West York Area School District | Case 17572-15-16 | 2016-07-25

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: V.W. Date of Birth: [redacted] ODR No. 17572-15-16-KE CLOSED HEARING Parties to the Hearing: Representative: P a r e n t [ s ] D a n i e l M . F e n n i c k , E s q u i r e A n d e r s o n , C onverse & Fennick 1423 East Market Street Y o r k , P A 17403 West York Area School District Sharon W. Montanye, Esquire 2605 West Market Street S w e e t , S t e v e n s, Katz, Williams, LLP York, PA 17404-5529 331 East Butler Avenue N e w B r i t a i n , P A 18901 Date of Hearing: June 7, 2016 R e c o r d C l o s e d : J u n e 2 7 , 2016 D a t e o f D e c i s i o n : J u l y 2 5 , 2 0 1 6 Hearing Officer: William F. Culleton, Jr., Esquire, CHO

1 INTRODUCTION AND PROCEDURAL HISTORY The child named in this matter (Student)1 was a student of the school district named in this matter (District), during the S tudent’s ninth grade year (2013- 2014 school year). Student is not identified under the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA) as a child with a disability, nor has Student been provided wit h accommodations for a disability pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (section 504). Student’s mother (Parent) filed this due process request, asserting that the School failed to meet its “child find” obligations under the IDEA and section 504 to identify and evaluate Student, after Student exhibited symptoms of an emotional disturbance. P arent asserts that, because the District failed to comply with i ts “child find” obligations, Pa rent was forced to enroll Student in another public school district, and to pay a non-resident fee for that district’s services. Parent seeks only reimbursement of the non-resident fee that Parent paid for Student’s tenth grade year (2014- 2015 school year). The District denies the allege d procedural violation. It assert s that it was under no obligation to evaluate Student under either law because, based upon what it knew at the time, Student’s emotional disturbance was temporary and had no impact upon Student’s academic achievement. The hearing was completed 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 School failed to comply with its child find obligations and I order it to reimburse Parent for the non-resident fee that Parent paid. 1 Student, Parent and the respondent School are named in the tit le page of this decision; personal references to the parties are omitted in order to guard Student’s confidentiality.

2 ISSUES 1. Did the District fail to perform its “child find” obligations under the IDEA and section 504 during Student’s ninth grade year? 2. If so, should the hearing officer order the District to reimbur se Parent for a non-resident fee or tuition that Parent paid to another public school district in order to enroll Student in that district for Student’s tenth grade year? FINDINGS OF FACT 1. Student was successful and motivat ed in school prior to April 2 014. Student was a high achiever academically and a successful athlete on one of the sc hool’s high-level athletic teams. (NT 88, 188, 218-219, 255-256; S 2.) 2. While in ninth grade, Student and a classmate became involved i n what they both considered to be a boyfriend/gi rlfriend relationship; these chi ldren terminated that relationship in February 2014. (NT 89-91, 184-187; P 17 p. 1.) 3. On or about April 1, 2014, Student became aware that the same c lassmate had posted extremely personal and derogatory comments about Student on soc ial media, comments that were false and that aimed at harming Student’s reputation regarding social relationships. (NT 89-91, 145, 184-187.) 4. As a result of the social medi a postings, and while attending s chool, Student experienced derision and damage to interpersonal relationships with various peers. (NT 91-93, 186-188, 244.) 5. At Parent’s urging, prior to April 8, 2014, Student notified the vice-principal of Student’s school and Student’s counselor about the social media postings and harassment in school. (NT 95, 99, 230.) 6. On April 8, 2014, Student met with a therapist pursuant to Parent’s referral, and on the next day, Parent and Student met with Student’s primary care physici an, who prescribed medication for Student’s anxiety. (NT 95-96; P 2.) 7. On April 10, 2014, Parent notifie d school personnel that Studen t needed to be excused from school due to an appointment for counseling. (NT 96-97; P 2 p. 4.) 8. On April 10, 2014, Student’s privat e counselor notified Student ’s school counselor that Student was experiencing feelings of being victimized at school and that the private counselor was concerned for Student’s emotional safety. Student ’s school counselor believed at that time that Student thought that many peers were staring at and talking about Student. (NT 43-44, 242-244; P 17 p. 1.) 9. In April 2014, Student was allowed to leave the classroom where t h e f o r m e r boyfriend/girlfriend was present and complete work in the schoo l counselor’s office on

