Education Law Advocates, P.C.

Hearing Officer Decisions

Education Law Advocates, P.C.
Education Attorneys

Special Education Hearing Officer Decision Summaries

Due Process Complaints decided after 7/01/13

Pennsylvania

Case Name
Date of Decision
Hearing Officer
Disability
Claims
Counsel

Win;
Loss;
Split Decis.
(SD)

Summary

JM; Council Rock SD
2/4/14
Carroll
Intellectual Disability
Comp Ed; ESY; Post- “Grad” Services
Michael Gehring (P)
Joanne Sommer (SD)

W

The school district evaluated an intellectually disabled student in December of the student’s final year of attendance at a private high school, found him eligible for special ed until age 21, and held two IEP meetings to plan for those services. (Decision, pp. 2-9). At the end of the school year, after learning that the private school was prepared to issue a “regular high school diploma” to the student, the district refused to provide services because the student’s “graduation” from the private school disqualified the student from receiving further services under the IDEA. (2, 9-11). The evidence at hearing established that the private school does not issue a regular diploma to similarly situated students when it knows a district intends to provide subsequent special ed services, that the district permits similarly situated enrolled students to participate in graduation ceremonies, but to retain eligibility for special ed services, and the student would not have satisfied the district’s criteria for a “regular high school diploma.” (13, 14). The parents filed for due process, challenging the district’s denial of services, including the district’s failure to issue a NOREP exiting the student from special ed before refusing services. (2). Held: Granted. The hearing officer held that the district impermissibly denied services to the student in light of evidence establishing that the student met no objective, criteria-based standards to earn a “regular high school diploma” at the private school, and the district violated the family’s due process and statutory rights by failing to provide the required prior written notice of its refusal to provide a FAPE – a procedural violation that had an “adverse substantive effect” on the student’s right to a FAPE. (19-27). Comp ed awarded. (28). The H.O. ordered the district to convene an IEP meeting to program for the student. (28).

EO; Spring-Ford SD
5/3/14
Carroll
Autism
Tuition Reimbursement
Michael Connolly (P)
Mark Fitzgerald (SD)

L

The student, who was “academically successful” and regularly attended public school during every year from kindergarten through 6th grade, experienced increasing anxiety, attention problems, self-advocacy difficulties, and homework completion problems after transferring to middle school in 5th grade (3-6). After a “possibly suicidal statement” by the student during the summer following 6th grade, the parents hired an evaluator, who diagnosed the student with autism, identified attention, learning and other needs, and recommended placement in a private school, but did not include that recommendation in her report (4-6, 9, 14). The parents removed the student to a private school, filed for DP, and settled their claim for tuition reimbursement for year 1 at the private school. (2). During the spring 2013, the district reevaluated the student and prepared an IEP that addressed the independent evaluator’s prior written recommendations. (13-14). The parents thereafter filed for DP seeking reimbursement of tuition for the second year of private school. (2). The parents were unwilling to return the student to 8th grade in the public school, “believing that Student’s anxiety would increase if Student left the small private school to return to the much larger public school setting…” (2) Held: denied. The hearing officer noted:

  • a lack of “objective evidence” showing that the district’s proposed IEP would not have been effective in meeting the student’s needs (14);
  • the independent evaluator’s failure to recommend a smaller school/classroom size in the report and that, based on the report, “it was quite apparent that the evaluator contemplated that her recommendations would be implemented in the public school” (14);
  • “no evidence” that the public school setting combined with the proposed services would result in a lack of meaningful progress (15);
  • the student’s “outstanding academic progress” in 5th and 6th grades in public school, before entering the private school, even when the student “was very unhappy about school” (15); and
  • continuing problems experienced by the student in the private school, though improvement there had been noted (15-16).

JM; Rose Tree SD
5/17/14
Carroll
Autism
Comp Ed
Pro Se
Gabrielle Sereni

L

The parents challenged the sufficiency of the social skills services provided to their autistic child before the student’s graduation from high school and sought comp ed (2). Held: Denied. The hearing officer noted that the parents produced no evidence that the student “did not make meaningful progress generally, or on any specific IEP goals, including social skills development. (11). The H.O. stated:

  • the district’s failure to require the student to reschedule the 10 individual, 20-minute, school-based counseling sessions with a licensed psychologist that the student missed was a “procedural violation” that, in the absence of evidence showing it “adversely affected” the student, cannot support a claim for denial of a FAPE (3-5, 13, 16);
  • no evidence established that the district agreed with the parents’ understanding of the “peer buddy” referenced in the IEP, which was not defined there, and the parents produced no evidence that the district’s peer buddy efforts, which were focused on “directing teachers to assign Student to a compatible group for class projects…” adversely affected the student’s educational or social progress (5, 14-15);
  • “[p]arents’ claim of improper implementation of the provision for an after school aid rests only upon their view of what the aide might have done better, not on any actual IEP violation” (15);
  • no basis for accepting the parents’ claim that the case manager “violated the IEP by not sufficiently encouraging the student to agree to” job shadowing, in that the IEP stated only that the district would “encourage” the student to participate in job shadowing and did not specify how it should be accomplished (15).

After graduating from high school in June 2013, the student enrolled in a four-year college, majoring in music, taking math courses, playing in a jazz band, engaging in regular social interactions with peers, and developing close friendships. (7). The hearing officer noted, “Student’s post high school success to date, in fact, amply supports the conclusion that Student made significant progress[,]” although the hearing officer acknowledged other factors that may have contributed to that success, including counseling services provided by the parents after the student graduated from high school. (12-13).

CF; Pennridge SD: 6/17/14;   McElligott

ID & Speech/Lang. Imp.

IEE: District filed for DP to defend reevaluation.

Fred Stanczak (P); Mark Walz (SD)

W

Kindergarten student with intellectual disability (ID) and speech and language impairment experienced difficulties in class, including elopement behaviors, hiding under desk, and loud vocalizations, within six weeks of beginning school. (4-5). By November 2013, the district had completed a functional behavior assessment, updated the child's prior reevaluation, and revised the IEP. (5-6). The child continued to exhibit problems in the classroom that sometimes resulted in the school requesting the parents to take the child home. (6). At or following an IEP meeting requested by the parents in March 2014, the parents requested an Independent Educational Evaluation (IEE) to include a functional behavior analysis, a VB-MAPP, an occupational therapy evaluation, and an in-home observation. (6-7). In March 2014, the district requested permission to reevaluate the student and, later in March, filed for due process to defend its prior reevaluation. (7). Held: Although the hearing officer found that the district's reevaluation was appropriate, and therefore refused to grant the parents' request for an IEE on the parents' precise terms, the hearing officer ordered the district to fund an independent evaluation to include a VB-MAPP, FBA, OT and speech and language evaluation, and to permit the parents to choose from a list of three potential evaluators selected by the district. (See detailed order at 12-16). Of note are the following:

  • the hearing officer rejected the district's argument that the parents could not request an IEE because they signed opposite "agree" on the evaluation team participation section of the reevaluation report, noting (1) it applies only to reevaluations concluding the child had a specific learning disability, unlike the student here, and (2) even if it isn't construed to be limited in this way, a parent is free to disagree with a reevaluation later on, regardless of whether she signed originally as agreeing with it. (5, 6, 9).
  • the hearing officer noted as "vitally important" that the parents and school "do not share an adversarilal relationship," and that both parties recognize the value in having independent assessments at this early stage to guide them as they work in good faith to address the student's complex needs "for years to come." (10)

YB; Eastern Univ. Acad. Charter School
3/10/14
Carroll
Emotional Disturb; OHI
Discipline: Parents seeking MDR, Reenrollment, Comp Ed
Daniel Cooper (P)
Megan Grossman (CS)

W

A charter school administrator called in a “preteenaged” student’s parents on 1/16/14 after the student reportedly possessed a “sharp object” when a peer sustained a shallow cut to the hand. (3-4). The administrator informed the parents that the student was being suspended immediately for ten days, would likely be expelled, and that the incident would be reported to the police. (2-5). The father expressed great concern, especially in regard to reporting the incident to the police, and feared it would lead to an arrest. (4-5). The administrator explained that sometimes parents voluntarily withdrew their child from school instead of going through the disciplinary process, which would mean there would be “no disciplinary proceedings and the incident would need no follow up.” (4-5) (The school later filed a report with the police on the student’s possession of a weapon, as required by the Safe Schools Act and school policy) (6). The director did not inform the parents of their right to a manifestation review hearing prior to any expulsion hearing. (5). The parents withdrew the student from the school the same day. (5). The mother contacted an attorney the next day, sought to rescind the removal, and filed for DP. (2-5). The student remained out of school as of the time of the expedited hearing on 2/27/14. The parents filed for DP, seeking reinstatement and comp ed. (6). Held: Granted. Order issued reinstating the student and requiring the school to initiate an MDR; comp ed awarded. The hearing officer:

  • concluded the parents’ withdrawal of the student was not “voluntary”: the record established that the administrator “strongly nudged” the parents “toward withdrawing Student” and the information the administrator gave the parents was inaccurate and incomplete, including the failure to advise them of their right to an MDR (11-16);
  • rejected the school’s argument that the withdrawal of the student deprived the hearing officer of jurisdiction to hear the case, stating that the filing of the DP complaint gave rise to the stay put requirement under the IDEA, requiring the school to provide educational services to the student after the student had been excluded from the school for more than ten days (9-11);
  • stated that the student’s pendent placement arose on the date the parents submitted the DP complaint challenging the school’s actions, that the pendent placement was the charter school, and that it would remain the pendent placement through any appeals [of this decision], per the recent decision by the court of appeals in M.R. v. Ridley SD (18-20);
  • declined to award full days comp ed because an alternative placement could have been the outcome of an MDR, such as homebound instruction, if the school had held the MDR as required, and therefore awarded two hours per day comp ed after the tenth day of exclusion following the withdrawal from school on 1/16/14, or upon receipt of the DP complaint triggering pendency, whichever was later (20-23).

MS; Mastery CS; 5/16/14; Carroll

ED; Specific Learning Disability; Speech/Lang. Imp.; OHI

School sought order permitting referral to APS's

Pro Se; Lucas Repka (CS).

L

The student qualified for special ed as a student with emotional disturbance, specific learning disability, speech/language impairment and other health impairment. (2-3). The student displayed increasing negative behaviors after entering the program during the 2010/11 school year, including work refusal, frequent tardiness and absences, non-compliance, and threatening behavior towards staff. Placement in the school's off-site, emotional support setting during the 2012-13 school year was not successful. (3-7). The student's non-compliant behaviors increased to a point where they were "completely uncontrollable by any means." (8). The school sought to refer the student to an approved private school (APS), but the parent did not agree. (8-9). The school filed for due process seeking an order permitting it to refer the student to an APS and to place the student in its full-time emotional support program until the transfer. (2). The parent did not participate in the due process hearing, but did correspond with the hearing officer by email. (13-14). The hearing officer found that certain of the parent's statements and claims were "plainly false" and "completely unbelievable," and that the evidence showed the parent had been "uncooperative and obstructive" during the school year. (14,18). Held: charter school's request granted; order entered permitting the school to apply to APS programs for the student without parental approval; pendent placement to be the full-time emotional support program. (See detailed order, at 22-24).

