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J.I. v CPS, ISBE Case No. 2008-52

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1 ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING JAMES ISAACSON ) ) Student ) vs. ) Case No. 2008-52 ) CHICAGO PUBLIC SCHOOLS ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer DECISION AND ORDER PROCEDURAL MATTERS By letter dated August 10, 2007, the mother of the student requested the appointment of a due process hearing officer to resolve her dispute with the school district. That letter was received by the school district on August 14, 2007 and forwarded to the Illinois State Board of Education. By letter dated August 27, 2007, CAROLYN ANN SMARON was appointed to serve as the hearing officer. On August 28, 2007, the hearing officer issued a Scheduling Order and a Notice of Prehearing Conference. The parties elected to participate in mediation but were not able to resolve the matters in dispute. The parties requested additional time to pursue settlement and on September 27, 2007, the prehearing conference was postponed and the matter continued to October 10, 2007. On October 10, 2007 the parties advised the hearing officer that they had been unable to resolve the dispute and a prehearing conference was then scheduled for October 18, 2007. The prehearing conference was conducted on October 18, 2007. Both parties submitted prehearing conference disclosures. The school district was represented by CINDY HANSEN and the parents were represented by NEAL A. TAKIFF. On December 12, 2007 counsel for the parents filed a Motion to Compel Observation by Dr. Shana Erenberg and Motion to limit the evidence that the school district could introduce at the hearing. Counsel for the school district filed a response. The hearing officer denied the Motion to limit evidence outright by Preliminary Order issued December 14, 2007. The Motion to Compel Observation or, in the alternative, Motion for Summary Judgment was denied by Preliminary Order issued December 27, 2007.
Transcript
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ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING

JAMES ISAACSON ) ) Student ) vs. ) Case No. 2008-52 ) CHICAGO PUBLIC SCHOOLS ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer

DECISION AND ORDER

PROCEDURAL MATTERS

By letter dated August 10, 2007, the mother of the student requested the appointment of a due process hearing officer to resolve her dispute with the school district. That letter was received by the school district on August 14, 2007 and forwarded to the Illinois State Board of Education. By letter dated August 27, 2007, CAROLYN ANN SMARON was appointed to serve as the hearing officer. On August 28, 2007, the hearing officer issued a Scheduling Order and a Notice of Prehearing Conference.

The parties elected to participate in mediation but were not able to resolve the

matters in dispute. The parties requested additional time to pursue settlement and on September 27, 2007, the prehearing conference was postponed and the matter continued to October 10, 2007. On October 10, 2007 the parties advised the hearing officer that they had been unable to resolve the dispute and a prehearing conference was then scheduled for October 18, 2007.

The prehearing conference was conducted on October 18, 2007. Both parties submitted prehearing conference disclosures. The school district was represented by CINDY HANSEN and the parents were represented by NEAL A. TAKIFF.

On December 12, 2007 counsel for the parents filed a Motion to Compel

Observation by Dr. Shana Erenberg and Motion to limit the evidence that the school district could introduce at the hearing. Counsel for the school district filed a response. The hearing officer denied the Motion to limit evidence outright by Preliminary Order issued December 14, 2007. The Motion to Compel Observation or, in the alternative, Motion for Summary Judgment was denied by Preliminary Order issued December 27, 2007.

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The hearing was initially scheduled for January 14-18, 2008. The school district asserted that its contractual obligations with its employees required that the hearing end at 3:30 p.m. every day. Additional hearing days were scheduled for March 11-13, 2008 with a final date of April 4, 2008. All parties received transcripts of the testimony elicited during the hearing. Due to an unforseen delay in the production of the aforesaid transcripts, the final date was extended by agreement to April 11, 2008. Both parties presented closing statement and the record was closed on April 11, 2008.

ISSUES IDENTIFIED AND REMEDIES REQUESTED AT THE PREHEARING CONFERENCE

ISSUE: The school district failed to provide a free appropriate public education

to the student from August 10, 2005 to the present in that the school district did not provide an appropriate and individualized evaluation in a timely manner in order to adequately identify the nature and extent of the student’s disabilities. More specifically, the parents allege that the special education and related services provided to the student during the 2005-2006 and 2006-2007 academic years were not intense enough to provide meaningful educational benefit. In September 14, 20061, parent secured an independent evaluation of the student at Lindamood-Bell and those results were discussed at an Individual Education Plan meeting on October 4, 2006. No additional services were recommended by the school district. In November 2006 the parent retained the services of a private tutor and the parent alleges that as a consequence, the student improved in his academic performance.

The parents allege that the re-evaluation of the student in April 2007 and the

Individual Education Plan developed on April 27, 2007 did not provide the special education and related services with enough intensity to provide the student with educational benefit. The parent alleges that the evaluation completed by the school district was incomplete and inadequate and as a consequence the parent secured private evaluations in the areas of intellect and central auditory processing. On May 21, 2007 the parent provided notice to the school district that the student would be enrolled at the Hyde Park Day School for the 2007 extended school year and the 2007-2008 academic year.

REMEDY SOUGHT: The parent requests a finding that the Individual

Education Plan developed on April 27, 2007 did not and could not provide the student with a free appropriate public education in the least restrictive environment in that the type, level and intensity of services did not and could not provide educational benefit to the student. The parent further requests a finding that the least restrictive environment for the student is a day school for learning disabled students. More specifically the parent requests an Order that the school district be ordered to pay retroactive and prospective

1 Prehearing Conference Report had erroneously identified this date as October 2006. For purposes of clarity the date has been changed to reflect the actual date of testing.

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funding for the student at the Hyde Park Day School for the 2007 extended school year and the 2007-2008 academic year.

In addition, and as educational compensation for the failure to provide a free

appropriate public education in the least restrictive environment during the 2005-2006 and 2006-2007 academic year, the parent requests that the school district be ordered to pay for placement of the student at Hyde Park Day School for the 2008-2009 and reimbursement for the tutoring costs incurred by the parent, reimbursement for the evaluation of the student by Lindamood-Bell, and reimbursement for the private educational evaluations in the areas of intellectual functioning and central auditory processing.

SCHOOL DISTRICT RESPONSE: At all times the school district has

provided the student with a free appropriate public education in that the Individual Education Plans developed for the student provided the sufficient level of services and supplementary aids reasonably calculated to allow the student to make educational benefits in his current placement. The school district asserts that the student has made progress academically and socially. The school district prays for a finding that the student has been provided a free and appropriate public education in the least restrictive environment and Order denying the relief prayed for by the parent. Further, the school district asserts that there is no basis for reimbursing the parent for any of her independent educational evaluations as the parent has not complied with the procedural requirements for securing said reimbursement.

FACTS The recitation of the facts of this case were gleaned by a review of the documents within the joint document book and the hearing officer’s notes as to the facts elicited or facts that could be inferred from the testimony of the school district witnesses, the mother of the student and Dr. Shana Erenberg. I. 2003-2004 Kindergarten The student is a nine year old boy with a history of complex learning disabilities. He was found eligible for special education at the age of three. His mother moved to Norwood Park in 2003 and in September 2003, he started kindergarten. The IEP for that year was created before the student arrived at Norwood Park Elementary School and is beyond the scope of this hearing. On May 13, 2004 the IEP team conducted a three-year reevaluation of the student. The student’s progress or lack thereof and the appropriateness of the three year evaluation are also not before this hearing officer. However, the data created by that reevaluation is the “the baseline data” as it informed every decision made by the IEP team thereafter.

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At the 5/13/04 IEP meeting, the IEP team determined that the student had not meet his language arts or mathematics goals. It was reported that while the student worked very to hard to identify his letters, it appeared difficult for him to memorize the letters. It was reported that he easily became frustrated and then would shut down. It was reported that while he could count to 20 and identify the numbers one through ten with 90% success, the student had limited confidence in this skill. Prior to the 5/13/04 IEP meeting, Joanne Slonim, the school psychologist, completed a psychological evaluation of the student. Ms. Slonim reported that the student’s then kindergarten teacher reported that the student loved to listen to stories and could answer questions about the stories but was easily frustrated and at times seemed to be his own world. Ms. Slonim administered the Wechsler Preschool and Primary Scale of Intelligence-Revised. The student’s standard scores were as follows: Standard Score Performance IQ 94 Verbal IQ 111 Full Scale IQ 103

Ms. Slonim also administered the Wide Range Achievement Test 3 (Large Print Edition Blue Form) (WRAT). The student’s standard scores were as follows: Standard Grade Score EquivalentReading 84 Preschool Spelling 86 Kg. Arithmetic 100 Kg.

