PENNSYLVANIA SPECIAL EDUCATION DUE PROCESS
FINAL DECISION AND ORDER
ODR No. 30329-24-25
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: G.K.
Date of Birth: [redacted]
Parent: [redacted]
Counsel for Parent: Tom Davis, Esq.
Tom Davis Law, LLC, 444 E. Township Line Road #1102 Havertown, PA 19083
Local Education Agency: Abington School District
970 Highland Avenue, Abington, PA 19001-4535
Counsel for the LEA: Emily Beck, Esq.
Wisler Pearlstine, LLP, 460 Norristown Road, Suite 110, Blue Bell, PA 19422
Hearing Officer: Charles W. Jelley Esq.
Decision Date: February 28, 2025
Background
The Parent filed the pending Due Process Hearing Complaint alleging multiple violations under the Individuals with Disabilities Education Act (IDEA) and Section 504, alleging a denial of a free appropriate public education (FAPE) seeking both compensatory education and a prospective tuition reimbursement placement for the remainder of the 2025 school year. In contrast, the District seeks a declaratory ruling asserting that it consistently provided the Student with a free appropriate public education (FAPE). After a careful review of both the intrinsic and extrinsic evidence, I conclude that the District failed to provide a FAPE for a portion of the 2023–2024 school year and the 2024–2025 school year. Accordingly, to remedy the FAPE violations, I will award retrospective and prospective compensatory education. To remedy the lack of understanding of the basis of the Student's excessive absenteeism and overall dysregulation, I will also award a 100-day diagnostic evaluation and placement at the District's expense. As the Student has not attended school since April 2024, the diagnostic placement and evaluation should begin no later than ten calendar days from the date of this Order. Finally, I deny the Parent's request for a prospective tuition reimbursement placement for the remainder of the 2024– 2025 school year.[1]
ISSUES PRESENTED
1. Did the District offer and/or provide FAPE to the Student during the 2023-2024 school year under the IDEA and/or Section 504? If not, is the Student entitled to compensatory education?
2. Did the District offer FAPE to the Student for the 2024-2025 school year under the IDEA and/or Section 504? If not, what relief, if any, is appropriate? (NT at 31-35).
FINDINGS OF FACT
1. Currently, the Student is a [high school aged] resident of the District and is eligible for special education services under the classifications Autism and Speech and Language Impairment. (J-20; J-35).
2. At all relevant times, the Student has engaged in "[redacted]," i.e., the Student [redacted]. [Redacted] is a mental health diagnosis. (NT at 72, 577- 79, 852).
3. Since entering the District, the Student has received supplemental learning and autism support services, as well as school-based speech and language therapy and occupational therapy. (J-1, pp.1-4).
The 2021-2022 and the 2022-2023 School Years
4. The District began to reevaluate t he Student during the [redacted] grade year (2021-2022) due to concerns with attendance. Although the Parent consented to the reevaluation, which was to include a Functional Behavior Assessment ("FBA"), prior to the completion of the reevaluation, the Parents withdrew the Student from the District and unilaterally enrolled the Student at the [redacted] School. At the time of the withdrawal from the District, Student had been performing well academically. (J-1).
5. The District issued its Reevaluation Report on April 13, 2022 ("the April 2022 RR"). Among other things, the April 2022 RR determined that the Student's school avoidance stemmed from behavior and communication challenges related to the Autism diagnosis. Data for the FBA was limited to the student's withdrawal from the District. (J-1, pp.29-30).
6. The April 2022 RR identified Student's needs in the areas of mathematics, reading comprehension and fluency, writing skills, fine motor and visual motor skills for keyboarding, sensory regulation, critical thinking questions, speaking skills, receptive language, expressive language, and conversational skills. (J-1, p.30).
7. The April 2022 RR made numerous programming recommendations to support Student's needs, including small group, direct instruction, social skills instruction, and the continuation of speech and language therapy, consultative vision support, consultative physical therapy, occupational therapy (OT) - with a focus of visual motor skills, visual perspective skills, and sensory self-regulation skills,- and a Positive Behavior Support Plan ("PBSP"). (J-1, pp.33- 35).
8. In the Spring of 2022, the Parties entered into an Education Services Agreement (ESA) under which, in exchange for District funding of Parents' private placement, Parents became solely responsible for Student's services and waived liability for FAPE claims against the District through the start of the 2023-2024 school year. (J-35, p.6, ¶21; NT at 186-87, 1263, 1320-21).
9. Student attended the [redacted] School through the 2022-2023 school year. Overall, the Student performed well, meeting all academic requirements, except with respect to communication skills and demonstrating appropriate behavior within the classroom. Student engaged in some school-avoidant behaviors, accumulating 24 tardies for the third trimester of the 2021-2022 school year and missing approximately 15% of school days during the first three months of the 2022-2023 school year. On at least one occasion during the 2022-2023 school year, staff assistance was required to get the Student out of the Parent's car and into the school building. (J-3, pp.9-10; NT at 1178).
10. While at the [redacted] School, Student chose not to speak and did not communicate regularly with peers. Although the Student's programming goals focused on increasing the use of a speech device, the Student did not use the speech device in the classroom unless prompted, and even then, it was on a limited basis. (J-3, pp.9-10, 16; J-9).
11. The Student completed [redacted] grade at the [redacted] School and attended a summer program there during the Summer of 2023 before returning to the District. (J-10; J-11).
12. Parents were active participants in developing the Student's programming and, on occasion, received notice of their Procedural Safeguards. (J-4; J-18; J-22; J- 25; J-33; N.T. at 200-02, 1329).
13. Between March 2023 and September 2024, the District held more than 10 IEP meetings. (J-4; J-25, p.1; J-33, p.1; N.T. at 150, 192, 194-95).
The March 3, 2023, RR and the April 5, 2023, Amendment
14. On November 29, 2022, the District issued a Permission to Reevaluate ("PTRE") seeking permission to conduct an FBA, speech therapy assessments, a Student Environment Task and Tools ("SETT") assessment, social-emotional assessments, and academic achievement assessments. The Parent consented to the Reevaluation on January 3, 2023. (J-2).
15. Student attended testing sessions at the District willingly. The Student was not observed making any verbalizations at any time, either during testing or when interacting with Parent. The Student complied with all tasks that did not require a verbal response, either writing the answers or pointing to the responses. (J- 3, p.11).
16. On March 3, 2023, the District issued its Reevaluation Report ("the March 2023 RR"). (J-3; NT at 187-88).
17. The March 2023 RR included a record review, input from the [redacted] School, an assessment of academic achievement, a speech and language evaluation, a SETT assessment, an assessment of social/emotional functioning, and an FBA that included several observations in the educational setting. (J-3).
18. The Wechsler Individual Achievement IV (WIAT-IV) was administered to assess the Student's academic achievement in six areas, including word reading, reading comprehension, math problem solving, essay composition, numerical operations, and spelling. Per the WIAT, the Student's academic skill development was in the Low Average to Extremely Low ranges. Specifically, the Student's reading composite was in the Extremely Low range, with reading comprehension in the low average range. The Student did not make any verbalizations during the assessment, which significantly affected the score. Student's spelling skills were in the Low Average range. Student's essay composition skills were unable to be scored as they wrote only 28 words, [2] words less than the minimum of 30. The Student's math problem solving and numerical operations were in the Extremely Low range. (J-3, pp.13-14.).
19. The RR suggested that results from the WIAT should be interpreted with caution due to the lack of verbal responses from the Student throughout the testing. (J-3, p.14).
20. The March 2023 RR included a speech and language evaluation conducted by a licensed and certified speech and language practitioner that included the administration of the Peabody Picture Vocabulary Test-5 (receptive skills), the Expressive Vocabulary Test 2, and the Clinical Evaluation of Language Fundamentals -5 (CELF-5); a speech observation at the [redacted] School; and input from Student's speech therapist at the [redacted] School. (J-3, pp.14-16; NT at 471).
21. Although the Student's overall language skills were in the Below Average range, the Student performed in the Average range for both receptive vocabulary skills and expressive vocabulary skills. The Student responded to questions using a laptop, phone, and/or AAC device. The goal of the speech therapist was to have the Student communicate with her using any mode available. (J-3, p. 15; NT at 478-81, 551).
22. During the classroom observation at the [redacted] School, the Student engaged fully in the lesson without using the AAC device. (J-3, p.16). According to the student's teachers at the [redacted] School, the Student did not use the AAC device in the classroom unless prompted, and even then, it was only on a limited basis. The Student's behaviors were appropriate. The Student followed directions well and would write answers on paper. The Student enjoyed researching on the internet. (J-3, p.16). For this matter, "AAC device" refers to an iPad equipped with communication software.
23. At the [redacted] School, the Student received individual speech and language services two times per week. After trialing several speech devices with the Student, the [redacted] School opted to use an iPad with "Touch Chat" software installed. (J-3, pp.16-17).
