Revised OT occupational therapy by MikeJenny

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									XXXX XXXX                                              *   BEFORE SUSAN OFFICER,

         v.                                            *   AN ADMINISTRATIVE LAW JUDGE

FREDERICK COUNTY                                       *   OF THE MARYLAND OFFICE

PUBLIC SCHOOLS                                         *   OF ADMINISTRATIVE HEARINGS

                                                       *   OAH NO. MSDE-FRED-OT-04-63112

*        *        *        *        *        *        *        *         *        *        *        *        *

                                                   DECISION

                                      STATEMENT OF THE CASE
                                              ISSUES
                                     SUMMARY OF THE EVIDENCE
                                         FINDINGS OF FACT
                                            DISCUSSION
                                       CONCLUSIONS OF LAW
                                              ORDER

                                        STATEMENT OF THE CASE

         This case arises from a request by XXXX and XXXX XXXX (“Parents”), on behalf of

this son XXXX XXXX, for a hearing to review the identification, evaluation or placement of the

[Child]. The request was filed with the Frederick County Public Schools (“FCPS” or “the

School System”) on December 10, 2004.

         The due process hearing was initially scheduled for January 11-14 and 24, 2005.

Additional days were needed to complete the hearing, and by agreement of the parties, the

hearing continued on February 11 and 15, 2005.1 The record closed on February 15, 2005. The

hearing was held before Susan Officer, Administrative Law Judge (“ALJ”), at FCPS, 7630

Hayward Road, Frederick, Maryland. FCPS was represented by Andrew W. Nussbaum, Esq.,

Knight, Manzi, Nussbaum & LaPlaca, P.A., 14440 Old Mill Road, Upper Marlboro, Maryland




1
 The additional hearing days extended the hearing to exceed 45 days after the filing of the request for a hearing.
The February dates were the earliest dates all parties were available to continue the hearing.
20772. Brian K. Gruber, Esq., 7220 Wisconsin Avenue, Suite 410, Bethesda, Maryland 20814,

represented the Parents and [Child].

         The hearing was held pursuant to the following laws: Individuals With Disabilities

Education Act (“IDEA”) Reauthorization, Disabilities Education Act Amendments of 1997, 20

U.S.C.A. § 1415 (2000); 34 C.F.R. § 300.507 (2004); Md. Code Ann., Educ. § 8-413 (2004);

Code of Maryland Regulations (“COMAR”) 13A.05.01; and Maryland State Department of

Education Guidelines for Maryland Special Education Mediation/Due Process Hearings.

         At the conclusion of the hearing, the parties agreed that the decision would be issued on

or before April 1, 2005.2

         Procedure in this case is governed by the contested case provisions of the Administrative

Procedure Act, and the Rules of Procedure of the Office of Administrative Hearings. Md. Code

Ann., State Gov't §§ 10-201 through 10-226 (2004); COMAR 28.02.01.

                                                       ISSUES

         The issues on appeal are:

         1. Whether the individualized education program (“IEP”) developed at the IEP meeting

on June 17, 2004 is appropriate to meet the [Child]’s educational needs; and if not,

         2. Whether FCPS is required to reimburse the Parents for the cost of sending the [Child]

to [School 1] (“[School 1]”) for the 2003-2004 school year.3

                                     SUMMARY OF THE EVIDENCE

A.       Exhibits

         A list of exhibits is attached to this Decision.




2
  The parties agreed to a later than normal due date for the decision in light of the length of the hearing and the
complexity of the case.
3
  The school system’s representative conceded that if the IEP prepared by FCPS for the 2004-05 school year is
found to be insufficient, [School 1] can meet [Child]’s educational needs, and the ALJ agreed; therefore, the

                                                            2
B.       Testimony

         The following individuals testified on behalf of [Child] and his Parents:

         1.       XXXX XXXX, Principal, [School 2] (“[School 2]”)
         2.       Dr. XXXX XXXX (accepted as an expert in clinical psychology)
         3.       XXXX XXXX, Clinical Director, Occupational Therapy, [School 1] (accepted as
                  an expert in occupational therapy)
         4.       XXXX XXXX, Academic Director, [School 1] (accepted as an expert in special
                  education and learning disabilities)
         5.       XXXX XXXX, Senior Clinician, Speech/Language Department,
                  [School 1] (accepted as an expert in speech/language pathology)
         6.       Dr. XXXX XXXX, Special Education Consultant (accepted as an expert in
                  special education)
         7.       XXXX XXXX, [Child]’s mother

         The following individuals testified on behalf of FCPS:

         1.       XXXX XXXX, Special Education Teacher, [School 2] (accepted as an expert in
                  special education)
         2.       XXXX XXXX, Speech/Language Pathologist, FCPS (accepted as an expert in
                  speech/language pathology)
         3.       XXXX XXXX, Reading Specialist, [School 2] (accepted as an expert in reading)
         4.       XXXX XXXX, School Psychologist, FCPS (accepted as an expert in school
                  psychology)
         5.       XXXX XXXX, Occupational Therapist, [Center] (accepted as an expert in
                  occupational therapy)

                                            FINDINGS OF FACT

         Having carefully considered all of the evidence presented, I find the following facts by a

preponderance of the evidence:

         Background

         1.       [Child] is an 8-year-old boy (d.o.b. XXXX, 1996) who resides in Frederick
                  County, Maryland. [Child] is currently attending [School 1] for the 2004-05
                  school year. He attended [School 1] for the 2003-04 school year as well.

         2.       [Child] is eligible for special education and related services under the disability
                  code of “speech-language impaired”. He also has deficits in the areas of reading,
                  writing, language processing, pragmatic language, social skills, gross motor, fine
                  motor, sensory processing, behavior management and attention.




appropriateness of [School 1]’s program is not at issue.
                                                           3
        3.       [Child] attended kindergarten at [School 2] (“[School 2]”), FCPS, his home
                 school, for the 2001-02 school year. In a class of 24 students, [Child] received
                 special education services, speech and language therapy, occupational
                 therapy, and the services of a one-on-one instructional assistant. [Child] did not
                 enjoy kindergarten, and, for the first time, he displayed behaviors such as
                 pinching, biting, and crying.

        4.       [Child] simultaneously attended a half-day of kindergarten at [School 3]
                 (“[School 3]”), a small, private school, during the 2001-02 school year.

        5.       [Child] met some, but not all, of his kindergarten benchmarks, and was
                 promoted to first grade.