Ms. Slonim concluded that the student had average to higher than average cognition in favor of the verbal modality, suspected emotional concerns, academic difficulties and speech anomalies. Ms. Slonim concluded that the student’s academic skills were markedly below his kindergarten peers despite his average to above average congition. For all of the foregoing reasons, she recommended continued special education. Ms. Slonim did not testify and no witness was called by the school district to explain or interpret the foregoing baseline data. Prior to the 5/13/04 IEP meeting, Deborah Koldan, the school district speech pathologist, completed a speech-language assessment of the student. She reported that the student’s developmental milestones were delayed including walking, speech, fine motor skills and toilet training. She reported that the student’s phonological skills were poor and that he had difficulty recalling sound association for letters and identifying beginning sounds in words. Ms. Koldan concluded that the student had a moderate articulation disorder due to verbal apraxia, a moderate to severe receptive-expressive language delay, severe

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delays in short term auditory memory for numbers, words and sentences, auditory discrimination of paired sounds and ability to recall and follow multi-step directions (possible auditory processing), and severe delay in syntactical usage. Ms. Koldan concluded that the student’s auditory difficulties caused the student to have difficulty following directions in class and his poor phonological awareness and auditory discrimination skills caused the student to have difficulty with reading readiness skills, affecting decoding and invented spelling ability. Ms. Koldan recommended continued speech-language services to support the student’s articulation, thinking, writing and langauge skills and recommended monitoring of the student’s word retrieval skills. Neither Ms. Kolden nor any other witness from the school district testified how these deficits impacted the student’s ability to learn to read. At the request of Ms. Koldan, the student’s auditory processing skills were assessed by school district audiologist Barbara Rezabek on May12, 2004. Ms. Rezabek concluded that the screening did not suggest the presence of an auditory processing disorder. She stated that she considered the test results to have fair-to-good reliability due to the student’s moderate articulation disorder, inattentive non-compliant test-taking behavior and the student’s chronological age. Ms. Rezabek recommended certain classroom modifications and accommodations which appear to have been included in the May 13, 2004 IEP. Prior to the 5/13/04 IEP meeting, Jennifer Martin, the school district occupational therapist, completed an occupational therapy assessment of the student. She noted sensory integration issues in her report and stated that the student “presents with low level of arousal typically and low frustration tolerance which can interfer with performance and progression with skills”. Ms. Martin recommended continuation of occupational therapy services. Neither Ms. Martin nor any other witness from the school testified how these sensory integration issues impacted the student’s ability to learn much less learn to read. After reviewing the evaluations, the IEP team concluded that the student remained eligible for special education as a student with a learning disability in that there was a significant discrepancy between the student’s achievement commensurate with his age and ability in the areas of oral expression, listening comprehension, basic reading skills, math calculation and math reasoning. In developing a language arts goal, the student was listed as being able to identify uppercase alphabet letters in order but having difficulty recalling letters and their associated sounds out of order. Specifically the student was reported to be able to identify 13 out of 26 uppercase letters by name and 11 lowercase letters. The special education teacher was to work on this area of need for 125 mpw in the regular education classroom.

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In developing a math goal, the student was listed as being able to rote count to at least 19, could identify 2 coins and knew the value of one. The annual goal was that the student would “increase his math readiness skills including his math vocabulary.” The special education teacher was to work on this area of need for 100 mpw in the regular education classroom. In developing speech goals, the student was listed as having made gains in articulation but needing continued practice of sounds across a variety of contexts. The student was listed as being easily confused on 2-3 step directions and needing to be encouraged to use active listening and ask for clarification or repetition of directions. The student was listed as being able to answer “who, what, where, when” questions and some “why” questions but needing to develop critical thinking skills. The student was listed as using a variety of verbs in spontaneous speech and needing to improve his syntactical speech. The speech pathologist was to work on these areas of need for 30 mpw directly in the regular education classroom and 120 mpw in a separate setting (“cubicle in the resource room”). In developing occupational therapy goals in the area of independent functioning, the student was listed as needing continued practice of scissor and dressing skills. The occupational therapist was to work on these areas of need for 60 mpw in her cubicle in the resource room. There were no goals developed to address the student’s sensory integration issues. The IEP listed a number of modifications and accommodations which should be used to enable the student to participate in the general education curriculum including but not limited to preferential seat, use of visual cues and materials and consultative occupational therapy services for handwriting. The IEP team considered placement in a self-contained special education classroom but rejected that placement option as too restrictive for the student. The parties agreed that the student would be retained in kindergarten for a second year. The IEP team chose placement in a regular education kindergarten classroom with the majority of his special education services to be provided in the classroom. The IEP Summary Sheet listed the following as the student’s learning characteristics:

• difficulty following directions • processes information slowly • has a short auditory attention span • is distracted easily and loses focus/concentration often • delayed copying/printing skills • has difficulty understanding concepts • has difficulty following multiple verbal requests • is frequently distracted by extraneous noises

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• is slow to switch from one task to another The mother of the student raised no objections to any of these findings or recommendations. At this point, all she knew was that her son did not appear ready for 1st grade. The mother did not yet understand the import of the test data and the consequences of the failure to address the student’s sensory integration issues. On May 26, 2004, the IEP team met to discuss the team conclusion that the student’s behavior impeded his learning and as a consequence assessed the functional nature of the student’s crying, pouting, anger, and giving up in the classroom and school wide. The team created a behavior intervention plan that focused on changing the student’s response to teacher’s questions and assignments/task initiation without demonstrating the targeted behaviors. On June 9, 2004 the IEP team reconsidered its position on extended school year services and created goals in the area of speech and occupational therapy. The services were to be provided in a setting with his disabled peers because the student required a smaller setting. II. 2004-2005 Kindergarten At the recommendation of the student’s private speech therapist, the mother sought an independent evaluation of the student’s auditory processing. Dr. Jeannane Ferre’s report was dated Septembr 30, 2004. The student’s test situation behaviors revealed fair listening habits. Eye contact was inconsistent and the student had difficulty remaining seated throughout the session. The student was distracted by objects in the test booth but Dr. Ferre concluded that her results reliably estimated the student’s auditory skills at that time. Dr. Ferre concluded that there was evidence of delayed auditory integration skills, consistent with Ms. Rezabek’s evaluation findings and evidence of weak auditory closure/decoding skills. Dr. Ferre concluded that the student was working harder than his peers under normal listening circumstances to analyze and then integrate auditory information. She believed that the student may at times appear to not hear what has been said to him. Dr. Ferre believed that the student was at risk for listening difficulties in highly reverberant environments, when engaged in group activities, when unfamiliar with vocabulary, when contextual and/or visual cues are limited, or in social communication situations where signal redundancy may be reduced and/or extraneous noise may mask auditory information. Dr. Ferre was of the opinion that the student needed preferential classroom seating and should be in an experiential, multisensory learning environment with a teacher who uses repetition, examples, models, demonstrations and ample visual cues that complement or clarify the target. Dr. Ferre was of the opinion that in order to address goals of improved academic skills, the student needed a systematic, explicit, multisensory phonics based

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program including but not limited to programs from Orton-Gillingham, Lindamood-Bell or Wilson. The mother of the student shared the evaluation completed by Dr. Ferre with the school district speech pathologist, Ms. Kolden and Michelle Buttermore, the student’s case manager shortly thereafter. The kindergarten teacher, Ms. Davis, was also provided a copy of this report. No IEP meeting was called to consider Dr. Ferre’s report. Neither Ms. Kolden nor Ms. Buttermore requested that an IEP meeting be called to discuss Dr. Ferre’s report or her recommendations. Still not understanding the import of the data, the mother also did not request an IEP meeting. On April 27, 2005, the IEP team met to evaluate the student’s progress on his special education goals and to create goals for 1st grade. The student’s progress or lack thereof during his 2nd year of kindergarten is not before this hearing officer. They are recited here to provide historical context for what transpired during the student’s first and second grade experiences. Edris Zerebiny had been the student’s special education teacher for two years at this point. Prior to the 4/27/05 IEP meeting, Ms. Zerebiny assessed the student’s present level of performance regarding sight words , Ms. Zerebiny administered the Peabody Individual Achievement Test-Revised (PIAT-R). The student was found to have the following scores: Standard Grade Score EquivalentGeneral Knowledge 94 K.9 Reading Recognition 88 K.7 Math 107 1.5

Ms. Zerebiny reported the grade equivalent scores to the IEP participants. Ms. Zerebiny testified that she probably used kindergarten norms on the PIAT-R because “that was his instructional level”. Ms. Zerebiny testified that she was not sure if the PIAT-R could be standardized and did not know whether a grade equivalency was a less accurate measurement than a standard score as far as determining progress. The testimony of the parent’s expert, Dr. Shana Erenberg, completely contradicted Ms. Zerebiny. For purposes of creating data, Ms. Zerebiny’s grade equivalent scores are set forth above. The standard scores were provided by Dr. Erenberg at the hearing. Dr. Erenberg was called by and accepted as an expert in the analysis of test data data. Dr. Erenberg testified that the use of grade equivalencies and use of grade equivalencies based on the student’s “instructional level” are problematic. In assessing the student’s ability to read, the hearing officer noted that the present level of performance for the student’s language arts goal on April 27, 2005 more accurately reflect the student’s “progress”:

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after one year of kindergarten, the student could identify 13 uppercase letters by name and 11 lowercase letters, could rote count to at least 19, could identify two coins and could identify the value of one of the coins. After another year of kindergarten the student was reported to be able to identify 20 uppercase letter names and 14 sounds and 17 lowercase letter names and 12 sounds. The student could not blend sounds together.

