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 STATE OF NORTH CAROLINA
    BEFORE A STATE HEARING REVIEW OFFICER
FOR THE STATE BOARD OF EDUCATION
PURSUANT TO G. S. 115C-116

ALEXANDER BRODY AND LINDA BRODY FOR THEIR SON,
JAMES BRODY,
                                                                                Petitioners
v.

DARE COUNTY PUBLIC SCHOOLS,
                                                                                Respondent.
 

Counsel for James Brody

Peter W. D. Wright, Esq.
P.O. Box 1008
Stingray Point
Deltaville, Virginia 23043

and

Stacey Bawtinhimer, Esq.
P.O. Box 12125
New Bern, N.C. 28561-2125


FINAL DECISION

 This is an appeal of the August 25, 1997, Final Decision of the contested case heard by Administrative Law judge, William A. Creech. 

The Review Officer has considered the record of the above case, including (6) volumes of transcripts of the hearings, four (4) notebooks of exhibits, the Official Record of the case issued by the Office of Administrative Hearings, Respondentís Trial Brief, and additional written arguments submitted by the Respondent to the Review Officer. The Official Record contained Judge Creechís Final Decision and Order, Stipulations, written arguments, additional exhibits, and miscellaneous documents. 

Having reviewed the records of the case, the Hearing Review Officer for the State Board of Education finds makes the following:


Findings of Fact
 

1. A six day hearing in the contested case of Brody v. Dare County Board of Education was held on April 29, 30, and May 1, 5, 6, 7, 1997 in Buxton, Dare County, North Carolina. The hearing was held pursuant to Chapter 115C and 150B of the North Carolina General Statutes and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
    2. The appeal of this contested case involved the provision of a free appropriate public education to James Brody, hereafter referred to as James, a child with dyslexia. James is fifteen (15) years of age, having been born on June 2, 1982. 

    3. Alexander and Linda Brody, hereafter referred to as the Petitioner (s), are the parents of the James and are citizens and residents of Cape Hatteras, Dare County, North Carolina.

    4. Dyslexia is a learning disability for the purpose of the Individuals with Disabilities Act, 20 U.S.C. Section 1400 et seq. (IDEA), and a child with special needs pursuant to North Carolinaís Special Education Act, G. S 11C, Article 9 (State Act). 

    5. James is eligible for services under IDEA and the State Act. 

    6. Dare County Board of Education, hereafter referred to as the Respondent, is a local education agency (LEA) receiving monies pursuant to IDEA, and is the agency responsible for providing special education to James pursuant to the State Act. 

    7. James entered kindergarten at Cape Hatteras School in September, 1987. He attended first and second grade at The Island Academy, a small private school on Hatteras Island. 

    8. James re-entered Cape Hatteras School on September, 1990, as a third grader and immediately experienced academic problems. 

    9. The Respondent was aware that James was having difficulties in reading, written expression, and concentration problems as early as September 20, [1990]. An Exceptional Childrenís Referral Form was submitted on James by his third grade teacher. 

    10. The Respondent first evaluated James on February 13, 1991, as a third grader and determined he had an IQ of 127. Other testing was performed on James as part of an evaluation for special education. The analysis of the testing battery revealed that James had a large discrepancy in his ability and achievement scores. The psychologist, Mr. Bateman, recommended that James be identified as learning disabled.

    11. The Respondent completed an IEP on March 6, 1991, and began to provide James with special education services for his learning disability. 

    12. James continued to receive special education services from the Respondent from 1991 through 1996. 

    13. Several IEPs were developed for James by the Respondent. All IEPs required special education services for Jamesí learning disability. 

    14. James received passing grades in all subjects undertaken and was promoted annually by the Respondent from each grade from the third through the eight grades. James has never been retained during his school career. 

    15. James was re-evaluated by the Respondent and all evaluations documented his learning disability. 

    16. The February 7, 1994, testing of the Respondent revealed a significant drop in Jamesí IQ score. The 1991 testing gave James an IQ score of 127; while the latest testing established a new IQ score of 114. Other testing was performed by the Respondent The analysis of the testing battery indicated that James maintained large learning disability discrepancy values. 

    17. According to Respondentís 1994 evaluation James had made little academic progress in spelling, reading, and written language skills after three years in special education. 

    18. The Respondent developed a new IEP for James after the February 7, 1994, testing and did not alter Jamesí level of special education services. 

    19. The Petitioners became concerned about the drop in Jamesí IQ score. 

    20. The Petitioners had James tested at their expense by Dr. Kathleen van Hover at the Lab School in Washington, DC in August of 1994. This testing confirmed that James was dyslexic. The testing indicated a further drop in his IQ score from the 1994 Respondentís testing of 114 to 102. And, Dr. Hover pinpointed two additional weaknesses that were previously undetected, phonics and oral expression. Dr. Hover also recommended that James have a speech and language evaluation.

