Stepp et al v. The Midd-West School District

Filing 57

MEMORANDUM (Order to follow as separate docket entry). Signed by Magistrate Judge Susan E. Schwab on 2/23/15. (rc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DIANNA STEPP and MICHAEL
STEPP, on behalf of M.S.,
Plaintiffs
v.
THE MIDD-WEST SCHOOL
DISTRICT,
Defendant

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CIVIL NO: 4:12-CV-02290

(Magistrate Judge Schwab)

MEMORANDUM AND ORDER
February 23, 2015
I. Introduction.
The plaintiffs, Deanna and Michael Stepp (parents) on behalf of their son,
M.S., appeal from two decisions of the Due Process Hearing Officer pursuant to the
Individuals with Disabilities Education Act (IDEA). They also present a claim
under the Rehabilitation Act. Before the Court is a motion for judgment on the
administrative record filed by the parents and a motion for judgment on the
administrative record and/or summary judgment filed by the defendant, the
Midd-West School District (School District). After carefully considering the entire
administrative record, we agree with the findings and decisions of the Hearing
Officer. Accordingly, we will deny the parents’ motion and grant the School
District’s motion.

II. Background and Procedural History.
Due to academic and behavior concerns, M.S.’s parents requested that the
School District evaluate M.S. to determine whether he was eligible for special
education services.1 The School District completed an initial evaluation report in
May of 2011 concluding that M.S. was eligible for special education services, and it
found that M.S. was eligible based on “other health impairment.”2 In June of 2011,
the School District issued an Individualized Education Program (IEP), which
changed M.S.’s placement to a different elementary school that purportedly would
provide better access to behavior and math support services. The parents approved
the IEP. The School District issued a second IEP on October 11, 2011, which the
parents also approved. The School District then completed a functional behavior
assessment of M.S. and drafted a positive behavior support plan dated December 15,
2011. The parents approved the positive behavior support plan.

The facts set forth in this paragraph and the next are based on facts that the parties
stipulated to during the administrative due process proceedings. In later sections of
this Memorandum and Order, we set forth the facts found by the Hearing Officer
based on the testimony at the two administrative due process hearings.
1

The initial evaluation report notes that M.S.’s mother informed the School District
that M.S. was diagnosed with Attention Deficit Hyperactivity Disorder,
Oppositional Defiant Disorder, and anxiety. Doc. 31-3 at 2.
2

2

M.S.’s parents had him evaluated by a clinical neuropsychologist, Dr.
Dowell, who diagnosed M.S. with a nonverbal learning disability. The parents
provided Dr. Dowell’s January 5, 2012 report to the School District and requested
that the School District conduct a reevaluation of M.S. The School District agreed
to a reevaluation, but it rejected the parents’ request for an IEP meeting in February
of 2012. The School District conducted a reevaluation of M.S., and it issued a
reevaluation report dated March 23, 2012. The parents disagreed with the
reevaluation report and requested an independent educational evaluation at public
expense.
After the parents requested an independent educational evaluation at public
expense, the School District filed an administrative due process complaint claiming
that an independent educational evaluation was not necessary because, during the
past 12 months, it had evaluated and reevaluated M.S. and it was providing multiple
supports for M.S. The parents also later filed an administrative due process
complaint claiming that the School District denied M.S. a free appropriate public
education (FAPE) and discriminated against him during the 2011-2012 school year.
They sought compensatory education for M.S.
Both administrative complaints were decided by the same Hearing Officer,
who conducted a hearing as to each complaint. By a decision dated August 20,
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2012, the Hearing Officer found that the School District’s reevaluation of M.S. was
appropriate, and, thus, the School District was not required to pay for an independent
educational evaluation. By a decision dated August 25, 2015, the Hearing Officer
found that near the end of the 2011-2012 school year the School District denied M.S.
a FAPE by denying M.S.’s mother a meaningful opportunity to participate in the
educational process. But because the denial of a FAPE was limited to the last
portion of the school year and resulted in M.S. not receiving social work services as
set forth in his IEP, he awarded only four hours of compensatory education to make
up for the lost social work services.
On November 18, 2012, the parents began this action—Stepp v. Midd-West
School District, 4:12-CV-2290 (M.D.Pa.)—by filing a complaint appealing the
August 20, 2012 decision of the Hearing Officer finding that M.S. was not eligible
for an independent educational evaluation paid for by the School District. A few
days later, the parents began another action—Stepp v. Mid-West School District,
4:12-CV-02348 (M.D.Pa.)—appealing the August 25, 2012 decision of the Hearing
Officer finding that M.S. is entitled to only four hours of compensatory education
for the 2011-2012 school year. After the School District filed an answer in each
case, Judge Brann consolidated the cases under docket number 4:12-CV-2290. The

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parties then consented to proceed before a magistrate judge pursuant to 28 U.S.C.
§ 636(c), and the case was referred to the undersigned.
The parties filed motions for judgment on the administrative record, but later,
with the consent of the parties, we referred the case to Chief Magistrate Judge
Carlson for a settlement conference. After Judge Carlson reported that the parties
settled this case, we issued an order dismissing the case without costs and without
prejudice to the right of either party, upon good cause shown, to reinstate the action
within 60 days if the settlement is not consummated. Later, the parties informed the
court that the settlement was not consummated, and after a telephone conference
with counsel, we reopened the case and set a deadline for the parties to file new
motions for judgment on the administrative record. The School District then filed a
motion for judgment on the administrative record and/or summary judgment and the
parents filed a motion for judgment on the administrative record. Those motions
have been fully briefed. For the reasons set forth below, we will grant the School
District’s motion and deny the parents’ motion.