The math goal for 1st grade focused on the student’s behavior to-wit: the student’s attending behavior impacted his ability to keep pace with the curriculum The PIAT-R results expressed as a grade equivalent of 1.5 was contained within the goal. The annual goal for 1st grade was that the special education teacher would consult with the general education teacher to monitor math progress. The unequivocal testimony from all school district witnesses was that at the end of his second year of kindergarten, the student was still a non-reader, unable to identify all of the letters in the alphabet and unable to identify all of the sounds of the letters in the alphabet. The IEP listed a number of modifications and accommodations which should be used to enable the student to participate in the general education curriculum including but not limited to preferential seating, use of visual cues and materials and consultative occupational therapy services for handwriting strategies. The IEP team added a shared assistant to redirect, prompt or cue the student to maintain focus, to implement the behavior plan, and assist the student with transitions. The IEP team again rejected placement in a self-contained setting as being too restrictive for the student and chose resource support in the 1st grade classroom. The student was to receive 125 mpw of service from the special education teacher in language arts, 240 mpw of services from the speech pathologist in the regular education classroom and 120 mpw of service in her cubicle in the resource room, 30 mpw of services from the occupational therapist in the regular education classroom and 30 mpw of service in her cubicle in the resource room, and 30 mpm of service from the social worker in his cubicle in the resource room. Despite the reports about the PIAT-R, the direct service minutes in math were eliminated, replaced with a consult goal. The IEP team again concluded that the student’s behavior impeded his learning and as a consequence assessed the functional nature of the student’s daily constant movement in small and large groups. The team created a behavior intervention plan that focused on changing the student’s behavior by decreasing movements and/or substituting move appropriate ones and decreasing inappropriate attending times. In addition, the IEP team determined that the student required individualized services from a classroom assistant in the areas of dressing and following basic safety rules and to participate in learning activities because the student required a good deal of adult

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intervention (redirection, lessen frustration, prompts, provide visual cues). The IEP team noted that the student struggled behind his class line and due to his questionable attending, teachers were concerned about his safety. Also, the teachers noted that the student did not remain in his space, sometimes lying across the floor and causing a potential tripping hazard. The IEP team concluded that the student required extended school year services to maintain his current skills, with the services to be provided in a setting with no non-disabled peers because the student required a smaller setting. Again, the mother interposed no objections, not then realizing that the data did not support the school district’s assertions that her son was meeting his goals and making progress. On May 31, 2005 Barbara Rezabek reassessed the student’s auditory processing skills. Her report contained a specific reference to the auditory processing assessment completed by Dr. Ferre in September 2004. It is not clear from the document whether Ms. Rezabek ever reviewed Dr. Ferre’s report. Ms. Rezabek again concluded that the student was not eligible to receive services for students who are deaf/hard of hearing and suggested certain accommodations and modifications that appear again in the student’s IEP for 1st grade. III 2005-2006 1st grade The student was placed in Amy Selby’s classroom for 1st grade (2005-2006). Ms. Selby’s memory regarding that school year was not clear. She believed that the student had made progress in academics and behavior in 1st grade testifying that “I don’t remember everything specifically from that time, but I do remember just feeling that he had come a long way in reading and that his attitude had really changed about reading from the beginning of the school year.” Dr. Ferre’s completed a second independent evaluation of the student’s central auditory processing skills on March 21, 2006. She reported that the student continued to exhibit self-distracting behaviors during testing including looking around the test booth, impulsive responses and squirming in the chair and concluded that the results underestimated the student’s auditory skill level. Central auditory testing indicated improvement across all tasks. Auditory decoding sills taxed by degraded speech tests had reached age appropriate levels. Performance on tasks taxing auditory integration skills also were significant improved with scores within normal limits. Dr. Ferre concluded that the improvement in the student’s central auditory processing skills were likely due to a combination of maturation and effective intervention todate. She did, however, find that the student was at risk for secondary difficulties in related language learning skills that depend on intact auditory processing.

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On March 21, 2006 at the end of the student’s 1st grade year, the IEP team met to evaluate his progress on his special education goals and to create new goals for 2nd grade. Michelle Buttermore (case manager), Edie Zerebiny (special education teacher), Amy Selby (1st grade teacher), Jennifer Martin (occupational therapist), the social worker, Deborah Koldan (speech pathologist), and the mother were in attendance. To determine the student’s present level of performance, Ms. Zerebiny administered the Gates MacGinite Reading Tests – 4th Edition Pre-Reading Form S. The student was found to have the following scores: Stanine Grade EquivalentLiteracy Concepts 7 Oral Language Concepts 5 Letters/Letter Sounds 4 Correspondence Listening (Story Comp.) 6 Total 4 1.3

Mrs. Zerebiny used Spring of Grade 1 norming data. Ms. Zerebiny reported that she attempted to administer the Gates-MacGinitie Reading Tests – 4th Edition but testing was discontinued due to student frustration with item difficulty level. Dr. Erenberg contradicted Ms. Zerebiny testifying that Ms. Zerebiny had violated the standardization of the test – a test must be normed based on the student’s age. Ms. Zerebiny believed that the student had made progress in 1st grade because he scored 27 out of 30 on the Gates McGinitie test. She had not administered the test at the beginning of the year and could not explain the basis for her opinion that the student’s scores on the Pre-Reading Gates McGinitie test indicated improvement. At this point in time, the IEP team had the baseline data from 2004, the data from the administration of the Gates-McGinity Pre-Reading test by Ms. Zerebiny and the data (or lack thereof) from the abandoned Gates-McGinity Reading test. Ms. Zerebiny testified that she scored the Gates-McGinity test using grade level norms. As previously stated, the test should have been normed to the student’s age, not grade level. At that point, the decisions made by the IEP team were premised upon baseline data from 2004 and inaccurate data from Ms. Zerebiny. Based on the foregoing, the IEP team developed the following goals for the student in 2nd grade:

• Language Arts/Phonics: Jimmy will identify initial consonant blends in words and apply his knowledge of blends to generate rhyming words

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• Language Arts: Jimmy will increase his ability to apply word analysis skills to identify words: CVCE decoding, contractions with will verbs with –s and –ing (90 mpw)

• Speech: continue to improve listening skills while repeating sentences,

directions, and answering questions from short paragraphs read to him, given one repetition, 4/5 attempts (10 mpw)

• Speech: will reference writer’s dictionary and will continue to develop

phonological awareness skills for short vowels and consonants, with 70-80% success

• Speech: continue to improve oral expression and word retrieval skills while

participating in activities that require him to be more succinct with word, given word retrieval cues and guided questions, 3/5 attempts (20 mpw)

• Speech: continue to develop age appropriate syntactical skills for verbs, given

cues, with 70% success (20 mpw)

• Speech: continue to improve speech intelligibility by self-correcting apraxic errors in words and sentences with 70% success (20 mpw)

• Occupational Therapy: Jimmy will construct using several media and

participate in typing activities for greater independent in classroom activities (30 mpw)

• Occupational Therapy: Jimmy will complete journal and simple printing

assignments with cuing as needed, adaptations and modifications as needed (30 mpw)

• Social Work: Jimmy will continue to discuss feelings in session to improve

anxiety, frustration tolerance and school performance by 80% (30 mpm) The first academic goal in reading indicated that the student was to identify consonant blends in words and apply his knowledge of blends to generate rhymming words. Dr. Erenberg correctly pointed out that there is no indication at what percentage the student was expected to perform this skills nor did the goal indicate how many rhymming words the student had to generate to meet the goal. Dr. Erenberg testified that the second academic goal, in the area of word analysis, also did not indicate how much the student had to increase his word analysis skills and there was no measurable present level of performance from which to compare his abilities in the quarterly benchmarks. The IEP team saw no need to include a math goal because Ms. Selby had advised Ms. Zerebiny that the student was doing “fine” in math. Thus, the student’s consult goal in math was eliminated. The data, adjusted for proper norming, did not support these statements by Ms. Selby.

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The IEP listed a number of modifications and accommodations which should be used to enable the student to participate in the general education curriculum including but not limited to preferential seating, use of visual cues and materials and consultative occupational therapy services for handwriting strategies. The IEP team again added a shared assistant to redirect, prompt or cue the student to maintain focus, to implement behavior plan, and assist the student with transitions. The IEP team again rejected placement in a self-contained setting as being too restrictive for the student and chose resource support to address the student’s deficits in language arts. The student was to receive 90 mpw of service from the special education teacher in the resource room, 45 mpw of services from the speech pathologist in the regular education classroom and 45 mpw of service in her cubicle in the resource room, 30 mpw of services from the occupational therapist in the regular education classroom and 30 mpw of service in her cubicle in the resource room, and 30 mpm of service from the social worker in his cubicle in the resource room. The IEP team again concluded that the student should receive the services of a paraprofessional because the student required intervention/support to redirect, prompt or cue and encourage task completion, especially for activities to be completed independently rather than in small or large groups. The IEP team concluded that the student required extended school year services to maintain his current skills, with the services to be provided in a setting with no non-disabled peers because the student required a smaller setting. While Ms. Selby is apparently a gifted teacher, it is uncontroverted that at the end of 1st grade the student was still a non-reader. While the IEP team apparently concluded that the student had met his goals and objectives for 1st grade, it is uncontroverted that at the end of 1st grade the student’s case manager knew that the student was still a non-reader. At this point, it would appear that the mother was becoming concerned that the glowing reports at Norwood Park Elementary School were at odds with her experiences with the student. The mother of the student testified that at the end of 1st grade, the student could not read menus, could not read signs, could not read the instructions to games – in short, was a non-reader. Ever polite, the mother expressed no objections at the end of the 4/21/06 IEP meeting. The student was placed in the 2nd grade classroom of Fitz Crame. There were 23-24 students in the classroom. IV 2006-2007 2nd grade Continuing to investigate the student’s inability to read, the mother had the student’s reading skills assessed at the Lindamood-Bell testing center on September 14, 2006. By

