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JJ v. Olean


The student on whose behalf this impartial hearing was conducted is a twelve year old girl, whose disability classification as of the date of the receipt of the impartial hearing request was emotionally disabled. (Exhibit D-7, p.1) . The hearing was conductedc on May 2, 2006, May 3, 2006 and May 11, 2006. On May 3, 2006, I set the record close date on June 8, 2006. (T. 233).
The Parents were represented by the Law Office of H. Jeffrey Marcus, H. Jeffrey Marcus, Esq. and Jason H. Sterne, Esq., of Counsel. The District was represented by Hodgson Russ, LLP, Jeffrey J. Weiss, Esq. and Matthew R. Coseo, Esq., of Counsel.
The original hearing request, set forth in a letter from the Parents’ attorneys dated January 12, 2006, stated that it was based upon the following claims, which were elaborated in detail: (1) Failure to provide a free and appropriate public education (FAPE); (2) The current IEP fails to properly recognize the student’s reading disability and needs; (3) The student should be classified as “multiply disabled”; (4) The IEP fails to recommend appropriate assistive technology; and (5) The student requires an occupational therapy evaluation. (Exhibit D-4) An amended hearing request, set forth in a letter from the Parents’ attorneys dated February 13, 2006, added to these claims (6) Failure to implement the IEP. [all numbers as in the hearing requests] The amended impartial hearing request listed the following concerns of the Parents as now needing to be addressed by the District: (a) agreeing to reimburse the Parents for past reading tutoring of the student which the Parents had obtained, as well as related travel expenses;

(b) agreeing to continue to reimburse the Parents for ongoing reading tutoring by the same service provider, along with related travel expenses, in order to compensate for the District’s past failure to appropriately address the student’s reading needs and/or as a means of appropriately addressing her present needs; (c) providing the student with an appropriate IEP that addresses her severe reading disability, which would include classifying the student as “multiply disabled”, to recognize both her emotional disabilities and her learning disability, would include appropriate goals and present levels of performance, and would utilize adequate evaluative criteria and methodology; (d) providing the student with appropriate assistive technology, including a laptop computer equipped with the Kurzweil 3000 system and the Dragon Dictate program; (e) performing an occupational therapy evaluation; (f) assuring that the student’s entire IEP would be implemented, in particular the testing accommodations; and (g) payment of attorney fees and expenses. (Exhibit D-2, p. 3) [letters supplied in place of bullets in hearing request]
On the first day of the hearing, the parties placed on the record a series of statements - consisting, in the main, of concessions by the District and the withdrawal of claim “6” by the Parents - which impacted the scope of the hearing. (T. 23-29) After the conclusion of the hearing, but prior to the submission of post-hearing briefs, the parties jointly submitted a proposed Order based on these statements. (Exhibit IHO-XI). I signed the Order on June 1, 2006 and I have included it in the record. It provided that the CSE would convene within thirty days to develop a new IEP for the student for the 2005-2006 school year in accordance with the terms and conditions of the Order; that the District, with the Parents providing consent, would perform an occupational therapy evaluation of the student and would complete the evaluation before the CSE meeting so

that the CSE could review its contents during the meeting; that the CSE would modify the student’s IEP to classify her as a student with multiple disabilities; that the CSE would modify the student’s IEP to include assistive technology, including access to a District computer equipped with the Kurzweil program and the Dragon Dictate voice-recognition program; that claim “6”, regarding the District’s failure to implement the student’s then current IEP, would be deemed withdrawn; and that the parties would address the remaining claims, including the demand for reimbursement and claims “1” and “2”, in their post-hearing briefs. Those are, in fact, the issues addressed in the parties’ post-hearing briefs in their entirety [Brief for Parent, p. 1; Post-Hearing Brief Submitted on Behalf of the Olean City School District, pp. 7, 9] and those are the issues remaining for determination in this decision.
During a prehearing conference which was conducted on March 17, 2006, it was agreed that the District would present its case first, based upon the understanding of the parties of the implications as concerns the burden of production of the decision of the United States Supreme Court in Schaffer v. Weast, 126 S.Ct. 528 (2005). (Exhibit P-J, p. 2) At that time, it was anticipated that the parties would address any issues regarding the implications of Schaffer as concerns the burden of persuasion in due course. (Exhibitr P-J, p. 2) At the start of the hearing, I noted that the fact that the District was “going first” did not bear on issues regarding the burden of persuasion. (T. 23)
The District called as witnesses its CSE Chairperson (T. 46, 47), the student’s resource room teacher (T. 243, 244, 246-247), the student’s reading teacher (T. 324, 325-327, 330), and the student’s regular education teacher (T. 390, 392, 393). The Parents called as witnesses a part-time school psychologist for the District who prepared a report

