PENNSYLVANIA SPECIAL EDUCATION DUE PROCESS
FINAL DECISION AND ORDER
ODR No. 30589-24-25
This is a redacted version of the original decision. Select details have been removed from the decision to preserve the anonymity of the student. The redactions do not affect the substance of the document.
Child’s Name: A.M.
Date of Birth: [redacted]
Parents: [redacted]
Counsel for Parents: Kathleen Metcalfe, Esq. 933 Montgomery Avenue Narberth, PA 19072
Local Education Agency: Interboro School District
200 S. McDade Boulevard Glenolden, PA 19036
Counsel for the LEA: Samantha Newell, Esq.
Julie Derby, Esq. 32 Regency Plaza Glenn Mills, PA 19342
Hearing Officer: James Gerl, CHO
Date of Decision: March 18, 2025
BACKGROUND
The parents filed a due process complaint alleging a denial of FAPE for the 2024 – 2025 school year because of the failure of the school district to provide an out-of-district placement and the refusal of the school district to provide a Registered Behavior Technician as the 1:1 for the student.
The complaint also seeks an independent educational evaluation in the form of a functional behavioral assessment.
The school district contends that it provided a free and appropriate public education to the student and that its evaluation of the student was appropriate and, therefore, the parents are not entitled to an independent educational evaluation at public expense. I find in favor or the school district with regard to the first issue and conclude that the school district provided a free and appropriate public education to the student for the 2024 – 2025 school year. I find in favor of the parents with regard to the second issue and award an independent educational evaluation at public expense in the form of a functional behavioral assessment of the student because the school district’s evaluation of the student was not appropriate.
PROCEDURAL HISTORY
Counsel for the parties did a good job of stipulating to a number of stipulations of fact which reduced the time necessary for the hearing and shortened the decisional process. The hearing was conducted in one efficient in-person hearing session. Parents’ exhibits P-1 through P-8 were admitted into evidence and school district exhibits S-1 through S-12 were admitted into evidence. witnesses testified at the due process hearing.
Seven After the hearing, counsel for each party presented written closing arguments/posthearing briefs and proposed findings of fact. All arguments submitted by the parties have been considered.
To the extent that the arguments advanced by the parties are in accordance with the findings, conclusions and views stated below, they have been accepted, and to the extent that they are inconsistent therewith, they have been rejected. Certain arguments and proposed findings have been omitted as not relevant or not necessary to a proper determination of the material issues as presented. To the extent that the testimony of various witnesses is not in accordance with the findings as stated below, it is not credited. To the extent possible, personally identifiable information, including the names of the parties and similar information, has been omitted from the text of the decision that follows. FERPA 20 U.S.C. § 1232(g); and IDEA § 617(c).
ISSUES PRESENTED
The due process complaint, as explained and clarified at the prehearing conference and as confirmed at the beginning of the due process hearing, presents the following two issues:
1. Whether the parents have proven that the school district denied a free and appropriate public education to the student for the 2024 – 2025 school year?
2. Whether the parents have proven that they are entitled to an independent educational evaluation in the form of a functional behavioral assessment of the student because the school district’s October 24, 2024 evaluation was inappropriate?
FINDINGS OF FACT
Based upon the parties’ stipulations of fact, I have made the following findings of fact:
1. The student is a [redacted]student born on [redacted], who is currently a [redacted] student in the school district.
2. The student was initially evaluated for Early Intervention services by the Intermediate Unit that includes the school district in [redacted] and found eligible with a special educational disability of autism.
3. The IU recommended four half days per week in a specialized autism classroom with physical therapy, occupational therapy, and speech therapy.
4. The parents opted instead for the student to receive full day in the Applied Behavior Analysis (“ABA”) services at [redacted] clinic five days per week, which was paid for by the parents’ medical insurance.
5. The Intermediate Unit held an [redacted]transition to [redacted] meeting on January 12, 2024. The mother and a school district representative were in attendance.
6. The IU completed another Evaluation Report of Student on April 25, 2024. Student again qualified for [redacted] services as a student with autism.
7. The IU again offered a half-day program, and the parents kept the student at the [redacted]clinic in a full day program.
8. The school district staff observed the student at [redacted]on March 21, 2024.
9. The parents registered the student with the school district on August 18, 2024. The parents completed the registration paperwork on August 21, 2024.
10. On June 3 and August 28, 2024, the parents requested that the student be placed in an out-of-school-district placement.