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letter dated October 4, 2006 the parent summarized those test results and asserted that her son could not read and was still at the stage of acquiring basic phonemic awareness skills such as associating sounds with vowels and letter blends. The parent requested substantial time in intense one-on-one reading instruction based on an Orton-Gillingham, Lindamood-Bell or other research-based systematic reading program. The parent requested an IEP meeting to discuss the situation. That IEP meeting was held on October 4, 2006 and was attended by the special education teacher, Edris Zerebiny, the occupational therapist, Jennifer Martin, the speech pathologist, Deborah Kolden, the assistant principal in the absence of the case manager, and a representative from Lindamood Bell. There was no one at this IEP meeting who could understand the significance of the testing and interpret the results for the rest of the IEP team. None of the school district participants who attended that meeting felt competent to interpret the results of the Lindamood Bell testing. All of them testified to the expertise of the school psychologist but she did not attend the meeting. Apparently, no one suggested that the IEP meeting be rescheduled so that Ms. Slonim could attend. By all reports, the meeting lasted fifteen minutes. The mother of the student testified that there was no discussion of the test scores. There were no comments made by the IEP participants questioning the test conditions or the name of the person who administered the tests. The members of the IEP team in attendance apparently believed that the Lindamood Bell testing was consistent with school district data. At this point, the mother was starting to realize that the data was inconsistent. None of the IEP participants questioned the validity of the tests. Despite pleas for changes, no changes were made in the student’s IEP for 2nd grade. At the conclusion of the meeting, the mother testified that she was shocked and frightened, stating that she felt a bit,

like Dorothy in the Wizard of Oz when the curtain is pulled aside and she sees, you know, there isn’t a wizard. There’s a man behind the curtain, just with some knobs and levers. But there wasn’t any---any response that Jim was at zero in reading, after three full years of Norwood Park School; and no one was blinking. No one was suggesting any alternatives….

Dr. Erenberg compared the Lindamood Bell testing data with the school district data. The student’s standardized scores on the reading portion of the WRAT had dropped from an 84 to a 69. In spelling, the student’s score dropped from an 86 to a 68. In math, the student’s score had dropped from 100 to 83. After the IEP meeting on October 4, 2006, the mother testified that she hired Marcia Weiss, a multi-sensory reading tutor to work with the student four days a week after school. She also retained the services of a Barbara Resnick, an educational consultant, to visit Norwood Park Elementary School and make recommendations for the student’s program. Shortly before the Christmas 2006 break, the mother of the student provided the school district with Ms. Reznick’s written recommendations. Ms. Resnick had

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reviewed previous testing and concluded that the student had significant expressive language delays and required a curriculum that would focus on his individual needs and allow him to maximize his strengths in cognitive ability and receptive language while compensating for his weaknesses in expressive language and fine and gross motor skills. She recommended a learning environment that was sequential and systematic and provided visual, auditory, kinesthetic and tactile pathways in instruction. Ms. Resnick recommended a multisensory approach in reading that included lessons in phonemic awareness, decoding, spelling, drill and reinforcement of skills e.g. Lindamood-Bell, Wilson, Project Read. On December 11, 2006 the mother, still in search of information, secured an independent intellectual evaluation from Dr. Leslie Baier Cohen, a licensed clinical psychologist. The student was referred for evaluation by Barbara Reznick, the parent’s educational consultant. Cognitive testing revealed overall intellectual abilities in the average range. Relative to overall abilities, Dr. Cohen found a distinct weakness on tasks assessing auditory working memory. Administration of the Wechsler Intelligence Scale for Children-4th Edition (WISC-IV) revealed the following scores: Standard Score Description Full Scale IQ 95 Average Verbal Comprehension Index 100 Average Perceptual Reasoning Index 110 High Average Working Memory Index 74 Borderline Processing Speed Index 91 Average

Dr. Cohen found relative weaknesses in tasks assessing auditory working memory, sequencing, vocabulary, expressive language and rapid graphomotor speech and suggested that the difficulties might impact the student’s performance relative to reading, oral expression, direction following, keeping the sequence of instructions in proper order and handling multiple information inputs. The school district argued in its closing statement that Dr. Cohen does not hold a certification as a school psychologist and is not on the Illinois State Board of Education’s approved list of independent evaluators. The school district apparently relies on Section 226.850 of the Illinois Administrative Code. There is no requirement that Dr. Cohen be certified as a school psychologist nor does it state that only individuals on the “approved list” can complete evaluations of the student. Clearly, a hearing officer can make an independent determination whether to accept or reject the opinions of a licensed clinical psychologist. V April 27, 2007 – The re-evaluation

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On April 27, 2007, at the end of 2nd grade, the IEP team met to evaluate the student’s progress on his special education goals and thereafter determine whether the student remained eligible for special education on a going-forward basis. All of the school district members of the IEP team were present including the student’s classroom teacher. The mother attended the meeting accompanied by Marcia Weiss (student’s private tutor) and Barbara Reznick (her educational consultant). The IEP indicates that the school district again reported that student met his two language arts goals, his five speech goals, his two occupational therapy goals, and his social work goal. Edris Zerebny prepared a review of the student’s progress on his language arts goals. She noted that the student continued to have memory weaknesses during his reading activities e.g. the student would decode a word in one sentence but if the same word appeared in the next paragraph, the student would not necessarily recall the word; the student can describe the decoding rules, but requires additional practice in applying them in his daily reading activities. Prior to the 4/27/07 IEP meeting, Ms. Zerebny administered the Gates-MacGinite Reading Tests, Fourth Edition, Level BR (Beginning Reading), Form S. Using Winter Grade 2 norms, the student’s achievement fell within the following stanines: Stanine Initial Consonants/Clusters 1 Final Consonant/Clusters 1 Vowels 1 Basic Story Words 1 Total 1

Again, Ms. Zerebiny normed the test to what she believed to be the student’s instructional level - first grade. Ms. Zerebiny testified that because the student had been unable to take the beginning reading version of the test in 2006 but was able to take that version in 2007, the student had made progress. Ms. Zerebiny also administered the Peabody Individual Assessment Test-Revised (PIAT-R). Again the student’s scores were reported in grade equivalents but Dr. Erenberg was able to provide the student’s standard scores: Standard Grade Score Equivalent Reading Recognition 80 1.4 Reading Comprehension 79 1.3

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Mrs. Zerebiny recommended 225 minutes per week of special education instruction, presumably focused on the student’s reading. Dr. Erenberg reviewed the PIAT-R test protocols from the assessments given by Mrs. Zerebiny in 2005 and 2007. She testified that she examined the raw data and was able to convert the grade equivalency scores to standard scores. Dr. Erenberg testified that in 2005, the student’s standard score in word recognition was 88 and the student’s standard score in reading comprehension score was 86. These scores support her conclusion that in 2005, the student was not reading to be able to comprehend. In 2007 the student’s standard scores drop – 80 in word recognition and 79 in reading comprehension. Dr. Erenberg testified that these standard scores show that the student made no progress over that two-year period. Joanne Slonim completed her Psychological Evaluation on March 23, 2007. She described Dr. Cohen’s impressions and findings as follows:

friendly, engaging child with language difficulties evidenced (immature syntax, fluency and articulation as well as problems with word retrieval) His overall activity level was greater than the norm. He was fidgety at times; he stood up to complete work; and he was sometimes sidetracked from the task at hand. He was easily frustrated when unable to complete a task; yet, he was easily redirected.

Ms. Slonim interviewed the student’s teacher and was told that the student was showing improvement in behavior as well as in academics yet continued to lag behind in reading and spelling. Ms. Slonim interviewed the student’s mother and was told that the student was currently taking Lexapro (mood management), Concerta (attention/activity) and Lamictal (impulse control). Ms. Slonim administered the Wechsler Individual Achievement Test-II and recorded the following scores: Standard Score Numerical Operations 97 Math Reasoning 88 Math Composite 91 Word Reading 68 Reading Comprehension

The reading comprehension subtest could not be completed due to the student’s limited sight vocabulary. The Word Reading and Reading Comprehension subtests were administered by Ms. Zerebny and the results included within Ms. Slonim’s evaluation.

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Ms. Zerebiny was unable to complete the reading comprehension subtest. Apparently no one noted the significance of the student’s inability to complete that subtest. Ms. Slonim administered the Developmental Test of Visual Motor Integration and the student received a standard score of 10. Ms. Slonim described that score as borderline and noted that the student experienced difficulty with directionality and seeing the whole on more complicated figures. Ms. Slonim described the student as follows:

an anxious, loquacious, active boy with a low frustration tolerance. He alternatively sat and/or stood during the evaluation. More difficult tasks seemed to agitate the boy. He appeared to cooperate to the best of his ability in the structured testing situation; therefore, test results are considered representative of his ability at this time. Unstructured figure drawings looked immature. Geometric figures suggest visual motor perceptual problems...Prior psychological intelligence testing indicated overall average ability and the results of this psychological is in general agreement.

