PENNSYLVANIA SPECIAL EDUCATION DUE PROCESS
FINAL DECISION AND ORDER
ODR No. 30128-24-25
This is a redacted version of the original decision. Select details have been removed from the decision to preserve the anonymity of the student. The redactions do not affect the substance of the document.
Child's Name: A.H.
Date of Birth: [redacted]
Parent: [redacted]
Counsel for Parent Laura McWilliams, Esq. 301 Grant Street, Suite 270, Pittsburgh, PA 15219
Local Education Agency: Woodland Hills School District
531 Jones Ave. North Braddock, PA 15104 Counsel for LEA Patricia Andrews, Esq., and Salvatore Bittner, Esq. 1500 Ardmore Boulevard, Suite 506, Pittsburgh, PA 15221
Hearing Officer: Joy Waters Fleming, Esq.
Date of Decision: March 27, 2025
INFORMATION AND PROCEDURAL HISTORY
The Student (Student)[1] is a teenage resident of the District enrolled in the [redacted] grade. The Student is eligible for special education programming as a child with an emotional disturbance and is entitled to procedural protections under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and the regulations implementing those statutes.[2] In the August 2024 due process complaint, the Parent sought compensatory education for the District's asserted failure to provide a free, appropriate public education (FAPE) to the Student from November 2019 through the 2023-2024 school year. The Parent also alleged that the District violated Section 504 through deliberately indifferent and discriminatory actions. The District countered that its actions were appropriate, did not deny FAPE or violate Section 504, and requested dismissal of claims before August 13, 2022, as untimely. After an evidentiary hearing session, the Hearing Officer determined that all claims brought by the Parent were limited to those alleged to have preceded the two years before filing the due process complaint of August 13, 2022. A brief discussion of that determination follows.
ISSUES[3] 1) Did the District deny the Student a FAPE from November 2019 through the 2023-2024 school year through an improper removal from the general education setting or an improperly conducted 2023 manifestation determination review process? 2) Did the District discriminate against the Student in violation of Section 504? 3) When did the Parent know or should they have known of the action that formed the basis of their complaint? 4) If the District denied the Student a FAPE, what, if any, remedy is appropriate?
FINDINGS OF FACTS
1. The Student resides within the District and is eligible for special education as a Student with an emotional disturbance. (P-53)
2. The Student exhibits behaviors that impede learning. (P-5,P-12, P-25, P-33, S-24, S-25, S-33, S-49)
On the hearing record, counsel agreed to the issues for resolution. (N.T. 8) Early Educational History
3. The Student entered the District in the [redacted] grade during the 2018-2019 school year. During the spring term, the Student was moved to a forty-five-day alternative educational setting because of disruptive behaviors. (N.T. 31, 35)
4. During the 2018-2019 school year, the Student received twenty-four office referrals for behavior that included hitting peers, bullying and insubordination. (P-4, p. 9; N.T. 108)
5. During the 2018-2019 school year, the Parent participated in educational decision-making concerning the Student. (N.T. 31-37, 108)
6. The summer after [redacted] grade, a private psychologist diagnosed the Student with ADHD and Anxiety. In response, the District issued permission to evaluate the Student, but the Parent did not consent because of plans to enroll the Student outside the District. (N.T. 3637) 2019-2020 School Year
7. During the 2019-2020 school year, the Student was enrolled into the [redacted] grade at charter school. On November 25, 2019, the Parent enrolled in the District because the charter school was not equipped to address the Student's behaviors.
(P-4, P-5; N.T. 37, 109-110)
8. On November 26, 2019, the Student received a ten-day suspension for running through the halls, cursing at staff, elopement, and threatening to bring a gun to school and kill. (P-4, S-65, p. 4; N.T. 112-117)
9. On December 16, 2019, the District placed the Student in a therapeutic educational program. (P-4)
10. A 2020 ER determined that the Student was eligible for special education services under the primary disability category of emotional disturbance and the secondary disability category of Other Health Impairment (OHI). Parent input indicated the Student’s behavior interfered with learning. (P-4)
11. On March 10, 2020, the IEP team met to develop Student programming, followed by the issuance of a NOREP that proposed continued placement of the Student in the therapeutic educational program. (P-5, P-7)
12. During placement in the therapeutic program, the Parent expressed concern to the District that the Student's educational needs were unmet. The Parent advocated for the Student's return to the District in a less restrictive setting. (N.T. 47-52, 55, 134)
13. During the 2019-2020 school year, the Parent participated in educational decision-making concerning the Student. (P-2, P-4, P-5, P7; N.T. 55) 2020-2021 School Year
14. During the 2020-2021 school year, the Student was enrolled in the [redacted] grade and received an education in a therapeutic educational program. (S-16)
15. On March 2, 2021, the IEP team met to discuss educational programming. At the meeting the team discussed a plan to transition to the Student to the District’s general education. (S-16, p.1; N.T. 117120)
16. During placement in the therapeutic program, the Parent expressed concern to the District that the Student's identified needs were unmet. The Parent advocated for the Student's return to the District in the least restrictive setting. (S-16; N.T. 47-52, 55, 134)
17. During the 2020-2021 school year, the Parent participated in educational decision-making regarding the Student. (S-16; N.T. 47-52, 55, 134) 2021-2022 School Year
18. During the 2021-2022 school year, the Student was enrolled in the [redacted] grade in an out of District therapeutic educational program. The Student received itinerant emotional support services and academic instruction in general education courses. (S-28, p. 2)
19. From December to January, the Student received six days of out-of-school suspension for behaviors that included refusing to do schoolwork, yelling vulgar comments at staff and peers, and elopement from the classroom. (P-12, P-24, S-18, S-19; N.T. 124-126)
20. On January 20, 2022, the team revised the Student's IEP with a plan for transition to the District [redacted]. (P-25)
21. On January 31, 2022, the Student was involved in two behavioral incidents. During the first incident, a teacher saw a bag, believed to be marijuana, fall out of the Student's hoodie. The teacher gave the bag to the principal. The principal called the police. During the second incident, the Student was involved in a fight with a peer on the bus ride home. The bus driver was reportedly very upset and stated that "I never want [the Student] on my bus again." (P-32, S23, S-26)
22. After a manifestation determination review (MDR), the team concluded that the Student's conduct was a manifestation of the emotional disturbance disability. The team also concluded that the conduct was not attributable to the LEA’s failure to implement the IEP. (P-32)
23. On February 4, 2022, the District conducted a reevaluation of the Student. The RR determined the Student's math and reading skills were at grade level. The RR identified weaknesses in coping skills, managing behaviors, remaining respectful, and maintaining appropriate peer relationships. (P-30, p. 9, S-28)
24. The RR concluded that Student continued to meet the criteria as a child with an emotional disturbance but needed a higher level of care to ensure success. (S-28, p.9)
25. A February 4, 2022, functional behavioral assessment (FBA) of the Student indicated behaviors of concern that included vulgar/disrespectful comments to peers and staff, putting hands on peers, and refusing to listen to rules and expectations. (S-25, p. 2)
26. The RR recommended consideration of placement of the Student in a full-time emotional support program with a small, structured program with a therapeutic component. (P-30)
27. On March 11, 2022, the Parent agreed to the transition and placement of the Student in the full-time emotional support program (APS). (P-31, P-33)