24. The March 2023 RR included a SETT evaluation, which in turn recommended that the Student use the iPad/Touch Chat app as an AAC device. The SETT evaluation included an Action Plan to familiarize the Family and teachers with the app through videos on the company website. (J-3, p.17).
25. The March 2023 RR included BASC-3 rating scales completed by one of the Student's teachers and Student. Another of the Student's teachers failed to complete the rating scales. Initially, the Parent failed to complete the BASC rating scales as well. However, upon her completion on April 3, 2023, the March 2023 RR was amended on April 5, 2023, to include her responses. (J-3, pp.17-23).
26. Results from teacher scales suggested areas of concern included withdrawal, social skills, and functional communication. Teacher ratings supported a Clinically Significant probability of Autism. (J-3, p.20).
27. According to the Parent's ratings, areas of concern included withdrawal, social skills, adaptability and leadership, activities of daily living, functional communication, developmental social disorders, and resiliency. There were no parental concerns regarding externalizing or internalizing behaviors. (J-3, pp.20-21).
28. The Student completed the BASC-3 Self-Report, which resulted in scores that suggested the only area of concern was somatization. The District psychologist interpreted the students' ratings with extreme caution, considering the responses suggesting that they were "faking good" (J-3, p.21 -22).
29. The March 2023 RR included an FBA that identified the Student's interfering behavior as refusing to participate in instruction. The FBA concluded the following: Antecedents to Student's behavior included larger class sizes, open-ended questions, group activities that did not require manipulatives, and assignments that required abstract thinking. Consequences of the Student's behavior included staff leaving the Student alone, removing demand, providing more straightforward questions, providing additional prompts, and modifying expectations or the assignment. Student's behavior served the function of negative reinforcement in the form of avoiding/escaping non-preferred demands or aversive situations. Program recommendations included the creation of an incentive plan, pairing school settings with highly preferred activities to decrease school refusal, using a differential reinforcement system, using shaping strategies to increase vocalizations and prosocial behaviors, providing social skills instruction, and prompting and redirection for off-task behavior. The FBA did not differentiate between the Student anxiety and executive functioning dysregulation and the hypothesized FBA antecedents. (J- 3, pp.23 – 30).
30. Teacher recommendations from the [redacted] School included allowing the Student to communicate in a way that was comfortable while encouraging the Student to read books, providing frequent breaks during testing, and providing movement breaks as needed. (J-3, p.11).
31. The March 2023 RR identified the Student as eligible with a disability category of Autism and identified the Student's needs as: 1. To improve reading comprehension skills; 2. To improve written expression skills; 3. To improve mathematical reasoning skills; 4. To improve mathematical calculation skills; To decrease off-task behavior in class; and 5. To improve language and social skills. The RR, however, did not recognize attendance, reduction of anxiety, or executive functioning dysregulation as interfering behaviors. (J-3, pp. 31-32; NT at 370-71).
The District's March 29, 2023, IEP
32. The March 2023 RR included recommendations for specially designed instruction ("SDI") in reading comprehension, written expression, and mathematical reasoning and calculation; speech and language-related services; allowing the Student to communicate comfortably, including typing responses; providing sentence starters or graphic organizers for writing assignments; encouraging Student to read books at reading level; providing frequent breaks during testing and movement breaks as needed; and a Positive Behavior Support Plan ("PBSP") that included the recommendations from the FBA. Targeted interventions to reduce anxiety and dysregulation were omitted. (J-3, pp.33- 34).
33. An IEP meeting was held on March 29, 2023. Parents participated fully in the meeting. (J-4; NT at 1329).
34. On March 29, 2023, IEP adopted and incorporated the Student needs as identified in the April 2022 and March 2023 RR. (J-1, p.30; J-3, p.32; J-4, pp.11; N.T. at 371-72). On March 29, 2023, the IEP team included a social skills goal, a self-advocacy goal, and an SDI related to social skills. As the Student attended the private school program at the District's expense, the Parents rejected the District the District's offer of a FAPE. The 2023 IEP included an extended school year (ESY) FAPE offer. The ESY offer included support to support transition Student back to the District, a transition plan, suggested a shadow day with District transportation, home support from the District's social worker to help with transitioning Student from home to school, and the provision of District Extended School Year ("ESY") services. The ESY offer did not list areas of regression or limited recoupment. (J-4, p.10; NT at 191-92, 1330-32).
35. The March 2023 IEP included baseline and goal statements for written expression, self-advocacy, social skills, math computation, math reasoning, reading comprehension, speech and language, and occupational therapy. (J-4, pp.17-25; NT at 371-72).
36. The March 29, 2023 IEP included SDI to support the Student's identified needs, including, but not limited to, social skills instruction; the integration of expressive and receptive language within the classroom; SDI in reading comprehension, written expression, and math; the provision of breaks during testing and for sensory needs; the provision of an AAC device at all times; encouraging the initiation of communication and pairing verbalizations with gestures; providing wait time; and use of a PBSP that incorporated the recommendations from the FBA. The PBSP did not include targeted anxiety or dysregulation strategies. (J-4, pp.4, 26-27).
37. The March 29, 2023, IEP included 30-minute individual speech and language services two times per week, weekly 30-minute group OT services, and a PCA throughout the school day. Although offered, the Parent rejected the District's recommendation for PT consultative services and curb-to-curb transportation with an aide. (J-4, p.27; J-5, p.2; N.T. at 369-70).
38. The March 29, 2023, IEP included transition services with suggested post-secondary, employment, and independent living goal statements based on the Student's career interest inventory. (J-4, pp.12-14, NT 363-365). The March 29, 2023, IEP included a PBSP based on the FBA. (J-4, pp.32-34).
39. The March 29, 2023, IEP provided for Supplemental Autistic/Speech and Language Support with the Student attending Lunch and electives with regular education peers. (J-4, p.29; NT at 368-69).
40. The District issued a NOREP on March 30, 2023, which recommended Supplemental Autistic Support, OT, Speech and Language, consultative PT, consultative vision services, and curb-to-curb transportation with an aide. (J- 5).
41. On April 3, 2023, Parents requested an Independent Educational Evaluation. The District denied the Parents' request via NOREP on April 5, 2023, and filed for due process. Parents withdrew their request, and the District withdrew its complaint. (J-7; J-8; N.T. at 196-97). On April 5, 2023, Parent rejected the NOREP via email, refusing to sign the NOREP. Although Parents believed at that time that the offered programming was inappropriate, they did not file for due process or request mediation. (J-5, p.3; P-6; NT at 1335- 36).
The Parents' 2023 Private Evaluation
42. Following the District's RR, in or about July 2023, Parents obtained a private evaluation. ("the 2023 Private Evaluation"). (J-12).
43. The 2023 Private Evaluation included a review of the District's March 2023 RR, an hour-long observation of the Student at the [redacted] School, and psychological testing. (J-12). Measures of cognitive abilities placed the Student in the Low Average to Very Low range. (J-3, p.4; J-12, p.6).
44. The 2023 Private Evaluation diagnosed the Student with the following DSM-5 mental health conditions: Expressive Language Disorder, Developmental Coordination Disorder, Specific Learning Disorders with impairments in written expression and math, and Autism Spectrum Disorder. (J-12, pp.19-20).
45. Like the District's evaluations, the 2023 Private Evaluation found that the Student had average receptive language skills. With respect to the Student's expressive language skills, the private evaluator found a lack of skills due to the Student's [redacted]. Remarkably, during the administration of the expressive language assessments, the private evaluator required the Student to provide verbal responses only, prohibiting the Student's use of the phone, AAC device, computer, and paper/pencil. Accordingly, the evaluation results underestimated the Student's expressive language skills. (J-12; NT 708-11, 732).
46. The 2023 Private Evaluation found that the Student could sustain limited performance on a task once initiated. During the observation, the Private Evaluator noted that the Student was engaged and was able to complete work. (J-12; p.19; NT at 731).
47. With respect to Student's school programming, the 2023 Private Evaluation recommended reduced class size with increased teacher-to-student ratio, monitoring of functional skill acquisition, and remediation of academic skill deficits. (J-12, p.21).
The August 2023 – November 2023 Time Frame
48. On August 1, 2023, the IEP team met to discuss Parental concerns regarding the programming offered at the District's high school. At that time, Parents and their advocate advised the District that they were looking for an out-of-district placement for the Student, which would provide a targeted speech-only program. Although the District did not believe such a program was appropriate for the Student, it was willing to consider any placement proposed by Parents under an in lieu of FAPE agreement. (NT at 1218-24).
