Upper Merion Area School District | Case 18798-16-17 | 2017-03-31

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: S.C. Date of Birth: [redacted] ODR No. 18798-1617-AS OPEN HEARING Parties to the Hearing: Representative: Parent[s] Joseph W. Montgomery, Esquire Montgomery Law LLC 1420 Locust Street, Suite 420 Philadelphia, PA 19102 Upper Merion Area School District Mark W. Fitzgerald, Esquire 435 Crossfield Road Fox Rothschild LLP King of Prussia, PA 19406 10 Sentry Parkway, Ste. 200 P.O. Box 3001 Blue Bell, PA 19422-3001 Date of Hearing: March 17, 2017 Date of Decision: March 31, 2017 Hearing Officer: William F. Culleton, Jr., Esq., CHO

1 INTRODUCTION AND PROCEDURAL HISTORY The child named in this matter (Student)1 is a high school aged resident of the District named in this matter (District). The District has placed Student in a private school (School) for one calendar year, as disciplin e for Student’s illicit possession of a knife and District property i n school. Student is not identified as a child with a disability under the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA). Nevertheless, Parents have requested due process, asserting that the District knew of Student’s disabili ty before Student’s violation, thus entitling Student to IDEA protections pursuant to 20 U.S.C. §1415(k)(5)(Protections For Children Not Yet Eligible For Special Education And Related Services). Parents seek a manifestation determination, a finding that th e School is an inappropriate placement, and orders permitting participation in extracurricular activities and expediting a District-proposed evaluation , 20 U.S.C. §1415(k)(5)(D)(ii). The District denies any basis of knowledge that the Student was a child with a disability. In the alternative, it argues that its placement is appropriate and that acceleration of the pro posed evaluation is inappropriate because , among other things, Parents have not returned a signed NOREP. The hearing was conducted and concluded in one session. I have determined the credibility of all witnesses and I have considered and weighed all of the evidence of record. I conclude that the District had a basis of knowledge that Student was a child with a disability before the behavior 1 Student, Parents and the respondent District are named in the title page of this decision and/or the order accompanying this decision; personal references to the parties are omitted here in order to guard Student’s confidentiality. Reference to Parent in t he singular refers to Student’s Mother, who engaged in most of the communications and transactions discussed here.

2 that led to the disciplinary placement at the School, and I enter an order that applies the protections available under the IDEA. ISSUES 1. Did the District have knowledge that the Student was a child with a disability , as defined in the IDEA and its implementing regulations, prior to the conduct for which it transferred Student to the School? 2. Is the District required to conduct a manifestation determination , and should the hearing officer order it to do so? 3. Is the School an appropriate placement for Student pursuant to the requirements of the IDEA? 4. Should the duration of the placement at the School be limited to 45 days? 5. Is Student entitled by law to participate in extracurricular and after -school activities on District premises and should the heari ng officer issue an order to permit such participation and access? 6. Should the hearing officer order the District to expedite the proposed evaluation? FINDINGS OF FACT 1. Student is a high school aged resident of the District. (S 2, 3.) 2. Student is not identified as a child with a disability under the IDEA. (NT 16-17, 177.) PARENTAL CONCERNS EXPRESSED WHEN STUDENT WAS IN NINTH GRADE 3. In ninth grade, Student exhibited a pattern of lateness to a degree that it was of concern to educators and Parents. (NT 67-68, 131; P 12.) 4. In April 2015 , Parent wrote to Student’s school counselor by email message that she suspected that Student was struggling with Attention Deficit Disorder (ADD), Inattentive type, and that he needed extra help and encouragement to learn study skills, organizational skills, and better communication skills with teachers. She also stated that Student needed cues to stay on task in class. (S 10 p. 17.) 5. In response, Student’s school counselor recommended that Parent pursue a medical diagnosis of ADD, and encourage Student to attend a supervised study hall after school, where a special education teacher could help Student with mathematics and organization. In addition, the counselor offered to help student with time management and assignment