28. On March 16, 2022, the IEP team met to develop programming.
The March IEP indicated the Student demonstrated difficulty managing emotions and behaviors and would attend the APS to address social/emotional skills until reintegration in a less restrictive setting could occur. (S-32, S-33)
29. The March 2022 IEP contained a PBSP and three behavior goals designed to address following directions (baseline: 74%), classroom disruptions (baseline: unknown), and coping skills (baseline: unknown). SDI included PBSP interventions (small group instruction, wait time, breaks, check-ins). (P-35, p. 21-23, S-33; N.T. 179-180)
30. On March 16, 2022, the Parent approved the NOREP that recommended the Student's placement in the APS. The Student's first day of school in the APS was March 23, 2022 (P-33, S-34)
31. On April 5, 2022, the Student's IEP was revised to note a one-day suspension for fighting. The Student was offered a safety plan and participation in a twice-weekly peer support group. The student declined to sign the safety plan. (S-36; N.T 132)
32. On May 12, 2022, the IEP team met after the Student brought contraband (a vape) to school, damaged the outside doors and was aggressive toward staff. (S-39; N.T. 132-133)
33. Between March 25, 2022, and May 31, 2022, the Student accrued twenty-three unexcused absences from school. (P-8, S-4; N.T 77)
34. After placement in the APS, the Parent expressed concern to the District that the Student's identified needs were unmet. The Parent advocated for the return of the Student to the District "in the least restrictive setting." (N.T. 78, 134)
35. During the 2021-2022 school year, the Parent participated in educational decision-making regarding the Student. (P-25, P-30, P-31, P-32, P-35; N.T. 133-138, 140-141) 2022-2023 School Year
36. During the 2022-2023 school year, the Student was enrolled in the [redacted] grade and attended an approved private school (APS). (S-33)
37. The IEP in place at the commencement of the 2022-2023 school year was developed the preceding March and revised in April. (S-33, S-36)
38. During the [redacted] grade, the Student was supervised by a juvenile probation officer (JPO) through the County's Community Intensive Supervision Program (CISP) for an unspecified offense. CISP provides intensive supervision of adjudicated delinquent children in the community and offers services, including on-site tutoring. (S-33, S36, S-39, p. 2)
39. After the Parent expressed concerns to the District that the Student had not attended school for over a month, the IEP team met on November 18, 2022. The Parent, a special education teacher, a juvenile probation officer (JPO), APS representatives, an education advocate, and District staff attended the meeting. The Parent requested entry of the Student to the District middle school. [4] (P-41, S39; N.T. 78-81, 134-135, 262-264)
40. To address the Student's school refusal, the team offered to modify attendance (in person on Tuesdays, Wednesdays and Thursdays) and grade only completed schoolwork. The IEP noted the Student's probation guidelines, including check-ins with the assigned JPO and compliance with probation expectations. [5] (P-45, p. 8; N.T. 260-263, 267) The November IEP indicated the Student met the coping skills goal (unknown baseline) the previous June, but data was inflated because the Student was present one day a week or not at all. (P-41, p. 26)
At the meeting, the JPO noted that Student had a warrant for failure to comply with supervision terms, including school attendance which could result in a five-day detention. (N.T 262-63)
41. The team agreed to reconvene in four weeks to discuss the Student's compliance and possible transition back to the District. (P45, p. 2, 8, 30)
42. On January 9, 2023, the IEP team reconvened. The Parent again requested the reentry of the Student to a general education setting. The team noted the Student's involvement with the juvenile justice system and failure to comply with probation conditions. No changes were made to the Student's IEP. (P-45, p.2)
43. On February 24, 2023, the IEP team met and discussed the Student's school refusal. Since the implementation of the attendance plan in November, the Student attended ten days of school, did not complete schoolwork, slept when in school, and had all failing grades. (P-47, p. 6, S-44; N.T. 205-206)
44. The IEP reported no progress toward the work completion goal, and it would be withdrawn. The team reported no progress toward the disruption goal and it remained in the IEP. (P-47, p. 10)
45. At the February meeting, the Parent requested the Student's enrollment in the District's cyber program. The District expressed this as inappropriate because of the Student's special educational needs. No NOREP was issued. (P-47, p. 8, S-44; N.T. 208-209)
46. The February IEP offered a revised PBSP with goals for attendance (baseline: 20%), work completion (baseline: 0%), classwork completion (baseline: 0%). The disruption goal remained unchanged (baseline: unknown). The District could not record baseline data for all goals because of Student's refusal to attend school. The District did not conduct an FBA before updating the PBSP. (P-47, p.2225; N.T. 217-219)
47. SDI included PBSP interventions (modified attendance, preferred seating, crisis plans). (P-47, S-44; N.T. 213)
48. The District determined it was unable to conduct an FBA to assess the reasons for school refusal because the Student inconsistently attended school. (N.T. 206, 232)
49. The February 2023 IEP offered the Student a full-time emotional support placement in the APS. (P-47, S-44)
50. On March 29, 2023, the IEP team met to assess the Student's progress. The Student attended school 60% weekly for two out of four weeks, an average of 50%. The Student did not attain a 75% in any classes, with grading only for days attended. (P-48, p. 2)
