PENNSYLVANIA SPECIAL EDUCATION DUE PROCESS
FINAL DECISION AND ORDER
ODR No. 30286-24-25
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: H.D.
Date of Birth: [redacted]
Parents: [redacted]
Counsel for Parents: Antoinette D. Hornsby, Esquire Allison Ware, Esquire 301 Grant Street, Suite 301 Pittsburgh, PA 15219
Local Education Agency: Neshannock Township School District
3834 Mitchell Road New Castle, PA 16105
Counsel for the LEA: Patricia R. Andrews, Esquire
Salvatore Bittner, Esquire 1500 Ardmore Boulevard, Suite 506 Pittsburgh, PA 15221
Hearing Officer: Cathy A. Skidmore, Esquire
Date of Decision: 03/31/2025
INTRODUCTION AND PROCEDURAL HISTORY
The student, H.D. (Student),[1] is a [redacted] student residing with the Parents within the boundaries of the Neshannock Township School District (District). Student has been identified as eligible for special education pursuant to the Individuals with Disabilities Education Act (IDEA)[2] because of a Specific Learning Disability. Accordingly, Student also has a disability entitling Student to protections under Section 504 of the Rehabilitation Act of 1973.[3] Student currently attends a District elementary school. Early in the fall of the 2024-25 school year, the Parents filed a Due Process Complaint under the IDEA and Section 504,[4] contending that the District did not provide appropriate programming for Student from the 201920 school year continuing through the present. The District denied the Parents’ contentions and the relief demanded, asserting that the programming and accommodations provided did not deprive Student of a free, appropriate public education. After a Motion by the District to limit the scope of the claims and an evidentiary hearing during which the District established that the Parents had the requisite knowledge of the basis of their claims by the fall of 2021, the matter proceeded to hearing on a narrower time frame, the start of the 2022-23 school year through the current school year.[5] A number of witnesses and substantial documentary evidence were presented at the hearing on the merits,[6] and final disposition is appropriate at this time. Following review of the record and for all of the reasons set forth below, the claims of the Parents cannot be sustained and must be denied.
ISSUES
1. Whether the District denied Student a free, appropriate public education beginning in the fall of 2022 and continuing through the present;
2. If the District did deny Student a free, appropriate public education for any of the relevant time period, is Student entitled to compensatory education;
3. If the District did deny Student a free, appropriate public education for any of the relevant time period, should the Parents be reimbursed for certain tutoring expenses they incurred;
4. If the District did deny Student a free, appropriate public education for any of the relevant time period, should the District be ordered to revise Student’s Individualized Education Program with specific directives;
5. Whether the Parents should be reimbursed for expenses incurred for the IEE?
FINDINGS OF FACT
1. Student is [redacted] and resides with the Parents within the District’s geographic boundaries. Student has been identified by the District as eligible for special education with a Specific Learning Disability (basic reading skills, reading fluency, written expression).
(N.T. 29; P-20; S-27.)
Early Educational History
2. Student entered the District during the 2019-20 school year. In the spring of 2020 as a result of the COVID-19 pandemic, Student was attending school remotely from home. At that time, the Parents noticed that Student experienced challenges with reading and spelling, and they discussed those with Student’s teacher. (N.T. 33-34.)
3. Into the fall of 2020, the Parents observed a continuation of many of the same difficulties. The Parents and teacher discussed those concerns and, by the winter of that school year, Student began Title I reading services. (N.T. 34-36.)
4. The Parents had Student’s vision evaluated in the summer of 2021. The optometrists noted several visual diagnoses and recommended an Individualized Education Program (IEP) for Student to address the vision disability. They also suggested a number of accommodations for school. (P-1; S-1.)
5. The Parents shared the report of the vision evaluation with the District in early September 2021, and they requested an evaluation to determine special education eligibility and a Section 504 plan or IEP. (N.T. 40-41; P-2; S-2.)
6. At a meeting convened with the Parents several days later in September 2021, the team discussed and decided to develop a Section 504 Evaluation Report and Service Agreement. The Section 504 Service Agreement that followed set forth a list of accommodations for Student including those recommended by the optometrists. The Parents approved implementation of the Section 504 Service Agreement. (N.T. 72, 90-92; P-2; P-4; P-5; S-6; S-7.)
