North Pocono School District | Case 3432-12-13 | 2013-04-05

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: D.P. Date of Birth: [redacted] ODR No. 3432-12-13-KE CLOSED HEARING Parties to the Hearing: Representative: Parent Drew Christian, Esquire 801 Monroe Avenue Scranton, PA 18510 North Pocono School District Anne E. Hendricks, Esquire 701 Church Street Levin Legal Group Moscow, PA 18444 1301 Ma sons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Dates of Hearing: December 13, 2012; December 14, 2012; January 4, 2013; February 4, 2013; February 25, 2013 Record Closed: March 26, 2013 Date of Decision: April 5, 2013 Hearing Officer: William F. Culleton, Jr., Esquire

1 INTRODUCTION AND PROCEDURAL HISTORY The student named in the title page of this decision (Student ) is a resident of the school district named in the title page of this decision (District), w ho attended a District elementary school at times during the period rele vant to this matter. (NT 7-8.) The District has declined to identify Student as a child with a disability pursuant to the Individua ls with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA), but has recognized that St udent is a protected handicapped student and has provi ded Student with a service ag reement pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (section 504) and chapter 15 of the Pennsylvania Code. (NT 7-8; J 5, 16, 17, 18, 20, 23, 29, 33.)1 Parent named in the title pa ge of this decision (Parent) 2 requested due process alleging that the District failed inappropriately to identify Student as a child in need of special education during the relevant time, and fail ed to provide Student with a free appropriate public education (FAPE) as required by the IDEA and section 504. Parent seeks compensatory education for the period from June 19, 2010 to December 13, 20123, an order declaring that Student is a child with a disability under the IDEA , and an order that the District pr ovide Student with an appropriate IEP. The hearing was completed in five sessions. The record closed upon receipt of written summations. 1 The parties submitted a joint exhibit book, designated herein as “J”, and Parents submitted a separate book, designated herein as “P”. 2 References herein to “Parent” in the singular refer to Student’s Mother. Although Student’s Father joined in this due process complaint and fully endorsed Student’s Mother’s positions taken in this matter, only Student’s Mother participated in the hearing and conducted all of the transac tions that are related in evidence. Therefore, I refer to Student’s Mother as “Parent” for ease of reference. 3 Parent’s complaint sought compensatory education from June 19, 2010 until such time as appropriate programming should be implemented. (J 1.) However, I decided that there shou ld be an end point to the receipt of evidence, and over Parent’s objection, I designated the first day of hearings, December 13, 2012, as the last date for receipt of evidence. (NT 17-20.)

2 ISSUES 1. Is Student a child with a disability as defined in the IDEA? 2. Did the District fail inappropriately to identify Student as a child wi th a disability under the IDEA at any time from June 19, 2010 to December 13, 2012? 3. Did the District fail to offe r or provide Student with a FAPE from June 19, 2010 to December 13, 2012, to the extent required by the IDEA or section 504? 4. Should the hearing officer order the District to identify Student as a child with a disability under the IDEA? 5. Should the hearing officer order the District to provide compensatory education to Student for all or any part of the period from June 19, 2010 to December 13, 2012? FINDINGS OF FACT Student’s Medical and Educational History Prior To Seventh Grade 1. Student has been enrolled in the District since kindergarte n. From kindergarten through fifth grade, Student did not exhibit any academ ic, social or behavioral difficulties. Student’s achievement every year was averag e to above average in most areas of the curriculum. (J 32.) 2. In October 2009, when Student was in sixth grade, Parent sought a section 504 service agreement based on a doctor’s diagnosis of Post Viral Fatigue Syndrome; the District provided the service agreement. In December 2009, after an unusual number of absences and tardies, Parent provided a recomm endation for homebound instruction from Student’s primary care physician, based on a diagnosis of Tourette’s Syndrome. Student remained on homebound instruction from December to the end of the year. (J 32.) 3. Student presents with a variet y of complaints and symptoms , which varies by time and place. Symptoms and complaints include muscular weakness in the trunk requiring frequent breaks to lie down; pain and swel ling in the hands, pr ecluding Student from writing frequently or for long periods of time; “brain fog” which interferes with Student’s focus and attention; pain in the eyes and h eadaches; frequent gastro-intestinal problems; difficulties with the feet and legs; sleep disturbance and generalized fatigue. Student also reports significant symptoms of anxiety, physical tics and obsessive and compulsive thoughts and behaviors. (J 32.)

3 4. Student has received a variet y of diagnoses from various doctors and psychologists, including Post Viral Fatigue Syndrome, Dy sautonomia, Tourette’s Syndrome, Reflex Neurovascular Dystrophy, Obse ssive Compulsive Disorder , Over Anxious Disorder, Generalized Anxiety Disorder, Attention Deficit Disorder, and Asthma. (J 32.) 5. Teachers had reported to school personnel that Student was suffering from Tourette’s tics, sometimes including major muscular actions with arms or legs, periods of varying lengths where Student could not focus, and slow processing with written material. Teachers also reported that Student’s sympto ms could be subtle and not apparent to teachers or others spending limited time with Student. (NT 113-114, 237-244; P 2, 5, 7.) Educational Services And Progress During Seventh Grade (2010-2011 School Year) 6. In August 2010, Parent reported to the Distri ct’s guidance counselor that Student was diagnosed with Post-Viral Syndrome, Tour ette’s Syndrome, Dysa utonomia and Reflex Neuro-Vascular Dystrophy. Student began th e school year attending school, was absent frequently in the early weeks of sevent h grade, and then returned to homebound instruction and remained out of school for most of the year. (J 15, 32.) 7. In the August meeting with the guidance counselor, Parent provided a copy of a summary of visit with a rheumatologist at the Children’s Hospital of Philadelphia (CHOP), recommending an Individualized Education Pr ogram (IEP) at school. Parent informed the guidance counselor that St udent experienced various sy mptoms, including Tourette’s tics and pain. (J 10, 15.) 8. Student’s teachers reported that Student’ s school performance was good. Student was referred to a child study team for screen ing and increased intervention in regular education. (J 15.) 9. On September 23, 2010, the St udent’s school presented an advocate for people with Tourette’s Syndrome at a school assembly [redacted]. (J 15.) 10. On September 23, 2010, Parent requested an IEP and presented a medical note requesting homebound instruction. Parent i ndicated that Student’s pain and tics were becoming too much for Student and that was why Student was being absent more often in September. Parent indicated an intention that Student would attend school as much as possible, possibly attending partial days. (J 15.) 11. The medical note for homebound instruction i ndicated diagnoses in cluding Tourette’s Syndrome, Dysautonomia, Reflux-Neurovascular Dystrophy. Additional medical reports provided to the District by February 2, 2011 included three re ports from CHOP referencing diagnoses including anxiety and Obsessive Compulsive Disorder. (J 15.) 12. Student’s science teacher for the beginning we eks of school did not report symptoms or indications of physical weakne ss, pain, difficulties with ha nds, attention difficulties, anxiety, depression, obsessive thoughts or compulsive behavior. (J 32.) 13. The science teacher did note a possible recurring Tourette's tic. (J 32.)

