AB. vs. Pleasant Valley 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]

CLOSED HEARING

ODR File 18366 16 17

Dates of Hearing :

5/2/17, 5/3/17, 7/25/17, 7/31/17

Parent(s) :

[redacted]

Heather M. Hulse, Esquire, M cAndrews Law Offices, P. C.,

404 North Washington Avenue, Suite 310,

Scranton, PA 18503

Counsel for Parents

School District:

Pleasant Valley School District, 2233 Route 115,

Brodheadsville, PA 18322

Glenna M. Hazeltine, Esquire , King Sp ry Herman Freund & Faul LLC, One West Broad Street, Suite 700,

Bethlehem, PA 18018 Counsel for the Local Educational Agency

Date of Decision :

9/16/17

Hearing Officer :

Cathy A. Skidmore, M.Ed., J.D.

INTRODUCTION

The student (hereafter Student)1 is a beyond-teenaged young adult who previously
resided in and attended the Pleasant Valley School District (District). Prior to graduation,
Student was eligible for special education pursuant to the Individuals with Disabilities Education
Act (IDEA)2 on the bases of Autism, Intellectual Disability, and a Speech/Language Impairment.

Adult Training Facility (ATF) for vocational programming several days each week.
s filed the instant due process complaint against the District in October
2016, asserting that it denied Student a free, appropriate public education (FAPE) under the
IDEA and Section 504 of the Rehabilitation Act of 1973.3 The case proceeded to a due process
hearing that was continued for a variety of unavoidable reasons, and ultimately convened over
four sessions.4 The Parents sought to establish that the District failed to
and varied needs throughout the time period in question, and that a compensatory remedy was
warranted. The District maintained that its special education program, as offered and
implemented, was appropriate for Student and that no relief was due.
For the reasons set forth below, the and denied in
part.

1 , and other potentially identifiable
information, are not used in the body of this decision.
2 20 U.S.C. §§ 1400-1482. The federal regulations implementing the IDEA are codified in 34 C.F.R. §§ 300.1
300. 818. The applicable Pennsylvania regulations are set forth in 22 Pa. Code §§ 14.101 14.163 (Chapter 14).
3 29 U.S.C. § 794.
4 References to the record throughout this decision will be to the Notes of Testimony (N.T.), Parent Exhibits (P-)
followed by the exhibit number, School District Exhibits (S-) followed by the exhibit number, and Hearing Officer
Exhibits (HO-) followed by the exhibit number. Citation to the hearing transcript from the May 2015 session will be
to S-47 followed by the exhibit page number and then the transcript page number (e.g., S-47 p. 3 at 12). References
to Parents in the plural will be made where it appears that one was acting on behalf of both, and to the singular period in question.

PROCEDURAL HISTORY

A. The Parents previously filed a Due Process Complaint against the
District in 2015, proceeding pro se, and an initial hearing session
convened on May 5, 2015. (S-47)

B. The Parents subsequently retained counsel, and the parties reached an
agreement to conduct independent evaluations and to toll the filing date
to late July 2013. (S-19 p. 2, S-25 p. 1, S-26 p. 2)

C. The Parents filed the instant Complaint in October 2016. (S-25)

D. any remedy, to the period of late July 2013 to the end of the 2015-16
school year. The Parents did not attempt to raise claims that pre-dated
July 2013, but did seek relief consistent with G.L. v. Ligonier Valley
School District Authority, 802 F.3d 601, 625 (3d Cir. 2015). This
hearing officer concluded that G.L. did apply to this case, noting that
the Complaint was filed approximately one year after G.L. was decided
by the Third Circuit. (N.T. 410-12, 708-10; HO-2)

E. The Parents offered a number of exhibits to support their suggested
remedy under G.L., virtually all of which were education records of
Student for the period of time that Student was enrolled in the District
prior to the fall of 2012. The District objected to admission of those
documents, and this hearing officer reserved ruling on the Parent
exhibits. (N.T. 815-20) The admission of those exhibits is discussed
infra.

ISSUES

1. Whether the educational program developed and implemented for unique needs between late July 2013 and the end of the 2015-16 school year; and

2. If the educational program was not appropriate for Student, whether Student should be awarded compensatory education and, if so, in what form and amount?

FINDINGS OF FACT

1. Student is a beyond-teenaged young adult. During the time period in question, Student
attended school in the District and was eligible for special education under the IDEA classifications of Autism, Intellectual Disability, and Speech/Language Impairment. Student was also a protected handicapped Student under Section 504 and Chapter 15 throughout that period of time. (N.T. 31-32; S-1, S-10)

2. Student attended school in the District since entry into public school at the start of the
2000-01 school year. (S-1 p. 1)

3. Student tends to isolate self from noisy environments, sometimes returning on Student’s own or with prompting. In the classroom, Student would take a break to calm self at those times. Student would likely not do well with vocational pursuits in a noisy environment. (N.T. 324-25, 426, 720-21; S-4 p. 4)

4. Student exhibited anxiety at school on occasion, usually over something involving the
family including the Parent attending an IEP meeting. When anxiety was manifested,
Student could sometimes be easily redirected and required more prompting at other
times. (N.T. 348-49, 422, 426, 545-46, 747-48)

5. Student is a better auditory learner than a visual learner. (N.T. 589)

6. Student needs to continue to practice and expressive language skills, including pragmatic language, due to Student’s unique needs. (N.T. 206 – 07)

7. Student needs continued repetition and practice of academic skills in order to maintain
those skills. (N.T. 464, 693; S-1)

8. Student’s attendance impacted Student’s ability to learn and maintain skills. (N.T. 185 – 87, 283 – 84, 344, 368, 379, 436, 680; S – 3, S – 6, S – 12 )

9. When a student misses a significant number of school days, the District convenes a
meeting to develop a truancy elimination plan and also recommends a psychiatric evaluation. (N.T. 333-34)

10. The District did not develop a truancy elimination plan for Student. (N.T. 380)

11. Student graduated after the 2015 – 16 school year concluded and the District delivered Student’s diploma to the home. Student did not attend any educational program since that time. (N.T. 32 – 34, 680, 742 – 43, 731, 739)

12. The Parents want Student to learn a trade in order to be employable and to be self-
sufficient. (N.T. 737)

13. Student would need support in order to function in a community work setting. (N.T. 250-
51, 258-59, 443, 547-48)

EDUCATIONAL BACKGROUND

14. The District conducted an evaluation of Student and issued a Reevaluation Report (RR)
in November 2012. (N.T. 42; S-1)

15. The District school psychologist understood that the purpose of the November 2012 RR
was to determine whether Student was making progress within the curriculum as well as
toward IEP goals. (N.T. 55)

16. Parent input into the November 2012 RR reflected concerns that Student was regressing
despite having the ability to retain information, and that Student isolated self. (S-1 p. 2)

17. Student was cooperative with the administration of cognitive assessment for the 2012
RR, the Wechsler Adult Intelligence Scale Fourth Edition (WAIS-IV). Student attained
a Full Scale IQ score (47) in the extremely low range (< 0.1 percentile) with all Index
scores also in the extremely low range. (S-1 p. 2)

18. The District school psychologist obtained teacher
behavior (Adaptive Behavior Assessment System Second Edition (ABAS-II)) for the
2012 RR. Student reportedly exhibited extremely low adaptive behavior with the
exception of School Living (below average range). No Parent ABAS-II rating scales
were obtained because the District was looking at performance in the school
environment. (N.T. 48, 64; S-1 pp. 2-3)