11. On August 29, 2024, the Director of Special Education sent the parents an IEP adopting the IU IEP and a NOREP for supplemental autistic support with speech language therapy, occupational therapy, and physical therapy.
12. The parents rejected the NOREP on August 30, 2024.
13. An IEP meeting was held on September 6, 2024, and the school district’s [redacted]supplemental autistic support placement was proposed.
14. The school district agreed to provide the student with a 1:1 Personal Care Assistant in the September 6, 2024 NOREP.
15. Student began attending the school district’s autistic support classroom on September 9, 2024.
16. [redacted]clinic began on September 30, 2024 providing a Registered Behavior Technician to serve as a Personal Care Assistant in the school district classroom.
17. The school district completed an Evaluation Report on October 29, 2024. The student was found eligible for special education with a primary disability of autism and secondary disability of speech or language impairment.
18. An IEP meeting was held on November 6, 2024.
19. The school district issued a Permission to Evaluate on November 7, 2024, to conduct an FBA.
Based upon the evidence in the record compiled at the due process hearing, I have made the following findings of fact:[1]
20. The student is free-spirited. The student loves playing outside and loves to swim. (NT 214 – 215)
21. On August 28, 2024, the school district issued a Prior Written Notice/Notice of Recommended Educational Placement to the parents stating the school district would adopt the student’s [redacted] IEP at the beginning of the school year. The mother rejected the NOREP on August 30, 2024 and requested at that time that the school district provide an out-of-district autistic support placement for the student. (S-12; NT 174-175)
22. On September 6, 2024, the school district issued a Prior Written Notice/Permission to Evaluate to the parents. The Permission to Evaluate form noted that the student would be given the following assessments as a part of the evaluation: cognitive, achievement, academic, visual perceptual motor processing, speech and language, gross and fine motor functioning, social emotional functioning, functional behavioral assessment, psychiatric testing “...if deemed appropriate.” The mother approved the Permission to Evaluate. (S-3)
23. The school district members of the student’s IEP team determined that a functional behavioral assessment would not be conducted as a part of the evaluation. The school district team did not consult with the parents or inform the parents of the decision that a functional behavioral assessment would not be conducted. The school district’s October 24, 2024 evaluation of the student did not include a functional behavioral assessment of the student. (S-4; NT 301 – 302, 325)
24. The student’s November 6, 2024 IEP contains 10 goals, including a social skills goal, speech goals, occupational therapy goals, and numerous modifications and specially designed instruction. The IEP provides the that the student will receive following related services: occupational therapy two times a week for 15 minutes; speech language therapy three times per week for 15 minutes; transportation; a Personal Care Assistant and parent training. The IEP provides for extended school year services. The student is placed in the autistic support environment. The student is in the regular education setting approximately 19% of the school day. (S-5)
25. The school district issued a Notice of Recommended Educational Placement on September 6, 2024, placing the student in the autistic support classroom.
The parent signed the NOREP approving of the placement on September 6, 2024. (S-2)
26. The student’s IEP is implemented at the school district’s autistic support classroom at the [redacted]. The classroom has eight students and four district staff plus one additional aide who is assigned to another student. The ratio is five adults to eight students. The class is comprehensive in nature and routine-based. The teacher incorporates academics, social skills training, behavioral components and goals from students’ IEPS into their school day. (NT 35, 222 – 226)
27. The student’s teacher at the [redacted] implements a behavior plan for the student that was prepared by the [redacted]clinic. (NT 228-231, 247-253, 255-256, 267-270, 289-291)
28. The student works well with the school district staff Personal Care Assistant and the RBTs from [redacted]clinic who work with the student in the school district classroom, with the exception of one RBT whom the student does not like and who has been the target multiple incidents of aggressive behavior by the student, including biting and scratching. (NT 29-71, 56, 59, 154, 223, 242 – 244)
