Bethlehem Area School District | Case 23509-19-20 | 2020-09-14

This is a redacted version of the original decision. Select details have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. Pennsylvania Special Education Due Process Hearing Officer Final Decision and Order Closed Hearing ODR File Number 23509-1920 Child’s Name J.F. Date of Birth [redacted] Parent(s)/Guardian(s) [redacted] Counsel for Parent(s)/Guardian(s) Kathleen Metcalfe, Esquire 1230 County Line Road Bryn Mawr, PA 19010 Local Educational Agency Bethlehem Area School District 1516 Sycamore Street Bethlehem, PA 18017 Counsel for LEA Kristine Roddick, Esquire One West Broad Street, Suite 700 Bethlehem, PA 18018 Hearing Officer Brian Jason Ford, JD, CHO Date of Decision 09/14/2020 1

Introduction This special education due process hearing concerns the educational rights of a student (the Student).1 The hearing was requested by the Student’s parents (the Parents) against the Student’s Local Educational Agency (LEA or the District). The Parent’s claims arise under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The parties agree that the Student is a child with a disability as defined by the IDEA and, as such, is entitled to a free appropriate public education (FAPE). The Parents claim that the District violated the Student’s right to a FAPE, and that the District’s plan for the Student’s education going forward will not provide a FAPE. The Parents demand compensatory education to remedy the denial of FAPE that has already occurred, and changes to the Student’s individualized education program (IEP) so that the Student will receive a FAPE going forward. The Parents also oppose the District’s proposal to move the Student into an emotional support (ES) placement in another school building. As explained below, I find in part for the Parents and in part for the District. Issue(s) Presented The issue(s) presented for adjudication in this matter are: 1. Did the District deny Student a FAPE from March 2018 through the present? 2 If so, what type and amount of compensatory education does the District owe to the Student. 1 Except for the cover page, I have omitted information that could identify the Student to the extent possible. 2 The Parents requested this due process hearing on March 6, 2020. There is no dispute that their claims are timely. 2

2. Is the District’s IEP of February 2020 appropriate? If not, must the District add annual goals and direct instruction in executive functioning, social skills, receptive language, occupational therapy, math computation, and written expression along with corresponding specially designed instruction (SDI) and related services. 3. Is the District’s Reevaluation Report of January 31, 2020 appropriate? If not, are the Parents are entitled to an independent educational evaluation (IEE)? 4. May the District move the Student into an ES placement in a middle school other than the Student’s neighborhood middle school? Findings of Fact I carefully considered all evidence and testimony. I make findings of fact, however, only as necessary to resolve the issue(s) presented. Consequently, all evidence and all aspects of each witnesses’ testimony is not explicitly referenced below. I find as follows: Kindergarten (2014-15), 1 st (2015-16) and 2nd (2016-17) Grade 1. The Student was placed into autistic support in the District in kindergarten for half of the day and regular education for half of the day. NT 726. 2. In 1 st grade, the Student was increased to 80% time in the regular education classroom and 20% time in autistic support. N.T. 727. 3. The District moved the Student from autistic support to learning support because the autistic support teacher was leaving the District. NT 727. 3

4. The Student’s initial 1st grade placement was over an hour away from the Student’s home by bus. The District transferred the Student to the Student’s neighborhood elementary school in January 2016. NT 728. 5. No evidence suggests that the Student’s placement changed during the remainder of 1st grade and all of 2nd grade (2016-17). Passim. 3rd Grade (2017-18) 6. At the beginning of 3rd grade, the Parents were concerned about the Student’s social skills, writing and language skills, coping skills, speech articulation, and attention. P-4. 7. On October 5, 2017, the District proposed a triannual reevaluation. The Parents provided consent for the reevaluation the same day. P-4. 8. The District evaluated the Student and drafted a reevaluation report dated October 13, 2017 (the 2017 RR). P-4. 9. Through the 2017 RR, the District found that the Student was a child with both Autism and a specific learning disability (SLD) in basic reading and basic math. P-4. 10. The 2017 RR included a broad-based behavior rating scale (BASC-3) and an Autism-specific rating scale (ABAS-III). Both the Parents and the Student’s teachers completed both rating scales. P-4. 11. The Parent and Teacher ratings on the ABAS-III were fairly consistent, with the Parents’ ratings somewhat more elevated than the teachers’ ratings. The Parent and Teacher ratings on the BASC-3 were different across several domains, but especially the “Externalizing Behaviors” index, which includes hyperactivity, aggression, and conduct problems. The Teacher’s rating placed the Student in the “Average” range for 4

Externalizing Behaviors while the Parent rated the Student in the “Clinical” range in the same index. P-4. 12. The District’s evaluator noted the discrepancy within the 2017 RR and, in general, concluded that the Student’s behaviors were different at home and in school. See P-4 at 18-19. 13. In November 2017, the District conducted a Speech and Language Screening. Through the screening, the District found that the Student distorted some /r/ controlled vowels and substituted “th” for “s” in words. However, the District found that the Student’s articulation issues were minimal and that the Student did not require speech therapy. The therapist who conducted the screening recommended that classroom teachers model correct articulation when the Student made errors in class. S-1. 14. On December 8, 2017, the District proposed an Occupational Therapy evaluation with a Sensory Profile. The Parents provided consent on December 11, 2017, and the District received that consent on December 22, 2017. P-6. 15. On January 29, 2018, the Student refused to comply with a teacher’s instruction, became upset, and [redacted]. The Parents and the Student’s teacher emailed about the incident. The Parent reported that the Student’s perception was that a District employee gave an instruction, the Student question the instruction, and then lost recess time for questioning the instruction (losing more recess with each question). In the several emails about the incident, the District did not dispute what the Parent reported as the Student’s version of the events leading up to the [redacted]. P-7. I, therefore, accept the best 5

and only evidence of the antecedents to this behavioral incident as an accurate description. 16. On February 1, 2018, the District issued an Occupational Therapy (OT) report. At the time of the report, the Student was receiving OT on a consultative basis. The District recommended reducing the amount of consultative OT to 15 minutes per quarter to address sensory issues. The report also recommended strategies to implement in the classroom. P-6. 17. The [redacted] incident prompted a meeting between the Parents and the District. During the meeting, the parties agreed to conduct a Functional Behavioral Assessment (FBA) of the Student. The FBA was written up in a report on February 14, 2018. P-10. 18. The [redacted] incident was an extreme escalation of the Student’s general behavior. However, at the time of the FBA, the Student was frequently showing negative, disruptive behaviors in class. These behaviors included refusal to comply with teacher instructions, negative statements about self, teachers, and peers, calling out, and making noises. P-10. 19. Through the FBA, the District found deficits in the Student’s behaviors related to Participation Skills, Social Skills, Organizational Skills, Self- Regulation Skills, and Study Skills. The Student’s negative behaviors occurred most frequently at arrival and after lunch during whole group instruction in literacy. P-10. 20. Through the FBA, the District hypothesized that the function of the Student’s behavior was to gain attention, gain control, or avoiding working. P-10. 6