4 14. Student’s reading teacher saw Student six times without noticing any symptoms or indications of physical weakness, pain, difficulties with hands, Tourette’s tics, attention difficulties, anxiety, depression, obsessive t houghts or compulsive behavior, except for some possible Tourette’s tics [on one occasion]. (J 32.) 15. Student’s mathematics teacher noticed Touret te’s tics [on that one occasion]. The Student had complained of tics previously during a quiz. (J 32.) 16. Student’s English teacher saw Student for a bout one week’s worth of classes. The teacher observed no identified tic s but did see [some specific] movements. The teacher noticed some somatic complaints appearing when the work became more demanding. (J 32.) 17. Student had a section 504 service agreement from the previous year, and the guidance counselor promised that this would be implemented for seventh grade, and updated as necessary. (J 15.) 18. In October 2010, the child study team recommende d not to evaluate Student and that the section 504 service plan was sufficient for Student. (J 15.) 19. On October 29, 2010, Parent attended a meeting with District personnel and stated that Student experienced frequent pain, tics [red acted], problems with handwriting and other physical actions, and difficulties with cognition. (J 15.) 20. Parent reiterated the request for an IEP at the meeting on October 29, 2010, and the Tourette’s advocate requested an evaluation. On November 2, 2010, the District issued a Permission to Evaluate to Parent; this wa s signed on November 4, 2010 and marked as received on November 15, 2010. (J 13, 32.) 21. In October, November and December 2010, the Di strict and Parent formulated revisions to the section 504 pl an, based in part on recommenda tions from Student’s homebound teacher, that included extended time, computer for writing, reduced writing requirements, scribing, study guides, calculator, eliminati on of deadlines, second set of textbooks for home use, limited practice problems for homework, homebound paperwork and communication between Parent and teachers. (J 15.) 22. During this time, standardized achievement te sting indicated that Student was achieving above average at grade level in reading, writing and mathematics. (J 15.) 23. In December 2010, the homebound teacher repor ted to the seventh grade guidance counselor that Student experienced slow co gnition during tests, distractibility, tics, perfectionism, exacerbation of symptoms due to stress, and significant detrimental effect on education as a result of symptoms. (NT 243-244; P 9.) 24. Parent provided the District with three reports from the Children’s Hospital of Philadelphia (CHOP), dated in 2010, showing diagnoses of Dysautonomia and Tourette’s syndrome, and noting amplified muscul oskeletal pain; a 2012 neuropsychological evaluation with diagnoses of Over Anxious Disorder, Obsessive Compulsive Disorder

5 and Attention Deficit Disorder; a 2012 psyc hiatric report obtained by the District diagnosing Generalized Anxiety Disorder and Obsessive Com pulsive Disorder; and nine notes from the personal care physician r ecommending homebound instruction. (NT 50- 52; J 32.) 25. The Student’s homebound teacher reported observing a wide variety of tics, involving the face, neck and leg, episodes of inability to respond, termed “brain fog”, distractibility, and slow performance on assignments. The teacher indicated that increased stress exacerbated symptoms. (J 15.) 26. On February 2, 2011, the District issued an evaluation report, addressing suspected need in the areas of occupational therapy and atte ntion. The evaluation report concluded that Student was not eligible under the IDEA. Assessment reports by the occupational therapist noted decreased trunk strength, fatig ue and “brain fog”. The report of the school psychologist indicated no test scores supportive of attention deficit disorder or behavior regulation difficulties interfering with education; however, scores were elevated with regard to emotional control. (NT 69-72; J 15.) 27. The District did not issue a further permission to evaluate despite clinically significant test scores in the February evaluation indicating a need for further data. (NT 73-76.) 28. In March 2011, the homebound teacher advised th e counselor that Student required extra time for tests including the PSSA test due to cognitive symptoms of “brain fog.” (NT 247-249; P 11.) 29. For the remainder of the school year, Student had a section 504 service plan that provided for “intermittent homebound” services, allowing Student to come to school when able, with homebound instruction when Student coul d not come to school. The plan included adaptations to the curriculum to reduce practice assignments for homework. Homebound instruction was offered for an average of a bout five hours per week in seventh and eighth grades, and five to ten hour s per week in ninth grade. (NT 233, 749-751; J 32, 41, 46 p. 2; P-15.) Educational Services, Offers And Progress During Eighth Grade (2011-2012 School Year) 30. Student was absent frequently in the early weeks of eighth grade, and then returned to homebound instruction and remained out of school for most of the year. (J 32.) 31. Student’s academic progress was slow during eighth grade. (NT 545-547; J 46 p. 21.) 32. The District sought and Parent agreed to a psychiatric evaluation in April and May 2012. (NT 78-80; J 46 p. 21-22.) 33. The District terminated homebound services to Student in May 2012, replacing it with a “courtesy” tutoring service. Se ction 504 services were restrict ed to the school location. (NT 539-549; J 46 p. 21-22.)

6 34. From September 23, 2010 to May 13, 2012, Stude nt’s section 504 plans did not provide for emotional support. (J-5, 16-18, 20, 23.) 35. Section 504 plans included adap tations to the delivery of instruction, including extended time, sentence starters for writing assignments , modified use of worksheets to reduce writing needed, limits on homework when Student becomes ill, presentations delivered to teacher 1:1, elimination of deadlines, and dict ation, scribing and speech to text software, and altered class schedule to permit breaks fo r rest due to fatigue. Plans also included special transportation. (J-5, 16-18, 20, 23.) 36. In May 2012, Parent signed a Permission to Ev aluate form for an initial evaluation of Student. (J 47.) Educational Services, Offers And Progress During Ninth Grade (2012-2013 School Year) 37. In August 2012, the District completed an eval uation report. The refe rral questions were Student’s present medical and psychological status, the need for homebound instruction and whether Student should be identified as a child with a disability under the IDEA based upon a private psychological evaluation report. In addition, an Autism spectrum disorder was suspected and the District, following its view of best practice, sought to rule out physical causes of symptoms otherwise supporting emotional disturbance under the IDEA. The evaluation report conc luded that Student is not a child with a disability, but did qualify for occupational therapy. (NT 34-35, 134-135, 472-473; J 32.) 38. The evaluator relied upon the teacher reports fro m the first few days of school in seventh grade, indicating some Student reports and teacher observations related to Tourette’s tics. (J 32.) 39. Student’s homebound teacher in seventh grade, and in eighth grade from January 2012 through the date of the report in August 2012, also taught Student in fifth grade. This teacher reported observing Student’s inability to write or type long passages due to hand pain and swelling. The teacher had seen Stude nt up to five hours per week. The teacher noted that scribing for Student multiplies the time taken on ordinary tasks fourfold. The teacher reported that Student exhibited weak ness and pain sitting up in a chair, and needed breaks to lie down or needed to re ceive instruction lying down on a couch. The teacher reported that Student experienced pain in the eyes and feet, headaches, fatigue requiring short learning sessi ons and frequent breaks, “b rain fog”, distractibility stumbling when walking and frequent illnesses that terminate all instruction for days at a time. (NT 62-64, 343; J 32.) 40. Behavior rating questionnaires filled out by Parents and the homebound teacher, deemed valid, resulted in clinically significant scores for all of them in areas labeled as emotional distress, upsetting thoughts, wo rrying, separatio n fears, perfectionis tic and compulsive behaviors and physical symptoms. All thre e endorsed behaviors indicating a serious concern regarding generalized anxiety disorder and obse ssive-compulsive disorder. Student self-report, deemed valid, resulted in high scores for emotional distress, academic difficulties and physical sympto ms. Student report also indicated high scores for

