Methacton School District | Case 15720-14-15 | 2015-07-27

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 Child’s Name: E.H. Date of Birth: [redacted] Dates of Hearing: 4/1/15, 5/18/15, 5/19/2015, 5/27/15, 6/5/2015, 6/18/2015 CLOSED HEARING ODR File No. 15720-14-15-AS Parent Parent Parent Attorney Liliana Yazno-Bartle, Esquire Law Offices of Caryl Andrea Oberman, LLC 705 North Easton Road Willow Grove, PA 19090 Local Education Agency Methacton School District 1001 Kriebel Mill Road Norristown, PA 19403-1047 LEA Attorney Sharon Montanye Esq. Sweet, Stevens, Katz & Williams P.O. Box 5069 331 Butler Avenue New Britain, PA 18901 Date Record Closed: Date of Decision: Hearing Officer: July 7, 2015 July 27, 2015 William Culleton Esq., CHO

1 INTRODUCTION The Student1 is an eligible resident of the respondent District, and has completed first grade. (NT 14-15.) The District has identified Student with Emotional Disturbance under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq. (IDEA). (NT 14-15.) Parent asserts that the Distri ct failed to offer and provide Student with an appropriate placement and with a free appropria te public education (FAPE) as required by the IDEA during the period relevant to this matter, Student’s kindergarten (2013-2014) and first grade (2014-2015) school years. Parent seeks compensatory education and an order that the District place Student in a more restrictive, more intensiv e educational setting, with services as specified in an evaluation report by an evaluator in private practice. Parent also alleges that the District failed to produce all of Student’s educational records as requested; therefore, Parent seeks an order to produce educational records. The District denies all claims and asserts that Parent obstructed its efforts to provide a FAPE. The hearing was concluded in six sessions. The record closed upon receipt of written summations. I have reviewed and considered all of the testimony and all exhibits admitted into evidence. I conclude that the District failed to provide an appropriate placement for Student and I order the IEP team to place Student in a small group setting forthwith. ISSUES 1. Did the District fail to offer and provide Student with an appropriate placement during Student’s kindergarten and first grade school years? 1 Student, Parent and the respondent District are named in the title page of this decision; personal references to the parties are omitted. Student’s mother (Parent) alone requested due process; Student’s father is not a party, but testified in opposition to the requests for relief in this matter.

2 2. Did the District fail to pr ovide Student with a FAPE during Student’s kindergarten and first grade school years? 3. Did the District fail to provide Student with all requested educational records of the Student? 4. Should the hearing officer or der the District to change Student’s placement and educational setting, with specified special educational services? 5. Should the hearing officer order the District to provide Student with compensatory education for or on account of all or any part of the relevant period from the first day of school in the 2013-2014 school year until such time as the District should offer an appropriate placement and a FAPE to Student? 6. Should the hearing officer order the District to produce any educational records? FINDINGS OF FACT 1. Parents, who are now divorced and share custody, adopted Student at approximately twenty months of age. Student has a history of challenging, sometimes violent behaviors as early as age two, as a result of which Student was expelled from multiple day care programs. (P 1, 2.) 2. The local county early intervention program evaluated Student when Student was two years and ten months old and found above age-e xpectancy cognitive development, and expressive and receptive communication level within age expectancy. (P 1.) 3. The intermediate unit evaluation found that Stud ent's behavioral concerns were due to a lack of participation skills, social skills, se lf-regulation skills and play skills. Student's personal-social development score was with in age expectations. The evaluation found Student eligible for special education with a developmental dela y in the form of a disruptive behavior disorder, with a function of escape from unwanted tasks or situations. (P 1.) 4. An occupational therapy evaluation indicated no educational fine or gross motor needs, but needs with regard to sensory processing were detected. (P 1.) 5. When Student was approximately 4 1/2 years old, a local behavioral mental health agency evaluation diagnosed Student with posttraumatic stress disorder and disruptive behavior disorder. Evaluation noted that Student's beha vior had improved in the early intervention program, with the use of a token economy be havior support program and a personal care assistant (PCA). (P 3.)

3 6. Student has been exposed to Parents’ marital discord in the home, including frequent angry verbal altercations and behavior that tr aumatized Student. Stude nt's behavior often deteriorates due to Student's exposure to parental behavior. In addition, Parents’ physical custody of Student varied during the week and custody orders changed during the kindergarten year; all of this contributed to Student’s de monstration of inappropriate behaviors. (P 3, 4; S 9.) 7. In October 2012 and May 2013, the Student’s early intervention Individualized Education Program (IEP) noted that Student's aggres sive behavior was variable, and included screaming, swiping materials off of surfaces, pushing, kicking, hitting, scratching, biting and throwing objects or furniture. The IEP also noted an established pattern of oppositional defiance. Episodes of aggressive and oppositi onal behavior ranged in duration from 30 seconds to 45 minutes. Such behavior had decreased with the supports in place, including wraparound services, PCA in preschool classroom, and occupational therapy. (P 6, 13.) 8. The October 2012 IEP also noted that Student was demonstrating difficulty with fine motor skills and sensory processing; however, by May 2013, these issues had resolved. (P 6, 13.) 9. During the 2012-2013 early interven tion year, Student's violent and aggressive behaviors continued. Nevertheless, Student's ability to comply with directions and ability to regulate Student's behavior improved. (P 11, 13.) 10. In April 2013, Parent filled out a parent information form for the District, in which Parent mentioned Student's tantrum behavior. The Dist rict did not become aware of this report until October 2013. (P 10.) 11. Parent registered Student w ith the District in May 2013. Re gistration materials did not disclose that Student was receiving early intervention services. However a physician's report submitted in conjunction with registration did mention Student's diagnosed behavior disorder and classification with developmental delay. (P 12.) 12. At a meeting in or before the summer of 2014 , Student’s father informed the District’s supervisor of special education that Student ’s behaviors in early intervention included meltdowns, throwing things, physical aggression, and sensory needs, and that Student had been diagnosed with disruptive behavior disorder. (NT 317-318; P 15.) 13. One June 17, 2013, Student's father signed a permission to reevaluate presented to Student's father for the second time. The permission included a psychoeducational evaluation and occupational therapy evaluation. (P 14.) 14. Student's father also returned a parent information form, which disclosed Student's exposure to Parents' marital discord, Student's issues with compliance, transitions, self- control and behavior, and noted Student's history of disrupt ive and physically aggressive behaviors in early interven tion. The report mentioned thro wing items at school, total meltdown, sensory needs, and Student's dia gnosis of disruptive behavior disorder. Student's father included reports from the early intervention program that showed Student's behavioral progress over time. (P 11, 15; S 2.)

4 15. On August 27, 2013, District issued a reeval uation report for Student. The report found the Student no longer had a disability and was not eligible for special education. The report noted Student's history of resistance to authority, classroom disruption and physical attacks on caregivers and peers. It also noted some difficulty with transitions, Student's potentially clinically significant difficulties with self-regulation, shifting (from one activity to another) and emotional control, as well as overall executive function difficulties. (S 2.) 16. The report also noted that Student was entering kindergarten with a high level of academic school readiness. Student exhibited at l east average cognitive ability and academic achievement. Evaluator noted that Student' pa st history included a timeline of strong progress in learning behavioral self-control in the classroom. (NT 1220-1222, 1253-1255; S 2.) 17. The District was aware of the Student’s behavioral history in preschool, and of the supports provided to Student in pre-school, including the one-to-one aide to support behavioral self- control and provide for safety. The District was aware that Student was experiencing the Parents’ conflict and separation and the District evaluator took that into consideration in deciding not to classify Student at that time. (NT 336, 1160-1183, 1211; S 2; P 11.) 18. The August 2013 reevaluation report recommended close monitoring of Student as Student entered kindergarten. It also recommended that Student's educational team meet early in the year in order to assess Student's needs for intervention, if any. Parents agreed with the decision not to classify Student. (NT 1171; S 2.) 19. The August 2013 re-evaluation report recomm ended an occupational therapy evaluation. This was not accomplished while Student was in kindergarten. (NT 1225, 1230-1231; S 2; P 14.) 20. Student entered kindergarten in the regular education classroom, attending half-day sessions. (NT 78-80.) 21. Student’s teacher was a certified, masters level special education teacher, in her first year as a classroom teacher, who had served as an instructional PCA for three previous years. (NT 79.) 22. Sometime in the Fall of 2013, Student’s teacher was thought to be somewhat overwhelmed with the challenges of the kindergarten classr oom, including the challenges presented by Student and those presented by other children in the classroom, so the principal asked the assigned emotional support teacher to provide support to Student’s teacher in addressing Student’s behaviors. (NT 1355-1357.) 23. On October 28, 2013, the District issued an addendum to the evaluation report, after belatedly receiving Parent's parental input form, which appeared to be dated April 16, 2013. The addendum reevaluation report noted that Student had been exhibiting difficulty during transitions, and had demonstrated severa l behavior outbursts, including physical aggression in the classroom. The addendum recommended further evaluation of Student's social and emotional needs and the educational need for emotional support services in the school setting. (S 2; P 10.)