21. March 6, 2018 is the start of the period for which the Parents demand compensatory education. 22. The parties met on March 14, 2018 to discuss the FBA. The parties agreed to revise the Student’s IEP to include two behavioral goals: one to follow teacher directions and another to complete classwork. The parties also added a Positive Behavior Support Plan (PBSP) to the Student’s IEP. The IEP was not revised to include direct instruction related to behavioral issues, but did include participation in a coping skills group as SDI. P-10. 23. Starting on January 29, 2018, the District kept track of the Student’s behaviors on a per-class period basis. The Student would receive a star for each class period in which the Student completed work and followed teacher directions. This chart was put in place before the FBA was completed, the PBSP was drafted, and the IEP was revised to include the two goals already listed on the chart. S-3. 24. The behavior chart did not change after the IEP was revised to include the behavior goals and PBSP. As noted, the goals were listed on the chart before the IEP was revised. S-3. 25. On the behavior chart, District personnel would draw a star when the Student completed work and complied with instructions, a line when those behaviors were not tracked, or a note when the Student did not meet the goals or was absent. District personnel also wrote comments instead of stars when the Student did particularly well. S-3. 26. The behavior chart for May 7 through 18, 2018, is missing. S-3. 27. Overwhelmingly, the District did monitor the Student’s behavioral and give the Student stars on a per-class basis. S-3. 7

28. The Student frequently required redirection or prompts to stay on task. The District gave stars on the behavior chart for periods in which the Student required redirection but complied with teacher instruction after redirection. The charts do not indicate whether, what type, or how much redirection was needed. Similarly, the District placed a scale on the Student’s desk that Student used to indicate frustration levels. The District did not take data on the Student’s use of the scale or the Student’s frustration levels. S-3, see NT 939-940. 29. D uring the 2017-18 school year, the District provided ELA instruction to the Student using its general education curriculum. Like all elementary students in the District, the District placed the Student into a Response to Intervention (RTI) group for reading. NT 886.3 30. Like all students in the classroom, the Student also reviewed writing assignments with the teachers in a small group while the rest of the class did other work. See NT 887. 31. Writing was the biggest challenge for the Student. See NT 888. 32. During the 2017-18 school year, the District provided Math instruction to the Student using its general education curriculum. NT 890. 33. The Student did not receive instruction in a learning support classroom. Instead, a special education teacher and teaching assistant pushed into the general education classroom after whole group instruction for both ELA and Math. NT 889, 891. 34. The Student met with the school’s guidance counselor with a small group of students at least twice per week. The Student was placed in 3 In the context of this case, RTI describes levels of general education support provided to all students. 8

this group as part of the SDI in the Student’s IEP. There, the guidance counselor used a social thinking curriculum with the students. The guidance counselor understood that the Student had deficits in friendship skills, anger management skills, and social skills like eye contact and taking turns in conversation, perspective taking, and self- regulation. The guidance counselor worked with the Student in an effort to address these deficits. The frustration level scale was part of this effort. No data was taken on any of the guidance counselor’s work. See, e.g. NT 939-940. 4 th Grade (2018-19) 35. The Student transferred to one of the District’s other elementary schools for 4 th grade. The Student’s mother works at the 4th grade elementary school and discussed the Student’s needs with the new school’s principal. The principal has a background in special education. NT 743-744. 36. Like in 3 rd grade, the special education teacher started 4th grade by pushing into the general education classroom. However, a few weeks into the school year, the special education teacher began to take the Student and some other students to the Learning Support classroom to provide math instruction. NT 118. 37. The Student’s math instruction, both in the general education classroom and in the learning support classroom, was provided through the school’s general education math program. 38. During 4 th grade, the Student received reading instruction in the general education reading program used in the school. This reading instruction was supplemented with a general education reading intervention program. The general education reading program also 9

included a writing component. The Student received writing instruction and assessments through that component. NT 102-106. 39. The Student continued to have behavioral difficulties in 4th grade. Those difficulties included work refusal, outbursts, inattention, arguments with teachers, and behavior that was distracting to others. NT 232, 234, 240. 40. As in the year prior, the District did not provide direct instruction in behavior management. See, e.g. NT 112. Instead, the Student’s general education teacher gave the Student individual attention as she moved throughout the classroom and implemented strategies such as those suggested in the FBA. NT 237; see also NT 245. 41. In addition to the District’s behavioral interventions, the Parents secured a TSS worker through a third party for the Student in school in the fall of 2018. The TSS worker came to school in the afternoons and was with the Student for a science/social studies class, and a reading block. 4 P-22; NT 249, 255-256. 42. On October 12, 2018, the Student’s IEP team met and developed a new IEP for the Student. P-23. 43. The coping skills group was removed from the IEP. P-23. 44. The IEP included annual goals for reading fluency, written expression, math, and the same two behavior goals from the prior IEP. The academic goals were tied to and measured by the school’s curricula. P- 23. 45. The IEP continued placement in itinerant learning support. P-23. 4 Science and social studies alternated during the school year. 10

46. Sometime before March 15, 2019, the third party reduced the TSS worker’s hours from 15 to 12.5 hours per week. P-32. 47. Sometime before March 15, 2019, the District drafted a SAFE (Staff/Student Action for Emergencies) plan for the Student in response to comments about self-harm. See P-32. 48. Around March 15, 2019, the Parents asked the District for information about paraprofessional support. P-32. 49. The District scheduled a meeting with the Parents to address the possible need for paraprofessional support. In preparation for that meeting, the District noted in internal emails that the Student’s behaviors included refusal to do non-preferred work and activities, defiance towards adults, and use of inappropriate language. P-32. 50. In the same email chain, the guidance counselor and special education teacher wrote (P-32): [Student] is rarely on task, and does not complete work independently. The purpose of a paraprofessional would be to assist academically in the classroom, mainly because the pacing is quick and [Student] is not able to complete work on grade level nor [sic] on time. [Student] needs constant redirection and prompting as well, or [Student] will remain off task. 51. Despite these behavioral difficulties, the general education teacher was able to manage the Student’s behaviors through good teaching practices and frequent redirection and prompting to enable the Student’s learning. See NT 248. The 4 th grade general education 11

teacher was also notably good at figuring out when the Student needed a break. See, e.g. P-42. 52. The Parties met and did not add paraprofessional support to the Student’s IEP. Instead, the parties agreed that the District should conduct another FBA. P-34, P-35. 53. The District conducted the FBA and completed an FBA report on April 11, 2019 (the 2019 FBA). The 2019 FBA noted the negative behaviors described above, and found deficits in behaviors related to academic skills, participation skills, social skills, organizational skills, self- regulation skills, and study skills. P-35. 54. In the 2019 FBA, the District noted that sensory needs often impede Student’s learning. P-35. 55. The 2019 FBA included many hypotheses of functions of the Student’s behaviors. The prior FBA included three hypotheses. The increase was due to the evaluator listing nine separate antecedents to the Student’s negative behaviors and proposing one or more hypothesis for each antecedent. P-35 at 23. 56. On May 13, 2019, the IEP team met. The Parent expressed concerns about the reduction in TSS hours and the potential need for a one-to- one (1:1) aide to compensate for those reduced hours. District personnel suggested investigating wraparound services from a different third party. The Student’s IEP was not changed. P-36, NT 761-762. 57. The TSS worker quit in the spring of 2019, sometime after the May 13, 2019 IEP team meeting, and was not replaced by the third party. NT 249, 255-256. 12