        6.       An IEP was developed by FCPS for the 2002-03 (first grade) school year,
                 featuring increased special education services. However, rather than enroll
                 [Child] at [School 2], the Parents enrolled him at [School 3] for first grade.
                 [Child] did not receive special education services at [School 3]; however, FCPS
                 provided speech and language therapy, as well as special education consultation
                 and occupational therapy consultation to [Child] throughout the school year.
                 Eventually, speech and language services from the school system were
                 discontinued at the Parents’ request. Academically, first grade was not a good
                 year.

        7.       On July 28, 2003, FCPS developed an IEP for [Child] for the 2003-04 (second
                 grade) school year. [Child]’s proposed placement for the 2003-04 school year
                 was in a general education second grade classroom at [School 2] with
                 approximately twenty-five students. FCPS proposed one and one-half hours per
                 week of special education services, one hour per week of speech/language
                 therapy, physical therapy and occupational therapy on a consult basis, and
                 Augmentative Communication and Teaching Team (“ACTT”) consult. The IEP
                 also called for social skills training and assistant support services from a one-to-
                 one assistant. The IEP team added occupational therapy (“OT”) goals and
                 objectives to the IEP. [Child]’s mother did not agree with the services proposed
                 on the July 28, 2003 IEP because she did not think it provided enough hours of
                 special education and speech/language services. She also believed that [Child]
                 required direct OT services rather than simply an OT consultation.

                 [Child]’s parents rejected the proposed IEP4 and enrolled him at [School 1] for
                 second grade. [School 1] is a private program for students with learning
                 disabilities with average to above average intelligence, who also have other needs.
                 These include language disabilities, sensory integration and motor problems,
                 attentional and emotional issues. Students are ages 5 to 19.


4
  The appropriateness of the IEP for the 2003-04 school year was the subject of another hearing. See [Child] v.
Frederick County Publiic Schools, OAH no. MSDE-FRED-OT-03-XXXXX, February 10, 2004. Some of the
factual background contained herein was taken from the Findings of Fact section of that decision. In admitting a
copy of the decision as FCPS Ex. #1, I advised the parties that I would use the decision for the sole purpose of
background information.
                                                         4
           8.       The [School 1] program provides an experiential multi-sensory hands-on learning
                    type program combined with intensive remedial work in the academic subjects.
                    The class is not taught with simple lectures but includes hands-on activities to
                    provide more effective instruction for students with learning disabilities and
                    language-based deficits. The academic classes at [School 1] are all taught by
                    certified special education teachers.

           9.       [Child] was in a class of approximately 10 students, taught by a certified
                    special education teacher and two classroom assistants. [Child] received two
                    45-minute sessions of speech and language therapy per week, and one 45-minute
                    session of occupational therapy weekly. Additional therapies were integrated into
                    the classroom on a regular basis as part of the [School 1] program. [Child] made
                    meaningful educational progress during the 2003-04 school year at [School 1].

           Developing the 2004-05 school year IEP

           10.      On or about February 10, 2004, a decision by an OAH Administrative Law Judge
                    concluded that the IEP proposed by FCPS for the 2003-04 school year offered
                    [Child] a free appropriate public education in the least restrictive environment, as
                    required by the IDEA. (FCPS Ex. #1)

           11.      On March 10, 2004, [Child]’s mother advised XXXX XXXX, Principal of
                    [School 2], that she wished to enroll [Child] in FCPS immediately, and she
                    requested that the process of preparing an IEP for him be initiated. ([Child] #6)

           12.      The Parent requested that she be permitted to observe a grade 2 classroom for an
                    entire day and a grade 3 classroom for an entire day. She made other requests for
                    observations be herself; Dr. XXXX XXXX, psychologist; Dr. XXXX XXXX,
                    speech/language pathologist and audiologist; XXXX XXXX, speech/language
                    pathologist at [School 1]; and XXXX XXXX, Clinical Director of Occupational
                    Therapy at [School 1]. ([Child] #6-11) These requests were denied by Mr.
                    XXXX. ([Child] #11, 13)5

           13.      An IEP Team Meeting was held on April 19, 2004. In preparation for the IEP
                    meeting, the Parent provided FCPS with the following evaluations for
                    consideration:

                    Letter from Dr. XXXX XXXX, dated March 22, 2003
                    Results of testing by Dr. XXXX XXXX, dated May 2, 5, and 21, 2003
                    APD Re-evaluation by Dr. XXXX, dated July 9, 2003
                    [School 1] Summer 2003 Report
                    [School 1] IEP, dated October 23, 2003
                    Results of testing by Dr. XXXX, dated November 4, 2003
                    Results of testing by [School 1] Speech/Language Department, dated November
                    20, 2003
                    Rhyming evaluation by Dr. XXXX XXXX, dated April 14, 2004

5
    The Parent was subsequently permitted to observe a 3rd grade class for about one hour on May 24, 2004.

                                                           5
      [School 1] Observation report by Dr. XXXX XXXX, dated April 12, 2004

14.   The Parent made arrangements for XXXX XXXX, Academic Dean, [School 1];
      Ms. XXXX; XXXX XXXX, Occupational Therapist, [School 1]; XXXX XXXX,
      Special Education Teacher, [School 1]; Dr. XXXX; Dr. XXXX; and her attorney
      to participate in the April 19, 2004 IEP meeting by telephone conference.
      Information relative to [Child]’s current levels of performance was presented by
      [School 1] staff and discussed by the IEP Team.

15.   The IEP Team considered the following information, which it had previously
      considered in preparing an IEP for the 2003-04 school year:

      - In May 2003, Dr. XXXX gave [Child] the WISC-III, an intelligence test for
      older children, between ages 6-16. [Child] performed in the average range in
      verbal and full scale. There was more variability in his verbal scores than in his
      performance scores. [Child] had more difficulty on the vocabulary and
      comprehension parts of the verbal subtests in the WISC-III. [Child] had difficulty
      sounding out words but knew a number of words by sight on the Woodcock-
      Johnson administered in 2002.

      - Dr. XXXX also administered the CTOPP test to [Child] on May 21, 2003 to
      evaluate his reading skills, and to break down his reading abilities. [Child] did
      well in rapid naming (79th percentile); but was far weaker in phonological
      memory (8th percentile) and phonological awareness (21st percentile). This
      indicates that [Child] is able to do sight-reading but is weaker in phonological
      processing skills. As the reading becomes more complex, he will not be able to
      compensate as well through sight reading without having appropriate
      phonological awareness and memory skills.