49. As a result of the meeting, the District agreed to: 1. Contact the Montgomery County Intermediate Unit (MCIU) to initiate a SETT process, 2. Contact the MCIU to explore potential programs like board-certified behavioral analyst (BCBA) support for the Student's personal care assistant (PCA), 3. Implement a behavior/incentive-based program specific to Student's needs, and 4. Reconvene the IEP team after the start of the school year to review the Student's circumstances (J-15, p.12; NT at 100-104, 202-203). In August 2023, the Student returned to the District for the 2023-2024 school year. (J- 15; NT at 198).
50. Prior to the Student's return, the District's speech therapist contacted the MCIU and was provided with resources available to familiarize herself with TouchChat, an ACC app, including online tutorials and videos. The speech therapist shared the videos with District staff. Some District staff, such as the OT, were already familiar with the TouchChat app. (NT at 468, 496-97, 1112- 13).
51. Initially, the Student was placed in an Autistic Support ("AS") self-contained classroom and was enrolled in two regular education electives. Student's AS teacher was in constant communication with Parents, emailing with Parents several times a day. (J-15, p.5; NT at 374-75, 964-71, 1338).
52. In the AS classroom, the Student received instruction in social skills, social-emotional learning, core content classes, and functional life skills in a class with eight other students and three adults, including the teacher. The Student's PCA supported the Student's communication needs by prompting the Student to use the AAC device and/or write out responses. The Student's PCA was effective in keeping the Student on task and organized throughout the day. The PCA did not support the Student academically. (J-15, p.7; NT at 280, 373-74).
53. Through the AS classroom, the Student participated weekly in Community Based Instruction ("CBI"), taking trips to local stores and restaurants that required the Student to interact with people and complete transactions. (NT at 420-21).
54. Student received individual speech therapy for 30 minutes two times per week, one pull-out and one push-in, and a weekly group session during the CBI. (NT at 512-13, 560- 61).
55. Student received OT services for 30 minutes per week to support fine motor skills with respect to keyboarding. Although the IEP provided for small group instruction, it lacked reasonably calculated targeted SDIs, related services, or reasonable accommodations to reduce the frequency of late arrivals or refusal to enter the building. The Student's typing skills were slower than those of same-aged peers. (J-4, p.27; NT at 1108-09, 1114-20).
56. At the outset, it was determined that the Student's present academic performance exceeded the expectations of the AS classroom teacher and program. (J-15, p.7; NT at 281, 410).
57. The staff reported that the Student was reluctant to use the AAC device, and instead, the Student seemed to prefer using a cell phone to communicate. (J- 20, p.27; NT at 539-40).
58. On September 8, 2023, the District issued a PTRE seeking to initiate the MCIU SETT evaluation, obtain parent input, and conduct an observation. The Parent consented to the evaluation on September 11, 2023. (J-13).
59. In mid-October 2023, the Student's attendance started to deteriorate. The Student began arriving at school late. Oftentimes, assistance from the Student's AS teacher and other District personnel was required to persuade the Student into the school building. The IEP did not include targeted strategies to address the reemerging interfering behaviors on arrival at school. (NT at 378- 81, 974-77).
60. On October 20, 2023, an IEP meeting was held to discuss concerns with the Student's attendance, the daily schedule, the MCIU SETT evaluation, and the PCA/BCBA behavioral support. (J-15, p.5; N.T. at 212-13; J-22, p.10).
61. At the meeting, the team discussed a variety of strategies to encourage the Student's attendance. As a result, the District changed the Student's curb-to-curb transportation to allow the Student to arrive at school at a later time. The team also placed the Student in higher level classes, in the Learning Support ("LS") classroom for math, English, and science. The District also made a referral to the MCIU to design a regular education Student Attendance Improvement Program ("SAIP") targeting attendance. The SAIP staff decided to complete an FBA. (J- 15, pp.5, 30; J-16; J-20, pp.2-3; N.T. at 216, 376-77, 406-08). The SAIP changes occurred outside the traditional IEP process. No procedural safeguards were provided for the FBA testing on SAIP supports. (NT passim)
62. Another IEP meeting was held on November 2, 2023, following the Student's trial period in LS classes. The District recommended that the Student remain in the LS classes for math, English, and science. Parents approved the District's recommendation via NOREP on November 6, 2023. (J-18; J-19).
63. The Student's LS Math class included eight to nine students and two adults in addition to the Student's PCA. The curriculum included functional math skills such as budgeting, elapsed time, check writing, bill paying, and banking. The Student used the phone to communicate with the PCA, although the LS teacher did not believe the PCA was necessary. The Student communicated with the math teacher using subtle head nods and wrote the answers on a whiteboard. At times, the Student's speech provider pushed into the classroom and provided consultative support to the teacher. (J-22, p.8; NT at 1004-1011, 1019-1020).-
64. The Student also participated in a regular education [redacted] class. The Student used gestures and the cell phone to communicate with the teacher. Modified seating was provided in the classroom to accommodate the Student. (J-22, p.11; NT at 1057- 1068).
65. In LS English, the Student followed along with stories and demonstrated some understanding of the material. (J-22, p.8).
The District's November 9, 2023 Reevaluation
66. The District completed its reevaluation on November 9, 2023 ("the November 2023 RR"). The November 2023 RR included a record review, the MCIU's SETT evaluation, an observation, and updated parent/teacher input. (J-20).
67. The MCIU SETT evaluation recommended, among other things, that the Student use the phone as a communication device and the iPad/TouchChat as a backup. (J-20, p.27; J-22, pp.6-8; N.T. at 390-95).
68. According to the District psychologist's classroom observation on October 2, 20023, Student was actively engaged in completing assignments and remained on task for 87% of the time observed. The Student used eye gaze and head motions to communicate effectively and was compliant with directions. (J-20, pp.22-23).
69. According to the Student's speech therapist, the Student attended individual speech sessions willingly. (J-20, p.22).
70. The November 2023 RR maintained the Student's eligibility under the classifications of Autism and Speech and Language Impairment and made programming recommendations for the IEP team's consideration. (J-20).
The December 2023 – February 2024 Time Frame
71. An IEP meeting was held on December 5, 2023, to review the November 2023 RR and discuss potential modifications to Student's IEP. (J-22, p.5).
72. At the meeting, the team discussed the SETT results. It addressed a variety of Parents' questions and concerns, including potential enrollment at the Eastern Center for Arts and Technology ("Eastern Tech"), extra-curricular activities, student speech services, and the writing goal. The team, including the Parents, unanimously agreed to use the Student's phone as a communication device. (J- 22, pp.5-6; J-25, p.6; N.T. at 393, 395, 540).
73. Per the teacher's reports, the Student was doing well academically. None of the Student's teachers raised any concerns regarding their ability to communicate with the Student. (J-22, pp.8-10; NT at 575-76).
74. On December 5, 2023, the District issued a NOREP, which Parents rejected on January 6, 2024, and requested a meeting with their advocate present. (J-23). In response to Parents' request, the District scheduled a meeting on February 2, 2024. At the meeting, the team addressed Parents' concerns and requests, including a possible split schedule between the District and another outside program and/or attending the [redacted] program for part of the day. (J-25, p.5).
75. A follow-up meeting was held on February 8, 2024, with a representative from [redacted]. During the meeting, the team discussed the application process and requirements for attending [redacted] and other potential vocational programs. Although the school team questioned the appropriateness of [redacted] for the Student, the Student applied and, ultimately, was denied admission. The record is unclear as to why the Student was not admitted to the [redacted] school. (J-25, p.5; NT at 399-401, 979-81).
76. On February 12, 2024, some four months later, the MCIU staff completed its SAIP/FBA. Per the Parent report on January 16, 2024, the Student had been getting up and attending school regularly for several weeks, and, at her request, it seems that the FBA process was halted. (J-26; NT at 224-25).
77. The MCIU RISE program began providing services to the Student on March 1, 2024. The RISE program was introduced as an in-home intervention to address school refusal. The Program included structured academic, behavioral, and communication interventions aimed at reengagement. (NT pp. 90-95). The RISE program also included interventions such as home visits and strategies to improve attendance and engagement. (NT pp. 355-360).
78. Despite the RISE program intervention, the Student response was inconsistent, with multiple refusals to engage in required activities or attend school. (NT pp. 375-380). The Student demonstrated strong resistance to engaging with RISE services, including refusal to participate in home visits and limited response to intervention strategies." (NT pp. 380-390). The RISE regular education strategies did not work. (NT pp. 110-115; NT pp. 105-106; NT pp. 350-360).
79. The District cited the RISE program as the only intervention strategy for addressing the Student's school avoidance but acknowledged its limitations in effecting consistent behavioral change. (NT pp. 92-96). The RISE program alone was not sufficient to meet the Student's overall anxiety, dysregulation, and behavioral health needs. (NT pp. 365-370).
