Post by sld123 on Nov 20, 2009 12:25:08 GMT -5
this IEP is devoid of special education
DECISION
OAL DKT. NO. EDS 2321-07
AGENCY DKT. NO. 2007 11948
K.R. and J.R. o/b/o N.R.,
Petitioners,
v.
VINELAND CITY BOARD OF
EDUCATION,
Respondent.
__________________________
Ira M. Fingles, Esq., for petitioners (Hinkle, Fingles & Prior, attorneys)
Paul Kalac, Esq., for respondent (Parker McCay, attorneys)
Record Closed: December 5, 2007 Decided: January 22, 2008
BEFORE JOSEPH F. MARTONE, ALJ:
I FIND the record to be clear that N.R. failed to make significant progress in his basic reading skills during the 2006-07 school year. I FIND that the reason for this is that there was no reading program included in N.R.’s IEPs to address his glaring weakness and disability. I FIND that the IEP failed to provide any program to deal with N.R.’s deficient reading skills. Therefore, I FIND that the IEP for the 2006-07 as well as the 2005-06 school years cannot be considered as reasonably calculated to confer significant or meaningful educational benefits in reading, N.R.’s greatest area of need.
I also FIND that the district’s IEP for the 2007-08 school year is virtually identical to that for the prior school years (P-9). As indicated by Dr. Kay, this IEP is devoid of special education and consists solely of accommodations. Therefore, I FIND that my findings relative to the prior IEPs are appropriate findings with respect to the 2007-08 IEP.
As a remedy in this matter, the parents have requested compensatory education award in the form of the establishment of a monetary fund to be controlled by the parents. I have significant reservations with respect to this request. The case cited by counsel for the parents, Canon-McMillan School District, 36 IDELR 251 (SEA.PA 2002), is a Pennsylvania case. I am not aware of any precedent in New Jersey for such a remedy. The determination where and how to provide FAPE is the responsibility of the school district in the first instance. See, generally, N.J.A.C. 6A:14-1.1(d), -4.1(a), -4.2(a) and -5.1. Certainly, if the school district cannot supply the necessary program that will provide FAPE to N.R., the question may arise where N.R. should be placed in order to receive the needed program. In any event, it is the obligation of the school district to assess the conclusions of this decision, determine whether it can deliver the required program, and then, if it determines that it cannot, it must consider alternative school settings where the necessary program can be delivered. It may determine that another public or private placement is the appropriate placement, but the initial determination of a proper placement should be a considered decision by the whole IEP team in the context of such other options as may present themselves. An administrative tribunal such as this forum, should refrain from making educational decisions, including those as to placement, in the first instance, but should defer to the educational personnel and let them first determine the proper placement, taking into account both the appropriateness of any options that may be available and the cost to the school district and its taxpayers, to the extent that cost determinations do not prevent the delivery of that which is determined necessary to deliver FAPE.
In any event, I FIND that the appropriate remedy in this matter is that the following special education and related services shall be provided to N.R. as an appropriate placement. Because of the absolute necessity for N.R. to be able to read in order to succeed in other academic subjects, N.R. shall be provided with a research-based reading program taught by highly qualified teachers who are fully trained in the providing of the program. N.R. shall be immersed in the reading program and it shall take precedence over all other academic areas. With respect to the remedy for these failures of the school district to provide an appropriate IEP and program for N.R., I have carefully considered and FIND that the recommendations of Dr. Kay set forth in her listing of the primary goals for N.R. (P-6Y) should be immediately implemented by the school district. The recommendations of Dr. Kay, which are to be immediately implemented by the school district, are as follows:
N.R. shall be provided with instruction utilizing the Wilson Reading System, for one period per day of one-on-one instruction for no less than 45 to 60 minutes each period. This instruction shall be provided by a fully qualified Wilson instructor. Prior to the commencement of the use of the Wilson Reading System, N.R. shall be pretested on the WADE Examination and N.R. shall be post-tested annually on the WADE Examination. The instruction shall follow all Wilson step-test guidelines for progress monitoring.
