Post by wrblack on Jul 13, 2007 12:56:06 GMT -5
Lifted from another board. Has nothing to do with me and I had nothing to do with it. But I found it interesting reading, though a bit long.
<< BEFORE THE TENNESSEE STATE DEPARTMENT OF EDUCATION
IN THE MATTER OF: )
)
METROPOLITAN NASHVILLE PUBLIC )
SCHOOL SYSTEM )
)
) Cause No.: 07-04
v.
)
) Michael E. Spitzer
) Administrative Law Judge
B.C.
)
ORDER
I. PROCEDURAL FACTS AND HISTORY
B.C. is a ten year old student enrolled in a Moderate Intervention
Program-Fragile (MIP-F) within the Metropolitan Nashville Public
School System.(Ex 1.207-222). B.C. was identified for IDEA services
as Developmentally Delayed on January 27, 2003.(Ex. 1,pp 305-323).
Subsequently (3 years later) in January of 2006 the IEP team
conducted a re-evaluation and discussed the need
for further cognitive testing. At that time the team concurred that
further testing was not necessary and further deemed B.C. eligible
for special education and related services pursuant to an
identification of Speech Impairment and Language Impairment. (Ex. 1
pp. 324-327).
When the 2006-2007 school year resumed, B.C. was placed in a new
classroom, met with a new speech/language pathologist, new
occupational therapist, new resource teacher and the system withdrew
the full-time educational assistant from B.C.'s program. Whether or
not related to the change in "environment", B.C. began to
have behavioral concerns and his past rate of progress slowed.
Principal Steve Breese noticed that B.C. exhibited new behavioral
concerns that affected his program and were becoming disruptive to
the school environment. In spite of this, however, Principal Breese
testified that he was aware that B.C. was still making progress under
his, then existing, IEP.
Due to the changes noted in B.C.'s response to the new school year,
there were numerous IEP meetings. At these meetings, the parents and
teachers developed an agreed upon IEP and B.C., again, began to show
progress in meeting his goals.
At one of these meetings ( September 2006) it was determined that
B.C. would be placed in the MIP-F
classroom with Ms. Denny and then subsequently in January of 2007
B.C. was moved again to Mr. Staubitz MIP-F classroom. While these
changes disrupted B.C.'s academic stability and progress to some
extent, B.C. continued to make progress even though goals and
objectives were not fully met.
The parents attribute the lack of significant progress to the system's
withdrawal, in late 2006, of the full time educational assistant who
had worked with B.C. prior to that time. The full time assistant was
not re-instated over the parent's objection.
II. ISSUE
Whether or not the petitioner, Metropolitan Nashville Public School
System is entitled to conduct additional evaluations of a student
over the objections of the parents
(B.C. was initially evaluated and then re-evaluated in three(3)
years. He is currently working under an approved IEP. The school
system believes that it is their duty to further evaluate B.C. in
order to determine his strengths and weaknesses, cognitively and to
assist in determining exactly what B.C. can do rather than what he
wants to accomplish. The parents feel that the request by
the school system is a pretext and unnecessary. The parents ground
their concern in the fact that a school psychologist, Beverly Whalen-
Schmeller, was asked by the system to visit a "life skills class"
after her involvement with B.C. Further the parent's state that they
are satisfied with the IEP developed for B.C and he is progressing
under the present plan. Finally, almost every witness who testified
at this hearing stated that they believe B.C. also meets the criteria
for a mentally retarded designation as well as speech/language.)
III. DISCUSSION
A. Legal Basis for Review:
The purpose of the Individuals with Disability Education Act is to
guarantee that children with disabilities have access to a free
appropriate public education. 20 U.S.C. 1400 (d)(1)(a). Pursuant to
the parameters of IDEA, a school system is required to, in effect,
find those children who are in need and provide a system whereby all
such children can be identified and have their special needs met. (34
C.F.R. 300.111)
Under the system ,as mandated by Congress, the school system is
required to conduct an initial evaluation to determine if a child
qualifies for services and, if so, develop an individualized
educational program (IEP) for that child.