J.F.; SD Philadelphia
1/17/14
Culleton
Emotional Disturb; OHI
Comp Ed
Pro Se
Sarah Egoville (SD)

W

The district closed the student’s high school and transferred the student to a different school for the 2013-14 school year. (1). On 10/8/13, the parent enrolled the student in the district’s cyber school program, and later filed for DP seeking comp ed for the previous two years arising from an alleged failure to provide a FAPE, further asserting that the district inappropriately excluded the student from school for over 15 days cumulatively without a manifestation determination and that it had retaliated by forwarding false information to truancy and juvenile courts. (1). The parties settled the parent’s claims for the two previous years, but could not agree on how the comp ed provided for in the settlement could be used. (1-3). They also could not agree on a settlement for approximately the first month of school in 2013 before the parent enrolled the student in the district’s cyber program. (1-4, 8). At a hearing in October, the hearing officer dismissed the claims of alteration of records and retaliation without comment. The hearing officer further found as fact that in August 2013, “the parties resolved a complaint that had been filed by the Parent with the Commonwealth.” (4). The hearing officer also found that the parent “provided no evidence that the district offered an inappropriate placement or an inappropriate IEP” for the 2013-14 school year. (7).

At the parties’ request, the hearing officer entered a declaratory judgment specifying how the comp ed hours agreed to in their settlement could be used, as follows:

  • the district’s proposed absolute prohibition of computer and other assistive technology is inappropriate (10-11);
  • parent-selected extra-curricular activities are appropriate; no need to prove “necessity” (12);
  • educational trips in Philadelphia area are appropriate (13-14);
  • limitation of comp ed funds to “non-matriculating” college courses is appropriate (citing case law and OSEP letters). (14-15).

PA; Montgomery County IU
1/23/14
Culleton
Autism
Comp. Ed.; ESY; Unauthorized photo of child; Retaliation
Pro Se
Tim Gilsbach (IU)

L

Autistic child received early intervention services in autistic support settings, in a “reverse mainstream” classroom, and at home from the IU, including a personal care attendant and behavior specialist consultant (BSC) services. (2) The guardian (grandmother) filed for DP alleging the IU failed to provide an appropriate education, supports and placement for the child during the preceding two years, among other claims. (1). The guardian previously had filed three complaints with the Commonwealth. On 9/18/12, the Office of Child Development and Early Intervention (OCDEI) issued a report ordering the IU to provide 42 hours of comp ed arising from the failure to provide the BSC services required by the student’s IEP. (3) On 11/7/12, the OCDEI issued a report requiring the IU to specify when periodic reports would be issued. (3-4). On 2/22/13, the OCDEI issued a report ordering the IU to provide monthly progress summaries, among other documents. (4). After the guardian called the BSC in April 2013 to report the child came home from school with a bloody knee, the BSC investigated and photographed the child’s knew without the prior permission of the guardian. (4-5). In September and October 2013, the IU learned the BSC had failed to delivered the required number of hours specified in the IEP for supervising the child’s PCA, arranged for the BSC to be replaced, and sought to provide make-up hours. (5). The guardian filed separate due process complaints on 10/14 and 10/18/13. Held: Denied. The hearing officer:

  • found as fact that the student “made substantial progress in a broad range of academic, fine motor, speech/language, behavioral and social/classroom skills” between October 2011 and November 2013, despite lapses in IEP implementation that the IU corrected appropriately (7, 9-11);
  • noted the IU provided “numerous IEPs and IEP revisions” for the student addressing the student’s education needs, speech/language therapy, OT, PT, and behavioral services in the classroom and the home (11);
  • concluded the student’s placements and services were appropriate, noting that the child’s failure to make progress on numbers and letters was just one of the many skills that preschool and early intervention services are required to address, and that the hearing officer must review the child’s progress in all areas to determine whether the child was provided with what the law requires” (11-13);
  • found no evidence that the limited dissemination of the unauthorized photo of the child’s knee by the BSC created a danger or deprived the child of a FAPE (17);
  • found no evidence of retaliation, based on the guardian’s claim that school representatives improperly covered the child’s photo as part of a group school photo, or that the IU falsified documents (17-19).

The hearing officer noted the guardian’s testimony “was contradicted by numerous credible witnesses and that [she], upon cross examination, was unable to defend many [of her assertions], claiming a failure of memory.” (19)

EA; MCIU
1/28/14
Culleton
Developmental Delay
IEE, Comp Ed
Pro Se
Tim Gilsbach (IU)

SD

The parent requested an evaluation shortly after taking the child into her home. (2). The IU completed the evaluation, finding that the child was in need of early intervention services. (2-3). An IEP was developed in August 2013 providing for specialized instruction, OT, and weekly, one-half hour, speech and language services in the home. (3). Between 8/27 and 10/15/13, the IU failed to provide 6 speech therapy home sessions. (4). The parent filed for due process, asserting that the evaluation was flawed, the IEP was not appropriate, and the speech therapy sessions were not provided.  The speech therapist offered to make up the missed home sessions, but the parent declined to receive any services until the due process proceeding was over. (4). Held: Evaluation and IEP were appropriate, but IU failed to deliver the required speech therapy sessions: IU ordered to provide as comp ed 11 one-half hour make-up sessions. The hearing officer found that the evaluation addressed all areas of suspected disability and used a variety of assessment tools, as required. (6-12). Although the parent initially challenged the evaluation’s determination that the child had a “developmental delay,” instead of autism, the parent abandoned this criticism after the psychologist testified that the multidisciplinary evaluation team (MDT) chose not to label the child with autism because it wanted to see how the child would respond to preschool education and services. (8). The hearing officer noted that although the parent asserted the IEP failed to provide sufficient speech and language services, the parent “failed to provide any evidence whatsoever to support this claim.” (11)

TW;  Philadelphia SD
2/26/14
Culleton
Learning Disabled
SD filed for DP to defend eval. and for a declaratory judgment on appropriateness of the proposed IEP
Danielle Karcich
Glenn Callahan
Barbara Gotthelf
Sonja Kerr (P)
Sarah Davis (SD)

L

The student began public school in January 2013 in 3rd grade. (2) The district conducted an evaluation of the student that did not include a classroom observation by the psychologist or a speech and language assessment. (3-4). The psychologist’s evaluation report stated that the student had a specific learning disability and recommended placement in learning support for research-based reading and math instruction. (3). The district issued the evaluation report on 9/26/13, at least 9 days past the 60-day deadline. (3). At the MDT meeting to discuss the report, in response to “observational data” provided at that meeting, the district requested additional testing to address additional suspected disabilities affecting attention and executive function. (5). An IEP meeting was held on 10/10/13 placing the student in supplemental learning support. (5). The parent, accompanied by counsel, terminated participation in the meeting after the district refused to permit the meeting to be recorded, and the remaining (district) personnel completed the meeting. (5). The IEP provided specially designed instruction for reading, writing, math and self-advocacy. (9). On 10/15, counsel for parent requested an IEE. (6). The district filed for DP on 10/17 to defend the appropriateness of its evaluation report, and amended its complaint on 10/31 seeking a declaration that its IEP provided a FAPE. (6).  Held: Granted. The hearing officer noted:

  • the initial evaluation was “sufficiently comprehensive to determine whether or not Student suffered from a disability… as well as to identify all of Student’s educational needs” (8);
  • the MDT’s decision on 9/26 to obtain additional data does not establish that the evaluation report was inappropriate, but instead was based on new observations reported at the meeting (10-11);
  • the failure to conduct a formal classroom observation did not render the evaluation inappropriate (the hearing officer parsed the relevant statutory language and its historical development at length), concluding (1) the statute does not require a formal classroom observation and “appears to permit the District to rely upon previous teacher observations in the classroom… in determining whether… to identify the child…” with an SLD. (11-15), and (2) even assuming for this purpose only that a formal observation was required by law, the hearing officer must determine whether such procedural violation had a substantive effect on the provision of a FAPE to the child, and here the hearing officer concludes that it did not. (14-16).
  • producing the evaluation 9 days late is a procedural error that did not affect the student’s substantive rights or the parent’s right of participation, especially given that the IEP meeting was held sooner than 30 days from the date of the evaluation report so that the report’s lateness would not delay services to the student (16-17);
  • issuing a declaratory judgment on the district’s proposed IEP is within the hearing officer’s “broad, equitable remedial authority” (17);
  • the district’s proposed IEP offers FAPE (based on the “only evidence” regarding its appropriateness, which was that of district personnel). (19-21).

XF; Pocono Mt. SD
4/11/14
Culleton
OHI; Speech/Lang. Imp.

Comp. ed.

Heather Hulse (P)

Glenna Hazeltine (SD)

L

After receiving early intervention services in another state, the student was evaluated by the IU and qualified for early intervention transition to school services, based on the finding of a mild delay in articulation skills and limited tolerance for some sensory input. (2). On 9/14/12, at the beginning of the kindergarten year, the parent provided written permission to the district for an evaluation to determine 504 eligibility based on a reported seizure disorder. (2) Although the district concluded there was insufficient information for a finding of 504 eligibility, it agreed to provide a one to one educational assistant to the student on a full-time basis. The parent withheld the student from attendance after the first two days of the school year until the full-time aide was assigned. (4). The student attended school on 9/17 and 9/18, and the parent then withheld the student until 10/29, when the student began attending “sporadically” for the remainder of the school year (4). On 9/26/12, the district presented a reevaluation report limited to speech/language and occupational therapy questions, and an IEP, based on eligibility as a student with speech and language impairment. (4). The parent did not agree to the IEP because it did not offer a smaller classroom and other supports to address the parent’s safety concerns. (4).  On 10/11/12, the district issued an evaluation report classifying the student with Other Health Impairment, based on the diagnosed seizure disorder. (7). The IEP team met on 11/7, amending the IEP to place the student in supplemental emotional support, with itinerant speech and language support, and issuing a positive behavior support plan. (8-9). Following continuing, numerous absences for medical and “unexplained” reasons, in February 2013, the district offered to send a teacher to the home to provide supplementary instruction. (10). It also proposed to reduce the level of support provided, because the student was meeting IEP goals, to reevaluate the student, and to add a truancy elimination plan, to which the parent did not agree. (10). The IEP team met on 3/26/13 and amended the IEP to restore a supplemental level of emotional support, with small group instruction. (10-11). It also filed a criminal complaint against the parent due to the student’s continuing absences. (11). In July, an independent evaluation which the district had agreed to fund was issued, recommending classification with OHI and speech or language impairment, and continuation of an itinerant level of special ed services. (11). The student “made significant progress in academic, behavior and social skills” from September 2012 to April 2013. (11). The parent and student moved out of the district on 7/19/13 (11). The parent filed for DP, challenging the evaluation of 10/11/12 and seeking comp ed for an alleged failure to provide a FAPE during the 2012-13 school year. (1-2). Held: Denied. The hearing officer found:

  • the evaluation report conformed to law (see detailed factual findings on the evaluation and the discussion applying the law to the facts at 4-7; 13-16);
  • the evaluation report was not delivered late, contrary to the parent’s contention (15-16);
  • the IEPs were appropriate, including present levels, goals, SDI, and related services; placement was appropriate; and progress monitoring showed that the student made academic, social and behavioral progress (12, 18-19, 23-24);
  • the hearing officer rejected the parent’s contention that the district ignored the student’s behaviors, including “self-injurious” behaviors such as cheek-biting, noting that the evidence did not indicate that it “caused any significant harm” at school, and that certain behaviors, such as “animal noises,” were “often a display of developmentally appropriate behavior, and when it was not appropriate, Student was easily redirected” (18).