III. OVERVIEW OF IDEA FRAMEWORK AND STANDARD OF REVIEW.
Congress enacted the IDEA to inter alia “ensure that all children with
disabilities have available to them a free appropriate public education that
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emphasizes special education and related services designed to meet their unique
needs and prepare them for further education, employment, and independent living.”
20 U.S.C. § 1400(d)(1)(A). “States receiving federal funding for assistance in the
education of children with disabilities under the IDEA are responsible for providing
a FAPE to any students who are identified as learning disabled until they reach 21
years of age.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 267 (3d Cir. 2014).
The IDEA defines a FAPE as:
special education and related services that--(A) have been
provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the State
educational agency; (C) include an appropriate preschool,
elementary school, or secondary school education in the State
involved; and (D) are provided in conformity with the
individualized education program required under section
1414(d) of this title.
20 U.S.C. § 1401(9). “Special education” is “specially designed instruction, at no
cost to parents, to meet the unique needs of a child with a disability.” 20 U.S.C.A.
§ 1401(29). In addition to the FAPE requirement, the IDEA provides that states
must establish procedures that assure that, to the maximum extent appropriate,
children with disabilities are educated with children who are not disabled. 20 U.S.C.
§ 1412(a)(5).
The IDEA establishes a collaborative process between parents and schools.
Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012). A school district must
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collaborate with the student’s parents to design an IEP for the student, and the IEP is
the primary vehicle for providing students with the required FAPE. Id.; S.H. v.
State-Operated School of Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir.
2003). “The IEP consists of a detailed written statement arrived at by a
multi-disciplinary team summarizing the child’s abilities, outlining the goals for the
child’s education and specifying the services the child will receive.” Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP
must provide the student with a “basic floor of opportunity,” but it is not required to
provide an “optimal level of services.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553,
557 (3d Cir. 2010)(quoting Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 590
(3d Cir. 2000) and Carlisle Area Sch. v. Scott P. By & Through Bess P., 62 F.3d 520,
534 (3d Cir. 1995)).
The IDEA imposes numerous procedural safeguards to ensure proper
development of the IEP and to protect the rights of parents to challenge the IEP. Bd.
of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 205-07
(1982). While a school district must comply with the IDEA’s procedural
requirements, “compliance is not a goal in itself; rather, compliance with such
procedural requirements is important because of the ‘requirements’ impact on
students’ and parents’ substantive rights.’” Ridley, 680 F.3d at 274 (quoting D.S.,
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602 F.3d at 565). Thus, “[a] procedural violation is actionable under the IDEA only
if it results in a loss of educational opportunity for the student, seriously deprives
parents of their participation rights, or causes a deprivation of educational benefits.”
D.S, 602 F.3d at 565.
A parent that thinks that an IEP is inappropriate may seek an administrative
due process hearing. D.S., 602 F.3d at 557. While most requests for due process
hearings are made by parents, in certain situations, a school district may also seek an
administrative due process hearing. Schaffer v. Weast, 546 U.S. 49, 53 (2005). At
the administrative level, the burden of proof is on the party seeking relief. Id. at 62.
“A party to the due process hearing aggrieved by its outcome has the right to bring a
civil action challenging the decision in any state court of competent jurisdiction or in
a federal district court, without regard to the amount in controversy.” D.S., 602 F.3d
at 558 (citing 20 U.S.C. § 1415(i)(2)). At the district-court level, the burden of
proof is on the party challenging the administrative decision. Ridley, 680 F.3d at
270.
In actions brought under the IDEA, “the court—(i) shall receive the records of
the administrative proceedings; (ii) shall hear additional evidence at the request of a
party; and (iii) basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). A
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district court may exclude additional evidence for a particular reason such as when it
is cumulative or is an improper embellishment of testimony previously given at the
administrative hearing. See Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d
Cir. 1994). “While a district court appropriately may exclude additional evidence,
it must exercise particularized discretion in its rulings so that it will consider
evidence relevant, non-cumulative and useful in determining whether Congress’
goal has been reached for the child involved.” Susan N. v. Wilson School Dist., 70
F.3d 751, 760 (3d Cir. 1995).
The standard a court uses under the IDEA to review a Hearing Officer’s
decision is unique. The court applies a modified de novo standard of review. S.H.,
336 F.3d at 270. In reviewing the decision of a Hearing Officer under the IDEA,
the district court must make its own findings by a preponderance of the evidence.
Shore Regional High School Bd. of Educ. V. P.S., 381 F.3d 194, 199 (3d Cir. 2004).
But, in order to prevent district courts from imposing their own views of preferable
educational methods on the states, the court must give “due weight” to the
administrative proceedings. Rowley, 458 U.S. at 205-06. “Under this standard,
‘[f]actual findings from the administrative proceedings are to be considered prima
facie correct,’ and ‘[i]f a reviewing court fails to adhere to them, it is obliged to
explain why.’” Shore Regional, 381 F.3d at 199 (quoting S.H., 336 F.3d at 271).
9

The court must accept credibility determinations made by the state agency unless the
non-testimonial, extrinsic evidence in the record would justify a contrary
conclusion. Id. “In this context the word “justify” demands essentially the same
standard of review given to a trial court’s findings of fact by a federal appellate
court.” Id. An appellate court reviews the district court’s factual findings for clear
error. Id. A finding of fact is clearly erroneous when, after reviewing the evidence,
the court is left with a definite and firm conviction that a mistake has been
committed. Id. Where the district court hears additional evidence, however, it is
“‘free to accept or reject the agency findings depending on whether those findings
are supported by the new, expanded record and whether they are consistent with the
requirements of the Act.’” S.H., 336 F.3d at 270 (quoting Oberti v. Bd. of Educ., 995
F.2d, 1204, 1220 (3d Cir. 1993)). The hearing officer’s legal conclusions are
subject to plenary review. A.W. ex rel. H.W. v. Middletown Area Sch. Dist., No.
1:13-CV-2379, 2015 WL 390864, at *8 (M.D. Pa. Jan. 28, 2015).