on the student in May 2005 (T. 404, 406-407), the District’s Superintendent of Schools (T. 416), the reading tutor engaged by the Parents (T. 427, 430), and the student’s mother (T. 603). The District called as a rebuttal witness a SETRC professional development specialist who provided reading training to the District. (T. 652, 653-655)
Although the limitation of the scope of the hearing, for which the parties and their attorneys are to be commended, considerably narrows the facts on which attention must be focused, some discussion of the background to the hearing request is necessary. The parties agree that the student’s major presenting problems during her early years of schooling resulted from her mental illness, emotional issues and behavioral difficulties. (Brief for Parent, p. 1; Post-Hearing Brief Submitted on Behalf of Olean City School District, p. 1) The CSE Chairperson (T. 54) and the mother (T. 604) testified that during first grade, which the student repeated (T. 58), the student received regular classroom reading instruction in her 8-1-1 class. The mother (T-604-605) and the reading teacher (T. 331-333) testified that arrangements were made for the reading teacher to give the student extra help in reading at the end of first grade after it was recognized that the student had a reading problem. The reading teacher testified that this involved working on letter sounds, phonemic awareness, word families, reading small words, writing words, and sentences in a group of five or six. (T. 333) However, she testified that on some days, the student’s having an unstable day prevented the student from receiving this additional reading instruction. (T. 334-335) According to the testimony of the CSE Chairperson (T. 57-58), the reading teacher (T. 336) and the mother (T. 605-607), this additional reading instruction ceased to be provided to the student in second grade, until after the student began to be mainstreamed into a regular classroom for math, science,

social studies and health, and the student’s regular classroom teacher again identified the student as having a reading problem. (In the interim, apparently, the parents had been taking the student to a reading clinic at St. Bonaventure University. [T. 606]) At the end of second grade through early third grade, the student was provided with reading intervention services. (T. 57, T. 336-337, T. 607) Reading intervention is usually a first grade program (T. 336), but the student didn’t get it in first grade (T. 336) and, at the end of second grade, the student’s oral reading score was at the 1.2 grade level and her word recognition score was at the 2.1 grade level. (Exhibit P-C[4], p. 4) The reading teacher testified that the reading intervention program was actually implemented by an aide who went through the same training for the program as the reading teacher, although the reading teacher oversaw what the aide was doing. (T. 382-383) According to the testimony of the CSE Chairperson (T. 57) and the reading teacher (T. 336), the student was also provided with “push-in” remedial reading services by the reading teacher during this same time period. The reading teacher testified that in approximately October 2003, the student reached level 14 in the reading intervention program, the program’s final level, meaning that she was able to read the last book in the program with 90% or higher accuracy. (T. 338) The reading teacher testified that the students had to read the written words, and sound out them out when they were writing sentences, that the books would go home and a person at school would read the books with the student, again, to make sure she got it. (T. 339) During the remainder of third grade, the reading teacher continued to provide the student’s class with “push-in” and “pull-out” remedial reading services, working with groups of four or five students, four times a week for 30 to 45 minutes each session, on phonemic awareness, writing, reading, comprehension,