51. At the meeting, the Parent and advocate requested the Student's transition to the District's middle school. The District expressed concerns that the Student had not met the goals and would move forward with a reintegration plan once success occurred on two of the four goals. The team agreed to reconvene in four weeks to assess the Student's progress. (P-50, p. 2; N.T. 134, 268)
52. On April 25, 2023, the IEP team met to review the Student's progress. Although the Student did not meet the attendance and compliance expectations, the team agreed to transition the Student to the District [redacted] at the commencement of the 2023-2024 school year. The Parent requested placement of the Student in the general education setting with emotional support classes as a backup if unsuccessful in the regular environment. The team offered ESY at the District high school. (P-50)
53. On May 12, 2023, the District completed a reevaluation of the Student. The RR contained aptitude and achievement scores from 2020, BASC-3 ratings, and Parent and educator input. Updated cognitive and achievement testing was not obtained because the Student did not consistently attend school. (P-53, S-49)
54. The RR reported that by the end of the third quarter of this 2022-2023 school year, the Student had three excused and 81 unexcused days of absence. The RR indicated that the Student slept for 90% of the school day when present. (S-49, p. 6)
55. The RR concluded that the Student continued to meet the criteria as a child with emotional disturbance. (P-53, p. 7)
56. On June 5, 2023, the IEP team met. During the meeting, the District agreed to enroll the Student in the public high school. The June IEP offered PBSP goals to address school attendance, work completion, classwork completion, and creating disruptions. SDI included small group instruction, breaks, preferred seating and a crisis plan. (S-52)
57. The decision to transition the Student from the APS to the District high school was made based on information that limited behavior issues were present in the current setting and the need for access to additional services in the general education environment. (P56; N.T. 370)
58. The June IEP indicated Parent requested a general education setting for the Student and a readjustment if needed. Although the June IEP offered full-time emotional support placement, the Student was scheduled for 100% of the day in the regular classroom. The team discussed meeting during the summer to plan for the transition to the high school. No NOREP was issued after the June IEP meeting. [6](P-56, S-52, p.6, 35; N.T. 228-230, 252, 254)
59. During the 2022-2023 school year, the Student accrued 114 days of unexcused absences. Although ESY was offered, the Student did not attend. (P-56, S-8; N.T. 228-230, 252, 254)
60. During the 2022-2023 school year, the Parent participated in educational decision-making regarding the Student. (P-41, S-36 2023-2024 School Year
61. During the 2023-2024 school year, the Student was enrolled in the [redacted] grade in a District high school, with the IEP developed in June 2024 slated for implementation. (S-52; N.T. 337)
62. On August 21, 2023, the District provided the Parent with a copy of the Student’s class schedule. (P-68, p. 7)
63. In September, a case manager contacted the Parent to discuss scheduling special education classes for the Student. The Parent
A District issued NOREP dated September 20, 2023, appears to memorialize the decisions made at the June IEP meeting. It proposed changing the Student’s placement from full-time emotional support at the APS to itinerant support at the District high school. The NOREP noted the Parent’s request for placement of the Student in general education and a readjustment to emotional support class, if necessary. On November 11, 2023, the Parent approved the recommendation. (P-61, S-54; N.T. 295-296, 337, 350-351) requested the scheduling of all regular education classes. (P-68, p. 6, S-52; N.T. 331, 349-350)
64. On September 14, 2023, the Student participated in a fight reportedly to help a friend. During the altercation, the victim was on the ground and struck and kicked in the head. (P-59, P-60, P-68, p. 2, S-68; N.T. 306-307)
65. On September 20, 2023, the District held a manifestation determination review (MDR). The MDR listed the reason for the review as the unilateral removal for drugs, weapons, serious bodily injury for up to 45 school days in an interim alternative educational setting. (P59, P-60)
66. The MDR team reviewed the Student's educational records and considered teacher and Parent input. The Student's IEP noted difficulty managing emotions and behaviors. A teacher reported Student sleeping in class but no demonstration of disrespect. The Parent reported considerable progress of the Student and a history of fighting in school. (P-59, P-60)
67. The MDR team concluded the conduct was not a manifestation of disability because others were fighting, and the Student joined. The team also concluded the conduct was not the result of the District's failure to implement the IEP. After a review of the videotaped incident, the team concluded the fight resulted in serious bodily injuries to the victim because the victim was on the ground, repeatedly hit in the head, and the Student's continuous involvement in the altercation after staff intervened. (P-59, P-60, S-68; N.T. 290, 306-308, 373)
68. The MDR team recommended the unilateral removal of the Student from school for up to 45 days to an interim alternative educational for the infliction of a serious bodily injury. The victim of the fight did not return to school. (P-59, P-60, P-68, p. 3; N.T. 280, 308309)
69. On September 22, 2023, the Parent and District entered into a separation agreement that offered the Student a temporary out-ofschool suspension, enrollment in the District's online academy, and a return to the high school on November 13, 2023. (S-55; N.T. 310-311, 346, 348, 374)