IV. Independent Educational Evaluation.
The parents challenge the August 20, 2012 decision of the Hearing Officer
finding that M.S. was not entitled to an independent educational evaluation paid for
by the School District.
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An independent education evaluation is “an evaluation conducted by a
qualified examiner who is not employed by the public agency responsible for the
education of the child in question.” 34 C.F.R. § 300.502(a)(3)(i). If a parent
disagrees with an evaluation by the public agency, the parent has a right to an
independent educational evaluation, and unless the public agency files a due process
complaint and establishes that its evaluation was appropriate; the public agency
must pay for the independent educational evaluation. Id. at §300.502(b). But if it is
determined “that the agency’s evaluation is appropriate, the parent still has the right
to an independent educational evaluation, but not at public expense.” Id. at
§300.502(b)(3).
“The school district must conduct an evaluation of the student’s needs,
assessing all areas of suspected disability, before providing special education and
related services to the child.” P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist.,
585 F.3d 727, 730 (3d Cir. 2009). The IDEA imposes a number of requirements for
evaluations and reevaluations by a public agency. In conducting an evaluation, the
agency must: “use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information;” “not use any single measure
or assessment as the sole criterion for determining” an appropriate educational
program; and “use technically sound instruments that may assess the relative
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contribution of cognitive and behavioral factors, in addition to physical or
developmental factors.” 20 U.S.C. § 1414(b)(2)(A)-(C). In addition, the agency
must, among other things, ensure that assessments are conducted by trained and
knowledgeable personnel; that the child is assessed in all areas of suspected
disability; and that “assessment tools and strategies that provide relevant
information that directly assists persons in determining the educational needs of the
child are provided.” Id. at § 1414(b)(3). The IEP team and other appropriate
qualified professionals must also review existing data on the child and identify if any
additional data is needed to determine: whether the child has a disability, the
“present levels of academic achievement and related developmental needs of the
child,” whether the child needs special education and related services, and whether
additions or modifications to the special education and related services are needed to
enable the child to meet the goals set forth in the child’s IEP and to enable the child
to appropriately participate in the general education curriculum. Id. at § 1414(c).

A. The Administrative Record and the Hearing Officer’s Findings and
Conclusions.
The Hearing Officer held a hearing on the School District’s administrative
due process complaint. Four witnesses testified at the hearing: (1) Tara Pierce, the
School District’s school psychologist, who testified about the School District’s
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initial evaluation of M.S., about the reevaluation of M.S. in March of 2012, about
Dr. Dowell’s report and his diagnosis of a nonverbal learning disability, and about
how the School District was already implementing many of the recommendations of
Dr. Dowell; (2) Dr. David Fassett, the School District’s Supervisor of Special
Education, who testified about the number of times that M.S. had been evaluated in
the past year, about his opinion that there was no need for another evaluation, and
about his decision to limit M.S.’s mother’s communications with the IEP team;
(3) Deanna Stepp, M.S.’s mother, who testified about M.S.’s problems in the
2011-2012 school year, about Dr. Dowell’s evaluation, about the limit on her
communication with the IEP team, about her request for an independent education
evaluation and her reasons for that request, and about the independent educational
evaluation of M.S. by Alan Babcock in May of 2012; and (4) Alan Babcock,3 the
private school psychologist who performed an independent educational evaluation
on M.S., and who testified about his evaluation and testing of M.S. and about the
School District’s shortcomings in their testing and recommendations as to M.S.
The parties also entered numerous documents into evidence at the hearing.

3 Although Babcock identified himself as Charles Alan Babcock at the

administrative hearing, he used Alan Babcock on his report and his curriculum vitae.
Thus, we refer to him as Alan Babcock.
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By a decision dated August 20, 2012, the Hearing Officer determined that
M.S. was not eligible for an independent educational evaluation paid for by the
School District because the March 2012 reevaluation by the School District was
appropriate.

1. The Hearing Officer’s Findings of Fact.
Based on the testimony at the hearing, the Hearing Officer found the
following facts. The School District’s initial evaluation of M.S. in May of 2011
“was a wide ranging evaluation the considered both behavior and academic skills.”
Doc. 3, Exhibit 11, at ¶17. The School District considered input by M.S.’s mother,
who was concerned about M.S.’s lack of focus and his poor math skills, as well as
observations of M.S. by the school counselor, the school psychologist, a school
psychologist intern, and M.S.’s third-grade teacher. Id. The School District also
considered M.S.’s grades and school assessments. Id. The school psychologist
administered various tests and assessments, which revealed that M.S. had a
full-scale IQ of 90 (within the average range) and that while some of his math scores
on an academic achievement test were low, M.S. performed better on later math
assessments. Id. The school psychologist also interviewed M.S. Id. M.S.’s
teacher completed the Adjustment Scales for Children and Adolescents and the
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Scale for Assessing Emotional Disturbance. Id. Both M.S.’s teacher and his mother
rated him using the Behavior Assessment System for Children (BASC), and M.S.’s
adaptive behaviors were within the average range. Id. M.S.’s teacher emphasized
to the school psychologist that M.S. had problems focusing, but he responded well
when she tried adaptations in the classroom to help him focus. Id.
The October 11, 2011 IEP placed M.S. in the regular education classroom for
93% of the school day for fourth grade. Id. at ¶18. The IEP provided for specially
designed instruction and goals to help M.S. with his focus and provided additional
support during his math class. Id. Also, M.S. spent the first 15 minutes and last 15
minutes of his school day in the emotional support classroom. Id. The learning
support instructional assistant was available to help M.S. during his math class. Id.
The IEP also included the related service of counseling with the school social worker
for 30-minute sessions, once every cycle. Id. The IEP further provided that a
behavior support plan was to be adopted later, and it designated Dr. Fassett as the
single point of contact for M.S.’s mother to express her concerns about the IEP. Id.
The School District conducted a functional behavioral assessment of M.S. on
December 15, 2011, and based on that assessment, it developed a positive behavior
support plan designed to address M.S.’s social and behavioral issues. Id. at ¶19.