19. The District school psychologist did not conduct any academic achievement assessment
for the 2012 RR but obtained curriculum-based assessments to determine how Student
was performing within the curriculum. Student reportedly was at an instructional second
grade level in reading comprehension and mathematics skills. (N.T. 48, 55-56; S-1 p. 3)

20. The District school psychologist did not observe Student in the classroom for the 2012
RR. She did not find any
or social functioning. (N.T. 50, 57, 60, 62, 68-69; S-1)

21. Teacher input into the 2012 RR reflected that Student was provided small group reading,
language arts, and mathematics instruction in the Life Skills classroom. Student required
prompting and redirection to maintain focus and attention and follow directions
throughout the school day, especially when presented with non-preferred tasks. Student
also needed continued repetition and practice in order to maintain skills. The classroom
incentive program was reportedly successful for Student. (S-1)

22. Teachers also reported that Student participated in vocational instruction and experiences
at school, demonstrating difficulty with multi-step directions especially with unfamiliar
tasks. Student learned new vocational skills with direct instruction and prompting until a
task became familiar. (S-1)

23. Teacher input also reflected that Student engaged socially with peers and adults, but that
there were times that Student would choose to draw quietly alone during free time. (S-1
p. 4)

24. Speech/language input into the 2012 RR included results of the Expressive One-Word
Picture Vocabulary Test Fourth Edition (EOWPVT) and the Receptive One-Word
Picture Vocabulary Test Fourth Edition (ROWPVT). Student was cooperative with
those tests, attaining scores at the 1st percentile on the EOWPVT and below the 1st
percentile on the ROWVT. Continuation of speech/language therapy twice per six-day
cycle was recommended. (S-1 p. 5)

25. The November 2012 RR identified Student as eligible for special education on the bases
of Autism, Intellectual Disability, and a Speech or Language Impairment.
Recommendations included continuation of small group instruction and a functional
curriculum, community-based instruction, and prompts for focus. (S-1)

26. The District school psychologist who issued the November 2012 RR did not meet with
the Parents to review its results. (N.T. 52)

27. An Individualized Education Program (IEP) was developed in early December 2012 after
the RR. The Parents and Student did not attend this meeting. (S-2)

28. At the time of the December 2012 IEP, Student was demonstrating reading
comprehension and reading accuracy skills on a Qualitative Reading Inventory (QRI) at
the same level as the previous school year, reflecting a second grade instructional reading
level. (S-2 pp. 9-10)

29. At the time of the December 2012 IEP, Student demonstrated the ability to provide
written demographic information when requested, but needed prompts and further
practice in completing forms requiring such information. Student at that time indicated
an interest in employment in retail or personal service. (S-2 p. 11)

30. The December 2012 IEP noted needs with respect to semantic and pragmatic language;
reading comprehension; functional mathematics skills; attention and focus; following
directions containing more than one step; continued development of safety awareness;
and vocational skills (completing forms/applications, self-advocacy, and exploring
vocational opportunities). (S-2 p. 14)

31. Transition services in the December 2012 IEP noted goals for supported employment
opportunities but not post-secondary education, and supported living. Activities toward
the employment goal included job site instruction for school- and community-based tasks
and completion of a career interest survey. Student had already completed an application
with the Office of Vocational Rehabilitation (OVR). Activities toward the supported
living goal included instruction in activities of daily living. (S-2)

32. The December 2012 IEP provided annual goals and short term objectives in functional
mathematics skills (telling time, counting money and determining amounts of purchase
and change, solving word problems using addition, subtraction or money, using fractions for measuring recipe ingredients, and comparing quantities and amounts); reading
comprehension at a third grade level other comprehension questions, using comprehension strategies) and reading fluency and accuracy; expressive, receptive, and pragmatic language (identifying items within
categories, labeling items/events, conversational turns with prompting); vocational skills
(identifying jobs of interest, completing applications with demographic information, and
following multi-step directions and focusing attention); and activities of daily living
(following multi-step directions and focusing attention, danger awareness). (S-2)
33. Program modifications/items of specially designed instruction in the December 2012 IEP
were for small group reading instruction, a modified curriculum focused on key concepts,
a functional academic curriculum, materials read to and reviewed with Student, test
accommodations and modifications, repeated and simplified directions, additional
processing time, presentation of new vocabulary both visually and auditorally, prompts
and assistance for written tasks, prompts for focus and task completion, use of a
calculator, positive reinforcement, community-based instruction, opportunities for
practice and repetition of skills, and communication with the Parents. Small group
speech/language support and daily transportation were related services. (S-2)
34. Student was determined to be not eligible for Extended School Year (ESY) services program was for life skills for all academic, daily living, and vocational instruction in addition to speech/language support. The Parents approved the
accompanying Notice of Recommended Educational Placement (NOREP). (S-2)

35. Over the course of the 2012 – 13 school year, Student was deemed to have made moderate progress on all of the IEP go als and objectives. By the fourth quarter, the progress report reflected Student’s absences as impacting Student’s progress with reading. (S – 3)

36. The District uses a subjective rating scale for reporting progress on IEP goals and
objectives. Teachers can give two numbers if a student is between the choices. (N.T.
199, 205-06, 664-65)

37. At the end of the 2012-13 school year, the Parent and District discussed Student
graduating, and the parties communicated with OVR. The District provided contact
information for OVR and made an initial contact for Student, but the Parent needed to
handle the registration. The Parent then arranged for Student to be provided some
vocational services outside of the District through OVR. In addition, OVR conducted a
community-based work assessment in July 2013, and at that time Student reportedly
exhibited difficulty with multi-step directions and tasks and maintaining focus and
attention, and resisted redirection. (N.T. 365-66, 433, 724-25, 760, 775-76; S-4, S-47 p.37 at 145-47)

38. Student believed Student would graduate at the end of the 2012-13 school year and did
not want to return to school in the fall of 2013. (N.T. 713-14)

2013-14 SCHOOL YEAR

39. Student’s IEP team met in October 2013 to develop a new IEP. The Parent and Student attended the meeting. (S – 5)

40. In September 2013, Student obtained scores on the EOWPVT and ROWPVT that were
identical to the scores from September 2012 (at and below the 1st percentile, respectively). (S-5 p. 11)

41. In September 2013, Student remained at a second grade instructional reading level,
making a slight increase in word accuracy and comprehension and a slight decrease in
fluency from September 2012. (S-5 p. 11)

42. The October 2013 IEP noted needs with respect to semantic and pragmatic language;
reading comprehension; functional mathematics skills; attention and focus; following
directions containing more than one step; continued development of safety awareness;
and vocational skills (completing forms/applications, self-advocacy, and exploring
vocational opportunities). (S-5)

43. Transition services in the October 2013 IEP noted goals for supported employment
opportunities (with improvement of job skills) and supported living. Activities toward
the employment goal included attendance at the ATF two days per week, completion of
an interest inventory and career survey, and prompting for interpersonal skills with peers.
Activities toward the supported living goal included instruction in activities of daily
living. (S-5)

