AB. vs.Council Rock School District

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: A.B.

Date of Birth: [redacted]

Dates of Hearing: January 15, CLOSED HEARING

ODR File No. 14522-1314KE

Date Record Closed: January 16, 2014

Date of Decision: January 27, 2014

Hearing Officer: Cathy A. Skidmore, M.Ed., J.D.

 

INTRODUCTION AND PROCEDURAL HISTORY

The student1 (hereafter Student) is an elementary school-aged student in the Council
Rock School District (hereafter District). Student was previously identified as eligible for
special education pursuant to the Individuals with Disabilities Education Act (IDEA).
2TheDistrict filed a due process complaint against the Parents to defend its most recent Occupational
Therapy evaluation of Student after the Parents requested an independent educational evaluation
(IEE).

The case proceeded to a due process hearing which convened in one session. The Parents
did not attend the hearing;3 however, the District did present evidence in support of its position.

For the reasons set forth below, I find in favor of the District.

ISSUE

Whether the District”s Occupational Therapy evaluation of Student in November 2013
is appropriate.

FINDINGS OF FACT

1. Student is an elementary school-aged student residing in the District. (School
District Exhibit (S-) 1 p. 1, S-9 p. 1)

2. Student was first evaluated in November 2008 when Student was in kindergarten, at
the request of the Parents. Student”s articulation was noted to be of concern, and a
speech/language evaluation performed with parental consent confirmed articulation
to be a need for Student. Following completion of that evaluation, Student was
determined to be eligible for speech/language services. (Notes of Testimony (N.T.)
22-23; S-1)

3. An Individualized Education Program (IEP) was developed for Student following the
November 2008 evaluation to address Student”s speech/language needs. (N.T. 24)

1 In the interest of confidentiality and privacy, Student”s name (which appears on the cover page only) and gender
are not used in the body of this decision. The redacted version of this decision made available pursuant to 20 U.S.C.
§§ 1415(h)(4) and 1427(c), and 34 C.F.R. § 300.513(d), will not include Student”s name or other personally-
identifiable information.
2 20 U.S.C. §§ 1400-1482.
3 The hearing was closed to the public and the identity of those present for the hearing were noted on the record.
Telephone calls to the Parents after the hearing was scheduled to convene went unanswered and were noted on the
record. (Notes of Testimony (N.T.) 6-8) The various written communications to the Parents about this hearing from
this hearing officer and the District, including the notice of the January 15, 2014 hearing date, were marked
collectively as Hearing Officer Exhibit (HO-) 1, and a copy of that document was sent to the Parents by first class
mail the day after the hearing. HO-1 is hereby admitted into the record.
ODR File No. 14522-1314KE, Page 3 of 10

4. A new IEP was developed for Student in November 2009 for the 2009-10 school
year (first grade) to address Student”s speech/language needs. In the fall of 2009,
Student was referred for an Occupational Therapy (OT) evaluation and the referral
was sent to the local Intermediate Unit (IU). (N.T. 23-26; S-2, S-3)

5. The IU conducted the requested OT evaluation in March 2010. This evaluation
included a review of records, an observation, and assessments including the
Bruininks-Oseretsky Test of Motor Proficiency 2 (BOT2) and the Motor-Free Visual
Perception Test – Revised. Fine motor skill difficulties noted were writing and
copying speed, and assessments indicated needs in visual-perceptual and fine motor
skills. This evaluation report recommended OT for Student, and Student”s IEP was
revised to include OT as a related service. (N.T. 24-28; S-2, S-4)

6. Student”s IEP developed in November 2010 included consultative speech/language
therapy and OT as related services. (N.T. 28-30; S-5)

7. The District conducted a re-evaluation in the spring of 2011. A Re-evaluation
Report (RR) dated April 7, 2011 included input from the Parents and Student”s
teacher and speech/language therapist; cognitive assessment (Wechsler Intelligence
Scale for Children – Fourth Edition (WISC-IV)); achievement testing (Wechsler
Individual Achievement Test Third Edition (WIAT-III): a Qualitative Reading
Inventory (QRI); and behavior rating scales (Behavior Assessment System for
Children, Second Edition (BASC-2)). (N.T. 30-32; S-6)

8. The April 2011 RR reflected that Student”s general cognitive ability based on the
WISC-IV was in the high average range (FSIQ=117). Student performed slightly
better on verbal tasks than on nonverbal tasks. All composite scores were within the
high average or average range. (S-6 pp. 5-6)

9. On the WIAT-III as reported in April 2011, Student scored in or above the average
range on all reading, mathematics, and written expression subtests. Student”s Math
Fluency composite score was above average while the Basic Reading and
Mathematics composite scores were in the average range. (S-6 pp. 8-9)

10. The QRI reported in April 2011 revealed that Student was instructional at the second
grade level (Student”s grade level) in vocabulary and word recognition, fluency, and
comprehension. (S-6 p. 7)