29. The student has made good progress under the student’s IEP during the 2024 – 2025 school year.
The student has made significant progress concerning problem behaviors, including a large decrease in physical aggression, time on task, transitions and interacting with classmates. (P-7, S-4, S-5; NT 58 – 59, 84, 151 – 152, 233 – 234, 245 – 247, 254, 270, 306 – 307)
30. The student has made significant progress during the 2024 – 2025 school year in occupational therapy, including being able to advance from using only loop scissors to using spring-loaded scissors and being able to cut along a line. (NT 105 – 106)
31. The student has made good progress in speech language therapy during the 2024 – 2025 school year, including progress with transitions to therapy and progress with the assistive augmentative communication device, Touchchat for iPad, that the school district helped secure. The student is now beginning to approximate words and to discriminate between buttons on the communication device. (NT 79 – 81)
32. In January 2025, [redacted] staff completed a reassessment report. The purpose of the report was to justify to the parents’ insurance company medical ABA treatment funding for the student. (P-7; NT 113-118)
CONCLUSIONS OF LAW
Based upon the arguments of the parties, all of the evidence in the record, as well as my own legal research, I have made the following conclusions of law:
1. A parent or a local education agency may file a due process complaint alleging one or more of following four types of violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq, (hereafter sometimes referred to as “IDEA”): an identification violation, an evaluation violation, a placement violation or a failure to provide a free and appropriate public education (hereafter sometimes referred to as “FAPE”). IDEA §615(f)(A); 34 C.F.R. § 300.507(a); 22 Pa. Code § 14.162.
2. The United States Supreme Court has developed a two-part test for determining whether a school district has provided a free appropriate public education (hereafter sometimes referred to as “FAPE”) to a student with a disability. There must be: (1) a determination as to whether a school district has complied with the procedural safeguards as set forth in IDEA, and (2) an analysis of whether the individualized educational program is reasonably calculated to enable the child to make progress in light of the child’s unique circumstances. Endrew F by Joseph F v. Douglass County School District RE1, 580 U.S. ___, 137 S. Ct. 988, 69 IDELR 174 (2017); Board of Educ., etc. v. Rowley, 458 U.S. 178, 553 IDELR 656 (1982); KD by Theresa Dunn and Jonathan Dunn v. Downingtown Area School District, 904 F.3d 248, 72 IDELR 261 (3d Cir. 2018).
3. In order to provide FAPE, an IEP must be reasonable, not ideal.
KD by Dunn v. Downingtown Area School District, supra; LB by RB and MB v Radnor Twp Sch Dist, 78 IDELR 186 (ED Penna 2021).
4. The appropriateness of an IEP in terms of whether it has provided a free appropriate public education must be determined at the time that it was made. The law does not require a school district to maximize the potential of a student with a disability or to provide the best possible education; instead, it requires an educational plan that provides the basic floor of educational opportunity. Ridley School District v. MR and JR ex rel. ER, 680 F.3d 260, 58 IDELR 281 (3d Cir. 2012); DS v. Bayonne Board of Education, 602 F.3d 553, 54 IDELR 141 (3d Cir. 2010); Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235, 251, 52 IDELR 211 (3d Cir. 2009).
5. IDEA does not require a school district to guarantee a particular result or to close the gap between children with disabilities and their nondisabled peers. Abigail P by Sarah F v Old Forge Sch Dist, 82 IDELR 227 (MD Penna. 2023), aff’d Abigail P by Sarah F v Old Forge Sch Dist, 124 LRP 21769; JN and JN ex rel. JN v. Southwest School District, 56 IDELR 102 (M.D. Penna. 2015); see, Kline Independent School District v. Hovem, 690 F. 3d 390, 59 IDELR 121 (5th Cir. 2012); HC and JC ex rel. MC v. Katonah – Lewisboro Union Free School District, 59 IDELR 108 (S.D. NY 2012); District of Columbia Public Schools, 111 L.R.P 77405 (SEA D.C. 2011).
Progress toward a FAPE is measured according to the unique individual circumstances of the individual student and not in comparison to other students. See, GD by Jeffrey and Melissa D v. Swampscott Public Schs, 122 LRP 6305 (1st Cir. 2022). The Third Circuit has specifically ruled that IDEA does not require that all (or even most) disabled children advance at a grade-level pace. KD by Dunn v. Downingtown Area School District, 904 F. 3d 248, 72 IDELR 261 (3d Cir. 2018).
6. For a procedural violation to be actionable under IDEA, the parent must show that the violation results in a loss of educational opportunity for the student, seriously deprives the parents of their participation rights, or causes the student a deprivation of educational benefit. Ridley School District v. MR and JR ex rel. ER, supra; IDEA § 615(f)(3)(E); 34 C.F.R. § 300.513(a).