Summer 2019 58. On July 15, 2019, the Parent sent an email to District personnel, asking about the wraparound support from the new third party. The District referred the Student to the new third party on July 17, 2019. The new third party put the Student on a waitlist for wraparound support but offered psychological services. The Parents declined those psychological services as the Student was already receiving mobile therapy. P-40, P-41; NT 763. 59. On August 14, 2019, yet another third party evaluated the Student for community behavioral health services. The third-party psychologist concluded that the Student, “would benefit from a school 1 to 1 to break down assignments for … or from placement in an emotional support class.” P-42. 60. The third-party psychologist continued 12.5 hours of in-school TSS support (TSS worker availability notwithstanding) with a goal of eliminating the need for TSS support by the end of the 2019-20 school year. P-42. 61. The third-party psychologist continued mobile therapy in the Student’s home. P-42. 62. The third-party psychologist diagnosed the Student with Autism Spectrum Disorder at Level 1 (requiring support) in social communication skills and restricted or repetitive behaviors. P-42. 63. The third-party psychologist also diagnosed the Student with Attention Deficit Hyperactivity Disorder (ADHD), unspecified. P-42. The 2019-20 School Year (5 th Grade) 13

64. The Student remained at the same elementary school for 5th grade in the 2019-20 school year. 65. On September 24, 2020, the Parents, District, and third-party BSC met to develop a wraparound treatment plan for the TSS. During this meeting, the BSC motioned that the Student may benefit from placement in an Emotional Support (ES) classroom once the Student reached middle school. This upset the Parent. The Parent viewed (and views) ES as an undesirable placement that is unnecessarily restrictive, given the Student’s progress in Learning Support. NT 766- 767, 967. 66. The Student’s SAFE plan was updated on September 24, 2020. This was an annual update not related to any behavioral incident. P-46, NT 404-405. 67. On September 30, 2020, the Student had a verbal altercation with another student. The Student verbally threatened the other student. The District marked the Student’s comments as a “transient threat,” meaning that the words were spoken in anger while the Student was in an emotional state – as opposed to an expression of intention to do physical harm. S-18. 68. Transient threat or not, the District referred the Student to its Student Assistance Program (SAP). See P-48. 5 At the time, the District’s practice was to refer children who were receiving special education to SAP as a method of obtaining more services when needs were unmet. Generally, parents are not included in SAP meetings, and the Parents 5 P-48 tends to indicate that the Student was referred to SAP sometime before September 24, 2019. 14

in this case were not included in the Student’s SAP meetings. NT 150, 410-411. 69. On October 8, 2019, the Student’s annual IEP team meeting convened. The IEP team was unable to complete its work on October 8, and so the team reconvened on October 23 and 29, 2019. P-51, P- 52. 70. On October 22, 2019, the Parent requested comprehensive speech/language, OT, assistive technology, and psychoeducational evaluations for the Student. The District received those requests on October 24, 2019. P-55. 71. During the October 29, 2019 IEP team meeting, the parties agree to conduct another FBA in the fall of 2019. P-56. 72. Through these meetings, the District proposed an IEP with the following behavioral goal (in addition to academic goals – P-52 at 25): When given an assignment or directive, [Student] will decrease … refusal to complete tasks from 6 instances per week to less than 1 per day on average as measured by a weekly behavior chart. Baseline: [Student] averaged 6 per week on the FBA data. 73. On November 12, 2019, the Parents sent an email to the District proposing several changes to the IEP. The majority of those proposals are not substantive in nature, but rather are language changes to bring the IEP into closer conformity with language used during the IEP team meetings. However, the email does include a substantive disagreement about the Student’s behavioral goal. P-56, P-58. 15

74. The Parents proposed changing the behavioral goal as follows, and believed that their behavioral goal was agreed to during the October 29, 2019 meeting: When provided with a teacher directive, [Student] will follow teacher directions with no more than 2 redirections or prompts per directive with a minimum of 95% accuracy as assessed by daily data collection. Baseline: [Student] followed staff directives above 70% of the time. 75. The District did not honor the Parents’ requests and issued a Notice of Recommended Educational Placement (NOREP) for the Parents to approve or reject the IEP on November 7, 2019. P-58. 76. On November 12, 2019, nineteen days after receiving the Parents’ request for evaluations, the District issued a Permission to Evaluate – Consent form (PTE). P-57. 77. The proposed evaluation was to include cognitive and achievement testing, behavioral assessments, curriculum-based assessments, teacher, parent and student input, a review of records, a speech/language evaluation, an assistive technology evaluation, and an OT evaluation. P-57. 78. The Parents signed the NOREP, rejecting the offer and requesting an informal meeting, on November 14, 2019. The District received the rejected NOREP on November 18, 2019. P-58. 79. At the same time that the Parent rejected the NOREP, the Parent also rejected the District’s proposed evaluation. P-57. 16

80. With both the NOREP and the PTE, the Parents attached the comments from their prior email requesting changes to the IEP as the basis of their disagreement. See P-57. 81. Specifically regarding the PTE, the Parent rejected the evaluation because the District did not list an FBA as part of the behavioral assessments it would complete and did not list a sensory assessment as part of the OT evaluations it would complete. P-57. 82. After a discussion between the parties, District re-issued the same PTE on November 14, 2019 (the same day that the Parents rejected the NOREP and PTE). The Parents signed the PTE, consenting to the evaluation, on November 15, 2019. While providing consent, the Parents wrote that they agreed to the reevaluation provided that the OT evaluation included a sensory profile. P-57. 83. The District received the Parents’ consent to evaluate on November 18, 2019. P-57. 84. On December 19, 2019, the parties met at an informal meeting. The parties discussed the Parent’s concerns about the District’s offer. The parties also discussed emotional support. NT 775. 85. Either during or just after the December 19, 2019 meeting, the District issued another NOREP dated December 18, 2019. P-69. 86. In general, the NOREP seeks the Parents’ consent and approval of the District’s last-offered IEP at that time (P-52). P-69. More specifically, though the NOREP, the District offered itinerant learning support in the Student’s 4 th and 5th grade elementary school for the remainder of the 2019-20 school year, and itinerant learning support in one of the 17