2022-23 School Year
7. In the fall of 2022, a meeting convened in September to review Student’s Section 504 Service Agreement. Around that time, Student was scheduled to see an ophthalmologist, and the Parents informed the District that Student no longer had a vision disability. The team agreed to discontinue the Section 504 Service Agreement because Student did not then have a disability; the District then proceeded with a special education evaluation. However, the Parents again expressed concerns with Student’s reading and writing skills; and the District agreed to continue to provide the same accommodations as before without another Section 504 Service Agreement. (N.T. 49-53, 76, 94, 96, 116, 360, 362-63, 440-42, 454, 559-60; P-6; P-10; S-11.)
8. Student’s Title I reading services continued during the 2022-23 school year, three times per week. Those services focused on basic reading skills, building on the general education curricula. Student’s services were in a small group twice each week during individual assignment work using leveled readers; and individually once each week with an intervention for oral reading fluency as well as reading accuracy and comprehension. Student exhibited the ability that school year to selfcorrect and read for comprehension. (N.T. 32, 326-27, 330-333, 33839, 345-48.)
9. On an administration of a standardized assessment of reading in the fall of 2022, Student attained scores that signaled Student’s need for continued grade-level curriculum reading instruction for that grade. A measure of oral reading fluency around the same time did reveal that Student did not meet the benchmark score. (P-30 at 2; S-22 at 3.)
10. Student’s teacher for the 2022-23 school year did not have concerns with Student’s academic performance and skills. (N.T. 562, 566-570, 573-74.)
District December 2022 Evaluation
11. The District conducted the evaluation with consent of the Parents and issued an Evaluation Report (ER) on December 7, 2022. (N.T. 179, 442-43; P-9; P-12; S-12; S-13.)
12. The District ER incorporated input from the Parents reflecting Student’s several interests and a strength in mathematics; difficulties with reading and writing as well as some emotional dysregulation were areas of concern for them. (P-11; P-12; S-13.)
13. Observations by the teacher and the District school psychologist for the ER noted a need for extended time to complete assignments/tests, and weaknesses in reading fluency and decoding. There were no behavior concerns other than a need for occasional redirection. The only potential academic skill deficit observed by the school psychologist was difficulty reading some challenging words. (P-12; S13.)
14. The ER assessed Student’s cognitive ability and academic achievement, with Student performing in the average- to above average-range on both measures. The one area with discrepancy between the scores was reading (letter/word recognition, word recognition fluency). (P-12; S-13.)
15. Social/emotional/behavioral functioning was assessed through rating scales for the ER. The teacher’s results indicate at-risk concern with withdrawal, social skills, and leadership; whereas the Parents’ ratings endorsed many clinically significant (anxiety, depression, somatization, attention problems) and other at-risk (aggression, adaptability) concerns. Student’s own ratings for anxiety were overall in the average range, but appeared to reflect some probability of anxiety. (P-12; S-13.)
16. The District’s ER summarized Student’s academic skills, which did not require instruction beyond the general curriculum, and age-appropriate social/emotional/behavioral functioning at school. The conclusion was that Student did not have a disability and was accordingly not eligible for special education. The District issued a Notice of Recommended Educational Placement (NOREP) consistent with that finding. (P-12; S13; S-14.)
17. After the District’s ER was completed, the Parents obtained a screening of Student for dyslexia that appeared not to consider District information or Student’s performance at school. In a report by the screener in January 2023, she concluded that Student met criteria for a child with dyslexia and mild dysgraphia. The screener also made recommendations including continuation of accommodations, as well as tutoring using an Orton-Gillingham program approach. That report was also provided to the District. (N.T. 58-59, 376, 443-44; P-9; P14; S-15.)