    21. The Petitioners were not advised that they could request reimbursement from the Respondent for the costs of Dr. Hoverís evaluation. 

    22. The Petitioners requested a speech and language evaluation for James. 

    23. The Petitioners at their own expense enrolled James in a summer program at the Landmark School in Massachusetts. The Petitioners paid $ 5,500.00 in tuition for James to attend Landmark School for the summer of 1995. Additional testing was done on James at Landmark School. 

    24. Landmark School is a private special education school with a national reputation for providing intensive remediation for children with learning disabilities and dyslexia. 

    25. James improved his reading skills after six weeks of intensive remediation from 3.4 to 5.0 grades levels, as measured by the Woodcock Reading Mastery Test and the Gray Oral Reading Test. 

    26. James was evaluated by the Respondent for speech and language problems that did not produce any conclusions. Instead James was referred for an evaluation by the Respondent to the Scottish Rite Childhood Language Disorders and Dyslexia Clinic of the Department of Communication Science and Disorders at East Carolina University. 

    27. James was evaluated on April 12, 1996, at the expense of the Petitioners by Dr. Rebecca Felton, a nationally known expert in the field of learning disabilities. Dr. Felton reviewed all of the testing and IEPs that were completed by the Respondent on James. 

    28. James was evaluated on April 20 and July 25, 1996, at the expense of the Petitioners by Dr. Rick Ellis, a Licensed Clinical Psychologist and Certified School Psychologist. James was given a battery of tests. 

    29. On May 30, 1996, the Respondent conducted a meeting to develop an IEP for Jamesí ninth grade year. Drs. Ellis and Felton attended the IEP meeting and presented the results of their testing to the Respondent. Drs. Ellis and Felton also made recommendations about what James needed in his special education program. Other members, who were present at the IEP meeting included Arlene Ward (guidance counselor), Dr. Bruce Sheppard (principal),Mitchell Bateman (psychologist), and Karen Folb (LD teacher). 

    30. At the May 30, 1996, IEP meeting, Drs. Felton and Ellis advised the IEP Team that James needed to master basic skills in reading, spelling, and written language. Drs. Felton and Ellis indicated that James required direct instruction and remediation. 

    31. Drs. Felton and Ellis and the Petitioners were told that the Respondent did not provide remediation to students beyond the eighth grade.

    32. On May 30, 1996, the Petitioners requested that the Respondent place James in the Landmark School for remediation and appropriate instruction. The meeting was adjourned without preparing a new IEP for James or addressing the Petitionersí request for placement in Landmark School. 

    33. James passed with satisfactory scores all North Carolina End-of-Grade and High School Competency Tests in the eighth grade. 

    34. Another IEP meeting was conducted on June 11, 1996. The Respondent presented a draft IEP to the Petitioners. The IEP did not include Jamesí present level of functioning in reading, spelling, or written language. Nor, did the draft IEP include information from the evaluations or recommendations of Drs. Felton and Ellis. And, the draft IEP did not include any goals or objectives to address Jamesí deficits in reading, spelling, and written language. Moreover, the draft IEP failed to include plans for James to receive direct instruction to remediate his weaknesses. 

    35. The June 11, 1996, IEP did not meet the expectations of Drs. Felton and Ellis and the Petitioners. James was to be provided with "regular" and "resource" instruction. The resource instruction was to be offered through the schoolís "Teaching for Success" program. The level of special education services was reduced by half over what had been provided in middle school, to five 52-minute periods of instruction. 

    36. The Petitioners again requested that the Respondent place James at the Landmark School. The Petitioners believed that James could receive the remediation he needed at Landmark. The Respondent made no alterations in Jamesí IEP and advised the Petitioners that if they wanted to "challenge" the IEP to do so in writing. 

    37. The Petitioners sent a letter on August 6, 1996, to Terry Jones, Director of Exceptional Education for the Respondent. The Petitioners restated their position and requested that James be placed in the Landmark School for the 1996-1997 academic year. 

    38. On August 16, 1996, Mr. Jones wrote the Petitioners indicating that the Respondent would convene another IEP meeting and / or offer mediation in an attempt to reach an agreement. The IEP meeting and / or mediation was never held. 

    39. On September 11, 1996, the Petitioners sent a letter to the Respondent indicating that they were withdrawing James from Respondentís School and placing him in the Landmark School. 

