Warren County School District | Case 15910-14-15 | 2015-05-22

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: G.D. Date of Birth: [redacted] Dates of Hearing: April 1, 2015 April 13, 2015 April 15, 2015 CLOSED HEARING ODR Case # 15910-1415KE Parties to the Hearing: Representative: Parent[s] Christopher Elnicki, Esquire 428 Forbes Avenue / Suite 700 Pittsburgh, PA 15219 Warren County School District Thomas Lent, Esquire 6820 Market Street 717 State Street / Suite 701 Russell, PA 16345 Erie, PA 16501 Date Record Closed: May 4, 2015 Date of Decision: May 22, 2015 Hearing Officer: Jake McElligott, Esquire

2 INTRODUCTION Student 1 is a late teen-aged student who resides in the Warren County School District (“District”). The parties do not dispute that the student qualifies as a student with a disability under the terms of the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEA”) and Pennsylvania special education regulations (“Chapter 14”) as a student with autism and visual impairment.2 However, the parties dispute the appropriateness of the District’s programming for the student over the 2012-2013, 2013-2014, and 2014-2015 school years. Parents claim that the student was denied a free appropriate public education (“FAPE”) and seek compensatory education as a remedy. The District counters that, at all times, it met its obligations to the student under IDEA/Chapter 14. Consequently, the District claims that no remedy is owed. For the reasons set forth below, I find in favor of the parents and student. 1 The generic use of “student”, rather than a name and gender-specific pronouns, is employed to protect the confidentiality of the student. 2 It is this hearing officer’s preference to cite to the implementing regulations of the IDEIA at 34 C.F.R. §§300.1-300.818. See also 22 PA Code §§14.101-14.162. [redacted]

3 ISSUES Did the District provide FAPE to the student under its IDEA obligations in the 2012-2013, 2013-2014, and/or 2014-2015 school year(s)? If not, is compensatory education owed to the parents/student? FINDINGS OF FACT 1. In November 2003, during the student’s 1st grade year, the student was initially identified by the District as a student with autism and visual impairment. (School District Exhibit [“S”]-4). 2. As of May 2010, the end of the student’s 7th grade year, the student had undergone a functional behavior assessment (“FBA”) which resulted in a positive behavior support plan. (S-5). 3. The May 2010 FBA assessed the student’s organization skills and assignment completion: “When (the student) is distracted or (the student’s) thoughts are not on the directions—(the student) does not write…assignments into (the student’s) agenda, (the student) ultimately gets behind in assignments and it becomes overwhelming to (the student).” (S-5).

4 4. The May 2010 FBA confirmed that the lack of organization and prioritizing, and the student’s “perfectionism”, impeded the student’s learning. At that point, the student would interrupt, or socialize during, class time, which impeded the learning of others. (S-5). 5. The May 2010 behavior support plan included two goals: consistently utilizing the student’s agenda and staying on task during class time. (S-5). 6. In September 2010, the District conducted a re-evaluation of the student. This September 2010 re-evaluation report (“RR”) is referenced, both explicitly and implicitly, in subsequent individualized education plans (“IEPs”) and an April 2013 RR. At the hearing, the District could not produce the September 2010 RR. (Parents’ Exhibits [“P”]-3, P-6, P-8, P- 10, P-21; S-5, S-10, S-12, S-25, S-31, S-34; Notes of Testimony at 358-362). 7. In the 2011-2012 school year, the student began 9th grade at a District high school. In October 2011, the student’s IEP team met for its annual meeting to revise the student’s IEP. (S-10). 8. The October 2011 IEP indicated that the student required assistive technology (“AT”) for organization and written expression/writing difficulties. An October 2011 AT