In addition to reading literacy, in order to add in a fluency building component of instruction, 45 minutes of Wilson shall be provided to N.R. with 15 minutes of “Read Naturally” or some similar fluency building component.
N.R. shall be provided with a summer program to address the reading comprehension component with a reading program such as “Visualizing and Verbalizing for Language Comprehension and Thinking” available through the Lindamood-Bell Learning Processes.
N.R.’s spelling shall be addressed using the Wilson Reading System.
Writing remediation and assistive technology training for N.R. shall be done in tandem for one period each day utilizing the Diana Hanbury-King for writing skills plus training in keyboarding skills. In addition, N.R. shall be provided with all necessary training for Kurzweil 3000.
The usual remedy in such a case is to award compensatory education equal to the length of the inappropriate placement or denial of services. M.C., 81 F.3d 389, 397 (3d. Cir. 1996). In this case, I FIND that N.R. is entitled to compensatory education for the equivalent of two and one-half academic years in addition to the summer program recommended by Dr. Kay, plus whatever additional time is taken for the school district to implement this decision. I intend to order such compensatory education as a remedy in this matter.
DECISION AND ORDER
Based upon my finding that the respondent school district’s IEPs, program, and placements for the 2005-06, 2006-07, and 2007-08 school years have not provided to N.R. meaningful educational progress, that the respondent school district has failed to provide N.R. with FAPE, and based on my findings that the respondent school district knew or should have known that N.R. had inappropriate IEP’s and was not receiving more than a de minimis educational benefit and took no steps to correct the situation, I ORDER the following:
N.R. shall be provided with compensatory education of the equivalent for the equivalent of two and one-half years in addition to the summer program recommended by Dr. Kay (P-6Y).
The five paragraphs of recommendations of Dr. Kay listed hereinabove shall be provided to N.R. and shall be implemented on an immediate basis.
This decision is final pursuant to 20 U.S.C.A. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2007) and is appealable by filing a complaint and bringing a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C.A. § 1415(i)(2); 34 C.F.R. § 300.516 (2007).
January 22, 2008
DATE JOSEPH F. MARTONE, ALJ
mph/cs
APPENDIX
LIST OF WITNESSES:
For petitioners:
Margaret Joan Kay, Ed.D.
J.R., mother of K.R.
Lynn R. Lera
For respondent;
William L. Shropshire
Denise Chalow Case
Joan L. Behe
Gabriel “Gabe” DiTomasso
LIST OF EXHIBITS
For petitioners:
P-1 Progress Reports for N.R. for the 2005-06 School Year
P-2 KTEA Score Sheet, test date October 26, 2006
P-3 KTEA Score Sheet, test date November 1, 2006
P-4 IEP, dated December 13, 2006
P-5 KTEA-II Information Booklet
P-6 Certification of J.R., dated September 28, 2007, with the following attachments:
A. N.R. Evaluations
B. IEP, dated June 12, 2000
C. IEP, dated October 13, 2000
D. IEP, dated May 7, 2001
E. IEP, dated April 10, 2002
F. IEP, dated April 4, 2003
G. IEP, dated November 17, 2003
H. IEP, dated May 28, 2004
I. IEP, dated March 30, 2005
J. IEP, dated March 1, 2006
K. IEP, dated May 24, 2006
L. Report of John L. Reed, LCSW, DCSW, dated June 17, 2003
M. Manifestation Determination Report, dated March 1, 2006
N. Teacher Reports, March – May 2006
O. March 27, 2006, letter of Ira M. Fingles, Esq.
P. April 4, 2006, letter of Ira M. Fingles, Esq.
Q. April 4, 2006, letter of Robert A. DeSanto, Esq.
R. April 25, 2006, letter of Ira M. Fingles, Esq.
S. Board of Education Expulsion Hearing Report
T. Minutes of Executive Session of Board of Education on May 9, 2006
U. Report of David A. Davenport, Ed.D., dated June 18, 2006
V. Evaluation Report of Margaret J. Kay, Ed.D., August 2006
W. IEP, dated October 11, 2006
X. Evaluation Report of Margaret J. Kay, Ed.D., dated May 2007
Y. Margaret J. Kay, Ed.D., Summary of Primary Goals
Z. Lynne M. Lera letter, dated January 11, 2007
AA. J.R. letter, dated January 21, 2003
BB. K.R. and J.R. letter, dated June 8, 2004, with response, dated June 25, 2004
Progress Report
IEP, dated March 28, 2007
P-7 Curriculum Vitae of Margaret J. Kay, Ed.D.
P-8 N.R. KTEA Reading Word Recognition
P-9 IEP, dated March 28, 2007
P-10 Letter of Dr. Kay, dated August 23, 2006
P-11 KTEA Answer Booklet, dated October 26, 2006, administered by Ms. Lera
P-12 Progress Reports
P-13 High School Practice Test Scores, dated March 2007
P-14 Lynne M. Lera letter, dated January 11, 2007 (same as Exhibit P-6Z)
P-15 Vineland Public Schools KTEA-II Training Certificate for Lynne Lera
For respondent:
R-1 Revised IEP, dated March 20, 2005
R-2 Correspondence between Mr. Shropshire and parents
R-3 Copy of file on N.R. of Denise Chalow Case
R-4 IEP, dated October 11, 2006
R-5 Reevaluation Plan, dated October 11, 2006
R-6 Learning Assessment, dated November 1, 2006
R-7 KTEA Score Summary Table Form B
R-8 KTEA Score Summary Table Form A and Test Scoring Sheets
R-9 KTEA Score Summary Table and Test Scoring Sheets
R-10 IEP, dated May 11, 2006
R-11 Psychological Evaluation of Gabriel DiTomasso, Ed.S., dated November 6, 2006
R-12 Receipt for Equipment, dated November 28, 2007
R-13 IEP, dated December 13, 2006
DECISION
OAL DKT. NO. EDS 2321-07
AGENCY DKT. NO. 2007 11948
K.R. and J.R. o/b/o N.R.,
Petitioners,
v.
VINELAND CITY BOARD OF
EDUCATION,
Respondent.
__________________________
Ira M. Fingles, Esq., for petitioners (Hinkle, Fingles & Prior, attorneys)
Paul Kalac, Esq., for respondent (Parker McCay, attorneys)
Record Closed: December 5, 2007 Decided: January 22, 2008
BEFORE JOSEPH F. MARTONE, ALJ:
I FIND the record to be clear that N.R. failed to make significant progress in his basic reading skills during the 2006-07 school year. I FIND that the reason for this is that there was no reading program included in N.R.’s IEPs to address his glaring weakness and disability. I FIND that the IEP failed to provide any program to deal with N.R.’s deficient reading skills. Therefore, I FIND that the IEP for the 2006-07 as well as the 2005-06 school years cannot be considered as reasonably calculated to confer significant or meaningful educational benefits in reading, N.R.’s greatest area of need.
I also FIND that the district’s IEP for the 2007-08 school year is virtually identical to that for the prior school years (P-9). As indicated by Dr. Kay, this IEP is devoid of special education and consists solely of accommodations. Therefore, I FIND that my findings relative to the prior IEPs are appropriate findings with respect to the 2007-08 IEP.