“everything that’s incorporated in reading and writing”. (T. 340-342)
In October 2003, the Parents privately obtained an educational evaluation for the student by an educational diagnostician at the Reading and Learning Disorders Center. (Exhibit D-19). The evaluation found that the student “displayed the error patterns, skill deficiencies, and related processing or learning problems of a Specific Reading Disability (phonological dyslexia)”. (Exhibit D-19, p. 2) On the Decoding Skills Test, the evaluator found that “Her performance on the word identification test … was at the primer level for instructional purposes…. [She] attempted to decode words but did not do so effectively and relied mostly on letter names. She also reverted to and relied on whole word guessing during each word identification test. Deficiencies were evident in her knowledge of names for sight words and in her use of early word learning skills at the preprimer to primer levels. The error and response patterns of an individual with word naming problems and the skill deficiencies of a decoding deficient reader were evident.” On the Woodcock Reading Mastery Test, the evaluator found that her performance on the word attack test was at the 1.3 grade equivalent. On the Spelling Pattern Test, the evaluator found that her performances on the two and four letter pattern tests were at the 1.4 grade equivalents of skill and preprimer level. On the Decoding Skills Test, her performance during the phonic patterns test was at the first of six skill levels and rudimentary. According to the evaluator, the student’s scores revealed that she was unable to pronounce or decode consonant-vowel-consonant pseudo and real words even when prompted and that she confused sounds for vowels from one test to the next, that she did not identify phonic patterns in words, that she was not adding independently to her knowledge and use of phonics and word analysis and that she had not developed an

appreciation of the alphabetic principle. The student’s score on the Woodcock Reading Mastery passage comprehension test, was at the 1.3 grade equivalent. The evaluator found that the student relied on whole word recall, picture cues and anticipated language when reading and interpreting sentence meanings and that she attempted to decode words in context but that she did not do so effectively or efficiently. (Exhibit D-19, pp. 4-5) The evaluator suggested that the student “should participate in a deliberate, systematic phonics word learning-spelling program that adheres to the research recommended for students with a specific reading disability or phonological dyslexia until she develops the kind of phonemic insight about words needed to decode words independently or until she has mastered the entire phonological code.” (Exhibit D-19, p. 9)
The mother testified that that she was excited to have detailed information about what was really wrong with the student (T. 609) but that when she provided copies of the report to the reading teacher, the regular education teacher and the school principal in the Fall of 2003, their response was that they already knew that the student had a reading disability. (T. 609-610) The mother testified that she also gave a copy of the report to the St. Bonaventure Reading Program, in which she meant the student to again participate, and that when St. Bonaventure told her that the methods they taught were not Orton-Gillingham based and that they didn’t have anything specific in their program designed for dyslexics, she stopped the student’s participation in the St. Bonaventure program. (T. 612-613) On recommendation of the educational diagnostician who conducted the evaluation, the mother purchased the Phonetic Reading Chain program (T. 610), a derivative of the Gillingham-Stillman Remedial Reading, Writing and Spelling Program (Exhibit D-19, p. 9), which was one of the programs the evaluator had strongly

recommended (Exhibit D-19, p. 9) and tried working with the student on it by herself for several months, with a lack of success that she attributed to their mother-daughter relationship. (T. 610-611) At the end of the 2003-2004 school year, after the student had scored below a “1” on the ELA component of the TONYSS (Exhibit, P-F[4]), the mother gave the materials from the Phonetic Reading Chain Program to the reading teacher to review over the summer to see if it could be implemented at school during the following school year, when the student would be in fourth grade. (T. 611) The mother testified that on the first or second day of the following school year, the reading teacher gave her back the materials and said that she had discussed the matter with her supervisor and that the District could not implement a separate reading program for one individual student that was different from the reading program that the District was currently using. (T. 611-612)
There is brief references to the private evaluation in the minutes of the student’s June 7, 2004 annual review (Exhibit P-D[22]). According to the mother’s testimony, the report was discussed during the annual review. (T. 613) On the other hand, the reading teacher testified that although she had read the report many times, she first saw it, possibly, before Christmas in 2005. (T. 375) In any event, the student was provided with resource room services during fourth grade, in accordance with her 2004-2005 IEP, five days a week for forty-five minutes each day. (Exhibit D-18, p. 2; T. 253) Reading comprehension goals and objectives were included in the IEP but there was no word attack goal. (Exhibit D-18, pp. 5-6) The resource room teacher testified that both comprehension and word attack skills were worked on. (T. 253-256) In addition, the reading teacher provided remedial reading “push-in” services, four days a week for 45

