STATE OF OHIO DEPARTMENT OF EDUCATION IMPARTIAL …

STATE OF OHIO DEPARTMENT OF EDUCATION IMPARTIAL DUE PROCESS HEARING

IN THE MATTER OF:

* CASE NO. SEA-1863-2006

PARENT on behalf of STUDENT

and WESTERVILLE CITY SCHOOL DISTRICT

* STATE LEVEL REVIEW OFFICER MONICA R. BOHLEN

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*

*

FINAL DECISION AND ENTRY

I. SUMMARY OF DECISION:

The decision of the Impartial Hearing Officer Barbara R. Levy (IHO) is affirmed. The student is eligible for special education services due to a disability determination of a learning disability in written expression and reading. The Westerville City School District (District) has offered a free appropriate public education (FAPE) to Student and his Individualized Education Plans (IEPs) for the 2004-2005, 2005-2006, and 2006-07 school years are designed to offer him a meaningful education benefit in the least restrictive environment (LRE) and extended school year (ESY) services are not required.

II. PROCEDURAL HISTORY:

B.

Due Process Hearing

This matter comes forward for State Level Review of the decision of the IHO pursuant to a Notice of Appeal of the Decision of the IHO submitted on behalf of the Student by the Parents. On August 9, 2006, Parent filed a request for a due process hearing (DPH), claiming that the District refuses to: 1) teach the specific approved methods of instructions for dyslexia; 2) follow student's individual education plan (IEP); and 3) provide extended school year (ESY).1

1Although the request was dated July 28, 2006, it was not received until August 9, 2006.

The remedy sought was: Reimbursement for Student's past educational expenses, provide certified Orton-Gillingham tutor for one hour daily of direct instruction, and appropriately address Student's educational needs or pay for a private school that specializes in dyslexia. Further, parents sought an expedited hearing2 and asserted that the school is not following the signed IEP now and requested mediation if that would help.

The due process hearing was held on October 18th and 19th, 2006. On September 18, 2006, the IHO, in a Scheduling Order/ Pre Hearing Status Conference, clarified Parents' issues as follows:

1. District failed to follow Student's IEP; 2. District failed to provide ESY; 3. District failed to provide FAPE in a timely manner; and 4. District failed to follow procedural guidelines.

Later, in the IHO's Disclosure Conference Memorandum dated October 11, 2006 the Parents' issues were clarified again as follows:

1. Parents claim the 2004-2005, 2005-2006 IEPs were not appropriate to meet Student's individual needs:

District failed to follow Student's IEP; District failed to provide ESY; District failed to provide FAPE in a timely manner; and District failed to follow procedural guidelines.

2. Parents claim that the IEP for 2006-2007 school year is not appropriate to meet Student's individual needs; and

3. Parents claim procedural deficiencies in the 2006-2007 IEP.

Parents seek reimbursement for placement of their son at Academy.

One extension of time was entered by the IHO, extending the decision deadline to December 12, 2006.

On December12, 2006, the IHO issued a decision finding that the District provided a FAPE to the student under the student's current IEP and that the Parent failed to prove that the

2 This issue was resolved prior to the Due Process Hearing and the Parents are not appealing that aspect of the decision.

student was denied FAPE for the 2004-2005 and 2005-2006 school years. Further, the hearing offer found that petitioners unilaterally withdrew their disabled son from the district in the beginning of the 2006-2007 school year and enrolled him in a private academy and that they seek tuition reimbursement and reimbursement of other educational costs incurred over the past two years. Further, the hearing officer found that any procedural violation were de minimis and did not cause any substantive harm or denial of FAPE. Further, the hearing officer found that the student was not entitled to ESY under the regression/recoupment standard and that the proposed IEP for the 2006/2007 school year was calculated to convey meaningful educational benefit under the law. The hearing officer also found that the private school selected by Parents is a viable alternative to the district program and a matter of personal preference. Should Parents choose to pursue this alternative, they must do so at their own expense.

B. State Level Review

On January 28, 2007, the Parents' Appeal Letter was received by the Ohio Department of Education. The notice of appeal included a request for an opportunity to present additional evidence. This state level review officer was assigned to conduct this review.

Following a conference call on February 8, 2006, the Parents requested an extension of time for the state level review decision to allow time for Parents to supplement their previous request for an opportunity to present additional evidence. The District did not object to this request. An Order Extending Time for the decision of this SLRO on the Parents' appeal to March 13, 2007 to allow for the filing of a supplemental request for an opportunity to present additional evidence and a response to that supplemental request by the District was issued on February 19, 2007. On the request of the Parents for additional time, a Second Order Extending Time for the decision of this SLRO on the Parents' appeal to April 18, 2007 was issued on March 3, 2007. An Order Denying the Request to Present Additional Evidence was issued by the SLRO on April 13, 2007. On April 17, 2007, an Amended Second Order Extending Time was issued, extending the time for a decision to April 20, 2007 due to the voluminous nature of the record in this case.