The hearing officer found as fact that the parent had frequently withheld student from school and had interfered with a speech therapist’s testing of the student (5, 11).  The hearing officer stated the district was “highly responsive” to the parent, and the parent “engaged in a pattern of making exaggerated reports suggesting that Student was engaging in highly unusual, regressed and self-damaging behavior.” (24, 25). The hearing officer stated the “contradictions between the Parent’s testimony and the record lead me to doubt the reliability of Parent’s statements.” (24-25).

JH; Tredyffrin-Eastown SD
5/19/14
Culleton
Autism; Speech/Lang. Imp.
LRE; Comp Ed; Private School
Vivian Narehood (P)
Lawrence Dodds (SD)

L

The student exhibited a language delay and learning problems at an early age. An evaluation performed at 18 months resulted in a diagnosis of autism. (2) Multiple cognitive assessments between 2007 and 2013 revealed a full-scale score and many subtest scores in the 1st or 2nd percentile. (2). Although a private evaluation performed at the end of 6th grade revealed cognitive and adaptive ability scores consistent with a classification of intellectual disability, “adaptive scores” from teachers indicated some ability to perform at a higher level. (2). The student’s achievement levels were in the borderline to low average range in reading, writing and math, consistent with cognitive ability. (3). Progress in the lower grades had been slow. (3). In June 2012, the student moved into the district with his family and was enrolled in the district. (1, 4, 27). On July 20, the district offered an IEP for supplemental autistic support, with 62% of the day spent in regular education settings, including special subjects and science, with “shared adult support,” social skills instruction, speech and language therapy, OT, ESY focusing on social skills, and goals for reading, writing and math. (4-5). The parents did not approve that IEP, expressing concerns that the goals were set too low and were not measurable, and the supports were not adequate. (5). The parents did not approve a revised IEP produced on 10/15/12 that reduced the time spent in the regular ed classroom to 51% of the day, revised a reading goal, added a timed reading goal, and added some modifications and specially designed instruction, including a communication book between home and school, with the parents expressing concerns that the student was not benefitting from the regular ed science class, that the IEP lacked a goal for reducing the student’s dependence on prompting and redirection, and that a pending OT services change was unclear. (7-8). At that time, the parents advised the school of their desire for the student to be educated full time in a small, structured learning setting, with a multi-sensory approach, such as an "approved private school." (8). An evaluation report by a private evaluator based on tests administered in May and June 2013, at the end of the student’s 6th grade year, revealed borderline range achievement scores in reading and math, and low average writing scores. (9-10). Those achievement scores in reading and math showed the student had maintained or exceeded the student’s percentile ranking over the approximately one-year period since the student was tested in February 2012. (10). The student grew and changed physically during the period from the end of 6th grade to the middle of 7th grade, and exhibited increasing emotion and conflict with the student’s parents in the home and with peers at school, including “inappropriate” texting (10, 11, 15, 16, 19). In June of the 6th grade year, during a private emotional and behavioral assessment, the student reported “above average symptoms of depression and anxiety, with thoughts of self-harm including a plan.” (11). The thoughts of self-harm prompted the parents to take “immediate protective action.” (11).  At the beginning of 7th grade in the 2013-14 school year, and thereafter, the student reported experiencing anxiety at home and at school, which sometimes resulted in angry and physically threatening behavior towards the mother. (11). The team revised the IEP on 9/17/13, including adding a new social skills goal and a functional math goal, revising specially designed instruction for math, speech and following directions, and increasing social skills instruction to one time per day. (11-12). During this time, the student remained in the autistic support program. (27).  During the roughly 18 months from 6/19/13, when the student was first enrolled in the district, to 1/23/14, the first hearing date, the IEP team “created or revised the IEP nine times.” (27).  The parents filed for DP on 12/05/13, asserting the district failed to provide the student with an appropriate education in the least restrictive environment and failed to instruct the student at the appropriate level, seeking comp ed and an order directing the district to make referrals to approved private schools. (2). Held: Denied. The hearing officer concluded that:

  • the autistic support placement was appropriate, providing for special ed classes in reading, writing and math, and general ed settings, with supports and modifications, for science, history, special classes including art and PE, and social times including lunch, social skills training, and appropriate related services, including speech and OT (26-30);
  • each of the nine IEPs created or revised during the 18 months in question “contained all the elements that the IDEA requires[,]” including measurable goals addressing academic, social and functional needs (27);
  • the district’s choice to classify the student with autism as opposed to intellectual disability, (as the parents’ expert proposed), was reasonable in light of evidence indicating the student’s cognitive abilities and functioning in certain areas exceeded that which would be expected in a student with an intellectual disability (32);
  • the district’s choice of instructional methodology to present the student with academic challenges as close to age-appropriate as possible, instead of the parents’ preferred strategy of starting the student at the 2nd or 3rd grade levels and requiring mastery before moving to the next level, was reasonable (32-34);
  • the student made significant progress within the special ed curricula and, though “the level of progress seems demonstratively small” for the 18-month period at issue, the IDEA requires the hearing officer to “assess the meaningfulness of progress in light of the cognitive ability of the student[,]” which was very low (34);
  • the evidence is not sufficient to support the parents’ contention that the student’s anxiety, mild depression, thoughts of self-harm, and physical aggressiveness towards the student’s mother was caused by a level of curricula at school that was too high, as opposed to the transition to adolescence or other factors. (35).

AD; Hampton Twp. SD
11/18/13
Ford
Autism
Parents seeking travel training
Jeni Hergenreder, Jeffrey Skakalski (P)
Patricia Andrews (SD)

SD

An autistic student in his “13th year” of public school “banked” his diploma and participated in a transition program that included an “Intro to Transportation” class designed to assist the student to use public transportation in pursuit of his education, employment and independent living goals in his IEPs. (2-5). The student was able to travel to the education site (Project SEARCH) by door-to door public transit, but was not learning how to use a “fixed-route” bus system. (5-7). The parents filed for DP seeking to require the district to provide fixed-route bus training and to develop a measurable goal for travel training. (2). They sought to require the district to use a particular methodology for travel training on fixed-route buses and called one of the authors of that methodology as a witness. (7-8). Held: The parents’ request for a particular travel training methodology is denied; the parents’ request for a measurable travel training goal is granted. (14-15).  The hearing officer cited case law holding that under the IDEA “parents do not have a right to compel a school district to provide a specific program or employ a specific methodology in educating a student.” (10). The H.O. found that the parents failed to prove that their proposed methodology was possible, and they failed to prove that “the District’s methodology is incompatible with the provision of FAPE.” (12-13). The H.O. stated the parents met their burden to show that an objective IEP goal was needed to measure progress towards independent use of public transportation, and ordered the IEP team to reconvene to develop the goal (13-14).

JG; Belle Vernon SD
12/11/13
Ford
Down Syndrome; ID; Speech/Lang. Imp.
Parents requested stay-put order at current, out-of-district school
Kristen Weidus (P)
Aimee Zundel (SD)

W

The parents sought to prevent the transfer of their elementary school aged child with Down Syndrome and an intellectual disability from an IU-operated life skills support program in another school district to an IU-operated life skills support program being opened by the student’s district at the neighborhood school. (2-3). They sought an order permitting the student to remain in the current, out-of-district placement until the student aged out of the current program at the end of the 2013-14 school year. (2, 8). The H.O. found as fact that the student had made meaningful progress over the two years the student had participated in the current program, the student had demonstrated difficulties with transitions, and the student would likely experience difficulty with the transition to the proposed setting. (2-5). The hearing officer also found as fact that:

  • the district prepared a reevaluation report (RR) in April 2013, prior to proposing the change in placement at an IEP meeting on May 2, 2013 (6);
  • the district’s superintendent and the school psychologist “met and spoke on more than one occasion prior to the May 2, 2013 IEP meeting, and as [a] result of those private conversations, determined that the [District placement] was appropriate for the Student” (8);
  • the RR recommended a team meeting to review the student’s current educational location (6);
  • the RR was silent on the student’s difficulties with transition (7);
  • the student’s current Life Skills teacher was instructed by the teacher’s employer, the IU, to “remain neutral” regarding any change in the location of services (7);
  • the NOREP specifying a change in the location of services was presented to the parents at the IEP meeting before the IEP was presented (8);
  • there was no meaningful discussion of alternatives to the district’s proposal at the IEP meeting (8); and
  • the superintendent advised the parents at the IEP meeting that they could request a due process hearing if they disagreed with the district’s decision. (8).

Held: Granted. The hearing officer directed the district to maintain the current, out-of-district placement until the end of the 2013-14 school year. (14). The hearing officer noted the law favored providing the least restrictive environment in the student’s neighborhood school. (9). The H.O. also noted case law in the Third Circuit and other jurisdictions, including Lebron v. North Penn School Dist., 769 F. Supp.2d 788 (E.D.Pa. 2011), that vest significant authority in public school districts in school selection, as long as it is educationally appropriate. (10). But the hearing officer stated this authority is “not absolute.” (10).  The H.O. concluded that the district’s “predetermination” of the service location decision excluded the parents from the parental participation in IEP decisions “enshrined” in the IDEA, and thereby violated their right to a FAPE (10-11). The H.O. also stated, “parents have the right to argue that building selection (or reassignment) will yield a deprivation of FAPE, and so parents must receive IDEA-compliant prior, written notice in advance of any such change.” (11). The H.O. further noted that the district failed to inquire into or to plan for the student’s transition needs in moving from the current placement to the new placement. (12-13).