18. The District agreed to the Parents’ request for continuation of support after the screening, although its staff did not view formal accommodations as necessary. Another Section 504 Service Agreement was developed in March 2023 that provided for preferential seating; oral directions combined with written instructions; testing and assignment accommodations; reduced expectations for reading, spelling, and mathematics including requirements to read aloud and copy from the board; other mathematics support (multiplication table provided); access to a school counselor; access to recess; and no use of peer grading. 19.
(N.T. 222, 379, 445; P-15; S-18.)
The Parents began to provide the recommended tutoring services for Student in the spring of 2023, two one-hour sessions per week during the school year. In order to permit the screener to provide the tutoring, Student has had an arranged early dismissal from school for those sessions with the District’s permission. (N.T. 370-73, 398-401, 446-47; P-34.)
20. Assessment of Student’s oral reading fluency over the 2022-23 school year reflected significant improvement for Student by the mid-point and spring of 2023 for words correct per minute. (P-27 at 1; P-30 at 2.)
21. In the spring of 2023, Student’s scores on the Pennsylvania System of School Assessment (PSSA) were in the proficient range in English/Language Arts and in the advanced range in Mathematics. (S22 at 8.)
Fall 2023 Independent Educational Evaluation
22. The Parents obtained an Independent Educational Evaluation (IEE) around the start of the 2023-24 school year. The Parents received a report of the IEE in October 2023 and shared it with the District in January 2024. (N.T. 63, 65-66, 82, 386-87; P-19.)
23. The private evaluator asked District staff to complete rating scales for the IEE. However, she provided the parent version of those scales instead of the teacher version. The District requested but did not receive the proper forms from the private evaluator. (N.T. 242-43, 448-49; S-33.)
24. The IEE included a description of reported educational, family, and evaluation history. There was no District-provided input.[7] (P-19.)
25. Assessment of cognitive ability for the IEE (Wechsler Intelligence Sale for Children – Fifth Edition) yielded an average-range overall composite with variable subtest scores and average to high average Index scores. Assessment of memory and learning, by contrast, yielded all average-range scores. (P-19 at 11-14, 16.)
26. Academic achievement for the IEE (Wechsler Individual Achievement Test – Fourth Edition) reflected scores from the low average to below average range on subtests, with the exception of spelling (average range). (P-19 at 14-15.)
27. Other assessments of executive functioning and visual-motor integration for the IEE did not reveal any weaknesses. However, the evaluator noted that additional measures indicated elevated symptoms of anxiety as well as emotional dysregulation and inattention. (P-19 at 16-19.)
28. The private evaluator determined that Student met criteria for the DSM-5-TR[8] diagnoses of Specific Learning Disorder (reading and written expression) as well as Generalized Anxiety Disorder. Her recommendations included evidence-based reading instruction for dyslexia and instruction in written expression, as well as accommodations and therapy for anxiety and dysregulation. (P-19 at 22-25.)
2023-24 School Year
29. Student’s teacher for the 2023-24 school year did not have concerns with Student’s academic performance or skills, including reading skills. (N.T. 471-72.)
30. Student’s reading fluency scores remained below benchmark in the fall of 2023. As in the prior year, on an administration of a standardized assessment in the fall of 2023, Student attained reading scores at or above grade-level expectations. (P-30 at 4; S-22 at 4.)
31. Student did not exhibit a need for more accommodations or additional provisions in the Section 504 Service Agreement or IEP during the 2023-24 school year; both were implemented. (N.T. 472-73, 474-79, 481-82.)
Spring 2024 District Evaluation
32. In January 2024, the District requested and was granted permission to evaluate Student through a record review and any necessary additional assessments to consider the results of the IEE. (S-26.)
33. The District issued another ER in April 2024 (2024 ER). That evaluation did not include any new District assessments. (N.T. 223; P20; S-27.)
34. The 2024 ER incorporated input from the Parents reflecting Student’s several interests and a strength in mathematics. They also reported difficulties with time management, reading and writing assignments, and reading and spelling skills.
35. (S-27 at 2-3.)
Results of the dyslexia screening and IEE were summarized in the 2024 ER including scores on various assessments administered by those individuals. Other District assessments, evaluations, and interventions were also described including Title I services. (S-27.)
