evaluation from which the needs of a st udent are identified. In order for an evaluation to be determined to be appropriate, it must meet the requirements of 34 CFR § 300.532. More specifically, the Evaluation Report (ER) should: 1) utilize a va riety of assessment tools and strategies to gather relevant functional and developmental information about the student, including information provided by th e parents; 2) assess the student in all areas related to the suspected disability; 3) be sufficiently comprehe nsive to identify all of the student’s special education and related services needs; and 4) ut ilize technically sound instruments to assess the relative contribution of cognitive, behavioral, physical and developmental factors. See In Re the Educational Assignment of L.-M. B., Special Educ. Op. No. 1795 (2007). Pursuant to 34 CFR §300.502(b)(i), a parent is entitled to reimbursement of an IEE at public expense if they disagree with the District evaluation repo rt and the District evaluation report is in some way inappropriate. Holmes v. Millcreek Tp. School Dist. , 205 F.3d 583 (3rd Circ. 2000). See also P.P. ex rel. Michael P. v. West Chester Area School Dist., 585 F.3d 727, 740 (3rd Circ. 2009) (Third Circuit agreed with holdi ngs of Hearing Officer, Appeals Pa nel, and District Court that, because the parents were not challenging the District's evaluation, the District was not responsible for reimbursement fo r privately-obtained IEE); In Re: The Educational Assignment

16 of D.S., (rejects IEE reimbursement on legal grounds b ecause no evidence that parents disagreed with District’s evaluation). In its reevaluation report the District reveal ed a regression in reading the reparation of which was not specifically addressed within the report S-13 N.T. 38-45. On this basis, the Parent sought an independent evaluation. P-12 This evalua tion properly reviewed and incorporated the Districts evaluation, but came to a different conclusion regarding the action necessary to remediate the deficit. When the District dec lined to follow the recommendation of the private evaluation, the parent pursued implementation of the recommendations priv ately. It is noted that, although not a criteria for reimbursement, implemen tation of the recommendation enunciated in the private evaluation remediated the deficit established in the Districts evaluation. The District takes the position that the parent did not explicitly state that she disagreed with the findings of the District’s evaluation and, consequently is not entitled to reimbursement. I disagree. The parent establis hed, by her actions, her disagreem ent with the findings of the Evaluation and her concern that left unchecke d, the recommendations would not rise to the legally sufficient standard. In the end, she was right. Additionally, support exists within the decisions of the appellate panel for the reimbursement of an i ndependent evaluation even if a disagreement with the District report does not exis t or is not supported in the record. PA Spec. Educ. Op. No. 899 (1999); PA Spec. Educ. O p. No. 1111 (2001); PA Spec. Educ. Op. No. 1140(2001); PA Spec. Educ. Op. No. 1573 (2005); PA Spec. Educ. Op. No. 1733 (2006). Reimbursement in the amount of $2,200.00 for Dr. Hain’s report will be ordered. Math

17 Teacher [Redacted Name], who had been th e Student’s autistic support teacher from Kindergarten through 2 nd grade, the described Student’s performance in math as normal. She explained that at the end of first grade, Student was “exactly where he should be.” NT 836. And with regard to Student’s 2nd grade math levels she testified, “T he Student was right on par with where the program felt he needed to be for third grade.” Id . at 892. The record established by the District demonstrated that the Student was performing as expected for his grade level. S-23 at 3-4, 7. Although the Parent clearl y testified that she disagreed that skill assessment in the “developing range” were not sati sfactory to her, the provision of a FAPE does not require that Districts provide the optimal level of service, maximize a child’s opportunity, or even a level that would confer additional benefits, since the IEP as required by the IDEA represents only a basic floor of opportunity. Carlisle Area School District v. Scott P., 62 F. 3d at 533-534.; Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4 th Cir. 1998); Lachman, supra. In creating a legally appropriate IEP, a school district is not required to provide an optimal program, nor is it required to “close the gap,” either between the child’s performance and his untapped potential, or between his performance and that of non-disabled peers. In Re A.L., Spec. Educ. Opinion No. 1451 (2004); See In Re J.B., Sp ec. Educ. Opinion No. 1281 (2002) (Showing Student as Secure or Developing in all Math areas for al l four quarters of the 2007-2008 school year 4). The District’s evidence establishes that Student c ontinued to make clear pr ogress in math over the 2008-2009 school year. See S-24 at 4- 5 (showing Student at or above expected skill levels in all thirty-one learning goals). Conversely, the Parents have provided no evid ence that the District’s math curriculum was not reasonably designed to prov ide an educational benefit to Student. The only evidence 4 When Mrs. Vaughn was asked if she r eceived the grade report, she stated “His math is not –okay.” NT 73. In actuality, the teacher explained in S-23 that “It is not un usual for a second grader to have “developing” for skills and concepts at the end of the second grade year. Th e Every Day Math Program is a spiral program in which students will revisit the skill again in third grade”. See S-23 at 7.