20 U.S.C. 1414 (d)(1)(A). Evaluations are not solely the
responsibility of psychologist and medical practitioners, but are to
include a team of educational professionals made up of teachers,
special education advisors, administrators, the parent(s) and any
other person "with special expertise" 20 U.S.C.
1414(d)(1)(B).
The goal or objective of the initial evaluation and subsequent
evaluations is to assist in the creation of an Individualized
Educational Plan which is best suited to meet the special needs of
the child evaluated. The IEP must include (1) statements of the
child's present level of educational performance, (2)measurable
annual goals, and (3) the special education and related services as
well as supplementary aids and services that will be provided to the
child. 20U.S.C. 1414(d)(1)(A).
In the present case, neither party raised, either at the hearing or
in the pre-trial statements, any issue related to procedural
violations. The sole issue raised was whether or not the school
system could, via a due process hearing, override the parents refusal
to allow additional cognitive testing for their child.
Therefore, this Administrative Law Judge turns to the question of
whether or not the IEP for B.C. is reasonably calculated to enable
B.C. to receive educational benefits. Board of Educ. Of Hendrick
Hudson Cent. Scho. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct.
3034, 73 L.Ed2d 690 (1982). Metropolitan Nashville School System
filed the request for hearing and clearly they have the burden by
proving by a preponderance of the evidence that the IEP devised by
it's own professionals and the parents is inappropriate. McLaughlin
v. Holt Public Shcools Board of Education 2003 WL 397586 (6th Cir.
(Mich))
In the present case, it is apparent that B.C has parents who are
involved and want to participate with the school system to develop an
appropriate educational plan. Parents and school personnel working
together have gotten over the bumpy waters of a change from grade to
grade, teacher to teacher and even a somewhat drastic revision in the
program. As late as September 2006, the IEP team concluded that the
previous disability for B.C. continued to exist and B.C.
needed special education services. Further, and more important, the
team concluded that the present or proposed educational program and
related services were appropriate to meet the student's stated annual
goals. (Ex. 14)Everyone agreed that while goals were not entirely
met, B.C. was making progress.
This Administrative Law Judge heard testimony from almost each
witness and reviewed the various IEP's,, and from all of which, it is
apparent that B.C. has the ability to learn and that he is making
progress.
A. Testimony this Administrative Law Judge feels is significant:
1. Mr. Breese the school principal: While Mr. Breese, the
principal, states that he would like to have some cognitive testing
to determine B.C.'s strengths, he also signed off on the IEP at each
level, basically agreeing that the present plan was appropriate.
(Exhibit 17). However, Mr.Breese went further to say that B.C. was
not meeting his goals (only 80% mastery) and the system would like to
know if B.C. is simply not capable of meeting these goals. Mr. Breese
feels this can only be determined from a cognitive test.
2. John Staubitz the classroom teacher: B.C.'s present teacher, John
Staubitz found that B.C. exhibited inconsistent behaviors and
believes that he may be guessing at some of his answers. Mr Staubitz
would like to have a cognitive test to determine the present level of
functioning of B.C. Mr. Staubitz believes test results will tell him
if B.C. can do better or if his failures are based on his lack of
effort. (Tr. p.258). However, Mr. Staubitz openly admits that when
there is consistency in the academic environment, B.C.
does make progress. (Exhibit 30)
3. Dr. Whalen-Smeller the school psychologist: Dr. Beverly
Whalen-Smeller, a licensed school psychologist testified that B.C. had
significantly low scores on prior tests and surmised that there were
cognitive deficits that should be identified. (Tr. p. 365-367). On
cross examination, Dr. Whalen-Smeller was asked about the reliability
of cognitive tests with Down's Syndrome children, such as B.C., and
she genuinely stated that she didn't know, she would just be seeking
meaningful information---a range of reasonable expectations for
learning. Dr. Whalen-Smeller further stated that she had only
spent 2-3 hours with B.C. to the point of the hearing.
