Successful Right to Education Appeal Opinion (Pa)

SPECIAL EDUCATION DUE PROCESS APPEALS REVIEW PANEL
COMMONWEALTH OF PENNSYLVANIA

IN RE THE EDUCATIONAL ASSIGNMENT :
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OF MATTHEW C., A STUDENT IN THE : SPECIAL EDUCATION
SCHOOL DISTRICT OF PHILADELPHIA : OPINION NUMBER 748
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BEFORE APPEALS PANEL OFFICERS SALVIA, HARTWIG, AND GONICK
OPINION BY HARTWIG

Matthew C. is an eight year old student (DOB 4-11988) who resides in the Philadelphia School District (hereafter the District) and is eligible for special education and related services. (See Noted Transcript NT at 19.) First classified as learning disabled in 1992, his specific learning disabilities include problems in visual perception and processing, visual memory, auditory processing, and attention deficit disorder.1

Matthew is in a full time Learning Support program with one full time Learning Support teacher, one assigned part time aide, and a practicum student assigned to observe and be present one day a week. His progress in school has been slow, remaining essentially at pre-readiness level with some limited gains toward pre-primer level.

In September 1995, the parents arranged at their own expense for Matthew to be tutored for one hour per week in a multisensory, phonetically-based reading methodology known as the Wilson Reading System. During the same school year, 1995-96, Matthew's reading program at school was the Scientific Reading System (SRS). During the summer of 1996, approximately two and a half months, Matthew continued solely with his private tutoring in the Wilson System. By the fall of 1996 (in October), Matthew's test scores revealed limited progress in basic reading skills.

In June 1996, the District proposed an Individualized Education Program (IEP) for the next school year that specified the SRA as Matthew's reading program. School District Exhibit 2. A Notice of Recommended Assignment (NORA) was also sent to the parents. The parents refused to sign the NORA objecting to the site of the program. The parents then asked that the IEP specify the Wilson System as the prescribed reading methodology. The District refused to designate the Wilson System and instead the SRA was designated for Matthew.

Subsequently, a due process hearing was held which was comprised of five sessions and ended on December 16, 1996.

The issues before the Hearing officer specifically focused on the reading system to be used, the ability of the District to implement an appropriate IEP, and whether the District had committed procedural error so as to constitute a denial of FAPE for Matthew.

The Hearing Officer concluded that the District's proposed IEP was appropriate, including the goals and objectives contained therein. He ordered the District to implement the IEP without revision or modification.

The parents filed objections asserting that: (1) there had been uncontested evidence regarding Matthew's lack of meaningful progress in his educational program that had been disregarded by the Hearing Officer, (2) the Hearing Officer failed to consider specific recommendations pertinent to Matthew's learning environment and educational methodology, e.g. a separate, quiet space, daily one-to-one instruction with one hour per day in reading which Matthew requires in order to learn, and (3) the Hearing Officer erred by failing to find that the IEP meeting was fatally flawed because the District's representative spent so much time engaged in phone conversation or out of the room so as to make her participation ineffective.

Discussion

Scope of Review/IEP/FAPE

The appeals panel has authority for de novo review of Hearing Officer's decisions on questions of law; this is well documented in caselaw. See, for example, Rebecca H., Special Education Opinion No. 670, 1995. The panel defers to findings of fact on matters of credibility "unless non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion." Carlisle Area School District v. Scott P., 62 F.3d 520, 524 (3d Cir. 1995).

State must provide each and every disabled child with a free and appropriate public education and this entitlement is delivered through the IEP. The written IEP must be detailed and take into account the child's abilities and special needs. It must outline goals and objectives and specify the services the child will receive. Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993). A school district's failure to offer an IEP reasonably calculated to enable the child to receive meaningful educational benefit will be deemed a denial of FAPE. Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982). This benefit cannot be trivial or minimal or it renders the IEP inappropriate. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988).

IEP/Meaningful Educational Benefit

At first glance, this case appears to be straightforward and uncomplicated with one specific issue regarding a provision in the IEP about the use of a particular educational methodology, the Wilson Reading System. The parents want Matthew to be instructed by this system. They argue that it is primarily, if not directly, responsible for any discernible progress made by their severely learning impaired son in achieving a preprimer level from his prior pre-reading level.

The District's position is that the IEP is appropriate and that they cannot be ordered to provide a specific methodology. Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir. 1988.) They assert that as long as Matthew is making reasonable educational progress that is not simply a deminimis gain, they can proceed with an educational program as found, for example, in their proposed 1996-97 IEP. Moreover, they point out that in his decision, the Hearing Officer ordered that the IEP be implemented without revision or modification.

The District is correct that they cannot be ordered to provide one specific methodology over another. This presumes of course that the IEP is sufficiently detailed and individualized and provides specific goals and objectives together with ways in which to evaluate or record the educational benefit that the child will derive. Measurable or observable gains and progress must result from an IEP even if the gain or progress in incremental or slow. Further, the individualized nature of the program means that educational benefit occurs as compared with the individual's own educational level and potential and not with others. However, there is no ban against specifying a methodology that will allow progress when and if the methods inprior IEPs have been proven or known to fail.