5 24. On October 29, Student was suspended for a vi olent behavioral outburst and the District excluded Student from school for four days pending a risk assessment at a local behavioral health agency. (NT 99-101; P 19, 20, 26; S 7.) 25. After this incident, on November 6, 2013, the District made arrangements to have an ABA trained aide attend Student at all times, under the supervision of an ABA trained consultant. These personnel created a behavior s upport plan for Student. (NT 81, 106-107, 328-329, 456-457; P 19, 26; S 4.) 26. During Student’s kindergarten year, the District did not perform an in depth or “Level III” Functional Behavioral Assessment (FBA), that would include systematic definition of target behaviors and data-gathering, with th e involvement of a board certified behavior analyst (BCBA). Student’s regular education and special education teachers developed a behavior intervention plan on their own prior to November 6, 2013; after that, the behavior intervention plan was under the direction of the ABA trained pe rsonnel. (NT 90-93, 328, 1394; S 2, 4.) 27. The regular education interventions put in place allowed variability in the structure of staff response to behaviors, contrary to the Stude nt’s need for a high level of structure and consistent staff responses to behaviors. (NT 996-999, 1000-1006, 1050, 1063-1065, 1201- 1202, 1205; S 6, 7; P 184.) 28. The behavior intervention plan required the regular education teacher to color in blocks of time according to the teacher’s assessment of Student’s behavior; good behavior was colored green, and rewards were to be delivered for days in which most time periods were green. Inappropriate behavior was colored red, and notable behaviors were to be described in writing. A third category of behavior was colored yellow, and the behavior of concern was sometimes described and sometimes not described. (S 7.) 29. In November 2013, there were several days on which Student did not earn a reward because most of Student’s behavior was colored ye llow in the behavior sheets; however, the behavior sheets did not specify or count the specific behaviors of concern. In December, there were three incidents of violent behavior, including throwing folders, bumping into a peer, and a severe meltdown that included pushing, kicking, and screaming; on two days, there was no “green” behavior but the negative behavior of concern was not noted. (S 7.) 30. On December 16, 2013, the District issued an addendum to the reevaluation report, identifying Student as a chil d with a disability under the IDEA, with classification of emotional disturbance. (S 4.) 31. The December 2013 addendum noted severe be havioral outbursts including physical aggression in the classroom, striking teachers and staff, kicking, eloping, throwing objects and furniture, tearing things off walls in the classroom, screeching in common areas, attempting to bite and grabbing at clothing. It also noted that Student had some difficulties establishing and maintaining friendships. (S 4.) 32. Student's teachers reported that Student’s nega tive behaviors were related to transition from school to home, but had improved due to the arrival of a new PCA in the classroom.

6 Student's emotional support teacher reported that Student's emotional status seemed volatile and varied from day to day. (S 4.) 33. The December 2013 addendum recommended one -to-one support during the school day; breaks, prompts, cues, praise and rewards; consistency and preparation for transitioning from school; riding the bus to school; participation in social skills group; and management of services by a case manager. (S 4.) 34. Before December 2013, Parent obtained a pr ivate therapist for Student, and Student received private psychotherapy from then unti l the end of the year and during first grade as well. (S 22; NT 807, 852-854, 859-860.) 35. Regular education interventions were not cons istently effective in helping Student to exhibit appropriate behavior. Student’s behavior continued to disrupt Student’s education and that of others until December. In January 2014, Student, in separate incidents, kicked toys; threw materials and a chair; kicked the teacher; knocked a peer to the ground, bit the teacher twice, kicked and hit others; hit a teacher; and had difficulty coming into school for which the time period was colored red, but the behavior was not described. (NT 82-86, 92-93, 102, 116, 122-123, 330, 419-421, 452-454, 1351-1352, 1355-1356, 1390, 1201- 1202; S 7; P 21, 27, 35.) 36. Student’s behavior improved somewhat in February and March 2014, and the beginning of April. Nevertheless, Student threw something in February, and refused to pack up for home on one day in March; on another day in Marc h, Student refused to unpack at the start of the day. In April, Student bit a teacher who was redirecting Student, pushed a peer, threw a book at a peer, and showed incr eased anxiety, irritability and defiant behavior. (S 7; P 21.) 37. On March 11, 2014, the District offered an init ial IEP to Parents at an IEP meeting. The IEP noted that Student had great progress with behavior management in the school setting, and relied heavily upon the emotional support st rategies that had been implemented. The IEP noted that there were no concerns about Student's academic performance or ability, and there were no concerns about Student's executive functions in relation to school performance. The IEP listed needs as "rewards system", "breaks when needed", "social skills", and "counseling by special education counselor". The IEP did not list as needs executive functions, anger management, sens ory needs or difficulty with transitions; however, these needs were discussed at the IEP meeting. (NT 338-339; S 6.) 38. The March 2014 IEP placed Student in itinerant emotional support, located in regular education with supplementary aids and servi ces. The IEP reflected the team's conclusion the Student did not need placement in an emotional support classroom. (S 6.) 39. The March 2014 IEP offered one goal: demonstrat e appropriate behavior. This was to be measured through daily behavior chart, an d specially designed instruction included strategic seating, redi rection, positive reward system, immediate positive feedback and praise, breaks, and additional supports as deemed necessary. (S 6.)

7 40. The IEP offered an ABA trained PCA in all cl assrooms daily, passive restraint as a last resort, and social skills group “up to” one time per week (30 minutes). (S 6.) 41. The IEP included an assessment of Student's problematic behaviors, positing a function of obtaining attention, sensory stimulation and es cape from situations and activities. It identified the need for Student to learn copi ng skills and to develop impulse control. It posited antecedent strategies including redirection, strategic seating, "stop, think, then do" verbiage, a positive behavior reward system, daily behavior charts, the availability of an ABA trained PCA throughout the school setting, breaks and passive restraint as a last resort. It posited replacement behavior a nd consequences of reduction of supports, and posited staff responses to inappropriate beha vior, including planned ignoring and use of consistent language in directing Student regarding inappropriate behavior. (S 6.) 42. The behavior support plan offered Student “up to” 20 minutes per week of counseling. (S 6.) 43. Neither the IEP nor the behavior support plan offered special modifications for transitioning to or from school. Bussing was available to and from school. (S 6.) 44. Parent did not sign the IEP, and disapproved the NOREP without written explanation. On March 11, 2014, Student's father signed the IEP and the NOREP, approving the placement. The IEP was implemented when Student’s father signed the NOREP. (NT 334-335; P 30; S 6.) 45. District teaching personnel implemented a behavior support plan during Student's kindergarten year, from October 2013 to J une 2014. The data colle ction form defined "target behaviors" in terms of the appropriate replacement behaviors desired from Student. Data was collected by coloring blocks of time on a form with red yellow or green. Rewards were made available for time periods in which the color was green. (S 7.) 46. The District did not implement the IEP offere d social skills group while Student was in kindergarten. (NT 94, 346, 1400-1403, 1425-1426; S 6.) 47. Student did not receive counseling, a related service offered in Student’s IEP. (NT 1423- 1424.) 48. The District provided systems of communication with both Parents, in light of the fact that the Parents were not communi cating with each other and were sharing physical and decision-making custody of Student. Because Pa rents could not be present in the same room with each other, the District held sepa rate IEP meetings for them; some of these involved attorneys and a court appointed gua rdian, creating schedu ling challenges. (NT 348-349, 381-386, 464-465, 940, 1353-1355; S 2.) 49. The District provided educational records to Parent on multiple occasions, including daily behavior reports during ESY programming. (NT 125, 450-451; P 56.)

