ILLINOIS STATE BOARD OF EDUCATION

IMPARTIAL DUE PROCESS HEARING

 

J. R.

 

 

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Student

 

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vs

 

 

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Case No. 2007-0023

CITY OF CHICAGO, SD 299

 

 

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SUSAN E. COX, Hearing Officer

 

 

 

 

 

                                           

Decision and Order

 

            This matter is before me to decide issues presented by a Due Process Hearing concerning (1) alleged procedural violations of the Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et. seq (“IDEA”) which the Parent contends denied J. R. (“J.”) a free and appropriate education (“FAPE”) for his freshman and sophomore years in high school; (2)  whether J.’s freshman year IEP provided FAPE; (3) J.’s prospective placement and (4) whether J. is entitled to compensatory education if there has been a denial of FAPE.  I have jurisdiction to hear and decide this matter pursuant to 14-8.02 (g) of the Illinois School Code, 34 C.F.R.  §§ 300.506-509, issued under the authority of IDEA, and 23 Illinois Administrative Code, Subtitle A, Subchapter F.  The parent has been informed of all of her rights pursuant to these statutes and regulations.

 

Procedural History

 

            The Chicago Public School District 299 (“CPS”) received a Request for Due Process Hearing for J. on September 6, 2006.   The parties opted for mediation, which failed, and a pre-hearing conference occurred on November 9, 2006. During the pre-hearing conference, the parties moved to extend the time for the hearing until December 12th and 13th, 2006.

 

               After the pre-hearing conference, the parent moved for partial summary judgment on one of the issues raised in the Request for Due Process. In her motion, the parent alleged that it was undisputed that J. did not have an IEP in place for his sophomore year in high school, and had not yet been evaluated, despite her request on February 2, 2006 for such an evaluation.   At the pre-hearing conference in this case, CPS contended that the evaluation and IEP meeting did not take place because the parent had refused to obtain a vision examination and vision correction for J..  Subsequently, CPS abandoned this position in its reply to the summary judgment and stipulated to the following facts:

            1.         J. lacked an IEP for the 2006-2007 school year.

            2.         J. had not been evaluated since the 2004 school year.

As will be discussed further below, the second fact was not true:  Although CPS evaluated J. in 2006 to determine the nature and extent of his disability, the parent was never informed of the results of these evaluations and did not receive copies of the reports until after evidence had been received during the hearing in this case.  CPS also argued that the hearing should be postponed so that an IEP meeting could be convened to consider the results of the parent’s private evaluations which had been in CPS’s possession for several months.  At a status hearing place on December 5, 2006, the parent strenuously objected.  I denied the motion for a continuance and took the motion for partial summary judgment under advisement.

 

            The first day of hearing took place on December 12, 2006.  During the cross-examination of Melvin Caldwell, the Harper High School social worker, it became apparent that CPS had evaluated J. since 2004, but, inexplicably, had not shared the results of those evaluations with either the parent or its own counsel, Christopher Guidry.  At the parent’s request, I suspended the hearing and ordered CPS to produce all evaluations of J., as well as other documents in its possession relevant to J.’s education at Harper.   The case was continued for hearing until January 2, 2007.

 

            The parties moved for another continuance and further hearing dates were set for January 19th and 23rd, 2007.  On January 12, 2007, CPS moved to supplement its evidence for the hearing with the following items:  a psychological report evaluating J., a social work report; a speech language report; and an assistive technology report.  These reports were all completed in 2006, but had not been shared with J.’s parent.  CPS also moved to supplement the record with an IEP which had been developed for J. on January 12, 2007.  This IEP was developed as a response to the private evaluations, as well as the evaluations discovered by CPS.  The parent agreed to supplement the record in this fashion and also added additional demonstrative exhibits to include information from the evaluations she had just received.

 

            We reconvened the hearing on January 19, 2007, and again on January 23, 2007 to hear testimony.  On January 23, 2007, the parties agreed to have closing arguments on February 13, 2007.  In the interim, the parent decided to call a witness concerning her proposed private placement of J..  Accordingly, the parties agreed to extend the hearing again to accommodate this witness’ testimony, as well as closing arguments in the case.   On February 20, 2007, I heard from the final witness in the case, as well as closing arguments from both sides and closed the record in this case.

 

Issues Presented for Decision

 

            1.         Did as the district deny FAPE to J. during the 2005-2006 and 2006-2007 school years as a result of any of the following alleged procedural violations of IDEA and the regulations promulgated under IDEA?

            a. Failure to have an IEP in place for the 2006-2007 school year and to write IEPS on an annual basis.

            b. Failure to regularly report progress to the parent, including the failure to provide the parent with evaluations she requested be done.

            c. Failure to provide written notice to the parent before terminating J.’s speech services.

            d.   Failure to follow proper procedures for evaluating J..