De minimis benefit or lack of discernible progress indicates the IEP must be adjusted or changed. This does not mean that the test for IEP appropriateness is wholly retrospective. It does mean that the measures for evaluating the child's achievement of the goals and objectives of the IEP are critical in determining if the child has progressed. It becomes crucial, therefore, that the IEP is as specific and individualized in all areas at the time that it is prepared so as to provide an appropriate educational program. The program need not be perfect; the regulations and caselaw reflect this consideration. However, an IEP that is regularly reissued or provides the same program with only superficial changes as window dressing and disregards or ignores the child's lack of progress cannot pass muster and must be deemed inappropriate.

In this case, after a careful review of the record in its entirety, the panel concludes that the proposed IEP is inappropriate because it is not sufficiently specific and failed to provide a program reasonably calculated to yield educational progress. Simply stated, the Hearing Officer erred as a matter of law and in his findings that Matthew had made educational progress sufficient to make the IEP appropriate. The panel finds that Matthew has derived little or no educational benefit from his programs delivered by the District.

The record in its entirety reveals that, at best, Matthew has been moving so slowly so as to be practically standing still in his educational career. Despite his average IQ (even a low average IQ), in the past three years, his progress is almost non-discernible. The record is replete with examples: Matthew's report card for the 1994-95 school year reveals "achievement" grades of D and sometimes C's in reading; standardized test scores such as the Wechsler Achievement Test (WIAT) administered in May 1996 reveal approximately one month's
progress in reading skills as compared to the same test administered one year earlier;2 Matthew "mastered" only 3 goals in the Short-Term Objectives of the 95-96 IEP, e.g., naming upper and lower case letters and sounds, and these goals were identical to the prior 93-94 IEP; after 2 years of instruction Matthew has "mastered" only 45% of the goal of identifying the beginning and ending sounds of words at a preprimer level; and expert uncontroverted evidence indicated that in March 1995, Matthew had not acquired any sight words, could not sound out words, and could not use either pictorial or context clues in decoding.

In contrast, the only discernible progress Matthew has made over the course of his academic experience has occurred when he is privately tutored, i.e. during the summer months in a reading system that is intensely focused, multisensory with all modalities applied simultaneously, and delivered in a learning environment that eliminates auditory and visual distraction. In Matthew's case, it is the Wilson System which has resulted in some progress in his reading skills. See NT 656 and Parent Exhibit 2. The Hearing Officer incorrectly concludes that the District cannot be ordered to provide a system that contains all of the above noted factors. There is no prohibition against specifying in the IEP the educational program which has had demonstrable success.

An appropriate IEP must contain at least those components necessary for Matthew to learn and make progress in his reading skills. To order an IEP that is in known need of modification and blithely ignore the recommendations of experts about what Matthew requires flies in the face of what IDEA is all about. The intent is for children with disabilities to derive meaningful educational benefit from their schooling. This is not a case of whether Matthew should have the "best" program. It is a case of whether Matthew should have a program reasonably calculated to yield meaningful benefit. Ordering implementation of an IEP known to be lacking in specificity in light of Matthew's documented lack of educational progress is adamantly ignorant of what the IDEA intends and requires.

Therefore, the panel is persuaded by the parent's exceptions with regard to the provisions of the IEP. e.g., a multisensory reading system, one-on-one instruction by a qualified instructor in said reading system, delivered one hour per day five days per week, and in a separate area removed from visual and auditory distraction. These elements are necessary for Matthew to make meaningful educational progress and must be contained in the IEP.

All other exceptions are hereby dismissed.

ORDER

Accordingly, this 12th day of March, 1997 the Hearing Officer's Decision and Order is reversed and those exceptions not addressed in this appeal and order are dismissed.

The District is thereby ordered to:

1) Revised and modify the proposed 1996-97 IEP such that it contains within the context of educational program:3

(a) specially designed instruction including a reading system that is multisensory;

(b) one-on-one instruction in reading by a certified teacher delivered at least one hour per day five days per week;

(c) a designated separate space in which to deliver said specified instruction that is free of visual and auditory distraction;

2) To evaluate and provide when necessary any supplementary services or compensatory educational strategies applicable to all subjects that will enable Matthew to compensate for his learning disabilities including:

(a) assistive technology such as a speech synthesizer or computer enhanced learning programs;

(b) "talking" books or equivalent ways to supplement and enhance reading;

(c) an assigned aide to serve as "scribe" and help Matthew in transcription.

In accordance with 22 Pa. Code Section 14.64 (m), the parties are advised that this matter may be appealed to the Commonwealth Court of Pennsylvania or to the appropriate federal district court.

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Anne C. Hartwig, for the Appeals Panel

Signature Date: 3/13/97

Mailing Date: 3/13/97

1 Matthew's disabilities are severe and have a profound effect on his ability to learn and perform in the classroom. There is agreement between the parents' and the District's experts that Matthew's auditory processing problems appear to be more significant at this time than his visual problems. (See NT at 360-62.)

2 There is evidence in the record that such low achievement skills are inconsistent with Matthew's I.Q., cognitive abilities, and learning disabilities even taking into account that the severity of his learningdisabilities might make progress slow. See NT 750-59.

3 The panel recognizes that because the 1996-97 school year is more than halfway through, the District is advised to incorporate any changes in the 96-97 proposed IEP to the 97-98 IEP.