3 several occasions, because Student was unable to work in the pr esence of the former boyfriend/girlfriend and other class members. (NT 233-234.) 10. On April 21, 2014, Parent met with school officials and discussed the Student’s allegations of harassment during school hours. At this point, Student was e xperiencing signs of depression and anxiety, with sleep disturbance, loss of motivat ion for school responsibilities and withdrawal from normal activities. (NT 48-49, 100-103; P 17.) 11. Student began exhibiting dangerous behavior, including wanderin g away from home and lying down in the street in front of oncoming traffic. (NT 104, 152; P 17 p. 2.) 12. On April 29, 2014, Student’s school counselor called Parent in the morning and asked Parent to take Student to a crisis center because Student was talking about hurting self and expressing suicidal ideation. Later, Parent provided a note from the crisis unit showing that Student had been seen. (NT 97, 105-106, 230, 244-245; P 2, 3, 17.) 13. On April 30, 2014, Parent provided an attendance excuse form to District personnel citing “emotional concerns”. (NT 97; P 2 p. 5.) 14. In April and May 2014, Student’s emotional disturbance and the medications prescribed for Student seriously affected Student’s concentration and ment al stamina in the face of frustration when learning. (NT 99-104, 109-111, 126-128, 190; P 5 p. 7, P 17.) 15. From April 1, 2014 to May 20, 2014, Student’s demeanor, behavio rs and personal care habits deteriorated visibly. (NT 107-113; P 6.) 16. In May 2014, Student displayed the following symptoms visibly: depressed mood, insomnia, psychomotor retardation, decreased concentration and suicidal ideation. These symptoms caused marked impairment in Student’s ability to funct ion. (NT 107-111; P 6 pp. 2, 5, P 8.) 17. On May 5, 2014, Student’s private counselor signed an excuse fo rm for an appointment with the private counselor. (NT 98, 142-143; P 2 p. 6.) 18. On May 12, 2014 Parent took Student to crisis again, and the cr isis unit recommended inpatient admission, but Student refused, stating that Student wanted to take a benchmark test at school in the next few days. (NT 106-108; P 17.) 19. Student took the benchmark test and scored “advanced”. (S 5.) 20. On May 18, 2014 Student was admitted to inpatient treatment vol untarily for about four days due to depression and statements indicating a plan for sel f-harm. Parent notified the school of Student’s admission. (NT 107-109, 113, 174-175, 245-246; P 6 pp. 2, 5, 9, P 9 p. 6, P 17.) 21. Parent notified Student’s school counselor that Student had bee n admitted for inpatient treatment for emotional difficulties. (NT 113-114; P 5, 7.) 22. On May 21, 2014, while Student was in the hospital, both of Stu dent’s Parents met with school officials, including Stude nt’s counselor. Student’s Fath er travelled from another