    40. James was evaluated by the Scottish Rite Childhood Language Disorders and Dyslexia Clinic on September 26, 1997. 

    41. The Petitioners filed a preliminary Motion for Summary Judgement. The Respondent filed a Response with attached affidavits. 

    42. A six day Special Education Due Process Hearing was held in Buxton, North Carolina, with The Honorable William A. Creech presiding. Testimony was heard on April 29, April 30, May 1, May 5, May 6, and May 7, 1997.

    43. Judge Creech advised that he would take the Petitionersí Motion for Summary Judgement under advisement. 

    44. Dr. Rebecca Felton, a nationally known expert in the field of learning disabilities, was the first witness to testify at the Due Process Hearing on April 29, 1997. 

    45. Dr. Felton testified that she has been involved in developing hundreds of IEPs for students with learning disabilities, since graduating from Duke University in 1966. Dr. Felton has worked at the Bowman Gray School of Medicine in Winston-Salem and continues to consultant there on research and clinical issues pertaining to children with learning disabilities. Dr. Felton has also worked with several school systems on teaching methods for children with reading disabilities. And, Dr. Felton has participated in extensive research on reading disabilities and attention deficit disorders that has been sponsored by the National Institutes of Health. 

    46. Dr. Felton described effective instructional practices that should be used with language based problems. She emphasized that with appropriate instruction the, "majority of individuals, even those with severe reading problems, make good progress in becoming proficient readers, spellers, and writers." Dr. Felton reported, "that although there is no real "cure" for dyslexia, "dyslexic readers can be remediated, can function as proficient readers and spellers, and writers with appropriate instruction." 

    47. Dr. Felton discussed the "Matthew Effect." The "Matthew Effect" refers to individuals, who have difficulty learning to read, and whose reading problems are not remediated effectively early in their school career. Because of this these children often remain significantly behind peers in reading skills. If an individual fails to learn well in first, second, and third grade - which are critical grades - then these individuals do not read the amount of material that is necessary to continue to develop good reading skills. 

    48. Dr. Felton defined the use of "remediation" as a means of correcting a deficiency that a child exhibits by providing instruction to correct the deficiency. Remediation is the essence of what an individual education plan is all about. Remediation is about how the skills that individuals are deficient get developed. Remediation leads to the point where individuals can function independently. 

    49. Dr. Felton testified that she was first asked to give an independent assessment of Jamesí strengths and weaknesses in reading and writing. She was also asked to make necessary recommendations for instruction. Dr. Felton was also asked to review Jamesí records and determine if the type of testing that she does would be useful in formulating recommendations, which she did. Dr. Felton tested James and was asked by the Petitioners to attend the ĎEP meeting in May of 1996. The meeting was to develop an IEP for Jamesí ninth-grade year. 

    50. Dr. Felton informed the Respondent of the test results that she had obtained, as well as the test results from other clinicians. She also indicated the need to include direct instruction to address Jamesí basic skill weaknesses in his individual education plan. Dr. Felton made this statement at the May, 1997, ĎEP meeting.

    51. Dr. Felton reported that James required a specific program of remediation that she described in detail:
James requires direct, remedial instruction in basic skills of reading and spelling . . . This goal can only be accomplished through direct instruction in reading and writing . . . remedial instruction must be on a regular basis (daily or several times weekly) with James either individually or in a small group where the other students are working on the same level (so the teacher can . . . provide the direct instruction necessary) . . . in an overall language arts curriculum designed to meet the needs of students with specific language based learning disabilities. The teacher must be well trained in the linguistic aspects of reading and spelling as well as the specific methods being used.
52. Dr. Felton told the Respondentís staff that James would need remediation. 

53. Dr. Felton at the May, 1996 IEP meeting asked LD Teacher Folb to identify three specific areas in which she would provide remediation for James. These were the areas that Dr. Felton had identified in which James needed continual remedial work. The areas of remediation were word identification, word analysis, and spelling. Those were the things that Dr. Felton focused on particularly. 

54. At the May, 1996, IEP meeting Ms. Folb was asked by Dr. Felton what she would use to teach word analysis skills. Ms. Folb told Dr. Felton that she did not have any particular programs or methods in mind. Ms. Folb could not name any methods or programs to use for providing remediation for James. Dr. Felton was asking Ms. Folb what kinds of things do you use to teach word analysis skills when you see a student has difficulties in this area. Ms. Folb simply was unable to give any information about what she would do to provide James with remediation in these areas. 