8 50. Student missed 21 days of school while in kindergarten. Thr ee of these days were for suspension due to Student's behavior, in Octobe r. Thirteen of these days were not due to Student's behavior in school. (P 19.) 51. Student did not always take the school bus to school; Student had few difficulties transitioning from the school bus to the sc hool. When Parent brought Student in an automobile, there often were severe difficulties in transitioning from Parent’s car to the school door. (NT 133-134, 1433-1434.) 52. While in kindergarten, Student was restrained on the school bus or excluded from it eight times. (P 21.) 53. Serious incidents became more frequent in May 2014, when Student’s behavior regressed and Student exhibited frequent serious behaviors until the end of the school year. On May 9, 2014, Student was excluded from the school bus for the remainder of the school year. (NT 84-85, 116, 122-123, 419-424, 987; P 32; S 7, 8; P 21, 35.) 54. Serious incidents sometimes reached the level of requiring passive re straints to ensure Student’s safety and that of others. (NT 119, 1395-1396.) 55. Student frequently was off-task during class time in kindergarten. (S 7, 8, 15, 27.) 56. May 2014 benchmark testing indicated Student’s performance at a below basic level in writing. At the beginning of first grade, Student also scored below basic with a reading and writing prompt. Nevertheless, Student was cons idered to be performing at grade level academically overall. (S 21.) 57. The District offered Extended School Year serv ices to Student for the summer of 2014 pursuant to a custody court order; Parent opposed provision of ESY services and had scheduled other activities for Student, so that scheduling of ESY services was changed and reduced services were delivered due to Student’s other scheduled activities. Student’s first grade teacher provided the ESY services; a PCA accompanied Student. (NT 123-125, 138, 344-345, 356-357, 365; S 3, 8.) 58. The District did not make an eligibility determination regarding ESY for summer 2014 through the IEP process, and Parent was not in vited to participate in an IEP meeting to make such determination. (NT 1413.) 59. The District recognized some difficulty wi th accomplishing higher-level executive tasks; this was attributed to Student’s attention and impulsivity problems. (P 35.) 60. Parents continued to share cu stody of Student, including physi cal custody for portions of the school week. Student had to be transported from and deliv ered to different Parents’ homes during the school week. (S 9.) 61. Based in large part on concerns due to Student’s behaviors in May and June 2014, both parties sought a meeting to discuss Student’s IEP for the coming first grade year. (S 8 to 11.)

9 62. From the beginning of school in first grade, Student exhibited problematic and sometimes dangerous behaviors, including increasingly frequent elopement. Student’s behaviors escalated in both intensity and duration duri ng the time between the beginning of school and the end of December. Restraints were used multiple times during this period. (NT 488- 492; S 15, 21, 22, 27; P 71.) 63. Student displayed minimal attention to ta sk in the classroom. Student spent much classroom time crawling and wandering arou nd and hiding under a de sk. The classroom teacher ignored this behavior and instructed th e rest of the class to ignore this behavior. Student was extremely disorganized and highly dependent upon the classroom aide to help find materials and respond to cl assroom instructions. Student displayed a lack of respect for authority. Student missed a great deal of instructional time. (S 15, 21, 27.) 64. Throughout the Student’s kindergarten and firs t grade years, Parents employed differing behavior management strategies at home, that also differed from those attempted by District personnel at school . There was little communicati on and cooperation between Parents, and District personne l were unable to obtain cons istent and prompt decision making from Parent. Both Student and the District were influenced to side with one or the other parent in the ongoing conflict. (S 21.) 65. The District convened an IEP meeting on October 7, 2014, and included 16 participants, including relevant educators, administrators, attorneys and an advocate. (S 11.) 66. Subsequently, the District offered an IEP with the meeting date of October 7, 2014. (S 11.) 67. The October 2014 IEP continued Student in itinerant emotional support, with a goal essentially the same as that of the previ ous IEP, and the same specially designed instruction, accommodations and modifications, with some added modifications. The IEP included in addition a plan for supporting Student’s transitions from arrival in the morning to leaving for the day. It contai ned explicit directions to sta ff, including directions as to how to react to instances in which Student should fail to transition appropriately. The IEP also included a crisis plan with explicit dire ctions to staff for response to dangerous behavior by Student. (S 11.) 68. The crisis plan included use of passive restraints as a last resort, but provided for waiver of the IEP meetings required by law whenever restraints are utilized. (S 11.) 69. The District agreed to conduct a re-evaluation of Student, to include parent and teacher input (including an audiology assessment and a report from Student’s gastrointestinal physician), achievement testing, records review , a “Level III” FBA, and an occupational therapy evaluation. On October 9, the District agreed to fund an Independent Educational Evaluation (IEE), including neuropsychological and psychiatric evaluations. (S 11, 21.) 70. On or about October 13 and 16, 2014, Student engaged in violent behavior in school, including running out of the school building, tearing down artwork on hallway walls, attempting to kick staff, throwing objects, flipping desks, biti ng, hitting, scratching, spitting, screaming, and head butting. (S 13.)

10 71. The IEP, transition plan and crisis plan were mailed to Parent after the IEP meeting, but Parent indicated that she ha d not received them. They were re-mailed on November 14, 2014. Parent did not sign the NOREP for the October 2014 IEP until November 25; Parent disagreed with the IEP and requested a due process hearing. (S 11, 16.) 72. On December 9, 2014 Student was removed from school and referred to the local behavior health service for a risk a ssessment. While exiting school at the end of the school day Student began a tantrum in which Student was hitting, kicking, spitting, biting, wiping objects off of desks onto the floor, and thro wing glass objects so that they broke and scattered glass all over the floor. Student also picked up a glass object and threw it in the direction of staff. Much of this behavior occurred during attempts to passively restrain Student. The behavior health se rvice recommended that Student was not safe to return to school. It recommended further assessment for appropriate level of psychiatric services. (S 19, 20.) 73. On December 17, Student was evaluated and referred for partial hospitalization at the local psychiatric hospital. Student attended for twelve days, during which no academic demands were placed upon Student. The program psychiat rist diagnosed Student with Attention Deficit Hyperactivity Disorder (ADHD), Oppos itional Defiant Disorder, and Adjustment Disorder; the diagnosis called for ruling out Reactive Attachment Disorder. The psychiatrist noted that Student’s prognosis was “poor”. (S 22.) 74. Student was discharged from partial care wit hout medications, as Pare nt preferred not to utilize medications for Student. The program social worker indicated that Student had done well in a small structured environment, after a period of adjustment. (S 22.) 75. On December 17, 2014, the District sent a re-evaluation report to Parents, which was dated December 1, 2014, and was based upon data gathered prior to that date. The report included parental input with regard to varying behavioral strategies used separately in the homes of each of Student's parents. It explicitly addressed whether or not Student was exhibiting attention and hyperactiv ity issues, as suspected. It noted that Student was increasingly experiencing encopresis, with attendant di sruption of class time and embarrassment. (S 21.) 76. The re-evaluation report concl uded that Student continued to need special education as a child with the disability of emotional disturbance. It found that Student was learning and progressing through the first grade curriculu m, demonstrating “strong academic skills.” Nevertheless, it found that Student needed individualized supports to “navigate” through the school day, because Student was missing large amounts of instruction due to struggles with aggressive outbursts, work refusal be haviors and Student’s need for frequent movement and breaks during the school day. Supports were needed to help Student perform functional skills that are typically performe d independently by first graders, including entering the school building, navigating the building, taking bathroom breaks, unpacking and packing belongings and performing one step directions. (S 21.) 77. The report concluded that Student performs best in a small controlled setting with a small group or individual setting. It noted that St udent has the most difficulty regulating