minutes each session. (T. 349) On the Kaufman Test of Educational Achievement on September 10, 2004, the student scored on the 1.7 grade level in Reading Decoding and on the 2.0 grade level in Reading Comprehension, with a Reading Composite grade level of 1.6. (Exhibit D-28) On January 31, 2005, the student scored a “1” on the ELA component of the NYSTP for fourth graders, although arguably, her score was close to “2”. (Exhibit, P-F[3]) The mother testified that three-quarters through the school year, faced with having to read third grade level books that were being sent home to the student because the student was incapable of reading them herself, she went to school, spoke with the resource room teacher, the student’s regular education teacher and the school principal and learned that none of them knew that the student had dyslexia. (T. 613-614) As a result, the mother contacted the International Dyslexia Association, who referred her to the reading tutor for whose services the Parents now seek reimbursement.
The evidence reveals that to a very great extent, differences in educational philosophy underlie the parties’ disagreement concerning the degree of success achieved by the District in teaching the student to read. The minutes of a CSE meeting held on December 14, 2005, state that “[t]he student’s grandmother told the committee she went to the session with [the reading tutor] and is surprised at how disabled the student is. She was under the impression her granddaughter could read a book, but realized during the testing that she either guessed, memorized or faked her way. She has every skill that anyone has ever thought of to cover up the fact that she can’t read.” (Exhibit D-9[a], p. 3) In comparison, the CSE Chairperson testified, “All her teachers, specifically [the regular classroom teacher, the resource room teacher and the reading teacher] have all said that they have watched her attempt to read and that she is somewhat successful at it.

Is she on grade level, no, but is she a nonreader? They didn’t feel that was a true statement either. She uses context clues. She uses strategies and she’s able to come up with words. [In a diagnostic evaluation of the student (Exhibit D-12), the reading tutor] broke this down very specifically so that as her grandmother even said, all her strategies were kind of revealed and – but in school, you teach strategies because she’s able to glean meaning from text by reading it herself in some cases.” (T. 135) Do the grandmother and the CSE Chairperson have the same understanding of what “reading” means? The undersigned doubts it.
As interesting and as deserving of discussion in other forums such considerations may be, I do not believe that that they are for impartial hearing officers, state review officers, or courts to weigh in on. In any case, the degree to which reading is defined as a phonetic process as opposed to a visual process or as opposed to an inferential process is not determinative of the issues in this case, because the District maintains that it has provided, and continues to offer, the student instruction in decoding adequate to the student’s needs. With this position of the District, I must respectfully disagree.
Questioned by the District’s attorney as to how she incorporated word attack into resource room services during the 2004-2005 school year, when there was no word attack goal on the student’s IEP (T. 260-261), the resource room teacher testified, “Well, in order to read the information, if their word attack skills aren’t up to where they should be, and you see a need there to work on those, you would naturally work on them as well.” (T. 261) Expanding on this answer, the resource room teacher agreed with the attorney that word attack skills “would enhance comprehension”. (T. 262) When asked how she could tell that the student was progressing in comprehension, the resource room teacher

testified, “She was able to answer questions. A lot of this was read. The social studies material was read to the whole group, and we read it together. And we would do graphic organizers or just an outline form and they would be responding with the answers and [the student] would respond.” (T. 263) The resource room teacher “guessed” that In identifying a conclusion that summarized the main idea of a paragraph, probably about 50% of the skills focused on the student actually doing the reading and probably about 50% of the skills focused on the student listening to somebody read to her. (T. 264-265) When asked on what she based her report of continuing progress by the student during the second and third periods on the goal of increasing reading comprehension, the resource room teacher testified, “Her understanding of the material and information that we were using in class. Whether it was read to her or if she read it at her level, if she read a piece of reading material that was at her level. But a lot of this was being read to her and looking for her gaining information from it.” (T. 283-284) It is impossible to conclude from such testimony that in its instruction of the student, the District clearly distinguished decoding from comprehension. When the Parents’ attorney, in questioning the school psychologist, asked whether it was not the case that her May 18, 2005 re-evaluation of the student (Exhibit D-15) made no mention of the student being dyslexic, the school psychologist testified, “Okay. Yeah. In the first page, I have the reading – learning disabled NOS, which is not otherwise specified by the other doctor, which dyslexia falls into the learning disabled category.” (T. 412) When the Parents’ attorney followed up by asking whether learning disabled NOS said anything about the student’s individual needs, the school psychologist replied, “Well, learning disability – no matter what the specific disability, whether it’s dyslexia or just a general one, the teachers are