36. Observation by the District school psychologist for the 2024 ER noted accurate oral reading but uneven prosody at times. There were no behavior concerns other than one prompt by the teacher. Input from the current and prior year’s teachers for the ER noted reading fluency and decoding as weaknesses and a need for practice with spelling, and extended time on occasion. (S-27 at 9-12.)
37. The 2024 ER reached the conclusion that Student was eligible for special education as a student with a Specific Learning Disability in basic reading skills, reading fluency, and written expression. Recommendations in that evaluation addressed test/assignment accommodations, checks for understanding, study guides, oral directions combined with written instructions and visual cues, preferential seating, and positive reinforcement. Maintenance of Section 504 anxiety-related accommodations was also suggested. (S27 at 38, 41-47.)
May 2024 IEP
38. An IEP was developed for Student in May 2024, with information from the 2024 ER summarized in detail. Although its staff did not believe that Student needed an IEP, the team agreed to collaborate with the Parents and provide the support they sought. (N.T. 246-47, 250, 29091; (P-21; S-28.)
39. The District proposed several different available reading programs for Student as part of the IEP team discussion, to be used when Student would meet with individually a special education teacher during morning homeroom or a study hall at a time that no instruction was provided to students. The Parents did not agree to this support because they did not believe that specific, direct instruction reading program was identified or described. (N.T. 261-68, 270-71, 278-79, 389, 393-94, 450-51, 474.)
40. A goal in the IEP addressed oral reading fluency increasing from a baseline of 95 words correct per minute to 135 words correct per minute. Program modifications and items of specially designed instruction essentially mirrored those in the 2024 ER as supplemented by the prior Section 504 accommodations; added were executive functioning/organizational supports; study skills support; spelling and written expression supports; and coping strategies for anxiety including weekly check-ins with a school counselor. (S-28.)
41. Student’s IEP provided for learning support at an itinerant level, with Student participating in regular education except during counseling, support by the learning support teacher, and reading fluency monitoring. (S-28.)
42. In the spring of 2024, Student’s scores on the PSSA were in the proficient range in English/Language Arts and in the advanced range in Mathematics and Science. (S-22 at 5.)
43. Assessment of Student’s oral reading fluency in late spring of 2024 school year reflected variable performance but with overall improvement since the fall.
(P-27 at 2; P-30 at 4.)
2024-25 School Year
44. Student’s special education case manager for the 2024-25 school year met with Student at the end of the day in homeroom to check with Student on assignments and any need for organizational support. (N.T. 297-98.)
45. Progress monitoring of the IEP goal in the fall of 2024 indicated improvement in number of words correct per minute above expected minimum accuracy. (P-29.)
46. Student’s grades as of the end of the second quarter of the 2024-25 school year were all in 90 or above range, with the exception of spelling at 86. (S-34.)
DISCUSSION AND APPLICATION OF LAW
General Legal Principles The legal burden of proof comprises two elements: the burden of production and the burden of persuasion. 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). Thus, the burden of persuasion in this case must rest with the Parents who filed the Complaint leading to this administrative hearing. Nevertheless, 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, in the role of 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 who testified to be generally credible as to the facts as they recalled them. The testimony was essentially more consistent than not, with the exception of discussions during the May 2024 IEP meeting about reading programming options. Discrepancies among those accounts are attributed to lapse in memory or recall and differing perspectives and expectations; none appeared to result from any intention to mislead. The weight accorded the evidence, however, was not equally placed.