Ms. Slonim administered the BASC Parent and Teacher Rating Scales. The parent’s responses indicated that the student was at risk for withdrawal and anxiety. The teacher rating scales indicated the following clinical scales were also within the At Risk range: hyperactivity, internalizing problems composite, depression, school problems composite, learning problems, behavior symptom index, study skills and functional communication. Additionally, atypicality fell within the Clinically Significant range. Ms. Slonim stated that prior and current psychological test findings were in general agreement and revealed an anxious boy with overall average cognition, an irregular learning patterns, suspected emotional concerns and academic difficulty and a need for continued special education services. Stephen Brehm completed a social assessment of the student. Mr. Brehm interviewed the student’s 2nd grade teacher, Fitz Crame, who reported that the student had demonstrated improvement in showing effort (work ethic) and his socially inappropriate behaviors had decreased markedly. Mr. Crame also reported that the student was well below grade level in language arts and articulation and performed better in math when the assignment were read to him. Mr. Crame testified that the student was reading at the 1st grade level at the beginning of 2nd grade and at the end of 2nd grade, the student was reading more toward the later 1st grade level. Mr. Crame also testified that the student was experiencing behavioral breakdowns in the morning when he was receiving reading instruction. Both parents reported that the student could be obsessive about things, a viewpoint echoed by Mrs. Zerebny. After concluding that the student demonstrated a social-emotional disorder that negatively impacted the ability to benefit from the educational program (student displayed significant self-esteem issues that negatively

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impacted his academic functioning), Mr. Brehn recommended continued social work services to assist the student with self-esteem, self-awareness and self-advocacy issues. Prior to the 4/27/07 IEP meeting, Ms. Kolden completed a speech-language assessment summary. She considered the auditory processing assessment by Dr. Jeanane Ferre in September 2004 and March 2006. She considered the Lindamood-Bell reading assessment in September 2006. She considered Dr. Leslie Baer Cohn’s evaluation in December 2006. She agreed that these reports had significant findings. Although the student was then completing 2nd grade, Ms. Kolden reported that the student’s reading and writing were approximately at the 1st grade level. She reported that the student had difficulty with decoding, reading fluency and reading comprehension. She reported that the student’s ability to use invented spelling for writing was impaired by decoding difficulties. She reported that the student had poor memory skills affecting spelling and sight word recall. She reported that the student could write simple sentences with some spelling assistance but it was a laborious process. She reported that when dictating a story idea, the student would produce a much longer product with an excellent imagination but he required assistance with editing for syntax, sentence combining and organization. Ms. Kolden interviewed the student and reported that the student continued to demonstrate good concept knowledge and a good imagination for story idea. She reported that the student had poor self-monitoring skills for correcting his articulation/syntactical errors and had difficulty with word retrieval and organization/formulation of spoken message, using an excess number of words to convey his idea. Ms. Kolden concluded that the student had receptive language skills within the average to above average range and the student’s oral expression demonstrated difficulties with syntax, word retrieval and organization/formulation of spoken messages. Ms. Kolden administered a variety of testing instruments: Standard Score Expressive Vocabulary Test (word retrieval delays noted frequently) 114 Peabody Picture Vocabulary Test-III 104 Comprehensive Assessment of Spoken Language 113

Ms. Kolden administered the Test of Auditory Processing Skills which resulted in the following scaled scores: Scaled (means=10) Score Stanine Word discrimination 1 1

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Phonological segmentation 4 1 Phonological blending 11 5 Number Memory Forward 10 5 Word Memory 6 2 Sentence Memory 2 1 Auditory comprehension 12 6 Auditory reasoning 11 5 Phonological Index: Standard Score: 77

Ms. Kolden recommended continued speech/language services focused on self-monitoring/self-correcting articulation/syntax; word retrieval (initial phoneme/grapheme cue, imagery, synonym development, word association, reflective pausing, syllabication, rehearsal); short-term auditory memory (memory pegs, chunking, rhyming, paraphrasing, categorization, listening for key words, imagery, graphic organizers) and improving structure of spoken/written message use (use of a variety of sentence types, use of paraphrasing, critical thinking questions). Prior to the 4/27/07 IEP meeting, Jennifer Martin prepared an occupational therapy assessment of the student. She administered a variety of assessments including the Beery-Buktenica Developmental Test of Visual Motor Integration (VMI). 2007 2004 Standard Standard Score Score VMI 73 95 Visual Perception 85 97 Motor Coordination 99 91

The VMI is a developmental sequence of geometic forms to be copied with paper and pencil. On the Visual Perception, the student was required to match shapes. On the Motor Coordination, the student was required to trace forms without going outside double-lined paths. Ms. Martin concluded that the student had visual motor and visual matching weaknesses. In summary, Ms. Martin recommended continued occupational therapy in the school setting focused on cursive handwriting acquisition and keyboarding skills with on-going consultation with classroom teachers and staff regarding independence with organization and strategies to promote optimal arousal for learning. There was no goal to address the student’s sensory integration issues and there was no testimony that the IEP participants were made aware of the signifiant drop on the various subtests. The IEP team concluded that the student’s educational difficulties could not be attributed to a lack of adequate instruction in reading including the essential components of reading instruction which include explicit and systematic instruction in phonemic awareness, phonic, vocabulary development, reading fluency including oral reading skills and reading comprehension. The IEP team concluded that the student had a significant

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discrepancy between his achievement commensurate with his age and ability in written expression, basic reading skill, reading comprehension, and math reasoning. The IEP team concluded that the student still had a speech/language impairment. The IEP team developed the goals based upon an assessment of the student’s then level of academic achievement as follows:

Language Arts/English/Reading premised on statements that the student can identify the letters of the alphabet and has learned letter-sound associations for the consonants and short vowels. The student can decode CVC words and recognize l, r and s blends in initial positions in a word. The student can recognize initial diagraphs sh, th, ch and wh. The student can read words with a and ing endings at his instructional level (1st grade). Goal: the student will increase his ability to apply word analysis skills to identify unfamiliar words in his daily reading activities. The student will increase his ability to decode words with r controlled vowel sounds. 105 mpw in the regular education classroom. Language Arts/English/Reading premised on statements that the student was receiving reading instruction at a first grade level. Goal: the student will improve his ability to read text fluently. 120 mpq in the regular education classroom. Language Arts/English/Reading premised on statements that the student can identify the letters of the alphabet and has learned letter sound associations for consonants and short vowels. Goal: the student will increase his ability to apply word analysis skills to identify unfamiliar words in his daily reading activities and increase his ability to decode words with the final consonant blends. 105 mpw in the regular education classroom. Language Arts/English Reading premised on statements that the student can write a simply sentence with awareness of capitalization and punctuation; students attempts to sound out words but needs assistance with spelling; student can dictate story but requires help to organize content and correct the syntax. Goal: the student will compose a well-organized composition at least three paragraphs in length that include clear topic sentences as well as appropriate supporting sentences. 90 mpw in a separate classroom. Math Reasoning premised on a 22 statistically significant discrepancy on the Wechsler Individual Achievement Test-II. Goal: student will increase his ability to demonstrate understanding of math concepts and applications. The student will increase his ability to solve number story problems involving operations of addition, subtraction and multiplication as well as money concepts. 225 mpw in a separate classroom. Speech goal focused on articulation. 25 mpw in a separate classroom. Speech goal focused on word retrieval. 25 mpw in a separate classroom. Speech goal focused on syntactical usage: 20 mpw in the regular education classroom Speech goal focused on clarity of oral expression: 20 mpw in the regular education classroom. Occupational therapy goal focused on cursive writing. 30 mpw in the regular education classroom

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Occupational therapy goal focused on keyboarding as an alternative to writing. 30 mpw in the regular education classroom. Social work therapy goal focused on self-acceptance, self-advocacy and self expression. 30 mpw in a separate classroom.

Ms. Zerebiny testified that the language arts goals did not contain baseline data for the student’s present level of performance. While Ms. Zerebiny believed that reading fluency was an important goal for 3rd grade, she testified that the goals was broad and unmeasurable. There was no goal in the area of reading comprehension despite data that the student could not complete the reading comprehension subtest on the WRAT and the speech pathologist’s findings that the student had difficulty with reading comprehension. There was no goal in the area of spelling despite the student’s drop in achievement on the WRAT in spelling. The math goal did not contain a present level of performance that related to the goal. Instead it listed a statistically significant discrepancy on the Wechsler Individual Achievement Test. Neither Ms. Zerebiny nor Mr. Crame understood the meaning of the term “significant discrepancy”. The IEP listed a number of modifications and accommodations which should be used to enable the student to participate in the general education curriculum including but not limited to preferential seating, use of visual cues and materials and consultative occupational therapy services for handwriting strategies. The IEP team again added a classroom assistant to redirect, prompt or cue the student to maintain focus, to implement behavior plan, and assist the student with transitions. The IEP team again recommended placement in a regular education 3rd grade classroom with pull-out resources services. At that point, it was rumored that there would be 30-40 students in that classroom. The student was found to require extended school year services for 4 weeks for the following specific reasons: Integral part of the student’s ability to retain or acquire a skills. Communication and language skills are at a critical point where ongoing work to develop communication and memory skills are essential in the student’s educational progress. Again, the extended school year services would be provided in a setting with his disabled peers. The IEP Summary Sheet listed the following as the student’s learning characteristics:

• difficulty following directions • processes information slowly • has a short auditory attention span • is distracted easily and loses focus/concentration often • spells poorly • has trouble putting ideas on paper

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• delayed copying/printing skills • has difficulty understanding concepts • has difficulty following multiple verbal requests • is frequently distracted by extraneous noises • in disorganized and often misplaces things • has difficulty copying from the board.

