STATE OF NEW HAMPSHIRE
DEPARTMENT OF EDUCATION
Student / School District
IDPH-FY-25-01-024
DUE PROCESS DECISION
I. INTRODUCTION
Parent brings the following claims regarding the current Proposed IEP: (1) to add vision therapy; (2) to add tutoring services; and (3) for an out of district placement.
II. BACKGROUND FACTS Student is identified under Individuals with Disabilities Education Act (“IDEA”), under the categories of other health impairment (“OHI”) and specific learning disability (“SLD”). Student is in seventh grade and began attending the District’s middle school the start of the 2024-2025 school year. Prior to that Student attended the Elementary School.
Student has several medical diagnoses including chromosomal abnormalities involving the 6q21 region, seizure disorder, ADHD and anxiety. Student wears glasses and the IEP has accommodations to support visual needs. Student’s SLD are in the areas of basic reading skills, reading fluency, mathematics calculation and mathematics problem solving. Student’s IEP describes disabilities as impacting involvement and progress in the general curriculum because at times demonstrates difficulty complying with directions for non-preferred activities. Student is able to demonstrate progress within the general curriculum when provided adult support, direct teaching and reteaching of newly learned skills and consistent routines/expectations. Student has difficulty with memory and responding quickly. Student’s anxiety impacts ability to navigate stressful situations and adapt to changes and engage in class. Student areas of strength are identified as enjoying reading, participation in learning lab, and art. Student is described as friendly and is a good helper and enjoys sharing about life. See District’s Core Exhibits(“CE”) 1.
A two (2) day hearing was held. Parent called three (3) witnesses and District called five (5)
There was testimony that a transition plan was in place to support Student’s transition from the local town elementary school to the larger middle school environment. The IEP covered January 5, 2024 to January 4, 2025. This IEP included goals in the areas of social/behavioral (to address school participation and work completion), math, reading occupational therapy, and speech and language. CE 50, pgs. 405-409. Student’s IEP included specially designed instruction in the areas of math and reading, along with occupational therapy, speech, counseling, paraprofessional support, and consultation from a BCBA. Id. at pgs. 410-411 Prior to Student entering District school refusal was a known issue. In the elementary school at the end of the 2024 school year it is noted that Student had progressed in daily work refusal from a baseline of 42 minutes (measured over the period of 10/19-12/6/23) to 12.9 minutes by June 2024. CE 62, pg. 566. This progress was made after, BCBA was added to Student’s IEP Team and incorporated a behavior plan to address the concerns.
Student’s first trimester progress report for the 2024-2025 school year (December 2024) noted that with the transition to a new school, there was an increase in work refusal when compared with the June 2024 progress report. CE 63, pg. 594. The report notes that Student had a “weekly average of 170 minutes refusing to attend classes and complete work.” Id. This equates to a daily average of 34 minutes (170 average minutes per week/5 days).
There was testimony was that the District had a difficult time filling the role for the paraprofessional support and District used available staff to fill the role until sometime in the fall 2024.
As a result of the increase in school refusal and to develop the annual IEP for 2025-2026 the team met four (4) times from October 1, 2024 to December 17, 2024. When the meetings resulted in the team not coming to an agreement on an IEP this due process complaint was filed.
Parent claims that the Student is being denied a Free Appropriate Public Education (“FAPE”) based on the current District placement and that tutoring and vision therapy are necessary for the Student to make meaningful educational progress. During the period of December 9, 2024, through March 17, 2025, Student participated in core classes for 55% of the time, and participated in all daily expectations for 65% of the time. District’s Supplemental Exhibit (“DE”) 91; Testimony of District witnesses. District argues that the current placement is the least restrictive environment and if Student requires a more restrictive environment the District has other in district options.
Student’s trimester 2 IEP progress report, the first progress report for Student’s current IEP, indicated that was partially demonstrating performance on first IEP goal, school participation, which had a March benchmark of 64% in core classes. DE 107, pg. 551.
