NEW HAMPSHIRE DEPARTMENT OF EDUCATION
DECISION OF THE HEARING OFFICER
IDPH-FY-04-12-57 / Litchfield School District
• Background
A due process hearing was initiated by the receipt of a letter dated November 26, 2003, from Ronda Gregg, Director of Special Education for Litchfield School District relating Parents' request for independent evaluation. Two pre-hearing conferences were scheduled and a pre-hearing conference report and order were issued on February 11, 2004. The hearing was held on February 18, 20 and March 5, 2004 with Parents represented by Colleen Cronin Micavich, Esq. and the Litchfield School District, hereinafter School District, represented by Diane McCormack, Esq.
• Procedural Violations
Parents charge that the School District failed to provide appropriate testing to evaluate student, 34 CFR 300.534 and Rule Ed 1107.01, and failed to utilize criteria set forth in rule and regulation to determine whether Student shall continue to be coded, 34 CFR 300.541 and Rule Ed 1107.06.
• Issues
1. Payment of costs for an independent evaluation by Toby Freeman, speech, language and voice pathologist.
2. Student's eligibility for continuing special education services.
• Discussion
Student is nine years of age having been born on [REDACTED] in Derry, New Hampshire. Student moved to Litchfield in August 1999 and attended private parochial kindergarten in Manchester and attended first grade Litchfield public schools. Student’s kindergarten teacher noted learning difficulties and student was referred for special education in the first grade. Student continues in the fourth grade at Griffin Memorial Elementary School in Litchfield where student receives special education services for specific learning disability due to poor short-term auditory memory skills. The School District has performed tests and asserts that student is no longer eligible for such services. Parents believe student remains in need of special education services and depend on findings from independent educational evaluations and reimbursement is sought. In any case, there will be no changes in Student's IEP and the special education services student receives through this school year.
A due process hearing was held and this decision is written pursuant to 20 U.S.C. section 1400, et seq. It was initiated by the School District when the parents requested payment for independent educational evaluations related to the proposed termination of special education services.
At the hearing, both parties gave brief opening statements. The School District presented witnesses: Rita Blackadar, Student's third grade special education teacher; Margaret Parent, Student's fourth grade teacher; Mary Louise Saxton, Student's fourth grade case manager; Aurora Thompson, school psychologist who evaluated Student in the first and fourth grades and John F. McGarry, speech language pathologist for Litchfield; Ronda Gregg, Director of Special Services for Litchfield School District. Parents' witnesses were Toby E Freeman, speech, language and voice pathologist and Edward Jacobs, Ph.D.
Student's kindergarten and subsequent teachers and examiners noted behaviors and lack of achievement and problems with memory (Ex 0025). Numerous tests were utilized before reaching the determination that Student qualified for special education services on account of a specific learning disability in the area of memory.
Student scored well on the Wechsler Intelligence Scale for Children (WISC III) with scores above average. Many tests were given during the early months of student’s first grade year (Exs 0006-0047). Later in first grade year, the Wide Range Assessment of Memory and Learning (WRAML) was performed on January 5, 2001. According to testimony from Associate School Psychologist, the intent was to clarify the prior test results. Student's performance rated low on the verbal memory index, low average on the visual memory index, low average on the learning memory index and the resulting general memory index rating was below average (Ex 0050). Four days later, on January 9, 2001, the School District completed its evaluation and issued documents including Written Prior Notice and the L.D. Checklist that indicated a pattern of academic failure, poor functioning in listening comprehension, written expression, basic reading skills and mathematic calculations. It indicated that there was evidence of disorder in psychological processing and bore the conclusion: “(Student) has a specific learning disability due (sic) processing deficits in the area of auditory and visual memory.” Additional testing was done during his first grade year.
IEPs were devised and individualized services provided accordingly from the second half of the first grade through the third grade. Extended school year services (ESY) were included since regression was noted (Exs 0095, 0096). Progress was noted but the discrepancy was evident as shown on the student profile for his third grade IEP. Language-based learning was one or two grades below normal (Ex 0152). Student was placed and services generally delivered in the setting of a collaborative classroom.