18 presented by the Parents as evidence that Studen t was not offered a FAPE is that they were concerned with Student’s math scores at the end of second grade 5, and so they decided to hire a private math tutor for Student for the summer to work on his math skills. Parents often engage the services of private tutors to give their children an advantage or to keep existing skills primed. Private services for these purposes are not a compen sable. The record is ab sent justification for the retention of the services of a mater tutor for reasons other than to maximize the student’s potential. Therefore, for the above-referen ced reasons, the Student was given appropriate mathematics instruction over the course of the 2007-2008 and 2008-2009 school years that was reasonably calculated to provide meaningful educational benefit. Reading School districts are required, to the maximum extent appropriate, to educate children with disabilities with ch ildren who are nondisabled. 34 CFR §300.114(a) Carlisle Area School District v. Scott P., 62 F.3d 520, 535 (3d Cir.1995) A school district’s obligation to make reasonable efforts to accommodate a disabled child in a regular education classroom is substantial. Girty v. School District of Valley Grove, 163F.Supp.2d 527 (W.D. Pa. 2001) School district’s must include disabled students in regular education classrooms even if the curriculum must be modi fied to permit such placement. 34 C.F.R. §300.116(e). The school district must tailor a program and placement to the student’s capabilities and limitations; it cannot simply attempt to fit the student into a program, placement and curriculum that already exists within the school district. In Re C.D. and the Great Valley School District, Special Education Opinion No. 1858 (2008) An Individualized Educational Program does not m ean a separate class or room, but a set of coordinated services and interventions, delivered by persons capable of providing them, 5 Unnecessarily so according to the classroom teacher. See S-23 at 7.

19 in the least restrictive environment appropriate. Id.; 34 CFR §300.114 Learning support services can be provided in any classroom by competent professionals; it does not require the aggregation of disabled students in a room. Great Valley School District, supra. The two-part Oberti LRE test is to determine: 1) whether education in the regular classroom can be achieved satisfactorily with the use of supplementary aids and services; and 2) if not, what is the extent to which the child can be mainstreamed with regular education peers. Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1995) It not necessary to move to the second part of Oberti’s two-part test unless the first part demonstrates that placement outside the regular classroom is required. Id. This analysis involves several factors, including: 1) whether the school district has made reasonable efforts to accommodate the student in a regular classroom; 2) the educational benefits available to the student in a regular education classroom with supplementary aids and services, as compared to the benefits of a segregated special education classroom; and 3) the possible negative effect of the student’s inclusion on the other children’s educations. Although not argued by either side of this dispute, I find principles of CRE important consideration. The factual background to this case is perplexi ng since the Student participated in regular education, however the instruction necessa ry to meet the Studen t’s needs is withheld from the Student in regular education since the Di strict would only provide this instruction if the Student was placed was in a more restrictive setting. Th e District’s own reevaluation demonstrated a regression in reading, N.T. 37. Although a specific approach to reading was recommended (multi-sensory approach P-27, N.T. 43) , the District did not change the approach, but rather adopted the recommen dations in the reevaluation repor t which were calculated to strengthen existing skills. Strengthening existing skills does not address the regression.