      - In the fall of 2003, Dr. XXXX administered the Woodcock-Johnson cognitive
      test to clarify [Child]’s difficulties with processing information in the classroom.
      [Child] scored quite low in areas that relate to processing language, including
      verbal comprehension (abstract language tasks) (3rd percentile); visual auditory
      learning (visual symbols that represent words) (5th percentile); and concept
      formation (abstract visual and auditory classifications) (8th percentile). These
      results reflect that [Child] had difficulty with abstract concepts, and pulling
      information together. He was also unable to use his language base to figure out
      words that he did not readily know through their context. [Child] has difficulty
      with more complex language tasks, the organization of language, and cognitive
      flexibility and the shifting of words and tasks. These deficits impact [Child]’s
      ability to learn.

      - Dr. XXXX issued two reports on May 21, 2003. The first report issued on the
      same date included the results of the WISC-III, Woodcock-Johnson Test of
      Achievement, and the CTOPP. Dr. XXXX’s diagnostic conclusions are the same
      in the two reports. However, the more comprehensive report concludes that
      [Child] is functioning in the average range of intelligence with some scatter to the
      high average range. This conclusion is not contained in the shorter report that
      only addresses the CTOPP test.
                                        6
      - Dr. XXXX evaluated [Child] in July 2003. [Child] was successful in
      improving his decoding skills since September 2002. He was more
      communicative and his lexical decoding (speech sounds) improved. The testing
      also demonstrated that his phonemic decoding (words) had improved, as well as
      his auditory memory problem. His sensitivity to noise also improved. However,
      [Child] still had difficulty with integration and overload. He also has a general
      attention problem where he has difficulty in focusing his attention on a relevant
      task. Although improved was noted in his decoding so that it was age-appropriate,
      he still had moderate to severe auditory integration issues. Dr. XXXX
      recommended that [Child] receive one hour per day of individual speech/language
      services.

      (FCPS Ex. #1)

16.   The IEP Team also considered the following information, which had not been
      available the previous year:

      - Dr. XXXX administered the Rhyming subtest of the Phonological Awareness
      Test (PAT) on March 25, 2004. The Rhyming test has two sub-parts,
      Discrimination and Production, as well as a total score. [Child] scored at the 59th
      percentile in Discrimination and the 34th percentile on the Production task. These
      scores indicated a significant improvement over previous testing in November
      and December 2001, and Dr. XXXX concluded that Rhyming was no longer a
      deficit area for [Child]. ([Child] #29)

      - Dr. XXXX observed [Child] at [School 1] for about one and one-half hours on
      April 1, 2004. She noted that he worked very well in small groups and benefited
      from individual and small group instruction. However, when asked to work
      independently, he had difficulty initiating activities and with executive functions
      (how to start, what to do first, etc.) His tendency was just to sit and wait and not
      get much done. Structure and feedback from teachers was needed, and was
      provided. ([Child] #30)

      - [School 1] IEP, dated October 23, 2003 ([Child] #28)

17.   At the IEP meeting, XXXX XXXX, Special Education Teacher, [Child]’s
      classroom teacher at [School 1], reported that [Child] had made good progress in
      reading, and was reading at the mid-second grade level. He has a strong sight
      word vocabulary, with needs in the areas of application of phonetic skills and
      comprehension. Math is an area of strength, and he was being instructed on a
      third grade level, although application of math concepts and solving word
      problems were areas of need. Written language was characterized as “laborious”
      and “an area of significant need” for [Child]. He was performing at the low
      second grade level in written language. Writing is taxing for [Child], and he is
      resistant to completing any written assignment. Ms. XXXX reported that [Child]
      has difficulty accepting responsibility for his daily tasks and assignments,
      preferring to let adults do things with him and for him, and he typically asks for

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      adult assistance before beginning any task or assignment, including such things as
      packing and unpacking his backpack. He rarely completes work independently,
      and needs ongoing and consistent adult prompting and attention. ([Child] #31)

18.   Ms. XXXX reported to the IEP Team that [Child] displays sensitivity to
      certain smells and textures. He has difficulty with transitions, changes in routine,
      and accepting new ideas and tasks. His interactions with peers are appropriate in
      small group, structured settings, but during recess he prefers to play alone, and
      declines when teachers encourage him to join playgroups. He prefers the
      company of adults and needs ongoing redirection to attend to play or academic
      groups of peers. His attention to task appears to be directly related to his level of
      interest in the topic. ([Child] #31)

19.   XXXX XXXX, Occupational Therapist, reported that [Child] is easily
      fatigued due to his sensory modulation difficulties. She described [Child] as
      energetic and craving movement. His low muscle tone affects both his fine and
      gross motor skills, and he has difficulty participating in physical activities. She
      added that auditory stimuli can be distracting to [Child], and he has difficulty
      tuning out noises in his environment. He has difficulty with handwriting, and is
      easily frustrated and fatigued by writing, cutting, and coloring tasks. [Child]
      requires motor planning in this area. ([Child] #31)

20.   Ms. XXXX, Speech/Language Pathologist, [School 1], stated that [Child] has
      made progress toward achieving his speech/language goals, but his performance
      in the classroom is less strong than test scores might indicate. Dr. XXXX
      reported that [Child]’s attentional issues require that he receive ongoing
      interventions. Dr. XXXX noted that he has seen some growth in [Child]’s skills,
      but applying those skills remains a challenge. ([Child] #31)

20.    The IEP Team agreed to reconvene on May 27, 2004 to review and approve the
      Child’s proposed draft IEP, determine the services required to implement his IEP,
      and recommend a program and placement for [Child].

21.   On April 28, 2004, XXXX XXXX, Speech/Language Pathologist, FCPS,
      forwarded proposed speech and language and social skills goals to XXXX
      XXXX, [School 1], seeking her input. ([Child] #32) Ms. XXXX and Ms. XXXX
      responded on May 13, 2004, with some suggestions. They also furnished a copy
      of the portion of the [School 1] IEP for 2004-05 relating to speech/language.
      (([Child] #38)

22.   The [School 1] IEP meeting took place on May 26, 2004. ([Child] #51-A)

23.   The FCPS IEP Team reconvened as scheduled on May 27, 2004 to discuss a
      proposed draft IEP for [Child] dated May 24, 2004. The draft summarized the
      information provided by [School 1]. The IEP recommended a general education
      classroom with special seating (front of the room or study carrel), with repetition
      of directions as needed and extra response and processing time. Proposed
      classroom modifications included, among other things, rephrasing and having

                                        8
      [Child] repeat directions, explaining changes in routine, breaking tasks into
      smaller segments to be completed step by step, using visual aides where
      appropriate. ([Child] #48)

24.   [Child]’s mother brought to the May 27, 2004 IEP meeting a copy of the [School
      1] IEP, which had been prepared the previous day, an OT report, dated February
      2004, and an Annual Speech/Language Report, dated January 2004 (both of
      which she received at the IEP meeting on May 26, 2004), and Lindamood Bell
      testing results. ([Child] #51-A)

25.   [School 1] staff (XXXX, XXXX, XXXX, XXXX, and XXXX) participated in the
      May 27, 2004 IEP meeting via telephone conference. There was extensive
      discussion among team members regarding the wording and evaluation criteria for
      specific objectives in behavior management, reading, and self-management.
      ([Child] #50)

26.   Reading goals developed for [Child] at [School 1] were similar in content to those
      proposed by FCPS. Ms. XXXX, [School 1], and Ms. XXXX, FCPS, had reached
      agreement regarding [Child]’s speech/language goals. ([Child] #50) The IEP
      Team agreed that it would reconvene once more.

