AF. vs. North Allegheny 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

ODR No. 14070-1213 AS

Child”s Name: A.F.

Date of Birth: [redacted]

Dates of Hearing: 8/12/13, 9/16/13, 9/30/

CLOSED HEARING

Date Record Closed: October 25, 2013

Date of Decision: November 15, 2013

Hearing Officer: Anne L. Carroll, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

ISSUES

FINDINGS OF FACT

Background/Private and District Evaluations

1 Although the parties did not submit joint exhibits in this matter, they agreed to use primarily the District exhibits
for school records and additional evaluation reports, with a few additions by Parents. That commendable procedure
eliminated an unnecessarily long documentary record.

7. Rating scales completed by teachers for the school evaluation indicated that Student has
characteristics of ASD. The District”s school psychologist was not surprised by the
rating scales or the autism diagnosis from the psychiatrist and later by independent school
psychologist, since there had been prior discussions between Parents and District staff
concerning the possibility of ASD. (N.T. pp. 320-322; S-8 pp. 23, 24)

8. The District school psychologist administered the WJ-III NU COG (Woodcock-Johnson
Tests of Cognitive Ability-Third Edition Normative Update) to assess Student”s cognitive
ability. The General Intellectual Ability (GIA) score was in the below average range at a
standard score of 83. The component scores measuring verbal reasoning ability (96),
cognitive efficiency (92), processing speed (97) and working memory (95) were all
within the average range. Student”s score on the visual-spatial reasoning index was at the
upper end of the average range at 108. Student”s non-verbal reasoning ability (Thinking
Ability Index-80) was the only score in the below average range. (N.T. pp. 87, 362; S-8p. 20)

9. Results of standardized achievement testing on the WJ-III NU-ACH (Woodcock-
Johnson Tests of Achievement-Third Edition Normative Update) administered in
connection with the District”s 2012 reevaluation placed Student in the average range for
letter-word identification. Student was in the below average range in reading fluency and
passage comprehension. Student”s broad reading index score was at the lower end of the
average range. (N.T. pp. 352, 353; S-8 p. 22)

10. Student”s math achievement on the W-J III was in the average range for math calculation
and below average in math fluency, math problem solving and broad math. (S-8 p. 23)

11. Student”s scores were in the average range for both spelling and writing samples. (S-8 p.
23)

12. The recommendation section of the District”s evaluation incorporated the
recommendations made by an independent neuro-psychologist in an evaluation Parents
obtained that was completed just before the District”s reevaluation. (S-8 pp. 33, 34, S-11
p. 9)

13. In May 2013, Parents obtained a psycho-educational evaluation from an independent
certified school psychologist experienced in determining whether students meet IDEA
disability criteria for ASD. The school psychologist also concluded that ASD should be
added to Student”s existing OHI designation as an eligibility category after observing
Student for 3 hours in the school setting, as well as during testing and considering rating
scales completed by teachers and Parents. The psychologist noted Student”s lack of peer
interaction, perseverative and self-stimulating behaviors and other sensory issues. (N.T.
pp. 51, 52, 54-58, 66-72, 78-81; P-2 pp. 14-17, 26-29)

14. The independent school psychologist and the neuropsychologist who assessed Student in
the fall of 2012, both administered the WISC-IV (Wechsler Intelligence Scale for
5Children-Fourth Edition) and reported similar results. In both evaluations Student”s full
scale IQ (FSIQ) fell into the low-average range, but with significant variability among the
subtest scores. Both of the independent psychologists noted that the pattern of scores
suggested that the FSIQ underestimated Student”s cognitive ability, primarily due to the
effects of ADHD, as well as sensory and executive functioning issues that adversely
affect Student”s working memory and processing speed. (N.T. pp. 85, 86, 88, 106, 160;
P-2 pp. 19; S-11 p. 4)

