Lower Merion School District | Case 1729-10-11 | 2011-07-06

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 DECISION Student’s Name: L.P. Date of Birth: [redacted] ODR No. 1729-10-11-KE CLOSED HEARING Parties to the Hearing: Representative: Parent[s] Sandra Wang, Esquire 1709 Benjamin Franklin Parkway, 2d Floor Philadelphia, PA 19103 Lower Merion School District Gail A. Weilheimer, Esquire 301 East Montgomery Avenue Wisler Pearlstine LLP Ardmore, PA 19003-3338 Blue Bell Executive Campus 460 Norristown Road, Suite 110 Blue Bell, PA 19422 Date of Hearing: June 7, 2011 Record Closed: June 21, 2011 Date of Decision: July 6, 2011 Hearing Officer: William F. Culleton, Jr., Esquire

1 INTRODUCTION AND PROCEDURAL HISTORY Student is an eligible resident of the Lower Merion School Dist rict (District), and attended elementary school within the Dist rict at all relevant times. (1NT 80-82.) 1 Student is identified with Specific Learning Disability and Speech and Language Impairment, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA). (1NT 81-83.) The District filed the present due process request under the IDEA to defend its evaluation after the Parents2 requested an independent educational eval uation (IEE). The District asserts that it has evaluated Student appropriately , and Parents assert that the evaluation was not appropriate. In addition, the District asserts that Parents did not di sagree with the Dist rict’s evaluation and thus are not entitled to an IEE. The hearing was conducted in one session and the record closed upon receipt of written summations.3 I conclude that the District’s evaluati on was appropriate and that Parents are not entitled to an IEE at public expense. ISSUES 1. Was the District’s evaluation of the Student appropriate? 2. Should the hearing officer order the District to provide an independent educational evaluation at public expense? FINDINGS OF FACT 1 This matter was heard partially in conjunction with a previous matter, an expedited hearing on issues involving ESY, dated May 4, 2011, and the transcript of that matter is cited here as “1NT”. The transcript of the hearing in the present matter is cited as “2NT”. The previous transcript of hearing, (1NT), was incorporated by reference. (2NT 12.) 2 In this decision, the Student’s Mother will be referred to as “Parent” in the singular, as distinguished from “Parents”, referring to Student’s Father and Mother. 3 All documents cited during the hearing are admitted in evidence.

2 1. Student attended four schools, bot h private and public, prior to registering in the District in July 2010 for fifth grade. (S-8 p. 1-2.) 2. The District evaluated Student in 2005 a nd identified Student with Other Health Impairment, but found Student ineligible beca use Student did not need special education services at that time. (P-10.) 3. Between August 2010 and May 2011, District personnel engaged in extensive email correspondence with Parents regarding nu merous questions that Parents posed concerning Student’s education and the District’s evaluation. (S-1 p. 539-545.) 4. On September 4, 2011, Parent signed a permissi on to evaluate form for Student. This was revised and re-signed by Parent on September 16, 2010. (S-4 p. 3, S-5 p. 2.) 5. On November 9, 2010, District personnel provided an evaluati on report (ER) to Parents. (S-8.) 6. The evaluation was performed by a Pennsylva nia certified school psychologist with a doctorate in school psychology and more than thirteen years’ experience. (S-8, 24.) 7. The evaluator obtained Student ’s developmental and medical history from Parents. Parents reported a history of possible conc ussion from a fall, and family history of dyslexia. Parent reported diagnosis of Atte ntion Deficit Hyperactivity Disorder (ADHD) and indicated a concern about possible Aspe rger’s syndrome and need for vision correction. (S-8, P-1, P-2.) 8. The evaluator reviewed two previous privat e evaluations in detail; these had been conducted in July and August 2007 and in August 2008 and included both cognitive and achievement test scores. The evaluator re viewed school records from the Student’s previous school, including report card and notes of an end of year parent conference that reflected discussion of strengths, weaknesses and educational needs. (S-8) 9. Early evaluations had provided a history of di fficulties with behavior control, defiance and social skills, as well as expressive and receptive speech and academic delays. (P-1, 2, 4, 6, 7, 8, 9, 41, 42.) 10. The District evaluator considered Student’s hi story of behavioral i ssues in conjunction with contemporaneous reports by teachers an d the behavior inventory. The evaluator concluded that there was some ongoing atypical behavior an d hyperactivity secondary to ADHD and executive functioning problems, as well as Student’s speech and language deficits. The evaluator did not consider the data to require furthe r testing or behavior assessment. (2NT 257, 294-298, 319-20, 328-333, 405-406, 411; S-8 p. 11-13.) 11. Previous evaluations had considered and rule d out a diagnosis on th e autistic spectrum. The District’s evaluator considered Parental input raising this as an issue and concluded that there was no support for such a diagnosis. (2NT 262- 337; S-8.)