The mother of the student testified that she brought two individuals to the IEP meeting on April 27, 2007 – the student’s tutor, Marcia Weiss, and her educational consultant, Ms. Reznick. With the exception of the principal of Norwood Park Elementary School, none of the other IEP participants could recall their names or if they had said anything. Dr. Meuer testified that the mother’s concerns were noted but there are no notes or statements attributed to any of them in the IEP other than the December 2006 report from Ms. Reznick. The mother testified that she asserted that the student could not read and required a more intense placement. She specifically requested a private day placement. She specifically requested Hyde Park Day School. None of the other IEP participants could recall anything said by the mother or even if she had said anything. None of the other IEP participants could recall anything said by Ms. Reznick or even if she had said anything. Inexplicably Ms. Reznick’s December 2006 recommendations were attached to the 4/27/07 IEP. Dr. Meuer, on the other hand, was one of the last school district witnesses called to testify. He had sat in the hearing room for a majority of the testimony. Dr. Meuer recalled that the specific day school was mentioned but he could not recall who raised the issue of Hyde Park Day School. He testified that the mother’s concerns were “noted” but the IEP contains no such notations. Believing that the 4/27/07 was an offer of more of the same, the mother unilaterally placed the student at Hyde Park Day School with proper notice to the school district. As previously stated, Dr. Shana Erenberg testified on behalf of the mother of the student. Dr. Erenberg has a doctorate from Northeastern University in communication sciences and disorders in the field specifically of learning disabilities and her doctorate has a neuropsychological component. Dr. Erenberg also holds a masters degree in special education and a bachelors degree in elementary and special education from Northeastern University. She is certified to teach elementary and special education. Dr. Erenberg has worked as a consultant to numerous schools including this school district, private schools, suburban public schools, both here and in many cities across the country. She has provided teacher training on aspects of curriculum development, differentiated instruction, best practices in special education, remediation, classroom structure, and inclusion. In her private practice Dr. Erenberg conducts diagnostic testing for students with learning, attention and behavior disorders and then provides recommendations regarding school programs for students with learning disabilities and recommendation for remediation of those disabilities.

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The parties were in agreement that Dr. Erenberg is an educational expert including an expert on psychoeducational diagnostic evaluations of students with learning disabilities. In addition the parties were in agreement that Dr. Erenberg is an expert in the analysis of test data regarding academic and cognitive profiles and the presence and nature of learning disabilities. The parties could not reach agreement as to whether Dr. Erenberg is an expert regarding school programs for students with learning disabilities and the remediation of those disabilities. Dr. Erenberg testified that she has testified in other administrative proceedings and has been certified as an expert regarding school programs for students with learning disabilities and remediation of those disabilities. Based upon her experience working with public school districts, based upon her experience as a diagnostician, based upon her experience making recommendations and her background as a teacher, the hearing officer ruled that she would accept Dr. Erenberg as an expert regarding school programs for students with learning disabilities and remediation of those disabilities and would accept the parties agreement that Dr. Erenberg is an expert on psychoeducational diagnostic evaluations of students with learning disabilities and is an expert in the analysis of test data regarding academic and cognitive profiles and the presence and nature of learning disabilities. Dr. Erenberg was credible and persuasive. She was the only qualified professional who testified concerning the student’s specific diagnostic profile and deficits as revealed in his 2004 reevaluation and identified the appropriate academic instruction that would address those deficits and provide the student with educational benefit. Dr. Erenberg reviewed the records and evaluations from the student’s Spring 2004 triennial evaluation. When asked for her diagnostic impressions of the student after her review, Dr. Erenberg testified as follows

All right, well, he is a child of average to above average intelligence, with some significant scattering noted in his sub-test scores, which is indicative of a profiled learning disabilities. Based on the Wide Range Achievement Test 3, he is scoring significantly below average in reading, borderline scores in spelling, and in the average range for arithmetic. His visual motor skills score-wise are slightly below average; but the report of the individual that conducted that test indicates that his skills were lagging markedly below his kindergarten peers, his fine motor and his motor skills. He’s referred to as an immature child, severe expressive and receptive language problems, problems with auditory processing and discrimination, which were very, very significant. In terms of language development, auditory memory is severely impaired and word discrimination is severely impaired. So those are things that are going to affect listening, comprehension skills, phonemic awareness, reading skills as you move into first grade.

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His test of auditory perceptual skills overall is below average; and the areas that are significantly below, again, are things like auditory memory, both for sentences and words and numbers, and again auditory processing delays. And the comments of the individual that conducted that test include things like word finding delays, mild to moderate delays in thinking and reasoning skills... In Jimmy’s case the problems that he was experiencing at this time have to do with several factors: one is an auditory decoding. So when you are speaking to him he doesn’t – he hears what you’re saying...but he doesn’t process everything you’re saying. So he’s going to miss important words, he’s going to miss important concepts. The rate at which he processes auditory information is off...He’s lacking in what we cal phonemic awareness, which is again due to the problem he’s having with auditory discrimination...Jimmy, according to these records, was having great difficulty with auditory discrimination. The auditory processing, the auditory word memory, the auditory discrimination – they impact on the ability to develop phonemic awareness skills...you need to have adequate phonemic awareness skills to move forward in terms of reading, particularly with conventional reading methods that are in use today. For Jimmy all of those problems combined mean that he’s not going to learn the sounds of the letters, he’s not going to be able to learn the sight words, he’s not going to be able to remember the rules that he’s being taught in terms of the reading, he’s not going to pick up the reading.

Dr. Erenberg also testified that the student’s has sensory integration problems: Dr. Erenberg described the impact of the deficit:

the issue is how well Jimmy can process information that’s coming at him from his senses and how well he reacts to the over stimulation of noise in a classroom, background noises, visual stimulation, tactile stimulation, how his clothes are feeling on him at the time, how his fingernails are bothering him...the sensory integration deficit ...impact his ability to attend, to stay focused and to pay attention, his ability to sit in his chair for any length of time, his writing skills, his frustration tolerance.

At the hearing, the student’s 2nd grade teacher, Fitz Crame, testified that the student was reading at the first grade level at the beginning of 2nd grade and reading at the ending first

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grade level at the end of 2nd grade. Based on Dr. Erenberg’s review of the data, Mr. Crame is mistaken. Dr. Erenberg reviewed the testing done at Hyde Park Day School in June 2007 within less than thirty days after Mr. Crame’s glowing assessments of the student’s reading progress. For example, on the Wilson Reading Assessment (WADE), the student recognized 38 out of 120 sounds, decoded 12 out of 120 phonetically regular and decodable words e.g. cat, and decoded 8 out 60 phonetically irregular nonsense words, and could recognize only 4 out of 100 sight words. After her review of all of the reports and evaluations, Dr. Erenberg concluded that the student had not made the progress that has been reported by the school district – that the student is not reading at the 2nd grade level, that he’s not really reading well at a first grade level and he’s pretty much at a pre-primer or pre-reading level, not really reading words but recognizing a handful of sounds and maybe a sight word or two or three but not enough to support functional reading at 1st grade. Dr. Erenberg testified that the student could not learn to read utilizing conventional methods. Typically children apply their knowledge of correct syntax to predict what a word might be, what a sentence might say, or use picture cues to help them understand. The data shows that the student does not have the syntax rules in place. Consequently the student is not able to use the meaning that is carried in syntax and the strategies of syntax in order to help him with his reading skills and communication. Dr. Erenberg testified that the student required and still requires a multisensory approach to instruction across all areas:

…this is a child that, again, is average to above average intelligence. He has very significant receptive and expressive language delays. He has problems with auditory processing. He’s lacking phonemic awareness skills. He has problems with fine motor development. He has verbal apraxia. He has sensory integration problems. He has attention problems. And a child that has this severe and complex of a profile of learning disabilities is not going to be able to pick up reading, writing, spelling by conventional curriculum, by conventional first grade methods, and possibly, likely not even by conventional remediation methods.”

Dr. Erenberg testified that the student requires both bottom up multisensory reading instruction e.g. Orton Gillingham and its progeny and top down multisensory instruction e.g. Fernald. The student needs the Fernald approach because of his significant auditory processing issues and expressive language deficits. However, Dr. Erenberg testified that the student actually requires multisensory instruction i.e. the ability to use a wide variety of multisensory techniques across the curriculum and across content areas. Edris Zerebiny testified that she uses one modality at a time and characterized this approach as multi-sensory instruction. Dr. Erenberg testified that Edris Zerebiny was describing

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intrasensory instruction and appeared not to understand the concept of multi-sensory instruction. Dr. Erenberg was asked to explain the difference between a standard score and a grade equivalency score. She testified that a standard score is a normed score, with 100 being your average. The score is a very stable score statistically and can be used to make comparisons across tests. In contrast, grade equivalencies are not reliable statistically to show growth over time. Edris Zerebiny testified that she normed her assessments of the student based on his grade level. Dr. Erenberg testified that there is a standard protocol to handle students who have been retained – you use the test norms based on their age, not their grade level. Dr. Erenberg reviewed the results of the various Gates-MacGinitie Tests administered by Mrs. Zerebiny in 2006 and 2007. Dr. Erenberg testified as follows:

Q. What do the results of these three tests suggest as to Jimmy’s ability to read? A. He can’t read. The bottom line is that when you look at the Gates-MacGinitie tests in March of ’07 and he is in the first stanine for beginning reading skills and this is a grade two and he’s already been retained a year, so that’s already further behind, he cannot read. He is, effectively, a non-reader.