70. On October 11, 2023, the District issued a NOREP that proposed the placement of the Student in an interim alternative setting. The Parent declined to sign the NOREP. [7](S-56)
71. The Parent and Student received an orientation for participation in the online academy. The District assigns a special education case manager to support students enrolled in their online academy. (S-55; N.T. 310-311, 346, 348, 384, 453)
72. The District's online academy provided the Student with asynchronous instruction, pre-recorded academic content, teacher access, and an assigned case manager. Teachers are assigned to specific classes and are available for questions and concerns. They send weekly progress updates to both students and parents. The case manager monitors and tracks student progress, provides On October 10, 2023, the Parent through counsel, filed a due process complaint. The Parent withdrew the complaint. (S-69; N.T. 143, 376) accommodation, implements SDI and offers learning support if needed. (P-68, p. 2; N.T. 386-387, 449-450, 453, 457)
73. On November 9, 2023, the IEP team met to update the Student's programming for return to in-person instruction. Although the Parent wanted a return to in-person instruction in the high school, the Student, who did not attend the meeting, opted to remain enrolled in the District's online academy. (S-59, S-60; N.T. 313-314, 389)
74. During the meeting, the team discussed accommodations for implementation in the online academy that included in-person classes in the morning and online classes later in the day, extra tries on tests/quizzes, reduced answer options, and access to the online special education teachers. The team determined the Student’s PBSP would resume when a return to in-person classes occurred. (S-59; N.T. 333)
75. The November IEP offered goals related to classroom behaviors, assignment completion, on-task behaviors, and compliance. Offered supplementary aids and services, including collaborative lesson planning, extended time for assignment completion, writing checklists, check-ins, and structured choices. (S-59, p. 29-32)
76. The November IEP indicated the Student would participate in the online academy in regular education with supports for all classes. (S59, p. 30-31; N.T. 334-335)
77. On November 9, 2023, the District issued a NOREP that proposed to change the Student's forty-five-day placement in the online academy to itinerant emotional at the District high school. The Parent declined to sign the NOREP. (S-60; N.T. 390-392)
78. The Student remained enrolled in the online academy for the 2023-2024 school year, completed schoolwork, obtained passing grades and earned five credits. (P-70; N.T. 300)
79. On August 13, 2024, the Parent filed a due process complaint.
DISCUSSION AND CONCLUSIONS OF LAW
General Legal Principles
The burden of proof consists of two elements: the burden of production and persuasion. The burden of persuasion lies with the party seeking relief. Schaffer v. Weast, 546 US 49, 62 (2005); LE v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006). Accordingly, the burden of persuasion in this case must rest with the Parents who filed the Complaint that led to this administrative hearing. Nevertheless, the application of this principle determines which party prevails only in those rare cases where the evidence is evenly balanced or in "equipoise." Schaffer, supra, 546 U.S. at 58 Special education hearing officers, as fact-finders, are responsible for determining the credibility of the witnesses who testify. See J. P. v. County School Board, 516 F.3d 254, 261 (4th Cir. Va. 2008); see TE v. Cumberland Valley School District, 2014 US Dist. LEXIS 1471 *11-12 (MD Pa. 2014); AS v. Office for Dispute Resolution (Quakertown Community School District), 88 A.3d 256, 266 (Pa. Commw. 2014). This Hearing Officer found most of the witnesses to be generally credible as to the facts. Any conflicting testimony between the witnesses can be attributed to poor recall and differing perspectives. When conflicting testimony occurred, the documentary evidence offered through admitted exhibits served to resolve any contradictions. The findings of fact were made as pertinent to resolving the issues; thus, not all of the testimony and exhibits were explicitly cited. However, in reviewing the record, the testimony of all witnesses and the content of each admitted exhibit were thoroughly considered, as were the parties' closing statements.
General IDEA Principles: Substantive FAPE
The IDEA requires the provision of "free appropriate public education" (FAPE) to children who are eligible for special education services. 20 U.S.C. § 1412. FAPE consists of both special education and related services. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. In Board of Education v. Rowley, 458 US 176 (1982), the US Supreme Court addressed these statutory requirements, holding the FAPE mandates are met by providing personalized instruction and support services that are reasonably calculated to assist a child to benefit educationally from the instruction, provided that the procedures set forth in the Act are followed. The Third Circuit has interpreted the phrase free appropriate public education (FAPE) to require "significant learning" and "meaningful benefit" under the IDEA. Ridgewood Board of Education v. NE, 172 F.3d 238, 247 (3d Cir. 1999).
Through local educational agencies (LEAs), states meet the obligation of providing FAPE to an eligible student through development and implementation of an IEP, which is "‘reasonably calculated’ to enable the child to receive ‘meaningful educational benefits’ in light of the student’s ‘intellectual potential.’ ” P.P. v. West Chester Area School District, 585 F.3d 727, 729-30 (3d Cir. 2009)(citations omitted). As the US Supreme Court has confirmed, an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.” Endrew F. v. Douglas County School District RE-1, 500 US 386, 400, 137 S. Ct. 988, 999, 197 L.Ed.2d 335, 350 (2017).