55. Dr. Felton provided additional testimony about the May 30, 1996, IEP meeting. She was advised, at the IEP meeting, that high school students were placed in content courses to learn the same material as regular education students. These students were also placed in the "resource" program, called "Teaching for Success" TFS). TFS was designed to support students, not to remediate them. Dr. Felton was told that children like James who had spelling problems were not taught how to spell but were provided with a "spell check" program. Dr. Felton was of the opinion that with the "Teaching for Success" program, the LD teacherís job was to help children with organization and assignments, and that the TFS program was not designed to remediate basic skills. 

56. Dr. Felton stated that remediation was simply not a priority. Nor, did it appear to her that Ms. Folb, Jamesí LD teacher, knew how to or had the skills to teach the basic reading, spelling, and writing skills that James needed. 

57. Dr. Felton testified at the May 31, 1996 meeting, that the principal and school psychologist insisted that Jamesí "good grades" were evidence that the school had met Jamesí needs. Dr. Felton disagreed with this, and asserted that a studentís grades are only one piece of the information to determine the progress of a student. And, that Jamesí grades were lower than would be expected, given his ability. Dr. Felton testified that testing that measures that childís basic skills is also necessary to evaluate a studentís progress. 

58. Dr. Felton testified that Guidance Counselor Ward suggested that James might be able to obtain a Certificate of Attendance, instead of a diploma. 

59. Dr. Felton testified at the May 31, 1996, meeting, that the testing that was done on James indicated that he still had some serious deficiencies. And, she maintained that these deficiencies, even with help, will impact on Jamesí ability to function independently in high school, and certainly, beyond. It is a reasonable expectation for a student of Jamesí ability to go to college. 

60. Dr. Felton testified about the IEP developed by the Respondent for the School Year 1996-1997. IEPs must include a statement of "Present Levels of Educational Performance" that will provide teachers and parents with information about where the student is functioning. This information "needs to be presented in a way that is easily understood and in a way that can be evaluated." She testified that IEPs usually include information from current testing, including test scores. 

61. In Dr. Feltonís report and at the Due Process Hearing, she stated that the Respondentís IEP did not represent an adequate program for James. James needs direct instruction in reading, writing skills, including spelling as outlined in Dr. Feltonís report. 

62. Dr. Felton testified that IEP goals should be measurable and should relate to the progress or skills the student will master during the academic year. According to Dr. Felton, goals would relate to what kind of progress the student is expected to make in a particular area during the school year. The goals could be expressed in grade equivalents, standard scores, or percentiles. 

63. Dr. Felton also indicated that she believed that Landmark School was an appropriate placement for James. Dr. Felton based her statement on many years of experience with children who are learning disabled, personal observations of James deficiencies, and first hand knowledge of the Landmark School. 

64. Dr. Felton testified that the Landmark School could provide James with the remediation he needed in the instructional areas in which he is deficient, reading, spelling, and writing. 

65. Dr. Felton also testified that North Carolina certification does not require LD teachers to be proficient in how to teach children to read, spell, and write. 

66. Dr. Felton testified that the initial training, in-service training sessions, and ongoing supervision that the Landmark Schoolís teachers receive seems to be adequate to enable them to teach effectively. 

67. Dr. Felton testified that James, during the summer program at Landmark, made progress in his achievement in several areas. 

68. Dr. Felton testified that there was no support for providing remediation in the inclusion model. 

69. Dr. Felton stated on re-direct, that based on her evaluations, review of previous testing and IEPs that the Respondent did not provide James with an appropriate education. 
 

It is not sufficient for us to produce students who can pass social studies tests, if tests are read to them. We want James to leave high school being able to read and function in college. Society is demanding higher levels of performance when people leave college. And basic skill instruction must be part of what we provide students who get to high school without these skills. 
 
70. Testimony given by Dr. Rick Ellis, who had evaluated James was supportive of Dr. Feltonís testimony. Dr. Ellis indicated that he and Dr. Felton had given information and recommendations in person to the Respondent in the May 1996, IEP meeting. Drs. Felton and Ellis both indicated that James needed remediation. 

71. Dr. Rick Ellisí testified that the Respondentís IEP that proposed continuing James in the "LD Resource" program was not appropriate, because of James difficulties in reading and written language. 

72. Dr. Rick Ellisí testified that the Respondentís IEPs were not properly drafted in that they did not have goals and objectives written in measurable terms. 

73. On cross-examination, Dr. Ellis testified that at this time, James needs to attend a residential school. The Respondentsí staff indicated in the May, 1996, IEP meeting that they were not able to provide James any remedial services at Cape Hatteras High School. And, that it was not part of the Cape Hatteras High School special education delivery model to include the necessary remediation services that would be appropriate for James. 

74. Dr. Ellis also testified that he had knowledge of the Landmark School and believed it would be an appropriate placement for James. 