5 assessment, completed as part of the IEP team’s deliberations, recommended that the student be placed on temporary inactive status because “classroom adaptations and supports within the home environment have proved to be successful in meeting (the student’s) needs at this time.” (S-10, S-43 at page 4). 9. The October 2011 IEP indicated that the student did not exhibit behaviors that impeded the student’s learning or the learning of others. Therefore, there was no longer any behavior support plan related to the student’s behaviors in school. (S-10). 10. The October 2011 IEP indicated that results from the September 2010 RR found the student to be in the superior range of cognitive functioning (General Ability Index [“GAI”] = 139), [redacted] (S-10). 11. The October 2011 IEP contained consistent teacher input from three teachers, indicating that work-completion was impeding the student’s progress. The English teacher noted: “(The student’s) weakness seems to be organization and completing daily work.” The Spanish teacher noted: “(The student’s) work is very inconsistent. If (the student) does complete it, it is late.” The math teacher noted: “he (the teacher) is worried about (the student) not making it in his

6 class.” The autism support teacher noted: “(The student) is struggling in some…classes to complete assignments and turn them in.” (S-10 at 7-8). 12. The October 2011 IEP included one goal.3 In its entirety, the goal reads as follows: “(The student) will complete assignments and meet course expectations in order to obtain a grade of 80% in core classes for the duration of this IEP.” (S-10 at page 15). 13. The October 2011 IEP contained two modifications, one to remind the student of due dates “if grades become lower or a pattern forms”, and one for extended time for assignments. (S-10 at page 17). 14. The October 2011 IEP indicated that the student was outside the regular education setting for 30 minutes per day in itinerant autism support. (S-10 at 19-21). 15. In the fall of 2011, the student’s parents separated. (NT at 604). 16. The 2011-2012 school year was tumultuous for the student’s family. In November 2011, the student and siblings briefly resided with grandparents. From December 2011- 3 The October 2011 IEP contained a second goal, but it was a goal related to [redacted]. This is noted specifically by footnote here, although subsequent IEPs also included goals and modifications related to [redacted]. Those will not be specifically footnoted in the rest of the decision.

7 June 2012, the student and siblings resided with their mother in a relative’s house. In June 2012, the student and siblings resided with their father. Since June 2012, the student and siblings have resided with their father, who retains primary physical custody. (NT at 606-610). 17. The student ended the 2011-2012 school year with the following grades in core subject areas: mathematics – 61%, English – 70%, science (two classes) – 70% and 63%, history – 74%. (S-36 at page 14). 18. In September 2012, at the outset of the student’s 10th grade year, the student’s IEP team met for its annual meeting to revise the student’s IEP. (P-3; S-12). 19. The September 2012 IEP indicated that the student continued to require AT for organization and written expression/writing difficulties. The student continued to be on temporary inactive status for AT. (P-3; S-12). 20. The September 2012 IEP indicated that the student’s behavior did not impede the student’s learning or the learning of others. (P-3; S-12). 21. The September 2012 IEP indicated that the student’s disability affected progress in the general curriculum as follows: “(O)rganization, time management, and socialization. (The student) may complete a task or an assignment but

8 does not remember or does not turn in the assignments. This leads to frustration and (the student) getting behind with…work. As a result, (the student’s) grades can be lower than expected.” (P-3 at page 9; S-12 at page 9). 22. The September 2012 IEP contained two goals and (redacted). One special education goal related to transition, namely college admissions requirements (SAT testing and college admissions planning). The other, in its entirety, reads as follows: “(The student) will complete assignments and meet course expectations in order to obtain a grade of 85% or higher in core classes (English, Algebra, Biology) for the duration of this IEP.” (P-3 at page 16; S-12 at 17). 23. The September 2012 IEP contained two special education modifications and (redacted). One special education modification included access to an academic support class and one for extended time for assignments. (P- 3 at page 19; S-12 at page 21). 24. There is no goal, modification, specially designed instruction, or related service to address the identified need in socialization. (P-3; S-12). 25. Over the course of the 2012-2013 school year, teachers and staff related to each other concerns over the student’s family situation and the continued difficulties with

9 assignment completion and low grades. (S-11; S-15 at page 1). 26. In April 2013, the District re-evaluated the student and issued a RR. The re-evaluation process was undertaken by a District special education teacher and not a District school psychologist. (P-5; S-21; NT at 352-354, 356, 358- 359, 365-366, 372-373). 27. Parents did not provide input for the April 2013 IEP. (P-5; S-21). 28. The April 2013 RR reported the cognitive testing from the missing September 2010 RR (GAI=139). There was no achievement testing as part of the April 2013 RR. (P-5; S-21). 29. The April 2013 RR indicated that the student can be, at times, inappropriate and disruptive in class. There was no social/emotional/behavioral assessment as part of the April 2013 RR. (P-5; S-21). 30. Teacher input in the April 2013 RR indicated some improvement in organization/assignment-completion, but there were continued difficulties with late or incomplete assignments. (P-5; S-21). 31. The April 2013 RR reported current grades at that time as follows: mathematics – 16%, English – 79%, science – 48%, history – 88%. (P-5 at page 6; S-21 at page 6).