4. Caresa Young a licensed school psychologist working with
B.C. : Caresa Young (c.v. at exh 32), a licensed school psychologist
who teaches at Vanderbilt University testified that she started
working with B.C. in January of 2005. Not unlike school personnel,
Ms. Young stated that she sees progress in B.C. She further stated
that while cognitive testing might provide additional information, it
is not a substitute for intervention and test results with a student
such as B.C. are very unreliable. Ms. Young further opined that
B.C. was working at a very minimal level (late Kindergarten – early
1st grade)and that he would meet the criteria for mental retarded.
5. Lori Crump, first grade teacher of B.C.: Ms.Crump testified that
she spent 10 months with B.C. She testified that during the 1st
grade year, B.C. was assigned a full time educational assistant and
that was very helpful. Ms. Crump indicated that cognitive testing was
discussed at some points during the year but it was evident to Ms.
Crump that B.C. didn't need any further testing. Ms. Crump felt
that the IEP which had been developed was appropriate and he was
making progress. This teacher further indicated that when the system
indicated that the educational assistant was going to be cut back to
half time she expressed grave concerns about B.C.'s continued
educational progress. Ms. Crump states that she believes B.C. can
learn. She further stated that if she knew B.C.'s IQ she might change
her expectations. She implied, at the very least, that while her
expectations might change, her methodology with B. C. would remain
the same.
6. Ashley Strobel a kindergarten teacher with master's level special
education certification: Mrs. Strobel went into B.C.'s room for
30 minutes and at other times B.C. would come to her room. She very
emphatically states that she did not think knowing B.C.'s IQ would be
of any benefit to her and she further believed that his IEP was
appropriate. Ms. Strobel believes that B.C. needs a full time
educational assistant and that he was making progress. Concerning
testing of B.C., Ms. Strobel believes that his prior test scores are
not accurate nor are they useful in working with B.C.
IV. CONCLUSION
This Administrative Law Judge was impressed by the genuine efforts of
each witness to paint a truthful picture of B.C. B.C.'s father said
that B.C. was a loveable child, affectionate, moody, stubborn at
times, loves other people and just when I think I know him, he
surprises me with action or words.
Without exception, each witness who testified indicated that B.C. was
a student who had been identified for special education services and
where progress was limited but visible. Without exception, those who
were asked testified that B.C. would most likely or definitely meet
the criteria for a mentally retarded designation as well as
speech/language impaired. Further each witness testified
that B.C. was capable of learning and he learned best when he had a
full time educational assistant, his schedule was consistent and he
had a structured program. Without exception, all members of the prior
IEP teams agreed that the IEP, as developed, was appropriate and met
B.C.'s needs. However, in light of this there was concern from the
school psychologist and the present teacher that B.C. might need
additional goals, and these goals could only be determined by
cognitive testing. A cognitive test might, with declarative soundness
tell the system that B.C. has such a low IQ that he is, ind
eed, mentally retarded. If so, the system, as the parents fear, would
have sufficient ammunition to make a move from B.C.'s present level
of functioning, where he is making progress and into a more stringent
environment where he is further classified and goals are further
rearranged. In such a case, the parents would be entitled to notice
and an opportunity to revisit this matter with a change in placement
in question.
Ironically, whether mentally retarded or not, each of the witness
agreed that B.C. was making progress and exhibited the ability to
learn. The IEP's speak for themselves and fly in the face of the
systems desire for additional testing. It appears that those working
with B.C. were consistently in agreement that the IEP's which had
been developed were not only working but, at least a portion of,
the goals and objectives were being met. B.C. was evaluated and
identified as a child falling within the parameters for IDEA support
and assistance. He has been re-evaluated (after 3 years) and further
identified. He continues to make progress in the face of numerous
changes in his program and personnel and exhibits the ability to
learn.
