Cumberland Valley School District | Case 3485-12-13 | 2012-12-29

ODR No. 3458-1213KE Page 1 of 8 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 Hearing Officer FINAL DECISION AND ORDER ON REMAND1 I.H., by [the] legal guardian, D.S., v. CUMBERLAND VALLEY SCHOOL DISTRICT ODR No. 3485-1213KE ON REMAND FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, No. 1:11-CV-574 Original ODR Nos. ODR No. 01481-1011KE ODR No. 01589-1011KE – Consolidated – Brian Jason Ford, Hearing Officer Introduction This matter has been remanded from the United States District Court for the Middle District of Pennsylvania. As stated in the Remand Order, this case was remanded “to the Hearing Officer for a determination on Count A [of the Plaintiff’s Complaint in the Middle District] to the extent it seeks a declaration regarding the appropriateness of the IEP offered to the Student by the District in September of 2010.” Order at 2. Background and Procedural History in Detail On August 25, 2010, D.S. (Guardian) requested a special education due process hearing on behalf of I.H. (Student) against the Cumberland Valley School District (District). On September 19, 2010, Guardian requested another special education due process hearing on behalf of the Student. Those two matters were consolidated and heard together over three hearing sessions on November 17, 18 and 19, 2010. A final Decision and Order resolving the due process hearings was issued on December 25, 1 For consistency, the caption used here is modeled after the caption used in the Remand Order. For information that typically is presented in an ODR caption, please refer to the original Hearing Officer Decision.

ODR No. 3458-1213KE Page 2 of 8 2010 (Hearing Officer’s Decision or HOD). D.S. o/b/o I.H. v. Cumberland Valley School Dist., ODR Nos. 10481-1011KE and 10589-1011KE (Consolidated, 2010). The District was the Student’s local educational agency (LEA) before September of 2010. The Student enrolled in [Redacted] Charter School ([Charter School]) 2, a Pennsylvania public cyber charter school, in September of 2010.3 As part of the HOD, I determined that [Charter School] became the Student’s local educational agency (LEA) upon enrollment. See HOD at 11-12. As such, I concluded that the District had no obligation to offer a free appropriate public education (FAPE) to the Student after [Charter School] became the Student’s LEA. Id. I also concluded that the District had no obligation to offer an individualized education program (IEP) to the Student after [Charter School] became the Student’s LEA. Id. Consequently, I did not determine the appropriateness of an IEP that the District offered after the Student enrolled in [Charter School] in September of 2010. The Guardian appealed the HOD to the United States District Court for the Middle District of Pennsylvania. There, the District initially moved to dismiss the appeal. See I.H. ex rel. D.S. v. Cumberland Valley School Dist., 842 F.Supp.2d 762 (M.D.Pa., 2012). As part of its ruling on the District’s motion to dismiss, the Honorable Judge John E. Jones III distinguished the District’s obligation to offer a FAPE from its obligation to offer an IEP. Id at 771. Judge Jones agreed that the Student’s enrollment in [Charter School] terminated the District’s obligation to offer a FAPE: “We do not hold that the Defendants must provide Plaintiff with a FAPE while [Student] is enrolled at the cyber charter school; we agree with the Hearing Officer and the Defendants that the burden of providing an appropriate education, consistent with the mandates of the IDEA, rests on [Charter School], Plaintiff's new LEA. To require such of Defendants would place a substantial burden on the school district of residence which we believe would be entirely misplaced.” D.S., 842 F.Supp.2d at 771(citations omitted). Nevertheless, Judge Jones found that the Student’s enrollment in [Charter School] did not relieve the District of its obligation to offer an IEP to the Student, and that re-enrollment in the District was (and is) not a prerequisite to obtaining an IEP from the District. Id at 772-773. My contrary conclusion, therefore, was found to be in error. D.S., 842 F.Supp.2d at 773. Ultimately, this matter was remanded to me to determine if the IEP offered in September of 2010 was appropriate. See I.H. ex rel. D.S. v. Cumberland Valley School Dist., Slip Copy, 2012 WL 2979038, *1 (M.D.Pa., 2012). In the Memorandum accompanying that Order, the court said: 2 The name of the cyber charter school does not appear in the HOD. It does appear, along with the Student’s gender, in subsequent judicial decisions. 3 During the due process hearing, there was some ambiguity regarding the Student’s actual enrollment date at [Charter School]. I ultimately found that the Guardian enrolled the Student in [Charter School] on August 18, 2010 and that enrollment became official on September 15, 2010.