10 32. In May 2013, the student’s IEP team met to revise the student’s IEP in light of the April 2013 RR. (P-6; S-25). 33. The May 2013 IEP indicated that the student continued to require AT for organization and written expression/writing difficulties. The student continued to be on temporary inactive status for AT. (P-6; S-25, S-43 at pages 7-9). 34. The May 2013 IEP indicated that the student’s behavior did not impede the student’s learning or the learning of others. (P-6; S-25). 35. The May 2013 IEP, prepared near the end of the student’s 10th grade year, began to note the need for the student to meet certain academic/testing requirements of the Commonwealth for the issuance of a diploma. (P-6; S- 25). 36. The May 2013 IEP indicated the concerns of the student’s father related to the student’s grades and “lack of follow through with homework and class assignments”. (P-6 at page 9; S-25 at page 9). 37. The May 2013 IEP replicated the language from the September 2012 IEP (see Finding of Fact 21 above) as to how the student’s disability affects the student’s progress in the general curriculum. (P-6 at page 9; S-25 at page 9).

11 38. The May 2013 IEP contained four goals, all related to special education. (P-6 at pages 14-17; S-25 at pages 14-17). 39. One goal in the May 2013 IEP related to transition (college admissions). The remaining three goals were, in their entirety, as follows:  “(The student) will demonstrate production of complete, legible, and timely assignments.”  “(The student) will complete assignments and meet course expectations in order to obtain a grade of 85% or higher in core classes (Language Arts, Math, Science) for the duration of this IEP.”  “(The student) will complete all requirements for the successful completion of (the student’s) current course load.” (P-6 at pages 14-17; S-25 at pages 14-17). 40. The May 2013 IEP contained two special education modifications and (redacted). One special education modification included access to an academic support class and one for extended time for assignments. (P-6 at page 18; S-25 at page 18). 41. In May 2013, in anticipation of the IEP meeting, the student’s special education case manager emailed the student’s teachers, asking for their input prior to the

12 meeting. The student’s math teacher offered multiple suggestions for modifications, none of which were included in the May 2013 IEP. (P-6; S-23 at page 1, S-25). 42. The student ended the 2012-2013 school year with the following grades in core subject areas: mathematics – 41% (receiving no academic credit for the year), English – 89%, science – 51% (receiving no academic credit), history – 72%. The student also received a 59% grade in Spanish, receiving no academic credit. (S-36 at page 14). 43. Over the course of the 2013-2014 school year, the student’s 11th grade year, the student continued to exhibit difficulty with assignment-completion. (S-15, S-23 at pages 3-8, S-27). 44. In the 11th grade, the student took multiple science classes to make up for not receiving credit for science in the 10th grade. (S-36 at page 14). 45. In February 2014, the student’s IEP was revised to add additional modifications, including limited mathematics problems on tests and homework/assignments, preferential seating, mathematics and science instruction using technology, and teachers’ directions to the student. The modification which gave the student access to academic support, however, was removed. (P-10; S-31).

