A recent federal court decision touches on a number of interesting issues. In D.G. vs. Cooperstown Central School District (U.S. District Court, N. Dist. of NY; October 29, 2010), the parent appealed lower decisions by the IHO and SRO who both determined that the school district had provided FAPE and denied tuition reimbursement for the child's residential school. The parent was seeking reimbursement for both the 2007-2008 and 2008-2009 school years. The main issues raised by the parent in this case were: (1) there were no "baselines," or clear indications of the child's present levels of performance; (2) resource room services were inappropriate because they were to be delivered in a "mixed setting," meaning that they could be delivered inside the general education classroom; and (3) the district did not provide the Wilson Program, an Orton-Gillingham based multi-sensory, direct instruction reading program for dyslexic students (even though they appear to have promised that they would).
Unfortunately the parent's arguments were rejected. For the 2007-2008 year, the district court stated that there were baselines because the 2007-2008 IEP took into account the most recent testing that was available, the child's various teachers and evaluators participated in the meeting and identified present levels of performance which were included in the IEP, and there were clearly written goals which provided directions about the baselines to measure progress.
Regarding the parent's second point, the court didn't find it problematic that part of the resource room instruction was happening in the general education classroom. It believed that it was a legitimate goal to use the mainstream setting to help the student generalize his/her skills. The part that was confusing was the way the court reasoned through this while also quoting NY regulations saying that "specialized instruction can best be accomplished in a self-contained setting." There was also evidence to suggest that the resource room teacher was teaching another class (a reading class) at the same time, which would cause you to raise your eyebrows.
Finally, the court pointed out that other Orton-Gillingham based methods were available at the proposed school and the fact that the parent didn't get the specific one that she wanted -- the Wilson program -- is not enough to amount to a denial of FAPE.
These same points were basically reiterated with respect to the 2008-2009 school year and tuition reimbursement was denied for that year as well.
It is interesting that we don't know how the child actually would have done at this public school -- could be that it would have been horribly bad and not conducive to academic progress -- but since the parents never gave it a shot, the court went based on what the schools would have been able to offer, and concluded that the school would have met his special education needs. Pretty speculative but it is what it is. The court concluded with these oft-repeated words: "School districts are not required to furnish every special service necessary to maximize each child's potential or provide everything that might be thought desirable by loving parents." What a gem.