7. A parent cannot compel a school district to use a specific educational methodology. A school district is afforded the discretion to select from among various methodologies in implementing a student’s IEP. Ridley School District v. MR and JR ex rel. ER, 680 F. 3d 260, 58 IDELR 271 (3d Cir. 2012); see EL by Lorsson v. Chapel Hill – Carrboro Board of Education, 773 F. 3d 509, 64 IDELR 192 (4th Cir. 2014); Lessard v. Wilton – Lyndborough Coop School District, 592 F. 3d 267, 53 IDELR 279 (1st Cir. 2010); In re Student With A Disability, 51 IDELR 87 (SEA WV 2008).
8. Services are not categorical under IDEA; IDEA does not concern itself with labels, rather, once a child is eligible under one of the enumerated disability categories, the IEP of the child must be tailored to the unique needs of the particular child. 34 C.F.R. § 300.106(a)(3)(i); see Heather S. v. State of Wisconsin, 125 F. 3d 1045, 26 IDELR 870 (7th Cir. 1997); Osage R-1 School District v. Sims ex rel. BS, 841 F. 3d 996, 56 IDELR 282 (8th Cir. 2011). The child’s identified needs and not the child’s disability category determine the services that must be provided to the child. School District of Philadelphia v. Post, et al, 262 F. Supp. 3d 178, 70 IDELR 96 (E.D. Penna. 2017); See, Minnetonka Pub Schs, Independent Sch Dist No. 276 v. M.L.K., by S.K. and D.K, 81 IDELR 123 (8th Cir. 2022); Maine School Administrative District No. 56 v. Mrs. W. ex rel. KS, 47 IDELR 219 (D. ME 2007); see also, Analysis of Comments to Proposed Federal Regulations, 71 Fed. Reg. 156 at pp. 46586, 46588 (OSVP August 14, 2006); In re Student With A Disability, 52 IDELR 239 (SEA WVa 2009).
9. Prospective private placements as relief for violations of IDEA are rarely made by hearing officers or courts; the clear preference is to educate students in public schools; placement in a private school is the exception. See, RH by Emily H & Matthew H v. Plano Independent Sch Dist, 607 F.3d 1003, 54 IDELR 211 (5th Cir 2010).
Although hearing officers and courts clearly have broad equitable power to award appropriate relief where there has been a violation of IDEA, awards of prospective private placement have been made only in egregious cases where the school district cannot provide FAPE. See, Draper v. Atlanta Independent School System, 518 F.3d 1275, 49 IDELR 211 (11th Cir. 2008); Upper Darby Sch Dist, 120 LRP 27028 (SEA Penna. 2020).
10. In order to receive reimbursement of tuition and related expenses resulting from the unilateral private school placement, a parent must prove three elements: 1) that the school district has denied FAPE to the student or committed another substantive violation of IDEA; 2) that the parents’ private school placement is appropriate; and 3) that the equitable factors in the particular case do not preclude the relief.
School Committee Town of Burlington v. Department of Education, 471 U.S. 359, 103 LRP 37667 (1985); Florence County School District #4 v. Carter, 510 U.S. 7, 20 IDELR 532 (1993); Forest Grove School District v. TA, 557 U.S. 230, 52 IDELR 151 (2009).
11. A party may not raise an issue that was not properly set forth in the due process complaint and the prehearing proceedings. 300.511(d). A party to a due process hearing waives an argument if it is not properly presented and argued. JL v Lower Merion Sch Dist, 81 IDELR 251 (E.D. Penna 2022); LB by RB and MB v Radnor Township Sch Dist, 78 IDELR 186 (E.D. Penna 2021)
12. If a parent disagrees with a school district evaluation, the parent may request an independent educational evaluation at public expense. IDEA § 615(d)(2)(A); 34 C.F.R. § 300.502(b)(1); PP by Michael P and Rita P v. West Chester Area School District, 585 F.3d 727, 53 IDELR 109 (3d Cir. 2009). When a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either pay for the evaluation or else request a due process hearing to show that its evaluation is appropriate. 34 C.F.R. § 300.502(b)(2); JH v West Chester Area School District,
LRP
13514
(SEA
Penna 2019);
Pa. Code § 14-102(a)(2)(xxix).
13. of In conducting an evaluation, a school district must use a variety assessment tools and strategies to gather relevant functional, developmental and academic information about the child. It must use technically sound instruments to assess the child. The assessments must be conducted by trained and knowledgeable personnel and administered in accordance with any instructions provided by the producer. The child must be assessed in all areas related to the suspected disability. The evaluation must be comprehensive. When conducting an evaluation, a school district must review appropriate existing evaluation data, including classroom-based assessments and observations by a teacher or related service provider, and on that basis determine whether any additional data are needed to determine whether the student is eligible, as well as to identify the child’s special education and related services needs. Perrin ex rel JP v Warrior Run Sch Dist, 66 IDELR 254 (M. D. Penna. 2015); IDEA § 614; 34 C.F.R. §§ 300.301, 300.304 – 300.305; 22 Pa. Code § 14-123.