4 state at some distance. During the meeting, both Parents inform ed school personnel that Student was depressed and anxious. Parents informed the school personnel that they desired Student’s reintegration back to the District’s school p lacement, and that Student needed special arrangements in o rder to make such re-integratio n possible. Parents indicated that they were considering transferring Student to another school or district if the District could not offer a plan to support Student’s reintegration into the District school in the following school year. (NT 118-120, 149-150, 165-166, 273-274, 283; P 4.) 23. Student was discharged with a diagnosis of Major Depressive Dis order, Recurrent. Diagnosis called for “Rule Out” of Post Traumatic Stress Disord er. The inpatient psychiatrist prescribed anti-depression and anti-anxiety medications. (NT 114-115; P 8.) 24. After the admission, the inpatient unit sent a note to the Stud ent’s school officials requesting schooling at home for Student for the balance of the school year. The note indicated that this recommendati on was due to Student’s anxiety and concerns related to the current school placement. (P 7.) 25. The District provided what was called “homebound” instruction f or Student, pursuant to the recommendation of the inpatient hospital and Parents’ reque st. The instruction was located at the Student’s school, and provided in the afternoon, in classrooms without any other students, and continued until late in the day, when stude nts were expected to have left for the day. Parents and Student preferred this arrangemen t. Student received approximately five hours per week of individual instruction; mo st sessions lasted one to one and one-half hours total for a given day. (NT 123-125, 188- 189, 223, 293-296; P 5, P 9 p. 3, P 11, P12.) 26. District teachers accommodated Student’s assessments to reduce stress and support Student in passing Student’s courses. (NT 125-126; P 5 pp. 5, 7, 9.) 27. The District counselor offered to adjust Student’s schedule in the fall of tenth grade, to enable Student to avoid classes with individuals who might make Student uncomfortable. (NT 227-229, 246-248; P 5 p. 11.) 28. The District did not seek permi ssion to evaluate Student for ei ther IDEA eligibility or section 504 accommodations. It did not offer to provide support s or accommodations to Student if needed to permit re-integration to a District school in tenth grade, other than advance review of schedule to avoid peers who might make Studen t uncomfortable. Additional supports and accommodations could have been offered, but District personnel saw no reason to offer them at the time. (NT 139, 246-248, 283-285.) 29. At no time did any District official inform Parents that an evaluation under section 504 or the IDEA was possible, and no District official or employee rec ommended such an evaluation. (NT 120-123.) 30. The District’s counselor and prin cipal did not recommend an eva luation under either the IDEA or section 504 because it was their judgment that Student’s disability was situational and therefore temporary. In addition, it was their judgment tha t Student’s disability was not significantly impairing St udent’s learning or education. In addition, District officials did not believe that Student would have fit into an emotional s upport classroom due to

5 Student’s high academic achievement. Therefore, a judgment was made to wait and see what the effect of therapy would be during the summer and then re-assess the need for either additional accommodations or an evaluation in the fall. (NT 254-259, 275-282, 289- 297.) 31. On or before June 2, 2014, Student answered in writing a series of questions assessing biology vocabulary. The answers indicated that Student felt as if not alive and that life was bad; that Student needed to adapt to a “hateful” world full of “mean” people; and that Student desired to watch “somet hing get killed”. Student’s coun selor sent this to Parent with advice to show it to Student’s counselor. (NT 127; P 5 p. 14.) 32. In athletics, Student attended some but not all practices durin g the summer, and did not exhibit the same level of motivation that Student had exhibited prior to April 1. (NT 130- 131, 192-193.) 33. In August 2014, a neighboring public school district accepted Student’s enrollment. Parents enrolled Student in the neighbor ing district because the Distri ct had not proposed any accommodations to support Student’s re-entry into the neighborh ood District high school for tenth grade. (NT 133-135; P 14.) 34. Parents paid $10,200.00 to the neighboring school district for providing educational services to Student. (NT 137-138; P 16.) 35. By receiving instruction outside of the regular classroom, and for the most part outside of the regular school day, Student was deprived of the educational benefits of social relationships and the opportunity to learn and practice the social skills needed to collaborate and discuss the academics being taught in the regular class setting. (NT 235.) 36. From April 1 through May 17, Student was absent from school for 11 school days. (S 4.) 37. Student was absent 5 school days in connection with being hospitalized. (S 4.) 38. Student was on “homebound” instruction for 12 school days. (S 4.) 39. Student’s social relationships and social life were disturbed d ue in part to the harassment and due in part to the Student’s depression. (NT 198-202; P 17 p. 2.) 40. In May, June and July, Student e xperienced emotional pain that was triggered by the experience and memory of being in school with peers. This caused Student to be unable to attend regular school hours and classes in the circumstances at that time. (NT 54-67, 81; P 17.)