20 For the reading program failure, I will awar d reimbursement for pr ivate reading tutoring services in the amount of $4,900. Compensatory education is not warranted as the reading deficits were remediated. N.T.139-140; 142-145; 154-157; P-23 Provision of Related Services Under IDEA, schools must provide not only special education, but also related services in order to furnish students with a FAPE. 20 U.S.C. §§ 1401(9) , 1412(a). However, not all services that can be broadly construed as educational are cognizable under IDEA. This is because “ultimately any life support system…can be construe d as related to a child’s ability to learn.” Mary T.v. School District of Philadelphia, 575 F.3d 235 (3 rd Cir. 2009). The term “related services” is defined to include: transportation, and such developmental, corr ective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child. Of the related services at issue here, all are specifically authorized by statute except vision therapy. Although vi sion therapy is not speci fically listed as a rela ted service, it would seem that such services could be cognizable un der IDEA as required to provide a FAPE where a nexus can be clearly established between the stude nt’s ability to learn and receive meaningful benefit from the educational program as outlined in the IEP. See Kruelle V. New Castle County School District, 642 F.2d 687 694 (3rd Cir 1981) (stating that IDEA requires “courts to assess the link between the supportive service or e ducational placement and the child's learning needs”).

21 Vision Therapy With respect to vision therapy, the expert testimony of Dr. Copeland is uncontroverted regarding the diagnosis and the effects of the diagnosis upon the Student’s ability to benefit from educational programming. Dr. Copeland testified that, based upon testing and Parent reports, the Student was experiencing a number of difficulties including: (1) Difficulty copying from blackboards; (2) Eyes tire easily; (3) Reverses letters and words when reading or writing; (4) Omits and/or repeats letters or words; (5) Confuses similar words and letters; (6) Short attention span while reading; (7) Avoids reading and other close work; (8) Unusual tension or irritability with sustained visual activity, whether it's computer work or reading a book; (9) Difficulty understanding or re membering what has been read; and (10) Poor eye-hand coordination, including poor handwriting; NT. 630, 631, 640, 641, 646, 652 – 657. Many of these findings are consistent with difficulties noted by other experts. Reimbursement is warranted in the amount of $1,487.58 P-1; P-15 pp 47-55. However, as the condition was remediated by the private therapy, an award of compensato ry education is not warranted. P-35: citation omitted p.3; N. T. 634-638 Occupational Therapy/Speech and Language Therapy

22 The District’s record establishes that provisi on of these related services and establishes sufficient progress in these areas. With respect to occupational thera py direct service was reduced to consultation based upon sufficient progr ess with goals for occupational therapy S-13 at 19-22, S-16 at 24 and S-25 at 7-9. This decisi on was based upon current data as well as the administration of the test of Visual-Motor Sk ills- R; Word Sentence Copying Test; Test of Handwriting Skills-R. Id. Regarding Speech, the Student mastered thre e of his speech goa ls during the 2007-2008 school year and continued to make progress regarding the rest of the goals. S-26 at 1; S-10 at 7. Speech goals were continually revised to en sure continued progress. NT 759. Although the Parent’s expert recommended increase speech/la nguage revision and reco mmended the direct rather than consultative service, no testimony wa s offered regarding the inappropriateness of the services or the progress demonstr ated. Of great importance is the Parent’s testimony regarding her desire to have as many suppo rtive services as possible be implemented within the regular education environment as it was her paramount desire for the Student to remain with his peers in a typical environment as much as possible. Such a desire is in opposite to a request to implement the Parent’s expert recommendations for 3 hour s per week of individual instruction NT 42. Further, additional speech is not warranted under th e record established by the District regarding the students continued progress under the District’s program. The District’s provision of related servic es in occupational therapy and speech was reasonably calculated to render meaningful benefit to the Student and constituted a FAPE. ESY 2008 Eligibility for services is not in issue for ei ther of the ESY terms in question. The standard for determining whether an ESY progr am is sufficient is whether or not it is