District’s middle schools from the start of the 2020-21 school year through October 7, 2020. P-69. 87. On December 19, 2019, the Parents approved the NOREP dated December 18, 2019, approving the IEP at P-52. P-69. 88. After receiving consent, the District reevaluated the Student and scheduled a MDT meeting to discuss the results. The District sent a draft copy of the reevaluation report to the Parents in advance of the MDT meeting. P-76. 89. The MTD meeting convened on January 14, 2020. See, e.g. P-76. The parties discussed the reevaluation and noticed an error in the report from the speech and language therapist regarding the Student’s articulation needs. The District then issued a corrected reevaluation report (2020 RR). S-77. 90. Based on the District’s testing, the Student continued to qualify for special education with Autism as the Student’s primary disability category. S-77. 91. Based on the District’s testing, the Student no longer showed a discrepancy between intellectual ability and academic achievement. Through the 2020 RR, the District removed the SLD designation for this reason. S-77. 92. The District’s testing also revealed deficits in working memory and executive functioning skills. At this point in time, both the Parents and teacher rated the Student in the clinically significant range for hyperactivity on the BASC-3. The teacher rated the Student in the clinically significant range for aggression as well. S-77. 18

93. Based on the District’s testing, the District determined that the Student qualified for special education with Other Health Impairment (OHI) a secondary disability category. S-77. 94. The District completed sensory profile testing as part of an OT evaluation that was, in turn, part of the 2020 RR. The results of the sensory testing are reported in the 2020 RR along with the test publisher’s decryption of the test and score ranges. The publisher also requires the evaluator to interpret the test results. That interpretation was not included in the 2020 RR. S-77, NT 545-546. 95. On January 14, 2020, the District also provided the Parents a writeup of the most recent FBA. The FBA contained multiple errors. P-67. The District corrected those errors and reissued the FBA. P-68. 6 96. The corrected FBA lists 17 antecedents that can trigger the Student’s negative behaviors. For each antecedent, the evaluator included a hypothesis for the function of the behavior. P-67. The prior FBA included nine antecedents. P-35. 97. The assistive technology evaluation is still pending. See P-77. 98. On January 28, 2020, the learning support teacher emailed staff from two of the District’s middle schools, asking what type of SDI are commonly put in place for students receiving itinerant emotional support. P-86. The learning support teacher wanted this information to draft the portion of the Student’s IEP that would be implemented in middle school during the 2020-21 school year. NT 167. 6 It is not clear exactly when the District issued the corrected FBA. The corrected FBA is incorrectly dated December 11, 2019. P-68. 19

99. Around the same time, the Parents toured both of those middle schools. Both parties understood that the District was likely to recommend an ES placement for the 2020-21 school year and that the Parents were likely to reject that recommendation. The District asked that the Parents look at the placements before saying no. See NT 788- 791. 100. On February 11, 2020, the parties met at an IEP team meeting. The meeting almost entirely consisted of an unproductive discussion about an ES placement in one of the District’s middle schools for the 2020-21 school year. 101. On February 26, 2020, the District issued an IEP with a NOREP. The Parent received those documents on February 28, 2020. The NOREP placed the Student in itinerant emotional support at one of the District’s middle schools for the 2020-21 school year. P-89. 102. On the NOREP, the options considered and rejected were general education and a continuation of itinerant learning support. The reason that itinerant learning support was rejected was (P-89 at 78): Due to the significant specially designed instruction for [Student’s] behavioral needs the IEP can best be implemented at [District Middle School] Emotional Support Services. 103. The middle school proposed in the NOREP and IEP is not the Student’s neighborhood middle school. The IEP is discussed in the Discussion section below. The District recommended the middle school listed on the NOREP because that is where the District houses its ES program. Id; NT passim. 20

104. On March 3, 2020, the Parents rejected the NOREP. 105. On March 6, 2020, the Parents, via counsel, requested this due process hearing. 106. On March 13, 2020, the District moved to online learning in compliance with Governor Wolf’s COVID-19 mitigation school closure order. NT 805, 1003 Witness Credibility During a due process hearing, the hearing officer is charged with the responsibility of judging the credibility of witnesses, and must make “express, qualitative determinations regarding the relative credibility and persuasiveness of the witnesses.” Blount v. Lancaster-Lebanon Intermediate Unit, 2003 LEXIS 21639 at *28 (2003). One purpose of an explicit credibility determination is to give courts the information that they need in the event of judicial review. See, D.K. v. Abington School District, 696 F.3d 233, 243 (3d Cir. 2014) (“[Courts] must accept the state agency's credibility determinations unless the non-testimonial extrinsic evidence in the record would justify a contrary conclusion.”). See also, generally David G. v. Council Rock School District, 2009 WL 3064732 (E.D. Pa. 2009); T.E. v. Cumberland Valley School District, 2014 U.S. Dist. LEXIS 1471 *11-12 (M.D. Pa. 2014); A.S. v. Office for Dispute Resolution (Quakertown Community School District), 88 A.3d 256, 266 (Pa. Commw. 2014); Rylan M. v Dover Area Sch. Dist., No. 1:16-CV-1260, 2017 U.S. Dist. LEXIS 70265 (M.D. Pa. May 9, 2017). I find no issue with any witnesses’ credibility as all witnesses testified honestly and to the best of his or her ability. To the extent any witnesses’ testimony conflicts with another’s, those witness either recall events differently or have different opinions. To the extent that my findings of fact 21

depend on accepting one witnesses testimony over another’s, I have accorded more weight to the witness based on the witnesses’ testimony and the other evidence presented. Legal Principles The Burden of Proof The burden of proof, generally, consists of two elements: the burden of production and the burden of persuasion. In special education due process hearings, the burden of persuasion lies with the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 62 (2005); L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006). The party seeking relief must prove entitlement to its demand by preponderant evidence and cannot prevail if the evidence rests in equipoise. See N.M., ex rel. M.M. v. The School Dist. of Philadelphia, 394 Fed.Appx. 920, 922 (3rd Cir. 2010), citing Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). In this particular case, the Parents are the party seeking relief and must bear the burden of persuasion. Free Appropriate Public Education (FAPE) The IDEA requires the states to provide a “free appropriate public education” to all students who qualify for special education services. 20 U.S.C. §1412. Local education agencies, including school districts, meet the obligation of providing a FAPE to eligible students through development and implementation of IEPs, which must be “‘reasonably calculated’ to enable the child to receive ‘meaningful educational benefits’ in light of the student’s ‘intellectual potential.’” Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235, 240 (3d Cir. 2009) (citations omitted). Substantively, the IEP must be responsive to each child’s individual educational needs. 20 U.S.C. § 1414(d); 34 C.F.R. § 300.324. 22