ODR No. 3458-1213KE Page 3 of 8 Critically, however, and as both parties note, the Hearing Officer did not issue findings of fact or conclusions of law with respect to the appropriateness of the IEP offered by the District in September of 2010. A core dispute amongst the parties is what types of services and support were considered in formulating the IEP and the effect of those services on Student's education. Accordingly, as to this issue, we will remand the case to the Hearing Officer for further proceedings as necessary to formulate findings of fact and conclusions of law as to whether the IEP offered to the Student in September of 2010 is reasonably calculated to enable the child to receive educational benefits. Id at *9. Upon receiving the remand order, I initiated correspondence with the parties. Both parties agreed that evidence and testimony concerning the appropriateness of the September 2010 IEP was presented during the due process hearing, and that it was not necessary to convene additional hearing sessions. A briefing schedule was then set. I received briefs from both parties on September 24, 2012. Both parties submitted a responsive brief on October 1, 2012. This matter is now ripe for disposition. Findings of Fact The original HOD included several findings of fact concerning the development of the September 2010 IEP. The findings of fact in the original HOD are numbered. Unfortunately, due to a drafting error, after finding of fact 26, the numbers reset to 13. I will reference the first 26 findings of fact in the original HOD as “FF-1” through “FF-26.” When the numbers repeat, I will reference the findings of fact in the original HOD as “FF-13A” through “FF-36A.” 1. The Student was evaluated by an independent Certified School Psychologist on June 9, 2010. (FF-29A). The independent Certified School Psychologist issued an independent educational evaluation (IEE). (FF-29A, P-37). 2. On August 2, 2010, the Student received an independent neuropsychological assessment from a Ph.D. level clinical neurologist. (FF-32A, P-39). The Guardian received the results of that evaluation on August 10, 2010. Id. 3. Although prior evaluations by the District were found to be inappropriate, there are many consistencies between testing results in the District’s evaluations and in the independent evaluations. NT at 96-99, 110-11, 416-17, 490. 4. Independent evaluations conclude that the Student has significant deficits in executive functioning, manifest in an inability to organize and plan work. Id. Independent evaluators also diagnosed the Student with Aspergers Syndrome, Learning Disorder Not Otherwise Specified, “Frontal” or Higher-Level Executive

ODR No. 3458-1213KE Page 4 of 8 Impairment, Attention-Deficit Hyperactivity Disorder and Generalized Anxiety Disorder. P-39. 5. The IEEs indicate that the Student requires direct, specially designed instruction (SDI) to improve the Student’s executive functioning. See id. 6. The parties have a longstanding dispute regarding the Student’s math needs. See FF 15, 16. 7. The Student has a long history of profound emotional and behavioral needs, related in part to a historical diagnosis of PTSD. See S-1, S-5, S-29, S-31; FF 34, 35. Readers are strongly encouraged to review the original HOD for facts and discussion of the Student’s historically severe needs in this domain. 8. The Student has never attended an Emotional Support placement except for a two- day placement which was terminated by the Guardian. See S-46, FF 40. 9. The Student’s IEP Team met on September 14, 2010. 4 10. The Guardian shared the independent neuropsychological evaluation report with the District during the IEP Team meeting of September 14, 2010. (FF-34A). The Guardian had not previously shared that report with the District. Id. (FF-34A, P-42, P-47). In preparation for that meeting, the District drafted an IEP that would place the Student in one of the District’s middle schools. Id. At the time of the September 14, 2010 IEP Team meeting, the Guardian had longstanding objections to the middle school proposed in the IEP. Id. 11. During the IEP Team meeting of September 14, 2010, the District issued a “Permission to Reevaluate – Consent Form” (Consent Form) proposing various evaluations. (FF-35A; S-44). 12. On September 20, 2010, the Guardian withheld consent for the District to conduct the evaluations described on the Consent Form. 13. The IEP Team reconvened on September 28, 2010. (FF-36A; P-48). This meeting was a continuation of the IEP Team meeting of September 14, 2010. Id. The District proposed the IEP that is the subject of the Remand Order during this meeting. 14. The proposed IEP places the Student in an Emotional Support class for 80% of the school day. P-48. At the time the IEP was offered, the Guardian’s opposition to both the proposed school building and the Emotional Support classes in general were well known to the District. 4 This meeting took place at the District after the Student was enrolled in [Charter School], but before that enrollment became official. The reason for the delay between the Student’s actual and official enrollment dates in [Charter School] were not conclusively resolved at the hearing. References to IEP Team meetings herein, however, refer to the Student’s IEP Team in the District. At the time of the hearing, it was not clear whether the Student also had an IEP Team at [Charter School].