6 CONCLUSIONS OF LAW BURDEN OF PROOF The burden of proof is composed of two considerations, the burd en of going forward and the burden of persuasion. Of these, the more essential conside ration is the burden of persuasion, which determines which of two co ntending 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.2 d 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 prepond erance 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). This rule can decide the issue when neither side produces a pre ponderance of evidence – when the evidence on each side has equal weight, which the Supr eme Court in Schaffer called “equipoise”. On the other hand, whenever the evidence is prepo nderant (i.e., there is weightier evidence) in favor of one party, that party will prevail, regar dless of who has the burden of persuasion. See Schaffer, above. In the present matter, based upon the above rules, the burden o f persuasion rests upon the Parent, who initiated the due process proceeding. If the Paren t fails to produce a preponderance of the evidence in support of Parent’s claim, or if the evidence is in “equipoise”, the Parent cannot prevail under the IDEA. 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 eviden ce that is greater than the quantity or weight of evidence produced by the opposing party. See, Comm. v. William s, 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.

7 CREDIBILITY It is the responsibility of the hearing officer to determine th e 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 evid e n c e in o rd e r to m a k e th e re q uired findings of fact). In this matter, I have weighed the evidence with attention to this duty. I find that Parent’s testimony was credible and reliable. Paren t’s manner of answering questions and demeanor during qu estioning by both parties’ atto rneys disclosed no effort to dissemble or embellish. Parent’s testimony is corroborated in almost all respects by the exhibits. I could find no material contradictions among the witnesses that would affect my impression of Parent’s veracity or accuracy. Similarly, I find that Student’s testimony was sincere, credibl e and reliable. Student’s demeanor was open and truthful. Student did not contradict othe r witnesses or the documentary record in any substantial way so as to reduce the weight that I accorded to Student’s testimony. The District leaned heavily upon the indisputable fact that, de spite Student’s emotional deterioration during the period between April 1 and the end of school in June, Student managed to finish the year with very high grades. The District suggests th at this in itself contradicts Parent’s depiction of a child unable to concentrate and unable to comple te assignments. I conclude that Student’s high achievement does not contradict Parent’s asserti ons that Student’s academic functioning was impaired in ninth grade. Given Student’s high level of achievement and academic skill prior to April 1, 2014, it is entirely plausible that Stu dent could overcome the effects of Student’s emotional deterioration sufficiently to maintain high grades – especially in view of the f a c t t h a t g r a d e s a r e a f u n c t i o n of both performance and subject ive teacher judgment, and the evidence that Student’s teachers, out of their great compassion , modified their normal

8 expectations, especially during the “homebound” instruction period, whose stated purpose was to assure that Student would pass Student’s courses and graduate t o tenth grade. In sum, I do not accord less weight to Parent’s assertions as to Student’s impai red academic functioning in April, May and June, based upon Student’s high grades for the second half of the year. I accorded full weight to the te stimony of Student’s private co unselor, as to the witness’ observations and clinical conclusi ons based upon Student’s pres entation in the clinical setting. I accorded little weight to the witness’ conclusions about Studen t’s circumstances and functioning in school, because this was based entirely upon hearsay, and th e witness, being only a treating professional, had no occasion to seek corroboration of Student’ s beliefs as to circumstances at school. I found the District’s witnesses – the Student’s counselor and principal - to be credible. I accorded little weight to the testimony of the school psycholog ist, who listened to testimony and provided opinions based upon hypotheticals. I found that the hy potheticals by their very nature could not convey the full circumstances in which the District educators made the judgments about whether or not to evaluate Student or to offer additional supports to Student. CHILD FIND UNDER THE IDEA AND SECTION 504 Under the IDEA “child find” requirement, 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a), (c), a local education agency has a "continuing obligation ... to identify and evaluate all students who are reasonably suspected of having a disability." Ridley S ch. Dist. v. M.R., 680 F.3d 260, 271 (3d Cir. 2012)(citing P.P. v. West Chester Area School Dist rict, 585 F.3d 727, 738 (3d Cir. 2009)); Perrin v. Warrior Run Sch. Dist., 2015 U.S. Dist. LEXIS 149623 (M.D. Pa. 2015). Section