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M.S.’s parents obtained a neuropsychological assessment of M.S. from Dr.
Dowell. Id. at ¶20. Dr. Dowell conducted his assessment of M.S. on December 14,
2011 and January 5, 2012. Id. He concluded that M.S. had a nonverbal learning
disorder and an adjustment reaction with mixed disturbance of emotions and
conduct. Id. Dr. Dowell noted that the family history was remarkable for
significant problems including aggression, depression, anxiety or adjustment
problems, panic disorder, and arrests/incarceration. Id. Some of the test scores
obtained by Dr. Dowell were invalid, and he made no specific academic
recommendations because he did not do any academic testing as part of his
assessment of M.S. Id. Dr. Dowell recommended a follow-up evaluation and
development of an intervention plan by a specific school psychologist—Alan
Babcock. Id. Dr. Dowell’s report contains other recommendations based upon
general characteristics of children with nonverbal learning disabilities. Id. M.S.’s
mother provided Dr. Dowell’s report to the School District’s school psychologist
and special education director, but she did not provide it to the other IEP team
members because she felt that the report was sensitive and she did not want other
staff to see it. Id. at ¶21.
As a result of M.S.’s mother providing Dr. Dowell’s report to certain
members of the IEP team, the school district conducted a reevaluation of M.S. Id. at
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¶22. The School District’s school psychologist—Tara Pierce—conducted a
records review of the School District’s previous assessments, which were less than a
year old, and she concluded that no new data was necessary. Id. at ¶23. She did,
however, obtain updated parent and teacher input and she reviewed the functional
behavioral assessment and the positive behavior support plan, which the School
District had developed with the assistance of the intermediate unit. Id. Pierce also
considered classroom-based assessments and M.S.’s current grades as well as
observations made by M.S.’s regular education classroom teacher, his learning
support teacher, his emotional support teacher, and the school social worker. Id.
M.S.’s teachers and providers all felt that he was making progress and that his
current specially designed instruction and IEP as well as the positive behavior
support plan were adequately meeting M.S.’s needs academically, behaviorally, and
socially. Id. The School District also completed an addendum to the reevaluation
report concluding that M.S. did not have a specific learning disability. Id.
As part of the reevaluation, Pierce summarized Dr. Dowell’s report and
concluded that while M.S. had some characteristics of a nonverbal learning
disability, he did not have other characteristics. Id. at ¶24. One characteristic of a
nonverbal learning disability that M.S. did not demonstrate was problems with
visual perception. Id. M.S. received average to above average scores in interpreting
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charts, tables, and graphs when Pierce performed, in connection with the initial
evaluation, additional math assessments on him. Id. M.S. did not have problems
with visual perceptual issues. Id. Pierce noted that the School District had already
implemented in M.S.’s educational program most of the recommendations made by
Dr. Dowell. Id. She concluded that M.S. was progressing within the regular
education environment with the supports and services in his IEP and that his needs
were being addressed by his work with the social worker and the emotional support
teacher as well has by his positive behavior support plan. Id. Pierce encouraged the
IEP team to focus on M.S.’s needs rather than his diagnosis. Id
On March 28, 2012, the IEP team met to discuss the School District’s
reevaluation report. Id. at ¶25. At that meeting, M.S.’s mother and her attorney
expressed concerns that based on Dr. Dowell’s report, M.S.’s disability eligibility
category needed to be changed from other health impairment to specific learning
disability. Id. Also, at that meeting, Tara Pierce expressed concerns about Dr.
Dowell’s evaluation. Id.
On April 19, 2012, M.S.’s parents sent a letter to Dr. Fassett requesting an
independent educational evaluation at public expense, and in that letter, they
described their concerns that the disability eligibility category on M.S.’s IEP was
incorrect and should be changed to specific learning disability based on the
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diagnosis made by Dr. Dowell. Id. at ¶26. Noting that, in the third marking period,
M.S.’s grades dropped from C to D in spelling and from B to D in social studies, the
parents expressed their concern that M.S. continued to struggle academically. Id.
They requested an independent education evaluation by Alan Babcock, the same
school psychologist named in Dr. Dowell’s report. Id.
M.S.’s mother felt that the School District’s reevaluation was not complete.
Id. at ¶27. She wanted the School District to incorporate into M.S.’s IEP the
diagnosis and recommendations made by Dr. Dowell, and, in particular, she wanted
M.S.’s disability eligibility category changed from “other health impaired” to
“specific learning disability.” Id.
Dr. Fassett sent a letter to M.S.’s parents declining to provide an independent
educational evaluation at public expense. Id. at ¶28. Concerning the category of
disability, Dr. Fassett stated that “identification does not drive placement in his
district and . . . [M.S.] is getting all the learning support services he would get if he
was identified [as] having a specific learning disability.” Id. Dr. Fassett also noted
that M.S. had been tested a number of times within the last year. Id. The School
District refused the request for an independent educational evaluation at public
expense because it concluded that it was not necessary. Id. Prior to sending the