7 diagnostic categories of major depressive di sorder, generalized an xiety disorder and obsessive-compulsive disorder. (NT43-50; J 32.) 41. The District school psychologist discounted the evidence from the inventories concerning possible attention deficit diso rder, concluding that symp tom counts did not meet the definition of ADD in the psychiatric diagnos tic manual, the Diagnostic and Statistical Manual of Mental Disorders, IV-TR. More over, cognitive scores from the private neuropsychological report contradicted such a diagnosis. In addition, the symptoms were not found in two of more settings, sin ce the homebound teacher’s observations of attention problems occurred in the home, as did Parents’ reported observations. No valid school observations were available since Student had been on homebound for most of the past two academic years. (NT 85-86; J 32.) 42. In evaluation sessions, Student reported to the school psychologist that Student experienced recent and repeated episodes of acute tenseness and physical discomfort, later assessed by medical prof essionals as panic attacks, nervousness when going out of the home that subsides after 15 minutes, an aversion to being in large groups of people due to fear of being sick or injured, and a general over-concern with health and safety issues. (J 32.) 43. In evaluative sessions with the school psychologist, Stud ent reported several ongoing rituals that Student felt compelled to perform, incl uding checking locks and doors, frequent hand washing, turning the light switch from off to on position exactly four times before going to bed at night, and putting pillows and blankets at the foot of the bedroom door upon retiring at night. (J 32.) 44. Student reported ongoing difficulty falling as leep, bouts of wakefulness during the night, and short intervals of sleep. Student reported occasional episodes of vomiting after eating due to Dysautonomia, and a long history of recurrent gastro-i ntestinal distress. Student reported a variety of somatic symp toms, including recurrent and variable aches and pains, swelling and pain in the hands, di zziness, feeling as though about to pass out, imbalance, fatigue, and sluggishness. (J 32.) 45. The evaluator did not see Student’s hands swelling or any evidence of pain in the hands after Student played the guitar for the eval uator for a few minutes on two occasions. Student’s hand strength and manual dexterity were deemed to be good. (J 32.) 46. Student reported a desire to return to school for ninth grade, and th at Student’s teachers did not all follow the accommodations set forth in Student’s section 504 service plan. (J 32.) 47. Three rating scales aimed at eliciting eviden ce of autistic spectrum disorders from the homebound teacher showed no evidence of Student ’s behavior being on the spectrum. (J 32.) 48. Parent provided the District with three reports from the Children’s Hospital of Philadelphia (CHOP), dated in 2010, showing diagnoses of Dysautonomia and Tourette’s syndrome, and noting amplified muscul oskeletal pain; a 2012 neuropsychological

8 evaluation with diagnoses of Over Anxious Disorder, Obsessive Compulsive Disorder and Attention Deficit Disorder; a 2012 psyc hiatric report obtained by the District diagnosing Generalized Anxiety Disorder and Obsessive Com pulsive Disorder; and nine notes from the personal care physician r ecommending homebound instruction. (NT 50- 52; J 8, 9, 10, 21, 27, 30, 31, 32; P 15, 18.) 49. Section 504 service plans in 2010, 2011 and 2012 acknowledged that Student was suffering from disabilities diagnosed as Po st Viral Syndrome, T ourette’s Syndrome, Dysautonomia, and Reflux-Vascular Dystrophy. (J 16, 17, 18, 20, 23; P 4.) 50. The District’s school psychologist did not accep t any of the reports as establishing the stated diagnoses. The psychologist found the CHOP reports too old and inspecific; disagreed with the neuropsychological report and questioned its factual basis, as well as noting executive functioning scores that conflicted with the di agnosis of attention deficit disorder; discounted the psychiatric report because it was based on an examination by the psychiatrist’s physician assistant and not the psyc hiatrist; and questioned the authenticity of the homebound recommendations. The psychologi st considered it best practice to rule out physical causes of Student’s symptoms be fore identifying Student as a child with Emotional Disturbance. The psychologist al so questioned whether or not the diagnoses of Tourette’s Syndrome and Obsessive Compulsive Disorder were consistent with DSM- IV-TR criteria. (NT 51-57, 80-87, 1 34-135, 149-151, 172-184, 195-198, 216-217, 298- 301; J 28, 32.) 51. The requests for homebound status contained a lterations that raised questions as to whether or not Parent had assisted in draf ting them or submitted identical forms from year to year. (NT 208-209; J 11, 21, 25, 27.) 52. The school psychologist acknowledges that DSM-IV criteria are not part of the legal test for IDEA disability. (NT 339.) 53. The Supervisor of Pupil Personnel Services directed the school psychologist to obtain the “reports of origin” from all medical providers, to make sure that the reported diagnoses were actually the product of an evaluation a nd not simply recorded history of diagnoses of unknown origin. (NT 123, 139.) 54. Parent declined to provide additional medical reports, indicating that Parent thought that the District had enough information, and decl ined to allow the school psychologist to interview freely all of the doctors associated with Student’s diagnoses and care. Parent indicated a conditional permission to speak with all medical practitioners, but required to have the questions in advance. The ps ychologist declined to proceed under those conditions, believing that the conditions woul d not allow for follow-up questions. Parent was concerned with Student’s privacy and fear that questioning would interfere with medical services being provided by the persons interviewed. (NT 146-166, 295.) 55. The psychologist also wanted to inquire into the Parent’s administration of an anxiolytic medication as needed and in Parent’s discretion, which Parent reported was prescribed on that basis by the personal care physician and administered under that physician’s

9 supervision. The psychologist interpre ted that the medication was being given “indiscriminately” although there was no direct evidence to support that concern. The psychologist was concerned that it would be necessary to rule out the effects of the anxiolytic on Student’s performance and em otions before classifying Student under any IDEA category. (NT 83-85, 127-131, 146-166, 295.) 56. One report provided by Parent referenced dysgr aphia, but there was no other reference to that condition in any other documents given to the Dist rict. The psychologist was concerned with gaps in the medical record . This was a signif icant reason for not identifying Student as a child with a disability. (NT 146-166.) 57. The March 2010 CHOP report listed symptoms of Dysautonomia as including inability to remain upright, chest and other pain, excessive fatigue, dizziness, fainting or near fainting, gastronomic problems, nausea, shortness of breath, anxiety, tremulousness, cognitive impairment, headaches and visual problems. The condition as described in the CHOP report provided to the District often begins suddenly after viral infection or during an adolescent growth spurt. Symptoms vary and often increase with stress. (J 8.) 58. The April 2010 CHOP report noted complaints that Tourette’s tics interfere with functioning and notes an observation of fa cial tics. The report notes that stress exacerbates tics. (J 9.) 59. The private neuropsychological evaluation relied upon twelve test s - including three different tests addressing possi ble attention deficit disorder and one addressing reported eye pain - clinical interview, observation during testing and history supplied by Parent. (J 26.) 60. Student reported to the private psychologist that Student experienced obsessive thoughts about health concerns, some depressive sy mptoms of sadness, somatic concerns, some compulsive behavior such as hand washing, difficulties with pain in hands and eyes, attention to task and organiza tion, frequent disruption of activ ities due to Tourette’s tics, difficulty playing instruments when hands hurt, problems with assistive technology provided by the District, a nd concern that teachers w ould not understand Student’s disorders. (J 26.) 61. Parent provided to the privat e psychologist a history of as thma, tics from before fifth grade after a vaccination, advancing neuromus cular problems, obsessive and compulsive tendencies, and a family history for anxiety disorders. (J 26.) 62. The private psychologist reported seeing Stude nt for three sessions, observing anxiety, considerable hand pain, difficulty sustaining focus, and fatigue after several hours of testing. (J 26.) 63. The private psychologist’s tes ting revealed significantly a bnormal attention difficulties and abnormal fine motor abilities. Be havior inventories supported significant internalization, mood difficulties, anxiety, somatization and inattention that can interfere with learning. (J 26.)