The District's April 2, 2024 IEP
80. The Student's annual IEP meeting was held on April 2, 2024. Parents attended with their advocate and fully participated. (J-28). The record indicates that the Student continued to communicate through head gestures, eye contact, laptops, and writing. (J-18, p.17; NT at 411-12). The resulting IEP included transition services with post-secondary, employment, and independent living goals based on the Student's career interest inventory and interview with the teacher. (J-28, pp.20-22; J- 33, pp.21, 23-25; N.T. at 255-56).
81. The IEP included goals in the areas of written expression, self-advocacy, social skills, reading comprehension, math computation, math reasoning, OT (fine motor and visual motor skills), and speech and language (expressive and receptive). (J-28 pp.25-33). The IEP included a variety of SDIs including, but not limited to, social skills instruction; charting the Student's daily communication; the integration of expressive and receptive language within the special education classroom; SDIs for reading, written expression, and math along with a PBSP that included the recommendations from the FBA and others. (J-28, pp.34-36). In addition to the District's continuation of PCA support, the April 2, 2024, IEP provided for individual speech and language sessions two times a week for 30 minutes each session, weekly large group speech and language for 30 minutes, weekly OT for 30 minutes, and curb-to-curb transportation. Additionally, the IEP found the Student eligible for ESY. (J- 28, pp.36, 41-42; J-33, p.40; N.T. at 398-99).
82. The District convened another IEP meeting on May 1, 2024. An MCIU representative attended the meeting to discuss the reengagement of the MCIU to assist Parents in getting the Student to school. (J-33, pp.6-7; NT at 79, 1226).
83. The Parents engaged a private AAC evaluator who attended the May 1, 2024, meeting. The private AAC evaluator diagnosed the Student with [redacted]. The private evaluation identified several alternative AAC apps that she recommended for Student's use. The Parents gave the District the private ACC evaluation after they filed the Due Process Complaint in October 2024. (J-29; J-33, pp.6-7; N.T. at 79-80, 87-91, 223, 227, 230, 232, 424- 25, 533-35, 858, 1372-73).
84. A follow-up meeting was held on May 20, 2024, to review progress on the MCIU attendance supports. The team addressed Parents' questions and concerns regarding in-home instruction, home-bound instruction, changing the in-home supports, and the involvement of an outside provider. However, the district refused to provide either home-bound instruction or instruction, and it did not provide prior written notice. Lacking medical documentation instruction in the home was deemed too restrictive. (J-33, pp.5-6; P-44; NT at 94-95, 235-38).
85. At some point before the April and May IEP conferences, the Student stopped attending school and did not return to school for the remainder of the 2023- 2024 school year. (NT at 601, 1295).
86. The District offered the Student four weeks of ESY services that included four hours of academic programming per day with PCA support, weekly small group speech, weekly small group OT, and transportation. The ESY program did not include the MCIU in-home support services, which failed during the school year. The ESY IEP did not include targeted SDIs, related services, or other direct services to address the school refusal, anxiety, or behavioral dysregulation. (J- 33, p.40-41).
Overall Impression of the 2023-2023 School Year
87. While participation in the Learning Support classes was promising, by late fall 2023, the Student fell back into a longstanding pattern of school anxiety, school refusal, and executive functioning dysregulation. (NT at 282, 385- 87, 416-19). By early spring 2024, the Student was not attending school. Id.
Summer 2024 Services
88. During the Summer of 2024, although the District continued to send transportation to the Student's home for ESY services. The Parents could not be convinced, and the District did not offer behavioral support like a PCA to support the Student's return to school based learning. At some point at the end of the school year, the RISE staff were withdrawn without prior written notice. By July 2024, the record is clear that the positive behavior plan was ineffective, and the Student's anxiety/dysregulation was ever-present. The Parents unilaterally arranged for the Student to participate in a two-week vocational program. For the most part, it seems like the Student attended the vocational program without any AAC device other than a cell phone. (NT at 1309-13).
89. On or about July 11, 2024, at the request of the Parent, the District made a referral to the MCIU EnVision Program, a new MCIU transition-only program. At that time, the District did not know about the MCIU Program. The record is preponderant that the District told the Parent on more than one occasion that any placement at the MCIU/EnVision Program would not occur absent a waiver of a FAPE, notwithstanding the IDEA IEP and NOREP process. The District offered, and the Parents rejected a private agreement in the form of an in lieu of FAPE agreement as the District. (P-20, p.7; P-24; NT at 100-03, 110-17, 244-46, 891-97, 906, 1199).
90. On or about August 15, 2024, the Student was somehow accepted to the MCIU EnVision Program despite the District's position. The District again informed the Parent and Parents' advocate that it did not believe the EnVision Program provided FAPE. Despite the District's feelings about the EnVision Program, the District again offered to fund the MCIU placement, provided that the Parents would execute a settlement agreement with a complete prospective waiver of the Student's IDEA, 504, and other rights. The Parents refused to waive the Student's FAPE rights prospectively. (NT at 130-34; 247-48, 251, 947, 1244- 48; P-24; NT at 1240-43, 1294).
The 2024-2025 School Year
91. The 2024-2025 school year began on September 4, 2024, but the Student's anxiety-based, executive functioning dysregulation and refusal to attend school continued. (NT at 1295-97). The District reengaged the MCIU SAIP team to provide support within the home. (NT at 1295-97).
92. An IEP meeting was held on September 13, 2024, to discuss the Student's attendance, classes, and transportation schedule. Although District transportation was going to the Student's home, the Student could not leave the house. (J-33; NT at 75, 430-31).
93. Despite repeated requests, the Parents never returned the September 13, 2024, NOREP, issued following the September 4, 2024, IEP meeting (J-34). The September 4, 2024, IEP essentially tracked the previous content found in the FAPE April and May 2024 FAPE offers. Id.
94. On October 3, 2024, the Parents filed the current Due Process Complaint. (J- 35).
The MCIU EnVision Program Includes
95. The MCIU opened its EnVision Program at the beginning of the 2024-2025 school year to provide transition services to qualifying students, primarily between the ages of 18-22 years old. (NT at 809, 904).
96. The EnVision Program includes training in career fields and community-based instruction with the goal of getting students out in the community, working, and moving toward independence. (NT at 893-94, 940).
97. The EnVision's Program Administrator was concerned that the Student would not attend the Program, given a history of school refusal. Additionally, after the Parent advised the Program Administrator that the Student required one-to-one support and additional speech and communication support, the administrators became concerned about the overall appropriateness of the Program for the Student. (NT at 937-44).
98. The record is somewhat unclear; it seems that at times, the MCIU will work with districts to place students through in lieu of FAPE agreements, and at other times, it seems like the MCIU would work with the District to accept students with an IEP pursuant to a NOREP as a FAPE offer. (NT at 946-47).
99. Despite the Student's acceptance at the MCIU's EnVision Program, without a proposed IEP and the District's willingness to fund the Student's placement through an in lieu of FAPE agreement, the Parents refused to executive a prospective waiver of the Student's FAPE rights. (NT at 251, 1389).
100. As of the date of this Decision and Final Order, the Student has not resumed attendance at school since April 2024, notwithstanding the implementation of the RISE program interventions, multiple revisions to the IEP, and the completion of multiple Functional Behavioral Assessments (FBAs). (NT pp. 200- 205).
The Hearing Officer's Fact-Finding Role
Credibility and Persuasiveness of the Witnesses' Testimony
In a due process hearing, the hearing officer must assess witness credibility, weigh the evidence, and determine the persuasiveness of testimony. J. P. v. County School Board, 516 F.3d 254, 261 (4th Cir. 2008); A.S. v. Office for Dispute Resolution (Quakertown Community School District), 88 A.3d 256, 266 (Pa. Comm. 2014). I find the Mother's testimony clear, direct, somewhat well-organized, and comprehensive. While understandably emotional, she distinguished between what she knew and did not know, remaining consistent and fact-based.
In contrast, the District's witnesses, particularly after the Student stopped attending school, lacked credibility, coherence, and persuasiveness. Despite my ruling granting the District's motion to exclude testimony and exhibits related to settlement discussions, District staff nevertheless made explicit references to the FAPE waiver issue (see NT 51 vs. NT 932; Exhibits 32 through 37). The fact that discussions centered on a prospective FAPE waiver occurred during the IEP planning process raises serious concerns about the integrity of the collaborative IEP process. Simply put, the waiver discussion before the offer of a FAPE creates borderline significant procedural and substantive considerations, which undermine the reliability of the staff's opinions, observations, and testimony.
At times, the District's witnesses failed to explain the circumstances surrounding school refusal or present other compelling evidence adequately. The staff exhibited a rigid and predetermined approach, indicative of a fixed mindset commonly associated with predetermination violations.
