a victory for us too, perhaps? wrightslaw

[Guest guest]

While this is about a child with autism much of the issue seems to deal with

communication and so may be helpful to know about for our kids.

Copied in part from slaw newsletter:

Another Great Autism Decision in JP v. Hanover

September 1, 2006

On Monday, August 28, in JP v. County School Board of Hanover County, Judge

Payne of the U.S. District Court of the Eastern District of Virginia

issued another powerful pro-child decision on behalf of a child with autism.

JP v. School Board of Hanover County VA is a case about autism, ABA therapy, and

reimbursement for a private special education program. J.P. v. Hanover also

demonstrates why schools should use objective tests to measure a child's

progress (or regression), discrete trial data, and why schools must provide

children with the services in their IEPs.

In his decision, Judge Payne describes weight due to the State hearing officer's

decision and why testimony by the school witnesses was impeached. The decision

includes charts of J.P.'s progress and regression on objective standardized

educational tests.

In J.P. v. School Board of Hanover County VA, the parents lost at the due

process hearing, but prevailed in the U.S. District Court.

Download the decision in JP v. County School Board of Hanover County VA

http://www.wrightslaw.com/law/caselaw/06/peterson.hanover.va.pdf

Note: The Order and Decision are 88 pages in pdf and a very large file (1.5 mb).

Please do not try to open this document online. Instead, download the file to

your hard drive, then open it.

School Rejects Parents' Requests for Comprehensive Assessment

JP's parents were concerned that he was not making progress. They asked the

school to conduct the Assessment of Basic Language and Learning Skills (ABLLS),

a comprehensive test that assesses a child's pre-academic and social

developmental strengths and weaknesses.

The school " decided that the test was not needed because ... it had sufficient

data on JP from other non-comprehensive tests. However, after repeated demands

for ABLLS testing by the parents and educational experts, HCPS reluctantly

agreed to test JP using ABLLS ... however, the results of these tests were not

used by HCPS ... to propose the June 2005 IEP that is here at issue. " (Decision,

page 11-12)

Did JP Make Progress?

Progress Log - " Not Empirical, Standardized, Comparable, Test-Based Evidence "

As evidence that JP made progress, the school presented testimony by two speech

therapists. The speech therapists kept a progress log. The district claimed that

the log was " objective data. " The Court found " HCPS claims that the log is

objective data, and HCPS is correct in the sense that the log states what the

therapists observed and wrote down. But, it is not empirical, comparable, or

standardized, as are the test scores obtained in the speech and language

testing. " (Decision, p. 48)

" ... entries in the log skip many days. The record contains no explanation for

the incomplete, somewhat erratic recording in the log ... the log is more like a

diary than a systematic recording of JP's curriculum and progress. The log

entries are not referenced to the goals in the IEP so direct assessment of

progress on IEP goals is not easily achieved ... sometimes, the log only

describes what task was done on a particular day without stating how JP did. "

(Decision, p. 49-50)

Charting Out Test Scores

In JP v. Hanover School Board, the Judge used JP's test scores to determine if

he was making progress or regressing. Baseline testing and findings in

subsequent administrations of tests were key evidence that the public school

program was not appropriate, and that the private program was appropriate.

In the decision, the Court compared the child's subtest scores on repeated

administrations of the Peabody Picture Vocabulary Test, (PPVT) Oral and Written

Language Scale, (OWLS) Preschool Language Scale (PLS-4), Visual Motor

Integration test (VMI) and Woodcock (WJ-III).

Although JP made progress in one area, he regressed in other areas while

enrolled in the public school program. Discussing JP's speech and language

skills, the Judge found " By any measure ... these scores show significant

regression in speech and language. " (Decision, page 47-48)

At the end of the decision are three appendices. Appendix A are benchmark grades

from the IEP and Mrs. P's assessment. Appendix B is a table of Speech and

Language Testing with standard scores and age equivalent scores. Appendix C is a

table of JP's scores on Woodcock (WJ-III) subtests, and changes in the

subtest scores over time.

Note: If you have attended a slaw special education law and advocacy

training program, you know it is essential to use the bell curve, standard

scores and percentile ranks to chart educational progress. During the program,

you learned how to put test data into a table and convert the data in the table

into an impressive bar graph. You learned that progress / regression graphs are

excellent visual aids that can be used as evidence that a child is making

progress or regressing in a special ed program.