HS; Northhampton SD
1/17/14
Ford
Emotional Disturb. (ED); Learning Disabled
Consolidated claims: District filed to defend eval; Parent filed for Comp Ed, FAPE; IEE; 504
Dean Beer (P)
Joanne Sommer (SD)

L

A special ed student’s “isolated but serious behavioral incidents” during 4th grade prompted a functional behavioral assessment (FBA) and a positive behavior support plan (PBSP), a reevaluation, a change to a primary classification of Emotional Disturbance, and reassignment to an Emotional Support program in an out-of-neighborhood elementary school. (3-6). The parent placed the student in a psychiatric facility for eight days in March 2012 during 5th grade due to “behaviors at home.” (6). In September 2012, the parent revoked consent for special ed services and the district returned the student to a regular ed class in the neighborhood school (8). At the parent’s request, the district reevaluated the student and issued an IEP and NOREP in April 2013 reassigning the student to Emotional Support at an out-of-neighborhood school, which the parent rejected. In June 2013, the parent forwarded a signed NOREP to the district specifying instruction in a regular ed classroom, but the district denied authorship of the NOREP. (9-10, 26-27). Following the parent’s request for an IEE, the district filed for DP (2), and the parent filed for DP seeking a FAPE, IEE, and comp ed under Section 504 (2, 16-19). Held: IEE and comp ed denied. The hearing officer stated:

  • the district’s FBA was not legally deficient despite the evaluator’s failure to observe student in the classroom (“It is possible for an LEA to fall below best practices without violating the IDEA”) (14-15);
  • the student’s performance, as evidenced by report card grades, and behaviors showed progress during first three quarters of 2012/13 school year, while the student’s declining performance and behaviors during the 4th quarter “points to significant behavior problems, exhibited outside of school, resulting in a psychiatric hospitalization,” to which the district responded appropriately; the IEP and PBSP for the 2011-12 school year were appropriate (15-16);
  • the district violated Chapter 15 by failing to provide the IDEA-eligible student with a 504 plan after the parent revoked consent for special ed services, but the parent failed to prove that the district’s failure denied regular education benefits to the student, so no comp ed is due (16-17; 31-36) (reviewing cases);
  • a comparison of the NOREP received from the parent in June 2013 to prior NOREPs issued by the district establishes that it was not generated by the district, and therefore the student’s pendent placement remained as fixed when the parent previously revoked consent for special ed services (27-30);
  • the April 2013 IEP and NOREP recommending Emotional Support are appropriate, and no comp ed is due, even if hearing officer accepts the parent’s contention that the parent accepted the NOREP in part and withdrew the revocation of consent for special ed services (17-19; 31-36);
  • the district’s challenged evaluation report of March 2013 was appropriate, and therefore the parent is not entitled to an IEE at public expense (19-20).

Note: the third, fourth and fifth bullet points above are addressed in the H.O.’s separate, 17-page Prehearing Order attached to this decision as Appendix A.

ES; Oxford Area SD
2/5/14
Ford

IDEA-eligible;
Prospective Private  Placement; Tuition Reimb.

Pro Se
Tom Warner (SD)

L

In late August 2013, the parent contacted the district to schedule an IEP meeting for the student. (5). The district advised that the student must be enrolled in the district first, which the parent attempted to do. (4-5). According to the parent, the student was not enrolled until 12/11/13. (3, 5). According to the district, the student was enrolled by “late October.” (5). The parent filed for DP on 11/19/13 asserting that the district had improperly excluded the student from school and seeking placement in a private school at district expense. (3). Held: Denied. The hearing officer:

  • determined that the H.O. had jurisdiction to decide whether a student with an IEP is receiving a FAPE and whether a district is excluding a student because of a disability, as alleged in the complaint, and therefore denied the district’s challenge to jurisdiction based on an alleged absence of power to determine whether the student was a resident of the district (2-3);
  • denied the parent’s request for a private school placement at public expense because the parent presented no evidence that the district cannot meet the student’s educational needs (6);
  • denied the parent’s request to the extent that it encompassed a claim for tuition reimbursement because the parent presented no evidence of the lack of appropriateness of the services in place at the time of the hearing (7);
  • noted as to tuition reimbursement that even assuming that the determination of appropriateness of services is based on the time the parent requested the hearing, and further

assuming that as of that time, the student was receiving no services, as the parent contends, the parent was not able to identify a specific private school for which the parent seeks reimbursement or show that a debt or obligation to pay tuition had been incurred, and therefore could not satisfy part II of the Burlington-Carter test (6-7).

R.C.; Center for Student Learning Charter
3/14/14
Ford
IDEA-eligible
Charter school seeking permission to transmit records to allow transfer
Pro Se
Maria Ramola (CS)

L

Charter school (CS) filed for DP seeking order permitting it to transmit records on student, over the parent’s objection, to private schools to permit their consideration of accepting the student. (2). The CS and the parent stipulated that the CS was not an appropriate placement, but the parent refused to permit the CS to transmit the student’s records to potential private school placements because they allegedly contained inaccurate information (2-6). Held: Granted. The proposed transfers of records to potential APS/private school placements qualifies under the “school officials” exception to the parental consent requirement, per 34 CFR 99.31(a)(1)(B). (4-7). The hearing officer found that the private schools were “school officials” within the meaning of FERPA to which the CS was “outsourcing” its duties while retaining legal responsibility as the LEA (5-6) (see page 6 for discussion of the four criteria for the “school officials” exception to parental consent under FERPA).

L.S: Great Valley SD
3/17/14
Ford
Regular Ed Student
District seeking to perform initial evaluation
Pro Se
David Painter (SD)

L

The district filed for DP seeking to override the parents’ refusal to consent to an initial evaluation and FBA of a 3rd grade student with “persistent behaviors,” including bullying, bus misconduct, inattention, and resisting redirection (2-7). The district had assigned a PCA to the student following complaints of aggression towards other students. Held: Granted. The student’s behaviors were sufficient by February 2012 to trigger the district’s “Child Find” obligations, and its attempts beginning at that time to secure the parents’ consent to evaluate were appropriate (9). The district satisfied the standard for parental consent override set forth by the Fifth Circuit Court of Appeals, and applied here, which requires a district to “articulat[e] reasonable grounds for its necessity to conduct” the desired evaluation (9).

AH; Philadelphia SD
3/24/14
Ford
ID (disputed); Other
IEE; Placement; Comp Ed
Sonja Kerr (P)
Sarah Davis (SD)

SD

The wheelchair-bound, nonverbal, legally blind child with Cerebral Palsy fed in part through a “g-tube” transitioned from early intervention services to school–aged services at the start of the 2013-14 school year. (4-5). In the spring of 2013, the district reevaluated the student, but did not complete it within 60 days of receiving the parent’s consent. (5). In July 2013, the parent filed a complaint with the Bureau of Special Education (BSE), which issued a report on 9/9/13 that included specific findings on what transpired at an IEP meeting on 8/27/13 (5-6). The parent filed for DP on 11/22/13 challenging the district’s reevaluation and IEP, seeking comp ed, placement at Overbrook School for the Blind, and an IEE (2). The district filed an answer stating its intention to add the appropriateness of its evaluation as an issue in the hearing initiated by the parent, instead of filing a separate DP complaint for that purpose (23). The H.O. issued a pretrial order denying the parent’s request for an IEE at public expense arising from the district’s failure to file a separate DP complaint to defend its evaluation, noting that the district’s response to the IEE request in the parent’s complaint was timely, that there was no substantive difference between the two methods of litigating the issue under the circumstances, and that requiring the district to file separately would cause an unnecessary delay (25-27). The hearing officer entered a split decision, finding as follows:

  • the district’s affirmative determination of intellectual disability, based on the professional judgment of the district’s evaluators, and without cognitive testing, was error (12-14) (rejecting the district’s contention that the student is “untestable”);
  • the parent’s request for a prospective placement, which is not governed by the Burlington-Carter test for tuition reimbursement, is denied because even assuming that the student’s current placement is not appropriate, the parent failed to prove that it “cannot be made appropriate through the addition of necessary supports… [or] [i]n other words, nothing in the record suggests that placement at Overbrook is the only way for the student to receive a FAPE” (14-15);
  • the parent’s claim that the district’s evaluation is inappropriate because it was completed late is beyond the authority of the H.O. to review because the BSE’s determination that the evaluation violated IDEA timelines but caused no substantive harm, and awarding no comp ed, cannot be “altered” or “interfere[d] with” by the H.O. (6, 15, 21);
  • although the district evaluation’s finding of ID was in error, its description of the student’s abilities and needs conformed to the IDEA, and the district has met its burden to prove it was appropriate (15-17);
  • the parent was justified in keeping the student home until a nurse was in place regarding the g-tube feedings, awarding one hour of comp ed for each school day between 9/16 and 10/2/13 (17-20);
  • the district’s failure to secure the equipment needed for the “standing program” specified in the IEP requires an award of comp ed for two and one-half minutes for each school day between 9/16/13 and 1/31/14 (21);
  • the parent’s claim of lack of meaningful participation in the IEP process is contrary to the findings of the BSE report, which established that the parent participated in the development of the August IEP. The “only conclusion [the H.O.] can reach without disturbing the CIR, is that the Parent participated in the development of the Student’s IEP” (21).

CG; Unionville-Chadds Ford SD; 6/10/14; Ford

Parent alleged Section 504 violation; sought copies of Test Question Booklets.

Pro Se; Anne Hendricks (SD)

SD

The parent filed for due process asserting the district violated a specific accommodation of the Section 504 agreement by failing to notify the parent when the protected handicapped student received a zero on two or more missed assignments within the same week and violated Section 504 by refusing to provide copies of test question booklets to the parent. (2). The district moved to dismiss the parent’s claim as to the test booklets on the ground that the claim was governed by the Federal Educational Rights and Privacy Act (FERPA) over which the hearing officer had no jurisdiction. The hearing officer denied the district’s motion, concluding that Chapter 15 of the Pennsylvania Code, the state regulations corresponding to, and further applying, Section 504, incorporates FERPA’s records requirements, the parent’s records request was brought under Section 504, and the hearing officer has jurisdiction over 504 actions. (Pre-Trial Order, at 8-9). As to the parent’s claims for relief, the hearing officer held: (1) interpreting any ambiguity in the terms, “week” and “assignment,” in the Section 504 plan accommodation against the district, as the drafter of the agreement, the district violated the agreement because it failed to notify the parent when the student had more than two missed assignments for which the student received zeros during the week of 10/7/13, and (2) the FERPA access to records provision, as incorporated in the Chapter 15 regulations applying Section 504 to Pennsylvania students, requires only that a district permit the parent to review and inspect the records, and does not require a district to make copies of the records, unless it cannot accommodate the parent’s schedule, and it had not been established that the district here could not accommodate the parent’s schedule to permit the inspection of the test booklets. (4-9). As to the failure to notify in violation of the 504 agreement, the H.O. ordered the district to comply with the agreement, and as to the test question booklets, the H.O. denied the parent’s request for copies. (5-9 ). Note:

  • The H.O. assumed for this purpose only that the test question booklets were student records within the meaning of FERPA, as incorporated in Chapter 15. But without deciding the issue, and as an aside, the H.O. noted “the growing body of case law holding that test protocols… analogous to the question booklets… are student records….” (5).

KB; Abington SD; 5/12/14; Ford

OHI (ADHD); Specific Learning Disability; Speech/Lang. Imp.

IEE; District filed for DP to defend its reevaluation and secure order permitting it to terminate S/L services.