11 Student’s behaviors during larg e instruction and transitions. The report indicated that Student requires “intensive emotional support throughout the school day.” The report also noted a need for explicit instruction in social skills. (S 21.) 78. The report noted occupational therapy recommen dations to address Student’s behavioral and sensory needs, including a sensory diet and the use of “the zone program”. (S 21.) 79. The District convened an IEP meeting on January 23, 2015, attended by both Parents and fourteen other participants. The IEP offered to continue Student’s placement in itinerant emotional support services at Student’s neighborhood school. (S 25.) 80. The IEP reflected recommendations as the result of an audiological evaluation in November 2014, including preferential seating; a separate, quiet, uncluttered work area for Student within the classroom; use of visual cues to supplement auditory information; frequent prompts and checks; repeated di rections; frequent positive reinforcement; frequent movement and listening breaks during the day; and ex ternal organizational aids. (S 25.) 81. The IEP reflected teacher input indicating a reduction in the fre quency, intensity and duration of Student’s inappropriate behavi ors during the three we eks subsequent to Student’s partial hospitalization. This included oppositional behavior, conflict with peers, increased time in the classroom, willingness to express negative emotions, and reduced impulsivity, anxiety and oppositional behavior. (S 25.) 82. The IEP included a sensory diet developed through collaboration of the occupational therapist and the board certified behavior analyst, both of whom had evaluated Student and provided reports. This included training for teaching and related services staff, a provision for changing the sensory diet frequently, mon itoring Student’s use of the diet and dealing with refusal, which would be to refrain from forcing it on Student. (S 25.) 83. The IEP included an FBA that was based upon both structured assessment instruments and data collection during thre e separate days in Nove mber 2014. The FBA contained definitions of the target behaviors and explicit instructions on implementation of interventions, including the use of praise for positive behaviors and the use of re-direction rather than planned ignoring for refusal and non-compliance with directives in the classroom. It also included interventions de signed to be proactive, addressing antecedent conditions, and the teaching of replacement skills. (S 25.) 84. The IEP provided new goals in addition to the goal for maintaining appropriate behavior in school. New goals addressed muscular deve lopment to permit longer periods of sitting in a chair in class; use of sensory strategi es; writing sentences to address visual spatial processing; reduction in tantrum behavior; an d use of coping skills to self-regulate behavior. (S 25.) 85. The IEP provided specially designed instruction including sensory strategies and assistive technology; proprioceptive activities; tactile stimulation and joint compression; a second space within the classroom; brevity of direc tions; an individualized chair; specialized

12 response to escalation of be haviors; and use of a res earch based emotional support curriculum. (S 25.) 86. The IEP provided for related services includi ng an ABA trained PCA; social skills group one time per week for 30 minutes; counseli ng one time per week, for 20 minutes; and occupational therapy twice per week for 30 minutes per session. (S 25.) 87. The IEP provided for staff training and c onsult with a BCBA and occupational therapist for implementation of the behavior support plan and the FBA. (S 25.) 88. By signature dated February 9, 2015 on the NOREP sent on January 22, 2015, Parent agreed to implementation of the recommende d placement as a pendent placement, and to implementation of all services offered in the IEP except the use of restraints. On the same date, Student’s father signed the NOREP without reservation of rights. The January 2015 IEP was implemented at that time. (NT 239; S 26.) 89. In February 2015, the parties received th e report of the private neuropsychologist evaluation initiated in or after November 2014. The report classified Student with ADHD, disruptive mood dysregulation disorder, and anxiety disorder; the evaluator recommended evaluation for post-traumatic stress disorder, and noted ongoing problems with encopresis. It found Student’s cognitive ability to be av erage, and Student’s academic achievement also to be average and grade level. It note d prominent difficulties with attention and impulsivity. (S 27.) 90. The report found serious difficulties with social skills, personal boundaries and emotional dysregulation. (S 27.) 91. The private report recommended individualized, small group instruction in a self-contained emotional support setting with a low student-teacher ratio. The report recommended a full twelve month day program within a positiv e therapeutic milieu. The report noted that Student requires “flooding” of positive reinforcement for being on task, participating appropriately and coping with emotional di fficulties. The report recommended specially designed instruction in mathematics and written language, including spelling. It recommended provision of classroom notes to Student as an accommodation for Student’s inefficient graphomotor skills and organizational deficits. (S 27.) 92. The report recommended that Student ride the bus to school and recommended against home schooling. (S 27.) 93. The District issued a re-evaluation report dated March 20, 2015, reflecting its review of the February 2015 private neuropsychological evaluation report. The report included a review of the private neuropsychological report and recommendations, a District response, a report of observations on five different days in March 2015, since implementation of the most recent behavior support plan, and data gath ered on the Student’s response to the new behavior support plan and the sensory diet in January, February and up to March 15, 2015. (S 34.)

13 94. The re-evaluation report continued Student’s identification with emotional disturbance, with no secondary classification of Other Heal th Impairment to account for the previous medical diagnoses of ADHD. The re-evaluatio n report presented data indicating that the most recent interventions had significantly and positively affected Student’s behavior, when combined with a change in the gove rning custody order, which vested physical custody in Student’s father during the school week, enabling Student to come to school in a predictable pattern almost every day. (S 34.) 95. The District’s psychologist reported five observations over a two week span in March, with time sampling indicating Student’s on task behavior to be 73%, 65%, 86% (during a station at which Student played an educational computer game) and 66% on four of those occasions. On one occasion, the observation could not be conducted, in part because Student required passive restraint and was sent home. On another of the days of observation, Student was passively restrain ed due to a physical outburst. During these observations, Student worked on crayoning dur ing a mathematics assignment; left on requested breaks and left the classroom with the PCA’s permission twice, and repeatedly struggled with maintaining attention and k eeping up with the pace of the class due to attention and organizational di fficulties that slowed Student ’s response to directions. Student also was seen to violate the personal space of peers repeatedly. (S 34.) 96. The observations did not note any use of the sensory diet. (S 34.) 97. The observations noted significant improvement in Student’s time on task, an absence of the irritability that Student had displaye d previous to January 2015, and better self- advocacy and tolerance for frustration. (S 34.) 98. The re-evaluation report contained a report of the audiological evaluation conducted in November 2014, which emphasized the need to address Student’s difficulties with maintaining attention in order to appropriate ly address Student’s measured deficits in auditory decoding, integration and output organization. (S 34.) 99. The re-evaluation report contai ned data from January throu gh mid-March, indicating the effect of the behavior support plan and sensory diet implemented according to the January 2015 IEP. This data also traced the effect of the “setting ev ent” of a change in physical custody during the school week. The data supported the re-evaluation report that Student’s most problematic behaviors had decreased in frequency, duration and intensity during the measured period of time. Data also supported the report that Student’s time on task had improved over that period of time. (S 34.) 100. During the period of time from January 2015 through June 2015, Student was out of the classroom for significant portions of Student’s assigned classroom time. Student did not accept administration of most elements of the sensory diet. Stude nt created frequent situations when the classroom had to be cleared. Student sometimes eloped from the classroom. Student sometimes was restrained and escorted from the classroom. When removed to the emotional support classroom, St udent rarely complete d classwork there. During this period of time, Student requested and was given increasing amounts of time on breaks from the classroom. Data reporting sheets from the PCA indicated frequent