13 46. In April 2014, the student’s IEP team held its annual IEP meeting to revise the student’s IEP. (P-8; S-34). 47. The April 2014 IEP indicated that the student continued to require AT for organization and written expression/writing difficulties. The student continued to be on temporary inactive status for AT. (P-8; S-34). 48. The April 2014 IEP indicated that the student’s behavior did not impede the student’s learning or the learning of others. (P-8; S-34). 49. At the time of the of the April 2014 IEP meeting, the student’s third quarter grades in core academic classes were reported as follows: mathematics – 45%, English – 94%, science (three classes) – 54%, 58%, and 90%, history – 72%. (P-8 at page 5; S-34 at pages 7-8). 50. The April 2014 IEP contained teacher input. Teachers consistently reported that the student had difficulty with organization, prioritizing tasks, and work completion. Some teachers reported intermittent disruptions in class. (P-8 at pages 5-6; S-34 at page 8). 51. The April 2014 IEP contained only one goal. In its entirety, it reads: “(The student) will complete assignments and meet course expectations in order to obtain a grade of 85% or higher in core classes (Language Arts, Math, Science)

14 for the duration of 36 consecutive school weeks, excluding breaks in the school calendar. (The student’s) progress will be measured based on published coursework, teacher observations, and 9 week grade reports.” (P-8 at page 13; S- 34 at page 18). 52. The April 2014 IEP contained the modifications which were made part of the student’s IEP in February 2014. Access to academic support was not added back to the April 2014 IEP. (P-8 at page 15; S-34 at page 20). 53. The April 2014 IEP indicated that the student would spend 99% of time in regular education. (S-34 at page 27- 30). 54. The student ended the 2013-2014 school year with the following grades in core subject areas: mathematics – 54% (receiving no academic credit for the year), English – 97%, science (three classes) – 60%, 61%, and 80%, history – 86%. (S-36 at page 14). 55. The student entered the current 2014-2015 school year as the student’s 12 th grade year, anticipating graduation from the District. 56. The student enrolled in two mathematics classes to make up for not receiving credit for mathematics in the 11th grade. (S-36 at page 14).

15 57. In December 2014, the student’s school counselor sent an email to a special education administrator indicating that “(The student) is in good shape to graduate as long as (the student) passes all of (the student’s) classes.” (Bold in the original). (S-36 at page 3). 58. As of April 2015, when the hearing was convened, the student had the following grades in the second quarter in core subject areas: mathematics (two classes) – 83% and 86%, English – 64%, social studies (three classes—all final grades for semester-long courses) – 83%, 89%, and 92%. The student is taking no science classes in 12th grade. (S-46). 59. As of April 2015, when the hearing was convened, the student’s qualification for the issuance of a diploma was indeterminate. (NT at 27, 770-771). CREDIBILITY OF WITNESSES A. All witnesses testified credibly. B. No witness’s testimony was accorded heavier, or lighter, weight than any other. All witnesses’ testimony was accorded equal weight.

16 DISCUSSION AND CONCLUSIONS OF LAW FAPE To assure that an eligible child receives FAPE,4 an IEP must be “reasonably calculated to yield meaningful educational…benefit and student or child progress.”5 “Meaningful benefit” means that a student’s program affords the student the opportunity for “significant learning”,6 not simply de minimis or minimal education progress.7 In this case, the student was denied FAPE as the result of inappropriate re-evaluation processes/reports and inappropriate IEPs. Evaluation Processes/Reports. First, the District could not, or did not, produce the student’s September 2010 RR. This is a prejudicial procedural error. An evaluation report is a critical signpost in the programming for any student with special needs. It is at the heart of (1) understanding a student’s needs and (2) the basis for designing the individualized services a student requires and, ultimately, the student’s IEP. 8 The District’s inability or unwillingness to produce the September 2010 RR for the parents’ reference, and the preparation of the parents and parents’ counsel for the hearing, places the parents at a distinct 4 34 C.F.R. §300.17. 5 Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982). 6 Ridgewood Board of Education v. N.E., 172 F.3d 238 (3rd Cir. 1999). 7 M.C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 1996). 8 34 C.F.R. §§300.301- 300.306, 300.320, 300.32422 PA Code §§14.123-14.124.