Pro Se; Claudia Huot (SD)

The parents requested an individual educational evaluation (IEE) at public expense after the district found in its reevaluation report that the student no longer required speech and language services and sought to terminate those services. (2). The district denied the request and, as required by law, filed for due process seeking to defend its reevaluation and requesting an order permitting it to terminate S/L services over the parents’ objections. (2). The district’s S/L therapist recorded progress notes in the 2011/12 and 12/13 school years documenting the student’s progress, and the district’s reevaluation included S/L skills tests that, according to the district, established, together with the student’s history and other factors, that the student no longer qualified for S/L services, but did qualify as a student with OHI (ADHD) and a specific learning disability. (3-6). The parents obtained an outside S/L report finding that the student continued to require S/L support, based primarily on the results of a Comprehensive Assessment of Speech and Language (CASL) test. (7). At due process, the parents did not assert that the district used improper procedures in performing the reevaluation, but that its conclusion that the student no longer required S/L services was incorrect, and therefore should be disregarded. (11). Held: district's request granted. The district’s RR was appropriate and its conclusion on S/L was correct; the district is not required to fund an IEE; the district may terminate S/L services. (12-13). Note:

  • The H.O. considered the parents’ outside report, but found it to be unpersuasive. The H.O. noted it is ‘hearsay” because it is an out-of-court statement offered to prove the truth of the matter asserted, without the author(s) present to testify. The H.O. noted that hearsay evidence can be admitted at the due process level, but it cannot form the basis for the hearing officer’s decision. (See discussion of the outside report at 11-12).
  • The H.O. rejected as unproved the parents’ argument that the student has a central auditory processing disorder (CAPD) that requires S/L services to remediate it, even assuming for this purpose only that CAPD is a recognized disability under the IDEA. (12).
  • The H.O. noted in “dicta” (remarks that do not affect the outcome of the case) that the student’s present and proposed IEPs present “very serious concerns.” One IEP goal called for the student to “’demonstrate continued proficiency in the general education curriculum that required reading.” (4,13).

EM; Centennial SD
10/2/13
Lochinger
Gifted
Comp Ed; GIEP
Michael Connolly (P)
Anne Hendricks (SD)

W

The parents asserted the GIEPs for the 2012-13 and 2013-14 school years were inappropriate, and sought comp ed. Held: Granted. The H.O. found both GIEPs inappropriate, awarded comp ed for the 2012-13 year, and ordered the GIEP team to develop an appropriate GIEP for 2013-14. The H.O. found:

  • the 2012-13 GIEP evidenced procedural defects, which made the “GIEP inappropriate, on its face, for the Student,” including the failure to include a current teacher at the GIEP meeting, “no helpful present levels of performance,” omitting the student’s assignment to the “IMG” (Gifted) class, despite its being the “main portion of the Student’s… gifted program”; the sole goal to “maximize [the student’s] talents and giftedness by selecting and completing independent goals in areas that [the student] will self-select then explore either independently or within a small group” has the “look and feel of boiler plate language that has not been individualized to the student…” (13-15);
  • the gifted teacher testified she limited the student’s goals in the GIEP “because she would not have the time to support additional goals,” which was an improper limitation on the student’s GIEP (14); H.O. noted email from the gifted teacher to a district administrator stating, “[i]f we are going to start individualizing the gifted program for each student again outside of the classes that I am now teaching, then something has to change for this to work.” (16) The H.O. found “no evidence of any real attempt to individualize the Student’s program in the Student’s core classes through acceleration, differentiation, or compaction,” apart from a successful effort in math and an unsuccessful one in science, in which the teacher failed to follow through to require the student to choose and do a “self-directed” special project. (17-18)
  • the inclusion of journaling (writing), which the student did not like and in which he was not gifted, as part of his gifted program in the IMG class indicates that the program was not individualized, as gifted education is intended to enrich a gifted student’s strengths, and not be directed towards the student’s weaknesses (15).
  • Placing the student in the IMG class and providing the same gifted program as to all other gifted students in the class did not meet the student’s individualized needs, and was inappropriate. (18-19)
  • The H.O. rejected the district’s argument that the student’s “lack of interest” was at fault, noting, based on the student’s successful response to the increasing challenge in math class, “very strong evidence that when the Student was properly engaged, the Student was ready, willing and able to learn whatever was presented…” ((20)
  • Procedural and substantive defects in the 2012-13 GIEP required an award of comp ed equal to 50 minutes for each (50-minute), inappropriate IMG class during the year. (20-21)
  • As the 2013-14 GIEP “is essentially the same document” as the 2012-13 GIEP, the H.O. ordered the parties to meet within 30 days to develop a new GIEP. (20-22)

NJ; West Perry SD
11/7/13
Lochinger
Gifted
Parents seeking appropriate GIEP
Pro Se
Brook Say (SD)

L

The parent sought an order for a revised GIEP, asserting that the district’s reduction by 50% of the time allotted to the “REACH” program classroom activities for gifted students from 60 minutes to 30 minutes due to a building-wide class schedule change would prevent the student from achieving the GIEP goals (2-8; 10-12). Held: Denied. The reduction in time “does not appear to have negatively affected the Student’s gifted program.” (14). The H.O. noted that no regulation or guideline “mandates a specific amount of time [for] a gifted program.” (The student participated in three honors and one AP course) (7, 14). The H.O. also cited PDE “Gifted Guidelines” permitting Honors and AP courses as “options to meet the needs of some gifted learners” and stated that here the “honors and AP course… appear to be providing the Student with an appropriate gifted education.” (14-15). He noted that although one (of the three) goals had been removed from the student’s GIEP, it was only after the student had declined to participate, citing regulations indicating that “a proper gifted placement must “provide opportunities to participate in acceleration or enrichment, or both, as appropriate for the student’s needs.” (Emphasis in original, 13-14). The H.O. also cited an off-site program at Hershey Medical Center for high school students planning a medical career, in which the student participated and for which the district dismissed the student early each week, as “evidence that the Student is… being provided with an appropriate gifted education by the District.” (15).

SK; North Allegheny SD
11/17/13
McElligott
Blind/Vision Impaired; Hearing Impaired
Parent seeks transportation order; Comp Ed under 504
Rebecca Hall (P)
Michael Brungo (SD)

L

The parent and district agreed on a private placement located 9.7 miles outside the district’s border as an appropriate facility for the elementary aged student with impaired vision and hearing and developmental delays. (4-5). The parent enrolled the student in a private, before and after-school daycare facility specializing in meeting disabled children’s medical needs located approximately two miles from the private education site. (5-6). The parent requested the district to transport the child from home to the daycare center each school-day morning and to transport the child from the private school to the daycare center each school-day afternoon. (2). The district refused the request, citing a policy under which it would transport students between daycare centers and schools only if the schools were located inside district boundaries. (5). The parent filed for DP under Section 504 asserting that (1) the district was unfairly discriminating against her child based on the child’s disability, and (2) transporting the child as requested was a reasonable accommodation of the student’s disability that was necessary in order for the student to take advantage of the education program provided by the district. (2, 5, 7-10). Held: Denied. As to the parent’s first argument, the hearing officer stated that, “to find that a school district discriminated against a student in violation of Section 504, the school district must have acted with deliberate indifference toward the student on the basis of that student’s disability.” (7) The H.O. noted that even though the student is being denied a benefit, the policy would apply in the same way to a non-disabled peer and is therefore a “facially neutral application” of the district’s transportation policy. (8). As to the parent’s second argument, the H.O. stated the parent was seeking an accommodation of the parent’s needs, and not the child’s needs. (8-9).

KC; Belle Vernon SD
11/22/13
McElligott
Down Syndrome; ID; Speech/Lang. Imp.
LRE
Pamela Berger (P)
Aimee Zundel (SD)

W

The student with Down Syndrome and intellectual disability attended a life skills program operated by the IU in another school district. (3) The IEP developed in April 2013 during the student’s 5th grade year contained 15 goals in areas including reading, math, time-telling, writing, money skills, and OT. (6) The student continued to make progress during the remainder of the school year. (6). In May, the IU announced plans to close the out-of-district program. (8). During the same period, the district was developing its own life skills program located within the district but not within the student’s neighborhood school. (8). The district issued a NOREP on 8/9/13 recommending placement in its life skills program, which the parents rejected, based on their desire for the student to participate in a learning support class in the neighborhood school the student’s sisters attended, and filed for DP. (8-9). Held: Granted. Citing federal and state law favoring placement in the least restrictive environment, the hearing officer stated that each element of the student’s IEP could be delivered in the learning support environment in the neighborhood school or, put differently, nothing required it to be delivered in a life skills setting. (9-11).

DC; Philadelphia SD
2/19/14
McElligott
ID; Autism
Comp Ed
Jennifer Sang (P)
Michele Mintz (SD)

W

The parent filed for DP on 8/22/13 seeking comp ed arising from the district’s alleged failure to provide a FAPE to the intellectually disabled, autistic student during kindergarten and first grade in 2012-13 and 2013-14, including summers, and for the (current) 2013-14 sch. year. (2). The hearing officer found as fact that the district failed to conduct an FBA before preparing a Positive Behavior Support Plan; the 2013 IEP repeated portions of the 2012 IEP verbatim; the June 2013 IEP reduced OT; and the student made little or no progress on the majority of the IEP goals through December 2013. (3-10; 17).  Held: Granted: comp ed awarded. The hearing officer found procedural errors in the IEPs, including quantifying the allotment of related services such as OT in “minutes per IEP term” instead of per week, and the failure to do an FBA. (11-12). The H.O. found substantive errors including “prejudicial confus[ion]” in the present levels sections of the 2011 and 2012 IEPs, noting the replication verbatim of parts of the present levels of the 2011 IEP in the 2012 IEP and the inclusion of “stale” and “unreliable” information there. (11-14). The H.O. found the June 2013 IEP “substantively inappropriate” because of the “inexplicable” reduction of speech and language therapy by 75%. (14-15). The H.O. stated, “the award of compensatory education rests predominately on the lack of progress.” (17). The comp ed award encompassed the school years from 10/9/11 through the last school day of December 2013. (18-19). The H.O. did not award comp ed for ESY during the summers of 2012 and 2013. (17).

JN; Southwestern SD
3/13/14
McElligott
Learning Disabled; Hearing Imp; Speech/Lang. Imp.
Mark Voight (P)
Brooke Say (SD)

L

The student enrolled in public school in 6th grade (2012-13 school year) after five years of home schooling. An IEE secured by the parents and completed in July 2012 recommended identifying the student with OHI and specific learning disabilities in reading, writing and math (among other things) (5). The district issued an evaluation in August 2012, which included findings that the student was able to read words and comprehend at the 3rd grade level. (6). An IEP developed in August 2012 identified a range of learning needs, including reading fluency and comprehension, basic reading, written expression, spelling, math problem-solving, and math calculation. (7) In September 2012, the parents filed for DP based on issues concerning the district’s provision of services while the student was being home schooled before beginning 6th grade (7). In October, the district issued a revised reevaluation report and revised the IEP to include a primary classification of SLD and adjusted upwards the goals in reading comprehension and reading fluency to reflect the student’s present levels. In November, the parties settled the DP complaint, in which the district agreed to pay for the IEE and the parents waived all rights to a FAPE for the remainder of the 2012-2013 school year. (8-9). In January 2013, the IEP goal for reading comprehension was revised to reflect the student’s comprehension based on 4th grade materials. (9). At an IEP meeting in February, the student was reported to be making progress in reading fluency and reading comprehension, and the decoding goal was discontinued because the student met the goal. (9). The student’s reading fluency and reading comprehension goals were adjusted again to reflect progress. (10). In May, the independent evaluator issued an update reporting the student’s achievement levels in reading were commensurate with levels in 2012, concluding that the System 44 reading program being utilized was not appropriate, and recommending the Wilson Reading System, a program that “focuses on decoding/encoding word structure, using controlled texts, speech sounds/segmenting/blending, and syllable focus.” (11, 14). The annual IEP developed in May recommended shifting from System 44, with its heavy emphasis on phonics and decoding, to Read 180, a broad-based program balancing decoding against comprehension and broader reading skills. (11-12). On 7/8/13, the district offered an IEP with revisions, but requiring reading instruction to be delivered through Read 180. (12-13). On 7/15, the parents filed for DP, and on 7/18 the district proposed an IEP including components of the Wilson system. (13). The parents placed the student in a private school serving students with learning disabilities, and sought tuition reimbursement and comp ed for ESY during the summer of 2013 through due process. (14). Held: Denied. The hearing officer noted:

  • the July 8 IEP is the relevant IEP, as the last IEP offered before the parents filed for DP (16);
  • the testimony of the district’s reading supervisor was “highly persuasive” on the need for the student for a broad based reading program (Read 180) instead of a program centered on phonics/decoding, such as System 44 or the Wilson system (17);
  • the July 8 IEP goals are grounded in data, explicit and measurable, and the IEP is appropriate, and therefore the parents are not entitled to tuition reimbursement under the first prong of the Burlington-Carter test (16-18);
  • the evidence indicates ESY was appropriate, and therefore comp ed is denied (19).