District staff provided credible testimony that they believe that these goals are appropriate for Student and that they anticipate that will achieve school participation goal by the end of the current IEP, in December 2025. Testimony of District witnesses. provided credible testimony that, while there may be some set backs, believes that Student can master the school participation goal by the end of the current IEP, in January 2026. Testimony of Ms.. Ms. provided credible testimony that the data indicates that Student is making progress on classroom participation goals. When Ms. was asked if Student was receiving FAPE only attending 56% of class time however testimony was no.
Student is due for triennial reevaluation in December 2025. CE 1, pg. 7. During the December 2024 Team meetings, the Team also proposed to advance Student’s triennial reevaluation. CE 2, pg. 44; CE 80. The rationale for this proposal was to obtain additional information about Student’s classroom attendance, so that the Team had additional information to update Student’s IEP. Testimony of. Parent submitted the response paperwork indicating “partial consent,” but did not identify what evaluations was agreeing with or not agreeing with. CE 80, pg. 115; CE 4, 58-59.
It appears from the Parent’s Closing Statement that is in agreement with the tri-annual evaluations being conducted. It is unclear where the breakdown in communication is moving the tri-annual evaluations forward. What is clear is that the information gained from these evaluations would be helpful in developing the Student’s IEP. These evaluations should take place forthwith.
III. DISCUSSION
Is District’s proposed IEP for the 2025-2026 school year reasonably calculated to provide
Student with a FAPE in the Current Placement
No. Given the testimony of MSEd., BCBA, LBA, the District’s witness, stated that FAPE was not being provided given the amount of time the Student was out of the classroom or “out of area”. While Ms. did testify that would expect it to take time for a new plan to show progress testified that has never seen it take as long as it is in this situation which is now over seven (7) months. The witness testified to the success had the previous school year in the smaller elementary setting with Student making progress with the same behavior. While the other witnesses testimony was found credible the training, education, and experience of Ms. and history with this Student is persuasive in concluding that FAPE in this current setting has not been provided. Ms. further testified that additional current evaluations would helpful. The IEP Team should meet immediately to make a determination on an appropriate placement consistent with this order and the findings.
Parent’s Request for Tutoring Services
Parent’s request for tutoring services are granted to the extent that FAPE has been denied. The IEP Team should make a determination what amount of tutoring is need to compensate the Student for any loss resulting from the denial of FAPE.
Parent’s Request for Vision Therapy
Denied. Parent’s witness, Dr., testified that vision therapy services are prescribed by an optometrist. testified that vision therapy is a “treatment process” designed to assist with proper ocular motor functioning, and that vision therapy services cannot be provided in a school setting. Dr. testified that vision therapy would assist Student in performing at “highest ability,” and to achieve “maximum potential.” Dr. did not have Student’s current IEP or any of prior IEPs and did not observe in the school setting. Dr. affirmed that there was not a current recommendation for vision therapy services. Testimony of Dr. Based on the evidence presented by Dr. there is not a current recommendation for vision therapy and as such the District is not required to provide services other than what is currently in the Student’s IEP. To the extent Parent was seeking reimbursement for past vision therapy the request is denied.
Tri-Annual Evaluations
Parent agrees to evaluations being performed and will cooperate with providing District with necessary written consent within ten (10) days of this decision. District will immediately proceed with reevaluations.
IV. FINAL SUBMISSION AND FINDINGS OF FACT AND RULINGS OF LAW Parent submitted a written closing statement and District submitted proposed findings of fact and rulings of law. Both parties’ submissions have been carefully considered, and portions of those submissions have been incorporated into this Due Process Decision. To the extent that proposed findings and rulings are inconsistent with this Decision, they should be deemed denied.
So ordered.
Date: April 23,2025 /S/ Briana Coakley
Briana Coakley, Hearing Officer
Appeal Rights and Post-Hearing Enforcement
Any party aggrieved by this decision may appeal to a court of appropriate jurisdiction as noted in state and federal laws, including RSA 186-C:16-b, Ed 1123.25, 20 USC § 1415(i); 34 CFR § 300.514 This due process decision shall be implemented by the school district and monitored and enforced by the Department of Education pursuant to Ed 1123.22 and 1125.