10 64. The private psychologist noted test scores indicating sign ificantly lower fluency in writing and academic tasks. (J 26.) 65. The private psychologist’s report recomme nded specially designed instruction, counseling, homebound instruction combined w ith part-time school attendance, with gradual increase to full time attendance, an assistive technology evaluation, and further evaluation of eye functioning. (J 26.) 66. The District’s school psychologist observed ni ne possible instances of Tourette’s tics during two evaluation sessions with Student, and four instances of loss of concentration. Student reported anxiety and compulsive beha viors, but did not indicate a link between the two. The psychologist did not observe a ny signs of unusual mood or affect, or any signs of distress during these sessions. Tes ting did not provide sufficient basis for the psychologist to diagnose generali zed anxiety disorder, and the psychologist considered it necessary to rule out Dysautonomia as a cause of anxiety-like symptoms and reports. (NT 180-185; J 32.) 67. The school psychologist accepted the intelligence and achievement test scores from the private neuropsychological report, which i ndicated above high average to superior intelligence and average to high average academic achievement. These scores were corroborated by all available cu rriculum based testing and Student’s grades throughout Student’s academic career in the District’s sc hools. Scores did not prove a discrepancy indicative of a specific learning disability, in the private evaluator’s view; however, the scores did disclose a significant discrepancy between ability and achievement with regard to academic fluency in reading, writing and mathematics, also supported by reports of homebound teachers that tasks took much longer than normal to complete. (NT 101-J 26, 32.) 68. As part of Student’s section 504 service pla n, the District had provi ded Student with ten weekly occupational therapy assessment and ther apy sessions at District facilities. These sessions had addressed upper body and trunk wea kness, sleep disturba nce, fatigue, pain management, and difficulty writing (use of computer and speech recognition technologies). Student’s trunk and upper body strength improved from poor to fair, but Student continued to demonstrate below aver age motor proficiency. Sleep patterns and pain continued to be a problem warranting a recommendation of medical intervention. Student stopped attending OT sessions in Fe bruary 2011 and was absent and unavailable for recommended sessions in eighth grade. (J 32.) 69. The school psychologist concluded that sensory and health related factors did not impede Student’s academic development, and Student ’s reported compulsive rituals, anxiety upon going out, and worries about ge tting sick were not so intr usive as to in terfere with Student’s daily routine, academic functioning or social/interpersonal relationships. (J 32.) 70. The report recommended occupational thera py, increased access to guidance counseling, and a transition plan for Student’s retu rn to school. An FBA was recommended

11 conditionally, if Student should exhibit distre ss that should interfere with Student’s academic progress. (NT 90-92; J 32.) 71. The occupational therapist’s evaluation repo rt did not discuss the implications of significant discrepancies in the private ne uropsychological repor t between Student’s ability and reading, writing and mathematics fluency, corroborated by teacher reports. (NT 68-69, 87-92, 112; J 26, 32; P 2.) 72. The report did not address why Student wa s missing inordinate amounts of school and remaining on homebound instruction. No Functional Behavioral Assessment was conducted. (NT 35, 40; J 32.) 73. The homebound teacher did not attend the mu ltidisciplinary team meeting for the August 2012 evaluation report. (NT 39.) 74. The Supervisor of Pupil Personnel Services spoke to the Student’s personal care physician who told the Director that Student had an affective disorder. The physician did not confirm independently the Student’s diagnoses of Tourette’s Syndrome and Dysautonomia. (NT 59-60, 489-490.) 75. The District did not seek further evaluations in light of the evaluation report’s finding that there was insufficient data to find the existe nce of a disability, and remaining questions about whether or not there was a discrepancy between ability and achievement in the area of academic fluency. In August 2012, Parent indicated willingness to permit additional testing. (NT 66, 101-110, 172-184, 333, 553-555; J 48.) 76. Student began attending school in ninth gr ade, but by October wa s attending only part time and after October Student stopped atte nding school, unexcused for about three and one half months. The District had rear ranged Student’s schedule to accommodate a reported need to come in for afternoons for core subjects. (NT 540-543.) DISCUSSION AND CONCLUSIONS OF LAW BURDEN OF PROOF The burden of proof is composed of two c onsiderations: 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

12 finder of fact (which in this matter is the hearing officer). 4 In Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), the United Stat es Supreme Court held that the burden of persuasion is on the party that requests relief in an IDEA case. Thus, the moving party must produce a preponderance of evidence 5 that the other party failed to fulfill its legal obligations as alleged in the due process complaint. 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 pre ponderance 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 this matter, the Parent requested due process and the burden of proof is allocated to the Parent. The Parent bears the burden of persuasion on all issues. If the Parent fails to produce a preponderance of evidence in support of her claims, or if the eviden ce is in “equipoise”, then the Parent cannot prevail under the IDEA. IDENTIFICATION Under the IDEA Child Find requirement, the District has a "contin uing obligation ... to identify and evaluate all student s who are reasonably suspected of having a disability under the statut[e]." 20 U.S.C. § 1412(a)(3)(A); see P.P. ex rel. Michael P. V. West Chester Area School Dist., 585 F.3d 727 (3d Cir. 2009); Taylor v. Altoona Area Sch. Dist., 737 F. Supp.2d 474, 484 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. 5 A “preponderance” of evidence is a quantity or weight of ev idence that is greater than the quantity or weight of evidence produced by the opposing party. Dispute Resolution Manual §810.

13 (W.D. Pa. 2010). Even if parents do not cooperate fully with district efforts to identify a student, it is still the responsibility of the school to identify those children who are in need of the IDEA'S protections. Taylor, 737 a bove at 484. I conclude that the District failed to meet its obligations for two reasons. First, its evaluation failed to address all of Student’s reasonably suspected disabilities. Sec ond, its evaluation failed inappropriately to identify Student as a child with a disability. A child with a disability is a child who ha s one of twelve define d disabilities and who needs special education and related services by reason of such disability. 34 C.F.R. §300.8(a)(1). Among the enumerated disabilities are “visual im pairment”, “serious emotional disturbance”, “orthopedic impairment” and “other health imp airment”, “specific learning disability” and “multiple disabilities”. Ibid. Failure to Seek Additional Data When Needed The District insisted at hear ing that there was not sufficient data to demonstrate that Student suffers from a disability. Yet, as to several disability categories, it failed to pursue additional data in areas where it claimed that it had inadequate information, contrary to the IDEA regulations at 34 C.F.R.§300.305(c) . On notice that a private evaluation had performed a screening for possible visual impairment, and recommended a full evaluation for a suspected specific disability involving visual tracking, the District did not fo llow up after its evaluation in August 2012. Similarly, in view of reports by Student, Parent and homeschool teachers that Student intermittently lost normal use of Student’s legs and feet, enduring pain and requiring crutches to ambulate, the District conducted no inquiry into whether or not Student was suffering from an orthopedic impairment. Likewise, in the August 2012 evaluation report, the District

14 failed to consider whether or not the private evaluation’s report of si gnificant discrepancies between Student’s ability and Student’s academic fluency in reading, writing and mathematics established a specific learning disability. 6 Finally, given the Student’s multiple and various diagnoses, the District di d not consider whether or not Stude nt should be classified under the IDEA’s “multiple disabilities” category. The psychologist admitted that he did not su fficiently consider the category of orthopedic impairment, 34 C.F.R. §300.8(c)(8). The psychol ogist left this and any judgment as to identification on account of Student’s occupati onal therapy needs to the judgment of the occupational therapist, who found St udent to be in need of occupa tional therapy services due to orthopedic complaints like joint pain and hand sw elling, and balance and fine motor issues. It was not clear whether or not th is practitioner considered the orthopedic impairment category when recommending that Student not be classified while also recommending that Student receive occupational therapy services. The psychologist did not consider one of th e referring issues: why Student continued to be on homebound instruction for three years. Th ere was no functional behavioral assessment to explore this issue. The report di d not address this issue. Yet, plainly, the Stude nt’s failure to attend school is a major problem and an impediment to learning and accessing the curriculum. For these reasons alone, the evaluation wa s inappropriate. An evaluation must be sufficiently comprehensive to address all of th e child’s suspected disabilities. 20 U.S.C. §1414(b)(3)(B); 34 C.F.R. §300.304(c)(4), (6). I conclude that the evaluation failed to address all areas of suspected disability. This in itse lf is a violation of th e District’s child find 6 The school psychologist defended this on grounds that the private achievement scores were suspect due to the possible interference of Student’s visual and orthopedic limitations, and that the psychologist was on the fence about this evidence; yet, there was no effort to further evaluate to get to the bottom of the issue.