23 reasonably likely to permit a student to access a free and appropriate public education during the regular school term. In Re the Educational Assignment of T.G., Appeals Panel Decision No. 1759. The District takes the position that its proffer of an ESY program meets the above standard and, further should be absolved from controversy as the Parent agreed to the ESY program in 2008 composition. In itially it is noted that because a parent agrees with or places trust in the representations/recomme ndations of the district , the district is not absolved from its responsibilit ies under the law. Secondly, th e District’s provision of services does not meet the above standard in that the services were provided as inconsistently, not at all, or not within th e least restrictive envi ronment appropriate for this Student. (N.T. 108-109; S-17; N.T. 671-684). Compensatory education for the period of ESY is appropriate in the areas of social skills, as no instruction was provided in order to ensure a FAPE during the school y ear. The District simply placed the Student in a “child care” environment presumably assuming that social skills defects are remediated by “osmosis” since the only “service” provided was to e xpose the Student to typically developing peers. Further, the Student was never even observed in this environment during ESY, further reinforcing the notion that the Student’s needs were abandoned during this time. N.T Thus the Student will be entitled to compensatory education for the length of the ESY program at 3 days per week for six week s (S-4 p25) for a total award of 18 days of social skills instruction. Occupational ther apy and speech were provided and thus no award required. As aforementioned as the reading and vision deficits have been remediated, an award of compensatory education is not warranted for those areas either. 2009

24 Although the record is uncontr overted that ESY services for the summer of 2009 are necessary for the provision of a FAPE during the 2009/2010 school year, again the District fails to offer the provision of these se rvices in the least restrictive environment. Compensatory education, however, and not re imbursement is the appropriate remedy here as in order for the unilateral private placement to be reimbursed, the record must establish the appropriateness of the private placement. 20 U.S. C. 1412 (a)(10)(C)(ii); Florence County School District Four v. Carter 114 S. Ct. 361 (1993) The record here is completely devoid of evidence supporting wh ether the private program was individually devised and reasonably likely to permit the student to access a free and appropriate public education during the regular term. In f act, the private ESY program was not even provided with the IEP upon which the need for continued provision of FAPE was based N.T. 104. Nor was testimony presented from a representative of the program. Compensatory education is appropriate for the balance of the ESY term in that the Districts proffer for ESY was not reasonably likely to permit a student to access a Free and Appropriate Public Education during the regular school term and, as more fully described above, was not offered, as required, in the least restrictive environment. 20 U. S. C 1412 (5); The District merely offered for the Student to participate in the remaining weeks of ESY in an autistic support class or learning support cl ass NT 530-531. This is particularly troubling since the student has historically participated in regular education with typically developing same aged peers. Further the record provides no ev idence how the ESY program, particularly in light of the suggestion of placement with students who are likely to be experiencing social skills challenges of their own, will be individualized in the area of so cial skills instru ction/support. The discussion regarding the appl icability of lease restrictive environment standards under the

25 discussion regarding reading is incorporated here. The Districts violations in this regard apply are repeated an d apply to their actions with respect to ESY and reading instru ction. (with respect to multi-sensory reading instruction, the district would comply with this recommendation, but only if the student were placed in the autistic support classroom and not as either a push-in or pull-out service since it was only available there NT, pp. 44, 107 - 8; with regard to ESY services , continuation of instruction designed to allow a FAPE during the school year wa s only available in the autistic or learning support classrooms S-17. In keeping with standard in Pennsylvani a for awarding compensatory education in calculating the amount of compensatory education n ecessary to return the student to the position he would have been in but for the depravation of a FAPE, and based upon the record establishing the students current levels of performance and recommendations for reme diation, the student shall be entitled to compensatory education for the 6 week period of ESY less the two weeks the student attended the private program, for total of 4 weeks as follows:  2 hours per week for 4 weeks of social sk ills instruction for a total award of 4 hours of social skills instruction.  2 hours per week for 4 weeks of occupational therapy for a total award of 8 hours of occupational therapy  3 hours of speech/language therapy per w eek for 4 weeks for a total award of 12 hours of speech and language therapy.  5 days per week of program instructi on with typically de veloping peers for 4 weeks for a total award of 20 days of classroom instruction. B.C. v Penn Manor SD, 906 A.2d 642 (Pa. Comwlth. 2006).