ODR No. 3458-1213KE Page 5 of 8 15. No evidence was presented to show that the parties discussed other placement options during the meetings in which the proposed IEP was developed. To the contrary, testimony reveals that there was no discussion as to whether the Student could receive a FAPE with greater inclusion at the Student’s neighborhood school. NT at 330. 16. The proposed IEP includes a writing goal that requires the Student to plan what the Student will write for five minutes and then write for three minutes. This goal does not explain what SDI the District will provide to enable the Student to plan as the goal requires. The SDI section of the IEP does not include this information either. The goal includes no baseline information. P-48. 17. Similarly, the IEP includes goals directly related to executive functioning (e.g. “[Student] will utilize an agenda notebook to accurately record [Student’s] assignments with 80% accuracy” and “[Student] will utilize a functional system to maintain an organized notebook with 80% accuracy.”). These goals do not include baselines. Moreover, the IEP is silent as to what the District will do to enable the Student to achieve this goal in light of the Student’s executive functioning deficits. 18. The proposed IEP includes SDIs so that the Student would receive direct social skills instruction from the District (e.g. “Direct, explicit instruction in self-monitoring and use of replacement behavior strategies, using role-play based on recent triggering events, and with generalization of replacement behavior skill development to school settings using a fading prompt hierarchy.”). Id. 19. The proposed IEP includes SDIs for math (“[Student] can request support when presented with math assignment through the use of: step by step strategy for solving math problems, concrete representation, pictorial representation, use of graphic organizers, allow [Student] to have written directions on how to complete specific math problems, check for understanding of concept, provide examples, use of calculator, and extended time to complete math assignments”). This SDI is unusual as it lists services that the Student can request but says nothing about what sort of math instruction the Student will receive. 5 20. The IEP does not include a math goal. Id. Discussion This discussion must begin by noting the limited scope of the Remand Order. My task is to determine whether the proposed IEP was appropriate based on the record established during the due process hearing. If the proposed IEP was inappropriate, the Guardian is entitled only to declaratory relief (“... to the extent [the Guardian] seeks a declaration regarding the appropriateness of the IEP ...”). As such, this decision has no bearing on the Student’s current needs, or on what the District must offer should the 5 This is not to imply that the IEP must list specific methodologies. Rather, SDIs should describe the special education that a student will receive, not just list services that a student may (or may not) request.