14. “Consent” for purposes of IDEA means that the parent has been informed of all relevant information, and that the parent understands and agrees in writing to the activity and that the parent understands that the granting of consent is voluntary. 34 CFR § 300.9.
15. IDEA requires that a parent of a student with a disability be afforded meaningful participation in the evaluation process, the IEP process and in the education of the student. 34 CFR § 300.501. DS and AS ex rel. DS v. Bayonne Board of Educ., 602 F. 3d 553, 54 IDELR 141 (3d Cir. 2010); Fuhrmann ex rel. Fuhrmann v. East Hanover Bd. of Educ., 933 F. 2d 1031, 1036, 19 IDELR 1065 (3d Cir. 1993) (see Deal v. Hamilton County Bd. of Educ., 392 F. 3d 840, 42 IDELR 109 (6th Cir. 20024)).
16. An IDEA hearing officer has broad equitable powers to issue appropriate remedies when a local education agency violates the Act. All relief under IDEA is equitable. Forest Grove School District v. TA, 557 U.S. 230, 129 S. Ct. 2484, 52 IDELR 151 (n. 11) (2009); Ferren C. v. Sch. Dist. of Philadelphia, 612 F.3d 712, 54 IDELR 274 (3d Cir. 2010); CH by Hayes v. Cape Henlopen Sch Dist, 606 F.3d 59, 54 IDELR 212 (3d Cir 2010); School District of Philadelphia v. Williams ex rel. LH, 66 IDELR 214 (E.D. Penna. 2015); Stapleton v. Penns Valley Area School District, 71 IDELR 87 (N.D. Penna. 2017). See Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 2005); Garcia v. Board of Education, Albuquerque Public Schools, 530 F.3d 1116, 49 IDELR 241 (10th Cir. 2008); In re Student with a Disability, 52 IDELR 239 (SEA W.V. 2009).
The conduct of the parties is always relevant when fashioning equitable relief.
CH by Hayes v. Cape Henlopen Sch Dist, 606 F.3d 59, 54 IDELR 212 (3d Cir 2010). See, Branham v. District of Columbia, 427 F.3d 7; 44 IDELR 149 (D.C. Cir. 2005).
17. The parents have not proven that the school district denied a free and appropriate public education to the student for the 2024 – 2025 school year.
18. The parents have proven that the school district’s October 24, 2024 evaluation was not appropriate and that they are entitled to an independent educational evaluation in the form of a functional behavioral assessment of the student.
DISCUSSION
I. Merits
1. Whether the parents have proven that the school district denied a free and appropriate public education for the student for the 2024 – 2025 school year? The parents contend that the school district denied a free and appropriate public education to the student for the 2024 – 2025 school year. The school district contends that it has provided FAPE to the student for the 2024 – 2025 school year. As clarified at the prehearing conference herein, the parents identified two separate ways that they contend the student’s IEP is substantively inappropriate: that the school district failed to fund an outof-district autistic support placement and that the school district failed to provide a Registered Behavior Technician as the student’s 1:1 Personal Care Assistant. The parents have not proven that the school district denied a free and appropriate public education to the student for the 2024 – 2025 school year. The thrust of the parents’ disagreement with the school district involves a methodology dispute. The board-certified behavior analyst (BCBA) called by the parents as a witness testified that the student would benefit from an Applied Behavior Analysis classroom of five to six students.
The BCBA provided no clear explanation as to why the student would require this particular methodology in this amount in order to receive meaningful benefit from the student’s education.
Moreover, the recommended number of students in the classroom seems to have been pulled from thin air.