Dr. Erenberg reviewed Ms. Zerebiny’s progress report dated April 2, 2007and noted that Ms. Zerebiny had normed the Gates-MacGinitie Tests to the student’s instructional level which was 1st grade. Dr. Erenberg testified that Ms. Zerebiny violated the standardization procedures of the test – you do not norm based on a student’s reading level. Dr. Erenberg testified that the data illustrates that as of April 2, 2007 the student had made no type of meaningful progress in terms of his reading. But Dr. Erenberg went further in her testimony:

Of bigger concern to me is that if someone were to make a statement like this, that I normed the data on the wrong norms and, therefore, I assume the child has made progress, it indicates that the data has been misinterpreted and, therefore, there’s a misunderstanding of what that child actually has done and is capable of doing.

Dr. Erenberg reviewed the scores obtained on the WRAT in 2004 and 2007 and the scores on the Lindamood-Bell testing discussed at the October 2006 IEP meeting. In 2004 the student’s standard score on the reading subtest was 84. In 2006 the score dropped to a 69 – a drop of one entire standard deviation and more than two standard deviations below the mean. When asked to comment on these scores, Dr. Erenberg testified as follows:

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Well, it (the scores) reflects a few things. It reflects, number one, that he has not made progress; but in effect, his learning disability has become more exacerbated, as reflected by the fact that he is now further below the mean than he was in 2004. So the problems are getting worse and he’s not making progress.

Dr. Erenberg reviewed the Lindamood Bell testing and testified that a summary review of those tests would indicate that the student has a severe reading deficit which she would characterize as dyslexia. Dr. Erenberg testified that the prognosis for true dyslexia is very poor unless the student receives highly intensive, appropriate structured remediation, typically multisensory in nature. In conclusion, Dr. Erenberg testified that the student requires a multisensory approach all day, infused into his curriculum, and delivered in a very highly structured directed type of setting. The setting should be a small structured classroom to address the student’s significant sensory integration problems. The level of individualization required for this student cannot be provided within a typical regular education classroom filled with 30-40 students. There are too many distractions which could exacerbate his sensory integration issues. Dr. Erenberg also testified that use of a resource classroom for some subjects would be equally inappropriate as the student requires multisensory instruction across all subjects. Dr. Erenberg testified that a cross-categorical special education classroom would be equally inappropriate as the student requires peers that are similar in intellectual profile and degree of their learning needs. Dr. Erenberg reviewed the goals and objectives contained within the IEP’s for 1st and 2nd grade. She testified that the goals are not measurable and they are predicated upon questionable data. She testified that none of the student’s IEP’s contains any mention that the student will be receiving or should receive multisensory instruction. While some of the school district witnesses asserted that they utilized multisensory instruction, Ms. Zerebiny testified that she used one modality at a time and conceded that she does not have a “big background” in multi-sensory instruction.

APPLICABLE LAW

The law applicable to the facts in this case is set forth in the Individuals with

Disabilities Education Act (IDEA), 20 USC §1401 et seq., the federal regulations to IDEA, 34 CFR Part 300, the School Code of Illinois, 105 ILCS §5/14-8.02 et seq., and the applicable state regulations, 23 Ill.Admin.Code Part 226. The local school district bears the burden of proof that at all times relevant it properly identified the nature and severity of the student's suspected disabilities and if appropriate, that it offered the student a free appropriate public education in the least restrictive environment, consistent with procedural safeguards.

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In an administrative hearing, the party seeking the relief bears the burden of proof. Schaffer v. Weast, 126 S.Ct. 528 (2005). In the instant case, the school district bears the statutory burden that at all times relevant it properly identified the nature and severity of the student's suspected disabilities. The parents bear the burden of proof that the school district did not provide the student with Individual Education Plans which provided him with any educational benefit and that the Individual Education Plan developed on April 27, 2007 did not represent an offer of a free appropriate public education in the least restrictive environment and thus the unilateral placement was appropriate.

In Board of Education, Hendrick Hudson Central School District. v. Rowley,. 458

US 176 (1982) ("Rowley"), the Supreme Court set forth a two pronged test for evaluating whether or not the school district has complied with applicable special education laws - there must be compliance with statutory procedures and then the individualized education program (IEP) developed through such procedures must be reasonably calculated to enable the student to receive educational benefit.

APPLICATION OF LAW TO THE FACTS In Kevin T. v. Elmhurst Community School District 205, 2002 WL 433061 (N.D.Il 2002) the court restated the basic tenets of Rowley, supra:

IDEA seeks to assure that all children with disabilities have available to them...a free appropriate public education (“FAPE”). To assure that disabled children receive a FAPE, the IDEA requires that school districts cooperate with the parents in creating an “individualized education program (“IEP”) which sets forth the child’s educational goals. To determine whether the school district has provided a FAPE. courts must determine whether the school: (1) complied with the IDEA’s procedural requirements; and (2) developed an IEP that is “reasonably calculated to enable the child to receive educational benefits... However, while the procedural requirements of IDEA have great importance, Congress implemented them to achieve “full participation of concerned parties throughout the development of the IEP. Therefore, where the parents fully participate in the plan to develop the IEP, the first prong of Rowley is usually met.

In the instant case, the mother does not raise any issue regarding procedural irregularities. The mother challenges the substance of the IEP’s and whether or not they provided any educational benefit to the student. The student’s IEP for his 1st and 2nd year of kindergarten are beyond the reach of this hearing officer. However, the data contained within those documents provide a baseline for an assessment of what transpired in 1st and 2nd grade and what was offered for 3rd grade.

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The hearing officer has read all of the material presented at the hearing and the material presented in prehearing motions. All of the test protocols and Individual Education Plans and test results were considered. The reality in this case is that, after four years at Norwood Park Elementary School, this student could not read. The hearing officer has carefully reviewed the closing statement by counsel for the school district which ask that the hearing officer give due deference to decisions made by educational professionals. In Board of Educ. of Murphysboro Community Unit School Dist. No. 186 v. Illinois State Board of Education, 41 F.3d 1162 (7th Cir.1994) the parents rejected the placement offered by the school district and unilaterally placed the student in an out-of-state residential facility. In that case, the school district argued that the court was required to give deference to the educators. However, the court noted that requiring a court to defer to the educator’s decisions would make it very difficult for parents to prevail in situations where they disagreed with the educator’s IEP, a result contemplated by IDEA. I find that I cannot defer to decisions predicated upon faulty data and anecdotal-based conclusions that this student received educational benefit during 1st and 2nd grade and would continue to receive educational benefit with a continuation of more of the same. Counsel for the school district cites School Dist. of Wisconsin v. Littlegeorge, 295 F.3d 671 (7th Cir.2002) for the proposition that courts “must defer to the judgment of education experts who craft and review a child’s IEP so long as the child receives some educational benefit and is educated alongside his non-disabled peers to the maximum extent possible”. The court stated that the critical issue before a hearing officer was whether the school professionals were unreasonable in their determination as to the appropriate services and placement to be provided to the student. The evidence in this case supports a conclusion that the student received no educational benefit from the services provided to the student during 1st and 2nd grade. In fact the evidence supports a conclusion that the student regressed during 1st and 2nd grade. With respect to the issue of educational benefit and regression, the hearing officer found the testimony of Dr. Shana Erenberg to be truthful, highly experienced and competent. She was a compelling and persuasive witness. Dr. Erenberg was qualified as an expert on psychoeducational diagnostic evaluations of students with learning disabilities, an expert in the analysis of test data regarding academic and cognitive profiles and the presence and nature of learning disabilities and an expert regarding school programs for students with learning disabilities and remediation of those disabilities. Dr. Erenberg testified that the goals and objectives in the IEP’s developed for student during 1st and 2nd grade were not measurable and were predicated upon questionable data. Dr. Erenberg testified that the student requires a multisensory approach all day, infused into his curriculum and delivered in a highly structured directed type of setting. The setting should be a small structured classroom to address the student’s significant sensory integration issues. The parties stipulated that Hyde Park Day School, the placement

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selected by the mother of the student, is a private therapeutic day school for students with learning disabilities. Dr. Erenberg testified that the IEP proposed for the student 3rd grade year contained goals and objectives that were not measurable and were predicted upon questionable data and the placement offered was completely inappropriate. In short, the school district did not offer the student a free appropriate public education in the least restrictive environment. Under School Committee of Town of Burlington, Mass. Department of Educ. of Mass., 471 U.S. 359 (1985) the mother of the student is entitled to reimbursement for the student’s placement at Hyde Park School for the summer of 2007 and the 2007-2008 school year if the proposed IEP for 3rd grade would not have provided the student with any educational benefit. That is precisely the opinion of Dr. Erenberg and it is precisely the finding of this hearing officer. Compensatory services are well-established as a remedy under IDEA. In Evanston Community Consolidated Sch.Dist.65 v. Michael M. and Christine M. ex rel John M., 356 F.3d 798 (7th Cir.2004) the court repeated its description of the statute:

The only specific remedies that it mentions are attorneys’ fees and interim relief...But it authorizes the court to “grant such relief as the court determines is appropriate...and these courts have assumed, consistent with the Supreme Court’s generous reading of the provision in School Comm. of Town of Burlington v. Department of Education...that this authorization encompasses the full range of equitable remedies and therefore empowers a court to order adult compensatory education if necessary to cure a violation

There is substantial evidence in the record that the student was denied a free

appropriate public education for at least two years. The student regressed in all academic areas tested and his learning disability worsened. Counsel for the parents has included the following statements within his closing statement:

“The usual remedy under IDEA for a student who has been denied

an appropriate education is an award of compensatory educational services to put him in the same position [he] would have occupied, had the District complied with the IDEA.” Sanford School Department, 47 IDELR 176 (Maine State Educational Agency, October 31, 2006). Compensatory awards should compensate, meaning they should provide more than what is required under an IEP. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 525 (C.A.D.C. 2005) Compensatory educational services can include an award of additional time at an appropriate residential or day placement, Sanford School Dept. at 16 (ordering payment of 1 year of LD residential placement); Draper v. Atlanta Independent School System, 480 F.Supp.2d 1331 (N.D. Ga. 2007)(ordering 3 years of private school for students with learning disabilities); Carbondale Elementary School District 95, 23 IDELR 766 (Illinois State Educational Agency, 1996,

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(ordering two years of private day school for failing to address dyslexia). Awards can also include reimbursement for the costs of private educational tutoring. Heather D. v. Northhampton Area School District, 48 IDELR 67 (E.D. Penn June 19, 2007)(awarding 2428 hours of compensatory education at $75 an hour, creating a $182,100 compensatory education fund).