            2.         Did the IEP for J. in the 2005-2006 school year fail to provide FAPE because it a) did not have a transition plan; b) did not provide necessary services such as speech and language supports; c) did not provide for an extended school year and c) did not identify and address the full extent of J.’s disabilities, including his social, emotional and speech needs.

            3.         Did the district fail to provide FAPE during the 2006-2007 school year when J. lacked any IEP?

            4.         Does the proposed placement of J. in an unnamed therapeutic day school (as proposed in the January 12, 2007 IEP) provide FAPE?

            5.         Does the parent’s proposed placement in a private residential setting in Oconomowoc Center provide FAPE?

            6.         If it is determined that J. was denied FAPE, is he entitled to compensatory educational services?

 

Findings of Fact

 

            A.        Extent and Nature of J.’s Disabilities

 

             J. is a sixteen year old student who attends Harper High School and is in his sophomore year.  Although this case involves issues surrounding his years at Harper, the evidence shows a long history of multiple disabilities, including mild to moderate cognitive impairment, speech and language impairment, and emotional disturbances, including oppositional defiance disorder (“ODD”), depression, and Attention Deficit Hyperactivity Disorder (“ADHD”).  Sadly, the undisputed evidence in this case demonstrates that, although there was some evidence of cognitive impairment in psychological testing done by CPS as early as 1998, and a definitive diagnosis of cognitive impairment in the spring of 2006, CPS did not develop an IEP to address J.’s cognitive impairment until January 12, 2007.  It is also undisputed by CPS that J. lacked an IEP for his entire sophomore year (2006-2007).   Further, the undisputed evidence shows that, although the parent requested that J. be evaluated by CPS on February 3, 2006, the results of the evaluations were not provided to the parent and did not result in any IEP meeting being convened to address their implications for J.’s education.  In fact, they were not produced to the parent (or CPS’ counsel) until the hearing was convened.

 

            There is no real dispute between the parties concerning J.’s disabilities.  The dispute instead centers on how he should be educated going forward and the extent to which he should be compensated for what has already occurred (or failed to occur) in his education.  Both the CPS psychologist, LaTonia Cass, and the parent’s private psychologist, Michael McCanna agree that J. has a mild to moderate cognitive impairment.  (JX 97; and JX 2). [1] Cass’s testing occurred on March 28, 30 and April 25, 2006, but she did not sign her report until December 6, 2006.  (JX 97). Cass testified that her testing, which did not include a social or emotional evaluation, but focused only on cognitive and academic abilities, showed that J. was cognitively impaired and, for all intents and purposes, a non-reader.  She placed his reading ability at the kindergarten level, and arithmetic skills at second grade.  J.’s scores, as compared to a prior assessment in 2004, had, for the most part, actually decreased in all comparative cognitive and academic areas.  (JX 97; JX 83).  His adaptive functioning scores for communication, daily living and socialization are all significantly below his age level—ranging from five to eight years old in his relative ability to manage these functions. Thus, the evidence shows J.’s academic abilities clearly had decreased in most areas from 1998 to 2006.   (JX 83).  McCanna testified that J. could only read one word, “cat,” was unable to write a complete sentence, and that all of his academic skills were at the first percentile of performance. As noted above, Cass did not disagree with McCanna’s findings, although she administered a different battery of tests.

 

            J.’s cognitive impairment is not his only disability and, again, this is not really in dispute.  He also has a significant speech and language disability.  In 1998, when J. was seven years old, CPS’ evaluation showed that he was experiencing moderate delays in language and articulation.  (JX 11).  In 2001, he was assessed again.  He was found to be “delayed” in language and articulation.  (JX 25).   The speech pathologist noted that although his oral mechanics and fluency were within normal range, “[l]anguage processing is significantly below level.  Receptive and expressive vocabulary skills are also below level.”   The pathologist also found J. was eligible for speech services.  (Id.)  CPS offered J. speech services in IEP’s that governed his 2000-2001 school year (JX 37), his 2001-2002 school year (JX 38) and his 2002-2003 school year (JX 39).   These IEP’s also state that J. has a speech and language disability, as well as a learning disability.  Beginning in 2003-2004 (his seventh grade year), J. stopped being classified as speech and language impaired, but he continued to receive speech and language services. (JX 41).   In his next IEP, JX 42, which was in place for his eighth grade year, he neither is classified as speech language impaired, nor does he receive any minutes for speech services.  (JX 42).  There is no evidence that J.’s language abilities improved to warrant the elimination of these services for him.   Similarly, it is undisputed that CPS did not offer J. any speech and language services while he was at Harper High School.   In fact, the speech pathologist, Ms. Matthews has never met J..