Individualization is, thus, a focal point for purposes of IDEA programming. Nevertheless, an LEA is not obligated to “provide ‘the optimal level of services,’ or incorporate every program requested by the child's parents.” Ridley School District v. MR, 680 F.3d 260, 269 (3d Cir. 2012). Rather, the law demands services that are reasonable and appropriate in light of a child’s unique circumstances and not necessarily those that his or her “loving parents” might desire. Endrew F., supra; see also Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989). A proper assessment of whether a proposed IEP meets the above standards must be based on information “as of the time it was made.” D.S. v. Bayonne Board of Education, 602 F.3d 553, 564-65 (3d Cir. 2010); see also Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031, 1040 (3d Cir. 1993)(same) “The IEP must aim to enable the child to make progress.” Dunn v. Downingtown Area School District, 904 F.3d 248, 255 (3d Cir. 2018) (emphasis in original)
IDEA DISCIPLINARY PRINCIPLES
The IDEA provides many protections when a local educational agency (LEA) seeks to impose discipline on a student with a disability. Specifically, when an eligible student is facing a change in placement for disciplinary reasons, a meeting must convene to determine whether or not the conduct in question was a manifestation of the student's disability:
(E) Manifestation determination
(i) In general. Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine—
(I) if the conduct in question was caused by or had a direct and substantial relationship to, the child's disability; or
(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP. 20 U.S.C. § 1415(k)(1)(E)(i) (italics added); see also 34 C.F.R. § 300.530(e).
If it is determined that the conduct in question had either the causal relationship with the disability or was a result of the failure to implement the child's IEP, the conduct "shall be determined to be a manifestation of the child's disability." 20 U.S.C. § 1415(k)(1)(E)(ii); see also 34 C.F.R. § 300.530(e)(2).
If the conduct is determined to be a manifestation of the child's disability, the LEA must take certain other steps which include returning the child to the placement from which he or she was removed. 20 U.S.C. § 1415(k)(1)(F); see also 34 C.F.R § 300.530(f). By contrast, if the team determines that the behavior which resulted in discipline was not a manifestation of the student's disability, the LEA may apply the same disciplinary procedures applicable to all children without disabilities, except that children with disabilities must continue to receive educational services necessary to provide a free, appropriate public education (FAPE). 20 U.S.C. §§ 1415(k)(1)(C) and (D); 34 C.F.R. §§ 300.530(c) and (d).
LEAST RESTRICTIVE ENVIRONMENT
A critical and paramount premise in the IDEA is the obligation that eligible students be educated in the “least restrictive environment” (LRE), which permits them to derive meaningful educational benefit. 20 U.S.C. § 1412(a)(5); T.R. v. Kingwood Township Board of Education, 205 F.3d 572, 578 (3d Cir. 2000). To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C.S. § 1412(a)(5)(A). see T.R. v. Kingwood Township Board of Education, 205 F.3d 572, 578 (3d Cir. 2000); Oberti v. Board of Education of Clementon School District, 995 F.2d 1204, 1215 (3d Cir. 1993).
General IDEA Principles: Procedural FAPE
From a procedural standpoint, the family including parents have “a significant role in the IEP process.” Schaffer, supra, at 53. This critical concept extends to placement decisions. 20 U.S.C. § 1414(e); 34 C.F.R. §§ 300.116(b), 300.501(b). Consistent with these principles, a denial of FAPE may be found to exist if there has been a significant impediment to meaningful decision-making by parents. 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2). Procedural deficiencies may warrant a remedy if they resulted in such “significant impediment” to parental participation, or in a substantive denial of FAPE 20 USC § 1415(f)(3)(E).
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).
The obligation to provide FAPE is substantively the same under Section 504 and the IDEA. Ridgewood v. Board of Education, 172 F.3d 238, 253 (3d Cir. 1995). Further, the substantive standards for evaluating claims under Section 504 and the ADA are essentially identical. See, e.g., Ridley School District. v. M.R., 680 F.3d 260, 282-283 (3d Cir. 2012). Courts have long recognized the similarity between claims made under those two statutes, particularly when considered together with claims under the IDEA. See, e.g., Swope v. Central York School District, 796 F. Supp. 2d 592 (M.D. Pa. 2011); Taylor v. Altoona Area School District, 737 F. Supp. 2d 474 (W.D. Pa. 2010); Derrick F. v. Red Lion Area School District, 586 F. Supp. 2d 282 (M.D. Pa. 2008). Thus, in this case, the coextensive Section 504 and ADA claims that challenge the obligation to provide FAPE on the same grounds as the issues under the IDEA will be addressed together.
The Parent’s Claims
This Student is eligible for special education as a child with an emotional disturbance. Since elementary school, this Student has engaged in challenging and sometimes violent behaviors that have resulted in school-based interventions, disciplinary referrals and District placement in therapeutic settings.
The Student’s behavioral difficulties particularly during the 2018-2019 ([redacted]-grade) and 2019-2020 ( [redacted]-grade) are well documented. From an educational standpoint, the [redacted] grade was a pivotal year for the Student with many changes. Initially, the Student attended a charter school before enrolling in a District elementary school. Shortly after a volatile episode, the IEP team recommended placement in a therapeutic program, where the Student remained through most of the 2021-2022 school year ([redacted]grade) until behavioral incidents resulted in placement in an APS.
KOSHK Claims
In their detailed due process complaint, the Parent alleged numerous multi-year actions by the District, emanating from November 2019 through the 2023-2024 school year, resulting in a denial of FAPE. The Parent contends they knew of the violation and the injury to the Student on June 5, 2023. However, the injury was more significant than initially known, and the full extent of the injury was known on September 14, 2023; thus, their due process complaint submitted on August 13, 2024, was timely. The District disputed that argument. Following an evidentiary hearing, this Hearing Officer determined that all claims brought by the Parent were limited to those alleged to have occurred from August 13, 2022, through the filing of the due process complaint. The rationale for that conclusion follows. The IDEA’s statute of limitations is found at 20 U.S.C. § 1415(f)(3)(C), which states:
A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.