15. The independent school psychologist concluded that Student also meets the IDEA criteria
for specific learning disabilities based upon the GAI (General Ability Index) score he
calculated from the WISC-IV and Student”s standardized achievement test scores on the
WIAT-III (Wechsler Individual Achievement Test-Third Edition). On that assessment,
Student”s scores in listening comprehension, reading comprehension oral reading fluency
and math problem-solving were in the low average range. Scores on sentence
composition, word reading, pseudoword decoding, oral expression and numerical
operations were in the average range. Math fluency in addition, subtraction and
multiplication were in the borderline range. (P-2 pp. 20, 21)

16. The District”s school psychologist agreed that an examination of strengths and
weaknesses disclosed by the test results provides more information than a single, global
score representing a measure of cognitive ability. (N.T. pp. 359-362)

17. In terms of addressing Student”s ADHD symptoms, recommendations for effective
programming for Student from both private evaluators and District staff include small
group instruction, chunking of work and assignments, visual and verbal prompting,
preferential placement close to the teacher. (N.T. pp. 36, 37, 39, 115)

18. To address deficits in several areas, including those related to both ADHD and ASD,
Student needs intensive intervention to develop social skills, including significant
opportunities to practice appropriate social interactions with peers. The use of “social
stories” to understand various anticipated situations is an appropriate intervention, but
Student also needs to develop conversational and other skills for engaging with peers.
Parents” expert witnesses agreed that Student”s sensory needs, as well as social skill
deficits, should be addressed through much more intensive school-based interventions
than Student has received. To effectively address sensory needs, Student should have a
full sensory integration evaluation in order to develop a complete sensory integration
program. (N.T. pp. 37-41, 45, 71-77, 119; P-2 p. 32, S-8 pp. 13, 14)

19. Based upon review of Student”s IEPs and information from Parents and teachers,
Student”s current treating psychiatrist does not believe that the District was sufficiently
challenging Student academically or effectively addressing social skill needs, given the
level of difficulty Student was reported to be experiencing with peer interactions. (N.T.
pp. 39-41, S-8 pp. 13, 14)
6District Placement/Services-2011/2012, 2012/2013 School Years

20. For the 2011/2012 and 2012/2013 school years (3rd and 4th grades), Student received
small group instruction in English/language arts, including reading and written
communication, and math from a special education teacher in the learning support
classroom. Student was included in general education classes for science and social
studies, with modifications, as well as for homeroom, lunch and specials. (N. T. pp. 393,
456; S-5 p. 6, S-22 p. 6)

21. During 3rd grade, the learning support teacher sometimes taught skills that Student found
more difficult, such as math word problems and reading comprehension, using 2nd or 1st grade materials in order to assure that Student was successful and to reduce frustration.
In October 2011, Student”s reading level was frustrational at the 2nd grade level. N.T. pp.
401, 402; S-29 pp. 4, 13, 15)

22. Although Student”s IEP goal was written for increasing fluency and comprehension at
the 3rd grade reading level, Student did not begin using 3rd grade level reading materials
during 3rd grade, and did not advance beyond below level 2nd grade books in the leveled
reader aspect of the District”s reading program during that school year. Even when
Student”s scores reflected significant improvement in reading fluency and
comprehension, the progress monitoring reports did not reflect the high level of support
Student needed to reach the reported levels. The teacher did not move Student to below
level 3rd grade leveled readers because of the lack of independence in Student”s
performance on periodic assessments. (N.T. pp. 411-413, 420-422; S-29 p. 21)

23. The 3rd grade learning support teacher did not intend to move Student to on level 2nd
grade leveled readers because of the length and complexity of the stories and increased
length of the assessments accompanying the on level reading materials. (N.T. pp. 447-
450)

24. To further avoid frustration and stress in the classroom and assure Student”s success, the
3rd grade teacher often sent reading and math worksheets home for Student to prepare for
instruction with unfamiliar materials and tests. (N.T. pp. 404-406)

25. In math, Student could complete 1 digit addition and subtraction problems independently,
using the “Touch Math” system but needed significant support for 2 digit problems,
especially with re-grouping, in order to avoid frustration and stress. For the same reason,
Student was not asked to perform timed math drills. (N.T. pp. 415, 416), 425-427)