75. The Petitioner testified that James was suicidal and unhappy in fifth grade and that after attending the Landmark School that his attitude had improved. 

76. The Petitioner testified that she did not receive a copy of the revised North Carolina rules and regulations for special education from the Respondent in a timely manner. 

77. The Petitioner testified that the Respondent presented draft goals objectives to her in IEP meetings before discussing Jamesí progress and status. 

78. Dr. Wendy Levin was a witness for the Respondent. She is an associate director of a diagnostic teaching clinic that does 200 to 300 evaluations for school systems each year. Dr. Levin is trained as a teacher, diagnostician, and school psychologist. However, she did not evaluate James, nor meet him before the first hearing.

    79. Dr. Levin indicated she developed programs for the public schools and that one such program, called "Challenge," is what James needs. She acknowledged that the Respondentís school that James was to attend did not have a "Challenge" program. 

    80. Dr. Levin stated that after reviewing the Respondentsí IEPs for James for the past five years, that there wereí no objective measures in the IEPs; the Third Grade IEP did not have dates when James obtained the objectives; and the fourth grade ĎEP lacked information about whether mastery was obtained. 

    81. Dr. Levin also stated that James did not progress to his potential in the Respondentís Schools. This is a standard for all North Carolina Schools. 

    82. Dr. Levin testified that parents are entitled to have an annual review of the IEP goals and objectives. 

    83. Dr. Levin testified that James should be not be considered for residential placement. 

    84. Ms. Cindy Caruso gave testimony on May 5, 1997, as a witness for the Respondent. Ms. Caruso began working with James in the third grade and described her approach with him as "remedial and phonics-based." Ms. Caruso believed James had made steady progress. 

    85. Ms. Caruso indicated that she typically brought a draft IEP to the meeting. Ms. Caruso testified that she could not write an IEP at the IEP meetings because it took too long. She also testified that her practice was to bring in the draft IEP and to share it with the parents. 

    86. Ms. Stephanie Hinton Gray was a witness for the Respondent. Ms. Gray is an LD teacher at Cape Hatteras Middle School and one of Jamesí teachers. She acknowledged that James had ongoing problems in spelling, punctuation, and organization. There were no present levels of performance in the IEP for spelling or penmanship. She admitted that Jamesí grades were "modified." That they did not reflect his true grades. 

    87. Ms. Gray also indicated that Jamesí assignments were "modified." Despite being at the 3rd to 4th percentile in Spelling and Writing, she asserted that he had mastered the basic skills of phonemic awareness and decoding. 

    88. Ms. Karen Folb testified for the Respondent. Ms. Folb is a special education teacher at Cape Hatteras High School. She testified that since James had passed the reading competency test that he was ready for mainstreaming. 

    89. Ms. Folb stated that by the time most children get to high school, they have mastered the basic skills and opinioned that research shows children lose motivation to work on phonics by the seventh grade, that they are "maxed out" in phonics instruction. She did not offer any "researchí to support her position. 

    90. Ms. Folb testified on cross-examination about the May 30, 1996, IEP meeting that the decision to place James in the TFS, special education resource class, had been reached before the IEP meeting had begun. She also admitted she had no special training in decoding and the last time she took a class in reading was in the Spring of 1977. 

    91. Dr. Betsy Levey testified for the Respondent on May 7, 1997. Dr. Levey was not excluded as a witness and was present during the previous testimony. 

    92. Dr. Levey was a trained state review officer and was hired a trial consultant for the Respondent. She has a doctorate in Speech / Language and Mental Retardation. She never taught or met James before the hearing. Dr. Levey never tested James or participated in IEP meetings about James. Dr. Levey reviewed the records in Jamesí case and testified that he made acceptable educational progress. 

    93. Dr. Levey believes it is inappropriate to use basic skills remediation with middle and high school students. Dr. Levey agreed that it is inappropriate and illegal to make placement decisions before developing the IEP goals and objectives. 

    94. Mr. Terry Jones, Director of Exceptional Education, was the last witness for the Respondent. He advised the Petitioners that goals and objectives determine the level of service a child needs. Mr. Jones maintains the Petitioners and the Respondent came to an agreement on the goals and objectives. Mr. Jones agreed that the disagreement revolves around the level of intensity or services James needed. 

    95. Mr. Jones testified that there is no requirement to include test results, objective information, and the present levels of performance are whatever is agreed upon by the IEP committee. 

    96. Mr. Jones felt that James was mastering the standard course of study. He made this decision based on Jamesí grades, his passing the competency test, and his progress on individual testing. Mr. Jones admitted that in some of Jamesí individual testing scores there were declines. 