9 504 imposes a similar obligation.4 See P.P. v. West Chester Area School District, 585 F.3d above at 738.5 Local educational agencies are required to fulfill their child find obligation within a reasonable time after notice of behavior that is likely to indicate a disa bility. Ridley Sch. Dist. v. M.R., 680 F.3d above at 271-272. The courts will assess the reasonablenes s of an agency's response to such information on a case-by-case basis, in light of the informatio n and resources possessed by the agency at a given point of time. Ibid. Even if parents do not cooperate fully with agency efforts to identify a student, it is still the responsibility of the agenc y to identify those children who are in need of the IDEA's protections. Taylor v. Altoona Area Sch. Dist., 737 F. Supp. 2d 474, 484 (W.D. Pa. 2010). A Parent’s omission to request an evaluation does not absolve the agency of its “child find” duties under both statutes. M.C. v. Central Reg. Sch. Dis t., 81 F.3d 389, 397 (3d Cir. 1996)(child’s right to FAPE not dependent upon vigilance of parents). THE DISTRICT’S DECISION NOT TO EVALUATE I conclude that the District i n this matter was obligated to evaluate Student under both the IDEA and section 504. The evidence shows preponderantly that the District was aware of Student’s depression in school, beginning in April 2014. It was aware in April that Student was experiencing thoughts and fears that were sign ificantly unusual for this Stu dent, and that Student’s social relationships were deteriorating. It was aware that Student’s emotional wellbeing had deteriorated to the point of psychiatric hospitalization. I conclude that th is information objectively suffices to 4 Pennsylvania regulations further define students protected under section 504 as “protected handicapped student[s]”. Arguably broader than section 504 itself, the Pennsylvania regu lation requires accommoda tion of any otherwise qualified student whose mental disability “substantially limits or prohibits participation in … an aspect of the student’s school program.” 22 Pa. Code 15.2. 5 It is undisputed that Student is “otherwise qualified” within the meaning of section 504, and that the District is a recipient of federal funds. (NT 22-23.)

10 charge the District with “reasonable” suspicion that Student wa s experiencing a disability, and that, at least upon notice of psy chiatric hospitalization, the District was obligated to evaluate Student. The record is preponderant that District educators were aware t h a t S t u d e n t w a s experiencing depression as early as April 2014. By April 10, th e District’s counselor knew that Student had been out of school to see a private counselor, and that Student reported to the private counselor an excessive concern that many classmates were lookin g at and judging Student. Moreover, the private counselor called the school counselor to convey her impressions of Student’s feelings of victimization due t o alleged bullying, and the priv ate counselor pointedly stated that she was concerned about Student’s emotional wellbeing. On April 29, 2014, Student expressed a desire not to live and thoughts of self-harm to the school coun selor, who immediately contacted Parent to take Student to a crisis center. Student missed the n ext day of school, and the school counselor knew that this was due to “emotional concerns.” Thus, the school counselor knew, or at least “reasonably suspected” that Student was experiencing a “[ a] general pervasive mood of unhappiness or depression”, 34 C.F.R. §300.8(c)(4)(i)(D). By May 18, the school counselor was aware that the Student’s k nown symptoms of depression had deteriorated further, necessitating inpatient ps ychiatric hospitalization. Parent notified District personnel of this, and made it clear that Stu dent’s mood was generally and pervasively depressed. On May 21, 2014, while Student was in the hospital, both Parents met with the principal and counselor and informed them that Student was depressed and anxious. They indicated that Student would not b e able to attend regular clas ses for the remainder of the school year, and this was corroborated shortly thereafter with a note from the inpatient unit. Parents also indicated that Student would not b e able to return to school fo r tenth grade without substantial