11. Results of the BASC-2 scales in the spring of 2011 reflected parental concerns in the
clinically significant range on the Clinical Scales in the areas of Hyperactivity,
Anxiety, and Atypicality, and teacher concerns in the clinically significant range in
the areas of Hyperactivity, Anxiety, and Attention Problems. There were some at-
risk scores on each Scale, but no clinically significant scores on any of the
Composite Scales or on the Adaptive Scales. (SD-6 pp. 9-11)

12. The April 2011 RR recommended that Student be exited from Speech and Language
Support, and concluded that Student was not a child with a disability and was not
ODR File No. 14522-1314KE, Page 4 of 10 eligible for special education.4 However, the RR did recommend evaluation for a determination of Student”s eligibility under Section 504.5 (S-6 pp. 11-12)

13. Student was again referred for an OT evaluation in the fall of 2013, and the Parents
provided consent. As in 2010, this referral was directed to the local IU to conduct
the evaluation. (N.T. 25, 33-34, 42; S-8)

14. The occupational therapist who conducted the November 2013 OT evaluation has a
Master”s degree in occupational therapy and a post-professional degree in sensory
integration. She has been employed by the IU as an occupational therapist for twelve
years. (N.T. 40-41)

15. The resulting OT Evaluation Report includes a review of records, a telephone
interview with one of the Parents, input from Student”s teachers, and an interview
with and observations of Student, in addition to formal assessment. (N.T. 34-35, 42-
44, 49-50; S-10)

16. Parent input into the 2013 OT evaluation reflected concerns with Student”s
assignment completion particularly with written work, as well as with attention,
sensory sensitivity, anxiety, and behaviors exhibited at home. The Parents did
request that the OT evaluation include a Sensory Integration and Praxis Test (SIPT).
(N.T. 42-43, 46-47, 50; S-10 pp. 1-2)

17. Teacher input into the 2013 OT evaluation did not reveal any OT concerns, although
distractibility requiring redirection was noted. Teachers did not report a concern
with Student”s anxiety. (N.T. 43-44, 50; S-10 pp. 1-2)

18. In Student”s interview with the OT evaluator for the 2013 evaluation, Student
reported that writing was a least preferred activity because Student had difficulty
deciding what to write about or remembering what Student planned to write. (S-10
p. 2)

19. The OT evaluator”s observations of Student in a classroom, at lunch, and at recess in
the fall of 2013 did not reveal any OT concerns, although Student did exhibit
difficulty staying on task at times. Among other things, during the observations
Student was able to complete a written worksheet, engage in gross motor activities
with other students, and open packaging and eat Student”s lunch, in addition to
engaging in social interactions with peers. (N.T. 45-46; S-10 p. 2)

20. Formal OT assessment for the 2013 evaluation consisted of a Clinical Observation of
Motor and Postural Skills (COMPS), the Fine Motor Control section of the BOT2,
the Beery-Buktenica Visual-Motor Integration Test of Visual Perception (Beery
VMI), and a Sensory Processing Measure Questionnaire. These instruments are4 The District on several occasions sent to the Parents a Notice of Recommended Educational Placement (NOREP),
but the record does not establish that the Parents ever signed and returned that NOREP. (N.T. 32-33; S-7)
5 29 U.S.C. § 794. The District did subsequently conduct such an evaluation (N.T. 32) but the resulting report was
not made part of the record.ODR File No. 14522-1314KE, Page 5 of 10
appropriate measures for a student of Student”s age in the school setting. (N.T. 48-
50, 52-53; S-10)

21. The 2013 COMPS assessment revealed good postural and head control, appropriate
balance and reflexes, average muscle tone, above average flexibility in both hands,
and functional gross motor skills and neuromuscular status. (S-10 pp. 2-3)

22. Student”s performance on the BOT2 in the fall of 2013 reflected good bilateral
coordination, and Student scored in the average range on fine motor precision and
fine motor integration components. Student demonstrated an ability to produce two
legible writing samples and was fluent in forming letters and spaces between words,
exhibiting functional fine motor skills. (S-10 p. 3)

23. Student scored in the 63
rd percentile on the Beery VMI in the fall of 2013, exhibiting
good visual discrimination, form-constancy, and figure-ground perception. Student”s
visual-motor and visual-perceptual skills were age-appropriate. (S-10 p. 3)

24. The occupational therapist who conducted the 2013 OT evaluation did not administer
the SIPT, although she is certified to do so, because Student was outside of the age
range for the instrument, and also because she did not believe it would sufficiently
assess Student”s functional performance in the educational environment. The
evaluator instead used other measures to assess Student”s sensory functioning. (N.T.
46-48, 52)