27.   The FCPS IEP Team reconvened on June 17, 2004. The Team made additions to
      the IEP following discussion of the various goals and objectives contained in the
      draft. For example, when Dr. XXXX expressed concern regarding [Child]’s
      attention difficulties as well as his weaknesses in understanding directions. She
      noted that while [Child] is capable of repeating directions, he might not always
      understand what is expected of him. The Team added “Check for understanding”
      to the Classroom Modifications list. The conditions listed under two of [Child]’s
      self-management goals were adjusted to include “reminders and fading verbal
      prompts”. After discussion, additional speech/language and social skills goals
      were included in the updated draft IEP. ([Child] #56)

28.   The IEP Team approved the goals and objectives of [Child]’s updated draft IEP.
      Based on the approved goals and objectives of the IEP, the following services
      were recommended:
      - 3rd grade in a general education classroom of 24 to 26 students
      - Special Education, three hours per week
      - Speech/Language Therapy, one hour per week
      - OT, 30 minutes per week
      - Assistant Support, 32.5 hours per week
      - Social Skills training

      ([Child] #57)

29.   The Team agreed that the IEP should be reviewed within 60 days of its
      implementation, or sooner. Social skills training would be provided during the
      speech/language therapy sessions and practiced throughout the school day. Both
      Ms. XXXX (special education teacher) and Ms. XXXX (speech/language

                                       9
                pathologist) would consult with [Child]’s teachers and service providers on an
                ongoing basis regarding the implementation of his IEP. Ms. XXXX (occupational
                therapist) agreed to consult with Ms. XXXX (OT at [School 1]) regarding
                [Child]’s OT needs, and revise his OT goals and objectives as appropriate.
                ([Child] #56)

        30.     At the conclusion of the IEP meeting, [Child]’s mother indicated her
                disagreement with the proposed IEP and placement. She further indicated that
                she would ask her consultant, Dr. XXXX, to review and comment on the
                proposed IEP.

        31.     In a report dated July 16, 2004, Dr. XXXX voiced her concerns about the
                IEP. She expressed certainty that the 58 objectives contained within seven goal
                areas6 could not be serviced in three hours per week of special education. She
                expressed concern that an instructional assistant, of unknown capability, would be
                effective in delivering services to [Child]. She also disagreed with the wording of
                some of the objectives, or found them to be incapable of being measured.
                ([Child] #60)

        32.     On September 8, 2004, the IEP Team met to review Dr. XXXX’s report. The
                Team provided a list of clarifications in response to Dr. XXXX’s report. The
                Team discussed the degree to which collaboration took place between [School 1]
                and [School 2] in the development of [Child]’s IEP. The Team continued to
                recommend that the IEP be implemented at [School 2]. ([Child] #62)

        33.     [Child]’s parents disagreed with the IEP Team’s recommendations, and
                enrolled [Child] at [School 1] for the 2004-05 school year.

        34.     [Child] is currently attending his third grade year at [School 1]. The class is not
                identified as a third grade class, but is instead grouped by age, ability, and social
                maturity level. [Child] does not have a one-on-one aide at [School 1].

        Was the IEP prepared by FCPS appropriate?

        35.     [Child] has the following deficiencies/areas of need:
                - decoding skills
                - difficulty gaining meaning from what is read, and internalizing information
                - lack of motivation to write in the classroom
                - writing is laborious – physically fatiguing as well as frustrating
                - writes simple sentences with poor capitalization, spelling and punctuation
                - difficulty with self-editing and reading his own written work
                - some written responses show no connection to understanding prompt/question
                   or information
                - difficulty working independently


6
 Behavioral Management; Occupational Therapy; Reading; Self-Management; Social Skills; Speech/Language; and
Written Language.

                                                    10
      -   disengages from activity when overloaded or when uncertain of task
          expectations or directions
      -   difficulty maintaining focus, especially if uncomfortable with task
      -   craves movement and has some difficulty defining personal space
      -   needs encouragement to persist on tasks and relies on teacher guidance
      -   relative weaknesses in speech/language include receptive vocabulary,
          recalling sentences, and using exclusion and temporal words
      -   significant weaknesses in speech/language in areas of abstract language,
          including identifying and solving problems and making inferences
      -   attention is a primary deficit area, the problem being with poor self-regulation
          more than distractibility to background noises
      -   auditory integration, such as problem-solving, task analysis, and critical
          thinking is an area of deficit
      -   receptive language difficulties are seen more within the classroom than what
          testing shows
      -   difficulty with paragraph comprehension and following directions in the
          classroom
      -   syntax errors in wording of questions
      -   plays alone during recess
      -   difficulty with functional task of cutting, i.e., accurately turning paper within
          his hand while managing scissors with his dominant hand
      -   occupational therapy deficits include space visualization, figure/ground
          perception, manual form perception, kinesthesia, graphesthesia, praxis on
          verbal command, design copying, postural praxis, oral praxis, sequencing
          praxis, standing and walking balance

36.   [Child] has participated in some sports and Boy Scouts with typically developing
      peers. He has had difficulty maintaining age-appropriate conversation and
      making friends. (testimony of [Child]’s mother)

37.   Children attending [School 1] all have learning disabilities, but some have good
      social skills which [Child] can model. [Child] works reasonably well with his
      peers at [School 1]. (testimony of XXXX)

38.   [Child] requires a multisensory approach in order to learn, a setting in which
      multiple needs can be met at once. He does not benefit from a standard oral
      presentation of information. He gets lost and disengages. He does not engage in
      disruptive behavior, but simply does not do the work. (testimony of XXXX)

39.   [Child] needs redirecting every few minutes, and requires a small group setting.
      He requires specialized instruction to benefit from reading and language classes
      due to his reading and written language issues. He also requires direction to
      interact with his peers. (testimony of XXXX)

40.   [Child] has difficulty processing information in a noisy environment, and is
      unavailable for learning when distracted by loud, unexpected noises, such as
      children in a hallway outside the classroom. (testimony of XXXX)