LL; Pennsbury SD; 3/25/14; McElligott

OHI
Comp Ed; Reimbursement of Home School Services

Fred Stanczak (P)
Sarah Davis (SD)

L

The student entered kindergarten for the 2012-13 school year, after several years in non-district preschool settings. (3-6). In January 2012, before the student entered public school, the district completed an evaluation revealing a full-scale IQ of 119 and a diagnosis of separation anxiety, generalized anxiety, and sensory integration disorders. (3-4). A reevaluation was conducted in April 2012 and an IEP was developed in May with goals focusing on increasing the student’s participation inside and outside the classroom without the necessity for a caregiver, provided for a caregiver to accompany the student initially, and program modifications including a classroom “calming station.” (5-6). The student adjusted well after kindergarten began and the caregiver was completely faded from the school environment by 9/24/12. (6). The student “enjoyed success on IEP goals in the 2012-2013 school year and in the kindergarten year generally,” despite an incident that occurred on 4/10/13, when the student was unable to participate in gym because of unusually high temperatures, and while with another student, “three times, the gym teacher had to ask the students to settle themselves…” (7). Later the same day, after the special education teacher escorted the student to the nurse’s office due to temperature concerns, the student reacted emotionally when the teacher attempted to leave, and had to be calmed before continuing with the school day. (7) After those incidents, the parents reported the student exhibited school avoidance, and missed three days during the remainder of the year because of “school refusal.” (7-8). After April 10, the “relationship between the parties became prickly.” (8). The IEP developed on 5/30/13 included a transition plan that again provided for a caregiver in the classroom initially and for gradually acclimating the student to the longer school day, and a schedule for “sensory breaks.” (9). The parents filed for DP in July, and the district revised the IEP in August that included a more structured approach to transitions within the school day and a voiding schedule, per the recommendation of the student’s pediatrician, despite data collected at school showing no need for a voiding schedule. (8-10). The parents filed a home school affidavit in August that included a private tutor, and amended their complaint in September to include their disagreement with the August IEP. (11). At due process, the parents sought comp ed for the 2012-2013 school year and reimbursement for home schooling expenses during the 2013-14 school year. Held: Denied. The hearing officer stated the May 2012 IEP appropriately addressed the student’s transition needs for kindergarten, including the student’s separation and other anxieties, and sensory integration needs. (12). While the H.O. noted there were “changes in the student’s engagement with school” after the April 10 incident, the district continued to provide a FAPE. (13). The hearing officer noted that as of May 2013, the student “had made excellent progress under the terms of the May 2012 IEP,” and concluded that the May 2013 IEP appropriately addressed the student’s transition needs in 1st grade and that the “lone” goal (on self-advocacy) was appropriate and sufficient. (9, 14-15). While noting the changes made in the August IEP, the H.O. stated that the May IEP was reasonably calculated to yield meaningful education benefit. (15).

MS; Pennsbury SD
4/23/14
Learning Disabled; Speech/Lang. Imp.
LRE; FBA
McElligott
Pro Se
Thomas Warner (SD)

SD

In May 2013, during the student’s 5th grade year, the district performed a reevaluation in anticipation of the student’s move to middle school for the 2013-14 school year. (3). The reevaluation report (RR) identified the student as having specific learning disabilities in reading comprehension, math, and listening comprehension, and a speech and language impairment, including pragmatic language. (3). The RR noted the student’s social/emotional difficulties and socially inappropriate behaviors in class, such as talking loudly to self and inappropriately laughing out loud. (3) An IEP developed in June did not indicate the student exhibited behaviors that impeded the learning of the student or others, but indicated that placement changes might be necessary in middle school. (4). The IEP provided that the student would participate in co-taught, inclusion classes for all academic subjects. (5). In October 2013, “given concerns of the special education [and language arts] teachers about the student’s progress…” informal reading assessments were performed, during which the student exhibited exclamatory behaviors, including “laughter, non sequiturs, self-directed remarks…” (7). During October, the principal, director of special education, and the parents observed the student in class. (7). An IEP developed in December recommended placement in a resource setting for reading, math and writing, and the district sought permission to perform a functional behavior assessment (FBA). (9). The mother agreed; the father did not, and filed for DP seeking an order preventing the district from changing the student’s placement to learning support and barring an FBA. (2, 9). Held: Granted in part; denied in part. The H.O. found as fact that the “work product of the student in reading and general academics supports the conclusion that the student’s reading and writing need to be addressed in a more intensive environment[,]” and entered an order for instruction in a resource room setting. (10, 13-15). The H.O. found as fact that the student made progress in math in a co-taught inclusive classroom, and directed that this placement be continued (10, 13-15). The H.O. stated the LRE for the student was the “split-program.” (15). The H.O. stated the student’s “behaviors in school are marked and complex enough to necessitate a FBA.” (13).

SM; Wissahickon SD
5/14/14
McElligott
District seeks permission to evaluate
Pro Se
Scott Wolpert

L

The student struggled academically, was not completing homework, exhibited a potential need for help with reading skills, and prompted “multiple concerns with… attention and focus…” over the course of several years, despite the attempted intervention of the “child support team” beginning in 6th grade. (2-6). The district repeatedly sought permission from the parents to evaluate the student during this time, but the parents did not agree, believing that the student would improve with increasing maturity and time on task (3-8). The district filed for DP seeking an order compelling the student’s evaluation without the parents’ permission, pursuant to 34 CFR 300.301(b) and 22 Pa. Code 14.102(a)(2)(xxiv). (8). Held: Granted. The hearing officer asked, “whether, when all the evidence related to the student on this record is considered, should the student be evaluated under the terms of IDEA[,]” and answered in the affirmative, noting that the cumulative effects of the various interventions attempted by the district were unsuccessful and even with supports in every class, the student’s grades were declining from 6th through 8th grades. (9).

JT; Moon Area SD; 5/14/14; McElligott

Autism; ID; Speech/lang. Imp.

LRE; Comp. ed

Jonathan Steele (P); Patricia Andrews (SD)

L

The parents filed for DP seeking an order transferring the intellectually disabled student from an "approved private school" life skills program (funded by the school district) to the public school. (2-3). The student made documented progress during the 2011/12 and 2012/13 school years in the private school. (6-7). A reevaluation in October 2013 included a functional bahavior assessment noting the student continued to exhibit inappropriate behaviors at school, including screaming and whining. (9). An IEE supported the private placement. (15). Two special ed teachers and a speech/language therapist testified persuasively that the student needed to remain at the private school. (12) Held: Parents' request denied. The hearing officer found that the private school placement was the "least restrictive environment," and expressed a concern that if the student were transferred to the public school, the programming might "tip into inappropriateness." (15).

DC: Reading SD
11/18/13
Skidmore
ID; Speech/Lang. Imp.
IEE; District filed to defend its evaluation
Pro Se
Kathleen Metcalfe

L

The district filed for DP seeking an order finding that its reevaluation report (RR) on a “late-teenaged” student with ID and speech/language impairment was appropriate, and that the district need take no action with respect to the parents’ request for an IEE. (2, 4). Held: Granted. The district’s RR is appropriate; the district need take no further action. (22). The findings of fact include detailed descriptions of the tests and other assessment methods comprising the RR of 9/12/13 that prompted the parent’s request for an IEE. The H.O. concluded that the district used a variety of testing instruments, administered each instrument in a standardized fashion and in accordance with the test maker’s instructions, that the district personnel were qualified to do the evaluation, that it accurately determined individual areas of educational need, and that it assessed all areas of suspected disability, as required by law. (17). Though the H.O. found there were “minor” errors in the RR, they were not sufficient to render the RR inappropriate. (19). The H.O. considered, but did not accept, the parents’ contentions that the RR was flawed because (1) it did not include an assessment for an auditory processing disorder, (2) it failed to include a recommendation for weekly individual speech/language therapy, as recommended in an independent speech/language evaluation secured by the parents, and (3) it used the KABC-II intelligence test, instead of another intelligence test, such as the WISC-IV (17-19). (See pages 17-20 for the discussion of the parents’ contentions and the hearing officer’s responses).

TC: Belle Vernon SD
12/26/13
Multiple Disabilities, including cerebral palsy
Comp ed; New transportation plan
Skidmore
Lilian Akin (P)
Aimee Zundel (SD)

SD

The student is a wheel-chair-bound, nonverbal, elementary school-aged student with cerebral palsy, spasticity, dystonia, pervasive development disorder, and a genetic defect. (3). Frequent repositioning in the wheelchair is necessary to help prevent skin breakdown and pressure sores and the student must be toileted approximately every two hours. (3-4). Because of the child’s multiple disabilities, the student must be transported in a temperature-controlled van that accommodates the wheelchair and an aide. (3). In August 2013, the parents requested a reevaluation for the purpose of considering a change in placement from the IU-operated classroom for multiply disabled students the child had attended for three years. (4). With the team’s approval, the parents selected a facility recommended by the student’s pediatric rehabilitation physician, which was incorporated in an IEP and NOREP developed on 10/10/13. (4-5). By the shorter, more congested, route of 41 miles, the trip to the new facility would last about 90 minutes, which included about 15-20 minutes to discharge another student along the way. By the longer, less congested, route of 56 miles, the trip would last about 80 minutes. (6).  The district’s transportation department assigned the student to the shorter route that takes longer to complete. (6). Through no fault of either party, an IEP team meeting to discuss transportation was not held. (9). When the van appeared at the parents’ home at a new, earlier time in October to begin transporting the child to the facility by the shorter, more-time consuming route, the parents declined the transportation arrangement, and held the child out of the program thereafter. (7). The parents filed for DP in November, 2013 asserting that the IEP of 10/10/13 failed to provide a FAPE, and seeking comp ed. (2). Held: Granted in part; denied in part. The H.O. concluded that neither transportation plan is appropriate, but denied comp ed, and ordered the IEP team to meet. (2, 9-12). The hearing officer noted that under the IDEA, the appropriateness of special education, including the related service of transportation, must be based on the individual student’s needs. (9) The hearing officer rejected the parents’ contention that the district improperly ceded to its transportation department a decision on transportation that should have been made by the IEP team, noting that the transportation department was aware of the student’s transportation needs based on transporting the student in prior years and that an IEP team meeting to discuss transportation was not scheduled due to the fault of neither party. (9). The hearing officer concluded that a difference of approximately ten minutes in the two routes of travel was not “a crucial element” in addressing the student’s travel needs. (10). The hearing officer directed the IEP team to reconvene to prepare a transportation plan for the student on the assumption that the trip would require between 90 and 100 minutes, and specified some elements it must include, principally focusing on the duties and qualifications of the PCA accompanying the student on the van and at school. (10). The H.O. did not award comp ed because the district was not aware at the time of the 10/10/13 IEP and NOREP of an outside limit for the student’s travel on the van and because neither party was at fault in failing to reconvene to discuss transportation thereafter. (11). The H.O. also noted that because of the distance that must be traveled, it might not be possible to develop a transportation plan that meets all of the student’s needs. (11)