26. In the fall of 4
th grade, Student”s needs as identified in the District evaluation included
using/improving self-regulation strategies to improve frustration levels, including a self-
awareness scale, along with frequent sensory input and breaks; developing skills in
listening comprehension, semantics, and pragmatic/social skills. (N.T. pp. S-8, pp. 16,
17)

27. At the time of the District”s 2012 evaluation, Student”s listening comprehension, oral
expression and written expression skills were below average as measured by curriculum-
based assessments. Student could write five short, simple sentences with little word
variety, all beginning with the same word and without capitalizing the first word (N.T.
pp. S-8 pp. 11, 12, 16)

28. On curriculum-based assessments, Student”s basic reading skills were below average. On
a measure of fluency and comprehension, Student”s reading level appeared to be
independent at early 3rd grade, instructional at late 3rd grade and frustrational at early 4th
grade. Although Student ended 3rd grade without advancing past the below level 2nd
grade leveled readers, Student received private, one to one tutoring in reading and math
from a special education teacher during the summer of 2012. (N.T. pp. 184, 185, 480-
484, S-8, pp. 10, 11)

29. In math, Student”s skill level was average for calculation but below average for math
reasoning. Student could not tell time on an analog clock and had difficulty counting
mixed groups of coins, although student could accurately identify paper currency and
coins. (S-8 p. 12)

30. In December 2012, after the District”s evaluation was completed, Student”s IEP team met
to develop a new IEP. In the area of speech/language, the December IEP included goals
for developing semantic language and listening comprehension skills identical to the
goals in the October 2012 IEP. (N.T. p. 525; S-5 pp. 30, 31, S-22 pp. 21, 22)

31. The OT goals in the October and December 2012 IEPs were also identical, but the
December IEP provided for Student to use a 3 point rating scale for identifying Student”s
level of self-control and choosing an appropriate strategy for reducing frustration.
During the second quarterly marking period, the chart was dropped and other self-
regulation strategies were implemented. Student expressed frustration in OT sessions
when asked to discuss regulating emotions (N.T. pp. 624-626; S-5 p. 34, S-22 p. 24, S-
23 p. 7)

32. The reading comprehension, writing, math computation and word problem goals were
also identical in the October and December 2012 IEPs. (S-5 pp. 35-38, S-22 pp. 25-
28)

33. Student”s 4th grade learning support teachers continued providing Student with a high
level of support in reading and math instruction, as well as when conducting
tests/assessments. (N.T. pp.463-465, 467, 468, 476-479 )

34. The 4th grade learning support teacher used a reward system as a behavior modification
strategy. After an initial outburst soon after she began teaching Student, she reported no
other extreme behaviors. Student still exhibited the behaviors described in the District”s
2012 reevaluation report, but could generally be re-directed. (N.T. pp. 512-518, 545,
546; S-8)

835. By the second progress monitoring period, Student had advanced to on level 4th grade
leveled readers and achieved consistently high scores for the remainder of the school year
on reading comprehension assessments with continuing opportunities for repetition and
review. Student did not do as well with “cold” reads. (N.T. pp.527-532; S-22 pp. 9-
12)

36. In math, Student”s goals were increased over the course of the year from single to double
digit addition and subtraction without and later with re-grouping. Prompting was used
for progress monitoring assessments. Student also moved from single to multi-step word
problems. (N.T. pp. 539, 540; S-22)

DISCUSSION AND CONCLUSIONS OF LAW

General Legal Standards

FAPE/Meaningful Benefit

Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235, 240 (3rd Cir. 2009).

“Meaningful benefit” means that an eligible child”s program affords him or her the
opportunity for “significant learning.” Ridgewood Board of Education v. N.E., 172 F.3d 238 (3rd
Cir. 1999). Consequently, in order to properly provide FAPE, the child”s IEP must specify
educational instruction designed to meet his/her unique needs and must be accompanied by such
services as are necessary to permit the child to benefit from the instruction. Board of Education
v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982); Oberti v. Board of Education, 995 F.2d 1204
9(3rd Cir. 1993). An eligible student is denied FAPE if his program is not likely to produce
progress, or if the program affords the child only a “trivial” or “de minimis” educational benefit.
M.C. v. Central Regional School District, 81 F.3d 389, 396 (3rd Cir. 1996; Polk v. Central
Susquehanna Intermediate Unit 16, 853 F. 2d 171 (3rd Cir. 1988).

