The opinion of the court was delivered by: Judge Pellegrini
Argued: September 14, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Abington School District (School District) has filed a petition for review from the order of the Special Education Hearing Officer (Hearing Officer) requiring it to provide compensatory education to B.G. (Student) in the area of mathematics and to revise the Student's Gifted Individualized Education Plan (GIEP) to provide for an appropriate and individualized specially designed instruction based on his unique needs and abilities. For the reasons that follow, we reverse the Hearing Officer's decision.
The facts of this case as found by the Hearing Officer are as follows. The Student was born on April 26, 2002, and resided with his parents within the School District. He was enrolled in kindergarten for the 2007-2008 school year. In the fall of that school year, he was evaluated at the request of his parents to determine if he was eligible for gifted support services pursuant to 22 Pa. Code §16.63(1) dealing with Special Education for Gifted Students. After taking several IQ tests, he scored in the "Very Superior Range" and in the 99.9th percentile in mathematics.*fn1 It was determined that the Student met the criteria as a mentally gifted student in mathematics,*fn2 and a GIEP was recommended.*fn3
The GIEP team*fn4 met in December 2007 and developed a GIEP which contained a goal for developing creativity and problem solving skills through a weekly enrichment group/pull-out program called the APEX program (Abington's Program for Excellence). For his specially designed instruction (SDI), the Student had a "Menu of Opportunities" which included opportunities to participate in other enrichment activities such as the "Compass Learning Program" for mathematics (an individual computer-based instruction program in mathematics which was used in kindergarten and which was part of the curriculum for all students in kindergarten through sixth grade) and "First in Math" for mathematics in the regular education classroom. The parents approved the "Notice of Recommended Assignment."
The GIEP team met again in April 2008 to discuss whether the Student should skip first grade and go directly to second grade for the 2008-2009 school year. Prior to this meeting, the School District conducted screening assessments of the Student in mathematics and found several areas of weakness that the Student demonstrated at the first grade level. On a separate Grade K into Grade 1 Placement Test for mathematics, the Student scored 63.6% and demonstrated some degree of weakness in all areas assessed. Nevertheless, the parents wrote to the School District and indicated that they believed the Student should skip first grade math, which the GIEP team agreed to do.
In December 2008, the School District pretested the Student on the end-of-year Grade 2 mathematics assessment and the Grade 2 into Grade 3 Placement Test. On the end-of-year assessment, the Student achieved an 82% and exhibited some weaknesses in several areas. On the Placement Test, the Student demonstrated several areas of need while scoring 100% in other areas. The tests listed his weaknesses in the areas of estimation, more complex fractions, comparing large numbers, finding area and perimeter, measuring to the 1/4 and 1/8 inch and understanding median and mode in the area of probability and statistics. He also had difficulty completing open-ended responses that required several steps and detailed explanations of what was done. His scores on the open-ended responses at the second grade level ranged from 0, 1 and 2 out of a possible score of 4. Due to these test results, the GIEP team informed the Student's parents that he did not meet the criteria for acceleration into third grade mathematics. The GIEP team agreed on a new goal and corresponding objective related to mathematics problem solving and enrichment activities in the regular second grade curriculum.
The parents requested that the Student's GIEP be revised to outline its goals and instruction more specifically and sought more information about the Student's Present Levels of Educational Performance (PLEP) in mathematics. In response, the GIEP team added a new objective for the successful completion of open-ended mathematics problems. The parents again wrote to the School District expressing concerns about inadequate assessment of the Student's PLEP in mathematics. They also provided test results of the Student's performance on the Texas Assessment of Knowledge and Skills (TAKS), which they had obtained from the internet and had given to the Student to complete sometime in January 2009.
In February 2009, the School District and GIEP desired to conduct another assessment, Phase I -- Phase II testing, to determine if the Student could be placed into third grade mathematics. The Phase I test was similar to an end-of-book test and required a score of 90% in order to take Phase II. In Phase II, the student was required to take every unit test at the next grade level and score an average of 90% but not need to score 90% on each individual unit before acceleration would be considered. The parents did not agree to have the Student take these tests despite repeated requests. The GIEP team instead added a new objective in mathematics: the Student's participation in the Everyday Math (EDM) program through enrichment and above-grade level work (which was part of the SDI in the prior GIEP). At the same time, the Student participated in the Compass Learning Program at school and, at the behest of his parents, was given a School and College Ability Test (SCAT) administered through Johns Hopkins University's Center for Talented Youth.
The Student finally took a Placement Test in April 2009. He scored an 86.5% on the Grade 2 Placement Test Phase I but only a 68% on the Grade 2 Placement Test Phase II, a basic level. The School District advised the parents that the appropriate mathematics program for the Student would be at a grade 3 level with enrichment and extension activities as well as "beyond level work" and that the Student did not qualify for acceleration in mathematics. In May 2009, the Student received a revised GIEP, which added new goals and objectives and specified that the Student would be prompted to improve the quality of his work. The parents did not approve or disapprove of the new GIEP. In the Student's third grade year (2009-2010), he participated with his classmates in regular education classes in mathematics and participated in weekly enrichment activities through the APEX and Compass Learning Programs as well as EDM and had opportunities for further enrichment in mathematics in the classroom.
Although the parents, as part of the GIEP team, had signed off on each of the GIEPs and agreed to each of the new GIEPs, including the goals, objective and evaluation criteria, they filed a due process complaint challenging the appropriateness of the Student's educational program since November 25, 2008. They alleged that since 2008, his GIEPs had no goals and no measurable terms of what the Student's actual educational performance was in mathematics and his goals were of the cookie-cutter variety, not designed for the Student's unique needs. The parents sought a remedy of 540 hours of compensatory education as well as an order that the School District conduct a new evaluation limited to obtaining information for the Student's PLEP and develop a new GIEP which was appropriate for the Student. In its answer, the School District argued that its gifted programming for the Student had been and was appropriate.
A due process hearing was held before the Hearing Officer on December 23, 2009. The Student's mother testified that she was dissatisfied with the School District's attention to her son's GIEP stating that it had never had sufficient annual goals or measurable data. She did not believe that the School District responded to her concerns that her son was not being challenged in mathematics or accelerated sufficiently. Her son frequently complained that his math assignments were too easy and repetitive, but in a December 2008 GIEP team meeting, the Student's mother was informed that her son would not be accelerated to the third grade math class because he only tested 88% on the placement test rather than the 90% to be considered for acceleration. The Student's mother also had her son take a SCAT test at the Johns Hopkins University Center for Talented Youth, and her son's score was in the 99th percentile, showing that her son could perform fourth grade math. In her opinion, her son did not make meaningful educational progress from kindergarten through second grade in mathematics and could have done more difficult work in that area.
Currently, the Student's mother stated that her son was in the third grade but was not being challenged. As of the GIEP dated October 27, 2009, her son had not been given a new PLEP testing. His annual goals had not been updated since last April, the School District had not given her any progress monitoring data regarding the annual goals, and she had not been given any measurable data. When asked on cross-examination why she had rejected the School District's offer of the Phase I and II tests to assess his level in mathematics, she stated that the tests were very lengthy and required a score of 90% on each unit test. If her son did not receive a 90% ...