25. Student”s teacher completed the Sensory Processing Measure Questionnaire for the
2013 OT evaluation, which includes a number of component areas (social
participation, vision, hearing, touch, taste and smell, body awareness, balance and
motion, and planning and ideas) and provides an overall score. Student”s score was
typical in all component areas except for some difficulty in the areas of planning and
ideas which was deemed “not significant” (S-10 p. 4), and overall sensory
processing and integration was commensurate with that of typical peers. (NT. 44; S-
10 pp. 3-4)

26. Student”s problem solving and independent self-care skills were also determined to
be age-appropriate in the fall of 2013. (S-10 p. 4)

27. Based on all of the information obtained through the OT evaluation, the evaluator
concluded that Student did not demonstrate a need for OT services, including any
need with respect to sensory processing and sensory regulation. The Parents were
provided with a copy of the 2013 OT evaluation report. (N.T. 53-55; S-10 p. 4)

28. Sometime after receiving the 2013 OT evaluation, the Parents requested an IEE with
respect to that evaluation. The District denied that request and filed a due process
complaint. (N.T. 22, 35, 38-39)

29. The District drafted a Section 504 Service Agreement in November 2013 following
the OT evaluation, and that document was provided to the Parents. As of the date of
this hearing, the Parents had not approved that Agreement. (N.T. 36-37; SD-9)
ODR File No. 14522-1314KE, Page 6 of 10

30. At some point, the Parents requested another evaluation under the IDEA, which the
District was in the process of conducting at the time of the due process hearing. That
evaluation will include another OT evaluation. (N.T. 37)

DISCUSSION AND CONCLUSIONS OF LAW

General Legal Principles

Broadly stated, the burden of proof consists of two elements: the burden of production
and the burden of persuasion. At the outset, it is important to recognize that the burden of
persuasion lies with the party seeking relief.6 Accordingly, the burden of persuasion in this case
rests with the District which requested this hearing. Courts in this jurisdiction have generally
required that the filing party meet their burden of persuasion by a preponderance of the
evidence.7 Nevertheless, application of these principles determines which party prevails only in
cases where the evidence is evenly balanced or in “equipoise.” The outcome is much more
frequently determined by which party has presented preponderant evidence in support of its
position.

Hearing officers are also charged with the responsibility of making credibility
determinations of the witnesses who testify.8 This hearing officer found the two witnesses who
testified in this hearing to be credible.

6 Schaffer v. Weast, 546 U.S. 49, 62 (2005); L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006).
7 See Ramsey, supra note 6.
8 J. P. v. County Sch. Bd., 516 F.3d 254, 261 (4th Cir. Va. 2008); see also T.E. v. Cumberland Valley Sch. Dist.,
2014 U.S. Dist. LEXIS 1471 *11 (M.D. Pa. 2014) (observing that hearing officers have the discretion to weigh the
testimony of witnesses); J.E. v. Boyertown Area Sch. Dist., 834 F.Supp.2d 240, 253 (E.D. Pa. 2011) (explaining that
courts will defer to the hearing officer on credibility determinations, since the hearing officer “is in the best position to observe the witness.”)

ODR File No. 14522-1314KE, Page 7 of 10

IDEA Principles

The IDEA requires the states to provide a “free appropriate public education” (FAPE) to
all children who qualify for special education services. 20 U.S.C. §1412. The IDEA and state
and federal regulations obligate school districts to locate, identify, and evaluate children with
disabilities who need special education and related services. 20 U.S.C. § 1412(a)(3); 34 C.F.R. §
300.111(a); see also 22 Pa. Code §§ 14.121-14.125. The IDEA sets forth two purposes of the
required evaluation: to determine whether or not a child is a child with a disability as defined in
the law, and to “determine the educational needs of such child[.]” 20 U.S.C. §1414(a)(1)(C)(i).

The IDEA further defines a “child with a disability” as a child who has been evaluated
and identified with one of a number of specific classifications and who, “by reason thereof,
needs special education and related services.” 20 U.S.C. § 1401; 34 C.F.R. § 300.8(a). “Special
education” means specially designed instruction which is designed to meet the child”s individual
learning needs. 34 C.F.R. § 300.39(a).

In conducting the evaluation, the law imposes certain requirements on local education
agencies to ensure that sufficient and accurate information about the child is obtained:
(b) Conduct of evaluation. In conducting the evaluation, the public agency must-

(1) Use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information about the child,
including information provided by the parent, that may assist in determining-

(i) Whether the child is a child with a disability under § 300.8; and
(ii) The content of the child”s IEP, including information related to
enabling the child to be involved in and progress in the general education
curriculum (or for a preschool child, to participate in appropriate
activities);

(2) Not use any single measure or assessment as the sole criterion for
determining whether a child is a child with a disability and for determining an
appropriate educational program for the child; and

ODR File No. 14522-1314KE, Page 8 of 10
(3) Use technically sound instruments that may assess the relative contribution
of cognitive and behavioral factors, in addition to physical or developmental
factors.