11 supports in the next school year. This information was confirme d adequately by subsequent communication from the inpatient unit. In addition to reasonable notice of a general and pervasive mo od of depression, both at school and at home, the evidence is preponderant that the District’s educators were also aware that depression and anxiety were dis rupting Student’s participation in the regular classroom and damaging Student’s social relati onships during this period. Stu dent, with permission, left class several times to study in the school counselor’s office, becaus e Student could not concentrate on classes when the former boyfriend/girlfriend was there. Student was missing more time for private counseling and repeated trips to the crisis unit. Student repor ted being harassed by peers in the hallway. Although there is no evidence that grades were adverse ly affected, Student’s normal participation in general education was disrupted, affecting both academic participation and social growth. At least by the time of Student’s hospitalization, the District was reasonably on notice that Student was experiencing an inab ility to maintain satisfactory interpersonal relationships”, 34 C.F.R. §300.8(c)(4)(i)(B), both for purposes of social growth a nd for purposes of collaborative learning. It is well accepted that education in Pennsylvania must addres s basic developmental needs in the emotional, behavioral and social domains. The regulations promulgated by the Pennsylvania Department of Education for public education require local educ ation agencies to “prepar[e] students for adult life by attending to their intellectual and developmental needs and challenging them to achieve at their highest level possible. In conjunction with families and other community institutions, public education pr epares students to become self -directed, life-long learners and responsible, involved citizens.” 22 Pa. Code § 4.11(b). Thus, public education in Pennsylvania is intended to provide opportunities for students to: (1) Acquire knowledge and skills. (2) Develop

12 integrity. (3) Process informati on. (4) Think critically. (5) W ork independently. (6) Collaborate with others. [and] (7) Adapt to change. 22 Pa. Code § 4.11(c). See generally, M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3 rd Cir. 1996), cert. den. 11 7 S. Ct. 176 (1996)(education includes progress in emotional and social domains); Breanne C. v. Southern York County School District, 2010 WL 3191851 (M.D. Pa . 2010)(education includes progress in all relevant domains under the IDEA, including behavioral, social and emotional.) Therefore, I conclude that, at least as of Student’s hospitali zation on or about May 18, 2014, and the meeting with Parents on May 21, 2014, the District was aware of sufficient facts that it should have “reasonably suspected” that Student was a child with a disability defined under the IDEA and section 504. Ridley Sch. Dist. v. M.R., 680 F.3d above at 271; Perrin v. Warrior Run Sch. Dist., 2015 U.S. Dist. LEXIS 149623 (M.D. Pa. 2015); P.P. v. West Chester Area School District, 585 F.3d above at 738. Th e District was aware of symp toms that should have created a reasonable suspicion of a pervasive mood of unhappiness, which negatively and substantially impacted Student’s education and “participation in … the [Stude nt’s] school program.” 22 Pa. Code 15.2. The District’s notice of facts constituting reasonable suspicion increased in June. Student was unable, due to Student’s di sabled condition, to return to r egular classes at all. Doctors requested home-based instruction, and the parties came to an ac commodation in which Student would receive about five hours of individual instruction per we ek, in the afternoon, alone in classrooms, so that Student could avoid meeting any peers at all. This arrangement lasted until the end of the school year. Thus, Student, due to emotional disturbance, was not able to participate in the regular education school program at all during this time. This was not a typical education, and it showed how Student’s disabling emotional condition was depri ving Student of the opportunity

13 to participate in the school program in which Student had been so successful in the past. That Student managed to get good grades under these circumstances is a testament to Student’s intelligence, strength of character and diligence. Student’s good grades in “homebound” instruction do not prove that Student did not need specially designed instruction, 34 C.F.R. §300.8(a)(defining “c hild with a disability” as a two- pronged test, the second of which is that the child, by reason of disability, “needs special education and related services.”) On the c ontrary, the “homebound” instru ction itself was a major modification of the amount and delivery of instruction, which would fit the definition of “special education”. 34 C.F.R. §300.39(a)(defining “special education” as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including … [i]nstruction conducted … in other settings … .”); 34 C.F.R. §3 00.39(b)(3)(defining “specially designed instruction as “adapting … the content, methodology or delivery of instruction … .”) The teachers’ additional modification of course requirements also c onstituted specially designed instruction under the above definition set forth in the IDEA. Similarly, the “homebound” services would constitute “accommodations ” as defined in Chapter 15. 22 Pa. Code §15.3 (“needed to afford the student equal opportuni ty to participate in … the sc hool program … to the maximum extent appropriate to the student’s abilities.”) In short, both the information available to the District and th e District’s provision of “homebound” services to Student demonstrated at the time that S tudent should be “reasonably suspected” of being a child with a disability or qualified handicapped child. Therefore, the District was obligated under the “child fi nd” provisions of both the IDE A and section 504 to evaluate Student. Its failure to do so was a procedural violation. See D.K. v. Abington Sch. Dist., 696 F.3d above at 249-250.