This long-standing Third Circuit standard was confirmed by the United States Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017). The Endrew F. case was the Court’s first consideration of the substantive FAPE standard since Board of Educ. of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034 (1982). In Rowley, the Court found that a LEA satisfies its FAPE obligation to a child with a disability when “the individualized educational program developed through the Act’s procedures is reasonably calculated to enable the child to receive educational benefits.” Id at 3015. Before Endrew, the Third Circuit interpreted Rowley to mean that the “benefits” to the child must be meaningful, and the meaningfulness of the educational benefit must be relative to the child’s potential. See T.R. v. Kingwood Township Board of Education, 205 F.3d 572 (3rd Cir 2000); Ridgewood Bd. of Education v. N.E., 172 F.3d 238 (3rd Cir. 1999); S.H. v. Newark, 336 F.3d 260 (3rd Cir. 2003). In substance, the holding in Endrew F. is no different. A school district is not required to maximize a child’s opportunity; it must provide a basic floor of opportunity. See, Lachman v. Illinois State Bd. of Educ., 852 F.2d 290 (7th Cir.), cert. denied, 488 U.S. 925 (1988). However, the meaningful benefit standard required LEAs to provide more than “trivial” or “de minimus” benefit. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 1179 (3d Cir. 1998), cert. denied 488 U.S. 1030 (1989). See also Carlisle Area School v. Scott P., 62 F.3d 520, 533-34 (3d Cir. 1995). It is well-established that an eligible student is not entitled to the best possible program, to the type of program preferred by a parent, or to a guaranteed outcome in terms of a specific level of achievement. See, e.g., Lebron v. North Penn School District, 769 F. Supp. 2d 788 (2011) (E.D. Pa. 2011). Thus, what the statute guarantees is an “appropriate” education, “not 23

one that provides everything that might be thought desirable by ‘loving parents.’” Tucker v. Bayshore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989). In Endrew F., the Supreme Court effectively agreed with the Third Circuit by rejecting a “merely more than de minimus” standard, holding instead that the “IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. 988, 1001 (2017). Appropriate progress, in turn, must be “appropriately ambitious in light of [the child’s] circumstances.” Id at 1000. In terms of academic progress, grade-to-grade advancement may be “appropriately ambitious” for students capable of grade-level work. Id. Education, however, encompasses much more than academics. Grade-to-grade progression is not an absolute indication of progress even for an academically strong child, depending on the child's circumstances. In sum, the essence of the standard is that IDEA-eligible students must receive specially designed instruction and related services, by and through an IEP that is reasonably calculated at the time it is issued to offer an appropriately ambitious education in light of the Student’s circumstances. Least Restrictive Environment (LRE) The IDEA requires LEAs to “ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” 34 C.F.R. § 300.115(a). That continuum must include “instruction in regular classes, special schools, home instruction, and instruction in hospitals and institutions.” 34 C.F.R. § 300.115(b)(1); see also 34 C.F.R. § 300.99(a)(1)(i). LEAs must place students with disabilities in the least restrictive environment in which each student can receive FAPE. See 34 C.F.R. § 300.114. Generally, 24

restrictiveness is measured by the extent to which a student with a disability is educated with children who do not have disabilities. See id. In Oberti v. Board of Education of Clementon School District, 995 F.2d 1204 (3d Cir. 1993), the Third Circuit held that LEAs must determine whether a student can receive a FAPE by adding supplementary aids and services to less restrictive placements. If a student cannot receive a FAPE in a less restrictive placement, the LEA may offer a more restrictive placement. Even then, the LEA must ensure that the student has as much access to non- disabled peers as possible. Id at 1215-1218. More specifically, the court articulated three factors to consider when judging the appropriateness of a restorative placement offer: “First, the court should look at the steps that the school has taken to try to include the child in a regular classroom.” Here, the court or hearing officer should consider what supplementary aids and services were already tried. Oberti v. Bd. of Educ., 995 F.2d 1204, 1216 (3d Cir. 1993) “A second factor courts should consider in determining whether a child with disabilities can be included in a regular classroom is the comparison between the educational benefits the child will receive in a regular classroom (with supplementary aids and services) and the benefits the child will receive in the segregated, special education classroom. The court will have to rely heavily in this regard on the testimony of educational experts.” The court cautioned, however, that the expectation of a child making grater progress in a segregated classroom is not determinative. Oberti v. Bd. of Educ., 995 F.2d 1204, 1216-1217 (3d Cir. 1993). “A third factor the court should consider in determining whether a child with disabilities can be educated satisfactorily in a regular classroom is the possible negative effect the child's inclusion may have on the education of 25

the other children in the regular classroom.” The court explained that a child’s disruptive behavior may have such a negative impact upon the learning of others that removal is warranted. Moreover, the court reasoned that disruptive behaviors also impact upon the child’s own learning. Even so, the court again cautioned that this factor is directly related to the provision of supplementary aids and services. In essence, the court instructs that hearing officers must consider what the LEA did or did not do (or could or could not do) to curb the child’s behavior in less restrictive environments. Oberti v. Bd. of Educ., 995 F.2d 1204, 1217 (3d Cir. 1993) There is no tension between the FAPE and LRE mandates. There may be a multitude of potentially appropriate placements for any student. The IDEA requires LEAs to place students in the least restrictive of all potentially appropriate placements. There is no requirement for an LEA to place a student into an inappropriate placement simply because it is less restrictive. However, LEAs must consider whether a less restrictive but inappropriate placement can be rendered appropriate through the provision of supplementary aids and services. Compensatory Education Compensatory education is an appropriate remedy where a LEA knows, or should know, that a child’s educational program is not appropriate or that he or she is receiving only a trivial educational benefit, and the LEA fails to remedy the problem. M.C. v. Central Regional Sch. District, 81 F.3d 389 (3d Cir. 1996). Compensatory education is an equitable remedy. Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990). Courts in Pennsylvania have recognized two methods for calculating the amount of compensatory education that should be awarded to remedy substantive denials of FAPE. The first method is called the “hour-for-hour” method. Under this method, students receive one hour of compensatory 26

education for each hour that FAPE was denied. M.C. v. Central Regional, arguably, endorses this method. The hour-for-hour method has come under considerable scrutiny. Some courts outside of Pennsylvania have rejected the hour-for-hour method outright. See Reid ex rel.Reid v. District of Columbia, 401 F.3d 516, 523 (D.D.C. 2005). In Reid, the court conclude that the amount and nature of a compensatory education award must be crafted to put the student in the position that she or he would be in, but for the denial of FAPE. Reid is the leading case on this method of calculating compensatory education, and the method has become known as the Reid standard or Reid method. The more nuanced Reid method was endorsed by the Pennsylvania Commonwealth Court in B.C. v. Penn Manor Sch. District, 906 A.2d 642, 650-51 (Pa. Commw. 2006) and the United States District Court for the Middle District of Pennsylvania in Jana K. v. Annville Cleona Sch. Dist., 2014 U.S. Dist. LEXIS 114414 (M.D. Pa. 2014). It is arguable that the Third Circuit also has embraced this approach in Ferren C. v. Sch. District of Philadelphia, 612 F.3d 712, 718 (3d Cir. 2010) (quoting Reid and explaining that compensatory education “should aim to place disabled children in the same position that the child would have occupied but for the school district’s violations of the IDEA.”). Despite the clearly growing preference for the Reid method, that analysis poses significant practical problems. In administrative due process hearings, evidence is rarely presented to establish what position the student would be in but for the denial of FAPE – or what amount or what type of compensatory education is needed to put the student back into that position. Even cases that express a strong preference for the “same position” method recognize the importance of such evidence, and suggest that hour-for-hour is the default when no such evidence is presented: 27