The systems' desire to test B.C. while potentially suspect is well
grounded on their belief that if B.C. is tested there might be some
evidence to surface that supports an additional impairment or
disability. Certainly a system is required to know, in its best
effort, the present level of functioning of each special education
student. However, that knowledge may at times be derived more
consistently from those professionals working with the student than
from even the best testing index. In B.C.'s case, even the school
psychologist had concerns that, due to behavioral and attention
problems, the test results for B.C. might not be an accurate
assessment of his present level of functioning.
This Administrative Law Judge was duly impressed with the
professionals in the trenches, teaching, guiding, revisiting
continued efforts and willing to spend extensive additional time in
IEP meetings to develop an appropriate program for this student, we
call B.C. The testimony of the prior teachers was genuine and
exhibited a care and concern for B.C. that the Metropolitan School
System can boast and be proud of.
Might B.C. qualify for an additional disability if tested? Possibly
so, but is that added classification necessary for a free appropriate
education for this student? As confirmed in the prior IEP's, the
educational professionals who considered and weighed the strength of
B.C.'s program thought not.
Unquestionably, IDEA is not intended nor did it create a format for
maximizing each identified child's potential. How often have we heard
that the concept is not grounded on obtaining a Cadillac but a
Chevrolet? Bd. Of Educ. v Rowley, 458 U.S. 176, 198, 102 S.Ct. 3034,
73 L.Ed2d 690 (1982). Is B.C. receiving a benefit from his IEP? Those
who teach him and surround him academically state without reserve
that he is making progress. He is meeting or approaching some
goals and achieving in other areas, based on the testimony and
exhibits set forth at the hearing.
As counsel for the parents stated in her post-trial brief in citing
J.K. v Fayette County Bd. Of Education 2006 WL 224043:
An IEP is designed to deal with a student's unique needs rather than
the definition of the child's disability………….the failure to obtain an
official diagnosis does not provide a basis for finding that the LEA
violated IDEA.
Upon these findings and review of the testimony, the Administrative
Law Judge finds that the IEP developed and implemented by the system
is appropriate and no further cognitive testing is necessary. The
Metropolitan Nashville School System fails to carry its burden of
proof in this matter and the parent's refusal to consent is upheld.
Enter this the 10th day of July, 2007.
________________________________
Michael E. Spitzer,
Administrative Law Judge
. >>
<< BEFORE THE TENNESSEE STATE DEPARTMENT OF EDUCATION
IN THE MATTER OF: )
)
METROPOLITAN NASHVILLE PUBLIC )
SCHOOL SYSTEM )
)
) Cause No.: 07-04
v.
)
) Michael E. Spitzer
) Administrative Law Judge
B.C.
)
ORDER
I. PROCEDURAL FACTS AND HISTORY
B.C. is a ten year old student enrolled in a Moderate Intervention
Program-Fragile (MIP-F) within the Metropolitan Nashville Public
School System.(Ex 1.207-222). B.C. was identified for IDEA services
as Developmentally Delayed on January 27, 2003.(Ex. 1,pp 305-323).
Subsequently (3 years later) in January of 2006 the IEP team
conducted a re-evaluation and discussed the need
for further cognitive testing. At that time the team concurred that
further testing was not necessary and further deemed B.C. eligible
for special education and related services pursuant to an
identification of Speech Impairment and Language Impairment. (Ex. 1
pp. 324-327).
When the 2006-2007 school year resumed, B.C. was placed in a new
classroom, met with a new speech/language pathologist, new
occupational therapist, new resource teacher and the system withdrew
the full-time educational assistant from B.C.'s program. Whether or
not related to the change in "environment", B.C. began to
have behavioral concerns and his past rate of progress slowed.
Principal Steve Breese noticed that B.C. exhibited new behavioral
concerns that affected his program and were becoming disruptive to
the school environment. In spite of this, however, Principal Breese
testified that he was aware that B.C. was still making progress under
his, then existing, IEP.
Due to the changes noted in B.C.'s response to the new school year,
there were numerous IEP meetings. At these meetings, the parents and
teachers developed an agreed upon IEP and B.C., again, began to show
progress in meeting his goals.