During the summer between the first and second grade, the School referred Student for a psychological evaluation by Dr. Edward Jacobs. Dr. Jacobs report of examinations on two dates in July 2001 diagnosed Attention Deficit Hyperactivity Disorder, noted high performance on the WISC III, an unusual 32 point discrepancy between language-based (low average) and nonverbal (superior) intellectual abilities as well as a significant problem with storage and retrieval of language-based information and laterality (Ex 0101). Jacobs also noted inconsistent performance in many areas.
The IEP team met on May 15, 2003. The determined that reevaluation was due I October 2003 and that Student no longer qualified for ESY services since student no longer regressed to the degree warranting these. Student's fourth grade IEP called for special services continuing at 5 hours per week in the context of a regular classroom (Ex 0189). The student performance profile describes a student working at grade level in reading, math, social studies and science. Support is needed when written responses are needed (Ex 0193). A number of modifications and accommodations are noted and it is stated that Student's IEP will be reviewed following reevaluation (Ex 0196). Student's father participated in the preparation and approved the IEP as evidenced by his signatures.
In mid-August, the special education evaluation team requested permission of Parents to perform two tests as part of the reevaluation, the WISC III and the Woodcock Johnson III Tests of Academic Achievement (Ex 0208, 0209). During testimony, Aurora Thompson stated that this was done for her convenience.
Results on the WISC III were similar to results in 2000 and did not vary greatly from the results found by Dr. Jacobs in 2001. The same strengths and weaknesses were borne out overall with some variation. The Woodcock Johnson Tests performed on September 4, 2003, were described as yielding performance overall in the average range with only spelling low average. The final note of Mary Louise Saxton, who administered the tests, is that the results should be shared with the Special Education Team, along with the results of other evaluations, to determine whether (Student) continues to have an educational disability.
However, on September 16, 2003, with only a fairly unimpressive classroom observation added (Ex 0219), an IEP team meeting telephone conference was called and the team concluded that Student no longer qualified for special education services. Parent informed the School team members that he was considering an outside evaluation done and the School allowed that special education would be continued through the fourth grade (Exs 0220, 0229).
A second meeting was held on November 25, 2003, at Mother's request (Ex 0236). Notes of the meeting mention that Student is failing. Family separation, student’s presence at death of student’s dog and absence of ESY services over this summer are noted. The IEP Team recommended additional testing including tests used in the past prior to determining Student's learning disability including WRAML and Gestalt Bender tests (Ex 02440).
Parent sought approval for an independent evaluation and the Ms. Gregg was requesting mediation or due process on that matter (Id.).
Notice was sent (Ex 0257) and a meeting to review the results of the School's testing was held on January 6, 2004 (Exs. 0258-0266). A 504 plan was discussed but it is noted that no speech language learning disability exists (Exs 0266, 0273). The numeric results (Ex 0285) and the explanation of the WRAML battery results (Ex 0282-0284) are provided. Student evidenced one area of decrease and eight areas of increase in the Student's scores. Indeed, Student increased in the General Memory Test from low average to average. The Gestalt Bender test that does not involve memory dropped to below average. Parental disagreement continued with the School District's plan to cease special education services to Student in the upcoming school year.
The Parents' independent educational evaluation by Toby Freeman, certified speech and language pathologist and dated January 8, 2004, was taken into evidence during the hearing. Numerous deficits are noted. All but one of the scores on subtests measuring auditory perceptual skills were significantly below average reminiscent of earlier test results. Testimony by Ms. Freeman was taken by telephone and proved insufficient to do more than raise additional questions regarding the issues at hand. It is when inadequacy is questioned and shown in a school district's evaluations that an independent educational evaluation is compensable and that is not the case.
Student's year has been marked by stress related to family change and it is difficult to assess its role in Student's performance in school and on reevaluation. There are deficits in evidence to some degree but student has progressed. The large discrepancy between ability and performance has significantly decreased. Student is performing in the average range and up to grade level with support.