 

            Unfortunately for J., the evidence presented in the case indicates that J. has a significant speech and language impairment. Harper’s speech and language pathologist, Ms. Matthews testified that she agreed with the recommendations and findings of Maura Lane who privately evaluated J. to determine the nature and extent of any speech and language disability.   Lane testified that J.’s speech and language disability was severe and that it globally affected his ability to learn.   (JX 1, Tr. 310-318).  In fact, Lane opined that the speech and language disability was so profound, it might be his primary disability.  She stated, however, that she deferred to McCanna’s finding that J. was cognitively impaired. Lane diagnosed J. with verbal dyspraxia, which affects J.’s ability to articulate sounds.  (Tr. 321).    She also found that J. is well below peers his age in expressive and receptive language skills.  Lane was forced to give J. a pre-school age test because J. was incapable of understanding more complicated, age-appropriate instructions (Tr. 318-322).   Even on this pre-school test, J. did “significantly poor,” and was unable to follow simple directions.

 

            In addition to his cognitive impairment and speech and language disorder, J. also experiences emotional difficulties.  His IEP dated December 10, 2003 provided a “behavior plan”, although none was attached to the IEP.  A social assessment done in January of 2004 (JX 28) diagnosed J. has having depression, ADHD and ODD.  The assessment further stated that J. was not currently receiving any outside services to address this diagnosis. The social worker who assessed J. wrote “this worker strongly believes that J. is in need of outside counseling to address his inability to exercise self-control.”  (Id. at p. 113).   His next IEP (JX 42), dated February 4, 2004, was explicit about J.’s emotional difficulties.  In the eligibility determination in the IEP, J. was described as a twelve year old with “a history of depression, ADHD, and ODD.” (Id., p. 198). The IEP further noted that J. had been prescribed Ritalin.  He was further described as having a “history of being disruptive in and out of school.  He has constantly defied authority and has physically and verbally assaulted his classmates.  He was recently suspended from school for assaulting his teacher.  J. was hospitalized at Hartgrove in 10/99 due to out of control behavior.  He was diagnosed with depression, ADHS, oppositional defiant disorder.  Social work services are recommended to work on improving social services and self-esteem.”  (Id., p. 199).   Social work minutes were provided in this IEP, but J. was not found to be eligible for services as emotionally disturbed.  (Id., p. 209).  The annual goal under Social/Emotional was that J. “will learn to exercise good judgment. He should decrease defiant behavior toward authority figures.”  (Id. p. 204).   The IEP recommended that a social worker teach J. techniques (undefined) to make “more appropriate decisions.”  (Id.) Whether J. met this goal was not stated in the IEP.  The suspension referred to in the IEP resulted in J. being placed in juvenile detention, a fact known to school personnel.  (JX 96, p. 427).

 

            In May of 2005, J.’s IEP team met again to develop an IEP for high school.  In this IEP, there is no information about J.’s emotional problems and there was no provision for social work minutes.  This was the last IEP done for J. before the initiation of this due process hearing, and it expired at the end of 2005 school year.  Despite the fact that the social worker at Harper High School, Melvin Caldwell, did not have a copy of this IEP, or the social assessment from January of 2004, he nonetheless did have J. on his caseload of over 120 students at Harper High.   He could not recall how he became aware that J. was on his caseload.  In the spring of 2006, Caldwell became alarmed that J. was suicidal after he witnessed a classmate’s shooting.  Caldwell initiated contact with the parent and recommended psychiatric hospitalization for J.. As he stated at the hearing, “I specifically said, mom, I think you need to take him to one of the mental health institutions in Chicago and I needed this to take place within a certain time frame, or I would place the referral myself.”  (Tr. 129).   J. was hospitalized for an indeterminate period of time after this shooting and was prescribed psychotropic drugs.  (Tr. 130).  After he was released, Caldwell neither initiated any proposed change in J.’s IEP to address this trauma, nor did he attempt to get any records for the hospitalization.   (Tr. 132-133).  He did, however, evaluate J. himself.  (JX 96).

 

            Caldwell’s report was not produced to the parent until after the first day of the hearing.  In the report, he noted that J.’s attendance his freshman year was spotty at best.  Indeed, Belinda Davis, who is in charge of attendance at Harper, testified that J. had 50 unexcused absences his freshman year, a trend which continued his sophomore year when he had already missed 45 out of  80 days of school as of January 31, 2007 when she testified.  Caldwell wrote that J. was disrespectful to other students and teachers and that he was on probation for hitting a teacher.  However, the only recommendation he made in the report was that “J. could benefit from some public or private counseling to be paid for at the family’s expense.”  (JX 96, p. 427). 

 

            At the hearing, Caldwell had no idea why there wasn’t an IEP meeting convened after he completed his assessment, nor why an IEP meeting was never convened at Harper at any time while J. was attending this school.  As he candidly acknowledged during his testimony “[h]onestly, I can’t say why there wasn’t.”  (Tr. 192).  He also said that it did not cross his mind to contact his caseworker to ask that an IEP meeting be convened.  (Tr. 193).  He had no explanation for why the counseling that he recommended that J. receive should not occur unless the family could pay for it.  (Tr. 148-149).  He never obtained a copy of J.’s previous social assessment, but thought that he could have benefited from reading it.  (Tr. 156-158).   He further admitted that there were plenty of indications in these and other CPS records that J. had social and emotional needs which were not being addressed at Harper.  (Tr. 175).  