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41.   In a classroom with several small groups, [Child] is distracted by other groups
      in the room. This impacts negatively on his ability to focus and to learn.
      (testimony of XXXX)

42.   Auditory processing is one of [Child]’s chief weaknesses. A large classroom
      would be detrimental to [Child]’s ability to learn. He often does not understand
      what other children are doing, and he needs specific strategies to understand what
      is being asked of him. [Child]’s language comprehension and auditory processing
      issues make it difficult for him to focus in class. He requires re-explanation. He
      does well in small groups, the smaller, the better. (testimony of XXXX and
      XXXX)

43.   [Child] has a mild delay in expressive and receptive language and a moderate to a
      severe delay in abstract language. This impacts [Child] in an academic setting
      because he must be able to infer meaning from things that are not stated directly.
      One hour of speech/language services per week is not enough. [Child] needs two
      40 to 45-minute sessions of individual speech/language services per week.
      (testimony of XXXX)

44.   [Child] experiences tactile defensiveness, auditory defensiveness, and oral
      tactile sensitivity. He is very visual and uses vision as his best way to learn. He
      is very active and is constantly moving. These issues impact [Child]’s
      educational performance because when he becomes overwhelmed or overloaded,
      he shuts down and becomes unavailable for learning. If [Child] is dealing with
      defensiveness issues, then he is not able to pay attention to instruction and that
      can impact him throughout the school day.

45.   [Child] has moderate to severe Occupational Therapy (“OT”) needs and requires
      direct OT services in the school environment. [Child]’s sensory deficits decrease
      his ability to meet performance demands at school and in play. [Child]’s low
      muscle tone, sensory modulation issues, constant movement, and fixation patterns
      drain his energy, interfere with his ability to learn, and cause him to be fatigued,
      tune out, and become overwhelmed. He has delayed motor skills compared to
      other children his age. He has difficulty with handwriting and tool manipulation.
      His skills are not at age-appropriate levels, and he would stand out in a general
      education setting. (testimony of XXXX)

46.   Thirty minutes per week of OT, as proposed by FCPS, is sufficient to make
      educational progress, because handwriting is not part of OT at FCPS. Rather, it is
      part of the general third grade curriculum. [Child] is currently receiving 50
      minutes of direct Occupational Therapy at [School 1], but this includes
      handwriting. The FCPS IEP as it pertains to OT, appropriately provides for direct
      services to be supplemented by integrated services in the classroom. [Child]’s OT
      needs impact him throughout the entire school day, so there also needs to be
      regular consultation between the OT, and the other adults who work with [Child].
      Many OT techniques are easily taught. (testimony of XXXX and XXXX)


                                       12
          47.    Overall, the proposed IEP prepared by FCPS does not provide the services
                 necessary to enable [Child] to meet the goals and objectives on his IEP.

          48.    [Child] does not need a one-to-one instructional aid. At this time, he needs to be
                 educated within a multisensory, integrated services program.

                                            DISCUSSION

A. Applicable Law

          Under both federal and state law, students with disabilities have the right to a free

appropriate public education. The applicable federal law, the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C.A. § 1400-1487 (2000), provides federal assistance to state

and local education agencies for the education of learning disabled students. As a condition of

this assistance, the respective state and local public educational agencies must have in effect

policies and procedures which assure that children with disabilities residing in the State have the

right to a “free appropriate public education” “that emphasizes special education and related

services designed to meet their unique needs….” 20 U.S.C.A. § 1400(d)(1)(A); 1412(a)(1)(A)

(2000).

          The IDEA specifically charges the States to deliver special education designed with the

unique needs of [Child] in mind, along with sufficient related services to permit [Child] to

benefit educationally from instruction. It provides federal money to the states to educate

disabled children on condition that states comply with the extensive goals and procedures of the

Act. 20 U.S.C.A. §§ 1412-1414 (2000), 34 C.F.R. § 300.2 (2002); Board of Education of the

Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 173, 102 S.Ct. 3034 (1982).

          Maryland’s General Assembly and the State Board of Education have enacted laws and

regulations implementing the IDEA for Maryland’s students. Maryland’s special education law

is found at Sections 8-101 to 8-417 (2001) of the Education Article of the Annotated Code of



                                                   13
Maryland. The Maryland regulations governing the provision of special education to children

with disabilities are found at COMAR 13A.05.01.

       Under both federal and state law, children with disabilities have the right to a free

appropriate public education (“FAPE”). In relevant part, IDEA defines a FAPE as:

       special education and related services that (A) have been provided at public expense,
       under public supervision and direction, and without charge;…[and] (D) are provided in
       conformity with the individualized education program required under section 1414(d) of
       this title.

20 U.S.C.A. § 1401(8). Maryland law defines FAPE similarly. Md. Code Ann., Educ. § 8-

401(a)(3)(2001). A “free appropriate public education” as defined in IDEA is also incorporated

in COMAR. FAPE is defined at COMAR 13A.05.01.03B(24) as special education and related

services that:

                 (a) Are provided at public expense, under public supervision and direction;
                 (b) Meet the standards of the [State] Department [of Education], including the
                        requirements of 34 CFR 300 and 301, and this chapter;
                 (c) Include preschool, elementary, or secondary education; and
                 (d) Are provided in conformity with an IEP that meets the requirements of 20
                        U.S.C. § 1414, and this chapter.

       In Rowley, the Supreme Court defined a “free appropriate public education” as follows:

       Implicit in the congressional purpose of providing access to a “free appropriate
       public education” is the requirement that the education to which access is
       provided be sufficient to confer some educational benefit upon the handicapped
       child... We therefore conclude that the “basic floor of opportunity” provided by
       the Act consists of access to specialized instruction and related services which are
       individually designed to provide educational benefit to the handicapped child.

(Emphasis added.) 458 U.S. at 200-201. See also, In Re Conklin, 946 F.2d 306, 313 (4th Cir.

1991). The educational program offered to [Child] must be tailored to the particular needs of the

disabled child by the development and implementation of an individualized educational program

(“IEP”). 20 U.S.C.A. § 1414(d)(3). That document enumerates [Child]’s current educational

performance, sets forth annual and short-term objectives for improvements in that child’s

                                                 14
performance, and describes the specially designed instruction and services that will assist [Child]

in meeting those objectives. Id. at § 1414(d)(1)(A); see also, 34 C.F.R. § 300.347 and COMAR

13A.05.01.09A.