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rejection letter, Dr. Fassett conferred with Tara Pierce and other members of M.S’s
IEP team. Id.
The parents had Alan Babcock conduct an independent educational
evaluation of M.S. in May of 2012. Id. at ¶30. In an unfinished draft report,4
Babcock concluded that M.S.’s disability category should be changed. Id.
Babcock’s reason for that conclusion was that it would help M.S.’s mother, who was
an anxious person, feel included. Id. Babcock also concluded that M.S. did not
have ADHD. Id. Babcock’s report contains numerous recommendations, many of
which were already in place for M.S. in the educational program developed for him
by the School District. Id.
Toward the end of the 2011-2012 school year, M.S. had a number of behavior
incidents, many of which had a sexual component. Id. at ¶31. At the end of April of
2012, M.S. was disciplined for telling another student that he wanted to have sex and
to make babies with her. Id. On two occasions in early May, M.S. engaged in
inappropriate sex talk. Id. On another occasion, he told a student that he wanted to
have kids with her and to “go at it” in bed, and he engaged in name calling. Id. In

A draft report by Babcock was introduced into evidence in the administrative
hearing because the parents did not provide Babcock’s final report sufficiently in
advance of the administrative due process hearing to comply with administrative
rules. See Doc. 31-2 at 4.
4

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early May of 2012, two girls accused him of sexual harassment saying that he made
lewd and inappropriate statements to them. Id. A few days later, he used lewd and
inappropriate language with a young girl. Id. In mid-May, he was accused of
sexual harassment for making lewd and inappropriate statements to two students and
saying that he would kill their parents so that they would have to watch them die. Id.
School District personnel twice reported M.S.’s parents to Children and
Youth Services as a result of M.S.’s inappropriate sexual conduct. Id. Near the end
of April, an investigator with Child and Youth Services interviewed M.S. about
doing inappropriate things with his hands and visiting inappropriate websites. Id.
M.S. admitted those behaviors. Id. The complaint based on those incidents was
later closed without adverse action. Id. Near the end of May, the investigator
investigated another incident, which M.S. denied. Id.
Beginning when he was in second grade, M.S.’s mother arranged for him to
receive private counseling. Id. at ¶32. That private counseling continued once a
week through the date of the due process hearing. Id. M.S.’s mother did not share
information about the private counseling with the School District. Id.
M.S.’s report card for the 2011-2012 school year contained the following
final grades for his work in his regular education classroom: C in reading; D in

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writing/grammar; C in mathematics; D in spelling; C in social studies; B in science;
A in art, A in physical education, and A in music. Id. at ¶33.
At the time the parents requested an independent educational evaluation, M.S.
was making meaningful educational progress and his specially designed instruction
and IEP as well as his positive behavior support plan were adequately meeting his
needs academically, behaviorally, and socially. Id. at ¶34.
From October of 20011 through the end of the 2011-2012 school year, Dr.
Fassett required M.S.’s mother to communicate only with him concerning matters
affecting M.S.’s IEP. Id. at ¶35. The School District thought that M.S.’s mother
was making too many demands on district staff and wanted to have one point of
contact so that all information shared would be the same. Id. The School District
did not attempt to meet with M.S.’s mother to attempt to resolve the issue or limit the
number of communications before announcing at one of the IEP team meetings that
Dr. Fassett would be the sole point of contact for IEP purposes. Id.

2. The Hearing Officer’s Conclusions of Law.
The Hearing Officer concluded that the School District met its burden of
establishing that its revaluation of M.S. in March of 2012 was appropriate. In so
concluding, he found the testimony of Tara Pierce regarding how she conducted the
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reevaluation credible and he noted that her testimony was corroborated by the
documentary evidence. The Hearing Officer also found that the School District’s
reevaluation report thoroughly documented the comprehensive reevaluation process
described by Pierce. Further, the Hearing Officer concluded that although the
School District was not required to accept Dr. Dowell’s diagnosis, it did consider Dr.
Dowell’s report:
. . . [T]he law does not require that the school district make
changes to the student’s IEP in order to reflect the diagnosis
made by the neuropsychologist and endorsed by the parents’
expert school psychologist, that is that the student had a
nonverbal learning disability. Under IDEA, a medical
practitioner, or other expert, may not simply prescribe special
education or components of an IEP; rather, the IEP team must
consider all relevant factors. A school district is required to
consider any evaluation or other input provided by a parent, and
the record evidence in this case reveals that the school district did
consider the opinion of the neuropsychologist that the student
had a nonverbal disability, but rejected his conclusion based
upon the fact that he did not do any academic testing and that his
recommendations were very general, and that it was based upon
the disability category rather than upon the individual needs of
the student, and that the student did not have the
visual-perception problems suggested by the outside evaluator.
Accordingly, it is concluded that the school district duly
considered the input from the parents, including the report of the
neuropsychologist, during the reevaluation process.
Doc. 31 at 51 (citations omitted).
Although M.S.’s mother testified that she thought the School District’s
reevaluation was inappropriate, the Hearing Officer found the testimony of the
23