Testimony by School Witnesses Negated by Other Evidence

The Judge described testimony by one speech therapist that placement in an ABA

school " would deprive JP of social interaction with typical students, which is

important and necessary for speech development ... [this] testimony was negated

by other evidence. "

The other speech therapist 'largely echoed " the testimony of her co-worker, but

" she acknowledged that JP has very limited verbal output, makes very few

spontaneous utterances, and had difficulty with yes/no questions and pronouns.

Inexplicably, the log actually shows that JP did very well with these last two

areas. This contradiction undercuts the reliability of the log, and it adversely

affects the weight given to [her] testimony. " (Decision, page 53)

Testimony by School Witness Impeached: " Language Necessary Prerequisite to

Social Interaction "

" [speech therapist] Augustine testified that JP should not be at an ABA-type

school because he needs social interaction with typical students to develop his

language skills. She stated that socialization is important ... as a language

development tool ... However, Augustine's testimony was significantly impeached

when, on cross examination, she admitted that a basic understanding and

competence in language is a necessary prerequisite to social interaction, and

that JP lacked the basic language skills needed to communicate with his peers.

This impeachment significantly damages the weight and credibility of Augustine's

testimony. " (Decision, p. 53)

" The record shows that, if JP could not communicate with his peers,

socialization would do him little good, and could actually cause him

frustration, anxiety, and emotional trauma. " (Decision, p. 54)

Low Expectations & Failure to Use Research Based Methods of Teaching and

Learning

The Court found that JP did not make progress under the 2004-2005 IEP. Since the

IEP proposed for 2005-2006 was " essentially the same IEP ... " it was

inappropriate. (Decision, page 73)

In their post-hearing briefs, the school district argued that the IDEA intended

schools to provide a " basic floor of opportunity. " In his decision, the Judge

cited the Findings in IDEA 2004 that " implementation of this chapter has been

impeded by low expectations and an insufficient focus on applying replicable

research on proven methods of teaching and learning for children with

disabilities. " (20 U.S.C. Sec. 1400©(4) (page 67) (see also slaw: IDEA

2004, page 30)

" The legislative history of the EAHCA and the IDEA show quite clearly that

Congress did not enact the statutes for the purpose of meeting the minimal level

of service urged by HCPS. "

The decision has dozens of excellent quotes that attorneys can use in briefs.

It is refreshing when a Judge goes to such lengths and reads the transcript,

takes new evidence, studies the exhibits, reads cases (and cites footnotes from

cases), and uses objective test data in his decision.

We congratulate Virginia attorney Philip Strother on his success.

We thank JP's parents who persevered, despite ongoing opposition from Hanover

County Public Schools and the adverse decision from the Hearing Officer.

Learn more about JP v. Hanover County School Board, Autism Caselaw, Special

Education Caselaw

Autistic Child's Parents Prevail in Virginia - Judge Rules against Hanover,

Orders School System to Pay Student's Private Tuition by Bill McElway of the

Richmond Times Dispatch describes the judge's decision, resistance from the

school system, (including a threat to file trespassing charges against the

parents), and other noteworthy decisions by Judge Payne in RT v. School Board of

Henrico County and RT v. School Board of Henrico County-2 earlier this summer.

http://tinyurl.com/ftxeh

http://www.timesdispatch.com/servlet/Satellite?pagename=RTD/MGArticle/RTD_BasicA\

rticle&c=MGArticle&cid=1149190290602

Note: To read the article by Bill McKelway of the Richmond Times Dispatch,

please copy and paste the complete URL into your browser window. The link to the

newspaper article ends with 602 - we don't know how long it will be available

online. You may also contact Mr. McKelway at bmckelway@...

Download the decision in JP v. County School Board of Hanover County VA

http://www.wrightslaw.com/law/caselaw/06/peterson.hanover.va.pdf

Note: The Order and Decision are 88 pages in pdf and a very large file (1.5 mb).

Please do not try to open this document online. Instead, download the file to

your hard drive, then open it.

More autism caselaw: http://www.wrightslaw.com/info/autism.index.htm#caselaw

More special education caselaw: http://www.wrightslaw.com/caselaw.htm