Under the interpretation of the IDEA statute established by Rowley and other relevant
cases, however, an LEA is not required to provide an eligible student with services designed to
provide the “absolute best” education or to maximize the child”s potential. Mary Courtney T. v.
School District of Philadelphia, 575 F.3d 235, 251 (3
rd Cir. 2009); Carlisle Area School District
v. Scott P., 62 F.3d 520 (3rd Cir. 1995).

Burden of Proof

The IDEA statute and regulations provide procedural safeguards to parents and school
districts, including the opportunity to present a complaint and request a due process hearing in
the event special education disputes between parents and school districts cannot be resolved by
other means. 20 U.S.C. §1415 (b)(6), (f); 34 C.F.R. §§300.507, 300.511; Mary Courtney T. v.
School District of Philadelphia, 575 F.3d at 240.

In Schaffer v. Weast, 546 U.S. 49; 126 S. Ct. 528; 163 L. Ed. 2d 387 (2005), the Supreme
Court established the principle that in IDEA due process hearings, as in other civil cases, the
party seeking relief bears the burden of persuasion. Consequently, because Parents have
challenged the District”s actions during the period in dispute, Parents must establish the
violations they alleged and that were identified at the beginning of the due process hearing in this
case.

The Supreme Court limited its holding in Schaffer to allocating the burden of persuasion,
explicitly not specifying which party should bear the burden of production or going forward with
10the evidence at various points in the proceeding. Allocating the burden of persuasion affects the
outcome of a due process hearing only in that rare situation where the evidence is in “equipoise,”
i.e., completely in balance, with neither party having produced sufficient evidence to establish its
position. Ridley S.D. v. M.R., 680 F.3d 260(3rd Cir. 2012).

Here the burden of proof analysis does not affect the outcome, since Parents produced
ample evidence in support of their claims.

Basis of Parents” Complaint/District”s IDEA Violations

Although Parents in this case have been very concerned about Student”s progress in both
academics and social functioning for some time, their concerns became more urgent at the
beginning of the 4th grade school year (2012/2013). Parents noted that Student was unable to
replicate at home the skills that the District reported Student could demonstrate in the special
education classroom. As reported by District staff, in the fall of 2012, Student continued to need
significant accommodations to support academic performance in the classroom, exhibited low
tolerance for frustration and was not socially engaged with peers. (FF 6, 34)

Underlying the increased urgency of Parent”s concerns is the approach of middle school
and their additional concerns about how Student will function in that more challenging setting.
Parents believe that the District consistently underestimated Student”s cognitive potential and,
therefore did not seriously attempt to move Student toward acquiring sufficient reading and math
skills to enable Student to fully participate in the general education grade level curriculum. In
addition, they do not believe that the District adequately addressed Student”s social skills and
sensory needs.

Parents” concerns are well founded. The record establishes that during 3rd and 4th grades
the District did not recognize and comprehensively address all of Student”s disability-related
11needs. Moreover, in 3rd grade, in particular, the District instructed Student in the basic academic
skills of reading, math at the pace and with the level of support dictated by the frustration
Student exhibited in the course of acquiring new and difficult skills, without considering whether
providing additional services to ameliorate the effects of sensory processing and attention issues,
might have improved Student”s school functioning and academic performance. In short, as
Parents suggested, the evidence established that in 3rd grade, especially, in attempting to avoid
challenging behaviors arising from Student”s frustration with more difficult academic challenges,
the teacher”s focus was on assuring that Student felt successful even if that meant allowing
Student to make virtually no progress in reading and math. (FF 21-25)

In this case, it appears that the District, unfortunately, missed the point of Parents”
concerns. The problem that ultimately led to the due process hearing was Parents” frustration at
their inability to determine where Student was actually functioning, academically, in comparison
to grade level peers. A real discussion between the parties concerning how to determine not only
the level of Student”s skills in reading and math, but how to improve Student”s academic skills
and overall functioning while fading supports over time might have been productive. The
District, however, clearly did not see a need for significant changes to the way it was instructing
Student and did not engage in a real discussion with Parents about their concerns, at least not
with a view toward making any significant changes to Student”s instruction and related services.