When questioned about the appropriateness of the MCIU and the home-bound placement, the witnesses' responses were frequently vague, subjective, and lacking in structured reasoning. Additionally, when Parents inquired about home-bound instruction, District staff abruptly terminated the discussion, citing a lack of medical documentation. The failure to issue prior written notice regarding the refusal to obtain or consider such documentation supports a predetermination inference. These inconsistencies raise concerns regarding the cogency of the District's witnesses' approach to IEP development and placement decisions. Compounding these concerns is the fact that the District witnesses could not articulate a cogent, data-driven rationale for requiring the Student to return to the high school setting, particularly when both home-bound instruction and the MCIU program were available placement options on the continuum. The absence of meaningful, collaborative discussions casts doubt on the District's claim that its proposed supports and services were reasonably calculated to provide the Student with a FAPE. Finally, the testimony reveals a substantial lack of awareness, responsiveness, and understanding of the Student's present levels of performance, behavioral health needs, and anxiety, which creates a history of unmet services. The repeated focus on the prospective FAPE waiver has, at times, diverted attention from and interfered with the collaborative nature of the IEP process. For these interconnected reasons, the District's witnesses' testimony regarding the reasonableness of the April 2024, May 2024, and September 2024 IEP and FAPE proposals is afforded limited persuasive weight.
Analysis and Conclusions of Law
Although the record at first blush suggests that the District undertook a variety of actions, those actions, beginning in the Spring of 2024 through the present, did not result in any accomplishments that rise to the level of a FAPE offer. Upon a thorough review of the record, I now find the District, beginning in April 2024 through the present, has denied the Student a FAPE in violation of the IDEA and Section 504 by failing to:
1. Address the Student's school refusal, executive functioning dysregulation, anxiety, and excessive absenteeism with appropriate behavioral interventions (Huron Sch. Dist., 68 IDELR 178 (SEA SD 2016) (holding that failure to address truancy as a behavioral issue denied FAPE);
2. Consider and offer alternative placements like home-bound instruction or other placements when the District either knew or should have known that the authorized in-home supports failed (East Windsor Bd. of Educ., 114 LRP 36178 (SEA CT 2014) (finding that a district's failure to consider home instruction for a student with school refusal contributed to a FAPE denial);
3. Failing to conduct a comprehensive behavioral/anxiety-specific reevaluation before denying other placements like home-bound instruction despite clear evidence that the Student's needs were not being met in their current setting (Independent Sch. Dist. No. 413, Marshall v. H.M.J., 66 IDELR 41 (D. Minn. 2015) (holding that failure to conduct a medical evaluation before rejecting home placement denied FAPE);
4. Failing to issue timely procedural safeguards (Prior Written Notice) upon denying the Parent's request for different services or a change in a location like home-bound instruction or other placements like the MCIU option. This omission substantially interfered with the Parents' participation in the FAPE process. This continuing course of conduct also denied the Student a FAPE. (Commonwealth Charter Acad. Sch., 118 LRP 30092 (SEA PA 2018) (finding that failure to provide PWN after denying requested different services denied a FAPE);
5. Failed to offer, provide, and implement a reasonably calculated IEP, including an appropriate and meaningful Behavior Intervention Plan (BIP) to address the Student's behavioral health needs, including but not limited to school refusal, anxiety, absenteeism, and executive functioning dysregulation, despite multiple legal mandates requiring districts to provide behavioral supports when a student's disability impedes their learning (Enterprise City Bd. of Educ. v. S.S. and J.S., 76 IDELR 295 (M.D. Ala. 2020) (failure to document and provide appropriate behavioral interventions denied FAPE).
The District's Failure to Provide A FAPE
Under the IDEA and Section 504, a school district must provide special education and related services that are reasonably calculated to enable a child to make progress appropriate in light of the child's unique circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). A failure to provide appropriate services, particularly in response to school refusal caused by emotional dysregulation, like this instance, constitutes a denial of free appropriate public education (FAPE). See A.W., by and through H.W. & A.W. v. Middletown Area Sch. Dist., 68 IDELR 247 (M.D. Pa. 2016) (holding that a district violated the IDEA by failing to act despite 103 absences over 13 months due to severe anxiety, warranted 949 hours of compensatory education). Here, although the District was aware of the Student's persistent school refusal long before the beginning of the 2023-2024 school year, it failed to take timely and meaningful action when those behaviors reappeared and spiked. An April 2023 Functional Behavioral Assessment (FBA) confirmed that anxiety was a significant barrier to school attendance, yet reasonably calculated measures were lacking. Despite the long documented history of emotional dysregulation, the District did not implement appropriate behavioral supports, interventions, or alternative placements in the Student's IEP once the Student stopped attending school. Courts have repeatedly held that when a district fails to incorporate necessary, reasonably calculated behavioral and mental health-related services and supports to address a student's school avoidance, it may constitute a denial of FAPE. See Robert M. v. Hawaii, 51 IDELR 211 (D. Haw. 2008) (finding that psychological services must be provided when necessary for a student to receive FAPE); Lauren P. v. Wissahickon Sch. Dist., 310 F. App'x 552, 554-55 (3d Cir. 2009) (holding that a district's failure to address a student's behavioral challenges in a systematic and consistent manner denied FAPE).
Furthermore, multiple courts have ruled that school refusal caused by anxiety or emotional disorders must be addressed through targeted educational support. In Lindell v. Evansville-Vanderburgh Sch. Corp., 57 IDELR 71 (S.D. Ind. 2011), the court determined that home instruction was appropriate for a student whose anxiety prevented him from attending in-person classes. For example, in Lexington Cnty. Sch. Dist. One v. Frazier, 57 IDELR 190 (D.S.C. 2011), the court found that the District denied FAPE by failing to provide counseling and behavioral supports to a student with Asperger syndrome and anxiety, ordering reimbursement for a private residential placement. Courts have also determined that districts must take affirmative steps, which did not occur here when faced with a student's school refusal. See Flagstaff Arts & Leadership Acad., 113 LRP 27180 (SEA AZ June 15, 2013) (requiring reimbursement for private residential placement when district IEPs failed to address all of a student's identified mental health needs); Burbank Unified Sch. Dist., 64 IDELR 320 (SEA CA 2014) (holding that a district must properly place a student in a private therapeutic program that provides psychiatric counseling and behavioral support).
A district cannot meet its FAPE obligations merely by revising an IEP without providing targeted services addressing a known disability-related unique need. See Independent Sch. Dist. No. 413, Marshall v. H.M.J., 66 IDELR 41 (D. Minn. 2015) (finding that failure to conduct a necessary medical evaluation for a student with generalized anxiety disorder and asthma resulted in a FAPE violation). The failure, here, to provide structured, reasonably calculated interventions and behavioral/mental health-related services deprived the Student equal access to meaningful educational benefits. See, A.W. ex rel. H.W. v. Middletown Area Sch. Dist., 2015 WL 390864 (M.D. Pa. January 28, 2015) (District denied FAPE when it failed to respond to a student's anxiety-related school absences); Manhattan Beach Unified Sch. Dist., 74 IDELR 150 (SEA CA 2018) (where anxiety caused absences and failing grades failure to add mental health services in an IEP resulted in a denial of FAPE);
Commonwealth Charter Acad. Sch., 118 LRP 30092 (SEA PA May 25, 2018) (finding that a district's two-month delay in responding to parental concerns about a student's anxiety denied FAPE). The Student's prolonged absences, here from education due to the District's lack of targeted, specially designed instruction, support services, or interventions, resulted in a multiyear educational deprivation requiring retrospective and prospective compensatory education.
Finally, in B.Z. v. Hewlett-Woodmere Union Free Sch. Dist., 125 LRP 2485 (E.D.N.Y. 2025), the district court reversed an administrative decision and ordered reimbursement after a New York school district failed to incorporate necessary mental health supports into a student's IEP. The court emphasized the District's failure to recognize the importance of individualized support that had previously allowed the Student to attend school. Notably, the court found the District's reliance on a small-group instructional program insufficient to address the Student's longstanding school refusal, noting: "How a student can be expected to make educational progress when, by all accounts, he will not enter the building to attend his classes ... is beyond this court's comprehension." Id.
Accordingly, I find that the failure to address behavioral, social, and behavioral health concerns and their impact on school attendance gives rise to a failure to provide reasonable accommodations, which in turn supports a finding of a denial of FAPE under Section 504 of the Rehabilitation Act. See D.M. v. East Allegheny Sch. Dist., 82 IDELR 171 (W.D. Pa. 2023) (holding that a district could be liable for disability discrimination after it failed to address a student's anxiety and depression caused by bullying, instead placing her in a cyber school program without direct instruction).2 Given these precedents, I now conclude that the District's failure here to address a student's school refusal caused by emotional, behavioral, and communication limitations significantly impacted attendance and resulted in a substantive denial of FAPE. See Placentia-Yorba Linda Unified Sch. Dist., 122 LRP 14962 (SEA CA April 8, 2022) (finding that a district was justified in not adding mental health services where a student flourished socially and had no identified need, but implying that failing to address identified mental health needs would violate the IDEA).