44. The October 2013 IEP provided annual goals and short term objectives in functional
mathematics skills (telling time, counting money and determining amounts of purchase
and change, solving word problems using addition, subtraction, or money, and linear
measurement); reading comprehension at a third grade level (identifying story elements,
answering comprehension questions, using comprehension strategies) and reading
fluency and accuracy; expressive, receptive, and pragmatic language (identifying items
within categories, labeling items/events, conversational turns with prompting); vocational
skills (identifying jobs of interest, completing applications with demographic
information, and following multi-step directions and focusing attention); and activities of
daily living (following multi-step directions and focusing attention, danger awareness).
(S-5)

45. Program modifications/items of specially designed instruction in the October 2013 IEP
remained essentially the same, with the addition of breaks to reinforce on-task behavior
and parental contact regarding transportation when Student would not attend the ATF.
The provision for vocabulary presentation was removed. Transportation was removed as
a related service, but the speech/language therapy remained. (S-5)

46.Student was determined to be not eligible for ESY services again because Student’s ability to recoup skills and make progress on IEP goals was deemed to be adequate. Student’s program was for life skills for all academic, daily living, and vocational instruction in addition to speech/language support. The Parent approved the accompanying NOREP. (S – 5)

47. Over the course of the 2013-14 school year, Student was deemed to have made moderate
progress on most of the IEP goals and objectives, with the exception of the objective for
using a clock to take a break that was not introduced and more limited progress on the
objectives for following multi-step directions and focusing attention. Student was absent
from school more than twenty school days that school year and missed a portion of
school days on several other occasions; however, ten of the missed full days were at the
very start of the school year. (N.T. 330-31; S-6, S-7)

48. The Parents advised the District that Student would not return to school in the fall of
2014. (N.T. 185; S-8 p. 15)

2014-15 SCHOOL YEAR

49. September 2014 after the Parents advised that Student
would return for the 2014-15 school year, and Student did return on September 15, 2014.
No revisions were made to the IEP at that time. (N.T. 432-33, 760-61, 768; S-8)

50. Student was disappointed that Student returned to school in the fall of 2014 and
expressed the belief to teachers that Student should not be back in school. (N.T. 433-35,
545-46)

51. In September 2014, Student obtained a score on the EOWPVT below the 1st percentile.
Student also scored below the 1st percentile on the Peabody Picture Vocabulary Test,
Fourth Edition (PPVT-4) (which measures receptive vocabulary, see S-18 pp. 6-7). (S-8
p. 15; HO-1)

52. In September 2014, Student remained at a second grade instructional reading level, with a
slight decrease in word accuracy and fluency, and a significant decrease in
comprehension, from September 2013. Student showed some improvement in reading
accuracy at a third grade level over the previous September. (S-8 p. 16)

53. A transition assessment was conducted in late September 2014, including an interview
with Student and completion of a Picture Interest Career Survey. (N.T. 442; S-23)

54. The District convened another meeting of the IEP team in October 2014 for development
of a new IEP, but the Parents did not attend. The District members of the IEP team met days at the ATF. They also discussed other vocational programs in the area. The District planned to but did not propose an increase in the number of days per week at the ATF because the Parents were not in attendance. (N.T. 298-300, 429-30, 432; S-8 pp. 9-10)

55. The October 2014 IEP noted that the Parents had not provided input into that document,
asking the District to rely on prior information. As in the prior IEP, needs were identified
with respect to semantic and pragmatic language; reading comprehension; functional of mathematics skills; attention and focus; following directions containing more than one step; continued development of safety awareness; and vocational skills (completing forms/applications, self-advocacy, and exploring vocational opportunities). (S-8)

56. Transition services in the October 2014 IEP noted goals for supported employment
opportunities (with improvement of job skills) and supported living. Activities toward
the employment goal included attendance at the ATF three days per week, completion of
an interest inventory and career survey, and prompting for interpersonal skills with peers
in addition to participating in self-advocacy scenarios. Contact information for OVR and
two other vocationally-oriented agencies was also provided. Activities toward the
supported living goal included instruction in activities of daily living. (S-8)

57. The October 2014 IEP provided annual goals and short term objectives in functional
mathematics skills (using fractions for measuring recipe ingredients, telling time,
counting money, solving functional word problems using money); reading
comprehension at a third grade level (identifying story elements, answering
comprehension questions, using comprehension strategies), reading fluency and
accuracy; expressive, receptive, and pragmatic language (vocabulary including synonyms
and antonyms, conversational turns with prompting); and daily living (following multi-
step directions and focusing attention, danger awareness, completing applications, and
requesting help). (S-8)

58. Program modifications/items of specially designed instruction in the October 2014 IEP
were for small group instruction for reading and mathematics, social skills instruction,
preferential seating with teacher proximity, prompting for remaining on task,
opportunities for reinforcement and practice of skills, test accommodations and
modifications, curriculum focused on key concepts, community-based instruction, and an
agenda. Small group or individual speech/language support was a related service. (S-8)

59. ability to recoup skills and make progress on IEP goals was deemed to be adequate. instruction in addition to speech/language support. The Parents did not return a signed NOREP. (S-8)

60. The District issued a new RR in November 2014 that was a record review only because
the Parents did not consent to a reevaluation. The Parents did not provide input into the
RR. (N.T. 96; S-9 p. 1, S-10, S-47 pp. 49-50 at 194-99 )

61. The District school psychologist did not conduct any academic achievement assessment
for the 2014 RR but obtained curriculum-based assessments for educational
programming. Included in the RR were the results of a September 2014 QRI, a District
curriculum-based assessment in mathematics, and a writing sample. The District school
psychologist also did not observe Student for the 2014 RR. (N.T. 97, 103-04, 108; S-10)

62. Teacher input into the 2014 RR reflected that Student required prompting and redirection
to maintain focus and attention and follow directions throughout the school day, and of difficulty retaining information and skills. Repetition, consistency, and practice were considered to be necessary to maintain skills and make progress on IEP goals and objectives. (S-10)

63. Student maintained expressive language skills from the fall of 2012 to the fall of 2014.
(N.T. 407-08)

64. The 2014 RR identified Student as eligible for special education on the bases of Autism,
Intellectual Disability, and a Speech or Language Impairment. Recommendations
included continuation of life skills support and speech/language support in addition to the
recommended evaluations. (S-10)

65. The District school psychologist who issued the November 2014 RR did not meet with the Parents to review its results. (N.T. 104)

66. The District school psychologist who issued the November 2014 RR recommended a psychiatric evaluation to assess the reasons for Student’s schoo l avoidance. A speech/language evaluation was also recommended. The Parents did not consent [to] those evaluations . (N.T. 118 – 19 , 334 – 35 , 367 ; S – 9 p. 1, S – 47 pp. 49 – 50 at 194 – 99 )

67. A QRI in March 2015 reflected a decline in scores at the second grade read ing level in accuracy and comprehension. Student similarly demonstrated a decrease in mathematics skill proficiency on curriculum – based assessments. No speech/language assessments had been conducted in the spring of 2015. (S – 15 pp. 9 – 10)

68. Over the course of the 2014 – 15 school year, Student was deemed to have made minimal to moderate progress on most of the IEP goals and objectives, with some not introduced or monitored during some quarters. Student’s attendance was noted to impact Student’s progress in a ll areas, with regression on some skills (such as counting coins and bills). (S – 12)

69. -15 school year, with Student absent nearly forty school days for all or a portion of the school day (more than one or
two periods). (N.T. 180-81, 331-32; S-13)