At one of these meetings ( September 2006) it was determined that
B.C. would be placed in the MIP-F
classroom with Ms. Denny and then subsequently in January of 2007
B.C. was moved again to Mr. Staubitz MIP-F classroom. While these
changes disrupted B.C.'s academic stability and progress to some
extent, B.C. continued to make progress even though goals and
objectives were not fully met.
The parents attribute the lack of significant progress to the system's
withdrawal, in late 2006, of the full time educational assistant who
had worked with B.C. prior to that time. The full time assistant was
not re-instated over the parent's objection.
II. ISSUE
Whether or not the petitioner, Metropolitan Nashville Public School
System is entitled to conduct additional evaluations of a student
over the objections of the parents
(B.C. was initially evaluated and then re-evaluated in three(3)
years. He is currently working under an approved IEP. The school
system believes that it is their duty to further evaluate B.C. in
order to determine his strengths and weaknesses, cognitively and to
assist in determining exactly what B.C. can do rather than what he
wants to accomplish. The parents feel that the request by
the school system is a pretext and unnecessary. The parents ground
their concern in the fact that a school psychologist, Beverly Whalen-
Schmeller, was asked by the system to visit a "life skills class"
after her involvement with B.C. Further the parent's state that they
are satisfied with the IEP developed for B.C and he is progressing
under the present plan. Finally, almost every witness who testified
at this hearing stated that they believe B.C. also meets the criteria
for a mentally retarded designation as well as speech/language.)
III. DISCUSSION
A. Legal Basis for Review:
The purpose of the Individuals with Disability Education Act is to
guarantee that children with disabilities have access to a free
appropriate public education. 20 U.S.C. 1400 (d)(1)(a). Pursuant to
the parameters of IDEA, a school system is required to, in effect,
find those children who are in need and provide a system whereby all
such children can be identified and have their special needs met. (34
C.F.R. 300.111)
Under the system ,as mandated by Congress, the school system is
required to conduct an initial evaluation to determine if a child
qualifies for services and, if so, develop an individualized
educational program (IEP) for that child.
20 U.S.C. 1414 (d)(1)(A). Evaluations are not solely the
responsibility of psychologist and medical practitioners, but are to
include a team of educational professionals made up of teachers,
special education advisors, administrators, the parent(s) and any
other person "with special expertise" 20 U.S.C.
1414(d)(1)(B).
The goal or objective of the initial evaluation and subsequent
evaluations is to assist in the creation of an Individualized
Educational Plan which is best suited to meet the special needs of
the child evaluated. The IEP must include (1) statements of the
child's present level of educational performance, (2)measurable
annual goals, and (3) the special education and related services as
well as supplementary aids and services that will be provided to the
child. 20U.S.C. 1414(d)(1)(A).
In the present case, neither party raised, either at the hearing or
in the pre-trial statements, any issue related to procedural
violations. The sole issue raised was whether or not the school
system could, via a due process hearing, override the parents refusal
to allow additional cognitive testing for their child.
Therefore, this Administrative Law Judge turns to the question of
whether or not the IEP for B.C. is reasonably calculated to enable
B.C. to receive educational benefits. Board of Educ. Of Hendrick
Hudson Cent. Scho. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct.
3034, 73 L.Ed2d 690 (1982). Metropolitan Nashville School System
filed the request for hearing and clearly they have the burden by
proving by a preponderance of the evidence that the IEP devised by
it's own professionals and the parents is inappropriate. McLaughlin
v. Holt Public Shcools Board of Education 2003 WL 397586 (6th Cir.
(Mich))
In the present case, it is apparent that B.C has parents who are
involved and want to participate with the school system to develop an
appropriate educational plan. Parents and school personnel working
together have gotten over the bumpy waters of a change from grade to
grade, teacher to teacher and even a somewhat drastic revision in the
program. As late as September 2006, the IEP team concluded that the
previous disability for B.C. continued to exist and B.C.
needed special education services. Further, and more important, the
team concluded that the present or proposed educational program and
related services were appropriate to meet the student's stated annual
goals. (Ex. 14)Everyone agreed that while goals were not entirely
met, B.C. was making progress.