       In Rowley, the Supreme Court set out a two-part inquiry to determine if a local education

agency (“LEA”) satisfied its obligation to provide FAPE to a student with disabilities. The

Supreme Court noted that the first inquiry is whether a school district complied with the

procedures set forth in IDEA. The second inquiry is whether the IEP, developed through the

IDEA’s procedures, was reasonably calculated to enable a child with disabilities to receive

appropriate educational benefits. Rowley, 458 U.S. at 206-07.

       The procedural inquiry requires the decision-maker to determine whether the school

system complied with specific procedural requirements of the IDEA and it is a fairly

straightforward assessment of timelines, notices and other requirements. In contrast to the

procedural inquiry, a decision-maker addresses far more complex issues in the substantive

inquiry. The decision-maker must determine whether a child is receiving, or could receive,

beneficial instruction as a result of [Child]’s IEP and current placement.

       The question of what “appropriate educational benefit” means can be complex, and will

vary with the nature and degree of the disability and the unique needs of each child. Rowley.

Courts have defined the word “appropriate” to mean personalized instruction with sufficient

support services to permit [Child] to benefit educationally from that instruction. An

“appropriate” education, however, is not “[t]he best education, public or nonpublic, that money

can buy” or “all [the] services necessary to maximize [[Child]’s] potential.” Hessler v. Board of

Educ., 700 F 2d. 134, 139 (4th Cir. 1983), citing Rowley. While “appropriate” does not mean

“the best possible education that a school could provide if given access to unlimited funds,”

Barnett v. Fairfax Co. School Bd., 927 F. 2d 146, 154 (4th Cir. 1991), it does require the State to


                                                15
provide personalized instruction with sufficient support services to permit a child to benefit

educationally from that instruction. Clearly, no bright line test can be created to establish

whether a child is progressing or could progress educationally. Conklin v. Anne Arundel County

Board of Educ., 946 F.2d 306, 313 (4th Cir. 1991). Rather, the decision-maker must assess the

evidence to determine whether [Child]’s IEP and placement were reasonably calculated to enable

[Child] to receive appropriate educational benefit.

        “Educational benefit” means that [Child] goes from one level of knowledge to a more

advanced level of knowledge, that he or she makes some educational progress. What meets the

definition of “educational benefit” may vary depending on where along the spectrum of

disabilities a particular child is located. At the outer fringes of all those children classified as

eligible for special education services, the question of what constitutes educational benefit

becomes more difficult. At one end of the spectrum, a child could be so disabled educationally

that having that child in the classroom would require full-time nursing assistance to receive any

educational benefit whatsoever. See, e.g., Cedar Rapids Community Sch. Dist. v. Garret F., 526

U.S. 66 (1999). In this case, we are faced with a student who, because of difficulties with

reading, writing, and language, as well as social interactions, and sensory motor skills, has been

classified as speech and language impaired. Maryland follows Federal law which requires that a

child “advance appropriately toward attaining the annual goals [of the IEP].” 20 U.S.C. § 1414

(d)(1) (A)(iii)(I).

        Federal and state laws also require that children with disabilities be educated in the least

restrictive environment. The federal and state regulations require that state education agencies

insure, to the maximum extent appropriate, that children with disabilities are educated with

children who are not disabled. Those regulations require that the removal of children with

disabilities from the regular educational environment will occur only if the nature or severity of


                                                  16
the disability is such that education in regular classes (with the use of supplemental aids and

services) cannot be achieved satisfactorily. 34 C.F.R. § 300.550 (2002); COMAR 13A.05.01.10.

        With these legal requirements in mind, I conclude, as addressed below, that the Parents

have established by a preponderance of the evidence that FCPS failed to offer [Child] FAPE in

the June 17, 2004 IEP.7 ([Child] #57)

B. Provision of FAPE

        The issue in this case is whether the IEP developed at the June 17, 2004 IEP meeting is

reasonably calculated to provide [Child] with educational benefits.

        The Parents’ hearing request alleges that the IEP and placement proposed by FCPS is

inadequate to provide [Child] with FAPE, and is inappropriate to meet his complex needs. The

Parents further contend that [School 1] provides [Child] with an appropriate educational

program, and they seek tuition reimbursement and placement at [School 1] for the 2004-05

school year as a remedy for the denial of FAPE. FCPS contends that the 2004 IEP is reasonably

calculated to provide [Child] with educational benefit and will provide [Child] with FAPE.

        [Child] is an eight-year-old student who is coded as speech/language impaired on his IEP.

[Child] has deficits in the area of attention, reading (including decoding skills, general

comprehension, and phonological awareness), speech and language (including auditory

processing, pragmatic skills, semantic skills, and verbal expression), written language, social

skills (including group interaction and play skills), behavior management, self-management, and

occupational therapy (including motor planning, sensory awareness, and stability). [Child]’s

proposed June 17, 2004 IEP includes detailed goals and objectives in each of these areas.

([Child] #57)



7
 The IEP Team meeting convened on September 8, 2004 did not result in changes to the recommendations of the
June 17, 2004 IEP.

                                                     17
       The IEP proposes to provide [Child] with three hours per week of direct special education

services from a special education classroom teacher, one hour per week of direct

speech/language therapy, and one-half hour of OT per week. Additionally, the IEP provides for

32.5 hours per week of related services from a special education assistant. ([Child] #57)

       The [School 2] special education teacher, XXXX XXXX, testified that she believes the

goals and objectives and classroom modifications listed on the IEP are appropriate for [Child],

and that [School 2] could provide them. She stated that the IEP Team looked at the home school

as the first placement, and decided that [School 2] could provide an appropriate education

program for [Child]. Ms. XXXX disagreed with Dr. XXXX’s opinion that three hours of special

education services per week was not enough. She explained that not only the special education

teacher, but the regular classroom teachers, the assistants, speech/language pathologists and

occupational therapists all help to implement the IEP. She also stated that she would consult

with all of [Child]’s teachers on a weekly basis to plan for the following week, determine what

issues need to be addressed, and make necessary modifications to materials. She added that the

IEP sections on behavior management and self-management go hand in hand, and [Child]’s

needs in these areas are looked at all day in all settings. Once a child learns and is familiar with

a strategy presented to him in a one-to-one or small group setting, “it goes into the classroom”

where it is used with the support of the educational assistant.

       Ms. XXXX testified that she would provide services to [Child] in small groups of 6-10

children. In the general classroom, [Child] would probably be in a group of six for reading. She

explained that [School 2] uses a reading program called “[Program 1],” which is similar to the

“[Program 2]” program used at [School 1]. The [Program 1] program has three sections, coding,

word recognition and phrases, and short passages to read. Ms. XXXX stated that the program is

a fluency program that helps with building reading skills, and the students enjoy it.