Accordingly, I now conclude that the District failed to provide appropriate behavioral support, psychological or other educationally based therapeutic interventions, including alternative placements and supplemental supports. Therefore, these compelling circumstances and this preponderant record now require me to award compensatory education and other equitable remedies.
The District's Failure to Offer Meaningful Behavior Support
IDEA requires that an IEP include appropriate behavioral supports to address behaviors that interfere with learning (20 U.S.C. § 1414(d)(3)(B)(i)). Courts have held that failure to develop and implement a meaningful Behavioral Intervention Plan (BIP) or Positive Behavior Support Plan (PBSP) in cases of school refusal constitutes a denial of FAPE (D.M. v. East Allegheny School District, 82 IDELR 171 (W.D. Pa. 2023). Here, the evidence demonstrates that the District's FBA and PBSP were inadequate and ineffective. Although the April 2023 FBA confirmed school avoidance as a primary issue, the District failed to create a targeted positive and responsive behavioral intervention plan. The District's behavioral consultant acknowledged that a revised plan should have been designed, offered, and implemented within months of the school refusal. Yet, no reasonable accommodations, specially designed instruction, or modifications were made in a timely fashion. By failing to adjust the Student's behavioral supports to address school refusal, the District directly contributed to the Student's continued disengagement from school. See, D.M. supra (denial of FAPE occurred when the District's placement offered no direct instruction addressing the student's mental health); Flagstaff Arts and Leadership Acad., 113 LRP 27180 (SEA AZ 06/15/13) (charter school to reimburse the Parent of a student with ADHD, anxiety disorder, for the cost of a private residential facility after it developed two IEPs that failed to include goals addressing all of the needs identified by an independent evaluator); Lindell v. Evansville-Vanderburgh Sch. Corp., 57 IDELR 71 (S.D. Ind. 2011) (home instruction was appropriate for a student who had such severe anxiety that he was unable to attend classes outside the home.). Psychological, social work or behavioral health services must be provided when a student with disabilities needs alternative related services in order to receive FAPE. See Robert M. v. Hawaii, 51 IDELR 211 (D. Hawaii 2008); Manhattan Beach Unified Sch. Dist., 74 IDELR 150 (SEA CA 2018) (finding that a district denied a student FAPE by failing to add mental health support and services to the IEP when worsening anxiety was causing her to miss and fail her classes).
The Failure to Implement an Appropriate Behavior Intervention Plan
A district may deny FAPE when it fails to implement an appropriate BIP, particularly when the Student exhibits ongoing behaviors that interfere with learning. See Enterprise City Bd. of Educ. v. S.S. and J.S., 76 IDELR 295 (M.D. Ala. 2020) (holding that a district denied FAPE by failing to incorporate appropriate behavioral interventions in a student's IEP and failing to document behavioral strategies). Here, despite the Student's persistent school avoidance, the District failed to take meaningful steps to create a BIP tailored to the Student's needs. Specifically, I now conclude that: 1. The District did not analyze the function of the Students' school refusal behaviors despite clear evidence that the behavior in the home, during transportation, and in school impeded learning and attendance. See Neosho R-V Sch. Dist. v. Clark, 38 IDELR 61 (8th Cir. 2003) (holding that even slight academic benefit can be nullified by unaddressed behavior problems). 2. When in-home supports failed, the District did not revise or modify the Student's behavioral interventions or specially designed instruction even though IEP teams have an ongoing duty to review and revise behavioral supports as necessary. See Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 69 IDELR 174 (U.S. 2017) (holding that IEPs must be appropriately ambitious and reasonably calculated to enable progress). 3. Instead of updating or expanding the scope of the FBA or modifying the IEP to include comprehensive Student-specific BIP strategies, the District relied solely on the lack of "documentation" to deny alternative services, placements, and instruction when the Parents requested a change like home-bound. Id. Therefore, I now conclude that had the District developed and implemented a data-driven BIP/PBSP, it could have proactively addressed the Student's behaviors before the situation escalated to complete disengagement from school. Instead, by failing to intervene meaningfully, the District allowed the Student's school avoidance to continue, if not worsen, effectively depriving the Student equal access to an education. See Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, 81 IDELR 138 (OSERS 2022) (explaining that a BIP generally outlines positive interventions and strategies designed to reinforce positive behaviors and prevent behaviors that interfere with learning); See also, R.K. v. New York City Dep't of Educ., 56 IDELR 212 (E.D.N.Y. 2011), aff'd, 59 IDELR 241, cert. denied, 133 S. Ct. 2802 (2013) (finding that failing to provide behavioral interventions can deprive a student of educational benefits); See also, Huron Sch. Dist., 68 IDELR 178 (SEA SD 2016) (holding that a district's failure to develop and implement a BIP addressing school refusal violated the IDEA because truancy had become a pattern of behavior requiring intervention); District of Columbia Pub. Schs., 120 LRP 176 (SEA DC 2019) (district violated FAPE when it failed to address a student's 108 absences and provide behavioral support to improve attendance).
The Failure to Consider a Continuum of Placements
Courts have ruled that districts cannot rigidly adhere to in-district placements when a student's needs require a specialized setting (Board of Education of Montgomery County v. J.M., 74 IDELR 78 (D. Md. 2019). Despite documented evidence from multiple evaluations and expert reports/ recommending a different educational setting, the District continued to insist on an in-district program that was by all accounts ineffective for this Student. The evidence shows that the District's placement did not adequately address the Student's anxiety, sensory issues, and executive functioning deficits. The Parents' private neuropsychological assessment and the existing behavioral data provided uncontroverted evidence that the Student required a structured therapeutic learning environment. Yet, the District failed to consider any out-of-district placement options. The refusal to consider necessary alternative placements like home-bound, instruction in the home, or the MCIU program, absent a FAPE waiver, further violated the Student's right to FAPE.
The IDEA mandates that each public agency ensure a continuum of alternative placements is available to meet the needs of children with disabilities. See 34 CFR § 300.115. This continuum includes home instruction, which serves as a viable placement option when a student's disability-related needs prevent them from attending school. See 34 CFR § 300.115(b)(1) (identifying home instruction as part of the IDEA-mandated placement continuum). The IDEA further requires that placement decisions be based on comprehensive individualized evaluative data, the surrounding circumstances, and the Student's individual needs—not on arbitrary self-imposed procedural barriers like lack of documentation. Courts have consistently found that failure to conduct an appropriate review of existing data and a comprehensive reevaluation before denying a placement request violates the IDEA. See Independent Sch. Dist. No. 413, Marshall v. H.M.J., 66 IDELR 41 (D. Minn. 2015) (holding that a district violated FAPE by failing to conduct a medical evaluation for a student with generalized anxiety disorder and asthma before rejecting necessary supports).
Furthermore, the Office of Special Education Programs (OSEP) has long held that lack of medical documentation cannot be the sole basis for denying services when a district has reason to suspect that a different placement—such as home-bound instruction—is needed. See Letter to Anonymous, 21 IDELR 674 (OSEP 1994) (stating that placement determinations must be based on individual needs, and a district may not rely on rigid requirements such as requiring medical documentation without considering other available evaluative data). When the record is viewed as a whole, it indicates the following procedural violations interfered with the Student's FAPE and the Parents' participation: 1. Failure to consider the full continuum of placements, including home-bound instruction, as required by 34 CFR § 300.115; 2. Failure to conduct a reevaluation before denying home-bound or the MCIU placement, in violation of 34 CFR § 300.303(a); 3. Denial of a home-bound placement or the MCIU placement without issuing Prior Written Notice, in violation of 34 CFR § 300.503(a); and 4. Failure to provide any meaningful alternative supports or a continuum of placement options after denying home-bound instruction or the MCIU program, thereby depriving the Student necessary educational services in the least restrictive setting. Applying well-established case law, including the above rulings, the District's failures here constitute a clear procedural and substantive denial of FAPE. See Commonwealth Charter Acad. Sch., 118 LRP 30092 (SEA PA May 25, 2018) (finding that a district's delay in responding to a parent's request for accommodations, without issuing PWN, constituted a procedural violation that resulted in a denial of FAPE). The above substantive and procedural violations now require me to consider what relief is otherwise appropriate.