The Parent who testified persuasively established that both share very real concerns about Student’s reading fluency and decoding skills, and have made great efforts at advocating for what they perceive to be Student’s educational needs. However, their own testimony that they did not seek a specific type of reading program was convincingly contradicted by several District witnesses as well as their express written request to the District for an Orton-Gillingham approach as explicitly recommended by the screener. Moreover, their viewpoint is based in large part on an IEE that lacks any District information through no fault of its staff; they also rely on the screener whose certification credentials and the basis for her recommendations are unknown. The advocate who testified on their behalf is a reading specialist and also certainly experienced in special education; at the same time, although that advocate’s testimony was credible in generally identifying various educational strategies, approaches, and programs that she believed would benefit Student, it was wholly based on a review of various records and particularly the IEE discussed above. In addition, a conversation that this advocate had in a meeting with Student after those conclusions were drawn was of very limited evidentiary value because it did not add anything to the existing record especially Student’s educational needs. In sum, this advocate’s testimony was not persuasive on the issue of the asserted denial of FAPE. The testimony of the various teachers and other professionals in the District, by comparison, was convincing particularly with respect to Student’s presentation at school and ability to meet grade-level expectations. Simply put, their view on Student’s strengths and needs in the school environment was the most convincing of all evidence presented on an alleged FAPE deprivation. In addition to credibility findings, this decision must resolve the issues based on the evidence of record and the weight assigned that evidence. The findings of fact were made as necessary to resolve the issues; thus, not all of the testimony and exhibits were explicitly cited.
Nonetheless, 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 all states to provide a “free appropriate public education” (FAPE) to children who are eligible for special education services. 20 U.S.C. § 1412. The IDEA applies to a “child with a disability.” 20 U.S.C. § 1415(k); 34 C.F.R. § 300.530(a). The IDEA explicitly identifies the following qualifying disabilities: “intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance[], orthopedic impairments, autism, traumatic brain injury, other health impairments, [and] specific learning disabilities.” 20 U.S.C. § 1401(3); see also 34 C.F.R. § 300.8(a).
The eligibility test is two-pronged: having one of those certain enumerated disabilities and, by reason thereof, needing special education and related services. 20 U.S.C. § 1401(3). In order to meet this mandate, the IDEA and state and federal regulations further obligate LEAs to locate, identify, and evaluate children with disabilities who need special education and related services. 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a); see also 22 Pa. Code §§ 14.12114.125. The process of identifying children who may be eligible for special education is through an evaluation. This obligation to identify students suspected as having a disability under the IDEA is commonly referred to as “Child Find.” LEAs are required to fulfill the Child Find obligation within a reasonable period of time. W.B. v. Matula, 67 F.3d 584 (3d Cir. 1995). In other words, an LEA must consider an evaluation for special education services within an appropriate amount of time after notice of behavior or other functioning and performance that suggests a disability. D.K. v. Abington School District, 696 F.3d 233, 249 (3d Cir. 2012). They need not, however, identify a disability “at the earliest possible moment” or to evaluate “every struggling student.” Id. Decades ago in Board of Education v. Rowley, 458 U.S. 176 (1982), the U.S. Supreme Court addressed the IDEA’s statutory requirements, holding that the FAPE mandates are met by providing personalized instruction and support services that are designed to permit the child to benefit educationally from the program and also comply with the procedural obligations in the Act. Through local educational agencies (LEAs), states meet this 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).
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 U.S. 386, 399 (2017). 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. M.R., 680 F.3d 260, 269 (3d Cir. 2012). Indeed, “the IDEA cannot and does not promise ‘any particular [educational] outcome.’” Endrew F., supra, 580 U.S. at 398 (quoting Rowley, supra, 458 U.S. at 192). 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). Questions of methodology have typically been left to the discretion of the LEA, and longstanding case law fully supports this principle. Tucker by & Through Tucker v. Calloway County Board of Education, 136 F.3d 495, 506 (6th Cir. 1998); Roland M. v. Concord School Commission, 910 F.2d 983, 992 (1st Cir. 1990); Lachman v. Illilnois State Board of Education, 852 F.2d 290, 297 (7th Cir. 1988); see also, e.g., J.E. v. Boyertown Area School District, 834 F.Supp.2d 240 (E.D. Pa. 2011).
Evaluation Requirements The IDEA explicitly provides for two purposes of any special education evaluation: “to determine whether a child is a child with a disability” and “to determine the educational needs of such child.” 20 U.S.C. §1414(a)(1)(C)(i). Certain procedural requirements are also set forth in the statute and its implementing regulations designed to ensure that all of the child’s individual needs are appropriately examined. 20 U.S.C. § 1414(b)(2); see also 34 C.F.R. §§ 300.303(a), 304(b). The evaluation must assess the child “in all areas related to the suspected disability[.]” 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). When parents disagree with an LEA’s educational evaluation, they may request an IEE at public expense. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(b). Parents are entitled to an IEE funded by the LEA if its evaluation does not meet IDEA criteria.