The date that the Parent knew or should have known about the alleged action is the KOSHK date. If a parent raises a complaint within two years of the KOSHK date, the statute of limitations imposes no bar on recovery. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). IDEA case law explains how to determine the KOSHK date. See E.G. v. Great Valley Sch. Dist., No. 16-5456, 2017 U.S. Dist. LEXIS 77920 (E.D. Pa. May 23, 2017). The KOSHK date is not simply when the Parent knew or should have known of the action forming the basis of their complaint. Under E.G. v. Great Valley, the statute of limitations begins to run when parents know or should know both of the school’s actions and of the alleged violations. Id. Knowledge of the action and the violation “can happen on the same day or be spread over months or years.” Id at 22. Hearing officers are required to make a fine-grained analysis to determine the KOSHK date for each alleged violation. Id at 22- 23. The inquiry calls for consideration of what conclusions about the child's education a reasonable parent could draw from the information at hand. The standard does not require parents to be educators or legal scholars. The clock does not run from when parents come to understand their legal rights. Instead, the clock runs from when reasonable parents can conclude that their child's needs are unmet.
The collected evidence has established that this Parent had full knowledge of this Student’s academic, behavioral and emotional needs and repeatedly expressed disagreement with the Student’s placement in the therapeutic program in March 2020 through transition to the APS in March 2022. During this time, the Parent continually advocated for the Student’s return to the general education setting of the District on grounds that it was less restrictive, and the Student’s needs were unmet. Finally, the evidence has established that Parent was actively involved in determining the Student’s placement and received notice of procedural safeguards. The Parent has failed to establish that they did not know of alleged violations of the Student’s rights contemporaneously with any alleged action or omission of the District. As such, the Parent knew or should have known that the Student’s behavioral and educational needs were unmet starting with the first therapeutic placement in March 2020. All claims brought by the Parent are limited to those alleged to have occurred from August 13, 2022, through the August 2024 due process complaint.
FAPE Claims – August 2022-August 2024
Following a manifestation determination review in March of [redacted]grade, the District transitioned the Student from a therapeutic program to an approved private school (APS). For the remainder of the 2021-2022 school year, the Student inconsistently attended school and accrued twenty-three absences.
The first issue that must be addressed is the Parent’s claim that the District denied a FAPE during the 2022-2023 school year by failing to provide appropriate behavioral interventions to address the Student’s refusal to attend school. Based on this hearing record, the Parent has established by a preponderance of evidence that the District denied the Student a FAPE with respect to this claim.
The Student transitioned to [redacted] grade of the 2022-2023 school year, still enrolled in the APS, with court-involvement, adjudicated delinquent for unspecified reasons, and supervised by a juvenile probation officer. Although the Student’s IEP had three behavioral goals (disruptive behavior, coping skills, following directions) developed in conjunction with a PBSP, two had unknown baseline data. The 2022-2023 school year was punctuated by nearly monthly IEP or team meetings in which the Parent participated. At the meetings held in November and January through April, the topics were the same: the Student’s accrual of absences and the Parent advocating for the Student to move from the APS to the District middle school. Although the Student did not miss every day of the school, similar to the previous school year, attendance was inconsistent and unpredictable. When present in school, the Student reportedly slept. Unsurprisingly, the Student did not complete schoolwork, had failing grades, made no demonstrable progress toward behavioral goals and reportedly gleaned no education benefit during the 2022-2023 school year.
The District’s actions to address the Student’s refusal to attend school ranged from offers to modify attendance requirements, meetings to discuss school engagement and revisions to the IEP goals. None of the options worked for any demonstrable period. The question is whether the District had any additional obligations beyond what they offered. Based on my review of the available evidence, by the November 18, 2022, team meeting, where the Parent continued to raise concerns about the Student’s school refusal, the District should have attempted a functional behavioral assessment (FBA). At this juncture, an FBA would be a valuable tool to ascertain the underlying causes of the school refusal behavior and could assist with developing responsive and individualized programming. Unfortunately, this did not occur, and by February, the team acknowledged substantive revisions were needed to the Student’s IEP. Those changes resulted in an amended PBSP with new attendance and work completion goals. An updated FBA did not precede this revision. Although the additional PBSP goals acknowledged the Student’s attendance issues, the revised IEP lacked responsive and compatible specially designed instruction that outlined programmatic changes to assist with getting this Student to school.
The IDEA mandates that an IEP team consider the child's need for "positive behavioral interventions and supports" in the case of a student with a disability whose "behavior impedes his or her learning or that of others." 34 CFR §300.324 (a)(2)(i). In Pennsylvania, a positive behavior support plan must be developed by the IEP team, based on a functional behavior assessment, and become part of the student's IEP.[8] 22 Pa. Code § 711.46. The team’s February revision to the Student’s IEP with additional goals, specifically to address the Student’s now recognized school refusal, necessitated an FBA.[9] Without that insight the District did not know if the refusal was medical, clinical, environmental or had an unrecognized mental health basis. Furthermore, the Student’s school refusal compromised the educational programming received as the District purported it prevented the development of baselines for the IEP goals and completion of a reevaluation. The District’s attempt to conduct an FBA may have been unsuccessful, but I determine that measure was necessary to offer this Student a FAPE.
The District’s position that an FBA cannot occur on a child that refuses to attend school is unpersuasive. The purpose of the FBA was to determine the reasons for the Student’s school refusal. The decision not to undertake the FBA until Student’s attendance improved is irreconcilable with the intended rationale for its completion. The failure to conduct the FBA could be excused had some other approach been proposed that was reasonably calculated to address Student’s lack of attendance. However, this hearing record does not support those efforts. Additionally, the evidence reviewed in this matter suggested the District believed supervision and monitoring of the Student’s attendance by probation and the court somehow served to provide the educational oversight it was tasked with delivering. The Student’s juvenile court involvement did not relieve the District of its FAPE obligation.
The District’s failure to appropriately address the Student’s school refusal through an FBA and subsequent responsive programming goes beyond a mere procedural violation and was a denial of FAPE. Here, the failure to conduct an FBA and develop responsive, individualized programming caused a deprivation of educational benefit to Student by not providing the support needed for Student's behavioral and attendance needs, which should have significantly reduced Student's absences. Thus, this is a substantive violation and a denial of FAPE pursuant to 34 C.F.R. § 300.513(a). This denial of FAPE contributes to the compensatory education awarded below.