No justification for the number of students was provided. The number of hours of ABA services recommended was based upon the staffing available at the clinic where the BCBA worked and not on the student’s individual needs. Indeed, the report and testimony of the parents’ BCBA seemed to be based more upon the student’s category of disability rather than on the student’s unique individual circumstances. Moreover, the purpose of the report completed by the BCBA was to justify funding by the parents’ insurance company and not to determine the student’s educational needs. The core of her conclusion, however, is that the behavior analyst believes that the Applied Behavioral Analysis program utilized in the clinic in which the BCBA works, or a program similar to it, would be better for the student than the school district’s program. The parents point to scores on the VB-MAPP, which is an ABA assessment, to support their argument. The school district, however, is not required to adopt the parents’ preferred methodology in instructing a student. Moreover, the FAPE standard articulated by the Supreme Court does not require that a school district provide the best or an ideal education for a student. The parents’ argument is rejected. One of the arguments made by the parents in the parents’ post-hearing brief needs to be addressed. The parents assert for the first time in the brief that the school district violated IDEA by failing to provide a “Notice of Options” form to the parents when transitioning into the school district. This argument was not raised prior to the hearing or at the hearing. The parents may not add new allegations of violations of IDEA for the first time in a post-hearing brief. The argument was not properly raised and therefore is waived. Even assuming arguendo that the argument had not been waived, the procedural violation which the parents now allege is harmless because, as the discussion in this section reveals, the student was provided with a free and appropriate public education for the 2024 – 2025 school year. Concerning the parents’ request for an out-of-district autistic support placement, rather than the district autistic support placement, it should be noted that the parents have not identified a specific school that would, in the parents’ opinion, be the appropriate placement for the student. The parents did offer into evidence an exhibit which is a directory of approved private schools, and in the parents’ proposed findings, the parents point to two schools, but there is no evidence in the record that either of those schools would be appropriate for this student. The failure to prove that the parents’ selected private school is appropriate also requires the conclusion that the parents have not proven their case. The parents have made no such argument in this case and the relief requested with regard to an out-of-district placement is rejected. The parents also allege that the 2024 – 2025 IEP for the student fails to provide a FAPE because it did not include a Registered Behavior Technician as the student’s 1:1 aide.
This argument fails for the same reasons as the previous argument regarding out-of-district placement. The basis of the RBT argument involves the parents’ desire that the student receive a larger amount of Applied Behavioral Analysis methodology from staff with more training in that methodology. An RBT is trained in ABA programming and is supervised by an ABA-trained board-certified behavior analyst. The parents have not shown that the student requires a 1:1 aide who is trained as an RBT, or any other specific personnel, in order to receive a free and appropriate public education. Once again, the parents prefer a particular methodology in a certain quantity and is seeking what the parents feel is an ideal or the best education for the student.
The law does not require the school district to provide the parents’ preferred methodology or an ideal education.
The student’s IEP is reasonably calculated to confer meaningful educational benefit in view of the student’s unique circumstances. The parents’ argument is rejected. It is noted, however, that for purposes of continuity, the school district has agreed to provide a Registered Behavior Technician as the student’s 1:1 aide going forward from the date of the hearing. Accordingly, the analysis above applies only to the period of time up to and including the day of the due process hearing. The district has agreed to provide an RBT going forward. For purposes of future programming, this portion of the dispute has been resolved. Significantly, the parents’ brief does not even attempt to argue that the school district IEP was not reasonably calculated to provide meaningful educational benefit in view of the student’s unique circumstances.
The parents provide no analysis or argument that the legal standard for FAPE has been violated. They have not proven a substantive denial of FAPE. Because the appropriateness of an IEP is measured at the time that it is written, a school district is not required to demonstrate that an IEP resulted in actual progress. In this case, however, the credible and persuasive evidence in the record demonstrates that the student made good progress under the school district’s IEP. The student’s problem behaviors substantially improved while attending school in the district. In addition, the student made significant progress in occupational therapy and speech language therapy, particularly involving the use of the student’s assistive augmentative communication device. Perhaps the most credible and persuasive testimony concerning the student’s progress was provided by the personal care assistant who sometimes works with the student, who said that the student is “doing great” in school. It is concluded that the IEP developed by the school district was reasonably calculated to, and did in fact, provide the student with an opportunity to make meaningful progress in view of the student’s unique circumstances. The testimony of the school district witnesses was more credible and persuasive than the testimony of the mother and the parents’ other witnesses with regard to this issue. This conclusion is made because of the demeanor of the witnesses, as well as the following facts: the mother testified at the hearing that she was seeking an out-of-district placement for the student because the school district had had its chance but did not educate the student. This testimony is contradicted, however, by the documentary evidence in the record which shows that the parents had been requesting an out-of-district placement for the student even before the student began attending the school district’s program. The credibility and persuasiveness of the testimony of the BCBA called by the parents is impaired by the fact that the BCBA testified that her recommendations regarding the student’s needs were based upon the amount of staff available at the clinic at which she works rather than upon the student’s individual needs. In view of the foregoing, it is concluded that the parents have not proven that the IEP developed by the school district for the 2024 – 2025 school denied a FAPE to the student.