AB; Council Rock SD
1/27/14
Skidmore
Speech/Lang. Imp.
IEE
Pro Se
Grace Deon

L

The elementary school-aged student identified with a speech/language disability had an IEP that included consultative speech/language therapy and OT as related services. (2-3). The district produced an OT evaluation report in November 2013 that recommended that OT services be discontinued. (4-5). The parents requested an OT IEE, and the district filed for DP to defend its OT evaluation. (2). The parents did not respond to requests to participate and did not appear for the hearing. (2) Held: OT evaluation was appropriate. (10). The hearing officer concluded that the OT evaluation satisfied the criteria governing evaluations required by the IDEA. (7-10).

AQ; Bensalem Twp. SD
DQ: Bensalem Twp. SD
MQ; Bensalem Twp. SD
4/30/14
Skidmore
IEE; District seeking to defend evaluations
Pro Se
David Painter (SD)
(Note: each student is the subject of a separate due process action under a separate ODR case number; three separate decisions were entered.

L
L
L

Note: The hearing officer issued separate decisions for each student. The relevant facts are similar, the legal issue whether the district’s evaluations of each student are appropriate, is the same, and the parents’ contentions are the same, with limited exceptions, for each student in support of their desire to secure an IEE at public expense.  Of course, each student is different and each student’s profile and needs are different. But given the legal issue presented here, the differences between the three siblings were not sufficient to require that each decision be summarized separately.  A common thread that runs through all three cases is that each student’s limited understanding of English at the time of the evaluation is an important factor in assessing the results. The page numbers in the following summary refer specifically to the decision in AQ.

The parents adopted three siblings, AQ, DQ and MQ, from an Eastern European orphanage in the spring of 2013 and filed registration forms with the district in May 2013. (3-4). ESL testing revealed that the students were at a beginning level of English language knowledge, and the district provided them with ESL classes daily, with supports. (3). All three students were seen by a local mental health facility, where each had been diagnosed with Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. (4). The evaluations of each child were completed and evaluation reports for each were issued on 1/4/13. (4). In performing the testing, the evaluator at times relied upon an interpreter whose native language was the same as the students. (5). The ER for each student stated the student was not eligible for special education. On 12/13/13, the parents sent an email message to the district advising that they disagreed with the evaluation of each student, and requesting an IEE. (7). The district filed for DP to defend its evaluations. Held: the district’s evaluations were appropriate. The hearing officer found that the evaluations met the criteria of federal and state law governing evaluations for special ed eligibility. (8-11). The hearing officer rejected the parents’ contention that the evaluations were flawed because they were not conducted in the students’ native language, while acknowledging the limitations imposed, as stated by the district’s psychologist and one of the parents’ personal evaluators, of conducting assessments in another language normed on an English-speaking population. (11). The hearing officer rejected the parents’ “apparent belief” that the students’ academic performance below their peers qualifies them for special education, where the record as a whole supports the conclusion that the students’ weaknesses academically at the time of the evaluation were related to their very limited English proficiency. (11-13). The hearing officer also rejected the parents’ contention that the district discriminated against the children because they were U.S. immigrants, and that the district’s insistence on having a signed permission to evaluate before undertaking the evaluations was “unreasonable.” (13). The H.O. noted the “strained relationship” between the parties. (12).

GL; Mannheim Twp. School District
3/20/14
Skidmore
SLD; Specific Learning Disability
Comp Ed; Tuition Reimbursement; IEE; ESY
Mark Voight (P)
Jeffrey Champagne (SD)

L

The teen-aged student, who had been born in an Eastern European country before being adopted at age 6, had attended three private schools between kindergarten and fifth grade, where the student struggled with making and keeping friends, and with all areas of academic work, despite outside tutoring in reading and math provided by the parents. (3). The student saw a psychologist between January and July 2012 on several occasions due to behaviors the student was exhibiting. (3). The student began the 2012-13 school year as a sixth grader in the district. (3). The district performed an evaluation during the spring 2012, concluding that the student had a specific learning disability in math problem solving and oral reading fluency, and a speech/language impairment. (5). An IEP was developed in June 2012 with goals addressing speech/language needs, reading fluency, decoding comprehension, math problem solving, written expression, coping skills, and interacting with others. (6). An IEE obtained by the parents in July 2012 determined the student’s cognitive ability to be in the low average range, with a recommendation that included placement in a “small private school for children with severely multi-handicapping disabilities.” (7). In August 2012, the IEP team met to incorporate the results of a literacy test and the IEE. (7). It planned a functional behavioral assessment, based on the parents’ concerns about the student’s behaviors, increased time in learning support, added additional program modifications and specially designed instruction, and provided for a modified science and social studies curriculum and direct instruction in problem-solving. (7).  At that meeting, the parents first broached the topic of a private school placement. (7). In October 2012, the student’s IEP was revised again to review behavioral information obtained at the start of the year. During the 2012-13 school year, the student continued to experience difficulties with social skills, including friendships, and with a particular peer that required intervention to separate the student and peer. (9). During the 2012-13 school year, the student “frequently came home from school upset and uncooperative…” (10).  The IEP team reconvened in April 2013, when the goals were adjusted, including adding a new goal for pragmatic language, and speech/language services were increased to every day. (10). Throughout this period, a tutor retained by the parents worked with the student to help with homework. The student made progress academically, on organizational and coping skills, and on all but one of the speech/language goals. (11-12). The student achieved passing grades, but scored below basic on the math and reading portions of the PSSAs. (12). The student participated in a small social skills group every day. (12). An update to the IEE in July 2012 showed that the student had improved in some areas on the WIAT and declined in others. (12-13). At an August IEP meeting, the IEP was revised, and the parents requested the district to fund a private placement. (13). On 8/27/13, the parents notified the district of the student’s withdrawal. (13). In September the district sought permission to reevaluate the student, but the parents did not return a signed authorization. (13). The parents placed the student in an “approved private school” (APS). (2). They filed for DP seeking comp ed for the 2012-13 school year, tuition reimbursement for the 2013-14 school year, and reimbursement for the IEE. (2-3). Held: Denied. The hearing officer noted that the district’s initial IEP was based on a recent comprehensive evaluation that assessed the student in all areas of disability. (19). The June 2012 IEP identified the student’s needs through the RR and addressed each of those needs. (19). The hearing officer:

  • rejected the parents’ contention regarding a lack of baseline data, noting that the student had not attended the district school before beginning 6th grade and baseline data were added as soon as the necessary information was available (19);
  • rejected the parents’ contention based on a lack of a behavior plan because the FBA conducted by the district did not disclose the problematic behaviors that the student reportedly was displaying at home (19);
  • rejected the parents’ contention that the district failed to incorporate the recommendations in the IEE, stating that the district was appropriately addressing the student’s needs in each area highlighted by the evaluator (19-20);
  • rejected the parents’ contentions that the district “water[ed] down” the curriculum by providing “too many modifications” to the student’s program, that the student’s inability to participate in school clubs evidenced a denial of FAPE, and that the progress monitoring data show a lack of meaningful progress. (See discussion at 20-21).

The H.O. found that the April 2013 IEP reflected updated information and that the August 2013 IEP identified additional needs and incorporated suggestions from the IEE, concluding that it appropriately addressed each of the student’s areas of need through a combination of goals, modifications, and specially designed instruction, and therefore the H.O. denied the parents’ tuition reimbursement claim. (21). Further, the H.O. dismissed the parents’ request for ESY because “no testimony suggested” that any of the criteria for ESY were satisfied, and dismissed the parents’ claim for reimbursement of IEE costs because the district’s evaluation was appropriate. (22).

MB; North Hills SD
3/26/14
Skidmore
Autism
Comp Ed; Assistive Technology Eval; FBA
Charles Steele (P)
Michael Witherel (SD)

W

A nonverbal student with autism began kindergarten in the district in a life skills program in the 2012-13 school year. (The decision’s pages are not numbered: the facts summarized here are based on Findings of Fact 1 – 32). A prior evaluation performed by the IU noted a need for a communication system and strategies. Before beginning kindergarten, the student showed some ability to use an iPod app to access images expressing wants and needs. The student also had been receiving weekly, individual speech/language therapy since January 2012. The private therapist was able to establish “joint attention” with the student on a regular basis and, beginning during the fall of 2012, the student was able to express wants and needs in the private sessions (conducted in a room with other therapists and children present) using a “communication book,” and to respond to the student’s name by turning towards the speaker. Since the fall of 2012, the student also demonstrated the ability to use a similar communication book to communicate wants and needs at home. The student’s IEP developed in June 2012, before the student began kindergarten, identified needs respecting assistive technology and communication, and provided for a 1:1 aide and speech/language support 21 times per quarter for 20-25 minutes.  On 10/31/12, after the student entered kindergarten, the district issued a reevaluation report, which noted that the student exhibited frustration with trying to communicate wants and needs by “moaning or crying, tears, clenched fists, and stiff body movements.” (FF 14).  The parents had sent the student to kindergarten with the iPod communication program, but the district had little success with using it. The IEP was revised by November 2012, including revisions to the communication goals relating to demonstrating joint attention and responding to the student’s name. The student transitioned to a new autistic support classroom for the 2013-14 school year. The teacher tried unsuccessfully to use the student’s iPod communication program during the first six weeks. The IEP of November 2013 stated the student could not recognize the student’s own name and would become frustrated because of an inability to express wants and needs. Progress on the student’s communication goals between September and December 2013 was “extremely limited.” (FF 31). The district’s speech pathologist used a picture communication system in the school speech sessions similar to the one used by the private speech pathologist and in the home. As of the time of the hearing on 3/6/14, the student had demonstrated “emerging” joint attention skills. (FF 28). The parents filed for DP asserting that the district had failed to appropriately provide for the student’s communication and behavioral needs, seeking an assistive technology assessment, a functional behavioral analysis (FBA), and comp ed for the 2012-13 and 2013-14 school years. Held: Comp ed denied for 2012-13, but granted for 2013-14; district ordered to perform assistive technology evaluation and a “limited” FBA. The hearing officer noted that the IEP for the kindergarten year addressed the student’s communication and behavioral needs, that the student was just entering the district and likely required time to adjust, and there was “little evidence” presented concerning that year. For the first grade year, the evidence established that the student’s problematic behaviors had not diminished and that the student continued to demonstrate significant communication needs. The H.O. found the goals in the IEP were appropriate, but the district used a “perplexing” variety of approaches in working with the student on functional communication, and noted the district’s “striking” failure to investigate to determine whether and how the student was using the iPod to communicate in other settings, including having the district’s speech pathologist communicate with the private speech pathologist regarding it.  The H.O. awarded one hour of comp ed for each school day in the 2013-14 school year until the recommendations in the (ordered) assistive technology evaluation are incorporated in a revised IEP.