 

            Finally, Dr. McCanna also testified about J.’s social and emotional impairments which he diagnosed when he evaluated J..  (JX 2).  McCanna stated that J. should be considered emotionally disturbed as a result of his depression and that he cannot rule out ADHD.  (Tr. 209-210).   He described J. thusly:  He has “a history of depression, oppositional behavior, poor social adjustments and an immense sense of aggression with the teacher.”  (Tr. 209).

 

            Accordingly, on the issue of the extent of J.’s disabilities, I find that the record overwhelmingly shows that J. is mildly to moderately cognitively impaired, has a serious speech and language impairment affecting his ability to learn, and is emotionally disturbed as a result of depression and ODD.  It is also likely, though not definitively proven, that he suffers from ADHD as well. The evidence also clearly demonstrates that CPS did not recognize the cognitive impairment in any IEP in existence before the start of this due process hearing, although such an impairment was suggested as early as 1998, and definitely diagnosed in the spring of 2006.  The evidence further shows that J.’s speech and language impairment was diagnosed by CPS as early as 1998.   CPS consistently offered J. speech services until May 2005 when, inexplicably, the IEP team ceased to address this impairment and did not offer any speech services in the IEP which governed J.’s freshman year.  Finally, the evidence demonstrates unequivocally that J.’s emotional disturbances were known to CPS since at least his evaluation in January 2004, but, in spite of this knowledge, J. was never offered any social work services during his freshman year at Harper.  Remarkably, no such services were offered despite the fact that the social worker, Mr. Caldwell, was concerned enough about his emotional well being to recommend that J. be hospitalized for depression that spring.    As noted above, there was no IEP in place for J.’s sophomore year.  During the course of the hearing, one was proposed by CPS.  (JX 94).

 

           

            B.  Recommendations Concerning J.’s Disabilities

 

            Dr. McCanna and Ms. Lane provided recommendations for treatment of J.’s multiple disabilities in their respective reports, and amplified these recommendations during their testimony at the hearing.  CPS did not offer any real rebuttal of their testimony.  In fact, both Ms. Matthews (the school’s speech pathologist) and Ms. Cass (the school’s psychologist) testified that the recommendations made by these experts were appropriate.  The only real dispute between the parties concerning J.’s prospective educational experience is not whether he should receive the accommodations which McCanna and Lane recommended, but where he should receive them, a question I address further below.

 

            Accordingly, I adopt the recommendations of Dr. McCanna and Ms. Lane regarding educational services which will confer educational benefit to J..  Dr. McCanna’s recommendations are:

 

            1.         J. requires an intensive, comprehensive educational intervention plan that provides remediation in the language arts and math, teaches life/survival skills, and provides language and psychological therapy.

 

            2.         J. will learn best in a structured environment that provides intensive monitoring, teaching at his level, and predictable and immediate feedback on his behavior.

           

            3.         Integral to the success of the placement will be a coordination of efforts between educational, psychological, and psychiatric staff to evaluate the relative effectiveness of the behavioral, educational, and medication treatments.

 

            4.         J. should receive functional, life skills instruction (e.g. time and money, identification of survival words and signs, vocational tasks, social interaction, self-care, etc.).

 

            5.         J. should also receive daily structured, multi-sensory instruction in the basic foundations of reading and writing.  He can write most letters, but his decoding and word identification are minimal.  The next step is to teach him letter sound correspondence.  As J. learns better decoding skills, he should also work on proper letter formation.  A multisensory approach of seeing, hearing, saying, and touching letters and words will improve acquisition of academic skills.

 

            6.         Functional life skills math should be part of J.’s education plan.

 

            7.         He should receive intensive language instruction.

 

            8.         J. should be instructed in a school setting in which some of his classmates have language skills at or above his current level of verbal functioning.  Having adequate opportunity to initiate proper models and interact with verbal students is important to his development.

 

            9.         J. should continue to work with a psychiatrist to monitor psychotropic medication.  (JX 2). 

 

            Ms. Lane’s recommendations are:

 

            1.         Consistent daily one hour of instruction in phonological processing.

 

            2.         Consistent daily instruction in following directions embedded within the school day.

 

            3.         Daily one hour of curricular vocabulary development—receptive and expressive using pictures and eventually incorporating signs.

 

            4.         Written language using a structured multi-sensory approach to writing.  J. will develop simple sentence structures for one hour per day.

 

            5.         Thirty minutes per day of “Oral Skill Proficiency Development.”  Ms. Lane recommends using sensory props to help J. develop the ability to produce certain sounds.