trained to -- they pretty much help with the reading disability no matter if its dyslexia or not. I’m not a reading teacher, but they typically use the same strategies.” (T. 412) The resource room teacher apparently confirmed this supposition by partly attributing the student’s slow rate of progress to the student being “a truly dyslexic person” (T. 276), having earlier explained that when the student was reading and came across a word that caused her to stop, she would have her look at the vowel in the word and try to recall a rule or a mnemonic that we had used to make the sound” (T. 270), which use of mnemonics with dyslexics the Parents’ expert testified is unsupported by any research basis. (T. 548-550) Taken together with the mother’s uncontradicted testimony, referred to earlier, that three-quarters through the 2004-2005 school year, neither the resource room teacher nor the student’s regular education teacher knew that the student had dyslexia, it is impossible to conclude that when the provided the student instruction in decoding, its instruction was adapted to the student’s individual needs. Although the District argues that there are many indicia of the student’s progress “in reading” under the District’s program (Post-Hearing Brief Submitted on Behalf of the Olean City School District, pp. 10-12), examination of the evidence relied upon reveals that progress is being vaguely inferred from different tests which have not purported to measure the same things and none of which has been readministered so that a comparison may be made between the results of an earlier administration and a later administration. On cross-examination by the Parents’ attorney, the reading teacher acknowledged that in all of her reports of the student’s progress, there was no objective information. (T. 381) The District’s strongest claim of “significant improvement” is based upon the student’s anomalously high reading and writing grade level scores on a singular administration of

the Woodcock-McGrew-Werder Mini-Battery of Achievement on March 10, 2005. (Exhibit D-16, pp. 1-2). The Parents’ expert testified that this test is a 30 minute survey of reading, writing, math and knowledge based designed to quickly assess if a child has a problem (T. 487) and that the reading score is a compilation of decoding, comprehension and knowledge of antonyms for which no subscores are available. (T. 490) The scattershot testing of the student by the District stands in comparison to a battery of tests administered to the student by the reading tutor on September 17, 2005, which were specifically geared to decoding and on which the student had abysmally low scores. (Exhibit D-12, pp. 4-10) The Parents’ expert acknowledged an improvement in the student’s passage comprehension since the student’s earlier private evaluation, but attributed it to the student’s having had a lot of practice at taking the clues that she’s able to piece together and guessing what the story might be about (T. 582) rather than the student’s word identification strategies. (T. 498) Lastly, I must observe no motive has been suggested why, and it is simply not credible that, the Parents, the student and two independent evaluators would go to such extraordinary lengths to pretend that the student lacks the decoding skills necessary to read independently, as the District’s contentions concerning the student’s progress under the District’s programs would appear to require.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Based upon the foregoing, I find that the Parents