2015-16 SCHOOL YEAR

70. The IEP team met to develop a new IEP in September 2015. The Parent was not able to
attend. (N.T. 787; S-15)

71. Limited information on Student’s then – present levels of present educational and functional performance were provided in the September 2015 IEP because Student’s inconsistent attendance had limited the District’ ability to conduct assessments. ( N.T. 176; S – 15)

72. Needs identified in the September 2015 IEP remained t he same as the most recent IEP : semantic and pragmatic language; reading comprehension; functional mathematics skills; attention and focus; following directions containing more than one step; continued development of safety awareness; and vocational skills (completing forms/applications, self – advocacy, and exploring vocational opportunities). (S – 15)

73. The transition section of the IEP remained very similar, with indications that Student was
not attending school so those activities were limited. The District proposed that Student
attend the ATF three days per week, and did not recommend that Student attend the ATF
five days per week because Student had academic and speech/language needs that could
not be met by the ATF. (N.T. 759, 784; S-15)

74. The September 2015 IEP provided annual goals and short term objectives in functional
mathematics skills (telling time, counting money, solving functional word problems using
money); reading comprehension at a third grade level (identifying story elements,
answering comprehension questions, using comprehension strategies), reading fluency
and accuracy; expressive, receptive, and pragmatic language (vocabulary including
synonyms in context, reciprocal conversational skills with prompting); and daily living
(following multi-step directions and focusing attention, danger awareness, completing
applications, and requesting help). An attendance goal at the high school with related
objectives, aiming for 100% attendance except for legitimate excuse, were added. (S-15)

75. Program modifications/items of specially designed instruction in the September 2015 IEP
were for small group instruction for reading and mathematics, social skills instruction,
prompting for remaining on task, opportunities for reinforcement and practice of skills,
test and assignment accommodations and modifications, curriculum focused on key
concepts, community-based instruction. Small group speech/language support was a
related service. (S-15)

76. The IEP team developed a positive behavior support plan for failure to attend school.
The hypothesis of the function of that behavior was determined to be gaining control or
escaping/avoiding tasks at school. No Functional Behavioral Assessment (FBA) was
conducted regarding that behavior since Student was not attending school, and there was
no specially designed instruction or related services specific to attendance. (N.T. 310-11,
455, 537, 539-41; S-15)

77. Student was determined to be not eligible for ESY services because Student would age
out of special education at the end of the 2015-
for life skills for all academic, daily living, and vocational instruction in addition to
speech/language support. The Parent did not return a signed NOREP. (S-15)

78. The District also issued a NOREP on September 30, 2015 proposing that Student would
graduate in June 2016. That NOREP was not returned signed and approved. (S-16)

79. The District requested consent to another reevaluation in the fall of 2015. (S-17)

80. Student did not attend school during the 2015-16 school year because Student refused to
do so, believing Student had graduated. (N.T. 180, 333, 454, 457, 460, 462, 554, 682,
716-17; S-21, S-22)

81. Student attended the ATF during the 2015-16 school year, and attendance was fairly
consistent. However, Student sometimes missed one or more days per week. (S-20)

82. The District issued a NOREP ending special education services in June 2016 due to
turn the NOREP. (N.T. 460-61)

DISTRICTS HIGH SCHOOL LIFE SKILLS CLASSROOM

83. In the high school life skills classroom, two special education teachers and at least two
paraprofessionals were present. The teachers split the class into groups for reading and
mathematics instruction typically based on ability level. The students were also divided
into groups for other activities such as social skills, vocational skills, and activities of
daily living. Most groups consisted of approximately six students with one teacher and
one paraprofessional. (N.T. 417-19, 446, 643-44, 647-48)

84. The students in the life skills classroom generally had breakfast upon arrival, then a
morning meeting followed by reading and mathematics instruction. The students would
leave the classroom for special or elective classes then have lunch in the cafeteria.
Afternoons consisted of social skills, vocational skills, and activities of daily living until
the end of the school day. (N.T. 420-21, 423, 425, 448-49, 522, 643-44)

85. Reading instruction was focused on comprehension including strategies to aid in
understanding the text. (N.T. 648, 686)

86. Mathematics instruction was focused on functional skills. (N.T. 688)

87. Students in the life skills classroom moved to different parts of the school building for
specials and electives and occasionally academic classes. (N.T. 326-27)

88. Students in the life skills classroom worked on organizational skills such as filing papers.
(N.T. 428, 644-45)

89. The life skills classroom used a class-wide behavior plan where the students could earn
rewards for exhibiting positive behavior. Students who exhibited frequent problematic
behavior were not permitted to participate in rewards. Student did not exhibit behaviors
at school that required additional behavioral intervention. (N.T. 424-25)

90. Student was social with peers at school both in and outside of the life skills classroom.
Student was able to communicate with others at school, but did have difficulty
maintaining conversations. (N.T. 419-20, 426, 447, 449, 556, 720)

91. The life skills class participated in pre-vocational activities in the community, including
at a public library, a supermarket, and a local resort. Those activities occurred once or
twice per week. (N.T. 301-07, 351-57, 726-27)

92. Vocational skills include pre-organizing and completing tasks, and cooperating with a group. Vocational skills also  include social skills, functional academic skills, and activities of daily living. (N.T. 213,
218-19, 749-56, 762-63)

93. When students develop pre-vocational and vocational skills in multiple environments,
they are better able to transfer and generalize those skills to new situations such as a new
work setting. (N.T. 756-57)

ADULT TRAINING FACILITY

94. Student attended the ATF, operated by a behavioral health organization, beginning in the
fall of 2013. There, participants work on pre-vocational skills and participate in
community activities. Community integration is a major focus of the ATF program
Student attended. (N.T. 212-13, 235; S-29)

95. The District provides transportation to and from the facility for students who attend.
After a morning meeting, the adults engage in pre-vocational activities in small groups
until a break for lunch, which the adults assist in serving and cleanup. Activities that
might be vocational or recreational, in the facility or out in the community, then follow
for the afternoon again in small groups. (N.T. 225-27, 245-46, 340, 384)

96. The ATF begins planning for an adult the most independence possible and identifying necessary steps toward that goal. (N.T.238)

97.Student’s goal at admission to the ATF was for placement at the ATF following graduation to continue to develop pre – vocational skills. (N.T. 239)

98. The ATF conducted an integrated assessment of Student in the fall of 2013 to identify
strengths and needs and to prioritize concerns. The priorities for Student were
determined to be a willingness to engage and learn pre-vocational skills, and appropriate
social interactions. Both of those priorities were vocational skills. (N.T. 216-19; S-29)

99. An initial annual assessment of Student was also conducted by the ATF when Student
first began attending there. At that time, Student demonstrated needs in most areas
because Student did not perform skills or did so inconsistently: functional skills such as
telling time; pre-vocational skills such as initiating tasks; community life such as
community volunteering; and social skills. Student was independent with self-care skills
and fairly consistent in the area of safety. The ATF identified employment barriers
including social skills and independent living skills, but few needs for work readiness.
(N.T. 220-22; S-30)

100. The ATF developed treatment plans that were reviewed regularly. Student’s skill deficits in the fall of 2013 were identified with goals an d planned interventions. (S – 31)

101. During the 2013-14 school year, the ATF identified needs with respect to staying focused
and remaining on task (with a goal for accepting vocational opportunities offered) and
reducing anxiety that interfered with social relationships (with a goal to decrease nervous behaviors). Student demonstrated improvement in those areas based on anecdotal reports
and objective data where available. These results are provided to parents and the local
educational agency. (N.T. 228-29, 270; S-31, S-32, S-33, S-34)