Next, the complaint alleged that the District denied the Student a FAPE during the 2023-2024 school year by failing to provide appropriate behavioral support and conducting a procedurally deficient manifestation determination process. The Parent has met the necessary burden of proof concerning some of these claims.
As agreed, the Student started the [redacted] grade of the 2023-2024 school year enrolled in the District high school. The operative IEP, developed the preceding June, offered no significant differences from previous programming, except it determined the Student’s placement as a full-time emotional support, with 100% of the day in the regular classroom, without discernible special education supports.
Although the school refusal issues, which persisted in the previous school year, appeared neutralized, the District still had an IEP it was tasked with implementing and FAPE it was obligated to provide. The most glaring deficiency is what the IEP lacked. Although it contained goals, SDI and a PBSP, no functional plan was proposed to assist with transitioning this Student from years of education in a highly structured, full-time emotional support and therapeutic environment to the general education population of a public high school. This IEP continued to acknowledge the Student’s needs and emotional disturbance but offered no special education programming, plan or emotional support options to facilitate this critical transition. Surely, the Student should have been offered a transition plan developed in conjunction with the school counselor, social worker, principal, or other supportive measures to address the fully known social-emotional needs. Absent a plan of reintegration, the June IEP was not calculated to afford this Student with meaningful educational progress and resulted in a denial of FAPE.
Unfortunately, this Student’s transition to the District was marred by a serious September fight, followed by a manifestation determination and unilateral removal of the Student. The Parent contends the manifestation determination was procedurally deficient and resulted in substantive harm in violation of the IDEA and Section 504. Those claims are unsubstantiated by the record in this matter. The IDEA provides disciplinary protections to children with disabilities that prevent schools from unilaterally changing a student’s placement if the disciplinary infraction is a manifestation of the child’s disability. See generally, 20 U.S.C. § 1415(k). However, the IDEA recognizes three special circumstances under which schools “may remove a student to an [IAES] for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability.” 20 U.S.C. § 1415(k)(1)(G). Those special circumstances concern weapons, drugs, and serious bodily injury (SBI). Of those three, only SBI is applicable in this case. The IDEA regulations state that the term "serious bodily injury" has the same definition found at Section 1365(h)(3) of the U.S. criminal code. 34 CFR 300.530 (i)(3). That provision defines serious bodily injury as bodily injury that involves: 1) a substantial risk of death; 2) extreme physical pain; 3) protracted and obvious disfigurement; or 4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 18 USC 1365 (h)(3); and 71 Fed. Reg. 46,722 (2006).
After the September 2023 fight, the MDR team reviewed the circumstances of the Student’s involvement, relevant educational information, and input from a teacher and the Parent. Although the team considered the Student’s behavior and disability, as well as the District’s actions, it ultimately determined a serious bodily injury befell the victim of the altercation. The Parent’s claim that serious bodily injury did not occur fails. In this case, a District witness credibly described the videotaped fight, the Student’s entry into the altercation, the victim on the ground sustaining blows to the head, and the unsuccessful attempts to restrain and remove the Student from the brawl. The victim of the fight withdrew from school. As the party with the burden of persuasion, the Parent presented no contradictory evidence to dispute the account of the fight nor the extreme pain one would experience during an assault to the head while lying defenseless on the ground. The decision of the MDR team stands. The manifestation determination review of September 2023 was procedurally appropriate and did not result in a denial of FAPE to the Student.
Instead of a forty-five day alternative setting, the Parent signed a separation agreement with the District that offered the Student a temporary out-of-school suspension from the high school and enrollment in the District’s online academy, an asynchronous, non-classroom environment. During this time, the Parent contends that although a separation agreement was in place, the District denied the Student a FAPE. The IEP in place during this time was developed the preceding June. Although it was flawed for lacking a transition plan for in-person attendance at the high school, it was acceptable for this Student’s enrollment in the District’s online academy. The PBSP IEP goals and accompanying SDI were appropriate, based on the Student’s identified needs known at the time and the structure and obvious format of the online academy. After the Parent and Student received orientation for participation in the online academy, the District assigned a special education case manager to support and monitor involvement. Throughout the online program, the Student had access to assigned teachers for specific classes and a case manager who monitored and tracked progress and was available to provide accommodations, SDI, and learning support.
Next, the Parent contends that special education programming offered in November 2023, in anticipation of the Student’s return to in person instruction, did not offer a FAPE. In their Complaint, the Parent asserted the offered programming failed to provide specific support that permitted the Student to feel safe. The collected evidence compels a contrary conclusion. The Student, despite the Parent’s concerns opted to remain enrolled in the District's online academy. The November IEP was revised to reflect this choice, and it offered a multitude of individualized supports calculated to enable the Student to make progress. Although the Student encountered some difficulties, overall, progress occurred. Absent the introduction of preponderant evidence by the Parent, I conclude the District’s programming in place through the November IEP did not deny the Student a FAPE.
SECTION 504 DISCRIMINATION
Finally, the Parent claims the District discriminated against the Student in violation of Section 504 of the Rehabilitation Act. A student with a disability who is otherwise qualified to participate in a school program and denied the benefits of the program or otherwise discriminated against based on disability has been subject to disability discrimination in violation of Section 504 protections. (34 C.F.R. §104.4; S.H. v. Lower Merion School District, 729 F. 3d 248 (3d Cir. 2013)). A student who claims discrimination in violation of the obligations of Section 504 must show deliberate indifference on the part of the school district in its purported acts/omissions. Id.