14 I find the District’s rationales for not evaluating to be contr ary to the IDEA and section 504. Essentially, District officials rendered an a priori evalu ation that Student was not eligible, without first convening a multi-disciplinary team, including Parents, as required by the IDEA. 34 C.F.R. § 300.306(a)(1). School wit nesses testified to three suc h rationales: that the Student’s emotional disturbance had not affected Student’s grades; that Student was too high-functioning to fit into an emotional support cl ass; and that Student’s emotion al disturbance would not last for a “long period of time” as required under the IDEA definition of Emotional Disturbance, 34 C.F.R. §300.8(c)(4)(i). I find none of these rationales to be reasonable on this record. As discussed above, there was ample evidence that Student’s dis ability interfered with Student’s ability to participate in the general education curri culum. A child’s advancement from grade to grade does not absolve an agency of its child find obligation. D.K. v. Abington Sch. Dist., 696 F.3d above at 249. Student’s “fit” within the Distri ct’s existing emotional suppor t classroom is irrelevant to whether or not Student needed additional supports and accommoda tions in order to safely transition from staying home at the end of ninth grade to full participation at the beginning of tenth. It is fundamental that services are to be designed to fit the c hild, not the other way around. 34 C.F.R. §300.39(a)(defining special education as services “desig ned to meet the unique needs” of the child). School officials determined that Student’s emotional disturbanc e did not last “for a long period of time”, even though Student had exhibited symptoms that interfered with participation in class in April, and continued to exhibit depressive thoughts in June, a span of about two months. Even as late as August, the evide nce shows that Student was unable to return to a District school due to fear and anxiety that Student would be hurt again upon r eturn. I conclude that it was not

15 reasonable to rely upon a determination that the disturbance was temporary in order to decide not to evaluate the validity of such a view. DENIAL OF A FAPE AND REMEDIATION Here, Parent argues that, due to the District’s failure to eva luate Student for special education, and due to its failure to respond to Parents’ reques t for a plan to support Student in returning to school, they were forced to make a decision to withdraw Student from the District and place Student unilaterally in a neighboring school district. Th e record is preponderant that the District was reasonably on notice that Student might be a child with a disability needing substantial supports so that Student could attempt safely to return to school – any such attempt would require Student to overcome the effects of Student’s disability and fears of further emotional damage and pain. Although Parents had requested some kind of plan – including an option of District placement in a neighboring public school district – the District only offered to schedule Student’s classes so as to avoid peers that might upset Student. In view of the District’s failure to evaluate Student, I conclu de that this offer was not sufficient to assure Parents that their child would be safe if Student attempted to return to the District. Without any reassurance, then, the family went from M ay 21, 2014 to August 2014 without any reason to believe that an attempt at re-integration into the District would be emotionally safe for Student. 6 6 A local educational agency is to be given a reasonable amount of time to respond to facts that reasonably place it on notice of an obligation to evaluate. D.K. v. Abington Sch. Dist ., 696 F.3d 233, 250 (3d Cir. 2009) (citing W.B. v. Matula, 67 F.3d 584, 501 (3d Cir. 1995)). I conclude that the D istrict was reasonably on no tice of the obligation to evaluate by May 21, 2014. Yet it failed to request permission to evaluate, and by August 2014, Parents were forced to make a decision on placement. I conclude that the District was given a reasonable time to decide to evaluate on this record.