 

            6.         Articulation and Phonological Skill development for thirty minutes per day.   (JX 1).

 

Conclusions of Law

 

            A.        Burden of Proof

 

            The first issue is which party bears the burden of proof in this case.  In Schaeffer v. Weast, 126 S. Ct. 528 (2005), the Supreme Court held that the burden is appropriately placed on the party seeking relief; in other words, on the party seeking a change in the status quo.  Following Schaeffer, the Seventh Circuit also has held that “the student and the student’s parents bear the burden of proof in an administrative hearing challenging a school district’s IEP.”  Brown v. Bartholemew Consolidated School Corp., 442 F.3d 588, 594 (7th Cir. 2006). In Illinois, school districts must present evidence that “the special education program and related services proposed to meet the needs of the child are adequate, appropriate, and available.”  105 ILCS 5/14-8.02 (h).  But this statute only requires the district produce such evidence; it does not shift the burden of proof from the parent to show that the IEP is not conferring educational benefit.

 

            In this case, the parent argues that CPS procedurally violated IDEA, and that CPS also failed to confer an education benefit to J. in his freshman year IEP.  On these issues, Schaeffer places the burden squarely on the parent.  However, CPS failed to provide an IEP to J. for his sophomore year.  In Schaeffer, the Supreme Court emphasized that it is fair to place the burden of proof on the parents seeking to change an IEP because IDEA leveled the playing field when it “obligated schools to safeguard the procedural rights of the parents and to share information with them.” Id. at 536.  If there is no IEP (at least at the time the hearing began), the logic of Schaeffer no longer holds.  However, as discussed below, regardless of which party has the burden, the result regarding J.’s placement would be the same.

 

B.         CPS Procedurally Violated IDEA and the Regulations Promulgated Under                    IDEA and Those Violations Denied J. FAPE

 

            The parent alleges four separate procedural violations of IDEA.  First, the parent alleges that the school district failed to provide an IEP for J. during his sophomore year.  Second, the parent alleges that she was not properly apprised of J.’s progress during his education at Harper.  Third, the parent alleges that the school failed to follow proper procedures when it evaluated J..  Finally, CPS did not notify the parent before terminating his speech/language services.

 

            The undisputed evidence is that CPS failed to write an IEP for J.’s sophomore year.  (Indeed, during closing argument, counsel for CPS conceded this error.) In addition, there is no factual dispute that when J. was evaluated in the spring of 2006, the parent was neither notified that this had occurred, nor was she apprised of the results of the tests which were performed on her son.  In fact, as noted above, counsel for CPS believed that there had not been any evaluations of J. since 2004 until a witness, Melvin Caldwell, contradicted this at the hearing.  Finally, regarding speech and language services, the evidence is also plain that these services were terminated more than two years ago and, accordingly, are not within the statute of limitations applicable to IDEA.

 

            J.’s IEP for his freshman year at Harper expired at the end of the 2005-2006 school year.  J., an eligible student for the receipt of special education services, was entitled to have an IEP in place at the beginning of the new school year.  “At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP as defined in 300.220.”  20 C.F.R.  § 300.323(a).   Section 300.220 describes the content of the IEP including the requirements that the IEP include the child’s present level of academic achievement and functional performance; measurable annual goals and a statement of the special education and related services which, since the promulgation of the regulations under the 2004 amendments to IDEA, must be based on peer-reviewed research to the extent practicable.  Parent participation in the development of the IEP is guaranteed.  Parents must be afforded the ability to meaningfully participate in the development of their child’s IEP.  20 C.F.R. § 300.322.  The regulations also provide that “the public agency must provide notice to the parents of a child with a disability, in accordance with 300.503, that describes any evaluation procedures the agency proposes to conduct.”  20 C.F.R. § 300.304.   The school district is further mandated to review “existing evaluation data on the child,” including current class-room based, local or State assessments, and class-room based observations.”  20 C.F.R. § 300.305 (1).    Further, the school district must provide a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.”  20 C.F.R. § 300.306 (a)(2).   This provision also states that the school district is required after undertaking the evaluations to make an eligibility determination.  All of these regulations flow from the cooperative and collaborative process which the statute lays out in Sections 1414 and 1415 of IDEA.

 

            Of course, none of these requirements occurred here.  The parent did not receive notice that J. was being evaluated in this case.   The parent never received the results of the evaluations.  Those who performed the evaluations completed them and, even though they concluded that (1) J. was cognitively impaired and not learning disabled (as he previously had been labeled) and 2) he had significant emotional issues which impaired his ability to learn, they did absolutely nothing with the evaluations.  There was no IEP meeting convened, or determination of eligibility made despite the fact that the new information changed J.’s disability from learning disabled to cognitively impaired. Instead, the evaluations were placed in a file and forgotten about until the hearing in this case began.   Members of the IEP team did not review other information within CPS which, as Mr. Caldwell admitted, would have been very helpful in determining how to deal with J.. Finally, J. had been without any IEP for this entire school year.