15 obligations. D.K. v. Abington Sch. Dist., 696 F.3d 233, 250 (3d Cir. 2009)(a poorly designed and ineffective evaluation does not satisfy child find obligations). The District’s defense was that Parent obstructed the psychologist’s efforts to explore all areas of suspected disability and reach a profes sionally justifiable conclu sion. I do not accept this argument. It is based primarily upon the Parent’s disagreement with the psychologist’s insistence upon a searching inquiry into the origin s and validity of Student’s medical diagnoses by a variety of physicians over th e years. The psychologist argue d that such an inquiry was necessary in order to verify th e validity of these medical dia gnoses and to rule out physical causes of Student’s symptoms of IDEA emotional disorder. Parent, citi ng privacy concerns as well as concern for the potential to drive away Student’s doctors 7, declined to allow the psychologist free rein to obtain numerous old me dical reports and then interview every doctor who ever treated Student. Parent wanted to revi ew the psychologist’s proposed questions before consenting to the interviews. I conclude that parent’s concerns were not unreasonable in light of the record. I conclude that the District had enough information to perform its Child Find obligation and reach a determination of disability. While the District may have had valid re asons to question some particular diagnoses given over the years, there was substant ial corroborated evidence of symptoms that were debilitating and consistent with the given diagnoses of Tourette’s Syndrome and Dysautonomia. Thus, the District had sufficien t information to identify Student with either Emotional Disturbance, Other Health Impairment or both. The IDEA does not require district evaluators to definitively rule out physical causes of symptoms that otherwise qualify children with emotional disorder . Although the first criterion 7 The District argued that there is no conceivable reason for this concern; however, the record suggests that this concern was plausible. The record indicates that Parent believed (correctly or not) that the supervisor’s call to the Student’s pediatrician’s office caused consternation in that office.

16 for emotional disturbance, inability to learn, requ ires ruling out physical etiology, this factor was not relevant because Student did not display an inability to learn. 34 C.F.R.§300.8(c)(4)(i)(A). Any of the other criteria would support a determination of Emotional Disturbance without ruling out physical etiology. While the District’s professional would hold himself to the more clinically based practice standard of ru ling out physical etiology, the ID EA does not support that higher standard as a basis to refuse to classify a ch ild. Therefore, the Dist rict’s insistence on a full inquiry into years of medical di agnoses and doctor visits as a condition of classifying Student was inappropriate. Moreover, Parent’s disagreement with the Distri ct’s desire to investigate the origins of the medical diagnoses did not prevent the District from conducting its own evaluations at its own expense. Parent was willing to permit additional testing. Thus, the District’s failure to follow up on additional needed data was not attributable to Parent’s resistance to the proposed inquiry of doctors as evidenced in this record. The District made much of doctor notes re questing homebound status, and the suspicion that Parent had altered or tampered with th em, or submitted identical documents on successive occasions. I find no basis to conclude that th ese documents were altered or manipulated as suggested. The psychologist’s questions abou t this were not entirely unfounded, but mere questions without answers are no basis on which to discount the documents or the Parent’s reports of Student’s symptoms, especially where the latter were corroborated by teachers, behavior inventories, physician reports and Student reports.

17 Identification of a Disability Further, I conclude that a preponderance of evidence of reco rd proves that the District’s finding that Student does not have a disability cognizable under the IDEA was inappropriate, and that the Student does indeed have such a disa bility, based upon information available to the District, and based on a preponderance of the eviden ce of record. Student’s IDEA disability so interferes with Student’s education that Student is in need of specially designed instruction and related services. Therefore, I will order the District to classify Student and formulate an IEP. The record overwhelmingly show s that the District was wr ong when it concluded that Student has no disability. Inde ed, the Student has a history of longstanding physical and psychological disabilities, corroborated by vari ous observers, and confirmed by numerous medical diagnoses. Student has exhibited the tics associated with Tourette’s Syndrome since age ten, which arose shortly after receiving an inocul ation (which the record shows is a recognized etiology for this disease) and resu lts in tics that vary from smal l movements of the head or face to full body movements. Student also is diagnosed with Dysautonomia, also arising at about the same time of life, which is a condition that ap tly describes the various symptoms that Student, Student’s Parent, homebound teache rs, and other observers have described; these symptoms include debilitating pain, swollen hands, and lapses of attention (dubbed “brain fog” in this record), and sudden onset of dizziness or unsta ble ambulation. Due to, or perhaps coexistent with, these conditions, Student has been diagnosed with attention deficit disorder and variously named anxiety disorders, as well as the a nxiety binding behavioral disorder, obsessive compulsive disorder. All of the symptoms of these disorders are documented in this record through frequent and longstanding Parent reports, Student self-reports, doctors’ notes and reports of visits to clinics, a private neuropsychological report, and the reports of teachers over a period

18 of more than four years. Thus, the District wa s on notice that Student ha d one or more of these diagnoses during the time relevant to this decision. Serious Emotional Disturbance As noted above, one of the IDEA categorie s of disability is “serious emotional disturbance”. 34 C.F.R.§300.8(a)(1). Emotional Disturbance is defined as: A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects the child’s educational performance: * * * (C) Inappropriate types of behavior or feelings under normal circumstances. *** (D) A tendency to develop physical symptoms or fears associated with personal or school problems. The evidence is preponderant that the Student suffered “to a marked degree” from Tourette’s Syndrome, a psychological condition that causes St udent to experience “tics” in multiple forms [redacted]. These tics would a fflict Student suddenly in all e nvironments, including the school environment, and were witnessed by teacher s and the school psychologist in the school environment. Although the most [significant ti cs] were not observed at school, the evidence shows that there was little opportunity for them to manifest at school, because Student was in homebound status for most of the time from onse t of Tourette’s to the date of the August 2012 evaluation. Thus, on balance, the evidence is preponderant th at Student suffered from tics associated with Tourette’s from the middle of sixth grade to August 2012. The evidence shows that this is a disability that causes inappropr iate types of behavior under normal circumstances, within the meaning of the IDEA category of Emotional Disturbance.

19 In addition, Student suffers from serious anxiety “to a marked degree”, especially in school. In fact, the evidence shows that this anxiety caused Student to experience increased pain and decreased stamina, triggered by the demand s of school. The cascading effect of anxiety combined with Student’s physical disabilities directly caused Student to leave school and remain on homebound status for months at a time during seventh and eighth grades. The evidence is preponderant that the District wa s at least on notice of these problems of anxiety and escalating pain and fatigue. I conclude th at Student thus experienced ina ppropriate types of feelings under normal circumstances, again within the mean ing of the IDEA category of Emotional Disturbance. Likewise, the evidence is preponderant that Student exhibited a tendency to develop physical symptoms and fears associated with pe rsonal or school problems, again satisfying the IDEA category of emotional disturbance. Student’s anxiety fits this defi nition, and the District was on notice that Student also exhibited symp toms of preoccupation with physical symptoms and fear of illness, all of which led Student to develop compulsive, ritualistic behaviors, the combination of which symptoms falls well within the IDEA definition of Emotional Disturbance. Again, the numerous diagnoses of anxiety disorders and obsessive compulsive disorder that resulted from these symptoms show that the symptoms occurred “to a marked degree”. The District’s school psychol ogist discounted Student’s se lf-reports of compulsive behaviors by noting that Student did not indicate that the reporte d compulsions were “in efforts to offset/prevent feelings of tension, to aver t a dreaded event from occurring, or to gain any particular pleasure.” By this single omission in Student’s oral report, the evaluator dismissed repeated diagnoses by medical and psychological professionals, repeated reports by Student, valid indicators on multiple behavioral inventor ies, and corroboration by both Student’s parents

