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Therapeutic Day School Not Least Restrictive Environment

By April 8, 2014April 29th, 2015News

In Porter v. The Illinois State Board of Education, et al., the Plaintiff, Kecia Porter, challenged the special education accommodations provided to her daughter, K.P., an elementary student in Chicago Public School District 299. She argued that the decision of the Illinois State Board of Education regarding her daughter’s accommodations and placement was arbitrary. The Illinois Appellate Court affirmed ISBE’s decision and found that the hearing officer’s order regarding K.P.’s placement and Porter’s participation in the process was not clearly erroneous.

In 2008, the school district conducted an initial evaluation of K.P. and determined she was eligible for an individualized education plan at her school to accommodate her learning disabilities. In 2010, Porter hired a private psychologist to conduct an additional evaluation because she believed that the district improperly terminated services. The private psychologist diagnosed K.P. with Attention Deficit/Hyperactivity Disorder as well as reading, math, and verbal learning disabilities. The psychologist recommended one-on-one tutoring, the use of assistive technology, and extra time for tests. Porter requested an impartial due process hearing with ISBE seeking to include the psychologist’s recommendations in K.P.’s existing IEP. As a result, the district modified the IEP in February, 2011. Porter and the district representatives met to review the modified IEP but Porter rejected all proposed changes and expressed her intention to place K.P. in a private therapeutic day school at the district’s expense.

In the meantime, K.P. began private tutoring using a multisensory reading instruction system. In April 2011, Porter again sought an impartial due process hearing, alleging, among other things, that the district failed to provide assistive technology services and failed to state whether K.P. was eligible for services beyond the district’s normal school year. Porter sought placement in a private school at public cost. In May 2011, the district issued a modified IEP which included recommendations for K.P.’s use of assistive technology and extended services over the summer. The IEP indicated that under the Individuals with Disabilities Education Act, K.P. should be educated in the general education classroom with her peers because there was no a reason to justify services in a separate setting. It was ultimately determined that K.P. would best be served by attending regular classes and spending 25% of her time in a separate class.

The hearing officer, Stacey Stutzman, concluded that K.P. could receive a satisfactory education in an environment that is less restrictive than a therapeutic day school and that the district was not required to offer K.P. a more restrictive placement. Stutzman also noted that the district offered to provide multisensory instruction at a different school in the district or by training teachers at K.P.’s current school. Dissatisfied with Stutzman’s opinion, Porter filed an appeal to the circuit court which denied the petition “for the reasons stated in open court.” Porter appealed the decision arguing that Stutzman’s order was arbitrary.

On appeal, Porter argued that because the district rejected private placement before the May 2011 IEP meeting, the district predetermined K.P.’s placement without knowledge of her needs. The Court held that Stutzman’s conclusion on the matter, that the district did not predetermine K.P.’s placement, was not clearly erroneous, in part because the record reflected that Porter had been active in the IEP process and that her efforts encouraged the district to provide K.P. with multisensory instruction that she might not have otherwise received. Additionally, Porter argued that Stutzman failed to consider certain facts when she reached her conclusion that K.P. was not entitled to placement in a private therapeutic day school. The Appellate Court held that Stutzman’s conclusion that the district complied with the least restrictive environment requirement because K.P.’s IEP could be implemented in a district school was well reasoned and grounded in fact. Therefore, the Appellate Court confirmed ISBE’s administrative decision, finding that it was not clearly erroneous.