As a remedy in this matter, the parents have requested compensatory education award in the form of the establishment of a monetary fund to be controlled by the parents. I have significant reservations with respect to this request. The case cited by counsel for the parents, Canon-McMillan School District, 36 IDELR 251 (SEA.PA 2002), is a Pennsylvania case. I am not aware of any precedent in New Jersey for such a remedy. The determination where and how to provide FAPE is the responsibility of the school district in the first instance. See, generally, N.J.A.C. 6A:14-1.1(d), -4.1(a), -4.2(a) and -5.1. Certainly, if the school district cannot supply the necessary program that will provide FAPE to N.R., the question may arise where N.R. should be placed in order to receive the needed program. In any event, it is the obligation of the school district to assess the conclusions of this decision, determine whether it can deliver the required program, and then, if it determines that it cannot, it must consider alternative school settings where the necessary program can be delivered. It may determine that another public or private placement is the appropriate placement, but the initial determination of a proper placement should be a considered decision by the whole IEP team in the context of such other options as may present themselves. An administrative tribunal such as this forum, should refrain from making educational decisions, including those as to placement, in the first instance, but should defer to the educational personnel and let them first determine the proper placement, taking into account both the appropriateness of any options that may be available and the cost to the school district and its taxpayers, to the extent that cost determinations do not prevent the delivery of that which is determined necessary to deliver FAPE.
In any event, I FIND that the appropriate remedy in this matter is that the following special education and related services shall be provided to N.R. as an appropriate placement. Because of the absolute necessity for N.R. to be able to read in order to succeed in other academic subjects, N.R. shall be provided with a research-based reading program taught by highly qualified teachers who are fully trained in the providing of the program. N.R. shall be immersed in the reading program and it shall take precedence over all other academic areas. With respect to the remedy for these failures of the school district to provide an appropriate IEP and program for N.R., I have carefully considered and FIND that the recommendations of Dr. Kay set forth in her listing of the primary goals for N.R. (P-6Y) should be immediately implemented by the school district. The recommendations of Dr. Kay, which are to be immediately implemented by the school district, are as follows:
N.R. shall be provided with instruction utilizing the Wilson Reading System, for one period per day of one-on-one instruction for no less than 45 to 60 minutes each period. This instruction shall be provided by a fully qualified Wilson instructor. Prior to the commencement of the use of the Wilson Reading System, N.R. shall be pretested on the WADE Examination and N.R. shall be post-tested annually on the WADE Examination. The instruction shall follow all Wilson step-test guidelines for progress monitoring.
In addition to reading literacy, in order to add in a fluency building component of instruction, 45 minutes of Wilson shall be provided to N.R. with 15 minutes of “Read Naturally” or some similar fluency building component.
N.R. shall be provided with a summer program to address the reading comprehension component with a reading program such as “Visualizing and Verbalizing for Language Comprehension and Thinking” available through the Lindamood-Bell Learning Processes.
N.R.’s spelling shall be addressed using the Wilson Reading System.
Writing remediation and assistive technology training for N.R. shall be done in tandem for one period each day utilizing the Diana Hanbury-King for writing skills plus training in keyboarding skills. In addition, N.R. shall be provided with all necessary training for Kurzweil 3000.
The usual remedy in such a case is to award compensatory education equal to the length of the inappropriate placement or denial of services. M.C., 81 F.3d 389, 397 (3d. Cir. 1996). In this case, I FIND that N.R. is entitled to compensatory education for the equivalent of two and one-half academic years in addition to the summer program recommended by Dr. Kay, plus whatever additional time is taken for the school district to implement this decision. I intend to order such compensatory education as a remedy in this matter.
DECISION AND ORDER
Based upon my finding that the respondent school district’s IEPs, program, and placements for the 2005-06, 2006-07, and 2007-08 school years have not provided to N.R. meaningful educational progress, that the respondent school district has failed to provide N.R. with FAPE, and based on my findings that the respondent school district knew or should have known that N.R. had inappropriate IEP’s and was not receiving more than a de minimis educational benefit and took no steps to correct the situation, I ORDER the following:
N.R. shall be provided with compensatory education of the equivalent for the equivalent of two and one-half years in addition to the summer program recommended by Dr. Kay (P-6Y).
The five paragraphs of recommendations of Dr. Kay listed hereinabove shall be provided to N.R. and shall be implemented on an immediate basis.