“… the appropriate and reasonable level of reimbursement will match the quantity of services improperly withheld throughout that time period, unless the evidence shows that the child requires more or less education to be placed in the position he or she would have occupied absent the school district’s deficiencies.” Jana K. v. Annville Cleona Sch. Dist., 2014 U.S. Dist. LEXIS 114414 at 36- 37. Finally, there are cases in which a denial of FAPE creates a harm that permeates the entirety of a student’s school day. In such cases, full days of compensatory education (meaning one hour of compensatory education for each hour that school was in session) are warranted. Such awards are fitting if the LEA’s “failure to provide specialized services permeated the student’s education and resulted in a progressive and widespread decline in [the Student’s] academic and emotional well-being” Jana K. v. Annville Cleona Sch. Dist., 2014 U.S. Dist. LEXIS 114414 at 39. See also Tyler W. ex rel. Daniel W. v. Upper Perkiomen Sch. Dist., 963 F. Supp. 2d 427, 438-39 (E.D. Pa. Aug. 6, 2013); Damian J. v. School Dist. of Phila., Civ. No. 06-3866, 2008 WL 191176, *7 n.16 (E.D. Pa. Jan. 22, 2008); Keystone Cent. Sch. Dist. v. E.E. ex rel. H.E., 438 F. Supp. 2d 519, 526 (M.D. Pa. 2006); Penn Trafford Sch. Dist. v. C.F. ex rel. M.F., Civ. No. 04-1395, 2006 WL 840334, *9 (W.D. Pa. Mar. 28, 2006); M.L. v. Marple Newtown Sch. Dist., ODR No. 3225-11-12-KE, at 20 (Dec. 1, 2012); L.B. v. Colonial Sch. Dist., ODR No. 1631-1011AS, at 18-19 (Nov. 12, 2011). Whatever the calculation, in all cases compensatory education begins to accrue not at the moment a child stopped receiving a FAPE, but at the moment that the LEA should have discovered the denial. M.C. v. Central Regional Sch. District, 81 F.3d 389 (3d Cir. 1996). Usually, this factor is 28

stated in the negative – the time reasonably required for a LEA to rectify the problem is excluded from any compensatory education award. M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 397 (3d Cir. N.J. 1996) In sum, I subscribe to the logic articulated by Judge Rambo in Jana K. v. Annville Cleona. If a denial of FAPE resulted in substantive harm, the resulting compensatory education award must be crafted to place the student in the position that the student would be in but for the denial. However, in the absence of evidence to prove whether the type or amount of compensatory education is needed to put the student in the position that the student would be in but for the denial, the hour-for-hour approach is a necessary default. Full-day compensatory education can also be awarded if that standard is met. In any case, compensatory education is reduced by the amount of time that it should have taken for the LEA to find and correct the problem. Independent Educational Evaluation at Public Expense Parental rights to an IEE at public expense are established by the IDEA and its implementing regulations: “A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency…” 34 C.F.R. § 300.502(b)(1). “If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either – (i) File a due process complaint to request a hearing to show that it's evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided public expense.” 34 C.F.R. § 300.502(b)(2)(i)-(ii). “If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the 29

independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.” 34 C.F.R. § 300.502(b)(4). Evaluation Criteria The IDEA establishes requirements for evaluations. Substantively, those are the same for initial evaluations and revaluations. 20 U.S.C. § 1414. In substance, evaluations must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining” whether the child is a child with a disability and, if so, what must be provided through the child’s IEP in order for the child to receive FAPE. 20 U.S.C. § 1414(b)(2)(A). Further, the evaluation must “not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child” and must “use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors”. 20 U.S.C. § 1414(b)(2)(B)-(C). In addition, the LEAs are obligated to ensure that: assessments and other evaluation materials... (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; (ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer; 30

(iii) are used for purposes for which the assessments or measures are valid and reliable; (iv) are administered by trained and knowledgeable personnel; and (v) are administered in accordance with any instructions provided by the producer of such assessments. 20 U.S.C. § 1414(b)(3)(A). Finally, evaluations must assess “all areas of suspected disability”. 20 U.S.C. § 1414(b)(3)(B). Discussion Emotional Support Placement Emotional support is not a place and is not tied to any disability or IDEA disability category. Rather, in Pennsylvania, emotional support is defined as, “Services for students with a disability who require services primarily in the areas of social or emotional skills development or functional behavior.” 22 Pa Code § 14.131(a)(1)(iv). As such, any child with a disability who requires services to address social skills development, emotional skills development, or help with functional behavior may receive emotional support regardless of the basis of those needs. The fact that the Student has been diagnosed with Autism, and that no one has ever suggested that the Student has an emotional disturbance, is irrelevant to the analysis. 7 Similarly, and consistently, schools may not use a child’s disability as the sole criteria to determine the type of support that the child will receive. 22 Pa Code § 14.131(a)(1). Rather, once a student is found to be a child with a 7 Some special education interventions may satisfy multiple definitions. For example, pragmatic speech therapy could satisfy both the definition of emotional support an autistic support. 22 Pa. Code 14.131(a)(1)(i), (iv). Emotional Disturbance and Autism are both IDEA eligibly categories. Emotional support and autistic support are services that are not bound to either of those categories. 31

disability in need of special education, the LEA must address all of the child’s needs as required to provide a FAPE. The disconnection between specific diagnoses and the full range of a child’s needs is contemplated in Pennsylvania’s regulations, which specify that a child may receive more than one type of support. Id. There is no dispute that the Student must develop social and emotional skills and improve functional behavior. In fact, the Parents demand direct instruction in social skills. That, by definition, a form of emotional support. The Parents cannot object to the provision of emotional support – they demand it. Rather, they object to placement in an emotional support classroom. While emotional support is not a place, schools can and do designate classrooms primally for children in need of emotional support. The Parents’ objection, however, is misplaced. The District has not offered placement in an emotional support classroom. Rather, under the proposed IEP, the Student would spend 6.75 hours out of a 7-hour school day in general education. For the .25 hours that the Student would not be in general education, there is no indication in the IEP or NOREP that the Student would go to an emotional support classroom. Based on the SDI and related services as written in the IEP, the .25 hours accounts for time that the Student could take tests in a quiet area and the like. As written, the IEP provides no instruction or interventions that could be considered emotional support, and so it would be shocking if the Student spent any time in an emotional support classroom under the District’s offered IEP. In making this determination, I completely discount all evidence about what emotional support services would have been available to the Student at the District’s preferred middle school. Those services were not offered. An IEP need not detail every moment of a child’s day, but an IEP must describe the special education that a child will receive. Special education services 32