The following documents were submitted as the record of the due process hearing and were reviewed by this SLRO:

1. The Hearing Officer's decision; 2. The Hearing Officer's record, consisting of pre-hearing

information, extension orders and related documents; 3. The transcript of the due process hearing consisting of three (2) volumes, 617

total pages, plus a transcript index and a compressed version; 4. Parents' exhibits 1, 9-12, 14-18, 20-29, 31-65, 67, 68, 71-74, 80-81, 89, 111, 120,

123, 126-128, 130, 136-141, 145, 150-151, 1003-1005, 1007, 1009-1010, and 1017;

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District's exhibits 1 through 3, 5, 7-28, 30-56, 58-62, 66-68, 70-B, 70-D,

71, 75-77, 79 and 81;

6.

Parents' post-hearing brief;

7.

District's post-hearing brief; and

8.

Parents' notice of appeal.

III. FINDINGS OF FACT:

Testifying at the due process hearing (DPH) were the following witnesses: Dr. Gail Walter, the special education coordinator, Pamela Warrick, the school psychologist, Earl Oremus, the headmaster at Academy, Tracy Davis, a parent mentor, Steven Guy, a pediatric neuropsychologist, and Glenna Cameron, the executive director of special education. Neither parent testified.

Student was born February **, 19** and was seven years old and in the fourth grade at the time of the hearing and resided at all times material herein with his parents in the District. Student had been enrolled in a district elementary school since Kindergarten until October 12, 2006 when he was removed by Parents and enrolled in Academy, a private school for the teaching of dyslexic children. The pertinent facts of this case take place during the 2004-05, 2005-06 and 2006-07 school years.3 Since Parents raised an issue in their Notice of Appeal concerning the IHO's ruling on the statute of limitations, by way of background the years prior to 2004-2005 will be reviewed here.

Many of the facts were not in dispute. The central factual issues were whether Student received an educational benefit from the Language Arts component of his educational program, which commenced during the 2004-2005 school year, and whether the district properly implemented the IEPs.

2002-2003 school year

Student's kindergarten teacher had raised the issue of student being behind the other students in reading and pre-reading skills. She recommended intervention. Parents observed in kindergarten at the school along with the school psychologist, Ms. Warrick. During this observation, Parents spent the entire time telling the school psychologist that the student had no reading problem. Parents insisted on being present with the school psychologist for all future observations. The school psychologist did not schedule any further observations based on this demand.

3Although the 2006-07 school year commenced after the due process request, the hearing officer and parties agreed that issues related to the 2006-07 school year would be included in the due process hearing.

During the summer between kindergarten and first grade the Parents obtained a private evaluation by a Dr. Peggy Cook who concluded that the student had a disability in the areas of written expression and ADHD, but not a reading disability. Parents did not furnish this evaluation to the school until January, 2004.

2003-2004 school year

In first grade Student began receiving Title 1 reading services which Parents consented to and a multi-factored evaluation (MFE) was commenced. The MFE team met in April of 2004 and Parents participated in this team. Parents' private evaluation by Peggy Cook, Ph.D was provided and considered by the MFE team. Participants in the MFE team, besides the parents, were Student's teacher, the special education facilitator, the occupation therapist, the principal, the adapted physical educator, the intervention specialist and the school psychologist.

The team determined that the student had difficulties with attention and focus and with peer interaction, that he displayed a very slow way of processing information in terms of input and processing word output. The team concluded that student had average overall cognitive ability, and his achievement is commensurate with ability in all areas except for written expression which was well below average and significantly lower than his ability. His developmental reading assessment (DRA) score was 6-8 at the time of the evaluation (whereas the current benchmark for first grade was 16). Grading scales indicated elevated areas in inattention, social problems, learning problems, and withdrawal and processing speed was very, very slow. Further weaknesses were found to be in the area of writing skills, some letter and number reversals in his writing, slow speed of writing, weaker locomotor skills, and problems with correct production of speech sounds, and difficulty with pragmatic language skills. Student's handicapping condition was found to be ADHD, Primarily Inattentive type and, due to a severe discrepancy between achievement and ability, he was found to have a Specific Learning Disability, particularly in the areas of written expression and reading. Student was currently taking medication for his ADHD, specifically Metadate CD, 20 mg every morning. All participants consented to the MFE.

The team concluded that he was eligible for special education services, that he did not need occupational therapy (OT), but did need adapted physical education (APE) support and speech/language services, that he would receive special education support for written expression and reading skills (decoding and comprehension), classroom accommodations and modifications to help him maintain focus and attention, and teachers would monitor and encourage peer interaction in the classroom setting and special education.

An IEP team met consisting of both parents, student's teacher, Ms. Elliott, the school principal, Ms. Berka, the Title 1 reading specialist, Ms. McDonald, and the intervention specialist, Ms. Welsh. At that time student was noted to be on Adderall XR (15mg) and even on medication he was noted to meet the diagnostic criteria for ADHD/Primarily Inattentive Type. According to the assessments, he was found to be high average in math calculation, average in

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