34 C.F.R. §§ 300.304(b). The evaluation must assess the child “in all areas related to the
suspected disability.” 34 C.F.R. § 300.304(c)(4); see also 20 U.S.C. § 1414(b)(3)(B).
Additionally, the evaluation must be “sufficiently comprehensive to identify all of the child”s
special education and related services needs, whether or not commonly linked to the disability
category in which the child has been classified,” and utilize “[a]ssessment tools and strategies
that provide relevant information that directly assists persons in determining the educational
needs of the child[.]” 34 C.F.R. §§ 300.304(c)(6) and (c)(7); see also 20 U.S.C. § 1414(b)(3).
Upon completion of all appropriate assessments, “[a] group of qualified professionals and
the parent of the child determines whether the child is a child with a disability … and the
educational needs of the child[.]” 34 C.F.R.§ 300.306(a)(1). In interpreting evaluation data and
making these determinations on eligibility and educational needs, the team must:
(i) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child”s physical
condition, social or cultural background, and adaptive behavior; and

(ii) Ensure that information obtained from all of these sources is
documented and carefully considered.

34 CFR 300.306(c). School districts are responsible for conducting the required assessments,
and also must provide a copy of the evaluation report and documentation of the eligibility
determination to parents at no cost. 34 C.F.R. §§ 300.305(c) and 300.306(a)(2).
When parents disagree with a school district”s educational evaluation, they may request
an IEE at public expense. 34 C.F.R. § 300.502(b); 20 U.S.C. § 1415(b)(1). When a parent
requests an IEE, the local education agency must either file a request for a due process hearing to
ODR File No. 14522-1314KE, Page 9 of 10
establish that its evaluation was appropriate, or ensure that an IEE is provided at public expense.
34 C.F.R. § 300.502(b)(2). In this case, the District filed a request for due process seeking a
determination that its reevaluation was appropriate. (Finding of Fact (FF) 28)

The District”s November 2013 OT Evaluation
The record establishes that the District utilized a variety of assessment instruments, as
well as observations and input from Student, the Parents, and teachers, in gathering information
about Student”s OT performance and in making the determination of Student”s eligibility for
those services. (FF 15-26) Each instrument was carefully chosen and administered by an
evaluator who is trained and knowledgeable in the field and qualified to administer them. (FF
14, 20, 24) The OT evaluation included tools designed to evaluate Student”s gross and fine
motor skills, sensory processing and regulation functioning, visual-motor and visual-perceptual
skills, and self-care and problem solving abilities. (FF 19-26) All of the concerns expressed by
the Parents with respect to OT were explored in the November 2013 evaluation. (FF 16, 19-26)
The evaluator testified, quite credibly, how and why she chose the specific sensory
assessments she utilized rather than the Parent-requested SIPT. (N.T. 47-49, 52) She also
persuasively testified that she did not discern a need for any further assessment for OT needs and
believed the evaluation to be sufficiently thorough to reach her conclusions. (N.T. 53-54) All of
the foregoing reasons lead this hearing officer to conclude that the District performed a
comprehensive and appropriate OT evaluation of Student.
9This hearing officer was not made aware of the reasons for the Parents” dissatisfaction
with the OT evaluation. It may be that, and would be understandable if, the Parents disagree

9 The record is unclear whether a separate meeting convened to discuss and determine Student”s eligibility for OT
services. (N.T. 35) In any event, the parties” respective positions on Student”s eligibility for OT services is apparent
from the record as a whole, and it merits repeating that the District is currently conducting an evaluation of Student
under the IDEA, which has or will include another OT evaluation. (FF 30)
ODR File No. 14522-1314KE, Page 10 of 10
with the evaluator”s conclusion that Student does not demonstrate a need for OT in the school
environment. However, the standard for determining whether an evaluation is appropriate is not
whether everyone agrees with its conclusions. As explained above, the District”s OT evaluation
meets the criteria specified in the law and, therefore, this hearing officer finds that there is no
basis on which to order an independent OT evaluation at public expense.

CONCLUSION

Based on the foregoing findings of fact and for all of the above reasons, this hearing
officer concludes that the District”s November 2013 OT evaluation of Student was appropriate.
Accordingly, there will be no award for an IEE at public expense.

ORDER

In accordance with the foregoing findings of fact and conclusions of law, it is hereby
ORDERED as follows.

1. The District”s November 2013 OT evaluation was appropriate.
2. The District need take no further action.
It is FURTHER ORDERED that any claims not specifically addressed by this decision
and order are denied and dismissed.

Cathy A. Skidmore
_____________________________
Cathy A. Skidmore
HEARING OFFICER

Dated: January 27, 2014

A-B-Council-Rock-ODRNo-14522-1314KE