102. A new annual assessment in the fall of 2014 revealed that Student had the same needs as
in the initial annual assessment, with additional safety concerns noted in a kitchen
environment and outdoors. Continued concerns with respect to a willingness to engage
and learn pre-vocational skills and appropriate social interactions were noted. (S-36, S-375)

103. During the 2014-15 school year, the ATF identified needs with respect to staying focused
and remaining on task (with a goal and objective to attend the ATF and improve job
skills). Another objective was engaging in social activities with peers. Student
demonstrated inconsistent improvement toward meeting the goal and objectives based on
anecdotal reports and objective data where available. (S-39, S-40)

104. A new annual assessment in the fall of 2015 revealed that Student had the same needs as
in the fall 2014 annual assessment. Continued concerns with respect to a willingness to
engage and learn pre-vocational skills and appropriate social interactions were noted. (S-
41, S-426)

105. During the 2015-16 school year, the ATF identified needs again with respect to
maintaining attention to task without assistance and redirection (with a goal and objective
to attend the ATF and improve job skills). The additional objective for engaging in social
activities with peers remained. Student demonstrated inconsistent improvement toward
meeting the goal and objectives based on anecdotal reports and objective data where
available; however, Student did demonstrate decreased self-stimulatory behaviors by the
end of the school year. (S-41, S-43, S-45, S-46)

106. the ATF, Student demonstrated pre-vocational and
vocational needs, as well as social, emotional, and behavioral needs.
on ATF goals was variable. (N.T. 239, 252-53, 262)

107. Except for absences, Student attended the ATF two days per week during the fall of the
2013-14 school year and the District high school on the other three days. By the spring
semester, Student was at times attending the ATF three or four days per week. There was
a period of time when Student attended the ATF four days per week in order to make up
some missed time there. (N.T. 298, 341-43; S-48)

108. Except for absences, Student attended the ATF three days per week during the 2014-15
school year and the District high school the other two days. Student did not start at the

5 The ratings for each of the four parts of the 15-page annual assessment were identical to those in October 2013;
however, the determination of needs was subjective (N.T. 264, 266-70, 271-72).
6 The ratings for each of the four parts of the 15-page annual assessment were identical to those in October 2013 and
October 2014.

ATF until the very end of September, and was absent approximately twenty four days
during the first semester and sixteen days the second semester. (N.T. 298, 341-44; S-48)
109. Student attended the ATF three days per week during the 2015-16 school year. (S-20, S-
43 p. 1)

110. The District did not suggest that Student attend the ATF for more than three days a week
, but needed to be, consistent. (N.T. 757-59)

INDEPENDENT EVALUATIONS

111. By agreement of the parties, an independent educational evaluation (IEE) was conducted
in the fall of 2015, with a report of that evaluation issued in September 2016. The
independent psychologist was not able to arrange for an observation of Student at the
ATF. (N.T. 570-71; S-19)7

112. Cognitive assessment for the IEE were the Comprehensive Test of Nonverbal
Intelligence Second Edition (CTONI-2) and Woodcock-Johnson Tests of Cognitive
Abilities – Fourth Edition (WJ-IV-COG). The CTONI-2 yielded a Full Scale Composite
Index score (52) below the 1st percentile and in the very poor range; both of the scale
scores were consistent. On the WJ-IV-COG, Student attained a General Intellectual
Ability score in the very low range (standard score below 40, < 0.1 percentile rank), and
similar scores on those subtests. The detailed analysis of the cognitive assessment in the
IEE reflected a relative strength with Oral Vocabulary and a number of relative
weaknesses. (S-19 pp. 5-13)

113. -Johnson Tests of
Achievement Fourth Edition (WJ-IV-ACH) reflecting scores in the very low range
across clusters and subtests compared to same-age and same-grade peers. Student
demonstrated relative strengths in achievement in the areas of Written Expression and
Spelling and other areas of relative weakness. (S-19 pp. 19-27)

114. Memory and Learning Second Edition) for the IEE yielded overall impaired skills (<
0.1 percentile) with all subtest scores in the borderline/low average to impaired range.
(S-19 pp. 13-14)

115. The IEE also reported results of the Behavior Rating Inventory of Executive Function
(BRIEF) for adults from the Parent and an ATF employee. Concerns of the Parent were
reflected in the Shift, Working Memory, and Task Monitor Scales; no concerns were
indicated by the ATF employee. (S-19 pp. 15-18)

7 The markings on S-19, all of which are underlines or circles done in pen or pencil, were not made by the hearing
officer.

116. The Beery-Buktenica Developmental Test of Visual Motor Integration administered as
part of the IEE together with optional companion instruments revealed weak overall
visual-motor integration skills. (S-19 pp. 18-19)

117. Rating scales from the Behavior Assessment System for Children Third Edition
(BASC-form yielded at-risk concerns with respect to Adaptive Skills including Adaptability,
Leadership, Activities of Daily Living, and Functional Communication. The ATF
employee endorsed a clinically significant concern with respect to Withdrawal, and at-
risk concerns with respect to Atypicality and Social Skills. Overall, the BASC-3 did not
reveal significant difficulty with behavior. (S-19 pp. 29-32)

118. skills, revealing some areas of deficit. Those same individuals completed the Gilliam
Autism Rating Scale Third Edition, yielding results supporting Autism. (S-19 pp. 32-36)

119. The Parent completed the protocol for the Third Edition of the ABAS for the IEE,
reflecting under-developed adaptive skills overall with some variability among areas
assessed by that instrument. (S-19 pp. 36-39)

120. With respect to transition planning, the IEE sought and included input from the Parents
and the ATF employee. Both reflected that Student continued to need to develop skills
in identifying and learning about careers of interest, applying to post-secondary based on weaknesses, and learning independent and daily living skills, as well as improving functional academic skills. (S-19 pp. 38-40)

121. The IEE concluded that Student was a child with a disability and in need of specially
designed instruction based on Intellectual Disability and Autism. The private
psychologist who conducted the IEE offered recommendations for a blended functional
academic and vocational training program. Particular intervention was noted to be
necessary in the areas of social skills instruction as well as behavioral and social
manifestations adaptive/functional skills was also noted. (S-19 pp. 44-46)

122. An Independent Speech and Language Evaluation was also conducted in November
2015. The independent speech/language pathologist observed Student at the ATF. (S-18pp. 5-6)

123. The independent speech/language pathologist administered the PPVT-4 and the
EOWPVT-4. Student attained scores below those from previous administrations, well
below the 1st percentile on the former and below the 1st percentile in the latter; Student
thus showed regression in receptive language skills in the fall of 2015. On select subtests
of the Clinical Evaluation of Language Fundamentals Fifth Edition (CELF-5).
fell within the severely delayed range. (N.T. 403-06; S-18)

124. Pragmatic language ability was also assessed for the independent speech/language
evaluation. Student demonstrated pragmatic language skills that were also significantly
delayed. All of Student profile. (N.T. 188-90; S-18)

125. significant gains in language skills, although Student could be expected to make progress
on specific targeted skills such as perspective-taking that are of interest to and useful for
Student. (179-80; S-18)

DISCUSSION AND CONCLUSIONS OF LAW

GENERAL LEGAL PRINCIPLES

Generally speaking, 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. Schaffer v. Weast, 546 U.S. 49, 62
(2005); L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006). Accordingly,
the burden of persuasion in this case rests with the Parents who filed the complaint and requested
this hearing. Nevertheless, application of this principle determines which party prevails only in
the rare more frequently determined by which party has presented preponderant evidence in support of its
position, as is the case here.