have met their burden under Schaffer v. Weast of showing that the services offered by the board of education for instruction in decoding for the 2005-2006 school year were inadequate or inappropriate and that the student was thereby denied a FAPE. I have not overlooked that the District increased the amount of services offered to the student during this school year by increasing the length of resource room sessions from forty-five to sixty minutes each day (Exhibit D-14, p. 2, T. 115, 276-277), by the resource room teacher provided the student with additional help prior to the start of the school day on several occasions (T. 281-282) and by the student’s IEP for the 2005-2006 school year developed on June 1, 2005 containing a word attack annual goal and short-term objectives (Exhibit D-14, p. 5-6) However, these considerations are more than counterbalanced, in my view, by the testimony of the CSE Chairperson to the effect that the teachers at the District would have required training from the student’s private tutor in order to learn how to implement or how to reinforce her techniques. (T. 128-129) I also find that the Parents have met their burden of showing that the services which they selected were appropriate. The reading tutor provided in her testimony a detailed explanation of her techniques (T. 469-479) in which I am cannot see that the District showed any flaw. While I am unpersuaded that the District’s suspension of its reading lessons and spelling tests for the student at the urging of the reading tutor (Exhibit D-11) was necessary for the success of the private tutoring and while the student’s teachers were personally pained as a result, these circumstances, from an evidentiary standpoint, establish irrefutably that the student’s measured improvement of five grade levels in decoding in the course of the private tutoring was attributable entirely to the private tutoring and was not at all attributable to simultaneous effort by the District. (T. 555-

558) The District argues that the Parent’s direction to the District to delete certain reading services and corresponding goals from the student’s educational program bars a finding that equitable considerations support the Parents’ claim for reimbursement, relying heavily on the decision of the State Review Officer in Application of a Child with a Disability in Appeal No. 05-020. (Post-Hearing Brief Submitted on Behalf of Olean City School District, pp. 14-15) I disagree with the District concerning the instant applicability of that case, in which the State Officer concurred with the finding of the impartial hearing officer that the District intended to address the student’s decoding problems and would have adequately done so during the relevant time period had not the parent directed the District to remove its reading program from the student’s schedule in order to add chorus. I find the mother’s explanation of the Parents not providing the diagnostic evaluation of the reading tutor to the CSE until the December 14, 2006 CSE meeting as being due to her son’s and her own health problems (T. 638) to be not credible in view of the testimony of the CSE Chairperson that she had asked the father for a copy of the report when the Parents requested the meeting to review it, which was approximately two to three weeks before the meeting and that the father had replied that he would prefer to bring it to the meeting. (T. 119-120) However, I do not find that this rises to a level of uncooperativeness that precludes reimbursement, based upon the long history of the Parents’ otherwise having cooperated with the CSE. Given the uncertainty concerning the extent to which the earlier private evaluation was discussed by the CSE, although it was alluded to in CSE minutes, the father’s intention may have been to insure

that the CSE actually discussed the report at the meeting. I therefore find that equitable considerations support the Parent’s claim for reimbursement. I will therefore order reimbursement for the amounts paid by the Parents for the private reading tutoring by the reading tutor and, in some instances, by her trained assistant, during the 2005-2006 school year, and for the costs to the Parents of teaching materials in connection therewith. (Exhibit P-L) (I note that there may be additional amounts that have been paid or that will be paid by the Parents therefor which are not yet reflected in the said exhibit.) I do not believe that the Parents are entitled to mileage reimbursement, which does not represent an out-of-pocket expense. (Exhibit P-M)
As far as the Parents’ claim for prospective reimbursement for private tutoring during the 2006-2007 school year, I agree with the District that its personnel are qualified to provide reading services to the student. (Post-Hearing Brief Submitted on Behalf of the Olean City School District, pp. 16-18) At best this claim is premature. Although I have found fault in this decision with aspects of the services offered by the District during the 2005-2006 school year, I was impressed throughout the hearing by the evident concern for the student of the staff of the District who testified to as well as by the lack of rancor – unusual in cases such as this – between the staff of the District and the Parents. Hopefully, the parties will work cooperatively in the interest of the student during the upcoming school year.
Based upon the foregoing, it is hereby
(1) ORDERED that the District shall reimburse the Parents for the amounts paid by the Parents for private reading tutoring for the student during the 2005-2006 school year and for expenses of teaching materials in connection therewith; and it is further

(2) ORDERED that the Parents’ request for mileage reimbursement in connection with said tutoring is denied; and it is further
(3) ORDERED that the Parent’s prospective request for reimbursement for private reading tutoring for the student during the 2006-2007 school year is denied.
Dated: June 22, 2006


__________________________________________ AARON TURETSKY, ESQ.
Impartial Hearing Officer