                                                 18
       Ms. XXXX stated that she would be working with [Child] on his writing skills in a small

group of four students, usually in the resource room. What they learn would be carried back into

the general classroom. The assistant would be with [Child] in the resource room, and would

continue to guide him in the classroom.

       Ms. XXXX testified that [School 2] has other students with similar disabilities, who show

similar delays and deficits. She opined that [Child] would benefit from being taught strategies

that he could use automatically or with a reminder, that he would start setting goals that he sees

his peers setting, which would build confidence and lead to success. Also, [Child] has the ability

to take advantage of the content offered in a regular classroom education. Ms. XXXX added that

she believes [Child] would need his own study carrel to help him with independent work. It

would be off to the side so that some of the noise level was behind him, and there would be less

distraction. The witness stated that there are quite a few students at [School 2] who are sensitive

to noise. She stated that [Child] could eat his lunch in the resource room if the cafeteria was too

noisy. She did not think the classroom was too loud, and stated that students are supposed to

walk quietly in the halls. She further explained that giving students advance warning of noise to

come, such as a fire drill or a class coming down the hall, seems to help a lot. In summary, Ms.

XXXX stated that she thought [Child] would be successful at [School 2] because the school has a

lot of techniques and strategies that work for many students with varying disabilities, both more

severe and less severe than this child. The assistants work with them, and the students do

progress. As the students gain more confidence in themselves they become more independent.

       On cross examination, Ms. XXXX acknowledged that when he was in first grade at

[School 3], [Child] had difficulty understanding directions in a group setting of 12 students, even

with the assistance of an aide. The witness agreed that the progress [Child] has made at [School

1] has been in small groups and he needs a small group setting to be successful.


                                                19
       XXXX XXXX, a speech/language pathologist with FCPS who works at [School 2],

testified that she would provide [Child] with one hour per week of direct speech/language

therapy, including social skills, on a pull-out basis in either two 30-minute sessions or three 20-

minute sessions. She explained that the special education assistant would participate in the

speech/language sessions and social skills training so that the aide could assist [Child] in the

classroom with social skills activities, following directions, and by facilitating and reinforcing

skills learned in the SL therapy sessions.

       Ms. XXXX testified that, with all the expert information and [School 1] providing their

information, she had sufficient information to say that one hour of services per week is

appropriate for [Child], given the other support he would receive from the special education

assistant and the special education teacher.

       XXXX XXXX, who provides OT services to FCPS students, described various OT

techniques she would use with [Child], such as the use of a sit-and-move cushion, the use of

deep pressure for calming, a weighted vest, or a therapy ball. She stated that she would train

other people who are with [Child] every day to use the techniques, which are easily transferred to

other people. OT is a related service for special education. The role of an OT is to assist

disabled children who receive special education services to benefit from their education. Ms.

XXXX opined that even with his sensitivity to noise, [Child] could probably function in the

public school setting. She would insist on the use of three-line paper for [Child]’s written work.

The witness stated that she believes 30 minutes of direct OT services per week would be enough

time to work on strategies that [Child] could apply in the classroom. She would also train the

adults that are around him to help.

       The IEP also provides for the related services of a special education assistant (“aide”) in

the classroom for 32.5 hours per week. The aide is clearly an important component of [Child]’s


                                                 20
IEP, from FCPS’ perspective. [School 1]’s position is that [Child] does not need an assistant, in

light of its program of integrated services.

       The Parent has argued that based on [Child]’s attentional, language, and sensory

processing issues, he requires a small classroom, and that the general education class with 24-26

students proposed by FCPS, is inappropriate for [Child]. The evidence in this record

demonstrates that [Child] requires a smaller learning environment to receive meaningful

educational benefit as a result of his attentional, language, and sensory processing issues.

       Ms. XXXX testified that she frequently provides her services to small groups.

Additionally, reading and math instruction is regularly conducted in small groups in third grade,

although there may be several groups working simultaneously in the same classroom. The

speech/language pathologist also provides therapy to [Child] individually or with the aide.

However, under the program and placement proposed in the IEP, [Child] would receive much of

his instruction in a general education classroom, which relies on traditional oral presentation of

content material. The FCPS IEP assumes that what is taught to [Child] in small groups will carry

over into the general education classroom. The IEP relies heavily on an educational assistant to

“guide” [Child] through his school day.

       [Child]’s mother testified that she did not think the IEP provided enough hours of special

education, speech/language services, and OT. Based largely on the opinion of Dr. XXXX, the

Parent disagreed with the wording of numerous goals and objectives on the IEP, and contends

that they are not measurable.

       Evidence regarding the IEP meetings in April through September 2004 demonstrates that

the IEP team considered the recommendations by Dr. XXXX XXXX, an audiologist and speech/

language pathologist, that were offered by the Parents, as well as the reports written by Dr.

XXXX and Dr. XXXX. The IEP team considered input from Ms. XXXX, [Child]’s special


                                                 21
education teacher at [School 1], Ms. XXXX, the OT at [School 1], and Ms. XXXX and Ms.

XXXX, speech pathologists. Team reconvened on June 17, 2004. The Team made additions to

the previously prepared IEP draft, following discussion of its various goals and objectives, and

consideration of the information provided by [School 1].

           It was abundantly clear throughout the seven-day hearing that the professionals who work

with school children at both [School 1] and [School 2] are selfless, hard-working people who care

deeply about the importance of educating children, and who are dedicated to this end. Almost

without exception, they impressed me greatly, not only with their knowledge and experience, but

also with their love of teaching, and their determination to help every child to learn. I, however,

found Mr. XXXX to be a rather weak witness. Having been summoned to testify for the Parents,

he appeared very nervous, and I found many of his answers to be nonresponsive to the questions

put to him. I found it very noticeable and rather distracting that when asked a question by Mr.

Gruber, he would look to Mr. Nussbaum, FCPS’ attorney as he answered, as if seeking approval.8

Mr. XXXX appeared to be trying very hard to put a “positive spin” on everything he said. Some

of his testimony troubled me, however. For example, he stated that “We (the IEP Team) looked

at what would be appropriate for [[Child]], based on what we could provide at [School 2].” (Tr.

p. 131) This statement gives the impression that available services were driving the IEP, rather

than [Child]’s individual educational needs. The issue before me is not whether IEPS from

[School 2] have been successful with other children who may have similar delays or deficits,

rather, it is whether this IEP is appropriate for this individual child. I conclude that it is not.