20 and a teacher, that Student suffers from obsessive compulsive disorder. I find this conclusion implausible and therefore assign it little weight. Moreover, the underlying cause of compulsive behavior is not a criterion for cl assification under the IDEA; this criterion may be relevant to a clinical diagnosis, but is not relevant to the lega lly defined determination to be made in carrying out a district’s Child Find obligations. In declining to classify Stude nt, the District’s school psychologist relied heavily upon his own conclusion that the data did not support a diagnosis under the criteria set forth in the DSM- IV-TR 8. I find that this reduces the weight of the psychologist’s opinions in this matter, because DSM-IV diagnosis is not requir ed for classification under the IDEA. More over, there is doubt that the psychologist is qualifie d to render diagnosis or with hold diagnosis under the DSM-IV, since the psychologist is a master’s level prof essional without a license to practice clinical psychology. Thus, the psychologist utilized highly demanding clinical criteria for identification, over and above the criteria stated in the law, which are outside his training and licensure. His decision not to classify Student must be seen in that light, and t hus his decisions and opinions on classification are given reduced weight because the record shows that they are based upon medical classification criteria in addition to the IDEA classification criteria. The record further undercuts the District psychologist’s opinions and classification decisions because he relied upon the private ne uropsychological evaluation for some diagnostic conclusions but not for others. The psychologist testified that he relied upon the private test results for cognitive and achievement testing; however, he gave no weight to the private 8 The psychologist denied that he use DSM-IV criteria as a necessary component of identification, saying that he used DSM-IV only as a “guide” to classification under th e IDEA. However, his report discounted a substantial weight of evidence from interview, corroboration by othe r practitioners, psychological tests and inventories used in the field, in concluding th at Student does not have ADD or Obsessiv e Compulsive Disorder, solely because DSM- IV criteria had not been met. Moreover, in listening carefully to his testimony, it was clear to me that the psychologist’s educational decisions were highly influenced by his thorough knowledge of DSM-IV criteria. Thus, I conclude that the psychologist’s educational classification decisions were not reliable because they were influenced to a great yet not clearly delineated extent by DSM-IV criteria that are not part of the IDEA identification criteria.

21 psychologist’s diagnoses of attention deficit diso rder and obsessive compulsive disorder, which were also based in part upon test scores showing high levels of concern in those areas, as well as Student report and Parent’s report of history. This illustrates the extent to which the District psychologist felt it necessary to make his own determinations with regard to emotional diagnoses in which the DSM-IV was a predominant concer n to him, and how the psychologist’s reliance upon the DSM-IV criteria undercuts the reliability of his opinions and ultimate conclusions as to legally prescribed criteria for identification. Other Health Impairment In addition to Emotional Disturbance, Student ’s disabilities also meet the definition of “Other Health Impairment”. The IDEA regulations define this as “limite d strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the e ducational environment … due to ch ronic or acute health problems … .” 34 C.F.R.§300.8(c)(9). Student’s diagnosed condition of Dysautonomia fits this definition. The record shows preponderantly that this condition is a syndrome composed of multiple and variable symptoms, including inability to remain upright, chest and other pain, excessive fatigue, dizziness, fainting or near fainting, gastronomic problems, nausea, shortness of breath, anxiety, tremulousness, cognitive impairment, headaches and visual problems. Homebound teachers repeatedly described these symptoms as debilitating and interrupting instruction. At times Student could not receive instru ction in a seated position, but had to lie down. At times Student simply stoppe d being able to attend and had to sit or lie quietly for anywhere from fifteen minutes to an hour, thus interrupting teaching for that period of

22 time. Sometimes, Student experienced pain to the point that Student could not attend. At other times, Student would lose concentration moment arily. At times, Student would be unsteady on Student’s feet. I conclude that these symptoms of Student’s Dysautonomia constitute an Other Health Impairment within the meaning of the IDEA’s definition of disability. One homebound teacher, who was a ssigned to Student during th e relevant period in May and June of seventh grade and in October through December of eighth grade, directly contradicted the testimony of the other two home bound teachers. This teacher professed to have never seen any of Student’s asse rted symptoms and to have seen no need for Student to be on homebound instruction. The witness, relating personal observations, implied that Parent closely observed instruction sessions a nd behaved inappropriately by allowing close contact with Student while the witness was present for instruction purposes. I accord this witness’s testimony less weight than that of the other two homebound teachers, for four reasons. First, on cross examination it was brought out that the witness actually endorsed Student’s fatigue and need for scribing, corroboratin g symptoms reported by the other teachers. Second, this witness was present with Student over a smaller span of time, and thus had less opportunity to observe Studen t’s symptoms, which the record shows were variable in incidence and intensity over time. Third, the witness disclosed a disagreement with Parent that led the witness to quit the assignmen t, and indicated that the witness was a candidate for a job with the District, thus raising a question of witness’s objectivity. Finally, the witness’ account was contrary to diametrically opposed accounts that were corroborated by multiple sources. The District inappropriately ignored the bulk of the evidence of Other Health Impairment. It simply discarded three repo rts from Children’s Hospital of Philadelphia

23 describing Student’s Dysautonomia and Tourette ’s Syndrome. The District’s psychologist, acting at the direction of the S upervisor of Pupil Personnel Se rvices, determined that these reports were not sufficient evidence of disability because they were not the “reports of origin” – that is, they were not the reports that origina lly disclosed the diagnoses and the basis upon which the diagnoses had been made. Wh en asked to explain why “reports of origin” were needed, the psychologist explained that he had to be sure that the diagnoses reported in the reports of office visits given to the District were not merely parroting diagnoses related to the treating physicians through inaccurate data bases or Parent’s oral report9. I conclude that this explanation is insufficient, because it is implausible that CHOP would carry for years a false diagnosis for one of its patients. Moreover, the diagnoses were corroborated by the Student’s personal care physician in written requests for homebound services; in addition, the District ’s Director was able to speak to the physician to satisfy any remaining doubts, and could not give a plausible reason for continued doubt of the accuracy of diagnoses carried by a patient at CHOP, excep t the insinuation that this physician too was unreliable because of irregularities in the homebound request notes. There was some evidence suggesting that Parent was not a reliable historian, and that this was a reason for the District to be especially car eful to establish diagnos es provided to it in written reports or documents. Indeed, Parent in testimony did displa y some understandable inaccuracy in reporting details of the complex hi story of Student’s various diagnoses and doctor appointments. However, this alone, even if a reasonable concern for the accuracy of medical 9 The District makes much of the lack of documentati on on Dysautonomia, both becau se neither the original diagnosis report nor any updated reports were delivered to it, despite Parent’s agreement to deliver updated reports. The District’s emphasis on original diagnostic reports is discussed above. The need for updated reports is overemphasized in my judgment. The record is replete with corroborated reports of many of the debilitating symptoms of Dysautonomia, including thorough reports by the 2012 homebound teacher. Even if Student were not seeing CHOP doctors currently for these symptoms, it would not prove that Student was not experiencing them. The experience of the symptoms is the necessary fact for classification under the IDEA, and the District had sufficient evidence to show current experience of symptoms.

24 reports, does not plausibly underc ut the standing diagnoses of Tourette’s Syndrome and Dysautonomia, which are well supported and corroborated in the record. Adversely Affects Educational Performance Each of the definitions of disability in th e IDEA regulations requires a finding that the disability is so substantial that it advers ely affects educational performance. 34 C.F.R.§300.8(c)(4)(i), §300.8(c)(9)(ii). I conclude that the St udent’s Emotional Disturbance and Other Health Impairment both meet this standard. The most telling evidence is that the Student has been on homebound instruction almost entire ly for over three years, because of these impairments. I conclude that this alone is a deprivation of education and an impediment to accessing the curriculum, because Student is not receiving the educational benefit of learning with peers, socializing with them, working coll aboratively with them, and discussing material with them, as well as engaging in school-wide e ducational activities and receiving the learning experience of being taught by a variety of teach ers. Student is in the most restrictive environment possible for education, Student’s own home, and is not receiving full days of educational services. The record is preponderant also that the Student is on homebound instruction because of Student’s disabilities. Stude nt’s homebound teachers have obser ved Student’s symptoms of pain, swelling hands, tics, anxiety and corroborated both Student’s and parent’s reports that these occur frequently and disrupt St udent’s learning. Student’s fatigue and other physical symptoms are well documented in this record, and they keep Student at home on many days. Thus, there is no doubt that Student is being prevented by Student’s disability from accessing the curriculum of the District at Student’s grade level.