Hearing officers, as fact-finders, are also charged with the responsibility of making
credibility determinations of the witnesses who testify. See J. P. v. County School Board, 516
F.3d 254, 261 (4th Cir. Va. 2008); see also T.E. v. Cumberland Valley School District, 2014 U.S.
Dist. LEXIS 1471 *11-12 (M.D. Pa. 2014); A.S. v. Office for Dispute Resolution (Quakertown
Community School District), 88 A.3d 256, 266 (Pa. Commw. 2014). This hearing officer found
each of the witnesses to be credible, testifying to the best of their recollection from his or her
perspective. The relatively few inconsistencies in the testimony, such as for what period of time Student attended the ATF four days per week, were attributed to inaccurate memories rather than
any intent to deceive or exaggerate, and were relatively inconsequential to the issues presented.
The testimony of the independent psychologist was forthright, knowledgeable, and quite
persuasive, and was accorded significant weight needs.8 On the other hand, the testimony of the Parent was undermined by the assertion that-14 school year to the end of the 2015-16 school year (N.T. 731)
program at the District was second-hand and was thus accorded reduced weight.9 The testimony
of all other witnesses was gauged to be straightforward and given essentially equal weight.
In reviewing the record, the testimony of every witness, and the content of each exhibit,
were thoroughly considered in issuing this decision,

IDEA PRINCIPLES

The IDEA and state and federal regulations obligate local educational agencies (LEAs) to education. 20 U.S.C. §1412. In Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the U.S. Supreme Court held that this requirement is met by providing personalized instruction and support services that are reasonably calculated to permit the child to benefit educationally from the instruction, providing the procedures set forth in the
Act are followed. The

8 e.g., N.T. 599, 610-11, 613),
recognizing that the process of conducting evaluations of and programming for special education needs is dependent
upon many factors.
9 The Parents concerns, however, were sincere and clearly genuine, and certainly not discounted.

Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). LEAs meet the
obligation of providing FAPE to eligible students through development and implementation of Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235, 240 (3d Cir. 2009) (citations omitted).
Recently, the U.S. Supreme Court considered anew the application of the Rowley Endrew F. v. Douglas
County School District RE-1, ___ U.S. ___, ___, 137 S. Ct. 988, 999, 197 L.Ed.2d 335, 350
(2017).

The “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials. The Act contemplates that this fact – intensive exercise will be informed not only by the expertise of school officials, but also by the inpu t of the child’s parents or guardians. Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.

The IEP must aim to enable the child to make progress. After all, the essential
function of an IEP is to set out a plan for pursuing academic and functional
advancement. This reflects the broad purpose of the IDEA[.] * * * A
substantive standard not focused on student progress would do little to remedy the
pervasive and tragic academic stagnation that prompted Congress to act.

That the progress contemplated by the IEP must be appropriate in light of the child’s circumstances should come as no surprise. A focus on the particular child is at the core of the IDEA. * * * As we obse rved in Rowley , the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, wi th infinite variations in between.”

Endrew F , ___ U.S. ___, 137 S. Ct. 988, 999, 197 L.Ed.2d 335, 349 – 50 (2017) (citing Rowley at 206 – 09). The Court explained that, “an educational program must be appropriately ambitious in light of [the child’s] circu mstances… [and] every child should have the chance to meet challenging objectives.” 137 S. Ct. at 1000, 197 L.Ed.2d at 351. This is especially critical where the child is not “fully integrated into the regular classroom.” Id . The Court thus concluded that “the IDEA demands … an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 137 S. Ct. at 1001, 197 L.Ed.2d 352. This standard is not inconsistent with the above interpretat ions of Rowley by the Third Circuit.

Rowley , Endrew , and the IDEA make clear, the IEP must be responsive to the child’s identified educational needs. See 20 U.S.C. § 1414(d); 34 C.F.R. § 300.324. However, the IEP need not “provide ‘the optimal level of services,’ or incorporate every program requested by the child’s parents.” Ridley School District v. M.R. , 680 F.3d 260, 269 (3d Cir. 2012). Furthermore, “t he measure and adequacy of an IEP can only be determined as of the time it is offered to the s tudent, and not at some later date.” Fuhrmann v. East Hanover Board of Education , 993 F.2d 1031, 1040 (3d Cir. 1993).

GENERAL SECTION 504 AND ADA PRINCIPLES

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of a handicap or disability. 29 U.S.C. § 794. A person has a handicap if he or she “has a physical or mental impairment which substantially limits one or more major life activities,” or has a record of such impairment or is regarded as having such impairment. 34 C.F .R. § 104.3(j)(1). “Major life activities” include learning. 34 C.F.R. § 104.3(j)(2)(ii). Nevertheless, t he obligation to provide FAPE is substantively the same under Section 504 and under the IDEA. Ridgewood , supra , 172 F.3d at 253; see also Lower Mer ion School District v. Doe , 878 A.2d 925 (Pa. Commw. 2005). Thus, the FAPE claims under both statutes will be addressed together.

THE PARENTS CLAIMS

The Parents challenge various aspects of Student’s program. The first to be addressed, logically, is w hether the District failed to conduct adequate evaluations of Student to guide programming decisions. The first relevant evaluation was in the fall of 2012, a reevaluation of Student that would serve to inform programming decisions for the beginning of th e relevant time period, specifically the 2013 – 14 school year.

The IDEA sets forth two purposes of the required evaluation or reeval u ation : 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). 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

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

(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) ; see also 20 U.S.C. § 1414(b)(2) . The evaluation must assess the child “in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities[.]” 34 C. F.R. § 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. §§ 304(c)(6) and (c)(7); see also 20 U.S.C. § 1414(b)(3). All evaluations, including reevaluations, require review of existing data. 20 U.S.C. § 1414(C)(1); 34 C.F.R. § 300.305(a).

The Parents point out a number of potential flaws with the 2012 RR: the failure of the
school psychologist to observe Student in any setting, the absence of any standardized
assessments other than the WAIS-IV, executive functioning skills, memory, pragmatic language skills, and social/emotional/behavioral functioning. Certainly the addition of some if not all of the assessments conducted for the IEE, as well as observations by the school psychologist, would have yielded significant useful
information about St in vocational settings to assist the IEP team in making programming decisions. This hearing officer does have concern with the use of strictly curriculum-based measures in the fall of 2012
achievement, 10 escription of the purpose of the November 2012 reevaluation and the failure to meet with the Parents to discuss the results and determine whether additional assessments were warranted. The independent psychologist also provided a cogent explanation of the utility of obtaining rating scales from individuals in different
environments as part of a special education evaluation (N.T. 582-83), contrary to the use of the 10 The testimony regarding the District norming of its curriculum-based assessments, while credible, applied only to
students through eighth grade. (N.T. 745-46) ABAS-II in 2012.11 Nevertheless, it must be remembered that Student had attended school in the District strengths and needs over time. that included their own observations both inside and outside the classroom. In addition, there executive functioning, memory, or social/emotional/behavioral functioning that would suggest additional assessments were necessary in order to develop IEPs for Student. Both the Parent and
Student participated in the IEP team meeting in the fall of 2013, the first during the relevant time. Moreover, even the independent psychologist who conducted the IEE stopped short of characterizing the 2012 RR as inadequate under the law (N.T. 581).