3 completion. In addition, the counselor offered to refer Student to the District’s Instructional Support Team (IST), which is sometimes used as a pre -screener for special education classes. (S 10 p. 16.) 6. Parent responded further that she did not believe that Student needed special education due to Student’s high intelligence, but that Student needed extra help or tutoring in mathematics. In subsequent email messages, Parent supported the counselor’s efforts to explain to Student that extra help did not imply a lack of intelligence; Parent reiterated that Student would not accept help if labelled “special education”. In addition, Parent advised the counselor that Parents had referred Student to a local pediatric hospital for a neurological evaluation. (NT 80-81; S 10 pp. 6-17.) 7. At the time, Parent did not understand the legal and current educational definitions of “special education”. (NT 220-221.) 8. In April 2015, the school counselor referred Student for the Instructional Support Team (IST). This team includes an assistant principal. (NT 91-92; S 10 p. 4.) 9. In April 2015, o ne of Student’s teachers forwarded an email message from Parent to an assistant principal; the email message indicated Parents’ concern that Student might exhibit symptoms of ADD interfering with Student’s school work. (NT 171-174.) 10. One purpose of the IST is to pre-screen to determine the need for an evaluation for special education. (NT 175-176.) 11. Student received intervention through the District’s Instructional Support Team in May 2015. The IST case manager and Student produced a plan to address Student’s lack of academic effort, including supervised study at school. (NT 96-98; S 3.) 12. In June 2015, Student’s teachers filled out information forms for the neurological evaluation. (NT 95-96; S 11 p. 1.) PARENTAL CONCERNS EXPRESSED WHEN STUDENT WAS IN ELEVENTH GRADE 13. In September 2016 through February 3, 2017, Student displayed a behavior of frequent lateness for homeroom class. From January 2017 through February 3, 2017, Student was frequently late for first period [class]. (NT 68-69, 181-183; S 18, 19.) 14. During the same period, Student incre asingly displayed a pattern of not participating in class, failing to complete assignments and telling Parents that Student did not understand the directions for assignments. Parents expressed concern to teachers about this pattern of behavior, Student’s pattern of lateness and Student’s overall lack of motivation. (NT 136- 137, 233-234; P 11 pp. 29-44.) 15. In October 2016, Student’s mathematics teacher forwarded an email to the assistant principal about Student’s work refusal during class. (P 11 p. 38.)

4 16. In January 2017, Father advised Student’s then-current counselor that Parents were sending Student to a counselor in view of Student’s near-complete withdrawal from the educational process. Also in January 201 7, Parents advised Student’s counselor that they w ere concerned about Student’s precipitous decline in school performance, and that Student was seeing a counselor privately. Parents asked the school counselor for any suggestions or strategies that the District could provide in view of these concerns. (NT 142-144, 235-236; S 13 p. 1.) 17. Student’s school counselor indicated to Parents that she would look into providing Student with individualized counseling to address the concerns that Parents had expressed. (NT 142-146; S 13 p. 3.) 18. In January 2017, Student’s teacher expressed concern to the assistant principal about Student’s pattern of lateness to that teacher’s class, and its effect upon Student’s performance in that teacher’s subject. (NT 181, 183-185.) DISTRICT’S PLACEMENT OF STUDENT AT THE SCHOOL 19. On February 3, 2017, Student was in possession of a knife at least two and one half inches in length, which constitutes a weapon as defined by the ID EA’s “special circumstances” rule. Student was also in possession of materials belonging to the District. (NT 34-35, 59; S 8, 9, 15 p. 3, 17 p. 3-4, 27.) 20. The District placed Student in the School for one calendar year, as a disciplinary consequence of Student’s violation of the District’s code of student conduct. (S 9 p. 6.) 21. The School is a specialized educational setting for students who violate school disciplinary rules, accepting such students on temporary bases as required. (NT 194-200, 292-293.) REQUESTS FOR EVALUATION 22. On February 10, 2017, Parents requested an Independent Educational Evaluation (IEE). (S 5.) 23. On February 13, 2017, the District issued to Parents an Evaluation Request form. (S 4.) 24. On February 17, 2017, the District issued a Notice of Recommended Educational Placement/Prior Written Notice form (NOREP) denying Parents’ request for a n IEE on grounds that it had not yet had an opportunity to evaluate Student. (S 5.) 25. On March 1, 2017, the District sent Parents a Prior Written Notice for Initial Evaluation and Request for Consent form, proposing to conduct an evaluation and soliciting parental consent for the proposed evaluation. (S 7.)