witnesses for the School District more credible and persuasive than the parent’s
witnesses on the issue of the appropriateness of the reevaluation. The Hearing
Officer also concluded that the parent’s focus on the category of disability was
misplaced:
. . . IDEA does not concern itself with labels, but whether a
student with a disability is receiving a free and appropriate
public education; a disabled child’s IEP must be tailored to the
unique needs of that particular child. Regardless of the category
of eligibility, each child with a disability is entitled to
individually designed special education and related services.
The child’s identified needs, not the child’s disability category
determines the services that must be provided to the child.
Accordingly, the parent’s focus on the category of
disability, and more particularly upon the nonverbal learning
disability diagnosed by the neuropsychologist, is misplaced.
All parties agree that the student is eligible for special education
and related services under IDEA. No further analysis of
category of disability is necessary or relevant.
Doc. 31 at 48-49 (citations omitted).
The Hearing Officer further found that Alan Babcock’s reliance on the
category of disability undermined his credibility, and he rejected Babcock’s
conclusion that the category of disability should be changed to make M.S.’s mother
feel included:
The parents cite no authority in their post-hearing brief for
the proposition that a school district should change the category
of disability in order to make a parent feel more included in the
process. IDEA does not require such an action by a school
district. Indeed, there is a danger if a school district were to
24

pursue such an action that it might cause a parent, particularly if
a parent were relatively unsophisticated, to believe that services
are determined based upon eligibility category. Such
stereotyping of children with disabilities is the opposite of the
consequence that was intended by Congress in passing IDEA.
Students with disabilities are individuals.
Id. at 50 (emphasis in original). The Hearing Officer also determined that the
parents’ argument for changing the category of disability “exalts form over
substance” and that focusing on the category disability “deflects attention from the
fact that the school district had already implemented many of the recommendations”
made by Dr. Dowell. Id.

B. Discussion.
After considering the administrative record, we agree with the Hearing
Officer’s findings of facts. Based on those findings, we conclude, as did the
Hearing Officer, that the parents are not entitled to an independent educational
evaluation at public expense.
Although not clearly briefed,5 the parents make a number of arguments for
why, contrary to the Hearing Officer’s findings, the School District’s reevaluation
was not appropriate. The parents’ overarching contention is that the School District
The argument sections of the parents’ briefs are, to a great extent, a mishmash of
legal standards, statements of what happened, and summaries of witness testimony.
In many instances, the parents do not clearly set forth their arguments.
5

25

issued its reevaluation report without fully considering Dr. Dowell’s assessment and
without assessing M.S. for a specific learning disability using current data. As did
the Hearing Officer, we reject that contention. Tare Pierce’s testimony shows that
the School District considered Dr. Dowell’s assessment.
The parents assert that the School District attached the learning disability
analysis from the initial evaluation report as an addendum to the reevaluation report,
and, according to them, this shows that the School District did not fully consider Dr.
Dowell’s assessment of a nonverbal learning disability. The last five pages (titled
“Determination of Specific Learning Disability”) of the reevaluation report were
attached to the reevaluation report as an addendum. See Doc. 31-4 at 51-55. While
this section of the reevaluation report does incorporate data from the School
District’s initial evaluation of M.S., it also includes updated information as well. Id.
Moreover, the initial evaluation was completed on May 18, 2011, only 10 months
before the reevaluation report, and given this close temporal proximity, the fact that
the School District included information from its initial evaluation does not
undermine the Hearing Officer’s finding that the School District considered Dr.
Dowell’s assessment.

26

The parents also point to an email from Dr. Fassett as purportedly showing
that the School District did not fully consider Dr. Dowell’s report. In that email,
which attached the addendum to the reevaluation report, Dr. Fassett stated:
Considering Dr. Dowell’s report: Because the entire team has not
been privy to Dr. Dowell’s report, only a summary at your
request, and Dr. Dowell’s report is missing some testing and
scores we would need to make an LD determination, we see no
need to change [M.S.]’s identification at this time. It would
change nothing in the services/support he is already provided
with.
Doc. 31-6 at 48. Contrary to the parents’ argument, this email does not show that
the School District did not consider Dr. Dowell’s assessment. Rather, it shows that
the School District did not believe that it was necessary to change M.S’s category of
disability.
The parents also contend that the School District’s school psychologist, Tara
Pierce, informed them at the March 28, 2012 reevaluation meeting that she had
several questions about Dr. Dowell’s report and that without answers to those
questions she could not fully consider his findings. In support of that contention,
they point to the letter they sent to the School District requesting an independent
educational evaluation. See Doc. 31-4 at 56-57. That letter, however, does not
undermine Pierce’s testimony regarding the scope of the reevaluation or her
testimony that she did, in fact, consider Dr. Dowell’s assessment.
27

The parents assert that the School District failed to determine M.S.’s
educational needs. In this regard they assert that although the School District
identified weaknesses in M.S.’s processing speed, working memory, and perceptual
reasoning, it failed to explain how those deficits related to his academic performance
and needs. They also assert that the School District failed to assess M.S.’s visual
motor skills, which are related his perceptual reasoning. But, in its initial
evaluation, the School District did consider M.S.’s processing speed, working
memory, and perceptual reasoning and how those things affected him:
[M.S.]’s unique set of thinking and reasoning abilities
make his overall intellectual functioning difficult to summarize
by a single score on the Wechsler Intelligence Scale for
Children-Fourth Edition (WISC-IV). His verbal reasoning
abilities are much better developed than his nonverbal reasoning
abilities. Making sense of complex verbal information and
using verbal abilities to solve novel problems are a strength for
[M.S.]. Processing complex visual information by forming
spatial images of part-whole relationships and/or by
manipulating the parts to solve novel problems without using
words is a weakness.
[M.S.]’s verbal reasoning abilities as measured by the
Verbal Comprehension Index are in the High Average range and
above those of approximately 75% of his peers (VCI = 110; 90%
confidence interval = 104-115). The Verbal Comprehension
Index is designed to measure verbal reasoning and concept
formation. [M.S.] performed comparably on the verbal subtests
contributing to the VCI, suggesting that these verbal cognitive
abilities are similarly developed.
[M.S.]’s nonverbal reasoning abilities as measured by the
Perceptual Reasoning Index are in the Low Average range and
28