This Administrative Law Judge heard testimony from almost each
witness and reviewed the various IEP's,, and from all of which, it is
apparent that B.C. has the ability to learn and that he is making
progress.
A. Testimony this Administrative Law Judge feels is significant:
1. Mr. Breese the school principal: While Mr. Breese, the
principal, states that he would like to have some cognitive testing
to determine B.C.'s strengths, he also signed off on the IEP at each
level, basically agreeing that the present plan was appropriate.
(Exhibit 17). However, Mr.Breese went further to say that B.C. was
not meeting his goals (only 80% mastery) and the system would like to
know if B.C. is simply not capable of meeting these goals. Mr. Breese
feels this can only be determined from a cognitive test.
2. John Staubitz the classroom teacher: B.C.'s present teacher, John
Staubitz found that B.C. exhibited inconsistent behaviors and
believes that he may be guessing at some of his answers. Mr Staubitz
would like to have a cognitive test to determine the present level of
functioning of B.C. Mr. Staubitz believes test results will tell him
if B.C. can do better or if his failures are based on his lack of
effort. (Tr. p.258). However, Mr. Staubitz openly admits that when
there is consistency in the academic environment, B.C.
does make progress. (Exhibit 30)
3. Dr. Whalen-Smeller the school psychologist: Dr. Beverly
Whalen-Smeller, a licensed school psychologist testified that B.C. had
significantly low scores on prior tests and surmised that there were
cognitive deficits that should be identified. (Tr. p. 365-367). On
cross examination, Dr. Whalen-Smeller was asked about the reliability
of cognitive tests with Down's Syndrome children, such as B.C., and
she genuinely stated that she didn't know, she would just be seeking
meaningful information---a range of reasonable expectations for
learning. Dr. Whalen-Smeller further stated that she had only
spent 2-3 hours with B.C. to the point of the hearing.
4. Caresa Young a licensed school psychologist working with
B.C. : Caresa Young (c.v. at exh 32), a licensed school psychologist
who teaches at Vanderbilt University testified that she started
working with B.C. in January of 2005. Not unlike school personnel,
Ms. Young stated that she sees progress in B.C. She further stated
that while cognitive testing might provide additional information, it
is not a substitute for intervention and test results with a student
such as B.C. are very unreliable. Ms. Young further opined that
B.C. was working at a very minimal level (late Kindergarten – early
1st grade)and that he would meet the criteria for mental retarded.
5. Lori Crump, first grade teacher of B.C.: Ms.Crump testified that
she spent 10 months with B.C. She testified that during the 1st
grade year, B.C. was assigned a full time educational assistant and
that was very helpful. Ms. Crump indicated that cognitive testing was
discussed at some points during the year but it was evident to Ms.
Crump that B.C. didn't need any further testing. Ms. Crump felt
that the IEP which had been developed was appropriate and he was
making progress. This teacher further indicated that when the system
indicated that the educational assistant was going to be cut back to
half time she expressed grave concerns about B.C.'s continued
educational progress. Ms. Crump states that she believes B.C. can
learn. She further stated that if she knew B.C.'s IQ she might change
her expectations. She implied, at the very least, that while her
expectations might change, her methodology with B. C. would remain
the same.
6. Ashley Strobel a kindergarten teacher with master's level special
education certification: Mrs. Strobel went into B.C.'s room for
30 minutes and at other times B.C. would come to her room. She very
emphatically states that she did not think knowing B.C.'s IQ would be
of any benefit to her and she further believed that his IEP was
appropriate. Ms. Strobel believes that B.C. needs a full time
educational assistant and that he was making progress. Concerning
testing of B.C., Ms. Strobel believes that his prior test scores are
not accurate nor are they useful in working with B.C.
IV. CONCLUSION
This Administrative Law Judge was impressed by the genuine efforts of
each witness to paint a truthful picture of B.C. B.C.'s father said
that B.C. was a loveable child, affectionate, moody, stubborn at
times, loves other people and just when I think I know him, he
surprises me with action or words.