           

            The law requires that the parent show that procedural violations not only occurred, but also that these procedural violations have caused substantive harm to J..  Knable v. Bexley City School District, 238 F, 3d 755, 766 (6th Cir. 2001).   “Procedural flaws do not automatically require a finding of a [free appropriate public education.]  However, procedural inadequacies that result in a loss of educational opportunity…clearly result in the denial of a “free appropriate public education.”     W.G. v. Bd. of Trs., 960 F.2d 1479, 1484 (9th Cir. 1982), cited in Bd. Ed of City of Chicago v. Illinois State Board of Education, 2006 WL 2989289 (Oct. 18, 2006), at * 2.      

 

            This is not a close case.  CPS’ failure to notify and provide the parent with the 2006 evaluations denied her the opportunity to seek the appropriate services for her child.  These evaluations definitively changed the eligibility determination for J. from learning disabled, which has one set of appropriate services, to cognitively impaired, which has an entirely different set of appropriate responses.  This fact, conceded by CPS, shows in its newly proposed IEP for J. which is radically different from the one proposed his freshman year.  There is simply no room in this record to find that these errors did not result in the denial of educational opportunities for J..  Further, the failure to convene and provide an IEP for J. for this entire school year means that he has essentially foregone any educational opportunities that should be accorded for the year.  The right to an IEP is “the central vehicle for the collaboration” between parents and school districts.”  Schaeffer v. Weast 126 S. Ct. 528, 532 (2005).   Since J. did not have an IEP, he does not have had access to specialized instruction and related services that are individually designed to provide educational benefits mandated by Bd of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 201 (1982).  

 

            Accordingly, I find that CPS did not comply with the procedures set forth in the IDEA and its promulgating regulations and that those violations denied J. FAPE.

 

            C.        The IEP for the 2005-2006 School Year Does Not Provide FAPE

 

            Even without the procedural errors which are detailed above, the evidence in this case demonstrates that the IEP for J.’s freshman year does not provide him with “educational benefit.”  The oft-repeated standard is that to provide FAPE, an IEP must provide an education which is specifically designed to meet the unique needs of the child, supported by such services that are necessary to permit the student to benefit from the instruction.  Todd v. Duneland School Corporation, 299 F.3d 899, 900 (7th Cir. 2002) (citing Rowley, supra).  The IEP in question does not confer educational benefits to J. because it was written for a child who is learning disabled, not cognitively impaired.  Thus, the services and supports in question clearly were not adequate to meet J.’s individual needs and confer educational benefit.

 

             Further, the IEP does not offer J. any social and emotional supports despite the fact that CPS’ own information and previous assessments of J. showed ample evidence of J.’s history of ODD, depression, ADHD and disruptive behavior.  This lack of emotional and social support in the IEP is particularly egregious because Mr. Caldwell believed that J. was suicidal during this school year, and concerned enough about his emotional welfare to ensure that he was admitted to a psychiatric hospital.  Further, the school knew that J. had hit a teacher in the past which had resulted in him being placed in juvenile detention.   Despite all of this information, the IEP is silent on services for J.’s obvious emotional disturbance.

 

            Lastly, despite ample evidence that J. had speech and language impairments, much of which is contained in CPS’ own records, J. received absolutely no speech and language services during his freshman year at Harper.  Indeed, the speech pathologist, Ms. Matthews never even met J..  This is another critical deficiency in the IEP which denied J. FAPE.

 

              CPS itself acknowledges that it has failed to provide J. all of the services to which he is entitled in its proposed IEP which states under “Compensatory Services” that “Additional services should have been provided.”  (JX 94, p. 420).  J.’s IEP did not provide him with FAPE at Harper during his freshman year.

 

 

D.        J.’s Proposed IEP, Prepared After the Initiation of the Due Process

Hearing, Does Not Provide FAPE

 

            The parent contends here that the CPS proposed IEP, which was written after the initiation of the due process proceedings, should not even be considered.  In other words, the parent argues that if her proposed placement is appropriate, that ends the inquiry.  However, it is not necessary to resolve this question because the proposed IEP does not provide J. with an educational benefit.

 

            The services which are outlined in the IEP are to be provided to J. in an unspecified “therapeutic day school.”  The only evidence that was offered about this kind of setting was adduced through the testimony of Kathy Foucks, who is the administrator of Acacia Academy in La Grange.  Acacia is not named in the IEP, but CPS offered evidence to suggest that it would be an appropriate placement for J. and did not offer any evidence about any other possible program which could accommodate him.  However, Ms. Foucks’ testimony leaves me with grave doubts that J. would even be accepted as a student at Acacia, let alone that the program there would be appropriate for him.