17 disadvantage. More pointedly for the student’s programming, however, it is a critical piece of information which, evidently, at some point after April 2013 could not play a role in considerations of the student’s special education program. This is a prejudicial procedural denial of FAPE. Second, the April 2013 RR was not appropriate. Any evaluation or re-evaluation is required to use “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child.”9 By April 2013, the student—a student with superior cognitive ability—had exhibited significant academic difficulties in the general curriculum; yet the April 2013 RR contained no updated achievement testing.10 By April 2013, the student had, at least at times, exhibited inappropriate socialization skills; yet the April 2013 RR contained no social/emotional/behavioral assessment. Finally, the evidence in the record overwhelmingly supports the conclusion that the student has significant needs in organization, prioritization, and assignment-completion; yet the April 2013 RR contained no assessment of these specific issues vis a vis the student’s disability profile. 9 34 C.F.R. §300.304(b)(1). 10 The record reveals that the student’s most consistent struggle is with mathematics. The sequential and repetition-oriented nature of mathematics instruction may be especially short-circuited by the student’s needs in organization, prioritization, and assignment-completion. Still, the lack of achievement assessment places the student’s IEP team in no position to gauge whether the student has a learning disability in mathematics. This issue, however, was not made part of parents’ complaint and was not a matter of evidence at the hearing.

18 Also, an evaluation or re-evaluation also requires that assessments be “administered by trained and knowledgeable personnel”.11 Here, the District delegated to a special education teacher the design and authorship of the April 2013 RR. It was then forwarded to a District school psychologist for review; the District school psychologist accepted the April 2013 RR as written by the teacher. Whether or not this directly led to the inappropriateness of the April 2013 RR is irrelevant. By way of dicta, this hearing officer feels it was a sizable contributing factor to the lack of comprehensiveness. Still, regardless of why the April 2013 RR was inappropriate, it clearly is. Accordingly, as set forth below, there will be an award of compensatory education. IEPs. The four IEPs presented as evidence in this matter—October 2011, September 2012, May 2013, and April 2014—are each inappropriate in multiple regards. The most problematic flaw in each IEP is the goal writing. Quite simply, the central goal in every IEP can be reduced to: “the student will get good grades”. This goal—specifically, the goal in each IEP which references 80% or 85% grade achievement in core academic subject areas—is inappropriate on its face. Each IEP also contains incomplete modifications to address the student’s needs in organization, prioritization, and assignment- 11 34 C.F.R. §300.304(c)(1)(iv).

19 completion. Over time, more modifications were added. Yet, even in this, the IEPs were prejudicially inappropriate. For example, in May 2013, a teacher offered multiple specific accommodations and modifications which were not included in the May 2013 IEP. Eventually, many of those accommodations/modifications were included in the April 2014 IEP. But the student’s academic support was removed at the same time, removing 30 minutes of daily support outside of the regular education setting and placing the student entirely in regular education. The IEPs, in addition to the April 2013 RR, each contain indications that the student’s social skills and/or boundary issues in class were, at times, problematic. Granted, these concerns are far less prevalent in, and less interfering with, the student’s education than the student’s organization, prioritization, and assignment-completion deficits. But there is an absolute lack of any assessment, accommodation, modification, or related service, to explore or address this need. Finally, even though the “get good grades” IEP goals are prejudicially flawed as written, the District’s attitude and actions toward the student’s lack of achievement is troubling. Under the terms of the goals themselves, from year to year, the student consistently failed to achieve 80% or 85% in mathematics or science. Assuming, arguendo, that one accepted those IEP goals as appropriate, the student continually failed to progress on the goal. Yet the student’s needs remained

20 absolutely consistent across educational settings and across school years, the modifications in the IEPs remained largely the same, and the student failed to “get good grades”. This regrettable pattern repeated itself to the point that, in multiple subject areas, the student failed to earn academic credit and, even at the ostensible end of the student’s time at the District, whether or not the student will meet criteria for issuance of a diploma is an open question. Accordingly, as set forth below, there will be an award of compensatory education. Compensatory Education Where a school district has denied a student a FAPE under the terms of the IDEA, compensatory education is an equitable remedy that is available to a claimant when a school district has been found to have denied a student FAPE under the terms of the IDEA12. Compensatory education accrues from a point where a school district knew or should have known that it was failing in its obligation to provide a FAPE. 13 The scope of a claim for denial of a FAPE, however, is limited. In the view of this hearing officer, IDEA limits a claim to a 2-year look-back period from the filing date of the complaint (absent misrepresentation 12 Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990); Big Beaver Falls Area School District v. Jackson, 615 A.2d 910 (Pa. Commonw. 1992). 13 Ridgewood; M.C..