The Record Does Not Support a Prospective Placement
The Parent seeks a prospective placement, compensatory education, and prospective tuition reimbursement as appropriate relief. First, I now conclude that the Parent did not meet their burden of proof to justify a prospective placement or a prospective tuition reimbursement. Tuition reimbursement requires that I find that (1) the District failed to provide FAPE, (2) the private placement is appropriate, and (3) the equities favor reimbursement (Florence Cnty. Sch. Dist. Four v. Carter, 20 IDELR 532 (U.S. 1993). While the record is preponderant that the District failed to provide FAPE, at the same time, the record lacks compelling evidence that the MCIU EnVision program meets the IDEA's procedural and substantive "appropriateness" requirement for a prospective placement. (Gagliardo v. Arlington Cent. Sch. Dist., 46 IDELR 267 (2d Cir. 2006). While the EnVisions program seems promising, the record does not reconcile why the MCIU seems to have accepted the Student without the benefit of an evaluation, IEP, or a comprehensive understanding of the anxiety over the District's repeated statements that the EnVisions program was not appropriate.
Appropriate Relief Includes Compensatory Education
The totality of the record supports an award of prospective and retrospective compensatory education. See also Ferren C. v. School Dist. of Philadelphia, 54 IDELR 274 (3d Cir. 2010) (holding that awards of compensatory education are appropriate because "there is nothing in the IDEA that evinces Congressional intent to limit courts' equitable power to awards of only financial support"); See, e.g., Draper v. Atlanta Indep. Sch. Sys., 49 IDELR 211 (11th Cir. 2008), cert denied, 110 LRP 57266, 131 S. Ct. 342 (2010)(compensatory education may include awards of prospective services themselves).
Prospective compensatory education will remedy the District's failure to have an IEP in effect during the remainder of this school year and continue until the Student completes a diagnostic evaluation Ordered herein and the District issues a new IEP and NOREP. Applying Third Circuit case law, I now conclude that the following package of compensatory services, along with a diagnostic evaluation, will provide the Student with a make-whole remedy. A.W. v. Middletown Area Sch. Dist., 68 IDELR 247 (M.D. Pa. 2016) (Because a high schooler's anxiety and school avoidance progressively worsened the longer he went without services, a compensatory education award that far exceeded the number of service hours the district failed to provide was appropriate.). But see Montgomery County Intermediate Unit No. 23 v. C.M., 71 IDELR 11 (E.D. Pa. 2017) (upholding a hearing officer's hour-for-hour calculation of a child's compensatory education award). See Frazier v. Fairhaven Sch. Comm., 35 IDELR 271 (1st Cir. 2002) (compensatory education may take various forms like "current compensatory education," to be provided during the student's ongoing eligibility period, or "future compensatory education," which extends beyond age 22 or may include an extension of the full educational services for a defined period beyond the age of 22); Pihl v. Massachusetts Dep't of Educ., 20 IDELR 668 (1st Cir. 1993).
Retrospective compensatory education will remedy the denial of a FAPE from April 2024 to the date of this February 2025 Order. In G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015), the Court endorsed a "complete" make-whole remedy, thereby providing relief for the entire period during which the violation occurred (G.L. 802 F.3d at 626). As established, compensatory education "accrue[s] from the point that the school district knows or should know of the injury to the child, and the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem." G.L. at 618- 619 (quoting M.C. ex rel. J.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 396-97 (3d Cir. 1996) (citations omitted)).
The case law above has recognized several methodologies for calculating compensatory education relief. First, a fact-finder may adopt the M.C. "cookie cutter" approach and award a block of hours. Second, based on the totality of the record, the fact-finder may bifurcate the dispute and employ the Reid "qualitative" method. Third, the fact-finder, provided the record is complete, can fashion a make-whole remedy after making equitable adjustments. See Wilson v. District of Columbia, 770 F.Supp.2d 270, 276 (D.D.C.2011) (citing Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).
While IEPs are forward-looking—designed to "conform [] to . . . [a] standard that looks to the child's present abilities"—compensatory education is specifically meant to "make up for prior deficiencies." Reid, 401 F.3d at 522-23. An IEP "carries no guarantee of undoing the damage done by prior violations"
and cannot substitute for the role of compensatory education. In the instant matter, the evidence is insufficient to apply the Reid "make-whole" remedy. The testimony and the exhibits, however, create a preponderant record that now permits me to craft a make-whole hour-for-hour relief that is equitable. The reasonable rectification period required by case law, however, is an affirmative defense. The District here could have asserted it, but the District failed to do so or provide supporting rectification evidence. As a result, this defense is waived, and there will be no reduction, but for days the Student was absent due to illness, in the total compensatory education award.
Guided by the maxim that compensatory education relief is intended to place the child in the position they would have occupied, but for the violation, the following relief is so Ordered. Boose v. District of Columbia, 786 F.3d 1054, 2015 U.S. App. LEXIS 8599 (D.C. Cir. 2015).
Compensatory Education Calculation
The Student's IEP required 6.5 plus hours of instruction per school day. Applying M.C. I now conclude that the District should have known by April 2024 that the Student was not receiving FAPE. Since the District provided no evidence to support a reasonable rectification period, none will be applied. As a result, the Student is awarded full school days of compensatory education for each day missed from the start of the denial in April 2024 until such time as the District provides a new IEP, placement, and Notice of Recommended Educational Placement (NOREP). To calculate the total retrospective award, the District must provide a school calendar to the Parents indicating how many days the school was in session from April 2024 until the end of the school year. The Parties will adjust the total number of school days to account for Student absences due to illness and school closures affecting all students.
Prospective compensatory education will continue to accrue until the District offers a new IEP and NOREP. Once the diagnostic placement and evaluation described herein are completed and a new IEP and NOREP are provided, the District must provide another school year calendar(s). Once provided, the total number of hours will be added to the retrospective award.
Appropriate Relief Also Includes Compensatory Education for Lost ESY Services The District's 2024 Extended School Year (ESY) Program lacked the necessary behavioral support, related services, and staffing, which, if offered, would have offered a FAPE. The IDEA requires ESY services to prevent regression and ensure meaningful progress (22 PA Code 14.132). Without appropriate behavioral staff and interventions, the Student was unable to access instruction effectively, exacerbating the educational gap (K.K. v. Alta Loma Sch. Dist., 64 IDELR 72 (C.D. Cal. 2014). To compensate for these missed services, the Student is awarded 6.5 hours per day of ESY compensatory education for the 2024 ESY session.
Provided that the District does not issue a new IEP and NOREP before the start of the 2025 ESY session, those hours should be added to the previous calculations. The District is further directed to provide the Parents with the 2024 ESY calendar and the 2025 ESY calendar to determine the total number of ESY compensatory education hours awarded. The ESY hours should be added to the other retrospective or prospective calculations.
Transportation Cost to and From the Compensatory Education Provider
Since the IEP requires the District to provide transportation, the District must reimburse the Parents for any transportation costs incurred in transporting the Student to and from the compensatory education provider(s). This reimbursement for this related service is in addition to the compensatory education hours awarded. Absent this additional relief, the Student's education would not be free.
Use of Compensatory Education and Recording Keeping
The compensatory education bank of hours calculated herein may be used for developmental, corrective, remedial, or specially designed instruction, including related services, transition services, and supplemental aids, as defined under IDEA or Section 504. On January 15 each year, until the Student reaches age 23, the District must report the unused compensatory education hours to the Student and Parent. The Parent has sole discretion to select the service provider, and the District must reimburse each provider(s) at their standard rates. Transportation costs to and from the provider must also be reimbursed at the District's rate of travel reimbursement. Unused compensatory education hours expire when the Student turns 23, and all unused compensatory education hours are returned to the District.
Compensatory Education Continues Until FAPE is Offered
Since the denial of FAPE extends back to April 2024, the Student is entitled to an hour-for-hour compensatory education prospectively for each day the school is in session after the date of this Order until the District offers a FAPE and a NOREP. Additionally, compensatory education will continue to accrue during the Student's 100-day diagnostic placement. This equitable extension ensures that any past and continuing un-remedy violations are otherwise addressed in real time.
A 100-Day Diagnostic Placement is Necessary, and So Ordered
A hearing officer may order a diagnostic placement when existing evaluations are inconclusive (Middletown Bd. of Educ., 10 ECLPR 77 (SEA CT 2013). A diagnostic placement does not constitute a change in placement under the IDEA's "stay-put" rule unless agreed upon by both parties (20 U.S.C. § 1415(j); therefore, "stay put" is not affected. As the District lacks a fundamental understanding of how the Student's anxiety, behavioral health, executive functioning dysregulation, absenteeism, and school refusal interfere with learning, I now find that the Student requires a 100-day, in-class diagnostic evaluation outside of the District. At the completion of the 100-day diagnostic placement and presentation of the IEP and NOREP, unless the parties agree, the Student must return to the last agreed-upon placement in the District.
Consistent with the case law, this functional diagnostic placement and evaluation should occur in a classroom setting, where the Student receives direct instruction and a contemporaneous functional behavioral assessment in all areas of suspected needs and disability. To collect the much-needed data, I would expect the Student to be in the diagnostic classroom for a full six-and-a-half to seven-hour school day.