Both parties agree that the lead case against which special education cases are to be measured is Rowley v. Board of Education, 102 S.Ct. 3034 (1082). School District seeks a traditional reading that a basic level of education is what a school is required to provide. That is a level calculated to ensure a free and appropriate education, F.A.P.E., which courts have interpreted to mean “instruction and support services sufficient ‘to permit the child to benefit educationally from that instruction.' ” Galina C. v. Shaker Regional School District, ___F.3d______(D.N.H., March 30, 2004) citing Roland M. v. Concord School District, 910 F.2d 983, 987 (1 st Cir. 1990), quoting Rowley at 203. Parents wish an interpretation informed by Claremont School District v. Governor, 142 N.H. 462 (1997) recognizing that students have a fundamental right to a constitutionally adequate education meaning more than “mere competence in the basics” of reading, writing and arithmetic. Claremont at 474. Parents argue that the New Hampshire Court raised the bar and now demands that New Hampshire children require a higher standard and more is needed under special education laws to provide F.A.P.E. that the Rowley Court has set as the measuring stick.
The Supreme Court, in the Rowley decision, put that floor or level in place leaving the states the option to establish a higher standard by which to adjudge the adequacy of a school district's efforts to provide F.A.P.E. See Amann v. Stow School System, 982 F.2d 644, 649 citing Burlington v. Department of Education, 736 F.2d 773, 792 (1 st Cir. 1984). Parents argue that the New Hampshire Supreme Court has set a new standard, but careful consideration of the decision in Claremont leads to the conclusion that the Claremont decision is to be read as supportive of a change by the New Hampshire Legislature to raise the above-discussed standard through enactment of statute addressing the rights of children receiving special education. Such a change is a matter for the legislature as was the case in Massachusetts from which the Amann case arose.
Here, we view the education from the prospective of hindsight and the question is not the adequacy of an IEP and the individualized program to provide F.A.P.E. but whether past special education has done its work and raised Student's performance to the point that no further special education is in order. The School District has argued that it is enough that student is performing at an average level with complete access to the regular curriculum for student’s grade. Indeed, it seems that is the floor and it has been reached and whatever residual impairment exists does not significantly interfere with the learning process to require special education services. J.W. v. Contoocook Valley School District, 154 F. Supp. 2d 217, 228 (D.N.H. 2001). The Parents contend that Student does not write as well as student’s peers (Exs 0315,0316) and student’s spelling is poor. Student has not achieved more than a few of his IEP goals, though by and large student has made satisfactory progress, (Exs 0204-0207), and so may not be released from the Litchfield School District's Special Education Program while student demonstrates mere competence.
The School District's position is adopted in this matter. Although the School District did err in timely performing tests originally used to clarify the nature of his learning disability, the errors of the School District relating to delaying appropriate testing did not yield an overwhelming harm since, when those tests were performed, Student was shown to have gained sufficient educational benefit to be able to continue his education without an IEP in place for the upcoming school year. The School District has offered a 504 plan to give Student support where needed.
• Conclusion
The Litchfield School District prevails. The independent educational evaluation is not properly reimbursable from public funds. The School District is not required to continue Student in the special education program as he does not now meet eligibility requirements. However, the School District is to develop a 504 plan for Student and be prepared to offer other supports the Student's teacher Margaret Parent had in mind when she qualified her approval for recommending Student ineligible for services. The School District is to carefully monitor and be prepared to evaluate Student and provide reinstatement should the same be indicated.
• Appeal Rights
If either party is aggrieved by the Decision of the Hearing Officer set forth above, that party may appeal this decision to a court of appropriate jurisdiction. The Parents have the right to a transcription of the proceedings. The District shall notify the Commissioner of Education should either party seek judicial review of this decision.
VII. Statement of Compliance with Rule Ed 1128.10 (b).
If neither party appeals this Decision to a Court, then the District shall, within 90 days, provide to the Commissioner of Education and the Hearing Officer a written report describing the implementation of this Decision and provide a copy to the parents. If the parents do not concur with the District's Report, the parents shall submit their own report to the Commissioner of Education on the implementation of the Decision.
SO ORDERED.
Date: April 9, 2004
Gail Morrison, Hearing Officer