    97. Mr. Jones admitted on cross-examination, that everyone on the IEP committee is responsible for providing input into the IEP. Mr. Mitchell Bateman, a psychologist for the Respondent, was the only one who tested James twice. He did not participate in the Due Process Hearing.

    98. Mr. Jones on cross-examination, testified that before 1994, the Parentís Rights Handbooks did not have a 60-day notice. 

    99. The Petitioner testified after the Respondent rested, that she has never received a 1994 Handbook At the Due Process Hearing, the Petitioner testified she did not receive a Parentís Right Handbook, dated 1993, until after the IEP meeting on May 31, 1996, not a reasonable time before the meeting. 

    100. The Petitioner testified that she had only received one other Parentís Rights Handbook, dated 1991, before the Respondent evaluated James the first time. 

    101. The Respondent introduced a copy of Parentís Rights Handbook, dated 1994. The Petitioner testified she did not receive a copy of the Handbook before the May 31, 1996, IEP meeting. The Petitionersí testimony was uncontradicted. 

    102. James indicated he wanted to return to the Landmark School and that he had made progress while attending the school. 

    Conclusions of Law

    1. The Individuals with Disabilities Education Act (IDEA), 20 U.S. C. Section 1400 et seq., is the federal statue governing the education of students with disabilities. The federal regulations promulgated under IDEA as codified at 34 C.F.R. parts 300 and 301. A child is deprived of a free appropriate education (FAPE) under two conditions: first, if the school system violates the IDEAís procedural requirements in a way that detrimentally affects the childís education; and second if the school system develops an IEP that is not reasonably calculated to enable the child to receive educational benefit. 

    2. The controlling state law for students with disabilities is North Carolina General Statute Chapter 115C Article 9 and the corresponding state regulation including the State Procedures Governing Programs and Services for Students with Special Needs, Section, .1501-.1541 (1996). 

    3. The Office of Administrative Hearings has jurisdiction of this contested case pursuant to Chapters 150B and 115C of the North Carolina General Statutes and the Individuals with Disabilities Education Act and implementing regulations. 

    4. The Respondent is required under federal and state law to make available special education and related services to James and offer him a free and appropriate public education as that term is defined under IDEA and state law.

    5. James is a student with a disability for purposes of the IDEA and corresponding state law.
    6. The public policy of the State of North Carolina regarding special education is:
The General Assembly of the State of North Carolina hereby declares that the policy of the State is to ensure every child a fair and full opportunity to reach his full potential and that no child as defined in this section and in G.S. 115C-122 shall be excluded from services or education for any reason whatsoever. 

The policy of the State is to provide a free appropriate public supported education to every child with special needs. (emphasis added) G.S. 115C406 
 

7. North Carolina statutory and case law require that special education must ensure that "the child has an opportunity to reach [his] full potential." Burke County Bd. of Educ. V. Denton, 895 F .2d 973, 983 (4th Cir. 1990) 

8. The Individuals with Disabilities Education Act (IDEA) creates only a federal minimum and States may structure educational programs, which exceed the federal floor. IDEA, 20 U.S.C.A. Sec 1400-1485. 

9. North Carolina chose to exceed the federal benchmark and measure each child "against his or her own expected performance." In re Felton Letter, 23 IDELR 714, 717. (OSEP 1995) 

10. Under the Individuals with Disabilities Act, a handicapped child is deprived of FAPE if either (1) the school system violates the IDEAís procedural requirements and thereby detrimentally impacts the childís education; or (2) drafts an IEP that is not reasonably calculated to enable the child to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 207, 102 5. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982); Hudson V. Wilson, 828 F. 2d 1059, 1063 (4th Cir. 1987) 

11. James is a student with superior intelligence and dyslexia. The Respondent failed to develop an appropriate 1996-97 IEP individualized for Jamesí "special needs." 

12. According to the public policy of this State in relationship to Special Education as stated in N.C.G.S. Section 115C-106 (b), one of the policies is to provide a system for identifying and evaluating the educational needs of all children with special needs. It is to assure that the rights of children with special needs and their parents or guardians are protected, as well as to insure that there will be no inadequacies, inequities, and discrimination with respect to children with special needs. G.S. 115C-106. 

13. Jamesí needs resulting from his dyslexia were not identified or properly evaluated by the Respondentís personnel. 

14. James developed a negative self-concept with frustration that affected school and family relationship. The frustrations and pressures to succeed in school created secondary behavioral problems. James began missing school. 

15. The mere facts that James received passing marks and was promoted from grade to grade is not dispositive in determining whether he received FAPE according to the United States Supreme Court. Board of Education v. Rowley, 458 U.S. 176, 203 at n. 25, 102 S.Ct. 30334, 3049 n. 25 (1982) ("We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a "free appropriate public education."). 