3 12. The evaluator observed Student in the classroom as did the speech/language evaluator who contributed to the evaluation. (S-8.) 13. The evaluator obtained input from Parents and teachers. (2NT 233-236; S-8.) 14. A District reading specialist tested Student, utilizing multiple testing instruments that addressed reading fluency, comprehension, si ght word reading a nd phonemic decoding efficiency, vocabulary, word identification, and word attack. (S-8.) 15. The evaluator conducted psychoeducational tes ting in three sessions in October 2010. The evaluator conducted cognitive and achievement testing, utilizing instruments that are valid and reliable for testing cognitive func tioning, including multiple sub-tests that address specific areas of strength and weakne ss. All instruments used were technically sound, properly administered, and utilized accord ing to the publishers’ instructions. (NT 322-324, 329-330, 335, 393-394; S-8.) 16. The evaluator administered a behavioral ra ting scale, obtaining completed checklists from Parents, Student and a teacher. This scale addresses adaptive behaviors, and emotional and behavioral disord ers in children. The evaluator also utilized a structured interview form intended to address Student ’s thoughts and perspectives. (NT 329, 333; S-8.) 17. The evaluation included a speech and language evaluation by a state certified speech and language pathologist with over thirty six years of clinical experience. (S-25.) 18. The speech and language evaluation was co mpleted over four sessions and included checklist information obtained from Parents and a teacher, utilizing multiple checklists. The elicited data addressed language fundamentals, speaki ng skills, reading, writing, listening and auditory proces sing, attention, memory, vocabulary, semantics, using language, and pragmatic language. (S-8.) 19. The speech and language evaluator administ ered multiple standardized tests and screening instruments to Student. (S-8.) 20. The evaluation included an occupational th erapy evaluation by a qualified occupational therapist. The evaluation addressed fine motor functioning in cluding handwriting and keyboarding, cutting, functional self help sk ills, visual motor integration, and sensory needs. The occupational therapy evaluator observed Student in the classroom, and interviewed Student’s teacher. The occupationa l therapy evaluator utilized a variety of instruments, including a standardized developmental test instrument and a sensory profile inventory administered to the Student’s teacher. (S-8.) 21. The evaluation considered recent vision and hearing screenings. (NT 335-336; S-8.) 22. The ER identified Student w ith Specific Learning Disorder and Speech or Language Impairment. It recognized the diagnosis of ADHD and educational needs in the areas of reading, reading fluency, written expression, mathematics problem solving, organization,