           

            Ms. Foucks had not examined J.’s proposed IEP or any of his evaluations when she testified at the hearing.  Thus, there is no definitive evidence in the record that Acacia would accept J..  Further, programs at Acacia are geared not to cognitively impaired students, but to students who are primarily learning disabled.   There are only one or two cognitively impaired students in the high school class. (Tr. 275-277).  She stated that speech services are only offered on a “limited” basis.  (Tr. 292).   If students have a behavior problem, as the evidence clearly shows J. does, “that is not the type of student that our expertise does the best job with.”  (Tr. 281).   Although the school has a psychologist, she does not provide any individual counseling services which J., with a history of psychotropic medication, depression, ADHD and ODD, clearly requires.  (Tr. 275).  Even more fundamentally, Ms. Foucks testified that the students Acacia accepts want to be there.  “That’s a major requirement, but it is the students who need to improve their academics basically.”  The undisputed evidence shows that J.’s disabilities are far more serious than a need to improve academically—he is cognitively impaired, speech and language impaired, and emotionally disturbed. Ms. Foucks’ testimony supports the conclusion that Acacia would not be able to confer meaningful educational benefit to J., and not the contrary conclusion CPS urges. 

 

            The record is devoid of any evidence that there is another therapeutic day school which could offer J. the services he requires to achieve any sort of academic progress.  Neither Ms. Lane nor Dr. McCanna could identify such a school, nor did CPS offer an alternative to Acacia.  Assuming that such a school exists, the IEP proposed by CPS does not confer educational benefit.  Dr. McCanna credibly testified that there were several deficiencies in the IEP proposed by CPS.  First, even though J. clearly needs a behavior intervention plan as a result of his emotional disturbance, none is provided in the IEP.  (Tr. 223).  Regarding J.’s benchmark goal for language, McCanna testified that the IEP goal for J. that he acquire five audible words per week is way too ambitious given J.’s present level of performance.  (Tr. 225).  The IEP discusses J.’s acquisition of vocabulary, but does not address his acquisition of phonetic skills, a deficiency that both he and Maura Lane observed. (Tr. 226-227).  In addition, he testified that the benchmark of 50% accuracy set out in the IEP is deficient because it “is not close to achievement and acquisition of skill.”  (Id.). The goal for history, which require J. to “compare other political systems to the political system of the United States with 60% accuracy,” is far too abstract a goal for J. according to Dr. McCanna.  He testified that a more appropriate goal would be the acquisition of concrete facts.  Similarly, the math goal which requires J. to acquire geometry and graphing skills is a sophomore goal not for a student who is functioning in math at the second grade level.  The science goal, which requires J. to develop a working knowledge of the scientific method, also is way to abstract given J.’s present level of performance.  (Tr. 227).  In sum, Dr. McCanna testified that “the goals were not matched up with his ability and they are more typical for a high school student without cognitive impairments.  So the goals need to be much more specific to his skill level and more comprehensive in terms of addressing specifically his areas of educational deficit and then his benchmarks to each of one of the goals.”  (Tr. 229).  The IEP further lacks any psychological or psychiatric treatment for J. and, although he has now reached the age of 16, there is no transition plan provided for him in the IEP. (JX 94).  Dr. McCanna also testified that, at a minimum, J. would have to meet with a language therapist for two or three sessions per week to make any progress in this area, and that the instruction given during those sessions would have to be reinforced by a special education teacher.  (Tr. 218).  

 

            Maura Lane also testified extensively that the speech language services in the IEP were insufficient to confer educational benefit.  (Tr. 345). She enumerated several problems with the proposed IEP including (1) that the receptive expressive vocabulary and articulation problems which J. experiences are not separately addressed in the IEP; (2) the 60% benchmark goal for acquisition of vocabulary in the IEP is not an appropriate industry standard; (3) the present levels of performance for speech and language are too vague and, therefore, it is impossible to measure improvement accurately; (4) there are no oral motor goals in the IEP although this has been an identified weakness for J.; (5) there are no multi-sensory approaches laid out in the IEP for achievement of the speech language goals; and (6) the twenty minutes per week with a speech language therapist and forty minutes of reinforcement in the special education classroom is insufficient to confer any benefit.  (Tr. 333-344).

 

            Thus, the evidence clearly demonstrates that the IEP proposed by CPS is insufficient to provide an educational benefit. In addition, even if the IEP was sufficient to do so, there is no evidence in the record that recommends a therapeutic day school that could provide the services set forth in the IEP.  Finally, the evidence offered about Acacia demonstrates that it is not an appropriate placement for J. even if the school agreed to accept him.