ODR No. 3458-1213KE Page 6 of 8 Student reenroll. My analysis exclusively concerns the appropriateness of the proposed IEP at the time it was offered. The Guardian’s burden of proof remains the same as set forth in my original decision. HOD at 11. The statutorily required elements of an IEP are found at 20 U.S.C. § 1414(d). IEPs need not provide the maximum possible benefit or maximize a student’s potential, but rather IEPs must be reasonably calculated to enable the child to achieve meaningful educational benefit. Meaningful educational benefit is more than a trivial or de minimis educational benefit. 20 U.S.C. §1412; Board of Education v. Rowley, 458 U.S. 176, 73 L.Ed.2d 690, 102 S.Ct. 3034 (1982); Ridgewood Board of Education v. M.E. ex. rel. M.E., 172 F.3d 238 (3d Cir. 1999); Stroudsburg Area School District v. Jared N., 712 A.2d 807 (Pa. Cmwlth. 1998); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988) Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031 (3d Cir. 1993); Daniel G. v. Delaware Valley School District, 813 A.2d 36 (Pa. Cmwlth. 2002). The District argues that the proposed IEP is procedurally compliant with the IDEA. The proposed IEP contains all of the elements that an IEP must contain. However, as the Guardian correctly notes, my task is not simply to determine whether the required elements are present, but to determine whether the IEP was reasonably calculated to provide a FAPE to the Student. As noted in my original decision, the proposed IEP is a marked improvement over prior IEPs. No IEP is perfect, but perfection is not the standard. The question is whether the IEP was reasonably calculated to provide a meaningful educational benefit to the Student in the least restrictive environment. The District correctly notes that “Monday morning quarterbacking” is not allowed. See Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993). Rather, the IEP must be appropriate at the time it was offered, viewed in light of the information available to the District at that time. With a notable exception, the proposed IEP meets the foregoing standard. It was unquestionably appropriate for the District to propose an Emotional Support placement for the Student. The Student’s longstanding and remarkably severe emotional needs are discussed in greater length in my original decision and were a major focus of the due process hearing. The Guardian’s blanket and absolute refusal of Emotional Support placements (based on a negative experience at a different school) was unreasonable, and mitigates against the lack of discussion of other placement options during the IEP development process. Moreover, although the IEP team’s failure to consider other placement options was a procedural violation of the IDEA 6 , that violation did not yield substantive harm (or render the resulting IEP inappropriate) because the ultimate placement offer was appropriate at the time it was made. Preponderant evidence shows that the offer of an Emotional Support classroom was appropriate at the time it was made, and that classroom happened to be located outside of the Student’s neighborhood school. Such placements do not violate the IDEA’s LRE 6 See 20 U.S.C. § 1414(e).

ODR No. 3458-1213KE Page 7 of 8 mandate. Students cannot be placed in an inappropriate setting simply because that setting is less restrictive. Rather, the LRE mandate requires placement in the least restrictive of appropriate placements. See P.C. v. North Penn Sch. Dist., ODR No. 00004-0910LS (Carroll, 2009), affd. Lebron et al. v. North Penn Sch. Dist., 769 F.Supp.2d 788 (E.D. Pa. 2011). Although the offered placement was appropriate, the offered program falls short in two key aspects. The most significant error is the IEP’s failure to appropriately address the Student’s well-documented executive functioning difficulties. Again, to the extent that the proposed IEP addresses executive functioning, it is an improvement over prior IEPs. The proposed IEP includes goals that target executive functioning as it relates to organization. In fact, it was proper for the proposed IEP to make use of an agenda book and organized notebook goals for the Student. All evidence suggested that the Student did not have the ability to meet those goals without direct instruction in organization or SDIs that target executive functioning. As such, the IEP is inappropriate to the extent that it does not provide the special education that will enable the Student to reach the executive functioning goals. The Guardian argues that the proposed IEP does not provide sufficient math interventions. I disagree. The parties’ dispute regarding the Student’s math abilities is described in my original decision at FF 15 and 16, and discussed at p. 13. In sum, I found the District’s testimony about the Student’s math abilities credible and consistent with assessments. The proposed IEP offers significant math supports to the Student via SDIs. In doing so, the IEP goes further than the IDEA requires. Conclusion A “yes or no” conclusion is suggested, to a degree, by the Remand Order. The appropriateness of an IEP, however, is not a binary decision. It would be unfair to the District to hold that the proposed IEP is entirely inappropriate because it fails to appropriately address the Student’s executive functioning deficits while appropriately responding to the Student’s significant needs in every other way. It would be equally unfair to the Guardian to hold that the proposed IEP is entirely appropriate even though it fails to provide appropriate instruction in the important domain of executive functioning. Consequently, I find that the IEP is appropriate but for its failure to provide specially designed instruction in the area of executive functioning. Such SDIs were needed to enable the Student to achieve the executive functioning goals in the proposed IEP. An order consistent with the foregoing follows.

ODR No. 3458-1213KE Page 8 of 8 ORDER And now, December 29, 2012, it is hereby ordered as follows: 1. Declaratory relief is hereby awarded to the Guardian to the extent that the proposed IEP fails to appropriately address the Student’s executive functioning needs. 2. The Proposed IEP is appropriate in all other respects. It is FURTHER ORDERED that any claim not specifically addressed in this order is DENIED and DISMISSED. HEARING OFFICER /s/ Brian Jason Ford