The Parents point out similar flaws in the fall 2014 RR. However, the record is clear that
the Parents would not provide their consent to new assessments, so the District was limited to a
review of records. 20 U.S.C. § 1414(c)(3); 300 C.F.R. §§ 300.300(c) and (d). In sum, despite
the fact that the District did not have as complete a picture of Student in the fall of 2012 and
2014 as did the independent psychologist who conducted the IEE, the circumstances in this case
do not equate to a denial of FAPE where there was information available from which the team
s IEPs, the substance of which must also be examined.

The next issue is whether Student’s IEPs were appropriate for Student under the IDEA and the implementing regulations. As noted above, an IEP must be reasonably calculated to enable the student to receive m eaningful educational benefit in light of the student’s unique circumstances and potential. However, “ it would again be inconsistent with the longstanding

11 The District’s reasons for not doing so were less persuasive (N.T. 110, 114).

interpretation of the IDEA to find that providing a FAPE requires designing specific monitoring
goals for every single recognized need of a disabled student. As noted above, a FAPE is a
threshold guarantee of services that provide a meaningful educational benefit, not a perfect
Coleman v. Pottstown School District, 983 F. Supp. 2d 543, 572-573 (E.D. Pa. 2013), d, 581 Fed. Appx 141 (2014). An absence of goals or monitoring of progress with respect to a particular area of educational need can amount to a procedural violation. Benjamin A. v. Unionville-Chadds Ford School District, 2017 U.S. Dist. LEXIS 128552, *37-38, 2017 WL 3482089 (E.D. Pa. 2017). However, a procedural violation is actionable under the IDEA only if
it results in a loss of educational opportunity for the student, seriously deprives parents of their
participation rights, or causes a deprivation of educational benefit. D.S. v. Bayonne Board of
Education, 602 F.3d 553, 565 (3d Cir. 2010); 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

The Parents challenge the District’s IEPs for the 2013 – 14, 2014 – 15, and 2015 – 16 school years with respect to academic, social/emotional/behavioral, speech/language, and executive functioning skills, activities of daily living, post – secondary transition voc ational programming, and eligibility for ESY services. (N.T. 20 ; Parents’ Closing at unnumbered pp. 29 – 30 )

With regard to academics, review of the IEPs reflects that Student had similar annual goals throughout the time period in question, focused on funct ional reading, functional mathematics, expressive / receptive /pragmatic language, vocational skills, and activities of daily living, all of which were needs identified for Student. Student’s short term objectives did change from year to year, reflecting th at the IEP team considered Student’s then – current strengths and weaknesses at the time of development of each IEP. It must also be remembered that Student required ongoing repetition and practice to maintain skills across domains . Thus, it is not inappropriate that Student’s IEPs continued to emphasize skills that Student had acquired in order not to regress.

The Parents point to Student’s relatively stagnant instructional grade levels in reading and mathematics skills, for example . Nevertheless , the IEPs and Student’s progress must be evaluated in light of Student’s unique circumstances and potential. The independent evaluator recommended that Student’s program be focused on functional academics, which is what the District did throughout the time pe riod in question , as did the ATF . There was also evidence that Student could not be expected to make significant gains in language skills. Rather than c oncentrating on any specific grade levels , the more pertinent consideration is whether the academic pr ogramming was appropriately functional for Student. The preponderant evidence is that the IEPs implemented over the three school years did provide for Student to continue to acquire and maintain functional academic skills geared toward Student’s unique ab ilities and weaknesses , at Student’s age, and were sufficiently challenging for Student who struggled with consistent demonstration of previously acquired skills .

With respect to the post-secondary programming, the following is instructive.

The IDEA requires that every IEP created for a child that is age sixteen or older must include appropriate measurable post-secondary goals based on age appropriate transition assessments related to training, education, employment, and
independent living skills, as well as corresponding transition services. 20 U.S.C. § student’s needs and is created to help the disabled student move from school to post-school activities. 20 U.S.C. § 1401(34)(B); 34 C.F.R. § 300.43.

K.C. ex rel. Her Parents v. Nazareth Area School District, 806 F. Supp. 2d 806, 822 (E.D. Pa. fourteenth year. 22 Pa. Code § 14.131(a)(5).

The Third Circuit has not defined what amount of transition planning is required in an IEP to ensure a FAPE. Several courts, including those in the Eastern District of Pennsylvania, have suggested that inadequate transition planning is a procedural defect and thus should be evaluated based on whether substantial harm has resulted. The floor set by the IDEA for adequate transition services appears to be low, focusing on whether opportunities are created for a disabled student to pursue independent living and a career, not just a promise of a particular result.

Coleman, supra, 983 F. Supp. 2d at 566.

The Parents, quite understandably, are concerned that Student is not sufficiently prepared
to function independently in an adult society, including holding employment without support and
attaining a level of self-sufficiency. The services available to young adults who are beyond the
age of IDEA eligibility are undeniably limited. However, the District did not, and indeed was
not obligated to, guarantee any particular outcome for Student upon graduation, including
helping Student to learn a trade. Student participated in a variety of vocational and independent
living activities, including the development of pre-vocational soft skills, that were geared toward
post-secondary vocational and living opportunities based on identified transition goals. Those
activities occurred both in the school environment (including a variety of community-based
specifically undeveloped pre–secondary interests also changed over time. progress at the ATF, growth in that program was incremental and at times inconsistent, the mere fact that Student continued to demonstrate pre-vocational needs at the end of the 2015-16 school year does not mean that Student failed to make progress in developing and
maintaining many of those varied skills. Taken as a whole, and giving due consideration to provided opportunities for pursuit of post-secondary employment and daily living to Student thats interests, goals, and potential.

Next, the Parents challenge the District’s programming for Student’s social, emotional, behavioral, and executive functioning. However, with the exception of attendance discussed below, Student did not exhibit emotional or behavioral needs at school, including manifesting anxiety, that required intervention beyond the classroom incentive plan. Student was provided instruction in and practice with social skills and organization throughout the school day, and engaged appropriately with peers in that environment. Even the independent psychologist noted since Student did not exhibit the same deficits at the ATF as Student did at home (S-19 p. 45). In manifested in the educational and vocational environment and appropriately responded, which is what the law requires.

With respect to ESY eligibility, it is surprising that Student’s IEPs continually reflected that Student did not lack the ability to recoup skills and make progress on IEP goals12 in light of the extensive citation throughout the record to S

maintain skills. Nevertheless, the evidence is clear that the District was informed that Student
would graduate at the end of the 2013-14 school year, only learning in September 2014 that
Student would return, so there was no reason for it to consider ESY in 2014. By the summer of
had become steadily poorer, and it is far from likely that Student would have been amenable to attending an ESY program in 2015. Student graduated at the end of the 2015-16 school year, so ESY was not available. For these reasons, the evidence does not establish a denial of FAPE for ESY programming.

12 The relevant time period begins at the end of July 2013; ESY that summer would have been concluded or nearly
concluded by then.