4 self-regulation of attention a nd behavior, auditory discri mination, language organization and word finding. It found no need for direct occupational therapy services. (S-8.) 23. The ER made recommendations for programming to address academics, sensory needs, executive functioning, auditory discriminati on, language organiza tion, vocabulary and word finding, auditory overload, and showing mastery of a subject. (S-8.) 24. The District school psychologist offered to meet with Pare nts to discuss the ER and it was agreed that they would discuss it at an IEP meeting, which was held on November 18, 2010. (2NT 133-134, 251-252, 291-293; S-8, 10, 11.) 25. The speech pathologist evaluator was not pr esent and was unable to answer Parents’ questions about the speech and language part of the report until a meeting on November 30, 2011. The evaluator answered questions then and again answered Parents’ questions in March and April 2011. (NT 135-136, 362-368.) 26. Parents signed the ER as agreeing and also signed the NOREP issued after a subsequent meeting on November 30, 2010, agreeing with the NOREP. (2NT 245-246; S-8.) 27. Parent felt uncomfortable signing the NOREP, but did so at the advice of the District personnel and Student’s Father in order to get services started for the Student. (1NT 165- 166.) DISCUSSION AND CONCLUSIONS OF LAW BURDEN OF PROOF The burden of proof is composed of two cons iderations, the burden of going forward and the burden of persuasion. Of these, the more e ssential consideration is the burden of persuasion, which determines which of two contending partie s must bear the risk of failing to convince the finder of fact. 4 In Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), the United States Supreme Court held that the burde n of persuasion is on the party that requests 4 The other consideration, the burden of going forward, simply determines which party must present its evidence first, a matter that is within the discretion of the tribunal or finder of fact (which in this matter is the hearing officer).

5 relief in an IDEA case. Thus, the moving party must produce a preponderance of evidence 5 that the moving party is entitled to the relief reques ted in the Complaint Notice. L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006) This rule can decide the issue when neither side produces a preponde rance of evidence – when the evidence on each side has equal weig ht, which the Supreme C ourt in Schaffer called “equipoise”. On the other hand, whenever the ev idence is preponderant (i .e., there is weightier evidence) in favor of one party, that party will prevail, regardless of who has the burden of persuasion. See Schaffer, above. In the present matter, based upon the above rule s, the burden of persuasion rests upon the District, which initiated the due process proc eeding. If the District fails to produce a preponderance of the evidence in su pport of its claim, or if the ev idence is in “equipoise”, the District cannot prevail under the IDEA. LEGAL STANDARD FOR DETERMINING APPROPRIATENESS OF EVALUATION The hearing officer must determine whethe r or not the District’s evaluation was appropriate. 34 C.F.R. §300.502(b)(2 )(i); §300.502(b)(3). In maki ng this determination, the hearing officer applies the legal requirements fo r appropriate evaluations set forth in the IDEA and its implementing regulations at 20 U. S.C. §1414; 34 C.F.R. §300.15; and 34 C.F.R. §300.301 through 311. If the District’s evaluation was appropriate, the Parent is not entitled to an independent educational evaluation at public expense. 34 C.F.R. §300.502(b)(2)(i); §300.502(b)(3). 5 A “preponderance” of evidence is a quantity or weight of evidence that is greater than the quantity or weight of evidence produced by the opposing party. Dispute Resolution Manual §810.

6 The IDEA obligates a local educational agen cy to conduct a “full and individual initial evaluation … .” 20 U.S.C. §1414( a)(1)(A). The Act sets fort h two purposes of the required evaluation: to determine whether a child is a child with a disability as defined in the law, and to “determine the educational needs of such child … .” 20 U.S.C. §1414(a)(1)(C)(i). In 20 U.S.C. §1414(b)(1)(A)(ii) and (B), the Ac t requires utilization of assessment tools a nd strategies aimed at enabling the child to participate in the “gen eral education curriculum” and “determining an appropriate educational program” for the child. The purpose of assessment tools and materials is to obtain “accurate information on what the child knows and can do academically, developmentally and functionally … .” 20 U.S.C. §1414(b)(3)(A)(ii). The evaluation must be “sufficiently comprehens ive to identify all of the child’s special education and related services needs … .” 34 C.F.R. §300.304(c )(6). Evaluation procedures must be sufficient to “assist in determining … [t]he content of the child’s IEP. 34 C.F.R. §300.304(b)(1). Brett S. v. West Chester Area School District, No. 04-5598 (E.D. Pa., March 13, 2006), at 25. The child must be “assessed in all areas of suspected disability.” 20 U.S.C. §1414(b)(3)(B). The regulation implementing this st atutory requirement adds that this includes “social and emotional status … .” 34 C.F.R. §300.304(c)(4). Assessments and other evaluation materials must “include those tailored to assess specific areas of educational need … .” 34 C.F.R. §300.304(c)(2). The purpose of assessment tools and materi als is to obta in “accurate information on what the child knows and can do academically, developmentally and functionally … .” 20 U.S.C. §1414(b)(3)(A)(ii). Sele cted instruments shoul d “assess the relative contribution of cognitive and behavioral factors … .” 20 U.S.C. §1414(b)(2)(C).