above those of only 14% of his peers (PRI = 84; 90 % confidence
interval = 79-92). The Perceptual Reasoning Index is designed
to measure fluid reasoning in the perceptual domain with tasks
that primarily assess nonverbal fluid reasoning and perceptual
organization abilities. [M.S.] performed comparably on
perceptual reasoning subtests contributing to the PRI, suggesting
that his visual-spatial reasoning and perceptual-organizational
skills are similarly developed. [M.S.] performed much better
on tasks that require abstract concept formation and categorical
reasoning that must be verbally expressed (Similarities = 12),
than tasks requiring abstract categorical reasoning without
verbal expression required (Picture Concepts = 8).
[M.S.]’s ability to sustain attention, concentrate, and exert
mental control is in the Average range. He performed better
than approximately 27% of his age-mates in this area (Working
Memory Index = 91; 90% confidence interval 85-98).
[M.S.]’s abilities to sustain attention, concentrate, and
exert mental control are a weakness relative to his verbal
reasoning abilities. A relative weakness in mental control may
make the processing of complex information more
time-consuming for [M.S.], draining his mental energies more
quickly as compared to other children his age, and perhaps result
in more frequent errors on a variety of learning tasks.
Although clearly weaker than his verbal reasoning
abilities, [M.S.]’s ability to exert mental control is still within the
Average range and better than that of approximately 27% of his
age-mates (Working Memory Index = 91; 90% confidence
interval 85-98).
[M.S.]’s ability in processing simple or routine visual
material without making errors is in the Low Average range
when compared to his peers. He performed better than
approximately 9% of his peers on the processing speed tasks
(Processing Speed Index = 80; 90% confidence interval 75-90).
Processing visual material quickly is an ability that [M.S.]
performs poorly as compared to his verbal reasoning ability.
Processing speed is an indication of the rapidity with which
[M.S.] can mentally process simple or routine information
29

without making errors. Because learning often involves a
combination of routine information processing (such as reading)
and complex information processing (such as reasoning), a
weakness in the speed of processing routine information may
make the task of comprehending novel information more
time-consuming and difficult for [M.S.]. Thus, this weakness in
simple visual scanning and tracking may leave him less time and
mental energy for the complex task of understanding new
material.
Doc 31-3 at 7. While the above analysis is from the initial evaluation of M.S. rather
than the reevaluation, the reevaluation report referred to this earlier testing, see doc.
31-4 at 40, and the School District was not required to repeat this information
verbatim from the earlier evaluation, particularly in this case given the temporal
proximity between the initial evaluation and the reevaluation. Rather, as the
Hearing Officer observed (albeit in the context the parents’ argument that the
reevaluation failed to consider M.S.’s social and emotional needs), “[t]he
reevaluation must be evaluated in the context of the entire educational program
offered to the student.” Doc. 31 at 53.
The parents also suggest that the School District did not assess M.S.’s
adaptive behaviors. The Hearing Officer properly considered and rejected that
argument noting that Tara Pierce assessed M.S.’s adaptive behaviors during the
initial evaluation “including administering the BASC assessment, which showed
[M.S.]’s adaptive behaviors to be in the average range.” Doc. 31 at 52. Further, as
30

found by the Hearing Officer, Pierce reviewed “[t]he existing data, including the
BASC test results” during the reevaluation. Id.
The parents also suggest that the positive behavior support plan was
insufficient because it did not set forth sufficiently specific behaviors to replace his
problem behaviors. In addressing the parents’ contention that the School District
failed to sufficiently identify M.S.’s social and emotional needs, the Hearing Officer
reasoned:
The record evidence, however, reveals that the school
district had conducted a thorough functional behavior
assessment of the student and that from that it developed a
positive behavior support plan to address the student’s social and
emotional needs. In addition, the student’s IEP recognized that
the student had certain social-emotional needs and those needs
were addressed in the IEP, including support from the emotional
support teacher as well as the related service of counseling with
the school social worker. It appears that the parents are arguing
that the appropriateness of the reevaluation should be determined
in isolation. There is no requirement that a school district repeat
verbatim every component of a student’s IEP or behavior plan in
detail in a report of a reevaluation. The reevaluation must be
evaluated in the context of the entire educational program
offered to the student. The school district school psychologist
provided credible and persuasive testimony that all of the
student[’]s teachers and service providers felt that the student
was making progress and that the student’s current specially
designed instruction and IEP as well as his positive behavior
support plan were adequately meeting his needs academically,
behaviorally and socially. This testimony is corroborated by
the report of the reevaluation. Clearly the school district had
31

appropriately identified and addressed the student’s
social-emotional needs.
Doc. 31 at 52-53. Although M.S.’s behavior began to deteriorate toward the end of
the 2011-2012 school year, the evidence was that the positive behavior support plan
was working reasonably well at the time the reevaluation report was completed at
the end of March 2012.
The parents also assert that the Hearing Officer erred in stating that the
parents were seeking a change in M.S.’s category of eligibility. In this regard, the
parents assert that they were focused on obtaining an appropriate evaluation so that
M.S.’s needs could be appropriately identified and the IEP team would have the
information needed to provide M.S. with appropriate aids and services. We
recognize that the parents wanted this and that they were interested in more than just
a pro forma change in the category of eligibility. And we think that the Hearing
Officer recognized that as well. In fact, the Hearing Officer found that in the
parents’ request for an independent educational evaluation, they noted that some of
M.S.’ grades had dropped and that he was struggling academically. Doc. 31 at 38.
He did not deny the request for an independent educational evaluation on the basis
that the parents were merely seeking a change in the category of disability. Rather
he found that School District’s reevaluation was appropriate, that it did consider Dr.
Dowell’s opinion, and that M.S. was making meaningful educational progress. Id. at
32