The final FAPE matter to be discussed is whether the District responded appropriately to end of the 2012- and objectives. Student missed the first ten days of the 2013-14 school year, but attendance moderated after that period and was not a cause for alarm. The start of the 2014-15 school year was rather different, with Student disappointed that Student had not graduated and expressing psychiatric evaluation as it does when any student misses a significant number of school days, so that a truancy elimination plan could be conducted. It is quite unfortunate that the Parents would not consent to that evaluation.

Nevertheless, certainly by the start of the second semester of the 2014-15 school year, some action should have been taken by the District to address school,13 in all areas and the recognition that Student could not increase the number of days per week at the ATF unless Student demonstrated a more consistent presence. With no agreement for the
psychiatric evaluation, it is perplexing that the IEP team did not convene to discuss how to irregular attendance that was affecting Student in all areas. The problem worsened in the following 2015-16 school year when Student did not attend school at all. While adding an attendance goal to the September 2015 IEP and proposing an FBA was surely a step in
the right direction, the time to conduct an FBA and determine interventions to encourage

13suggestion that it is not necessary to calculate the exact number of days that Student was absent
at 9 n. 1), particularly since there are a few apparent, but certainly not unusual, human errors in the documentation.
There is no dispute between the -15 and 2015-16
school years.

Student’s attendance was in the spring of 2015, when Student was still at school on many days. There was also no apparent consideration given to identifying changes to the school-based program that may have helped Student be available for academic instruction and speech/language services somewhere other than the classroom to which Student was reluctant to return. This hearing officer concludes that the a denial of FAPE for the second half of the 2014-15 school year and the entire 2015-16 school year, for which relief shall be awarded.

REMEDY: COMPENSATORY EDUCATION

As a remedy,

the Parents seek compensatory education, which is an appropriate form of relief where a school district knows , or should know, that a child’s educational program is not appropriate or that he or she is receiving only trivial educational benefit, and the district fails to remedy the problem. M.C. , supra . Such an award may compensate the child for the period of time of deprivation of educational services, excluding the time reasonably required for a school district to correct the deficiency. Id . The Third Circuit has recently endorsed a different appro ach, sometimes described as a “make whole” remedy, where the award of compensatory education is designed “to restore the child to the educational path he or she would have traveled” absent the denial of FAPE. G.L. v. Ligonier Valley School District Author it y, 802 F.3d 601, 625 (3d Cir. 2015); see also Reid v. District of Columbia Public Schools , 401 F.3d 516 (D.C. Cir. 2005) (adopting a qualitative approach to compensatory education as proper relief for denial of FAPE). Compensatory education is an equita ble remedy. Lester H. v. Gilhool , 916 F.2d 865 (3d Cir. 1990).

The Parents suggest that Student should be awarded full days of compensatory education, and further assert that a make whole remedy requires much more (Parents’ Closing atunnumbered 27 – 30) . They also sought introduction of a number of District education records , mainly e valuations of and programming for Student prior to those admitted for the relevant time period , for consideration of that qualitative remedy . Both parties provided argument on the utility of these documents in their closings as was requested.

After review, this hearing of officer is not persuaded that consideration of those proffered documents would assist in calculation of a compensatory education award in 2017 for several reasons . First, to the extent the documents might suggest previous FAPE denials as the Parents contend , evidence on whether the District provided or did not provide an appropriate educational program to Student outside the scope of the claims is not relevant and must be excluded. To hold otherwise would, in this hearing officer’s estimation, render meaningless the statutory requirement inserted into the IDEA in 2004 for filing within the limitations period. Stated another way, if a party could file a complaint beyond the tw o – year limitations period, but then be permitted to seek the very same remedy that could have been pursued if the complaint had been filed on a timely basis, the IDEA statute of limitations, and the precedential authority such as G.L. construing its language, would be wholly inconsequential. Second, G.L. stated very clearly that a compensatory education demand that seeks to restore a child to the position he or she would have held “ but for the deprivation, ” 802 F.3d at 625 (emphasis a dded) , was an available remedy and, accordingly, any such award must still be tied to the FAPE denial that is at issue . Moreover, permitting the Parents to proceed with the evidence regarding the provision of FAPE prior to July 2013 would directly contra vene the caution of the G.L. Court that a party may not attempt to sweep together untimely claims with those that were filed within the two – year statutory period. 802 F.3d at 625 . For all of these reasons, the District’s objection to the exhibits offered by the Parent at the close of the hearing is hereby sustained.

This hearing officer concludes that the record does not include any relevant evidence on
an appropriate equitable remedy that would place Student in the position where Student would be
absent the FAPE denial described above. Thus, the hour-for-hour method will be used as the
basis for the appropriate approach. Student must be provided with the number of hours of
compensatory education lost due to the failure to address attendance at school (not the ATF)
during the spring semester of the 2014-15 school year and the entire 2015-16 school year. That
amount shall be calculated at 5.5 hours per day14 for each day of unexcused absence from school
during the second half of the 2014-15 school year,15 in addition to eleven hours per week (two
days each week that Student would have attended school) for the entire 2015-16 school year
(thirty six weeks) for a 2015-16 school year total of 396 hours of compensatory education.

The hours of compensatory education are subject to the following conditions and
Parents may decide how and by whom the hours of compensatory
education are provided. The compensatory education may take the form of any appropriate
developmental, remedial or enriching educational service, product, or device that furthers
-secondary transition, academic, speech/language, or social/emotional/behavioral
needs and skills. The compensatory education services may occur when convenient for Student
and the Parents, and may be used at any time from the present until Student turns age twenty-six
(26). The compensatory services shall be provided by appropriately qualified professionals
selected by the Parents.

14 Secondary school students are required to be provided with 990 hours of instruction for the school term of a
minimum of 180 school days. 22 Pa. Code §§ 11.1, 11.3.
15 Due to apparent errors in some of the attendance records, this exact number is not set forth as it cannot be
calculated with confidence.

CONCLUSION

Based on the foregoing findings of fact and for all of the above reasons, this hearing
officer concludes that the District did deny Student FAPE for part of the 2014-15 and 2015-16
school years and Student must be awarded compensatory education to remedy the deprivation.

ORDER

AND NOW, this 16th day of September, 2017, in accordance with the foregoing findings
of fact and conclusions of law, it is hereby ORDERED as follows.

1. The District did fail in part of its FAPE obligations to Student under the IDEA during the
second half of the 2014-15 school year through the end of 2015-16 school year, not
including ESY programming.

2. The District shall provide Student with compensatory education as follows:

a. For the entire second semester of the 2014-15 school year, 5.5 hours for each day
unexcused absence from school according to final school records;
and

b. For the entire 2015-16 school year, 396 total hours.

3. The compensatory education award is subject to all of the following conditions and
limitations:

a. education are provided. The compensatory education may take the form of any
appropriate developmental, remedial or enriching educational service, product, or
-secondary transition, academic, speech/language, or social/emotional/behavioral needs and skills. The
compensatory education services may occur when convenient for Student and the
Parents, and may be used at any time from the present until Student turns age twenty-six (26).

b. The compensatory services shall be provided by appropriately qualified professionals selected by the Parents. The cost to the District of providing the awarded hours of compensatory services may be limited to the average market rate for private providers of those services in the county where the District is located.

4. Nothing in this decision and order should be read to prevent the parties from mutually
agreeing to alter any of its terms.

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
18366-1617AS

A-B-Pennsbury-ODRNo-13605-1213-KE-1

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