7 The IDEA requires the local educational agency to conform to specified procedures in order to be deemed appropriate. Courts have approved evaluations based upon compliance with these procedures alone. See, e.g., Eric H. v. Judson Independent School District, 2002 U. S. Dist. Lexis 20646 (W.D. Texas 2002). These procedures must include the use of “a variety of assessment tools and strategies to gather rele vant functional, developmental, and academic information … .” 20 U.S.C. §1414(b)(2)(A); 34 C.F.R. §300.304(b). The agency may not use “any single measure or assessment” as a basis fo r determining eligibility and the appropriate educational program for the child. 20 U.S.C. §1414(b)(2)(B); 34 C.F.R. §300.304(b)(2). The agency must utilize information provided by the parent that may assist in the evaluation. 20 U.S.C. §1414(b)(2)( A). This must include eval uations or other information provided by the parents. 20 U. S.C. §1414(c)(1)(A)(i); 34 C.F.R. §300.305(a)(1)(i). Part of any evaluation must be a review of relevant records provided by the parents. 34 C.F.R. §300.305(a)(1)(i). The parent must participate in the determination as to whether or not the child is a child with a disability. 34 C.F.R. §300.306(a)(1). The agency must review classroom ba sed assessments, state assessments and observations of the child. 20 U.S.C. §1414(c )(1)(A)(ii),(iii); 34 C. F.R. §300.305(a)(1). Observations must include those of teachers and related services providers. 20 U.S.C. §1414(c)(1)(A)(iii); 34 C.F.R. §300.305(a)(1)(iii). The agency must use technically sound testing instruments. 20 U.S.C. §1414(b)(2)(C); 34 C.F.R. §300.304(b)(3). All such instruments must be valid and reliable for the purpose for which they are used, be administered by trained and knowledgeable personnel and be administered in accordance with the applicable instructions of the publisher. 20 U.S.C. §1414(b)(3)(A); 34 C.F.R. §300.304(c)(1).

8 As part of any re-evaluation, the IEP team and appropriate professionals, with “input from the child’s parents,” must “identify what additional data, if any, are needed to determine … [t]he present levels of academic achievement and related developmental needs of the child … .” 20 U.S.C. §1414(c)(1)(B)(ii); 34 C.F.R. §300.305(a)(2). APPROPRIATENESS OF NOVEMBER 2010 EVALUATION Here, the District complied with the above legal requirements. The District’s school psychologist was very qualified to design the evaluation and to administer the psychological testing instruments selected for the evalua tion, and to compile the report and make recommendations. (FF 6.) Three other qualified District professi onals contributed parts of the report. 6 (FF 14, 17, 20.) The District utilized a variety of tools and strategies to gather relevant information; the District’s determination of eligibility was not based upon any single measure or assessment. (FF 7, 12, 13, 14, 15, 17, 20, 21.) Standardized instrument s were administered to elicit information concerning Student’s cognitive functioning and academic achievement. (FF 15.) The evaluator also reviewed state testing and curriculum base d measures of achieveme nt, including Student’s report cards from Student’s previous school. (F F 8.) This information was supplemented with the results of extensive testing and evaluation by pr ivate evaluators. (FF 7- 9.) Test scores were compared with the results of both standardized and non-standardized checklists and inventories, as well as classroom observations by two diffe rent evaluators, clinic al observations during testing by three different evalua tors, and both written and oral input from teachers. (FF 10, 12- 6 I find the District witnesses to be credible, based upon demeanor and consistency with the documentary and testimonial record.