The parents’ arguments concerning this issue are rejected.
2. entitled Whether the parents have proven that they are to an independent educational evaluation/ functional behavioral assessment at public expense? The parents contend that the parents are entitled to an independent educational evaluation, consisting of an FBA, at public expense. The school district contends that its evaluation was appropriate and, therefore, the parents are not entitled to an independent FBA at public expense. The parents have proven that the school district’s evaluation was not appropriate. IDEA requires that a school district obtain informed consent from a parent before conducting an evaluation.
In the instant case, the school district did obtain the parents’ consent to conduct an evaluation. The consent form that the parents signed included a functional behavioral assessment of the student among the assessments that were to be conducted. According to the testimony at the hearing, school district members of the student’s IEP team determined that an FBA would be premature at that time.
Without consulting with the parents, and without even informing the parents, the school district members of the team unilaterally determined that the student would not be given a functional behavioral assessment. The manner in which the school district handled this particular assessment stands the spirit of IDEA on its head. A parent is a critical member of the IEP team and of the evaluation team. A parent must give informed consent to an evaluation. Consent cannot be considered informed where a school district unilaterally changes the assessments to be administered after receiving the parents’ agreement. A parent is also entitled to meaningful participation with regard to all matters involving the evaluation of a student and the student’s educational program. Yet, the school district denied the parents’ participation in a critical decision: whether to eliminate a behavior assessment that had been listed on the permission form of a student with demonstrated behavior issues. The bait and switch approach adopted by the school district is not acceptable and violates IDEA. In view of the school district’s egregious breach of the rules regarding informed parental consent and meaningful parental participation in the evaluation process, the appropriate remedy is to award the independent functional behavioral assessment at public expense requested by the parents. The equities favor the parents being awarded an independent educational evaluation/functional behavioral assessment as a remedy for the school district’s violation. Because the school district failed to comply with the informed consent and meaningful participation requirements of IDEA, it is concluded that the school district evaluation of the student on October 24, 2024 was not appropriate. The failure to obtain informed consent from the parents and the disregard of the parents’ right to meaningful participation render the school district evaluation inappropriate. The fact that the school district has now offered to do a functional behavioral assessment does not negate the fact that its previous evaluation was not appropriate. Because of the inappropriate district evaluation, an IEE is the appropriate remedy. The evidence concerning this issue is largely undisputed. However, to the extent that credibility factors are important with regard to this issue, the testimony of the student’s mother and the parents’ witnesses was more credible and persuasive than the testimony of school district witnesses. This determination is made because of the demeanor of the witnesses, as well as the attitude of the school district witnesses that they did not need to include the student’s parents, or even tell the parents about, an important decision concerning the evaluation process.
II. Relief
The parents have not proven denial of a free and appropriate public education by the school district. Accordingly, no relief is awarded therefor. The parents have proven that the school district’s evaluation of the student was inappropriate and that the appropriate remedy for the violation is an independent functional behavioral assessment at public expense that the parents have requested. Because all relief under IDEA is equitable relief, it should be flexible, and because special education under IDEA works best with a collaborative process, Schaffer v. Weast (546) U.S. 49, 44 IDELR 150 (2005), the parties shall have the option to agree to adjust or amend the relief awarded herein, so long as both parties any counsel of record agree in writing.
ORDER
Based upon the foregoing, it is HEREBY ORDERED as follows:
1. The school district shall provide an independent functional behavioral assessment requested by the parents at public expense.
The evaluation shall be consistent with the school district’s criteria applicable to independent educational evaluations. The functional behavioral assessment shall be completed on or before May 21, 2025;
2. The parties may adjust or amend the terms of this Order by mutual written agreements signed by all parties and all counsel of record; and
3. All other relief requested by the due process complaint is hereby denied.
IT IS SO ORDERED.
ENTERED: March 18, 2025 James Gerl James Gerl, CHO Hearing Officer
Footnotes
[1] (Exhibits shall hereafter be referred to as “P-1,” etc. for the parents’ exhibits; “S-1,” etc. for the school district’s exhibits; references to page numbers of the transcript of testimony taken at the hearing is the hereafter designated as “NT___”). [5]