16. The Respondent failed its affirmative duty to provide the Petitioners with prior written notice of their rights to independent educational evaluations and a free and appropriate public education (FAPE). 

17. In compliance with the Individuals with Disabilities Education Act procedural requirements found in Chapter 33 of 20 U.S. C. Section 1415, the NCDPI established due process procedures for parents and children. See North Carolina Department of Public Instruction's Procedures Governing Programs and Services for Children with Special Needs, Section 1517 - Due Process Procedures for Parent and Children (1993 and 1996 edition which contain identical requirements) Section 1517 (D) states that "written notice which meets the requirements of paragraph (E) of this rule must be given to the parents of a child with special needs before the local educational agency: 
 

(a) proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child; or 
refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education. 
18. From 1987 to June 1996, numerous requests were made by the Petitioners regarding the Respondentís provision of a free appropriate public education which were never addressed by the Respondent. According to NCDPI rules, the Petitioners were entitled to notice of their rights for each of these numerous requests. The Respondent denied the Petitioners an opportunity to be heard regarding their concerns about Jamesí educational programming. 

19. The Petitioners never received specific explanations as to why the Respondent failed to consider their independent evaluations from their independent evaluators or why the Respondent failed to reimburse the Petitioners for these expense, why Jamesí academic progress worsened from year to year, and countless other inquires regarding the Respondentís failure to provide a FAPE to James. NCDPI Rule 1517 (E) (1) (a-g). 

20. The Respondent's failure to comply with the procedural requirements of the IDEA and corresponding state law resulted in a deprivation of services and harmed both James and his parents. Had the Respondent informed the Petitioners of their due process right years ago, the Petitioners could have asserted their rights at an earlier point in time. James would have received the services he needed to achieve academically in public schools rather than having to leave home and attend the Landmark School. 

21. The Petitionerís are entitled to compensatory education because of Respondent failed to provide James with FAPE. 

22. The North Carolina Administrative Procedure Act (NAPA) requires that a petition for due process be filed within sixty (60) days of the contested action. NAPA also states that the agency "shall inform the persons of the right, the procedure, and the time limit to file a contested case petition." Id.

23. Until the Petitioners receive appropriate notice of their due process rights, the statute of limitations is tolled. The Petitioners were not given prior written notice of their right to file due process within 60 days of any of the IEPs. It is uncontested testimony that the Petitioners were never provided with notice of their rights. A parental rights book was offered as an Exhibit by the Respondent, however the evidence was that Exhibited version of the handbook was not provided to the Petitioners. 

24. Before June 4, 1996, the Petitioners were not provided a Parentís Handbook advising them of their due process rights. 

25. The Respondent is charged with the affirmative duty of providing the parents with written prior notice of their due process rights. IDEA, 20 U.S. C. Ch. 33 Sect. 1415 (b) Despite extensive communication between the parties, no one representing the Respondent gave the Petitioners a Parentís Rights Handbook until Spring, 1996, and that handbook was outdated. 

26. The Respondent failed its affirmative duty to apprise the Petitioners of their rights to independent educational evaluations and a free and appropriate public education (FAPE). 

27. The Petitioners have the right to an independent educational evaluation at public expense, if the parent disagrees with Respondentís evaluation or the Respondent fails to conduct an evaluation. 34 C.F. R. 300.503 (b). 

28. The Petitioners had James evaluated by Drs. Felton and Ellis at their own expense. Moreover, the results of the Petitionersí privately obtained independent educational evaluations must be considered by the public agency in any decision made with respect to the provision of a free appropriate public education to the child. 34 C.F.R. 300.503 ( c)(1) 

29. The Petitioners are entitled to reimbursement for either Dr. Felton or Dr. Ellisí educational evaluation. 

30. The Respondentís 1996-97 IEP was fatally flawed. 

31. The Respondentís 1996-97 IEP failed to contain meaningful educational goals and objectives. Moreover, the criteria for measuring Jamesí progress was inappropriate and violated Appendix C to Part 300 of Federal Regulations; see e.g.; Raelee S. V. Susquenita School District; __F. Supp. __ (M.D. PA 1996), affirmed at Susquenita Sch. Dist. V. Raelee S. by Heidi S., 96 F .3d 78, 24 IDELR 839. (3rd Cir. 1996) 

(Judge McClure found that the School Districtís IEP failed to include meaningful educational goals, to establish meaningful and quantifiable short-term objectives or criteria for measuring Raelee." He stated that: "One of the goals imposed by federal regulations is an emphasis on closing the gap between the exceptional studentís achievement and his or her ability levels. 34 C.F.R. 346, Appendix C.") 