5 26. On March 9, 2017, the District offered to complete the proposed evaluation by March 31, 2017. At that point, Parents had not consented to the evaluation. (S 29.) CREDIBILITY 27. Parents engaged a psychiatrist to evaluate Student for purposes of the present due process matter. The expert, due to time constraints in this expedited matter, did not obtain any data directly from the District, nor did the expert interview any personnel of the District. (NT 124-125; P 15.) 28. Parents obtained a private evaluation by a certified and experienced school psychologist. The psychologist did not have enough information to render an opinion as to the appropriateness of the School as a placement for Student. (NT 287, 299-300, 309, 345.) 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 more essential consideration is the burden of persuasion, which determines which of two contending 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 moving party must produce a 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). 3A “preponderance” of evidence is a quantity or weight of evidence that is greater than the quantity or weight of evidence produced by the opposing party . See, Comm. v. Williams, 532 Pa. 265, 284-286 (1992). Weight is based upon the persuasiveness of the evidence, not simply quantity. Comm. v. Walsh, 2013 Pa. Commw. Unpub. LEXIS 164.

6 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 evidence 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 rules, the burden of persuasion rests upon the Parents, who initiated the due process proceeding. If the Parents fail to produce a preponderance of the evidence in support of Parents’ claim, or if the evidence is in “equipoise”, the Parents cannot prevail under the IDEA. 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 carefully listened to all of the testimony, keeping this responsibility in mind, and I reach the following credibility determinations. I found little to question the credi bility of the witnesses. I found Student’ s Mother to be credible, despite some venting of frustration and defensiveness. On the whole, as a witness, Student’s Mother, in demeanor and in her way of answering questions, demonstrated a willingness to provide the whole truth as she remembered it, and to acknowledge facts that seemed contrary to her interests as a litigant. Therefore I find her credible.

7 District personnel who testified exhibited similar traits on the whole. They seemed somewhat more guarded, an d some of their answers contradicted the documentary record. Nevertheless, taking their responses as a whole, I find no reason to find them lacking in credibility. Therefore, I accord their testimonies full weight. Parents called a psychiatrist to testify. I conclude that this witness, in testimony, demonstrated a much more balanced approach than his repor t suggested. The latter was rep lete with statements that were so extremely negative to the District that one questioned the psychiatrist’s objectivity. This witness offered no material testimony of any weight, because the witness had obtained no information or data from the District, whose services he criticized severely. While he observed the School and obtained responses from Student about it, he did not support Parents’ argument that the School is an inappropriate placement. I accord this testimony less than preponderant weight, because the written report undercut the witness’ credibility. Parents called a certified school psychologist to render an opinion on Student’s disabilities. This witness was most credible, but offered no opinions on the issues that are material to the limited range of questions to be decided in this expedited matter. The psychologist did not support Parents’ argument that the Schoo l is an inappropriate placement. He did support their argument that any school evaluation could be expedited, by indicating that, in his experience, a public school evaluation can be completed within two to three weeks. PROCEDURAL PROTECTIONS FOR STUDENTS SUBJECTED TO DISCIPLINARY EXPULSION The IDEA, 20 U.S.C. § 14 15(k) and its implementing regulations , 34 C.F.R. §300.530 - 534, provide specific protections to eligible students who are facing a change in placement for disciplinary reasons. A child who has not been determined to be eligible for special education and