           FCPS educators maintain that their program for [Child] is appropriate, and to support this

opinion, several of the witnesses stated that [School 2] has other students with similar

disabilities. The basis for my conclusion that the IEP proposed by FCPS for the 2004-05 school


8
    I do not think Mr. Nussbaum was aware of this behavior, and he certainly did nothing to encourage it.

                                                           22
year was inappropriate is, essentially, failure of the school system to consider [Child] as an

individual. In order to provide FAPE, the IEP must be specifically designed to meet the unique

needs of [Child] whose disability affects his ability to learn. The educational instruction must be

supported by whatever services are necessary to permit [Child] to benefit from instruction.

       As discussed above, the law does not require that a child be given the best education

available, but it must provide personalized instruction with sufficient support services to permit a

child to benefit educationally from that instruction. In this case, I found that the witnesses called

by the Parent established with certainty that [Child] has many needs – to name only a few, he is

very deficient in written language, which impacts all areas of his education. He has been

diagnosed with a reading disorder, and he has needs in all aspects of reading, from coding to

comprehension, that need to be addressed. He has sensory issues that affect his ability to tolerate

stimulation – this affects his attention and activity level severely and constantly. He is distracted

by noise, not only loud, unexpected noise, but almost any noise can divert his attention from

learning. He needs to be redirected every few minutes. This is ongoing. [Child] has poor

muscle tone, fine motor difficulties, and has difficulty conversing appropriately with other

children. He needs structure as well as adult involvement in the school setting.

       Despite his complex needs, this is a child who is intelligent and has the ability to succeed

educationally. He has made progress under the intensive, integrated special education program

provided by [School 1]. At [School 1], the goal is to return [Child] to public school. The 2004-

05 school year was not the time to do this. Next year may be, or the year after that.

       [Child]’s most important need is small group instruction, not just three or four hours a

week, but all the time. Having heard in great detail and at great length from the educators who

are most familiar with his needs and abilities, and from his mother, whose down-to-earth

testimony enabled me to see and relate to [Child] as if he were in the room, I am absolutely


                                                 23
convinced that [Child] cannot learn in a large classroom setting. He freezes up, he shuts down,

he simply sits and does nothing. Even in small groups, he needs constant prompting and

encouraging, especially when his disabilities leave him frustrated and fatigued. In addition to a

reduced class size, [Child] also needs reduced stimulation, including minimal noise and multi-

sensory instruction. Placing him in a general education classroom with two dozen other students

is, in my opinion, destined to fail at this point in [Child]’s life.

        The evidence presented at the hearing also convinces me that [Child] does not generalize

what he learns in a small group to a larger classroom setting. The ability to take the strategies he

is taught by the special education teacher and the speech/pathologist back to the classroom is an

assumption inherent in the FCPS’ IEP, one that is erroneous. This is why the three hours of

direct special education services and one hour of direct speech/language services per week

proposed by FCPS are insufficient to meet [Child]’s unique educational needs.

        I do believe the 30 minutes of OT per week proposed by the FCPS IEP is sufficient.

[Child] currently receives 50 minutes per week at [School 1]. Ms. XXXX explained that at

FCPS, handwriting is covered in the general third grade curriculum, and that some eight-year-

olds have handwriting that is much worse than that of [Child]. Ms. XXXX also detailed the ease

of training other adults who work with [Child] in effective OT techniques. Her testimony

persuades me that reducing [Child]’s OT to 30 minutes per week under these conditions would

not be a detriment to his ability to benefit from educational instruction.

        In determining that [Child] should be placed at [School 2], I find that the IEP Team

neglected to give due consideration to [Child]’s individual characteristics, i.e., what works for

him. The Team did welcome input from [School 1], obtained primarily through the Herculean

efforts of [Child]’s mother, but at the same time, the Team never really considered any

placement other than [School 2]. Several of the [School 2] witnesses made it clear in their

testimony that they believed [School 2] was an appropriate placement for [Child], and the
                                               24
analysis of placement stopped there, the home school being seen as the least restrictive

environment in which to place [Child]. Actually, there would be nothing wrong with this

approach if [School 2] was indeed able to meet [Child]’s educational needs, but as I have stated,

I find this not to be the case.

        There is no question that a child with a learning disability derives benefit from

associating with nondisabled peers. However, this cannot take priority over [Child]’s needs in

accessing educational instruction. In this case, evidence has been presented to show that

[Child]’s awareness of what other children are doing is minimal, and he does not model his peers

to any noticeable extent. Nonetheless, the students at [School 1], while learning disabled, are not

all without appropriate social skills. I do not believe that a placement at [School 1] deprives

[Child] of benefits he can obtain from being around other children. Further, for the reasons

stated above, I conclude that the nature and severity of [Child]’s disability is such that an

educational environment more restrictive than the program offered by the home school is

appropriate in this case.

        In order to establish their entitlement to reimbursement, the Parents must meet the burden

of proving both that the school system did not offer FAPE and that their private school

placement of [Child] is appropriate. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15,

114 S.Ct. 361, 126 L.Ed.2d 284 (1993). I conclude that both of these requirements have been

met.

                                   CONCLUSIONS OF LAW

        Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law,

that the June 17, 2004 IEP proposed by the Frederick County Public Schools failed to offer

[Child] a free appropriate public education, as required by the IDEA, that is reasonably

calculated to provide [Child] with meaningful educational benefits. 20 U.S.C.A. § 1401 (2000);

20 U.S.C.A. § 1412; Md. Code Ann., Educ. § 8-413(i); COMAR 13A.05.01.
                                            25
        I further conclude, as a result of my finding that the School System has not offered

[Child] a FAPE, that the Parents’ request for reimbursement for placement of [Child] at [School

1] for the 2004-05 school year is to be granted.

                                             ORDER

        I ORDER that the June 17, 2004 IEP proposed by FCPS failed to provide [Child] with a

FAPE, and, therefore, the Parents’ request for reimbursement for the cost of placing [Child] at

[School 1] for the 2004-05 school year, is GRANTED.



April 1, 2005                                 _________________________________
Date                                          Susan Officer
                                              Administrative Law Judge
SO/cf




                                       REVIEW RIGHTS

        Within 180 calendar days of the issuance of the hearing decision, any party to the hearing
may file an appeal from a final review decision of the Office of Administrative Hearings to the
federal District Court for Maryland or to the circuit court for the county in which the student
resides. Md. Code Ann., Educ. §8-413(h) (1999).

        Should a party file an appeal of the hearing decision, that party must notify the Assistant
State Superintendent for Special Education, Maryland State Department of Education, 200 West
Baltimore Street, Baltimore, MD 21201, in writing, of the filing of the court action. The written
notification of the filing of the court action must include the OAH case name and number, the
date of the decision, and the county circuit or federal district court case name and docket number.

        The Office of Administrative Hearings is not a party to any review process.




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