Of greater concern going forward is determining what the District needs to do to in the
short term to meet Student”s disability needs that it did not sufficiently or appropriately address
in the past, and what it will be required to do if Parents want Student to return to the public
school.

Parents provided evidence from an independent school psychologist who evaluated
Student in May 2013 that Student should be identified as a child with average intelligence and a
specific learning disability. (FF 15) There is also a question whether ASD should be added as a
disability category. Those are not, however, matters that need to be explicitly determined based
upon the hearing record. Unless there is some urgency arising from the question whether
Student is IDEA eligible in any category, identification is best left to Student”s IEP team to
consider based upon evaluation results. Here, the private psychoeducational evaluation report
that included specific learning disability and ASD as proposed eligibility categories was not
completed until June 2013, close to the time the due process complaint was filed. Although
there would have been no problem, and it would have furthered the purposes of IDEA, had the
District convened Student”s IEP team to consider changes based on the private evaluation report,
that likely could not realistically have occurred during the summer. If Parents decide to reenroll
Student in public school, however, the District should convene an IEP meeting to fully consider
Parents” private evaluations, including a discussion whether any change should be made to
Student”s disability category.

The immediate question is whether the District failed to identify and address all of
Student”s needs, and that is clearly the case. Even without the recent diagnosis of ASD,
Student”s social skills deficits and sensory needs were well known to the District. (FF 26) The
District school psychologist acknowledged that there had been discussion concerning the
possibility that Student had an ASD. (FF16) The District had sufficient information to
understand that Student”s social skill deficits should be explicitly and systematically addressed
with a pragmatic language/social skills IEP goal and additional speech/language therapy directed
toward developing pragmatic language skills. The District however clearly did not consider
13Student”s significant social skills and pragmatic language difficulties as matters that needed
sustained and systematic attention through speech/language services or other means of social
skills training.

Similarly, Student”s sensory needs were well known to the District, but were not
systematically and comprehensively addressed in Student”s IEPs in 3rd and 4th grades. The
opinion of Parents” independent school psychologist that Student should have a full sensory
integration evaluation followed by development of a sensory integration plan makes sense and
will be ordered.

Although Parents want the District to acknowledge that Student has average intelligence,
it is not entirely clear whether that would have any practical effect on the instruction Student
receives. Student is already receiving special education services in a learning support setting.
Parents, however, are obviously concerned that if the District believes that Student has lower
than average cognitive ability, it may well conclude that Student is ultimately incapable of
learning the same content in academic courses as grade level peers, and may see no reason to
aggressively attempt to bring Student to grade level in reading and math. The record, however,
demonstrates that Student is capable of moving forward academically with more intensive
instruction, including at least some 1:1 instruction. (FF 28)

In summary, the record in this case established that the District did not provide Student
with all necessary academic instruction and related services during the 2011/2012 and 2012/2013
school years. The District, therefore, will be ordered to provide Student with compensatory
education equal to the amount of time Student spent in the learning support classroom during 3rd
and 4th grades. Based upon the IEP in effect in those school years, that is 2.3 hours/day for the
2011/2012 school year (S-29 p. 35) and 2.6 hours/day for the 2012/2013 school year. (S-5 p. 47)
14In addition, the District will be ordered to provide Student with compensatory education
equivalent to an additional 60 minutes/month of OT services to address sensory integration needs
and 120 minutes/month that should have been provided for pragmatic language/social skills
instruction. The District will also be ordered to conduct a sensory integration evaluation.

ORDER

Anne L. Carroll
_____________________________
Anne L. Carroll, Esq.
HEARING OFFICER
November 15, 2013

A-F-North-Allegheny-ODRNo-14070-1213-AS