8 related services may assert the same protections afforded to children with disabilities under certain circumstances. 20 U.S.C. §1415(k)(5); 34 C.F.R. §300.534(a). Such protect ions apply if the school district had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 20 U.S.C. §1415(k)(5)(A); 34 C.F.R. §300.534(a). The law specifies that a school district can be deemed to have had such knowledge under certain defined circumstances. The school district is deemed to have had such knowledge if: 1) the student’s parent expressed to the teacher or to supervisory or administrative personnel, a written concern that the child was in need of special education and related services; 2) the student’s parent requested an evaluation; or 3) the child’s teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by the child, either directly to the director of special education or to other supervisory personnel of the agency. 20 U.S.C. §1415(k)(5)(B); 34 C.F.R. §300.534(b). Parents argue that the statute’s protections for children not determined to be eligible are triggered by a hearing officer’s determination that the local education agency either knew in fact that the child met the IDEA definition of an eligible child, or w as on notice of that fact. Parents argue that the “deeming” language of 20 U.S.C. §1415(k)(5) (B) is not the exclusive way to determine whether or not the agency had knowledge that the child was a child with a disability as defined in the IDEA. I disagree, and conclude that, read as a whole, and in view of the language of the implementing regulation, the statute’s “deeming” language is the exclusive way in which to determine agency knowledge for purposes of this sub-section. While 20 U.S.C. §1415(k)(5) (A) protects non -eligible students “if the agency had knowledge … that the child was a child with a disability …”, it specifies how to determine such knowledge. The statute specifies that such determination must be “in accordance with this

9 paragraph”. This reference plainly refers to paragraph 5 of 20 U.S.C. §1415(k). This is confirmed by the implementing regulation at 34 C.F.R. §300.534(b), which specifies that agency knowledge must be determined through the three tests set forth in sub-paragraph (b) of that sub-section. Thus, the language, structure and agency implementation of this section all compel the conclusion that agency knowledge is not an open -ended determination at the discretion of the hearing officer or court. Rather, it is limited to applying the three tests set forth in subsection (b) of regulation section 300.534. THE DISTRICT HA D KNOWLEDGE THAT THE STUDEN T WAS A CHILD WITH A DISABILITY I conclude that the evidence preponderantly proves that the first of the three sub-paragraph (b) tests is met : that the Parent expressed written concern to a teacher and to administrative personnel that the Student was in need of special education and related services. 34 C.F.R. §300.534(b)(1).4 Here, Parent provided numerous written email communications to teachers, Student’s guidance counselor and responsible administrators , both in Student’s ninth grade year and in Student’s eleventh grade year, all before the Student’s violation of District conduct rules . These messages repeatedly stated Parents’ concerns that Student was manifesting a suspected disability that impacted Student’s education. They raised the possibilit y of attention deficit disorder. They described patterns of behavior that they feared were caused by the suspected disabilities, including extreme habitual lateness, seeming inability to understand and comply with directions to complete school assignments, and repeated lack of attention to tasks in the classroom. Repeatedly, Parents asked for help from Student’s teachers, counselors and administ rators. I 4 I find that teachers on two occasions expressed their own concerns to an administrator about a pattern of Student’s behavior. (FF 9, 18.) In view of my conclusions as to Parent’s expressions of concern, I need not and do not reach the question whether or not these teacher expressions met the third statutory test for Distri ct knowledge of Student’s disability, 34 C.F.R. §300.534(b)(3).