21 and/or withholding of information by a school district which then allows for potential expansion of the claim).14 In this case, the filing date of the parents’ complaint is November 18, 2014.15 There are no allegations of misrepresentation and/or withholding of information by the District. Therefore, any claim for remedy is limited to a period after November 18, 2012. As of November 18, 2012, approximately three months into the student’s 10th grade year, the District knew or should have known that the IEP just put in place (September 2012), especially in light of the IEP from the student’s 9th grade year (October 2011) and the student’s performance in 9th grade, was inappropriate. Under the terms of all IEPs, then, the student was denied a FAPE from November 18, 2012 through May 4, 2015, the date the record in this matter closed. The District never appropriately addressed—through goal-driven educational programming or through IEP accommodations/modifications—the student’s underlying needs in organization, prioritization, assignment-completion, or socialization. 14 34 C.F.R. §§300.507(a)(2), 300.511(e). Currently pending before the Third Circuit Court of Appeals, however, is an appeal where the scope-of-claims provisions of IDEA are under consideration. As of the date of this decision, that appellate authority has not been decided. Therefore, this hearing officer applies the analysis he always has applied in interpreting these two regulatory sections. 15 Hearing Officer Exhibit [“HO”]-2. The parents filed a complaint on November 18, 2014 at ODR file number 15614-1415KE (HO-1). This complaint was withdrawn on February 4, 2015. On February 17, 2015 the complaint at the instant ODR file number was filed with the following indication: “This complaint is being reinstated on 2/17/2015 after being withdrawn pursuant to a private agreement to preserve the original filing date of 11/18/2015 (sic).”. (HO-2 at page 2). See also NT at 17-18.

22 Even with this, however, the student did make meaningful education progress in some areas. While the student consistently failed in mathematics and science, the student showed progress in other subject areas. And the student’s teachers consistently report that the student was engaged and interactive in most classes (albeit with uneven academic success). As such, the District did not deny the student a FAPE in all regards over those school years (although, again by way of dicta, it is the opinion of this hearing officer that the student’s superior cognitive ability dramatically helped the student overcome the failures of the District’s programming.) Therefore, as a matter of equity, the student is awarded 1.5 hours of compensatory education for every school day the student attended from November 18, 2012 through May 4, 2015. Also, as a result of the District’s inability or unwillingness to provide the parents with a copy of the September 2010 RR and the inappropriateness of the April 2013 RR, the student is awarded, as a matter of equity, an additional 100 hours of compensatory education. As for the nature of the compensatory education award, the parents and/or student may decide in their sole discretion how the hours should be spent so long as they take the form of appropriate developmental, remedial, or enriching instruction or services that further the student’s educational needs.

23 There are financial limits on the parents’/student’s discretion in selecting the appropriate developmental, remedial, or enriching instruction or services. The cost to the District of providing the awarded hours of compensatory education must not exceed the full cost of the services that were denied. Full costs are the hourly salaries and fringe benefits that would have been paid to the District professionals who provided services to the student during the period of the denial of FAPE. An order for compensatory education will follow. CONCLUSION As a result of inappropriate evaluation processes/RRs and IEPs, the District denied the student a FAPE for the period November 18, 2012 through May 4, 2015, the student will be awarded compensatory education. Compensatory education will also be awarded as a result of the District’s inability or unwillingness to provide parents with a copy of the September 2010 RR. •

24 ORDER In accord with the findings of fact and conclusions of law as set forth above, the School District denied the student a free appropriate public education, on this record, from November 18, 2012 through May 4, 2015. The student is awarded compensatory education as follows:  1.5 hours of compensatory education for each school day the student attended from November 18, 2012 through May 4, 2015; and  100 hours of compensatory education for the school district’s inability or unwillingness to provide the parents with a copy of the September 2010 re-evaluation report and the inappropriateness of the April 2013 re-evaluation report. Any claim not specifically addressed in this decision and order is denied. Jake McElligott, Esquire Jake McElligott, Esquire

25 Special Education Hearing Officer May 22, 2015