 

E.             Given That CPS’ Proposed Placement is Insufficient to Confer                                  Educational Benefit, The Only Placement Available to J. is the

Residential Placement

 

            Both Dr. McCanna and Ms. Lane testified that given J.’s current level of performance and his global challenges, J. needs a residential setting for him to derive any educational benefit.  Mike Pupura, a director of Oconomowoc, also testified that this was the case.  CPS stipulated that the parent’s proposed placement of J. at the Oconomowoc Center would confer educational benefit.  CPS contends, however, that there are less restrictive placements that could accomplish this goal.  CPS may well be correct in this assertion.  The problem, however, is that CPS provided absolutely no evidence or credible recommendation of any placement which could provide educational benefit to J. in a less restrictive environment than the proposed residential placement.  In closing argument, I asked CPS counsel whether CPS believed that I could fashion a less restrictive environment for J. which could confer educational benefit without having heard any evidence on this point in the record.  CPS counsel asserted that I could, but could not cite any legal authority on this point.

 

            In fact, Seventh Circuit case law prohibits this. This case is virtually indistinguishable from Board of Education of Murphysboro v. Illinois State Board of Education, 41 F.3d 1162 (7th Cir. 1994).  In that case, as in this one, the hearing officer (and court) had only two alternatives to choose from:  the IEP proposed by the district (which was insufficient to confer educational benefit) and a residential private placement.  The Court found that once the school’s placement was found to be insufficient, it had no choice but to order that the student be placed in the private residential setting.  In that case, as here, the district objected, relying on the statutory mandate that disabled students be educated in the least restrictive environment.  The Court rejected that argument:  “[t]he mainstreaming requirement was developed in response to school districts which were reluctant to integrate mentally impaired children and their non-disabled peers.  It was not developed to promote integration with non-disabled peers at the expense of other IDEA educational requirements and is applicable only if the IEP meets the IDEA minimum.”  Id. at 1168.  Because the school district in that case provided only one other alternative, and that alternative did not confer FAPE, “it was not required to locate another school that would satisfy the least restrictive alternative requirement based on the entire pool of schools available, but rather was required simply to determine whether that one available choice would provide an appropriate education” for the student.  Id.  See also Briere v. Fair Haven Grade School District, 948 F. Supp 1242, 1255-56 (D. Vt. 1996) (issue is whether the proposed placement satisfied IDEA’s mandates, not whether an IEP could be developed that would do so.); Knable v. Bexley City School District, 238 F.3d 755 (6th Cir. 2001) (emphasizing that the court must focus on proposed placement, not a possible alternative which might satisfy the Act (citing cases)); Seattle  School District No. 1 v. B.S., 82 F.3d 1493 (9th Cir.  1996) (the IDEA does not require a student to try every option short of a residential placement to satisfy the least restrictive environment requirement).

 

             In summary, the district must propose a less restrictive environment that will succeed in conferring educational benefit to J. to defeat the restrictive, but educationally appropriate setting which the parent has proposed.  Board of Education of City of Chicago v. Illinois State Board of Education, 2006 WL 2989289 (Oct. 18, 2006), *8.  Because CPS has utterly failed to do this in this case, and because the residential placement will confer educational benefit, J. must be placed there where an IEP can be developed for him.

 

F.         Because J. was Denied FAPE for Two Years, He is Entitled to Two Years Compensatory Education

 

            As discussed above, J. was denied FAPE while at Harper High School.  The parent has requested that he be awarded two years of compensatory education to remedy these past violations.  Compensatory education is an equitable remedy which is meant to make a student who has been deprived of educational benefit whole.  Bd. of Ed. Of Oak Park River Forest High School, Dist. 200 v. Illinois State Board of Education, 79 F.3d 654, 656 (7th Cir. 1996). Given that J. has been denied FAPE during the entire time he was at Harper, he is eligible for compensatory services.  Both of the parent’s experts agreed that J.’s compensatory education services should be determined after an evaluation, before he leaves Oconomowoc.   Accordingly, at the end of J.’s education at Oconomowoc, another evaluation must be undertaken to determine what services he should receive as compensatory education.

 

Order

 

1.         The parent’s request placement of J. at Oconomowoc Center is granted.

 

2.         The parent’s request for two years of compensatory education based on the denial of FAPE is granted.

 

3.         Proof of compliance with this Order shall be submitted to the Illinois Sate Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 within thirty days of receipt of this Decision and Order.

 

Right to Request Clarification

 

            Either party may request clarification of this decision by submitting a written request for such clarification to me within five days of receipt of this Decision and Order.  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 other parties and to the Illinois State Board of Education.  The right to request such a clarification does not permit a party to request reconsideration of the decision itself, and the hearing officer is not authorized to entertain a request for reconsideration.

 

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 final 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 is mailed to the parties.

 

 

                                                                        /s/ Susan E. Cox

                                                                        Impartial Due Process Hearing officer

 

Dated:  February 28, 2007


[1]  References to joint exhibits will be to “JX.”  References to the transcript in the case will be to “Tr.”.   At the time this Decision and Order was written, the hearing officer had not received a transcript of the hearing on January 19, 2007.  Accordingly any reference to testimony received that day cannot be cited to the transcript.