25 In Need of Specially Designed Instruction Finally, as part of the second IDEA test for disability, I conc lude that Student is in need of specially designed instruction and related serv ices. Specially designed instruction is defined as: [A]dapting, as appropriate to the needs of an eligible child … the content, methodology or delivery of instruction – (i) To address the unique needs of the child that result from the child’s disability; and (ii) To ensure access of the child to the genera l curriculum, so that the child can meet [agency] educational standards … . The record is preponderant that the Student’s disabilities require adapting at least the methodology or delivery of instruction to Student so that Student can access the full curriculum of the District and meet all Distri ct standards. In particular, su ch adaptation is needed so that Student can participate in the Di strict neighborhood school as much as Student’s disabilities will allow. In particular, the eviden ce shows that Student will need ad aptation of instruction and all educational opportunities provided to other students so that Student can receive partial or full days of instruction at home when symptoms do not permit Student’s participation in the neighborhood school. Student’s roster of classes will need to be adapted so that all classes needed for graduation will be taught at home wh en Student’s symptoms prevent Student from attending classes at school, and the times at wh ich these classes are delivered to Student will have to be adapted to work around sudden onse t of symptoms of ina ttentiveness that block Student’s participation in learning. Assistive technology, such as remote broadcast via internet may be needed. Properly certified teachers may have to go to Student’s home or other feasible locations to instruct. The pace of instruction may have to be modified as well, and extended school year or extended school w eek services may be necessary to permit a slower pace of

26 instruction without causing Student to fall behind th e pace of the rest of the class. Assignments may have to be redesigned, as the evidence s hows was recommended by private and District evaluators, to lessen unnecessary work-loads. Moreover, assignments may have to be redesigned to enable Student to participate in collaborative pr ojects as part of a cla ss, even when Student’s symptoms prevent attendance at school. Thes e modifications and adaptations may require itinerant or supplemental placement in instru ction in the home, rather than homebound instruction. I conclude that a ll of these adaptations meet the IDEA definition of specially designed instruction, in that they adapt the methodology or delivery of instruction. At the same time, curriculum may have to be adapted to explicitly teach Student skills needed to cope better with the pressures of school work, improve organization ( a need identified in the private evaluator report), self-regulate in ternal anxiety and thus minimize symptoms, allowing Student to be at school more often. A ny plan to maximize Student’s attendance at school will require a transition plan that is based upon a functional behavioral assessment of Student’s decisions about non-attendance, to identify the functions of such behavior and assist in planning a positive behavioral support plan to he lp Student chose school increasingly in the coming school year. Again, these curricular adapta tions meet the IDEA definition of specially designed instruction. In short, Student is in need of specia lly designed instruction in order to receive meaningful educational benefit at Student’s neighborhood school. In addition, the record shows preponderantly that Student is in need of related services in the form of occupational therapy and guidance counseling. Thus, Student is eligible for Special educatio n as a child with a disability who needs specially designed instruction by reason of Student’s disabilities.

27 The District argues that the Student’s n eeds can all be met with accommodations under section 504. This does not negate that the Studen t meets the definition of child with a disability under IDEA. The characterization of the above long list of possible needed adaptations of school procedures and methods as accommodations does not detract from the fact that they meet the literal definition of specially designed instruct ion. Nothing in the IDEA or its regulations suggests a legal distinction between accommodati ons and specially desi gned instruction; it follows that an accommodation can also be specially designed instruction. Moreover, the record undercuts the District ’s argument that Student’s needs can be met with a section 504 service agreement. Prepondera ntly, the evidence is that Student’s needs are not being met, precisely because Student is not classified under the IDEA. Student receives only five to ten hours per week of instruction 10 under regular education “homebound” status; indeed, the status itself is not designed for long term inst ruction of a child with a disability, and I do not accept the suggestion that five hours per week of in struction is sufficient to provide Student with meaningful educational benefit, let alone, in section 504 terms, e qual access to and benefit of all of the educational services that the District o ffers. Moreover, the Dist rict has not implemented the entire section 504 service agreement in the home, by its own admission. Thus, not all accommodations agreed upon by the parties were 11 being delivered to student on homebound status. 10 One witness, the 2012 homebound teacher indicated that services were provided five hours per week. Another witness, a homebound teacher in seventh and part of eighth grade, tes tified that services were provided for five to ten hours per week. 11 The record shows that the District has terminated homebound status and so for months Student has not received any services while not in sch ool. This further illustrates that Student ca nnot receive meaningful educational benefit in regular education.

28 FAILURE TO OFFER OR PROVIDE A FAPE 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 (3 rd Cir. 2009), see Souderton Area School Dist. v. J.H., Slip. Op. No. 09-1759, 2009 WL 3683786 (3d Cir. 2009). “Meaningful benefit” means that an eligib le child’s program affords him or her the opportunity for “significant learning.” Ridge wood Board of Educati on v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). In order to provide FAPE, the child’s IE P must specify educational instruction designed to meet his/her unique need s and must be accompanied by such services as are necessary to permit the child to benefit from 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 elig ible student is denied FAPE if his or her program is not likely to produce pr ogress, or if the program afford s 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).

29 However, a school district is not necessari ly 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 Ar ea School District v. Scott P., 62 F.3d 520, 532 (3d Cir. 1995). Whether the IEP meets this test must be judge d in light of the IDEA’s mandate that an IEP must address all of a student ’s educational needs. 20 U.S.C. § 1414(d)(1)(A)(i)(I)(bb). 34 C.F.R. §300.320(a)(2). Whether a FAPE has been o ffered must be judged in light of the child’s unique constellation of educational needs, Bo ard of Education v. Rowley, 458 U.S. 176, 181-82, 102 S.Ct. 3034, 1038, 73 L.Ed.2d 690 (1982), and the child’s intellectual potential, Shore Reg’l High Sch. Bd. Of Ed. V. P.S., 381 F.3d 194, 198 (3d Cir. 2004). The law requires only that the plan and its execution 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. 141 9, 134 L.Ed.2d 544(1996)(appropriateness is to be judged prospectively, so that lack of pr ogress does not in and of itself re nder 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 the time at which the offer was made. D.S. v. Bayonne Board of Education, 602 F.3d 553, 564-65 (3d Cir. 2010). I conclude that the District failed to provide Student wi th a FAPE under both the IDEA and section 504 12 during the relevant periods in sevent h, eighth and ninth grades, for reasons 12 Although Student allegedly reported to Parent that the District failed to implement the 504 plans during the relevant period of time, this evidence was not prepondera nt. There was credible evid ence that District teachers implemented the plans, and I find that that evidence outweighed Parent’s testimony on that score. Nevertheless, the plans did not provide the services that Student needed to enable Student to return to school, resulting in Student’s

30 discussed above. The District failed inappropriately to iden tify Student during those years, although it was on notice that Student was a child w ith a disability in need of special education and related services. In stead, the District relegated Student to homebound status with a section 504 plan that included an unusually large numbe r of adaptations and accommodations. Student thus received about five hours per week of instru ction at home in less th an ideal instructional circumstances. Student was deprived of Student ’s right to education in the least restrictive setting when able, with its many educational be nefits including discussion, socialization and collaboration with peers and instruction through a variety of teachers. Student exhibited slow progress during these years, despite an above average to superior tested cognitive ability. On the record as a whole, therefore, th e District’s failure to comply with its Child Find obligations deprived Student of meaningful educational benefit in seventh and eighth grades. COMPENSATORY EDUCATION Compensatory education is an appropriate remedy when a school district has failed to provide a student with a FAPE. Lester H. v. Gilhool, 916 F.2d 865, 781-783 (3d Cir. 1990). I conclude that the District should provide Student with compensatory education; therefore, I must determine the nature and amount of compensato ry education to be provided. Compensatory education is an equitable remedy ordered for th e purpose of replacing the educational services that should have been provided. Ibid. This can be either an hour by hour compensation or restoration of the student to th e position student would have been in if appropriate educational services had been provided. The record in th is matter contains no evidence showing what inordinately long tenure in homebound instruction. There was no emotional support and there was no behavior support plan to support Student in transitioning to full time education in school. There was no accommodation to enable Student to participate remotely in classes or othe rwise participate in collabora tive activities with peers. Student was thus deprived of access to and equal benefit from the District’s services.