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); D.S, supra, 602 F.3d at 565.
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 has been considered to be substantively the same under Section 504 and the IDEA. Ridgewood v. Board of Education, 172 F.3d 238, 253 (3d Cir. 1995). The two statutes as well as the ADA do intersect, but as the Third Circuit recently observed, they are not the same.
LePape v. Lower Merion School District, 103 F.4th 966, 978 (3d Cir. 2024). The IDEA itself notes that claims under Section 504 and the ADA are not limited by the IDEA. 20 U.S.C. § 1415(l); see also id. The IDEA, thus, places no restrictions on ADA and Section 504 claims. Le Pape, supra, 103 F.4th at 979. “The statute's administrative exhaustion requirement applies only to suits that ‘see[k] relief ... also available under’ IDEA.” Luna Perez v. Sturgis Public Schools, 598 U.S. 142, 147, 143 S. Ct. 859, 864, 215 L. Ed. 2d 95 (2023). “[T]he ADA, by regulation, adds another requirement [beyond the IDEA]: the public entity must ‘give primary consideration to the requests of [the] individual[ ] with disabilities.’” Id. (quoting 28 C.F.R. § 35.160(b)(2)) (emphasis in original). “Once he has exhausted those claims in an IDEA hearing, a plaintiff may pursue them as he otherwise would in a district court.” Le Pape, supra, 103 F.4th at 979. Where a party raising claims under these statutes based on the same facts does not assert any legal distinction among them as applied to the case, the differences do not need to be separately addressed. B.S.M. v. Upper Darby School District, 103 F.4th 956, 965 (3d Cir. 2024). Thus, to the extent applicable, the IDEA, Section 504, and ADA claims based on the same set of facts may be considered to be discussed together. To the extent necessary, they will also be addressed separately.
The Parents’ Claims It is logical to begin with the issue of the request for reimbursement for the IEE. Although the claim here was made part of the Complaint rather as a means of obtaining information to later challenge a District ER, the analysis is the same: whether the District’s evaluation(s) met IDEA criteria. Review of the initial ER reveals that it unquestionably did. The ER reflects a number of assessment tools, strategies, and testing measures to obtain information about Student rather than any single source. Input from teachers and the Parents was included, along with a school psychologist observation. Formal assessment of cognitive ability and academic achievement together with social/emotional/behavioral functioning addressed all areas of potential disability. This ER also described the discrepancies between Student’s presentation in the home compared to in the school setting, and focused as it was mandated to do on Student’s performance on general education curriculum materials and assessments as well as IDEA criteria, identifying areas of strength and weakness. The ultimate determination in the initial ER is based on those elements and is well-documented, serving the purpose of a special education evaluation. There is simply nothing in the record to suggest that it was insufficiently comprehensive to meet IDEA standards. To the extent it may be necessary, similar examination of the April 2024 ER reveals that it also comprised multiple assessment tools, strategies, and instruments, not one sole measure, to gather relevant information about Student. The District conducted a record review with a summary of previous evaluations; incorporated parental input that provided their views on Student’s academic and social/behavioral functioning; and obtained and reported on observations by and information from teachers. Further assessments were not necessary after the testing in the IEE, and the Parents do not contend that any should have been administered. The 2024 ER identified areas of strength and need for Student and determined that both eligibility prongs were met under the IDEA, providing the IEP team with more than adequate information to guide special education programming. Once again, the April 2024 ER met both purposes of a special education evaluation. Because both ERs met IDEA criteria, there simply is no basis for ordering that the public bear the expense for the IEE in this case. Additionally, no equitable grounds otherwise lead this hearing officer to consider an award reimbursement for alternative reasons, and this claim must be denied. The crux of the parties’ FAPE dispute is the issue of whether Student is eligible for special education based on Student’s weaknesses with certain basic reading skills. The Parents emphasize the opinions of the dyslexia screener and private evaluator who conducted the IEE, whose conclusions have been noted above to lack information from the District on Student’s performance and presentation at school. The result of this flaw is that these documents, standing alone, do not meet the Parents’ burden of persuasion.