10 conclude that , by these messages, Parents “expressed concern in writing to [supervisors or teachers] that Student was in need of special education and related services” prior to the disciplinary incident. 34 C.F.R. §300.534(b)(1) The District argues that most of these communications occurred two years and more before the conduct that led to Student’s disciplinary placement at the School in February 2017. It argues that these communications were too remote in time to satisfy the first test of agen cy basis of knowledge under 34 C.F.R. §300.534 (b)(1). This argument must fail because the statute and regulation do not have a remoteness limitation for the first test; the only temporal requirement is that the communication shall have occurred before the conduct resulting in discipline. 34 C.F.R. §300.534(b).5 Therefore, I conclude that the Parents’ written comments during Student’s ninth grade year can serve as a basis of agency knowledge even though they occurred two and more years before the Student’s illicit conduct on February 3, 2017. Notwithstanding the above conclusion, there is ample evidence that Parents expressed concerns that Student needed special education and related services as late as one month or less before the disciplinary incident. In January, 2017, Parents engaged in communications with educators that brought up suspected disability, posited disability as a cause of patterns of escalating behavior interfering with learning, and asked for any kind of help that the educators could provide. These more recent parental pleas for help in the broadest terms constituted expressions of concern that Student needed special education. This is especially true in view of the explicit discussions of special education between Parent and the Student’s c ounselor during Student’s ninth grade year. 5 The Department of Education, in response to comments to the proposed predecessor regulation, 34 C.F.R. §300.527(b), declined to add a remoteness limitation to the regulations’ subsection (c) for this very reason. 64 F.R. 46727 (August 16, 2006). Although this was an interpretation of a different subparagraph of the statute, the Department’s reasoning is the same as that employed regarding the parental expression of concern criterion at issu e here. Like the Department, I will not interpolate a remoteness criterion without statutory authority.

11 Thus, the District’s remoteness argument does not contradict my conclusion that the first IDEA criterion is met for finding District knowledge that Student was a child with a disability. The District argues that Parents’ communications never explicitly asked for special education – indeed, when Student resisted intervention in 2015, Parent urged the school counselor not to press “special education”, although Parent continued to ask for special, individualized interventions regarding Student’s lateness, motivation, organization, attention and performance. The District makes this argument despite the fact that Parent credibly testified that she is unschooled in educational terminology, and completely misunderstood what special education is, thinking that it is only the provision of slower-paced instruction for children with low cognitive ability. The statutory and regulatory phrase for the first test in 34 C.F.R. §300.534(b) is “that the child is in need of special education and related services.” While this language may seem to require an explicit parental statement expressly referencing special education, I conclude that this phrase in the statute and regulation does not demand a parent’s use of a specific formula in order to express concern that the child needs special education. I find three reasons for this conclusion. First, the word “concern” points to an expression that can be non-specific; this contradicts the notion that the parental communication must be definitive or explicit. Second, it is unreasonable to conclude that the drafters of this language intended to require all parents – even uneducated, unsophisticated parents with no knowledge of education or the law - to utter specific words or express their concerns in technical terms in order to invoke the protections of this section. Third, the Department of Education, in comments to the same language in a predecessor regulation, indicated that the communication does not need to expressly state that the child is in need of special education. 64 F.R. 12628 (March 12, 1999)(not

12 indicating need for specific terminology, Department instead indicates that expression of concern must contain enough information to indicate need for special education). In short, the language in 34 C.F.R. §300.534(b)(1) cannot be read as stringently as the District would insist. In any event, Parents’ written expressions literally did ask for special education and related services, as those two terms are defined in the IDEA. Parents asked for individualized instruction and modifications of the schedule for and method of delivery of educational services, to meet the individual needs of Student, thus asking for what the IDEA defines as “special education”. 34 C.F.R. §300.39(b)(3)(“adapting the … methodology or delivery of instruction .. to meet the unique [disability related] needs of the child … .”) In addition, Parents asked for related services by requesting individualized counseling for Student. 34 C.F.R. §300.34(c)(2)(counseling). That they may not have used the words “special education” does not diminish the plain fact that they requested services that the regulations define to be special education. In sum, Parents communicated concerns in writing that Student was in need of special education and related services. Consequently, Student is entitled to the protections of the IDEA with regard to the District’s decision to place Student in the School. It remains necessary to determine what if any protections the IDEA provides to Student regarding this placement. THE DISTRICT IS NOT OBLIGATED TO CONDUCT A MANIFESTATION DETERMINATION Parents stipulated that Student, by bringing a penknife to school, was in possession of a weapon as defined in the “special circumstances” subparagraph of the IDEA regulations. 34 C.F.R. §300.530(g). This subparagraph provides that when a student is in possession of a weapon, the local education agency is authorized to change the student’s placement “to an