IP; East Stroudsburg Area SD; 11/16/13; Valentini

Other Health Impairment (OHI); PTSD

District seeks full-time emot. support placement; Parent alleges failure to provide FAPE.

Phillip Drumheiser (P); Anne Hendricks (SD)

L

The student received emotional support for less than 20% of each school day (called "itinerant" emotional support) during the 6th, 7th and 8th grade years at issue. (3). Although the district initially found that the student had a learning disability in written expression, by 2013 it concluded there was no longer a significant discrepancy between ability and achievement in that area. (3). Test scores obtainied durng the 2013 reevaluation included 123 in broad written language, 126 in written expression, 113 on writing samples, and 130 in writing fluency (ranging from "high average" to "very superior"). (3). The student increasingly refused to do work at school during the 6th-8th grade period. (4-11). By April of the 7th grade year, the student was "refusing everything" and failing all 7th grade classes. (11). The student's refusals had escalated from "passive refusal, to disrupting the regular education class, to verbal and physical aggression towards peers, to verbally threateing a teacher to physical aggression towards a teacher." (11-12). The district's efforts to intervene, including eliminating IEP goals, reducing the student's workload, permitting other forms of participation, such as answering questions orally, consultations with the IU psychologist, and changing the methodology for delivery of social skills training, were unavailing. (4-12).  In April 2013 the district recommended placement in a full-time, off-site emotional support program operated by the IU. The parent sought placement in the district's cyber school. The parent declined to visit the emotional support program proposed by the district. (13). The district filed for due process seeking an order placing the student in the IU emotional support setting. The parent filed for due process seeking a finding that the district failed to provide the student with an appropriate education in written expression. The two complaints were consolidated into one due process proceeding. Held: Order issued placing the student in the IU emotional support program. (2). The H.O. found that the district had provided the student with "the opportunity to derive meaningful educational benefit from Student's educational program," and the district could no longer offer the student an appropriate program. (19). The H.O. also found that the IU program represented the least restrictive environment for the student at this time. (19). The hearing officer found no persuasive evidence in support of the parent's claim of a denial of FAPE "in any respect."

JT; Marple Newtown School District
1/21/14
Valentini
OHI: ADHD
Comp Ed
Dean Baer (P)
Mark Walz (SD)

L

The student graduated from high school in June 2013, and the family moved to a “distant” state (2, 13). The student was diagnosed with ADHD in kindergarten and received special education services in the district from grades 1-12. (3). The district issued a reevaluation report on 10/6/10, when the student was in 10th grade, that noted “ADHD-related issues” and a continuing weakness in written expression, though noting the student had improved considerably in writing since 9th grade. (3). The IEP of 10/18/11 contained goals of increasing the student’s written expression grade level and rate of assignment completion, and included modifications and specially designed instruction, including extended time for tests, chunking of material, and preferential seating. (9). The student failed World Geography in the junior year (2011-12), and the parent hired a tutor for “two or three two-hour sessions a week” to assist the student in completing an online, make-up World Geography course. (3). During the junior and senior years of high school, the student experienced continuing difficulty with organization and focus, and submitted assignments “late, incomplete, or not at all.” (4) The parent also reported the student was angry and anxious at home about the incomplete assignments. (4). At the IEP meeting of 10/18/12, the parent expressed a desire for the student to graduate on time, and expressed that she was “pleased with Student’s progress and felt that Student had much support at school.” (5). The IEP of 10/18/12 continued, but adjusted, the goals for written expression and assignment completion, and added a goal for increasing time on task. (8). During the student’s senior year, the student was scheduled for guided support class 3-4 times per week to assist with organization and assignment completion. (8). In late March or April 2013, the parent provided an IEE to the IEP team, based on testing that had been completed by November 2012 (the report was delayed) (2, 5). The evaluator noted that the results “do not signify the need for major changes in the IEP,” but recommended the IEP be expanded to include “targeted instruction in… skill deficit[s],” such as organization and time management.  (7). After receiving the IEE, the guided support teacher “worked more intensively with Student on organization and outlining and a system for written assignments.” (8). During the senior year, “when it became apparent that Student was not going to do any assignments at home, the IEP team decided to keep all Student’s assignments in school…” (9). After the student graduated, the parents filed for DP, alleging, among other things, that the district failed to address the student’s needs for organization and focus. (2). Held: Denied.  The hearing officer accorded reduced weight to the parent’s testimony because of (1) the parent’s lack of contemporaneous disagreement with either IEP or the student’s graduation, (2) the parent’s attribution of the student’s problems with assignment completion to difficulties with writing, when the achievement test results on the IEE showed the student’s written expression at the 58th percentile, and the independent evaluator described the IEP team’s greatest challenge as finding a way to “reconcile the discrepancy between what Student can do and what Student does do[,]” (3) though the parent described the student as anxious, angry and depressed at home, the parent’s failure to secure mental health counseling for the student raises a question as to whether the student’s “presentation at home was as significant as the Parent’s testimony would suggest.” (10). In reaching the conclusion that the 2011 and 2012 IEPs were appropriate, the hearing officer noted that, “the independent evaluator reviewed the October 2011 and October 2012 IEPs, and concluded that no major changes were needed, but made various suggestions to enhance Student’s study skills; however, most of these strategies were already incorporated into the two relevant IEPs.” (12). The H.O. further noted that once the IEE was received in late March or early April the special education teacher “intensified her specific instruction on focus and organization with Student.” (12) The H.O. stated that if this decision were based on the equities, it would be in favor of the district, inasmuch as the parent was represented by counsel since before the IEE was performed and the “parent herself and/or through counsel did not object to the IEPs created before or after the IEE, nor was there any objection to Student’s graduation.” (12-13).  But the H.O. stated it was not necessary to reach the equities because the district committed neither procedural nor substantive errors. (13). The H.O. noted she “could not ignore the fact that for approximately three-fourths of the relevant period Student’s neurological condition was not being addressed through medication,” (“Student’s ADHD, which by the Student’s and the Parent’s choice was unmedicated during most of the relevant period, continued to contribute to interferences with Student’s focus and attention affecting completion of required course work, and problems with assignment completion contributed to failing classes…”), that the student missed almost 10% of 11th grade through absences, and that the student “very often did not do the work at home that was needed to complete assignments on time.” (13). The H.O. cited the testimony of the student’s tutor about how she had to provide “a constant counterweight to Student’s low frustration tolerance and habit of escaping demands[,] as evidencing a level of support that was “well beyond what the district should have done.” (13)

JG: Young Scholars Kenderton Charter School
1/27/14
Autism
LRE; Parent seeking removal from regular ed  
Valentini
Pro Se
Patricia Fecile-Moreland (SD)

L

The second grader with autism participated full-time in an autistic support classroom in a Philadelphia public school despite having an IEP providing for “supplemental” (part-time) autistic support. (2-4, 9). A charter school took over the school building and program beginning in August 2013. (2-3). It identified the student as a candidate for part-day instruction in a general ed classroom, based on a review of the records of the student’s progress, current observations of the student, and the changing composition of the autistic support classroom with the addition of younger, “noisier” students, the charter school decided to move the student into two regular ed classes, with support from a TSS. (2, 5-6, 9). Within a few days, the student became less satisfied with school and voiced a desire to stay in the autistic support classroom. (4-5, 9). The parent sought to prevent the change and refused the charter school’s offer to conduct a full reevaluation. (2, 9). The parent filed for DP seeking to return the student to autistic support full-time. (2). Held: Denied; reevaluation ordered. (10). The hearing officer emphasized the IDEA’s requirement to educate disabled children with typically developing children to the extent possible. (10). The H.O. cited the testimony of the student’s BSC in support of the LRE and a reevaluation. (2). The H.O. stated the charter school properly attempted to implement the supplemental autistic support placement developed, but not implemented, by the Philadelphia SD before the charter school replaced it at that location. (9).

LC; Chichester SD
4/30/14
Valentini
“Thought to be eligible” discipline case
Parent seeking procedural protections under IDEA and reinstatement in school following expulsion.
David Frankel (P)
Christina Stephanos (SD)

W

The pre-teenaged child enrolled in the district at the beginning of the 2012-13 school year. The parent informed the assistant principal and guidance counselor at that time that the student had showed signs of sadness and unhappiness since a death in the family two years earlier, and the district provided grief counseling to the student in the form of a grief group run by the guidance counselor. (2) Between the student’s entry in the school and 2/20/14, the student received 19 disciplinary referrals resulting in 10 days of out-of-school suspension, 3 in-school suspensions, 12 detentions and 6 21-day privilege denials, including for bullying, physical aggression, defiance, insubordination, fighting, and disruptive behavior. (3-7). During that period, the parent asked the teacher and assistant principal if there was anything that could be done. (2-3). Throughout that period, documents and emails created by staff indicated an awareness by the student’s teacher, guidance counselor, librarian, assistant principal and others of the student’s continuing disciplinary problems. For example, on 2/13/13 the homeroom teacher emailed another teacher stating, “I just write [Student] up every time [Student] does something. I think they need to see that [Student] is worse than they think [Student] is.” (5). On 2/21/14, the student brought a weapon to school and threatened to “poke” another student. (9). The district suspended the student and imposed a one-year expulsion following a school board hearing. (9). The parent filed for “expedited” DP, asserting that the district had failed to provide the student with the required manifestation determination hearing as a child “thought to be eligible” under the IDEA prior to taking further action. (2) Held: Granted. The hearing officer held that the district was “deemed to have had knowledge that Student was a child with a disability before the February 21, 2014” incident and directed the district to return the student to school and fund an independent evaluation “conducted by qualified professionals in the areas of school psychology and child psychiatry” to determine whether the student is eligible for special education. (16). The H.O. concluded that the parent had effectively requested an evaluation for the student, without using the “magic words,” which satisfied the “parental request for evaluation” condition for a child to be deemed “thought to be eligible” and to trigger the procedural protections of the IDEA. (14-15). The H.O. also found that the student qualified for the procedural protections as a “thought to be eligible” student on the separate ground that district personnel had expressed specific concerns about a “pattern of behavior” exhibited by the student to “supervisory personnel” of the agency, which the H.O. deemed to include the assistant principal who had been informed of the student’s ongoing disciplinary problems.” (15). The H.O. rejected the stated rationale of the district’s supervisor of special education and administrators that a referral for evaluation and consideration of possible special education eligibility was not appropriate because that is limited to students who, unlike this student, were not receiving “good grades.” (16).

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