14 instances of irritability w ith peers, often leading to altercations. (NT 495-497, 503, 513- 514, 523-527, 536, 612-615, 622-625; P 175, 178, 185, 186, 189, 190, 101, 193, 194, 195, 197, 200, 203, 205, 208, 210, 211, 212, 213, 217, 219, 224, 227, 228.) 101. The first grade PCA was not recording da ta concerning intensity or duration of behaviors. The PCA was instructed to u tilize planned ignoring and sometimes offered sensory breaks not on a scheduled basis. (NT 502-506, 529-530, 542-544.) 102. Student’s academic performance declined toward the end of first grade, with poor performance in Mathematics. (NT 607.) DISCUSSION AND CONCLUSIONS OF LAW BURDEN OF PROOF The burden of proof is composed of two considerations, the burden of going forward and the burden of persuasion. Of these, the mo re essential consideration is the burden of persuasion, which determines which of two contendi ng parties must bear the risk of failing to convince the finder of fact. 2 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 burden of persuasion is on the party that requests relief in an IDEA case. Thus, the mo ving party must produce in all classrooms, daily preponderance of evidence 3 that the moving party is entitled to the relief requested in the Complaint Notice. L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006) 2 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). 3 A “preponderance” of evidence is a quanti ty or weight of evidence that is gr eater than the quantity or weight of evidence produced by the opposing party. See, Comm. v. Williams, 532 Pa. 265, 284-286 (1992). Weight is based

15 This rule can decide the issue when neither side produces a preponderance of evidence – when the evidence on each side has equal weight, which the Supreme Court 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 ru les, the burden of pe rsuasion rests upon the Parent, who initiated the due process proceeding. If the Parent fails to produce a preponderance of the evidence in support of Parent’s claims, or if the evidence is in “equipoise”, the Parent cannot prevail. DUTY TO OFFER A FAPE, INCLUDING AN APPROPRIATE PLACEMENT The IDEA requires that a state receiving federal education funding provide a “free appropriate public education” (F APE) to disabled children. 20 U.S.C. §1412(a)(1), 20 U.S.C. §1401(9). School districts provide a FAPE by designing and administering a program of individualized instruction that is set forth in an Individualized Education Plan (“IEP”). 20 U.S.C. § 1414(d). The IEP must be “reasonably calculated” to enable the child to receive “meaningful educational benefits” in light of the student's “intellectual potential.” Shore Reg'l High Sch. Bd. of Ed. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (quoting Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182-85 (3d Cir.1988)); Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235, 240 (3rd Cir. 2009), see Souderton Area School Dist. v. J.H., Slip. Op. No. 09-1759, 2009 WL 3683786 (3d Cir. 2009). upon the persuasiveness of the evidence, not simply quantity. Comm. v. Walsh, 2013 Pa. Commw. Unpub. LEXIS 164.

16 “Meaningful benefit” means that an eligib le child’s program affords him or her the opportunity for “significant learning.” Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). In order to pr ovide FAPE, the child’s IEP must specify educational instruction designed to meet his/her unique needs and must be accompanied by such services as are necessary to permit the child to benefit fr om the instruction. Board of Education v. Rowley, 458 U.S. 176, 181-82, 102 S.Ct. 3034, 1038, 73 L.Ed.2d 690 (1982); Oberti v. Board of Education, 995 F.2d 1204, 1213 (3d Cir. 1993). An eligible student is denied FAPE if his or her program is not likely to produce progress, or if the program affords the child only a “trivial” or “de minimis” educational benefit. M.C. v. Central Regional School District, 81 F.3d 389, 396 (3rd Cir. 1996), cert. den. 117 S. Ct. 176 (1996); Polk v. Central Susquehanna Intermediate Unit 16, 853 F. 2d 171 (3rd Cir. 1988). However, a school district is not necessarily required to provide the best possible program to a student, or to maximize the student’s potential. Rather, an IEP must provide a “basic floor of opportunity” – it is not required to provide the “optimal level of services.” Mary Courtney T. v. School District of Philadelphia, 575 F.3d at 251; Carlisle Area School District v. Scott P., 62 F.3d 520, 532 (3d Cir. 1995). An IEP is not required to incorporate every program that parents desire for their child. Ridley Sch. Dist. v. M.R., 680 F.3d 269 (3d Cir. 2012). The law requires only that the plan and its ex ecution were reasonably calculated to provide meaningful benefit. Carlisle Area School v. Scott P., 62 F.3d 520, (3d Cir. 1995), cert. den. 517 U.S. 1135, 116 S.Ct. 1419, 134 L.Ed.2d 544(1996)(appropriateness is to be judged prospectively, so that lack of progress does not in and of itself render an IEP inappropriate.) Its appropriateness must be determined as of the time it was made, and the reasonableness of the school district’s offered program should be judged only on the basis of the evidence known to the school district at

17 the time at which the offer was made. D.S. v. Bayonne Board of Education, 602 F.3d 553, 564- 65 (3d Cir. 2010). Pursuant to its obligation to offer and provide Student with a FAPE, the District must provide Student with an appropriate placement. See, P.V. v. Sch. Dist., 2013 U.S. Dist. LEXIS 21913 (E.D. Pa. 2013)(defining placement as an interest prot ected under the IDEA); R.B. v. Mastery Charter Sch., 762 F. Supp. 2d 745 (E.D.Pa. 2010)(describing change of placement as fundamental change in educational program that ensures provision of a FAPE). Placement is part of the selection of services that delivers a FAPE through the IEP. P.V. v. Sch. Dist., 2013 U.S. Dist. LEXIS, above. A “placement” is not the same as a “place” or location of the services; rather, “placement” is the level and type of services to be provided to St udent, wherever those services are provided. Id. at 19. However, if the location of the services has a substantial impact on the quality of the services, there is authority that suggests that location can be a factor in determining whether or not the placement in the location in question is part of an IEP that is reasonably calculated to provide meaningful educational benefit. R.B. v. Mastery Charter Sch., 762 F. Supp. 2d 745, 763 (E D. Pa. 2010). APPROPRIATENESS OF STUDENT’S KIND ERGARTEN PLACEMENT – SEPTEMBER THROUGH DECEMBER Parent argues that the Distri ct provided an inappropriate pl acement during the entirety of Student's kindergarten year. Parent argues that the District should have known that Student needed special education during the tr ansition period from Early Interven tion services to kindergarten; therefore, the District failed inappropriately to recognize Student’s need for special education by failing to identify student as a child with a disability in August 2013. I conclude that, in hindsight,

18 Parent may be correct, but applying the legal standards discussed above, requiring the placement to be appropriate based on the District’s information at the time of the offer, Parent has failed to show that the District’s August re-evaluation inappropriately found Student ineligible for special education. I find above that the District knew that St udent had presented with serious behavioral difficulties as a young child. The District was well aware that Student had been diagnosed at such a young age with disruptive behavior disorder. The District was aware that Student had received supports in early intervention. The District’s evaluator admitted knowing the above facts. Nevertheless, I conclude that the information available to the District at the time of the August evaluation did not require it to classify Student at that point. The early intervention program had reported a year’s worth of behavioral data that showed that Student had made some progress in learning skills related to attaining behavioral self-control. While inappropriate behavior seemed level over the year by these data, the intensity and frequency of the behavior seemed to improve. Student appeared to be learni ng to control Student’s behavi or. There was information that suggested to the evaluator that it might be possible to reduce supports for Student. The evaluator also credibly te stified that she used professi onal judgment in light of her experience with very young children such as Stude nt; it was her judgment that transitioning children often have behavioral i ssues at a young age, issues that resolve by kindergarten. This appeared to be the case with Student. In view of these considerations, the evaluator decided to deny eligibi lity at that time, but to recommend continued monitoring of Student’s behavior, and noted that the District and Parents should move quickly if Student began to regres s behaviorally. Both Parents strongly supported that decision, endorsing the hopeful view that the best plan was to allow Student to start school

