United States District Court, Northern District of Indiana, Hammond Division
I.S., by his Parents and Next Friends, RICHARD and CHRISTINA SEPIOL Plaintiff,
SCHOOL TOWN OF MUNSTER, et al., Defendants.
AMENDED OPINION AND ORDER
JON E. DEGUILIO Judge United States District Court
This is an action under the Individuals with Disabilities in Education Act. Richard and Christina Sepiol contend that the School Town of Munster and the West Lake Special Education Cooperative (collectively “the School”) failed to provide their son, referred to in this matter as I.S., with a free appropriate public education. The independent hearing officer agreed with them in part, finding that the School failed as to one of the school years in question, but she awarded little in the way of compensation. On appeal, the Parents argue that the School actually denied I.S. an appropriate education for four years, and they seek relief in the form of reimbursement for I.S.’s attendance at a private school.
Both parties have moved for summary judgment, which is the procedural vehicle through which these administrative review actions are resolved, and the motions are ripe for ruling. For the following reasons, the Court grants both motions in part and denies both motions in part. The Court finds that the School denied I.S. a free appropriate public education for parts of two school years, and remands this matter to the Indiana Department of Education to determine the appropriate amount of compensation.
I. FACTUAL BACKGROUND
I.S. is a student with a severe form of dyslexia. Although he has average intelligence, he has significant impairments in the areas of decoding (sounding out words phonetically) and encoding (spelling and writing) language. (R. 162). He began attending Hammond Elementary School in the School Town of Munster in kindergarten in the fall of 2005, and he received supplemental assistance during that year and also received tutoring over the summer. When he entered the 1st grade in August 2006, his parents became concerned about his continuing difficulties with reading and phonics, so they requested that the School evaluate him for a possible learning disability. (R. 695). The School completed an evaluation in October 2006, which indicated that I.S. had a learning disability in the areas of reading, math, and written expression. (R. 727, 188). The School therefore held a Case Conference Committee (“CCC”) meeting on November 21, 2006 to develop an Individualized Educational Program (“IEP”) setting forth the special education services that I.S. would receive. The IEP provided that I.S. would primarily remain in his general education classroom, but that he would receive 45 minutes of direct reading instruction each day in a resource room, and that he would receive 1 hour of instructional support each day in his classroom. (R. 207). The School implemented this IEP for the rest of I.S.’s 1st grade year and into his 2nd grade.
The CCC met again the following year on November 5, 2007, in the fall of I.S.’s 2nd grade year. At that time, I.S. was receiving reading instruction primarily through the “Fundations” program, which teaches phonics, phonemic awareness, and spelling through Orton-Gillingham-based methodology. The IEP that the School developed for this year called for I.S. to receive one hour of direct reading instruction each day in a resource room, in addition to one hour each day of instructional support. (R. 225). The IEP also contained goals for the areas of reading, writing, and math. For example, I.S.’s reading goal was that “[I.S.] will continue to use decoding skills to sound out words with a variety of letter patterns and sounds in 7/10 attempts while reading orally. [I.S.] will also continue to improve his sight word vocabulary using the Dolch word cards.” (R. 216). This goal was accompanied by a number of related sub-goals.
The next CCC meeting occurred the following year on December 18, 2008, during I.S.’s 3rd grade year. (R. 232). The Parents were unable to attend this meeting, so the School prepared the new IEP and sent it to the Parents for their review, apparently without any response or objection. The IEP again called for I.S. to receive 1 hour of direct reading instruction and 1 hour of instructional support each day, though I.S.’s teacher testified that he actually received about an hour and fifteen minutes of direct instruction each day. I.S.’s reading goal remained almost identical,  though the IEP set new goals for writing and math. During this school year, I.S. received reading instruction primarily through the Wilson Reading Program, which is similar to the Fundations program but for older students, and which is also based on Orton-Gillingham principles.