available in the District’s preferred middle school that were not included in the final IEP and NOREP are simply not part of the District’s offer. For these reasons, the Parents have failed to prove by preponderant evidence that the Student may not be placed into itinerant emotional support. While the District has not offered emotional support to the Student, I will not prohibit the District from doing so. Similarly, I will not prohibit the District from designating the Student’s placement as itinerant emotional support as part of any future IEP that provides itinerant emotional support. Building Selection LEAs do not have an obligation to make every level of every special education service available in every school. See Lebron v. N. Penn Sch. Dist., 769 F. Supp. 2d 788, 800-801 (E.D. Pa. 2011). Further, LEAs have broad discretion to make school building placement decisions. See P.V. v. Sch. Dist., No. 2:11-cv-04027, 2013 U.S. Dist. LEXIS 21913 (E.D. Pa. Feb. 19, 2013). Neither of these permissive factors permit LEAs to bypass or subvert the IDEA’s LRE requirements. In this case, the Parents have proven by preponderant evidence that the District pre-determined the Student’s building selection to place the Student in the location with the most robust emotional support. Under the facts of this case, the emotional support placement and building selection are distinct issues. Above, I find that the District may provide itinerant emotional support to the Student. The District may not, however, place the Student outside of the Student’s neighborhood middle school to receive those services if less restrictive options are possible. The restrictiveness of a special education placement is typically measured in terms of time spent with children who do not require special education (or 33

time spent in general education). See above. However, part of the LRE obligation also requires placement “as close as possible to the child's home.” 34 C.F.R. § 300.116(b)(3). With no evidence to the contrary, I find that Student’s neighborhood middle school is the closest middle school to the Student’s home. The District, therefore, may not place the Student anywhere else unless the Student’s needs make placement in the neighborhood middle school not “possible.” There is no evidence that the Student’s emotional support needs cannot be met at the Student’s neighborhood middle school. Both parties agree that the Student requires services that meet the definition of emotional support. But the District’s proposed IEP does not include any time in an emotional support classroom, and so the availability of emotional support classrooms in the Student’s neighborhood middle school is irrelevant. It is not clear what emotional support services, if any, the Student would receive under the District’s proposed IEP. Even if I were to assume that the District offered no emotional support whatsoever in the Student’s neighborhood school (the record does not support this), that is not a barrier to implementing the proposed IEP in the Student’s neighborhood school. The absence of emotional support in the Student’s proposed IEP is consistent with the propertied absence of emotional support in the Student’s neighborhood middle school. Further, even if the proposed IEP provided any discernable emotional support services, the District would have to conduct a robust analysis as part of its IEP development before concluding that the IEP cannot be implemented in the Student’s neighborhood school. By necessity, that analysis must consider what supplementary aides and services can be put in place in the Student’s neighborhood school to make that placement a viable option. What is and is not typically done in the Student’s neighborhood 34

middle school cannot be a factor in that analysis. See Oberti, supra. There is no evidence that the District engaged in this type of analysis either internally or during IEP team meetings (the former is optional; the latter is required). As a technical matter, the Parents bear the burden of proof in this case, but the preponderance of evidence standard requires me to examine the record as presented by both parties. The lack of Oberti evidence from the District is tantamount to preponderant evidence from the Parents that no effort was made to determine whether the Student could receive an itinerant level of emotional support in the neighborhood middle school. 8 Instead, the District worked backwards from its preferred building placement. The IDEA does not permit this. I order the District to maintain the Student’s placement in the Student’s neighborhood middle school. The February 2020 IEP As noted above, both parties agree that the Student requires interventions that meet the IDEA’s definition of emotional support. Those interventions are absent from the District’s last offered IEP. The IEP is, therefore, inappropriate. Every evaluation that has attempted to gain information about the Student’s executive functioning, social skills, pragmatic language, occupational therapy needs, and math abilities have found deficits in those domains. As explained above, once a child qualifies for special education, the LEA must address all of the child’s needs holistically. For example, the District cannot ignore the Student’s math needs simply because it placed the Student in itinerant 8 This analysis ignores the fact that the offered IEP would provide no discernable emotional support. 35

emotional support. It is not surprising, therefore, to see math goals in the last offered IEP. The last offered IEP includes two math goals and two behavioral goals. The Parents did not put on preponderant evidence that either of those goals are inappropriate. The Parents did, however, put on preponderant evidence that the Student requires special education to address social skills, executive functioning, and pragmatic language deficits. These deficits manifest in the Student’s interactions with peers and adults and have persisted for years. 9 In 4th grade, these deficits were well-managed by a notably astute teacher. Nevertheless, the Student’s receipt of FAPE must come from implementation of the Student’s IEP and not depend upon assignment to an especially insightful teacher. It is unfortunately not surprising that documents from 5 th grade indicate a persistent level noncompliance, opposition, and defiance. This is not meant to denigrate the 5th grade teacher in any way. Rather, this shows that the Student’s needs cannot be appropriately addressed with typical general education interventions. In addition to the goals contained within the District’s last-offered IEP, an appropriate IEP must include goals to improve the Student’s documented, demonstrated needs in executive functioning, social skills, and pragmatic language. The IEP must also include SDI to enable the Student to obtain those goals. The Parents have not proven that direct instruction is the only methodology that can enable progress towards appropriate goals. The Parents have proven that there can be no reasonable expectation that the Student will attain appropriate goals without specially designed instruction. 9 The absence of any indication that the Student has an emotional disturbance is a factor in this analysis. 36

The Parents also demand goals and SDI to address the Student’s written expression needs. That need is not supported by the 2020 RR and so I decline to issue such an order. Independent Educational Evaluation Under the standard stated above, the Parents’ disagreement with the District’s 2020 reevaluation is a sufficient basis for them to demand an IEE at public expense. Disagreement is not, however, a basis for awarding an IEE. See L.S. v. Abington Sch. Dist., No. 06-5172, 2007 U.S. Dist. LEXIS 73047, at *40 (E.D. Pa. Sep. 28, 2007). Rather, such an award depends on whether the District’s 2020 reevaluation satisfied IDEA standards. The 2020 RR satisfied all of the IDEA’s requirements as described above with a single exception discussed below. The 2020 RR assessed all suspected areas of disability both through its comprehensive scope and by including particular assessments that the Parents demanded. The 2020 RR also used variety of assessment tools and strategies in that included multiple assessments, observations, and sources of data gathered by professionals across multiple domains. Finally, the MDT used those assessments to gather relevant functional, developmental, and academic information, including information provided by the Parents. The only flaw in the 2020 RR was that the sensory profile developed as part of the OT evaluation was not administered in accordance with any instructions provided by the producer of that assessment. See 20 U.S.C. § 1414(b)(3)(A)(v). The uncontested evidence about the sensory profile is that the evaluator must use clinical judgement to interpret the information gathered by the assessment. This goes beyond reporting the assessment results but rather requires a determination about what those results mean for the Student’s education. The evaluator did not take this step. 37