In addition, their advocate’s testimony based on large part on the IEE must be, and accordingly is, lacking in probative value to support their contention that Student was and is in need for specially designed instruction. The Parents have focused on their view that Student’s basic reading skills in oral reading fluency and decoding remain below expectations, and appear to then assume that Student must automatically be entitled to FAPE on that narrow basis. Unfortunately, this perspective necessarily overlooks all of the ways in which Student is and has been performing in school consistent with gradeand age-level expectations, and further fails to acknowledge that all individuals have relative strengths and weaknesses. Not all of the latter point to a need for special education. Ultimately, the Parents have failed to meet their burden of establishing by a preponderance of the evidence that the District failed to properly identify Student’s specific learning disability under the IDEA, and to program for all of Student’s unique needs. Moreover, when the District did develop the May 2024 IEP, the Parents refused to permit the District to provide an appropriate methodology to address Student’s areas of deficit in favor of continuing the tutoring services by the dyslexia screener. As noted, methodology decisions are generally left to the LEA as long as those are appropriate. The Parents’ additional perception that an identified program must be formally named in the IEP is not consistent with IDEA requirements, and the District cannot be faulted for an absence of reading programming that it was unable to implement and monitor. Without a denial of FAPE, there can be no ground for any remedy including compensatory education, reimbursement for expenses, or directives to the IEP team. The Parents are clearly caring and believe firmly that Student requires a particular approach to addressing basic reading skill weaknesses that do not impede Student’s progress in the general education curriculum at the District. This, of course, they are entitled to do, as well as to take whatever steps they deem to be necessary consistent with their view. However, the Parent are not now entitled to relief under the IDEA. Finally, to the extent that the Parents raise challenges under Section 504 and/or the ADA apart from the IDEA, there is nothing in this record to establish or support such a claim. The Parents’ contentions were all based on a failure to address certain specific basic reading skill weaknesses in a certain way, and the Parents prevented the District from attempting to do so. There is, accordingly, no disability-based discrimination under Section 504 or the ADA in this case.
CONCLUSIONS OF LAW
1. The District’s ER in the spring of 2022 and the fall of 2024 were appropriate under the law.
2. The District did not deny Student a free, appropriate public education.
3. The Parents are not entitled to any remedy.
ORDER
AND NOW, this 31st day of March, 2025, in accordance with the foregoing findings of fact and conclusions of law, it is hereby ORDERED as follows.
1. The District’s evaluations of Student were consistent with all IDEA requirements.
2. The District did not deny FAPE to Student in any respect.
3. The District did not discriminate against Student.
4. The Parents and Student are not entitled to any remedy.
It is FURTHER ORDERED that any claims not specifically addressed by this decision and order are DENIED and DISMISSED. Jurisdiction is
RELINQUISHED.
/s/ Cathy A. Skidmore
Cathy A. Skidmore, Esquire HEARING OFFICER
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 details appearing on the cover page of this decision, will be redacted prior to its 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).
[3] 29 U.S.C. § 794. The federal regulations implementing Section 504 are codified in 34 C.F.R. §§ 104.1 – 104.61; the applicable Pennsylvania regulations are set forth in 22 Pa. Code §§ 15.1 – 15.11 (Chapter 15).
[4] The Parents also asserted related claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 – 12213.
[5] Hearing Officer Exhibit (HO-) 2.
[6] References to the record throughout the finings and discussion in this decision will be to the Notes of Testimony (N.T.), Parent Exhibits (P-) followed by the exhibit number, and School District Exhibits (S-) followed by the exhibit number. Citations to duplicative exhibits and testimony may not be exhaustive.
[7] The IEE states that rating scales and a request for final grades were requested of the District and not returned. (P-19 at 4, 11.)
[8] American Psychiatric Association (2022), Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed., Text Revision. These diagnoses are not the same as the explicit disabilities under the IDEA.