Near the beginning of I.S.’s 4th grade year, the School began implementing its direct reading instruction through a program called Read 180. Read 180 is an alternate core curriculum that focuses heavily on fluency and comprehension but provides little instruction in phonics or phonemic awareness, and the use of this methodology is one of the primary points of contention in this matter. The Read 180 program takes 90 minutes daily, consisting of an initial whole-group instructional session, followed by rotations of 15 to 20 minutes each through small-group instruction, independent reading, and individual work on a computer program, and concluding with a whole-group wrap-up session. (R. 1830–34, 2644–46). The School had not used this program before, so I.S.’s teacher was still receiving training in this program throughout the year, and did not learn some aspects of the program until the end of the year.
The School next reviewed the IEP on November 6, 2009, in the fall of I.S.’s 4th grade year, after it had begun implementing Read 180. The Parents were again unable to attend the CCC meeting, so the School prepared the IEP and sent it to the Parents for their review. Because Read 180 required 90 minutes daily, I.S.’s 4th grade IEP was updated to include 90 minutes of direct reading instruction each day, while he continued to receive 1 hour of instructional support. (R. 253). However, all of the goals in this IEP were identical to the goals in the 3rd grade IEP, and all of the sub-goals remained the same as well, with only a single exception. (R. 249–51).
Although the Parents apparently did not respond to the IEP initially, I.S.’s mother wrote to the School on April 5, 2010, to request an immediate meeting, as she began to grow concerned that I.S. was not making appropriate progress. (R. 578). The School convened a CCC meeting on April 14, 2010. (R. 270). At the meeting, I.S.’s mother expressed her concern with the Read 180 program, particularly with the independent reading and the computer program portions of the instruction, as I.S. struggled with working independently on his reading. Accordingly, the School agreed to suspend these independent portions of the Read 180 program, and to have another teacher provide I.S. with individual instruction during those times through Leveled Literacy, a program that focuses particularly on phonics and phonetic awareness. (R. 270, 2653). This arrangement continued for the rest of I.S.’s 4th grade year.
I.S.’s mother also requested an Independent Educational Evaluation to determine I.S.’s abilities and recommend appropriate services, so the School retained Sue Grisko to prepare a report. (R. 484, 579). Ms. Grisko met with I.S. in May 2010 and administered a series of tests, and she submitted her report on August 7, 2010. Ms. Grisko concluded that I.S. had deficits in the areas of phonological processing (processing the sounds of a word) and rapid naming (the efficient retrieval of phonological information from long-term or permanent memory). (R. 488– 89, 497). Termed a “double deficit, ” this combination of difficulties made it “much more difficult for [I.S.] to learn to read.” (R. 497). Ms. Grisko opined that “[t]eaching [I.S.] to read must take priority over his expected 5th grade curriculum, ” and that “[h]is full day should be devoted to literacy instruction to close his ever-widening gap.” (R. 497). She recommended “a minimum of two hours per day for decoding based reading instruction, ” plus another hour to address his rapid naming deficit, with the rest of his school day “includ[ing] instruction to practice and use his newly learned skills to automaticity.” (R. 497). Ms. Grisko further believed that “[f]luency at the passage level should not be stressed until [I.S.’s] passage decoding accuracy is above 95%, ” because practicing fluency when a student is not yet reading words accurately only promotes “faster guessing” of words, which “is an extremely difficult habit to break.” (R. 498). Ms. Grisko recommended that I.S. attend a private school designed to teach a specialized literacy curriculum in order to receive this level of instruction. (R. 498).
On August 20, 2010, the first day of I.S.’s 5th grade, the CCC convened for a meeting to discuss Ms. Grisko’s report. Ms. Grisko attended the meeting and presented her report, and she specifically recommended that I.S. be placed at Hyde Park Day School, a private school where he could receive special education services from reading specialists throughout the school day. (R. 302). The School’s staff discussed the report with Ms. Grisko, and decided that they would like another opinion before proposing the services I.S. would receive in his next IEP. (R. 302). However, the Parents were not content for I.S. to continue receiving reading instruction from the School in a manner that they believed to be ineffectual and possibly even counterproductive. (R. 302–03). Thus, they decided that they would pull I.S. from school each day in the afternoon, when he would otherwise receive this instruction, and teach him at home themselves.