To fully implement this Order, the District is further directed to identify a knowledgeable evaluator who can complete a comprehensive diagnostic behavioral evaluation of the Student's executive functioning dysregulation, school refusal, and anxiety disorders. Once selected, the evaluator shall conduct a behavioral health and anxiety-specific evaluations within 60 days of this Order.3 While my earlier findings did not definitively establish the appropriateness of the EnVisions program as a long-term tuition placement, the totality of the evidence now supports the conclusion that the MCIU EnVisions program is a suitable setting for the necessary diagnostic placement and evaluation. The record reflects that the EnVisions program has accepted the Student, the 3 Assessing anxiety, executive functioning dysregulations and school refusal requires a combination of behavioral observations, standardized assessments, clinical interviews, and rating scales to determine its severity, triggers, and impact on educational performance. Therefore, I would expect a comprehensive diagnostic behavioral assessment should include a variety of methods, tools, checklists and diagnostic criteria, such as Clinical & Standardized Assessments, Behavioral & Observational methods like an FBA, School-Based Observations, Structured & Semi-Structured Interviews like Clinical Interviews, Self-Report & Parent/Teacher Questionnaires School Performance & Functional Impairment like Classroom Performance, a though review of Attendance Records, scoring from the BRIEF-2, along with an understand of the circumstances surrounding the Student’s ACC and written Language Pragmatic skill needs. These assessment tools and others may provide a comprehensive understanding of this Student’s anxiety, and contribute to selecting appropriate accommodations, interventions, specially designed instruction and supports.
District has made a conditional offer to fund the placement, and the Parents have indicated their acceptance of the program, thereby making it a viable option for diagnostic purposes.
Accordingly, given the current circumstances, the District is directed to proceed with the EnVisions program as the designated location for the diagnostic placement. Within ten (10) calendar days of this Order, the District must arrange for the Student's placement in the MCIU EnVisions program. The EnVisions program will implement the last agreed-upon IEP to the extent practicable. The following Order outlines the diagnostic evaluation/placement IEP and NOREP timeline.
Conclusion
It is hereby concluded that the following Order remedies all substantive and procedural violations of the IDEA and further resolves the Student's Section 504 FAPE claims. The evidence here clearly establishes that the District has denied the Student a FAPE beginning in April 2024 and continuing thereafter. Accordingly, the following make-whole remedy shall consist of retrospective compensatory education, prospective compensatory education, and a diagnostic evaluation and placement. Finally, to put the Student back on the right path, the District, upon receipt of the diagnostic evaluation, should gather a group of knowledgeable people to review the diagnostic evaluation data set and then offer a new IEP and a NOREP. Once the District issues the new IEP and NOREP, the award of prospective compensatory education ends.
FINAL ORDER
AND NOW, this 28th day of 2025, upon consideration of the entire record and for the reasons set forth in the Conclusions of Law, the District and the Parents are ORDERED as follows:
I. COMPENSATORY EDUCATION AWARD
1. Retrospective Compensatory Education: The District is found to have denied the Student a FAPE during portions of the 2023–2024 school year, as well as during the Extended School Year (ESY) in the summer of 2024, with the violations extending into the 2024–2025 school year. To remedy this, the District shall provide compensatory education on an hour-for-hour basis for each school day from April 2024 through the end of the 2023–2024 school year. The award also includes each day of the 2024 ESY summer session.
2. Prospective Compensatory Education: Compensatory education shall accrue for each day of the 2024-2025 school year and into the future until such time as the District offers a new IEP and NOREP. Within 10 school days of this ORDER, the District shall arrange for the Student to participate in a 100-day diagnostic placement period to address the lack of data surrounding the Student's anxiety, executive functioning dysregulation, absenteeism, and school refusal. The prospective accrual of compensatory education shall continue until the Student has (a) completed the 100-day diagnostic evaluation and placement, (b) the District has completed a complete review of the diagnostic evaluation data set and issued an update reevaluation report, (c) offered an appropriate IEP, and (d) provided the Parent a corresponding NOREP.
3. Conditions and Restrictions on Use of the Compensatory
Education:
The compensatory education funds shall be directed by the Parents and may be utilized for: o Specially designed instruction o Developmental, corrective, or remedial education o Related services (including behavioral/therapeutic services, speech-language therapy, occupational therapy, physical therapy, assistive technology, and psychological counseling) o Tutoring, executive functioning coaching, or social skills training o College or career preparatory services relating to transition services supporting the Student's transition goals The Parent retains sole discretion in selecting all service providers. The District is directed to reimburse the selected providers at the usual and customary rates within 30 days of invoice submission.
4. Funding and Reimbursement: The District shall directly fund all compensatory education services at the provider's billed rate. Alternatively, if the Parent self-funds any services, reimbursement shall be made by the District within 30 days of the Parent's submission of an invoice. Additionally, transportation costs to and from compensatory education services are to be fully funded by the District.
5. Expiration of Compensatory Education Hours: Any compensatory education hours not used shall remain available until the Student reaches 23 years of age. Upon reaching that age, any unused hours shall revert to the District and be forfeited.
II. PROSPECTIVE DIAGNOSTIC PLACEMENT
6. 100-Day Diagnostic Placement: The District shall fund a 100-day diagnostic placement. Within ten (10) school days of this Order, the District shall arrange for the Student to participate in the diagnostic placement and identify the independent evaluator. The classroom provider, in conjunction with the independent evaluator, shall conduct a comprehensive evaluation of the Student's behavioral health needs and circumstances related to school refusal, executive functioning dysregulation, and absenteeism. The District is further ordered to provide daily transportation for the Student to and from the diagnostic placement.
7. Selection of Diagnostic Providers and Evaluators: Within ten (10) school days of this Order, the District shall select an independent evaluator qualified to perform a comprehensive assessment of the Student's behavioral health, including anxiety and school refusal behaviors. The District shall notify the Parents in writing of the evaluator's name, qualifications, and the start date for the diagnostic evaluation and placement within 24 hours of selection.
8. Scope of Evaluation: The diagnostic placement provider, in coordination with the independent evaluator, shall undertake ongoing data collection and a functional assessment of the Student as described herein. The diagnostic placement provider and the evaluator should undertake all necessary evaluations to create a comprehensive evaluation of the Student's interfering behaviors, anxiety, dysregulation, and school refusal. The diagnostic provider and the independent evaluator are directed to provide Interim Status Reports to the District and the Parents every 25 school days.
9. Evaluation Timeline and Benchmarks: o At the 60-day mark, the diagnostic evaluator shall issue a comprehensive evaluation report. o At the 90-day mark, the District shall convene an IEP team meeting to review all evaluation data and offer a new IEP and NOREP. The Parents shall have 10 calendar days to review and respond to the proposed NOREP. The diagnostic placement provider and the evaluator should participate in any and all meetings until the District offers a new IEP and NOREP. o At the 100-day mark, the diagnostic placement will end. Provided that the Parties do not reach an agreement, the Student shall return to the last agreed-upon placement.
III. TUITION REIMBURSEMENT
10. The Parent's request for prospective private school tuition reimbursement is DENIED. This claim is dismissed with prejudice.
IV. ADDITIONAL ORDERS
11. Funding and Payment for Diagnostic Services: The District shall fund all costs associated with the diagnostic placement, including tuition and fees, the independent evaluator costs, the cost of the interim and final diagnostic assessment reports, daily transportation to and from the diagnostic placement, and all compensatory education travel to and from the diagnostic placement. Invoices from the diagnostic provider and the evaluator shall be submitted monthly, and the District shall process and make all payments within 30 days of receipt.
12. Dismissal of Additional Claims: All other affirmative defenses, claims, or causes of action not expressly provided herein are exhausted and dismissed with prejudice. SO ORDERED. Date 2.28.2025 s/ Charles W. Jelley, Esq., LL.M.
Special Education Hearing Officer
Footnotes
[1] The following Findings of Fact were made as necessary to resolve the issues; thus, not all of the testimony and exhibits were explicitly cited or given equal weight. However, in reviewing the record, while the testimony of all witnesses and the content of each admitted exhibit were thoroughly considered, as were the parties’ closing statements not all testimony or exhibits were given equal weight. 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 USC § 1415(h)(4)(A); 34 CFR § 300.513(d)(2; 34 CFR § 104.1- 104.36). References to the record throughout this decision will be to the Notes of Testimony (N.T.), School District Exhibits (S-) followed by the exhibit number, and Parent Exhibits (P-) followed by the exhibit number.
[2] The IDEA and Section 504 FAPE analysis overlaps; therefore, I now conclude that the IDEA analysis Findings of Fact and Conclusion of Law and relief resolves the Student’s Section 504 FAPE claims. I make no findings if the conduct here violates Section 504’s intent based discrimination prohibitions. Therefore, all intent based discrimination claims are exhausted and dismissed as I cannot award any legal relief.