19 with a clean slate. The evidence in this record does not prove by a preponderance that this judgment was inappropriate. A contrary conclusion woul d amount to second-gue ssing the District’s classification decision based upon information that the District did not have at the time. The IDEA forbids this, as explained above. It follows that placing Student in regular education was not inappropriate from the date of that re-evaluation until there was reason to review its conclusions. I find that the Student’s behavior was not problematic for the first few days of school, but it started to deteriorate soon after the start of school. By October, the behaviors previously noted in preschool were being seen in kindergarten and by October 21, 2013, the Student’s behaviors escalated into serious misconduct necessitating removal from class. The District initiated a re-e valuation at the end of October, and completed it by December 16, 2013, identifying Student with emo tional disturbance. I find no error in this sequence of events. APPROPRIATENESS OF STUDENT’S KINDERGARTEN PLACEMENT – JANUARY THROUGH MARCH In early November 2013, while Student was still appropriately placed in regular education, Student was sent home and asked to stay home for a few days after Student engaged in an episode of violent behavior. At this point in time, the Dist rict contracted with a be havioral health service agency to provide a PCA for Student, one-to-one; this individual had some training in Applied Behavioral Analysis (ABA). Th e regular education teacher and the special education teacher devised an intervention for Student that con tinued while Student was being re-evaluated and identified, and while the District was convening an IEP team to provide special education services. The intervention was based upon a form to be fill ed out by the regular e ducation teacher, noting

20 the overall tenor of Student’s behavior in diffe rent portions of the school day, and color-coding them as good (green), bad (red), or something in between (yellow). When notable, the behaviors would be described on the data forms next to the colored-in time period in which they were observed. The form specified rewards to be delivered by the teachers when Student’s behavior was rated as good, or “green”. When the District identified student as a child with a disability on December 16, 2013, the District was obligated to provide Student with an appropriate pl acement and program within 30 days – by January 15, 2014. 34 C.F.R. §300.323(c). It failed to do so. Instead, it waited until March 11, 2014 (a delay of two months and twenty-six days) to deliver a proposed IEP at an IEP meeting, contrary to the IDEA’s requirements for timely action. This, it violated IDEA procedures and left Student in the inappropriate November 2013 placement for over a month without an IEP. The District argues that the delay was due to the intense marital strife in which the Parents were engaged. It points out that Parent refused to be in th e same room with Student’s father, refused to work with the District’s appointed case manager (for reasons that had nothing to do with the case manager’s educational performance for Student) and disagreed with Student’s identification and with the IEP itself. It argues that a plethora of lawyers descended upon it, further confusing and delaying the scheduling of meetings required by the IDEA. The facts of record do not support this argument. While th e above things did occur, there is no evidence to support any causal connection between these legal complications and the recorded delay of one month and twenty-six days from the thirty-day mark on January 15, 2014 to the date of the initial IEP meeting. Nor is there any exception in the IDEA’s time lines for parental resistance, marital discord or the involvement of lawyers. Thus, on the record and the law, I find unavailing the District’s protestations.

21 Student exhibited severely inappropriate a nd violent behavior in December 2013 and January 2014. Existing interventions seemed to curtail some of Student’s inappropriate behaviors during the period from February 2014 to April 2014. Nevertheless, Student engaged in some violent and dangerous behaviors during this peri od, albeit less frequently. During this period, the Student’s behaviors were not defined with any precision, and the data sheets were not filled out with either precision or consistency. The data sheets do not reveal the prevalence of lower-severity behaviors that interfered with instruction, such as inattention, interrupting class, leaving Student’s seat and defiance of instructions. Thus, the evid ence of improvement in behavior was essentially based upon subjective report. APPROPRIATENESS OF STUDENT’S KINDERGARTEN PLACEMENT AND PROGRAM – MARCH 11, 2014 IEP I conclude that the placement and program offered by the District in March 2014 was inappropriate for this child. The placement was itinerant emotional support, which meant that Student was to be instructed in the regular education setting with the same informal interventions that had been provided since November 2013. A lthough Student was identified with emotional disturbance, with a history of severe and da ngerous behavior and the re-emergence of such behavior in kindergarten, the Di strict failed to perform a complete and systematic functional behavior assessment (FBA), by a qualified professional, based upon careful definitions of behavior and systematic data collection. It provided a behavior support plan that did little more than mirror the goal and instructional modifications offered in the IEP. Although the evaluation report and the history indicated that Student was exhibiting sensory needs, and although the re-evaluation report called for an occupational therapy evaluation, none was performed during Student’s kindergarten year, and no sensory diet was provided. The IEP called for counseling and social skills training,

22 but the record is preponderant that these were never provided. Although transitions were identified as the antecedent to much of Student’s di sruptive behavior, the IEP did not design any interventions to address this antecedent. Meanwhile, as noted above, Student’s behavior remained problematic in March and early April, and plummeted from mid-April 2014 until th e end of the school year. Repeatedly, Student engaged in dangerous, aggressive and destructive behavior that required the humiliating application of physical restraint and removal from the classroom. Student was excluded from the school bus due to behavior, even though the re-evaluation had recommended school bus travel to school, as a way to support Student’s difficultie s with transition from Parent’s automobile. Therefore, the record is pre ponderant that the flawed placem ent failed to address Student’s emotional, behavioral and social needs in kinderg arten – the grade level at which the curriculum is most focused upon classroom behavioral skills and social skills. APPROPRIATENESS OF STUDENT’S KINDERGARTEN PLACEMENT AND PROGRAM – FIRST GRADE The record is preponderant that the placement of itinerant emotional support was inappropriate for Student during first grade. From the beginning of the school year until December, when Student was removed from school after a violent and dangerous melt-down, Student’s behavior was frequently out of c ontrol, and Student’s classroom attention to task was absent for significant periods of time, duri ng which Student was not availa ble for instruction. Student’s classroom skills were deteriorating from a problematic baseline. Student’s relationships with peers suffered. Student was not learning emotional self -regulation skills, behavi oral self-control, or social skills that other student s had learned already. Student ofte n struggled to keep up with the

23 pace of instruction, although Stude nt’s robust cognitive skills pe rmitted Student to perform on grade level academically. Recognizing the need for intervention, and appr ised of the Parent’s intention to pursue her legal rights, the District agreed to re-evaluation, IEE, auditory evaluation, a “Level III” FBA by a BCBA, based upon systematic data-gathering, and a new IEP. The new IEP, formulated in October 2014, before receipt of all of the agreed-upon ev aluations, maintained th e itinerant emotional support placement and a goal similar to the prev ious single goal for good behavior. However, a positive behavior support plan and a crisis intervention plan were added, along with some new specially designed instruction. In December 2014, Student experienced a violent melt-down, after which Student was referred for risk assessment, and thence to a psychiatric hospital for assignment to a level of care. Student was placed in partial hospitalization, wh ere academic demands were minimized in favor of psychiatric treatment and stabilization. Student returned to school in January, and exhibited improvements in both affect and behavior for a short period of time. However, between January’s first day of school and the end of the school year, Student’s behavior steadily deteriorated, with increasing successful escape behaviors involving going to the nurse’s office numerous times, and going to the emotional support teacher’s classroom often. This occurred despite the District’s intensive efforts to shore up its itinerant placement with supplemental supports and services. Betwee n January and June 2015, the District, in communication with Parent’s attorney, funde d an IEE consisting of a neuropsychological evaluation, an occupational therapy evaluation, an audiological evaluation and a “Level III” FBA. It issued and revised the IEP repeatedly, as the reports from these evaluations became available. Services continued to include a one-to-one personal care PCA who was ABA trained; counseling