This decision is final pursuant to 20 U.S.C.A. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2007) and is appealable by filing a complaint and bringing a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C.A. § 1415(i)(2); 34 C.F.R. § 300.516 (2007).
January 22, 2008
DATE JOSEPH F. MARTONE, ALJ
mph/cs
APPENDIX
LIST OF WITNESSES:
For petitioners:
Margaret Joan Kay, Ed.D.
J.R., mother of K.R.
Lynn R. Lera
For respondent;
William L. Shropshire
Denise Chalow Case
Joan L. Behe
Gabriel “Gabe” DiTomasso
LIST OF EXHIBITS
For petitioners:
P-1 Progress Reports for N.R. for the 2005-06 School Year
P-2 KTEA Score Sheet, test date October 26, 2006
P-3 KTEA Score Sheet, test date November 1, 2006
P-4 IEP, dated December 13, 2006
P-5 KTEA-II Information Booklet
P-6 Certification of J.R., dated September 28, 2007, with the following attachments:
A. N.R. Evaluations
B. IEP, dated June 12, 2000
C. IEP, dated October 13, 2000
D. IEP, dated May 7, 2001
E. IEP, dated April 10, 2002
F. IEP, dated April 4, 2003
G. IEP, dated November 17, 2003
H. IEP, dated May 28, 2004
I. IEP, dated March 30, 2005
J. IEP, dated March 1, 2006
K. IEP, dated May 24, 2006
L. Report of John L. Reed, LCSW, DCSW, dated June 17, 2003
M. Manifestation Determination Report, dated March 1, 2006
N. Teacher Reports, March – May 2006
O. March 27, 2006, letter of Ira M. Fingles, Esq.
P. April 4, 2006, letter of Ira M. Fingles, Esq.
Q. April 4, 2006, letter of Robert A. DeSanto, Esq.
R. April 25, 2006, letter of Ira M. Fingles, Esq.
S. Board of Education Expulsion Hearing Report
T. Minutes of Executive Session of Board of Education on May 9, 2006
U. Report of David A. Davenport, Ed.D., dated June 18, 2006
V. Evaluation Report of Margaret J. Kay, Ed.D., August 2006
W. IEP, dated October 11, 2006
X. Evaluation Report of Margaret J. Kay, Ed.D., dated May 2007
Y. Margaret J. Kay, Ed.D., Summary of Primary Goals
Z. Lynne M. Lera letter, dated January 11, 2007
AA. J.R. letter, dated January 21, 2003
BB. K.R. and J.R. letter, dated June 8, 2004, with response, dated June 25, 2004
Progress Report
IEP, dated March 28, 2007
P-7 Curriculum Vitae of Margaret J. Kay, Ed.D.
P-8 N.R. KTEA Reading Word Recognition
P-9 IEP, dated March 28, 2007
P-10 Letter of Dr. Kay, dated August 23, 2006
P-11 KTEA Answer Booklet, dated October 26, 2006, administered by Ms. Lera
P-12 Progress Reports
P-13 High School Practice Test Scores, dated March 2007
P-14 Lynne M. Lera letter, dated January 11, 2007 (same as Exhibit P-6Z)
P-15 Vineland Public Schools KTEA-II Training Certificate for Lynne Lera
For respondent:
R-1 Revised IEP, dated March 20, 2005
R-2 Correspondence between Mr. Shropshire and parents
R-3 Copy of file on N.R. of Denise Chalow Case
R-4 IEP, dated October 11, 2006
R-5 Reevaluation Plan, dated October 11, 2006
R-6 Learning Assessment, dated November 1, 2006
R-7 KTEA Score Summary Table Form B
R-8 KTEA Score Summary Table Form A and Test Scoring Sheets
R-9 KTEA Score Summary Table and Test Scoring Sheets
R-10 IEP, dated May 11, 2006
R-11 Psychological Evaluation of Gabriel DiTomasso, Ed.S., dated November 6, 2006
R-12 Receipt for Equipment, dated November 28, 2007
R-13 IEP, dated December 13, 2006