31 position the Student would have been in if pr ovided with a FAPE during the relevant time period; therefore, I conclude that compensatory education s hould be measured on an hourly basis. A reasonable period must be accorded for rec tification of the problem. M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 397 (3 rd Cir. 1996), cert. den. 519 U. S. 866 (1996). In the present matter, I conclude that the District is entitled to a period for r ectification within the relevant time period, from the firs t day of school in 2010 to Febr uary 2, 2011, when the District issued its evaluation report 13 that inappropriately failed to id entify Student as a child with a disability under the IDEA, while Student was al ready on homebound instruction. Thereafter, in accordance with my conclusion that the District denied Student a FAPE, I will order appropriate relief in the form of compensatory education. Be cause the record is devoid of evidence as to the position that Student would have been in if FAPE had been provided, any order for compensatory education will be on an hour by hour basis, with consideration of equitable adjustments. I take into consideration that Student was at home at Parent re quest, due to increased symptoms of Student’s disabilities; therefore, it cannot be said that the District deprived Student of full days of educational services. Rather, Student was unable to attend school for much of the time during which Student was on homebound instruction. Neverthe less, I have concluded that 13 In this I take into consideration the Third Circuit’s cau tion in D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012),in which the Court noted that some disabilities are notoriously hard to diagnose and therefore the failure to diagnose at the earliest possible moment is not per se ac tionable. Here, the District was on notice before the start of the school year that Student had a disability, yet did not refer Student for evaluation. When pressed for an IEP by Parent in the beginning of the seventh grade school year, the District first referred Student to a screening process called a child study team, which decided not to evaluate. It was not until February of Student’s seventh grade year, after Parent’s explicit request to evalua te, that an evaluation was produced. By then, I conclude, the District had sufficient evidence to identify Student, but failed to do so. I have allowed this period of over five months of seventh grade as a rectification period in light of the record that the Student’s symptoms were variable and sometimes subtle or not detectable, thus requiring more time for recognition, but I conclude that these symptoms should have been recognized by February 2011, when Student was on homebound status because of those symptoms. Nothing in D.K. precludes these conclusions.

32 the District, as part of the IEP for which Student was eligible, should have adapted the curriculum and methods of delivery of instruc tion to include Student more in classroom instruction, whether through remote participation or other adapted delivery of services such as discussions with peers and presentations to p eers. Curricular adaptation should also have included direct teaching of skill needed by Student to regulate anxiety and fatigue in the school setting. I also have concluded that the District s hould have provided St udent with related services such as emotional support services. Ther efore, I will order the Di strict to provide three hours per school day of compensatory educatio n, representing two hours per day of increased participation in classroom activities and one hour per day of either direct teaching of skills needed to overcome Student’s anxieties and fa tigue in a school setting or related services, including counseling and other emotional supports. The record shows preponderantly that the Student received a bout five hours per week of instruction in the home in seve nth and eighth grades, and five to ten hours per week in ninth grade. There is no reason in the record to diminish the value of these services to the extent that they were provided. Therefore, compensatory education will be reduced by these amounts of services rendered. CREDIBILITY I find that the Parent’s testimony was credib le and reliable with re gard to the central concern that Student suffered sy mptoms and exhibited behaviors at home qualifying Student for identification under the IDEA, because this tes timony was corroborated by credible witness with adequate personal knowledge of Student’s day to day behavior. However, I accorded reduced

33 weight to much of Parent’s testimony with regard to details of Student’s medical history, due to inconsistencies with the record and Parent’s repeated inability to clearly remember the history. As to Parent’s reports of St udent’s symptoms, the District introduced evidence apparently to show that these were either generated or ex aggerated by Student’s Pa rent. I find that the evidence about Parent’s behavior and inconsis tencies is insufficient to undercut Parent’s assertions that Student was in fact suffering from disabilities. Parent’s assertions were consistent with the record in that Parent dated the onset of symptoms to late in th e sixth grade school year or early in seventh grade. Parent’s report s of symptoms were co rroborated by Student’s responses on behavior and symptom inventories that the District’s psychologist determined to be reliable. They were corroborated also by th e homebound teacher who spent the most teaching time with Student. I accorded reduced weight to the school ps ychologist’s testimony for reasons stated above, and I accorded reduced weight to the statemen ts of District teachers to the effect that Student did not exhi bit symptoms of Student’s disabilities, or did not need specially designed instruction. Most of this testimony was from teachers who saw Student only for the first few days of school in various years (while Student was presumably experiencing less of Student’s variable symptoms of fa tigue and tension), and w ho were dealing with the start of the year for a full class of students (thus giving them if anything less opportunity to observe Student’s changing and often subtle sings of need). CONCLUSION I conclude that the District failed to comp ly with its obligations under IDEA child find, as a result of which it deprived Student of a FAPE under both the IDEA and section 504. I

34 will order the District to identif y Student as a child with a di sability under the categories of Emotional Disturbance and Other Health Impa irment, to commence educational planning accordingly, to provide an initial evaluation at public expense, and to provide compensatory education to the Student. Any claims regarding issues that are encompassed in this captioned matter and not specifically addressed by this decision and order are denied and dismissed. ORDER 1. Student is a child with a disability as defined in the IDEA. 2. The District failed inappropriate ly to identify Student as a child with a disability under the IDEA from February 2, 2011 until December 13, 2012. 3. The District failed to offer or provide Stude nt with a FAPE under the IDEA and section 504 from February 2, 2011 to December 13, 2012. 4. I hereby order the District to identify Student as a child with a disability under the categories of Emotional Disturbance and Other Health Impairment. Within twenty days of the date of this decision, the District sha ll convene an IEP team meeting to develop an interim IEP pending further evaluation. 5. I hereby order the District to provide an independent educ ational evaluation at public expense, which shall be comprehensive of a ll suspected disabilities and shall otherwise comply with all of the requirements of the IDEA for initial evaluations, to be delivered within sixty calendar days of the date of this order. The evaluator shall be selected by the Parent at the usual and customary rates paid by the District for educational evaluations of the scope required by this order. 6. Within thirty days of receipt of the indepe ndent evaluation ordere d herein, the District shall convene an IEP meeting to develop an appropriate IEP for Student in consideration of the independent evaluation ordered herein. 7. I hereby order the District to provide compensatory educatio n to Student in the form of any remedial or educational instruction or service that addresses Student’s educational needs with regard to academic achievement at the secondary school level of curriculum, regulation of anxiety, fatigue and emotions in the school se tting, behavior control and regulation, or physical, occupational or psychological therapy.

35 8. The District shall provide this compensatory education in the amount of three hours for every day in which school was in session from February 2, 2011 through December 13, 2012, subtracting from that amount a total representing homebound instruction delivered during that period, calculated as five hours per week from February 2, 2011 to the last day of school in June 2011, five hours pe r week throughout the 2011-2012 school year, and ten hours per week from the first da y of school in the 2012- 2013 school year until December 13, 2012. 9. The above services shall be provided by inst ructors selected by Pa rents and qualified to provide the services described above. The cost of such services shall be limited to the comparable cost that the District would incu r to provide such services through qualified instructors, including salary and fringe bene fits. The services may be provided at any time, including after school hours or in the summer, until Student reaches 21 years of age. William F. Culleton, Jr. Esq. _____________________________ WILLIAM F. CULLETON, JR., ESQ. HEARING OFFICER April 5, 2013