24 once per week; social skills class once per week; a Positive Behavior Support Plan and a Crisis Intervention Plan. In the Spring, the District began to implement a sensory diet that the occupational therapy evaluation had recommende d. A special area of the emotional support classroom was available to Student for regaining control when upset. A research based emotional support curriculum was instituted. A research based social skills curriculum was implemented. Although District educators subjectively repor ted that Student’s melt-downs had receded in frequency, duration and intensity, the Student’s PCA credibly testified that Student continued to have violent melt-downs, exhibiting dangerous behaviors such as throwing objects at people and kicking and punching staff who intervened. Student’s refusal behavior seemed to change shape as Student learned to go to the nurse’s office and to the emotional support teacher’s classroom in order to escape classroom work demands. Neither that teacher nor the PCA were able to ensure that Student do the work in these alternate “bre aks”, and so Student le arned that the IEP and behavior plan were a reliable wa y to escape class work. Although st aff were trained and tried to implement the sensory diet, Student refused most of the elements of that diet, and its elements, refused when offered according to a set schedule as set forth in the plan, became activities that served to reward Student for escaping work demands. In short, the District’s assigned staff failed to implement the behavior support plan and the sensory diet with fidelity. The exhibits show that behavioral data were kept, although it did not measure duration or intensity of target behaviors, and there is some doubt as to the fidelity with which the data were kept. Nevertheless, this data, and the testimony of the PCA who kept it, credibly depicted the nature of Student’s behaviors. Student’s days were frequently punctuated with off-task behaviors and escapes to the nurse or to the emotional su pport teacher’s classroom. Student’s weeks were punctuated by behavioral outbursts that included punching peers, throwing objects and destroying

25 property, and punching and kicking educational st aff and administrators. This behavior became more frequent as time went on. I conclude by a preponderance of the evidence that the District’s placement, even with all of the improved and added services in first grade, failed to help Student to bring Student’s behavior under control. The District argued, and it even obtained from its contracted be havioral intervention consultant data to show, that the Student’s behaviors were triggered by Parent’s association with Student. Data showed that Student’s transition to and from the father, and to and from the Parent, correlated with spikes in tantrums and inappropriate behaviors. I reviewed these data, and find that they are flawed and carry reduced weight, for th ree reasons. First, they are based upon a limited number of data points. Second, th e data gathering sheets show that there were instances of outbursts that were not so correlated. Third, the argument is beside the mark. The argument fails regardless of its statistical validity because the District’s obligation does not depend upon the absence of extr aneous triggering events for the behavior of concern. The Student’s needs are not negated by parental discord or the negative influence of a parent’s behavior on that of the child. The District is required to provide a placement reasonably calculated to enable the Student to obtain meaningful educational benefit, regardless of who the child’s parents are, or what negative influences they may have on the child’s behavior. FAILURE TO PROVIDE A FAPE IN KINDERGARTEN AND FIRST GRADE Based upon the analysis above, I find by a preponderance of the evidence that the District failed to provide student with a FAPE in part of Student’s kindergarten year and for the entirety of Student’s first grade year. The IDEA defines a FAPE as special education and related services that, among other things, are provided through an IEP that meets IDEA standards. 34 C.F.R. §300.17.

26 The IDEA standards require that the IEP must m eet the child’s needs arising from the child’s disability in such a way as to “enable the child to be involved in and make progress in the general education curriculum … .” 34 C.F.R. §300.320(a)(2)( i)(A). These standards also require the IEP to meet all educational needs that arise from the child’s disability. 34 C.F.R. §300. 320(a)(2)(i)(B). In Pennsylvania, the general education curric ulum must address basic developmental needs in the emotional, behavioral and social domains. The regulations promulgated by the Pennsylvania Department of Education for public education re quire local education agencies to “prepar[e] students for adult life by attending to their intell ectual and developmental needs and challenging them to achieve at their highest level possible. In conjunction with families and other community institutions, public education pr epares students to become self -directed, life-long learners and responsible, involved citizens.” 22 Pa Code § 4.11(b). Thus, public education in Pennsylvania is intended to provide opportunities for students to : (1) Acquire knowledge and skills. (2) Develop integrity. (3) Process information. (4) Think cri tically. (5) Work indepe ndently. (6) Collaborate with others. [and] (7) Adapt to change. 22 Pa Code § 4.11(c). The Department’s regulation entitled “Elementary Education: primary and intermed iate levels” mandates that “curriculum and instruction in the primary program shall focus on introducing young children to formal education, developing an awareness of the self in relation to others and the environment, and developing skills of communication, thinking and learning”. 22 Pa Code 4.21(b). None of these educational benefits are atta inable without a basic ability to regulate emotions and control one’s behavior. M.C. v. Central Regional S. D., 81 F.3d 389 (3rd Cir. 1996), cert. den. 117 S. Ct. 176 (1996)(education include s progress in emotional and social domains); Breanne C. v. Southern York County School District, 2010 WL 3191851 (M.D. Pa. 2010)(education includes progress in all relevant domains under the IDEA, including behavioral,

27 social and emotional.) The record in this case is pre ponderant that the Dist rict did not provide Student with supports that were reasonably calculated to provide Student with the opportunity to make meaningful progress in these areas of the curriculum. I reach this conclusion in light of the Di strict’s knowledge, as of December 2013, that Student had a history of severe behavior disorder, and that the same patterns and kinds of behavior were recurring with increasing frequency and severity in the plac ement to which the District had assigned Student. Moreover, from this point of ti me forward, the District was aware continually that Student’s severe behavioral dysregulation was recurring despite its addition of supports to the placement, and the District became increasingly aware that Student’s emotional disorder was complex in both etiology and manifestation. Yet th e District maintained Student in the minimal level of emotional support placement throughout the relevant time. FAILURE TO PROVIDE REQUESTED DOCUMENTS I decline to order production of more e ducational records, ba sed upon the evidentiary record in this case. While I have examined the evidence concerning production or non-production of educational records, I do not find preponderant evidence that the Dist rict has deliberately withheld such records contrary to either the IDEA or my previous orders in this matter. Moreover, in light of my order below for a change of placement, I conclude that an order for more educational records at this time would unnecessarily embro il the parties in a minut e examination of past history, to the de triment of any hope for a collaborativ e determination of the appropriate educational placement going forward.

28 CREDIBILITY It is the responsibility of the hearing officer to determine the credibility of witnesses. 22 PA. Code §14.162 (requiring findings of fact); A.S. v. Office for Dispute Resolution, 88 A.3d 256, 266 (Pa. Commw. 2014)(it is within the province of the hearing officer to make credibility determinations and weigh the evidence in order to make the required findings of fact). I found that most of the witnesses were cred ible and reliable, and specifically I found that Parent’s testimony was credible and reliable, based upon its fidelity to the record, and upon the way in which Parent repeatedly chose to respond to questions from both parties’ counsel. I also found Student’s father to be credible and reliable; although I disagree with his ultimate conclusion in this matter, I do so with respect for his calm, thoughtful and respectful efforts to support the District’s work with his child. I found the PCA’s testimony to be credible and reliable, both in the way in which the PCA answered questions, and also because the data that this witness had collected day by day corroborated her testimony. Conversely, I assign much reduced weight to the testimony of the first grade teacher, who swore during a May 2015 due process heari ng session that the Student’s tantrums had become more verbal than physical during a month in which the Student had been restrained at least five times for extreme violent behavior, including throwing bean bags, crayons and a telephone at staff and punching them and a peer. The teacher stated erroneously that Student had been upset only three times that month without escalating to a tantrum; this is contradicted in the documentary evidence. (NT 624; P 224, 227, 228.) On the day after this testimony, ironically, Student had a tantrum lasting about fifty minutes, during which Student hurled different objects at staff repeatedly, and kicked and punched them as they intervened. (NT 633, 642-643; P 224, 227, 228.)