13 interim alternative educational setting” without conducting a manifestation determination. 34 C.F.R. §300.530(g). There is no disagreement in this case that the School constitutes such a setting. Indeed there was uncontroverted testimony to that effect. Therefore, the IDEA’s protections (accorded to Student by reason of the District’s deemed knowledge of Student’s need for special education and related services) do not include a manifestation determination in the circumstances of this matter. Therefore, I will not order the District to perform a manifestation determination. PARENTS FAILED TO PROVE THAT THE SCHOOL IS AN INAPPROPRIATE PLACEMENT FOR STUDENT I do not find p reponderant evidence on this record that the School is an inappropriate placement for Student. Although Parents’ private psychiatrist -witness had visited t he School, he was unable to provide an opinion of preponderant weight that the School was inappropriate for Student, even considering the conceivable impact of that placement on Student’s self-esteem and diagnosed depression. Nor could the Parents’ private psychologist-witness provide an opinion on that question. Neither of these witnesses had enough information (due to the urgency of and limited time available for their evaluations in this expedited matter) to provide a preponderant body of evidence with regard to the appropriateness of the School. Therefore, I do not conclude that the School is an inappropriate placement. STUDENT’S PLACEMENT AT THE SCHOOL IS LIMITED TO FORTY -FIVE SCHOOL DAYS The same section of the regulation that absolves the District of an obligation to conduct a manifestation determination also limits the time for which a child can be placed in such a setting.

14 It authorizes placement in such a setting for “not more than 45 school days”. 34 C.F.R. §300.530(g). Therefore, as Student is protected pursuant to 34 C.F.R. §300.534, Student must be returned to Student’s previous placement on the 46th school day after Student’s first day at the School. EXTRACURRICULAR AND AFTER-SCHOOL ACTIVITIES The IDEA and its regulations do not explicitly address the District’s authority to bar Student from extracurricular and after-school activities on District premises during the 45 school day placement at the School. Parents have failed to show preponderant evidence that the Student’s preclusion from such activ ities is seriously detrimental to Student’s mental health or ability to benefit from the services offered in the 45 day placement, nor is there any evidence that such preclusion deprives Student of appropriate educational progress or meaningful educational benefit. Therefore, I will not order Student admitted to any such activities prior to Student’s return to the District after the 45 school day period of removal to the alternative educational setting. EXPEDITED EVALUATION The IDEA requires that an evaluation requested during a period of disciplinary change of placement be expedited . 34 C.F.R. §300.534(d)(2)(i). In this matter, the District has requested parental permission to evaluate for special education during the legally specified period. Consequently, I order it to expedite the proposed evaluation. Parent’s experienced private school psychologist suggested that an evaluation could be done within two to three weeks. (NT 295 -296.) However, Parents have not provided written

15 consent to evaluation yet. Th erefore, I will order expedited evaluation within three weeks of the District’s receipt of Parents’ written consent. CONCLUSION For the reasons set forth above, I conclude that the District had knowledge that Student was a child with a disability, as defined in – and only for purposes of the protections provided by - 34 C.F.R. §300.534(b)(1). Therefore, I order the District to return Student to Student’s previous educational setting in the District’s high school after the expiration of the statutory 45 school day period of removal to an alternate educational setting. I also order the District to expedite the proposed evaluation from the date of its receipt of written parental consent. I decline to enter orders that Parents request concerning the appropriateness of the School, manifestation determination and extracurricular activities. ORDER In accordance with the foregoi ng findings of fact and conclusions of law, it is hereby ORDERED as follows: 1. The District shall return Student to Student’s previous educational setting in the District’s high school no later than the 46th school day after Student’s first day at the School. 2. The District shall expedite the proposed evaluation of Student for special education eligibility and services by delivering an Evaluation Report to Parents within three calendar weeks of the District’s receipt of Parents’ written consent to evaluate Student. It is FURTHER ORDERED that nothing in this decision and order shall preclude the parties from reaching an agreement to alter the terms hereof.

16 It is FURTHER ORDERED that any claims that 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 March 31, 2017