Following this meeting, the School commissioned a report from Rachelle Wright to assess I.S.’s needs and make a recommendation as to his placement and special education services. Ms. Wright did not evaluate or observe I.S. herself, but reviewed several other recent assessments, including Ms. Grisko’s, to complete her report. (R. 524, 2337). Ms. Wright’s report generally identified the same deficiencies as Ms. Grisko’s, but her recommendations were not nearly as broad. She believed that I.S. should receive instruction through “an alternate core program for at least 90-120 minutes per day, ” and that this instruction should address “all components of literacy, ” including “phonemic awareness, phonics, fluency, vocabulary, comprehension, and written language, ” as opposed to focusing exclusively on phonemic awareness and phonics, as recommended by Ms. Grisko. (R. 533). Ms. Wright suggested several alternate core programs through which to implement this instruction. Her third recommendation was Read 180, but she noted that “Read 180 is not as strong as the other two programs in the area of phonemic awareness, ” so she recommended that, if used, it be supplemented by other programs in that area. (R. 536).
The School first shared this report with the Parents at the next CCC meeting on October 7, 2010. Ms. Grisko attended the meeting at the expense of the Parents, but Ms. Wright was not present to discuss her report. (R. 338). Nonetheless, the School presented Ms. Wright’s report and the results of other assessments they conducted, and its staff members discussed I.S.’s progress. The parties then discussed what services I.S. should receive as part of his IEP. The School proposed 150 minutes of reading instruction, composed of 90 minutes through Read 180 and 60 minutes of reinforcement and supplementation through other methodologies. (R. 341). The Parents rejected any use of the Read 180 program, though, and indicated that they would continue removing I.S. from school in the afternoon and teaching him with a phonics course that they purchased at Ms. Grisko’s recommendation. The parties grew no closer to an agreement, so the meeting concluded with the understanding that the Parents would continue to remove I.S. from school, and the School would submit its final proposed IEP for the Parents’ consideration.
The IEP that the School ultimately proposed on October 18, 2010, which would cover the remainder of I.S.’s 5th grade and the beginning of his 6th grade years, called for I.S. to remain in the public school, and to receive 150 minutes of daily reading instruction in the resource room, in addition to 1 hour of daily instructional support in his general education classroom. (R. 334–35). The IEP did not specify which programs or methodologies the School would use for I.S.’s reading instruction, although the meeting notes contained in the IEP reflect that the School intended to continue using the Read 180 program for at least a portion of his instruction. (R. 341).
Unsatisfied with this proposal, the Parents continued removing I.S. from school in the afternoon and teaching him in reading at home, and they formally requested a due process hearing through the Indiana Department of Education pursuant to the IDEA. (R. 8). The Parents contended that the IEPs for I.S.’s 2nd, 3rd, and 4th grade years were both substantively and procedurally flawed, and that the IEP proposed for his 5th grade year was substantively inadequate as well. They further contended that these flaws deprived I.S. of the free appropriate public education to which he was entitled under the IDEA, and that he was entitled to compensatory educational services as a result. The Indiana Department of Education appointed an independent hearing officer, who, in consultation with the parties, framed the issues as follows:
1. Whether Respondents [the School] have offered the student an individualized education program (IEP) designed to confer meaningful educational benefit and meet his unique needs.
2. Whether the IEP proposed by Respondents at the October 7, 2010 case conference committee (CCC) meeting offered the student an education program appropriate to meet the student’s needs.