Without exception, each witness who testified indicated that B.C. was
a student who had been identified for special education services and
where progress was limited but visible. Without exception, those who
were asked testified that B.C. would most likely or definitely meet
the criteria for a mentally retarded designation as well as
speech/language impaired. Further each witness testified
that B.C. was capable of learning and he learned best when he had a
full time educational assistant, his schedule was consistent and he
had a structured program. Without exception, all members of the prior
IEP teams agreed that the IEP, as developed, was appropriate and met
B.C.'s needs. However, in light of this there was concern from the
school psychologist and the present teacher that B.C. might need
additional goals, and these goals could only be determined by
cognitive testing. A cognitive test might, with declarative soundness
tell the system that B.C. has such a low IQ that he is, ind
eed, mentally retarded. If so, the system, as the parents fear, would
have sufficient ammunition to make a move from B.C.'s present level
of functioning, where he is making progress and into a more stringent
environment where he is further classified and goals are further
rearranged. In such a case, the parents would be entitled to notice
and an opportunity to revisit this matter with a change in placement
in question.
Ironically, whether mentally retarded or not, each of the witness
agreed that B.C. was making progress and exhibited the ability to
learn. The IEP's speak for themselves and fly in the face of the
systems desire for additional testing. It appears that those working
with B.C. were consistently in agreement that the IEP's which had
been developed were not only working but, at least a portion of,
the goals and objectives were being met. B.C. was evaluated and
identified as a child falling within the parameters for IDEA support
and assistance. He has been re-evaluated (after 3 years) and further
identified. He continues to make progress in the face of numerous
changes in his program and personnel and exhibits the ability to
learn.
The systems' desire to test B.C. while potentially suspect is well
grounded on their belief that if B.C. is tested there might be some
evidence to surface that supports an additional impairment or
disability. Certainly a system is required to know, in its best
effort, the present level of functioning of each special education
student. However, that knowledge may at times be derived more
consistently from those professionals working with the student than
from even the best testing index. In B.C.'s case, even the school
psychologist had concerns that, due to behavioral and attention
problems, the test results for B.C. might not be an accurate
assessment of his present level of functioning.
This Administrative Law Judge was duly impressed with the
professionals in the trenches, teaching, guiding, revisiting
continued efforts and willing to spend extensive additional time in
IEP meetings to develop an appropriate program for this student, we
call B.C. The testimony of the prior teachers was genuine and
exhibited a care and concern for B.C. that the Metropolitan School
System can boast and be proud of.
Might B.C. qualify for an additional disability if tested? Possibly
so, but is that added classification necessary for a free appropriate
education for this student? As confirmed in the prior IEP's, the
educational professionals who considered and weighed the strength of
B.C.'s program thought not.
Unquestionably, IDEA is not intended nor did it create a format for
maximizing each identified child's potential. How often have we heard
that the concept is not grounded on obtaining a Cadillac but a
Chevrolet? Bd. Of Educ. v Rowley, 458 U.S. 176, 198, 102 S.Ct. 3034,
73 L.Ed2d 690 (1982). Is B.C. receiving a benefit from his IEP? Those
who teach him and surround him academically state without reserve
that he is making progress. He is meeting or approaching some
goals and achieving in other areas, based on the testimony and
exhibits set forth at the hearing.
As counsel for the parents stated in her post-trial brief in citing
J.K. v Fayette County Bd. Of Education 2006 WL 224043:
An IEP is designed to deal with a student's unique needs rather than
the definition of the child's disability………….the failure to obtain an
official diagnosis does not provide a basis for finding that the LEA
violated IDEA.
Upon these findings and review of the testimony, the Administrative
Law Judge finds that the IEP developed and implemented by the system
is appropriate and no further cognitive testing is necessary. The
Metropolitan Nashville School System fails to carry its burden of
proof in this matter and the parent's refusal to consent is upheld.
Enter this the 10th day of July, 2007.
________________________________
Michael E. Spitzer,
Administrative Law Judge
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