Here, the District did not act with deliberate indifference toward the Student. This record is replete with the efforts by the District to accommodate the Parent’s and Student’s demands; however, the programming decisions, as outlined, also fell short. The evidence does not support the conclusion that those acts and omissions were deliberate. Compensatory education will be awarded to remedy clear denials of FAPE, but the District did not act with deliberate indifference in educating this Student. Accordingly, there is no finding that the District discriminated against the Student on the basis of disability.
COMPENSATORY EDUCATION
Having concluded that a denial of FAPE occurred, it is equitable to award compensatory education for the deprivation. G.L. v. Ligonier Valley School Authority, 801 F.3d 602 (3d Cir. 2015) recognized two methods by which a compensatory education remedy may be calculated. One method, the more prevalent method to devise compensatory education, is the quantitative/hour-for-hour calculation, where, having proven a denial of FAPE, the compensatory education remedy is calculated based on a quantitative calculation given the period of deprivation. In most cases, it is equitable in nature, but the award is a numeric award of hours as remedy. The second method, a rarer method to devise compensatory education, is the qualitative/make-whole calculation, where, having proven a denial of FAPE, the compensatory education remedy is calculated based on a qualitative determination where the compensatory education remedy is gauged to place the student in the place where he/she would have been absent the denial of FAPE. It is also equitable, but the award is based on the student's services, future accomplishment, or goal mastery rather than numeric. Both calculations are a matter of proof. There is no evidence in the record to support a qualitative award; thus, a quantitative remedy is awarded.
Allowing a brief, reasonable rectification period for the IEP team to decide to consider alternatives following the November 2022 meeting, Student is entitled to compensatory education in the amount of 5.5 hours for each school day that the District was in session from December 19, 2022, through the end of the 2022-2023 school year, less the number of full or partial schools days that Student did attend school in that period. For the FAPE denial during the 2023-2024 transition to the District, the Student is awarded .25 hours of compensatory education for every day of school attended until the September 20, 2023, manifestation determination. The award of compensatory education is subject to the following conditions and limitations.
The Parent may decide how compensatory education is provided. The compensatory education may take the form of any appropriate developmental, remedial, or enriching educational service, product, or device that furthers any of Student’s identified educational and related services needs. The compensatory education may not be used for products or devices that are primarily for leisure or recreation. The compensatory education shall be in addition to, and shall not be used to supplant, educational and related services that the District should appropriately provide through Student’s IEPs to assure meaningful educational progress. Compensatory services may occur after school hours, on weekends, and/or during the summer months when convenient for Student.
CONCLUSIONS OF LAW
1. The District denied Student FAPE during some of the 2022-2023 and 2023-2024 school years.
2. The Student is entitled to compensatory education to remedy the deprivation.
ORDER
AND NOW, this 27th of March 2025, in accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED as follows.
1. The District failed to provide the Student with FAPE during the 2022-2023 school year. a. In accordance with the foregoing decision the Student is awarded Student is entitled to compensatory education in the amount of 5.5 hours for each school day that the District was in session from December 19, 2022, through the end of the 2022-2023 school year, less the number of full or partial schools days that Student attended school in during that period.
2. The District failed to provide the Student FAPE for the 2023-2024 school year. a. In accordance with the foregoing decision, the Student is awarded .25 hours of compensatory education for every day of school attended until September 20, 2023.
3. Nothing in this 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. Joy Waters Fleming, Esq. Joy Waters Fleming, Esq.
Special Education Hearing Officer
March 27, 2025
Footnotes
[1] In the interest of confidentiality and privacy, Student’s name, gender, and other potentially identifiable information are not used in the body of this decision. All personally identifiable information, including the details on the cover page, will be redacted prior to the decision’s posting on the website of the Office for Dispute Resolution in compliance with its obligation to make special education hearing officer decisions available to the public pursuant to 20 U.S.C. § 1415(h)(4)(A) and 34 C.F.R. § 300.513(d)(2).
[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). Section 504 is found at 29 U.S.C. § 794. The applicable Pennsylvania regulations are set forth in 22 Pa. Code §§ 15.1 – 15.11.
[3] On the hearing record, counsel agreed to the issues for resolution. (N.T. 8)
[4] The November IEP indicated the Student met the coping skills goal (unknown baseline) the previous June, but data was inflated because the Student was present one day a week or not at all. (P-41, p. 26)
[5] At the meeting, the JPO noted that Student had a warrant for failure to comply with supervision terms, including school attendance which could result in a five-day detention. (N.T 262-63)
[6] A District issued NOREP dated September 20, 2023, appears to memorialize the decisions made at the June IEP meeting. It proposed changing the Student’s placement from full-time emotional support at the APS to itinerant support at the District high school. The NOREP noted the Parent’s request for placement of the Student in general education and a readjustment to emotional support class, if necessary. On November 11, 2023, the Parent approved the recommendation. (P-61, S-54; N.T. 295-296, 337, 350-351)
[7] On October 10, 2023, the Parent through counsel, filed a due process complaint. The Parent withdrew the complaint. (S-69; N.T. 143, 376)
[8] Positive behavior support plan—A plan for students with disabilities who require specific intervention to address behavior that interferes with learning. A positive behavior support plan shall be developed by the IEP team, be based on a functional behavior assessment and become part of the student's IEP. These plans include methods that utilize positive reinforcement and other positive techniques to shape a student's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards. 22 Pa. Code § 711.46
[9] Courts in other jurisdictions have found IEPs inadequate when they failed to address a child's persistent absence and tardiness. See Middleton v. District of Columbia, 312 F. Supp. 3d 113 (failing to address attendance can be a denial of FAPE); Springfield Sch. Comm. v. Doe, 623 F. Supp. 2d 150, 159 (D. Mass. 2009); Lamoine School Committee v. Ms. Z. ex rel. N.S., 353 F. Supp. 2d 18, 34 (D. Me. 2005) (if not in school, student could not be said to be receiving "a free appropriate public education).