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
DUE PROCESS HEARING
Name of Child:
Date of Birth:
Date of Hearing:
June 29, 2012
Parties to the Hearing :
Parents Pro Se
Norristown Area School District
401 N. Whitehall Road
Timoney Knox P.O. Box 7544
400 Maryland Drive
Fort Washington, PA 19034
Transcript Received: June 30,2012
Date of Decision: June 30,2012
Hearing Officer: Linda M. Valentini, Psy.D., CHO
Certified Hearing Official
Student1 is a n elementary – school – age child who is eligible for special education pursuant to the Individuals with Disabilities Education Act [IDEA] under the classification of Autism , and consequently a protected handicapped individual under Section 504 of the Rehabilitation Act of 1973 [Section 504], as well as the federal and state regulations implementing those statutes.
The current ma tter concerns an expedited due process request from the Parent s who disagree with the District’s proposed Extended School Year [ESY] progra m , believing that Stude n t requires six to eight weeks of ESY rather than the District’s proposed fo u r weeks.
Is the ESY program the District offered Student appropriate?
Findings of Fact
1. Student resides with the Parents within the boundaries of the District and attends Student’s neighborhood school. There is no dispute about Student’s eligibility for ESY pro gramming. [NT 12]
1 This decision is written without further reference to the Child ’s name or gender, and as far as is possible, other singular characteristics have been removed to provide privacy.
2 The parties have been discussing ESY since January 2012 and have made ongoing attempts to resolve their differences. The Parents addressed some difficulties during this process, including scheduling and mailing of documents; these issues are not germane to this Decision as at the time the Parents filed for this hearing the difficulties were moot. [ NT 14 – 15 ; P – 10, P – 11]
5. There will be some snack time, approximately about a half an hour , and then time for the children to play socially with each other on a playground or do ing activities inside th e classroom. [NT 94]
12. Regression/R ecoupment data collected at the beginning of the school year and during the winter break established that Student’s time for recoupment was not longer than expected. [ NT 108, 125 – 126; S – 6]
15. The Parents provided documents from the private Speech/Language Therapist and the private Occupational Therapist, wherein they opined that Student requires continuity of services thro ugh the summer months . [NT 13 , 22 – 23 ; P – 4, P – 5]
19. Student has not started at the Variety Club camp.5[S – 22, P – 9]
4 Although St udent’s mother stated several times that the ESY IEP was inappropriate, and I specifically invited her to explain the basis for this, she did not offer anything other than the length of the program and, only under cross – examination and without reference or explanation in her case in chief, that the social goal was not appropriate . [NT 34, 39 , 7 8 ]
5 So that Student would not lose educational programming opportunity, the District offered a t the hearing to have Student begin in the District’s ESY program for however many days it took for this Decision to be issued, and then continue or release Student depending on the outcome. [NT 154] The Decision Due Date, given the Pennsylvania timelines governing ESY hearings, would have been July 18, 2012 . Because of th e urgency of this matter, and with the much appreciated assistance of the court reporting agency [Gravinese Court Reporting] which emailed the transcript on Saturday morning at 10:10 am , less than 1 6 hours after the 4:40 pm end of the Friday afternoon sess ion, I am issuing this Decision significantly earlier than required.
Discussion and Conclusions of Law
In November 2005, the U.S. Supreme Court held the sister burden of proof element to the burden of production, the burden of persuasion, to be on the party seeking relief. However, this outcome – determining rule applies only when th e evidence is evenly balanced in “equipoise,” as otherwise one party’s evidence would be preponderant. Schaffer v. Weast , 126 S. Ct. 528, 537 (2005). The Third Circuit addressed this matter as well more recently. L.E. v. Ramsey Board of Education , 435 F .3d. 384; 2006 U.S. App. LEXIS 1582, at 14 – 18 (3d Cir. 2006). Thus, the party bearing the burden of persuasion must prove its case by a preponderance of the evidence, a burden remaining with it throughout the case. Jaffess v. Council Rock School District , 2006 WL 3097939 (E.D. Pa. October 26, 2006). Here, the Parent s requested this hearing and were therefore, assigned the burden of persuasion pursuant to Schaffer , and in this matter the Parents accepted the burden of production even though case law does not clearly assign same to either party.
During a due process hearing the hearing officer is charged with the responsibility of judging the credibility of witnesses, weighing evidence and, accordingly, rendering a decision incorporating fin dings of fact, discussion and conclusions of law. Hearing officers have the plenary responsibility to make “express, qualitative determinations regarding the relative credibility and persuasiveness of the witnesses ”. Blount v. Lancaster – Lebanon Intermedia te Unit, 2003 LEXIS 21639 at *28 (2003); See also generally David G. v. Council Rock School District , 2009 WL 3064732 (E.D. Pa. 2009).
Two witnesses testified at the hearing. The mother is clearly an ardent advocate for her child and did a commendable j ob preparing exhibits and articulating her position. She was in the difficult positi on of having lost legal counsel before the hearing [ N T 10] , and although she was accompanied by an advocate [who does not specialize in special education advocacy] the mot her did not, nor would she be expected to, grasp the standard for appropriateness put forth in case law related to the IDEA. Although the Parents produced documents from Student’s wraparound providers [BSC and TSS] and private OT and Speech/Language prov iders, these individuals’ opinions did not establish why the District’s offer of ESY was inappropriate. The behavioral data generated by the wraparound team did not address Student’s in – school academic or behavioral functioning and accordingly could not b e given significant weight. The private Speech/Language and Occupational Therapy providers’ knowledge of what the District was offering for ESY for Summer 2012 was not established on the record. The District’s witness , the Acting Special Education Supervi sor, testified by telephone and at various times the connection was interrupted [ NT 8 6 ] . This individual was clear in articulating the District’s position [with the exception of the number of Speech/Language sessions as addressed above] and
6Notably the TSS is authorized to provide Student with 8 hours per week of one – to – one home/community services during which, presumably there would be direct emphasis on behavioral and social functioning. [NT 41]
her testimony regarding the District’s offered ESY program and her understanding of the Variety Club’s camp program gleaned from a conversation with the camp director [ NT 33 , 109 – 112 , 133 – 135 ] , was reliable and accorded due weight.