32. Closing the gap between Jamesí ability and achievement level was a realistic and meaningful goal for him and an appropriate school objective under Appendix C. of 34 C.F.R. 300. The 1996-97 IEP was not designed to close the gap between Jamesí ability and achievement. 

33. Subsequent testimony from witnesses on behalf of James and even the Respondentís witness, Wendy Levin, proved that the IEPs violated Appendix C. 

34. Although in testimony, the Respondent implied that James would be better off in a larger public school rather than at Landmark, for the 1996-97 school year Landmark was the least restrictive environment. The Fourth Circuit recognized that the mainstreaming preference of IDEA is secondary to educational benefit, i.e., learning how to read and write. The Respondent failed to comply with the requirements of the IDEA, and unilateral private school placement was the only option available to the Petitioners. Carter V. Florence County School District Four. 950 F. 2d 156, 18 IDELR 350, 352, (4th Cir. 1991). 

35. The Respondentís 1996-97 IEP did not propose any specific measurable gain. The U.S. Supreme Court clarified the meaning of education benefit in the Town of Burlington v. Department of Education for the Commonwealth of Massachusetts, 471 U.S. 359,105 5. Ct, 1996, 2002 (1985). The Court focused on tuition reimbursement for parents when the public school defaults. Burlington was a unanimous decision issued thirty-four days after argument. (Chief) Justice Rehnquist defined the IEP concept and process. He stated that the free appropriate education mandated by the Act is designed for the specific needs of the handicapped child through the Individualized Educational Program (IEP) which is "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." The instruction must be specially designed to meet the childís unique needs so that the child will learn. Failing that, if the child learns in another environment, the parents are entitled to be reimbursed for securing and paying for the other school environment that was able to teach the child to read and write. 

36. James is entitled to learn how to read, write, and spell. James is entitled to be exposed to and have access to instruction that will teach him those skills. 

37. The Individuals with Disabilities Education Act, as interpreted by Burlington, imposes only two prerequisites to reimbursement: that the program proposed by the state failed to provide the child with a free appropriate education, and that the private school in which the child is enrolled succeeded in providing an appropriate education, i.e., an education that is reasonably calculated to enable the child to receive educational benefits. 

38. The Respondent has failed to teach James basic reading, writing, and spelling skills and its recommendation that James should merely receive an attendance certificate completely contradicts the philosophy of the IDEA and the North Carolina "Creech Act." 

39. The Landmark School taught James basic reading, writing, spelling, and arithmetic skills, and he received an appropriate education at the Landmark School. 

40. The Respondent failed to develop an IEP according to the requirements of the Act, said failures result in the denial of a free and appropriate public education. Hall V. Vance County Bd. of Education, 774 F.2d 629. (4th Cir. 1985). 

41. The Respondent violated both the procedural and substantive requirements of the IDEA and corresponding state law resulting in harm to both James and the Petitioners. 

42. The Petitioners are entitled to reimbursement of the private school tuition for the 1996-97 school year. 

 
Decision

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Review Officer finds: 

1. That the Administrative Law Judge, William A. Creech, did not err in his Final Decision of August 25, 1997. 

2. That the Respondent shall reimburse the Petitioners for the costs for one independent educational evaluation for James. 

3. That the Respondent shall reimburse the Petitioners for the costs of the private school tuition at the Landmark School and all related expenses for James for the 1996-97 school year. 

4. That pursuant to the Interim Order signed August 13, 1997, and referenced in Administrative Law Judge, William A. Creechís Decision, an IEP meeting shall be convened to provide the parties an opportunity to develop an IEP for the 1997-98 school year for James which will appropriately serve his special needs in the least restrictive environment and offer as much mainstreaming in the regular classroom as is practical to remediate Jamesí disability. 

5. That pursuant to the Interim Order signed August 13, 1997, and referenced in Administrative Law Judge, William A. Creechís Decision, that the IEP that is to be developed for James at the 1997-98 meeting shall be consistent with the recommendations of Drs. Felton and Ellis concerning the remediation of Jamesí special needs in reading and written expression. 

6. That the Petitioners are the prevailing parties for the purposes of the award of attorneys fees and litigation costs. 

7. That the Administrative Law Judge, William A. Creechís Final Decision of August 25, 1997, to deny the Petitionersí Motion for Summary Judgement stands. 

 
NOTICE
Any party aggrieved by this decision may institute a civil action in State court as provided by N.C. General Statutes 115C-116 within 30 days after receipt of this Decision. 
This the 12th day of November, 1997. 
Richard C. Hunter, Review Officer
 

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