16 I conclude that Parents’ decision to place Student unilaterally in a neighboring public school district was appropriate 7 in light of the reasonably anti cipated danger to Student and t he District’s inaction even after it was asked to do more. In placing Student in the neighboring school district, Parent incurred a non -resident fee for one year. Afte r that year, Parent moved into the neighboring district; thus, Parent seeks reimbursement of the o ne year non-resident fee in this matter. A hearing officer can remediate an agency's child find violatio n. D.K. v. Abington Sch. Dist., 696 F.3d above at 249. For example, if a district should have known of an educational deficiency through compliance with its statutory duties, the st udent may be entitled to compensatory education. Ibid. Under the IDEA, I am authorized to remediate a procedural child find violation only if it has substantive results that deny a FAPE. I may find a denial o f a FAPE only if the procedural violation: 1) impeded the child’s right to a FAPE; 2) significa ntly impeded the parent’s right to participate in the decision-making process; or 3) caused a depr ivation of educational benefit. 34 C.F.R. §300.513(a)(2). There is no preponderant evidence that t he failure to evaluate impeded a right to a FAPE, because there was no evaluation; thus, I canno t speculate on whether or not Student would have been found elig ible for special education – and thus have a right to FAPE. There is ample evidence, however, that the District’s decision significantly impeded the Parent’s opportunity to participate in the decision-making process regar ding whether or not to provide 7 I do not apply the standard “Burlington-Carter” analysis here. This is required only where the unilateral placement is to a private school, where the IDEA does not apply to the pa rental placement, and tuition reimbursement would allocate public budgetary resour ces to a private entity. Here, Parents chose a public school district, which does not implicate these considerations. See, e.g., T.L. v. Lower Merion Sch. Dist., 2016 U.S. Dist. LEXIS 80315 (E.D. Pa. June 20, 2016). See also, 34 C.F.R. §300.148(equitable rules fo r unilateral private placement). Nevertheless, my findings and conclusions analogously address all three steps of that analysis.

17 Student with a FAPE. Thus, I conclude that I am authorized to find and remedy a denial of a FAPE, as defined in 34 C.F.R. §300.513(a)(2). As there is no finding of a denial of a FAPE, I cannot order c ompensatory education. Nevertheless, Student’s tenth grade year was not “free” to Pare nt, even though she sought a “public” education for Student. It cost Parent something to kee p her child safe from additional trauma and the risk of another descent into suicidal depression . I conclude further that this cost was directly the result of the D istrict’s procedural failure to comply with its “child find” obligations. Therefore, exercising my equitable authority as a hearing officer for special education, I conclude that it is appropriate to order the District to reimburse Parent for the amount of the non- resident fee that Parent paid to the neighboring school distric t, in order to remedy its procedural violation that impeded Parent’s opportunity to participate in t he decision as to whether or not Student was eligible for special education. I also conclude that such an order is appropriate under section 504. By refusing to evaluate Student for special education accommodations under section 504, the District effectively excluded Student from its services and forced Parent to pay for public school services elsewhere. I conclude that it thus violated section 504 substantively and that reimbursement is the appropriate remedy by analogy to tuition reimbursement for unilateral private placement. CONCLUSION In sum, I find that the District violated its Child Find oblig ations under both the IDEA and section 504 by failing to evaluate Student for special educatio n when it was reasonably on notice that Student might be a child with a disability with rights under both statutes. In consequence, the District impeded Parent’s right to participate in the eligibili ty decision. In equity, I conclude that

18 it is appropriate to order the District to remediate this violation by reimbursing Parent for the cost of the unilateral placement in a neighboring school district. ORDER In accordance with the foregoing findings of fact and conclusio ns of law, it is hereby ORDERED that the District shall reimburse the Parent forthwith in the amount of $10, 200.00 for the full cost of the non-resident fee or tuition that Parent paid for the privilege of enrolling Student in the neighboring school district. 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. H E A R I N G O F F I C E R July 25, 2016