3. Whether Respondents reviewed an[d] revised the student’s IEP in accordance with 511 IAC 7-42-9 and 511 IAC 7-42-5 [Indiana’s administrative regulations implementing the IDEA].
4. Whether Respondent failed in any duty to invite and fund the attendance of Susan Grisko, an independent evaluator, to the CCC meeting of October 7, 2010 so as to violate 511 IAC 7-42-3(b)(4). If so, are the parents entitled to reimbursement for the cost to them of the evaluator’s attendance at that conference.
9. Whether, considering substantive and procedural violations found to exist, the student has been denied a free appropriate public education (FAPE). If so, to what compensatory education is the student entitled.
After efforts to resolve the matter amicably failed, the parties held a four-day hearing in March 2011. The hearing officer heard testimony from fifteen different witnesses, including several of I.S.’s teachers and other of the School’s staff members, both of his parents, Ms. Grisko, Ms. Wright, and the principal of Hyde Park Day School (to which I.S. had applied, but had not yet been admitted). The parties also submitted well over one thousand pages of exhibits, plus hundreds of pages of case law for the hearing officer’s reference. The hearing officer subsequently issued her decision on April 4, 2011. (R. 157).
The hearing officer first found that based on the two-year statute of limitations and the fact that the Parents filed the due process hearing request in the fall of I.S.’s 5th grade year, the inquiry was limited to the IEPs developed in the fall of I.S.’s 3rd, 4th, and 5th grade years. (R. 172 ¶ C 0.2). As to the 3rd grade IEP, she found that it was substantively adequate, as the amount of instruction it included and the Wilson program used to implement it were reasonably calculated to confer educational benefit. (R. 172 ¶ C 1.1). But, she found that the 3rd grade IEP was procedurally flawed, as the School did not review and revise it as required since the School kept little data on I.S.’s progress and used nearly identical goals from the previous IEP. (R. 174 ¶ C 3.1). However, because his teachers had informally ascertained his actual level of performance and provided appropriate instruction despite the deficient goals and lack of meaningful progress monitoring data, the hearing officer found that the School did not deny I.S. a free appropriate public education. (R. 175 ¶ C 9.1).
As to the 4th grade IEP, the hearing officer found that “[t]he Read 180 program used in 4th grade did not target the student’s severe deficit in decoding and was not reasonably calculated to confer educational benefit.” (R. 173 ¶ C 1.3). Specifically, she found that the Read 180 program “focuses on fluency skills prior to the development of accurate decoding, ” which “promotes ‘faster guessing, ’” a very difficult habit for students to break, and that Read 180 “is not appropriate for this student due to his poor decoding skills.” (R. 164 ¶ F 1.14). Due to this methodology, I.S.’s “reading progress in the 4th grade was, at best, trivial.” (R. 173 ¶ C 1.2). Accordingly, the hearing officer found that this IEP “was not reasonably designed to confer educational benefit and was not appropriate to meet [I.S.’s] unique needs, ” and that it therefore denied I.S. a free appropriate public education. (R. 173 ¶ C 1.3, 176 ¶ C 9.2).
As to the 5th grade IEP, the hearing officer found that the 150 minutes of reading instruction was appropriate and, “insofar as time is concerned, reasonably balances the student[’]s need for direct instruction and his need to participate in the general education curriculum.” (R. 165 ¶ F 2.1). She also noted, though, that the School intended to devote 90 minutes of that time to the Read 180 program, which “is weak in the area of phonemic awareness and decoding skills, which are [I.S.’s] most critical need.” (R. 165 ¶ F 2.3). She disapproved of this approach, finding that I.S. “needs to spend the majority of his direct instructional time in his area of most critical need, decoding, ” using Orton-Gillingham-based methodologies. (R. 165 ¶ F 2.4). She therefore found that the “proposed IEP was not appropriate with regards to the balance of methodologies actually proposed” by the School. (R. 173 ¶ C 2.2). Nevertheless, she found that the “proposed ...