The hearing officer has read each and every cited case and finds them persuasive as to the type of compensatory relief available in this matter. In the instant matter, I found the manner in which the members of the IEP team dismissed the concerns of the mother of the student particularly egregious. Of particular note was the fifteen minute IEP meeting to discuss testing in October 2006 – a textbook example of dismissive behavior. Even when the school district had accurate data, they eliminated services e.g. elimination of a math goal when a need clearly existed; failure to create a goal for reading comprehension when a need clearly existed. There is substantial evidence in the record that the parent of this student expended monies for the evaluation of the student by Dr. Jeanane Ferre, the testing at Lindamood Bell, the private tutoring by Marcia Weiss, and the assessment of the student’s educational records by Dr. Shana Erenberg. With the exception of the tutoring and the commentary by Dr. Erenberg, the mother presented all of these documents to the IEP team. I find that appropriate compensation for the failure to provide the student with an education for two years requires reimbursement of all of the mother’s expenses – tutoring, testing, analysis of data. The evidence is clear that the student requires specialized placement. The uncontroverted testimony of Dr. Erenberg is that the student cannot receive educational benefit in any setting less restrictive than an appropriate nonpublic day school. In Board of Educ. of Township High Sch.Dist.No.211 v. Ross ex rel Ross, 486 F.3d 267 (7th Cir.2007) the Seventh Circuit used a common sense approach to the issue of “least restrictive environment” – if the student’s education could be satisfactory, then the student cannot be removed into a more restrictive setting. Rather than adopt any sort of multi-factor test for assessing whether a child may remain in a regular school, the court looked at whether the education in the regular education school was satisfactory and if not, whether reasonable measures would have made it so. In Ross, the school district successfully argued that it could not make placement at the regular education high school satisfactory. Here, the evidence persuades this hearing officer that there is nothing that the school district could do to make a regular education classroom satisfactory for this student. He requires specialized placement.

DECISION A. The school district failed to establish that at all times relevant it properly identified

the nature and severity of this student’s disabilities and that as a consequence the

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Individual Education Plans developed for the student’s 1st and 2nd grade and proposed for the student’s 3rd grade did not and would not provide the student with a free and appropriate public education at Norwood Park Elementary School.

B. The student is in need of intensive remediation as a result of the aforesaid failure. C. The program offered at the Hyde Park Day School is appropriate to serve the

student’s needs and will provide him with a meaningful education benefit because it is both the least restrictive viable option and because no other option is available.

D. The school district is ordered to reimburse the mother of the student for all

appropriate tuition and transportation costs associated with her unilateral placement at Hyde Park Day School from June 2007 to the present.

E. The school district is order to reimburse the mother for the tutoring provided by

Marcia Weiss and the cost of testing at Lindamood Bell. The hearing officer cannot order reimbursement for the expert witness fees due Dr. Shana Erenberg but can order and does order the school district to reimburse the mother for the cost of Dr. Erenberg’s independent analysis of the school district data. No reimbursement is order for that portion of Dr. Erenberg’s testing in December 2007.

F. The school district is ordered to place the student at Hyde Park Day School

(including transportation) for the remainder of the 2007-2008 school including the extended school year as recommended by both the school district in the past and Hyde Park Day School on a prospective basis.

G. Hyde Park Day School is the “stay-put” placement in this matter. H. As compensatory services for the failure to provide a free appropriate public

education to the student during 1st and 2nd grade, the school district shall pay for two additional years at Hyde Park Day School including extended school for the 2008-2009 and 2009-2010 school years.

RIGHT TO REQUEST CLARIFICATION

Either party may request clarification of this decision by submitting a written

request for such clarification to the undersigned hearing officer within five (5) days of receipt of this decision. The request for clarification shall specify the portions of the decision for which clarification is sought and a copy of the request shall be mailed to the party and to the Illinois State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777. The right to request such a clarification does not permit a party to request reconsideration of the decision itself and the hearing

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officer is not authorized to entertain a request for reconsideration. THE EFFECTIVE DATE OF THIS DECISION IS THE DATE OF RECEIPT OF ANY CLARIFICATION OF THIS DECISION.

RIGHT TO FILE A CIVIL ACTION

This decision shall be binding upon the parties unless a civil action is

commenced. Any party to this hearing aggrieved by this decision has the right to commence a civil action with respect to the issues presented in the hearing. Pursuant to ILCS 5/14-8.01(i), that civil action shall be brought in any court of competent jurisdiction within 120 days after a copy of this decision was mailed to a party.

ISSUED this 17th day of April 2008.

___________________________________ CAROLYN ANN SMARON Impartial Due Process Hearing Officer

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CERTIFICATE AND AFFIDAVIT OF DELIVERY The undersigned hereby certifies that a copy of the Decision and Order was mailed to the following parties, via certified mail:

Ms. Cynthia Hansen

Attorney at Law Chicago Public Schools

125 South Clark Street, 8th Floor Chicago, Illinois 60603

Nr. Neal Takiff Attorney at Law

3000 Dundee Road, Suite 303 Northbrook, Illinois 60062

Mr. Andrew Eulass Due Process Coordinator

Illinois State Board of Education 100 North First Street

Springfield, IL 62777-0001 on April 17, 2008. ____________________________________ Carolyn Ann Smaron Due Process Hearing Officer 635 Argyle Avenue Flossmoor, Illinois 60422 708 798 0966 (facsimile 708 798 3430) [email protected]

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ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING

JAMES ISAACSON ) ) Student ) vs. ) Case No. 2008-52 ) CHICAGO PUBLIC SCHOOLS ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer

CLARIFICATION OF DECISION AND ORDER

On April 17, 2008 the hearing officer issued her Decision and Order which

provided as follows:

A. The school district failed to establish that at all times relevant it properly identified the nature and severity of this student’s disabilities and that as a consequence the Individual Education Plans developed for the student’s 1st and 2nd grade and proposed for the student’s 3rd grade did not and would not provide the student with a free and appropriate public education at Norwood Park Elementary School.

B. The student is in need of intensive remediation as a result of the aforesaid failure. C. The program offered at the Hyde Park Day School is appropriate to serve the

student’s needs and will provide him with a meaningful education benefit because it is both the least restrictive viable option and because no other option is available.

D. The school district is ordered to reimburse the mother of the student for all

appropriate tuition and transportation costs associated with her unilateral placement at Hyde Park Day School from June 2007 to the present

E. The school district is order to reimburse the mother for the tutoring provided by

Marcia Weiss and the cost of testing at Lindamood Bell. The hearing officer cannot order reimbursement for the expert witness fees due Dr. Shana Erenberg but can order and does order the school district to reimburse the mother for the cost of Dr. Erenberg’s independent analysis of the school district data. No reimbursement is order for that portion of Dr. Erenberg’s testing in December 2007.

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F. The school district is ordered to place the student at Hyde Park Day School

(including transportation) for the remainder of the 2007-2008 school including the extended school year as recommended by both the school district in the past and Hyde Park Day School on a prospective basis.

G. Hyde Park Day School is the “stay-put” placement in this matter. H. As compensatory services for the failure to provide a free appropriate public

education to the student during 1st and 2nd grade, the school district shall pay for two additional years at Hyde Park Day School including extended school for the 2008-2009 and 2009-2010 school years.

IT IS FURTHER ORDERED that the school district shall comply with the

Decision and Order on or before May 17, 2008.

ISSUED this 17th day of April 2008.

___________________________________ CAROLYN ANN SMARON Impartial Due Process Hearing Officer

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CERTIFICATE AND AFFIDAVIT OF DELIVERY The undersigned hereby certifies that a copy of the Decision and Order was mailed to the following parties, via certified mail:

Ms. Cynthia Hansen

Attorney at Law Chicago Public Schools

125 South Clark Street, 8th Floor Chicago, Illinois 60603

Nr. Neal Takiff Attorney at Law

3000 Dundee Road, Suite 303 Northbrook, Illinois 60062

Mr. Andrew Eulass Due Process Coordinator

Illinois State Board of Education 100 North First Street

Springfield, IL 62777-0001 on April 17, 2008. ____________________________________ Carolyn Ann Smaron Due Process Hearing Officer 635 Argyle Avenue Flossmoor, Illinois 60422 708 798 0966 (facsimile 708 798 3430) [email protected]


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