26 CREDIBITLTY OF WITNESSES Hearing Officers are empowered to judge the credibility of witnesses, weigh evidence and, accordingly, render a decision incorporating fi ndings of fact, discussion and conclusions of law. The decision should be based solely upon the substantial evidence presented at the hearing. 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). Quite often, testimony or documentary eviden ce conflicts; which is to be expected as, had the parties been in full accord, there would have been no need for a hearing. Thus, part of the responsibility of the Hearing Officer is to assign weight to the testimony and documentary evidence concerning a child’s special education experience. Hearing Officers have the plenary res ponsibility to make “express qualitative determinations regarding the relative credibility and persuasiveness of the witness”. Blount v. Lancaster-Lebanon Intermediate Un it, 2003 LEXIZ 21639 at *28 (2003). This is a particularly important function, as in many cas es the Hearing Officer level is the only forum in which the witness will be appearing in person. Although the testimony of all the witnesses was carefully considered, the credibility of the following witnesses will be specifically commented upon here: Mother: Clearly one could not hope for a more dedicated and loving mother and this Hearing Officer is profoundly admiring of this Pa rent’s relentless pursuit of necessary treatment for her son. It is also clear that the Parents, were seeking what they were led to believe was the best possible program to address the Student’s educational needs. Parent’s Vision Expert: The expert testifying on behalf of th e parent in support of the necessity of vision services was well versed in current literature and applied practice in the field and was

27 able to clearly establish a nexus between the disorder and educationa l challenges as well as establish the educational benefit of treatment recommendations. Classroom Teacher: The classroom teacher had instructed the student since Kindergarten and was able to give a broad perspective of this students abilities and progressions. She was knowledgeable and informed regardi ng this students needs and a willing participant in the co- teaching arrangement. CONCLUSION The Districts provision of reading instru ction and ESY Services for the 2007-2008 and 2008-2009 school year were inappr opriate and denied the FAPE under IDEA to the Student. Additionally, the Districts failure to provide vision services which were necessary for the student to access education likewise denied him FAPE unde r IDEA. Consequently the student shall be awarded reimbursement for servic es privately secured and awarde d compensatory education for the indicated unremediated failures of a FAPE. ORDER  The Student was denied a FAPE in the area of reading and is entitled to reimbursement for private tutoring services in the amount of $4,900.00.  The Student was denied a FAPE for failure to provide vision services and is entitled to reimbursement for private vision services in the amount of $1,487.58  The Student is entitled to reimbursement fo r Dr. Hain’s evaluation is the amount of $2,200.00

28  The student was denied appropriate ESY Services calculated to ensure a FAPE during the school year during the summers of 2008 and 2009 and is awarded compensatory education as follows:  2 hours per week for 4 weeks of social skills instruction for a total award of 4 hours of social skills instruction.  2 hours per week for 4 weeks of occ upational therapy for a total award of 8 hours of occupational therapy  3 hours of speech/language therapy per week for 4 weeks for a total award of 12 hours of speech and language therapy.  5 days per week of program instruction with typically developing peers for 4 weeks for a total award of 20 days of classroom instruction.  The Student was afforded a FAPE in the areas of speech and language; occupational therapy, behavior therapy and assistive technology. Dated: March 15, 2010 Gloria M. Satriale Gloria M. Satriale, Esq., Special Education Hearing Officer