9 16, 18, 20.) The BASC behavioral inventory addressed adaptive, emotional and social functioning, and the evaluator assessed the relative contribution of cognitive and behavioral factors to the Student’s challengi ng behaviors. (FF 10, 11, 16.) A ll of these strategies derived information relevant to Student’s functional, developmental, and academic functioning. At the same time, many of the standardized instruments were highly specific to areas of cognitive and perceptual functioning. (FF 15, 18-21.) Thus, test sc ores pointed to specific areas of weakness, and clinical observations suppl emented this data. (FF 12, 13, 15, 16, 18, 20, 22.) The instruments used were technically sound, prope rly administered, and u tilized according to the publishers’ instructions. (FF 15.) The parents were consulted appropriately and offered an opportunity to provide input to the evaluation. (FF 3, 4, 7-11, 13, 18, 24, 25.) The report included review of existing evaluation data provided by the parents and teachers, as well as classroom observations. (FF 7-9, 11-13, 16, 18, 21.) Parents participated in the determination of eligibility. (FF 24, 25.) I conclude that the ER was individualized for the Student and a ddressed all suspected areas of disability. It was appropriate to dete rmine eligibility, identified Student’s educational needs in detail, and was appropriate to serve as a basis for development of an IEP providing meaningful educational benefit in the least restrictive appropr iate setting. (FF 22-23.) The evaluation was sufficiently comprehensive to iden tify all of the Student’s special education and related services needs. Parents argue that the District’s evaluato r did not consider pr ior reports provided by Parents. The evidence is preponderant to th e contrary. Parents rely upon the evaluator’s statement that more recent evaluations were mo re significant than the various evaluation reports proffered by the Parents that dated back to the Student’s pre-school and early elementary school

10 years. I conclude that there is nothing legally inappropriate in a qualified psychologist weighing the available data and paying more attention to more recent data, especially in light of the psychologist’s rationale – that ch ildren change as they grow a nd develop, especially in their younger years. (FF 7, 9-11.) Parents argued vigorously that the District’s evaluation failed to inquire into whether or not the Student suffers from autism. Agai n, I reach the opposite co nclusion, based upon the preponderance of the evidence. The District evalua tor testified extensively and credibly that this was considered carefully, in response to Parent s’ expressed concerns, and in consideration of early evaluation data that seemed to have addresse d the issue. (FF 11.) In the end, the evaluator made a judgment that there was insufficient data to justify further inquiry, and that the data pointed strongly in a contrary direction – that the Student’s challenging behaviors and academic delays were related to learning disability, diagnosed ADHD, and problems with receptive and expressive speech and executive functioning. (FF 10.) The law requires no more than a professional review of the availa ble data, and a determination as to whether or not the data require further testing. This was done in the pr esent matter. The qualified professional decided against further testing for defensible reasons , based upon professional judgment. The law does not require more in this situation.7 Parents argue that the evaluator should have done additional testing of Student’s challenging behaviors. Specifical ly, Parents argue that the eval uator should have called for or performed a functional behavior assessment, and the evaluator should have given more weight to 7 Parents argue that the existing data, which did not include any history of diagnosis of autism, should have engendered further exploration because of the tendency of practitioners not to diagnose autism for fear of stigmatizing the child. I find this unpersuasive, even though Parents may have been told that. The mere hearsay allegation about tendencies in the profession has no evidentiary weight to show that it is true; moreover, even if it is true, that does not divest the District’s professional evaluators from the authority to exercise sound judgment about the implications of the data before them.