29 Similarly, I accord little wei ght to the testimony of the em otional support teacher. The teacher swore in court in June 2014 that he had not delivered the IEP-specified social skills small group instruction to Student in kindergarten, (P 41); however, the teacher swore in this due process hearing that he had provided such social skills instruction to Student, (NT 1358-1360, 1399-1403). I also accorded reduced weight to the Dist rict’s psychologist’s testimony, because her testimony and final re-evaluation report concerni ng first grade were overtly prepared for the purpose of defending the District in this litigation, with the attendant and well recognized detriment to reliability that such a purpose implies. Therefore, I accepted her testimony and opinions in light of this evidence of some bias in favor of the District. While the private psychologist testified overtly on behalf of Parent in this matter, there was no such evidence of bias, and I accord her testimony full weight. I note that her recommendations flatly contradict Parent’s long-desired goal of home-schooling Student, and that the report criticized Parent’s practice of transporting Student to school rather than allowing Student to take the school bus, as recommended by the District’s re-evaluation reports. I accorded full credibility and reliability to the testimony of the BCBA who developed the behavior support plan implemented with limited su ccess in first grade. This witness was expert, forthcoming and clear about the data basis of her opinions. Nevertheless, I gave greater weight to the opinion of the private neuropsychologist on the question of the appropriateness of the itinerant emotional support placement, because the psychologi st’s data on the overall course of Student’s pathology and behavioral dyscontrol was far broader and more comprehensive, simply because of the nature of her methodology and the scope of her assessment. Moreover, the BCBA’s factual basis for her opinions was dependent upon the fide lity of the data-gathering and implementation of the behavior plan; the record is preponderant that both data-gathering and implementation were

30 flawed due to the PCA’s lack of clarity on defini tions of the data to be gathered, such as the definition of classroom “assignments”, (NT 616-617, 746-747), and the PCA’s testimony that she deviated from the behavior plan by allowing Stude nt to escape work demands very frequently toward the end of her tenure with Student. COMPENSATORY EDUCATION Compensatory education is an equitable re medy, designed to provide to the Student the educational services that should have been provided, but were not provided. Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990). In the Third Circuit, it is common to or der the District to make up such services on an hour-by-hour basis; however , there is support also for a “make whole” approach. See generally, Ferren C. v. School Dist. of Phila., 612 F.3d 712, 718 (3d Cir. 2010). In this matter, I conclude that an hour for hour or der for compensatory education is particularly inappropriate, while the record pr ovides considerable support for the “make whole” approach to compensatory education, an approach that is far better suited to righting any deprivation that this young child may have suffered due to the failure of the District to provide Student with a FAPE. The hour for hour approach in this matter is particularly difficult to implement with any fairness or precision. In a general sense, such a remedy would likely be inequitable to some extent. It also would be difficult to calculate appropriately. I conclude that such an approach would be to some extent inequitable, because the District was hampered in its response to Student’s needs by the Parent’s pervasive resistance to proposed interventions, and by the prof ound struggle between these Pare nts, whose dedication to the Student’s wellbeing was colored by a struggle to control the educational decision making process. Moreover, I am persuaded that any compensatory education order would immediately become the focus of additional struggle between the Parents, and such a heightening of tensions may actually

31 be harmful to Student. Moreover, I take seriously the father’s opinion that additional instructional services would be difficult to implement appropria tely for Student due to Student’s full schedule of activities and need to have some recreational time with each parent. In addition, I note that the failure to address Student’s developmental needs in the areas of behavior and social skills was not always pervasive throughout Student’s school days. Indeed, the data show that Student had many days durin g which Student was able to access academic education, along with periods of time in which Student was unavailable for instruction due to removal from school, inattention, and escape or elopement behaviors. Moreover, the record shows that, despite Student’s behavioral struggles and inattention, Student was able to function academically on grade level for the entire peri od during which the District was failing to appropriately address Student’s emotional and behavioral difficulties. In short, the record does not show with any precision what da ys Student was receiving substantial academic benefit and what days Student’s behavior prevented even academic participation and learning. On the other hand, the record provides solid, reliable support for a remedial order aimed at providing Student with the supports that Student will need going forward in order to learn the emotional self-regulation, behavioral skills and social skills needed to re-enter the least restrictive educational setting on a developmental par with Student’s grade-level and age-level peers. As the private evaluator explained, Student requires an immediate placement in a more restrictive and therefore more supportive educational environment, but only with the goal of helping Student to learn the necessary developmental skills that will enable Student to function successfully in all aspects of the general education setting. On the record before me, I conclude that Stud ent has great strength of intelligence and the ability to learn rapidly, when provided supports that appropriate ly reduce the interference of

32 Student’s attention, sensory and oppositional deficits. Student also displays admirable qualities of personality that should enable Student to ove rcome Student’s now severe deficits within a reasonable amount of time. Still, I am persuaded th at none of this will happen in the itinerant emotional support placement. On this record it is essential to provide Stude nt with an emotional support placement that delivers instruction and related services in a small classroom setting, through qualified and experienced educators, as recommended by th e private neuropsychologist. (NT 1022-1025; S 27 p. 21-.) The placement should be a twelve month, full day program and it should offer therapeutic support, closely coordinated with the educational component; this level of service will provide the compensation called for on this record, as it will he lp Student to recover to a grade-appropriate and age-appropriate developmental level as soon as is reasonably possible. While such programming must be available to Student, the placement should be molded to fit Student’s overall developmental and emotional needs; thus, if full time educationa l services are contraindicated taking the Student’s best interests into account, the placement should be modified accordingly. The placement should offer access to psychiatric, occupational therapy, audiological and ABA behavior management support as needed. I will order the District to provide such a placement forthwith. Parent invites me to opine as to the precise program that would be appropriate. I decline to do so. This is the province of the IEP team, as the IDEA mandates. Moreover, the record provides an insufficient basis to create such a specific order as parent suggests.

33 CONCLUSION I conclude that the District failed to pr ovide Student with an appropriate placement from January 15, 2014 to the last day of school in June 2015. I further conclude that this failure derived Student of a FAPE during the same period of time. I decline to order further production of educational records. I d ecline to order hour-for-hour compensa tory education; however, I order the IEP team to place Student in full time emotional support, provided by a setting that is consistent with the above findings and conclusions, taking into account the recommendations of the private neuropsychologist’s February 9, 2015 report in this matter. ORDER In accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED that: 1. The District failed to provide Student with an appropriate placement from January 15, 2014 to the last day of school in June 2015. 2. The District failed to provide Student with a FAPE from January 15, 2014 to the last day of school in June 2015. 3. The District did not fail to provide Student with requested educat ional records of the Student as required by law. 4. Within fifteen days of the date of this order, the District shall convene an IEP team meeting for the purpose of Student’s educational plac ement. The IEP team shall place Student in full time emotional support, in a public or priv ate educational setti ng either provided or fully funded by the District. Such setting shall provide services that are consistent with this Decision, including a twelve-month, full day educational program that offers therapeutic support, closely coordinated with the educat ional component. The placement shall offer access to psychiatric, occupational therapy, audiological and ABA behavior management support as needed, as well as any other servi ces that the IEP team determines to be appropriate. 5. Consistent with paragraph 4 hereof, the IEP team shall consider all of the recommendations of [the private neuropsychologist] as set forth in her Neuropsychological Evaluation report

34 dated February 9, 2015, and shall offer an IEP to Student that provides all such services that the IEP team considers to be appropriate. 6. The IEP team shall offer an IEP and NOREP consistent with this Decision within ten days of the date of the IEP meeting required hereby. The District shall take all necessary actions to facilitate Student’s placement as set forth in the IEP. 7. Hour-for hour compensatory education is not ordered. 8. The District is not ordered to produce any educational records. It is FURTHER ORDERED that any claims th at are encompassed in this captioned matter and not specifically addressed by this decision and order are denied and dismissed. William F. Culleton, Jr. Esq. WILLIAM F. CULLETON, JR., ESQ., CHO HEARING OFFICER July 27, 2015