To be clear, I do not find that the portion of the sensory profile that the evaluate completed was inappropriate or inaccurate. There is no evidence to suggest that the reported sensory profile is wrong or misleading. Rather, the sensory profile does not include a component that, according to the record of this hearing, is mandatory. Under the plain language of the statute, evaluations must satisfy all of the IDEA’s requirements to be appropriate. There is no concept of a mostly appropriate evaluation in the IDEA. Consequently, I must find that the 2020 RR was inappropriate. In cases where parents demand compensatory education to remedy an inappropriate evaluation, the size of any deficiency may determine whether an inappropriate evaluation resulted in a substantive denial of FAPE. In this case, the Parents demand an IEE to remedy the District’s inappropriate evaluation. All case law on the subject signals that an IEE is the appropriate remedy for an inappropriate evaluation. Consequently, application of current case law requires me to award an IEE at public expense. 10 I will not, however, award the particular formulation that the Parents demand. The IEE must target the specific deficiency in the 2020 RR. This is not only equitable, but it would be contrary to most test-maker’s guidelines to repeat evaluations until more time has passed. I will order the District to fund an independent Occupational Therapy evaluation that includes a sensory profile. I will also order the District to reconvene the Student’s IEP team to amend the Student’s IEP in response to the IEE if warranted. I will also prohibit the district from issuing an PTE to consider the IEE. The IEE is 10 See also Letter to Carroll, 68 IDELR 279 (OSEP 2016)(opining that parents may seek an IEE to remedy a missing assessment even if an LEA responds to an IEE request by offering to conduct the missing assessment). 38

the evaluation. An additional 60 days is too much time for the District to review an IEE and respond to it. Compensatory Education Above, I explain that the District’s offered IEP is inappropriate for its failure to address the Student’s needs. The Student’s prior IEPs are inappropriate for the same reasons. This resulted in substantive educational harm as seen in the Student’s persistent, unaddressed executive functioning, social skills, and pragmatic language needs, and the resulting behavioral consequences. The District’s efforts to address these needs through interventions like the small group sessions with the guidance counselor are laudable but ultimately fall short. Under the IDEA, appropriately addressing a special education need requires goal setting, specially designed instruction, and progress monitoring. The Student’s needs in these domains were not appropriately addressed through the Student’s IEPs. I note again the 4 th grade teacher’s uncanny ability to manage the Student’s behaviors but, as explained above, the IDEA requires more. Neither party presented Reid evidence to enable a make-whole analysis. Evidence about how much time the Student should have received special education to address deficiencies that were not addressed through prior IEPs is also lacking. Behavioral, executive functioning, and social skills issues are often considered to be pervasive, impacting upon a child’s entire educational experience. The Parents in this case demand three hours per day. I find that demand is reasonable and supported by the record as a whole. I will award three (3) hours of compensatory education for each day that the Student attended school from March 6, 2018 through the present, ongoing until such time as the District offers an IEP that is consistent with the terms of this order. 39

One-to-One Aide The Parents have not proven that one-to-one paraprofessional support is a necessary component of FAPE for the Student. The same evidence establishing that the Student has not received a FAPE also establishes the lack of proof that 1:1 support is required. The Student’s response to the special education ordered herein is unknown. The need for 1:1 support, and the unintended consequences of such interventions as children enter middle school are not established by the record of this case. COVID-19 The Parents filed their complaint on March 6, 2020. The District moved to online instruction on March 13, 2020. The first session of this hearing was May 21, 2020. The Parents did not amend their complaint to include claims about the shutdown. I make no determination as to whether the online instruction that the Student received during the shutdown was or is appropriate. I make no determination about the District’s implementation of the Student’s IEP during the shutdown. Rather, I resolve only those issues that are before me. The Student’s IEP going into the shutdown was inappropriate for the reasons stated above. Compensatory education, therefore, continues to accrue at the same rate during the shutdown. Above, I determined that compensatory education continues to accrue until such time as the District issues an IEP consistent with this decision. I acknowledge that the District may not be able to implement such an IEP under current circumstances. Compensatory education will stop accruing when the District issues an IEP in accordance with this decision regardless of the District’s ability to implement said IEP. If the District is not able to implement said IEP, the parties are directed to materials promulgated by the Pennsylvania Department of Education, Bureau of Special Education concerning special education during the COVID-19 pandemic. Nothing herein 40

prohibits the parties from agreeing to a temporary IEP, or a pendency agreement in the event of an appeal, while COVID-19 mitigation efforts are in place. ORDER Now, September 14, 2020, as detailed in the accompanying decision, it is hereby ORDERED as follows: 1. The District shall not remove the Student from the Student’s neighborhood middle school. When the District issues an IEP consistent with the accompanying decision and the remainder of this order, the District may make a placement determination consistent with the accompany decision. 2. The Student is awarded three (3) hours of compensatory education for each day that the Student attended school from March 6, 2018 through the present, ongoing until such time as the District issues an IEP in accordance with the accompanying decision. 3. The Parent may decide how all compensatory education awarded herein is spent within the following limitations: a. Compensatory education may take the form of any appropriate developmental remedial or enriching educational service, product or device, purchased at or below prevailing market rates in the District’s geographical area. b. Compensatory education shall be in addition to, and shall not be used to supplant, educational and related services that should appropriately be provided through the Student’s IEP. c. Compensatory education shall not be used to purchase products or services that are primarily recreational in nature, or products 41

and services that are used by persons other than the Student except for group or family therapies. 4. The Student is awarded an independent Occupational Therapy evaluation at the District’s expense. Said evaluation must contain a sensory profile. The intendent evaluator must satisfy all of the District’s criteria for independent educational evaluations that are in place as of the date of this order. The cost of the independent evaluation may not exceed market rates in the District’s geographical area. The Parent otherwise may select the independent evaluator. 5. Within a reasonable time after the independent evaluation is complete, the District shall reconvene the Student’s IEP team to revise the Student’s IEP if necessary. The District must consider the intendent evaluation but shall not start a reevaluation to consider the independent evaluation. It is FURTHER ORDERED that any claim not specifically addressed in this order is DENIED and DISMISSED. /s/ Brian Jason Ford HEARING OFFICER 42