11 prior assessments that indicated a history of problematic behavior. Parents rely upon the IDEA’s requirement that agencies not rely upon a singl e instrument or strategy for identification purposes. 20 U.S.C. §1414(b)(2)(B); 34 C.F.R. §300.304(b)(2). Again, the evidence is preponderant that the evaluator exercised professional judgment in determining that no additional evaluative procedures were necessary to identify the Student or to provide a basis for educational planning. The record shows preponderantly that the evaluator considered the history of behavioral difficulties, and weighed that data, remote in time, against the most recent data from the years before th e evaluation, and the current reports of Student’s teacher. (FF 7-10.) All of the data, taken to gether, along with the impression gleaned from preliminary discussions with Parents, indicated that Student’s behaviors were not as problematic as in Student’s early preschool and school years. (FF 10.) Thus, an applied behavior assessment was not indicated, and the evaluator conclude d that the challenging behaviors would be attenuated further by a focus upon Student’s probl ems with attention, l earning disability and executive functioning. Similarly, as to social sk ills deficits, the evaluator concluded that these were related to Student’s speech and language deficits, and t hus would be ameliorated by addressing these perceptual and cognitive functioning weaknesses. I find nothing in the law that forbids such a judgment – indeed, the law requires such a judgment. 20 U.S.C. §1414(b)(2)(C). This is not a reliance on a single inst rument or strategy for identification and programming. Although the only st andardized instrument used by the psychologist to address behavioral and social functioning was the BASC , other instruments were used by the speech

12 pathologist to address behavior and social functioning. Thus, the District’s personnel complied with this legal mandate.8 Finally, Parents argue that they were forced into signing in agreement with the evaluation report, because the District scheduled the IEP mee ting at the same time as the meeting to review the ER, because the speech pathologist was not present to discuss that portion of the ER, and because the District personnel declined to provide services until the NOREP was signed. Again I find that the record preponderates against these contentions. District personnel admitted that the one hour allowed for the November 18, 2010, meeting would not have been enough time to discuss the ER and to plan the IEP. However, there were two meetings, and the IEP was discusse d on November 30, 2010. (FF 24, 25.) Thus, the evidence preponderates against the suggestion that the one hour time frame on November 18 deprived Parents of a meaningful opportunity to participate in the identification decision, or that the time frame created a coercive effect on Parents. The speech pathologist was not present at the meeting to discuss the ER on November 18, 2010. Thus, the pathologist was unava ilable to answer questions at that time. (FF 25.) Parents argue that this deprived them of the participation guaranteed by law. I conclude that this glitch in planning while it did not meet Parents’ considerable need to ask questions, did not contravene the District’s legal obligations, especially where the pathologist was available by the end of the month to answer all questions. Parents argue that they were pressured into assenting to the evaluation because, unless they agreed, the District would not begin serv ices. (FF 26, 27.) I do not find this argument convincing. The District could not start services without parent al consent; any pressure this 8 Parents also suggested that the evaluation failed to consider speech problems, processing speed and reading. I conclude that the ER itself rebuts those contentions and in itself constitutes a preponderance of evidence in favor of the District with regard to them.

13 engendered was due to the natural consequences of the Parents’ need to have questions answered, and was part of the ove rall exigent circumstances. It was not something that deprived Parents of their legal rights. PARENTAL DISAGREEMENT WITH THE EVALUATION The District argues that the Parents never disagreed with th e evaluation, and thus do not qualify for an IEE at public expense. In light of the above conclusions, I do not reach this issue. CONCLUSION I conclude that the District’s evaluation was appropriate; consequently, Parents are not entitled to an IEE at public expense. Any cl aims regarding issues that are not specifically addressed by this decision and order are denied and dismissed. ORDER 1. The District’s evaluation of the Student was appropriate. 2. The hearing officer will not order the District to provide an independent educational evaluation at public expense. William F. Culleton, Jr. Esq. _____________________________ WILLIAM F. CULLETON, JR., ESQ. HEARING OFFICER July 6, 2011