Having been found eligible for early intervention special education, the Student is entitled by federal law, the Individuals with Disabilities Education Act as Reauthorized by Congress December 2004, 20 U.S.C. Section 600 et seq . and Pennsylvania Special Education Regulations a t 22 PA Code § 14 et seq. to receive a free appropriate public education (FAPE). FAPE is defined in part as: individualized to meet the educational or early intervention needs of the student; reasonably calculated to yield meaningful educational or early intervention benefit and student or child progress; and provided in conformity with an Individualized Educational Program (IEP). A child ’s special education program must be reasonably calculated to enable the child to receive meaningful educational benefi t 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)). Local Educational Agencies [LEAs] need not provide the optimal leve l of service, maximize a child’s opportunity, or even set a level that would confer additional benefits . What the statute guarantees is an “appropriate” education, “not one that provides everything that might be thought desirable by ‘loving parents.’” Tuc ker v. Bayshore Union Free School District , 873 F.2d 563, 567 (2d Cir. 1989).
(a) In addition to the requirements incorporated by reference in 34 CFR 300.106 (relating to extended school year servic es), school entities shall use the following standards for determining whether a student with disabilities requires ESY as part of the student’s program:
(1) At each IEP meeting for a student with disabilities, the school entity shall determine whethe r the student is eligible for ESY services and, if so, make subsequent determinations about the services to be provided.
(2) In considering whether a student is eligible for ESY services, the IEP team shall consider the following factors; however, no single factor will be considered determinative:
(i) Whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming (Reg ression).
(ii) Whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming (Recoupment).
(iii) Whether the student ’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.
(iv) The extent to which the student has mastered and consolidated an important skill or be havior at the point when educational programming would be interrupted.
(v) The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self – sufficiency and independence from caretakers.
(vi) The e xtent to which successive interruptions in educational programming result in a student’s withdrawal from the learning process.
(vii) Whether the student’s disability is severe, such as autism/pervasive developmental disorder, serious emotional dist urbance, severe mental retardation, degenerative impairments with mental involvement and severe multiple disabilities.
(b) Reliable sources of information regarding a student’s educational needs, propensity to progress, recoupment potential and year – to – year progress may include the following:
(1) Progress on goals in consecutive IEPs.
(2) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program .
(3) Reports by parents of negative changes in adaptive behaviors or in other skill areas.
(4) Medical or other agency reports indicating degenerative – type difficulties, which become exacerbated during breaks in educational services.
(5) Ob servations and opinions by educators, parents and others.
(6) Results of tests, including criterion – referenced tests, curriculum – based assessments, ecological life skills assessments and other equivalent measures.
(c) The need for ESY services will not be based on any of the following:
(1) The desire or need for day care or respite care services.
(2) The desire or need for a summer recreation program.
(3) The desire or need for other programs or services that, while they may provide education al benefit, are not required to ensure the provision of a free appropriate public education.
In determining whether the LEA has offered an appropriate ESY program, as is the case for determining whether a n LEA has offered an appropriate IEP , the proper standard is whether the proposed program is reasonably calculated to confer meaningful educational benefit. Rowley “Meaningful benefit” means that an eligible student’s program affords him or her the opportunity for “significant learning.” Ridge wood Board of Education v. N.E. , 172 F.3d 238 (3 rd Cir. 1999).
The IDE A and Pennsylvania law are very clear on what ESY is supposed to accomplish. ESY is provided to prevent a child from losing educational ground over a long break in scho oling, such as during the summer.
The District has offered a five – day per week program for four weeks. Four hours per day are designed to address Student’s specific IEP goals in the neighborhood school with six pupils who are Student’s classmates during the regular school year and a teacher who, although not Student’s regular school year classroom teacher, is familiar with Student and with whom Student is familiar. One additional hour per day is being offered for one – to – one instruction with a certified s pecial education teacher who will work with Student on any goals the Parents select as important. The District has presented credible evidence that Student’s participation in a District ESY program last summer prevented appreciable regression on IEP goals and curtailed recoupment time when school resumed in September.
The Parents favor an ESY program that is longer [since that program started two weeks ago and Student did not attend it [ NT 7 4 – 7 5] Student’s total number of weeks would be six if Student s tarted on Monday July 2 nd ]. Although the ESY program runs for six hours per day, two of those hours are devoted to lunch [30 minutes] and swimming [90 minutes] . In addition, there is no indication that Student would receive one – to – one instruction in that program. Finally, I note that although the camp brochure provides for related therapies, those are provided at additional cost over and above the camp fee.
and the applicable law relating to ESY eligibility and appropriate programs and services, I conclude that the District has offered an appropriate ESY program for Student.
It is hereby ordered that:
The ESY program the District offered Student is appropriate and should be implemented as of July 2, 2012 or, given the date of this Order, as soon as transportation can reasonably be arranged but no later than July 5, 2012.
Any claims not specifically addressed by this decision and order are denied and dismissed.
June 30 , 2012
Linda M. Valentini, Psy.D. , CHO
Linda M. Valentini, Psy.D. , CHO
Special Education Hearing Officer
NAHO Certified Hearing Official