42 & 46-47, 51. And he specifically addressed the parents’ arguments that the
School District’s reevaluation was not appropriate. Id. at 51-55.
The parents also assert that, on March 1, 2012, the School District denied their
request for an IEP meeting even though a functional behavioral assessment, a
positive behavior support plan, and Dr. Dowell’s evaluation had been completed
since the previous IEP meeting. The reason the School District gave for refusing
the IEP meeting was that it did “not believe that any new ground can or will be
covered until [M.S.]’s latest [reevaluation] is completed.” Doc. 31-4 at 32. The
parents have failed to show that the denial in early March of an IEP meeting had any
effect on the appropriateness of the School District’s reevaluation.
The parents suggest that the school district withheld information from them
and they point to the limit on their communication with Dr. Fassett. But there is no
evidence that that limitation had an effect on the School District’s reevaluation.
The parents assert that Dr. Dowell’s report and Alan Babcock’s draft report
both identify significant diagnostic needs which the School District failed to address
in its reevaluation report. The parents, however, fail to set forth what those needs
were. They also assert that the Hearing Officer stated that many of the
recommendations made by Babcock are already in place, but Babcock’s draft
psychological evaluation has a total of 19 pages of recommendations and the School
33

District’s last IEP was dated October 11, 2011. It is not clear what the parents’
argument is here.
The parents make several additional arguments for why the School District’s
reevaluation was inadequate. They rely, however, on evidence that was not
presented at the administrative hearing with respect to the independent educational
evaluation. For example, the parents contend that the School District relied on
reevaluation input from two special education teachers who were not involved in
any significant degree in providing special education services to M.S. in the regular
classroom. In this regard, they rely on testimony from M.S.’s learning support and
emotional support teachers. But neither of those teachers testified at the due
process hearing in connection with the due process complaint filed by the School
District regarding the independent education evaluation. Rather, those teachers
testified in the separate hearing regarding the parent’s due process complaint about
the purported denial of a FAPE during the 2011-2012 school year and compensatory
education for that purported denial. Thus, we do not consider their testimony in
connection with the appeal of the Hearing Officer’s decision regarding the
independent educational evaluation. In any event, the input from these teachers
was only one part of the information that the School District relied on in its
reevaluation.
34

The parents also contend that the School District withheld from them and
from Tara Pierce 143 pages of daily behavior data, and they point to an exhibit
submitted by the School District in connection with the due process hearing on their
due process complaint. Again, that evidence was not presented in the due process
hearing concerning the independent educational evaluation. Moreover, the parents
fail to explain how withholding that data from them affected the School District’s
reevaluation. And they have not pointed to evidence to support their assertion that
Tara Pierce was not aware of that data. In fact, Pierce testified that she was aware
that the School District was using a behavioral chart and collecting information on
M.S. on a daily basis, and she testified that she reviewed portions of that
documentation in her reevaluation. Doc. 31-2 at 17. Further, she specifically notes
in the reevaluation report itself that M.S. “has a daily behavior chart.” Doc. 31-4 at
45. The parents’ argument in this regard is frivolous.
The Hearing Officer concluded that the School District’s reevaluation “was
appropriate and complied with all legal requirements,” and thus, the parents are not
entitled to an independent educational evaluation at public expense. Id. at 55. After
reviewing the administrative record and considering the arguments of the parties, we
agree.

35

V. Compensatory Education.
In their administrative due process complaint, the parents claimed that the
School District denied M.S. a free appropriate public education and discriminated
against him during the 2011-2012 school year, and they sought compensatory
education for M.S.6 By a decision dated August 25, 2012, the Hearing Officer
found that, near the end of the 2011-2012 school year, the School District denied
M.S. a FAPE by denying his mother a meaningful opportunity to participate in the
educational process. But because the denial of a FAPE was limited to the last
portion of the school year and resulted in M.S. not receiving social work services as
set forth in his IEP, he awarded only four hours of compensatory education to make
up for the lost social work services.
“The core of the IDEA is the collaborative process that it establishes between
parents and schools.” Ridley, 680 F.3d at 269. A school district must collaborate
with the student’s parents to design an IEP for the student, and the IEP is the primary

6 The parents also sought to continue to have M.S. educated in the regular

education classroom for 93% or more of the time during the 2012-2013 school year
as well as to have the School District conduct an “SaS toolkit” within the first 45
days of the 2012-2013 school year. Prior to the administrative hearing, the parties
informed the Hearing Officer that they resolved by mutual agreement all issues
except the issue of compensatory education if a violation of the IDEA is found.

36

vehicle for providing students with the required FAPE. Id.; S.H. 336 F.3d at 264.
“The IEP consists of a detailed written statement arrived at by a multi-disciplinary
team summarizing the child’s abilities, outlining the goals for the child’s education
and specifying the services the child will receive.” Polk, 853 F.2d at 173. The IEP
team, which includes the student’s parents and teachers, reviews “the IEP at least
annually to determine whether the stated goals for the student are being achieved.”
D.S., 602 F.3d at 557. “When appropriate the team will revise the IEP to address,
among other things, lack of progress, necessary changes arising from reevaluation of
the child, and parental input.” Id.
“The Supreme Court has construed the statute’s FAPE mandate to require
‘education specially designed to meet the unique needs of the handicapped child,
supported by such services as are necessary to permit the child ‘to benefit’ from the
instruction.’” T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572, 577 (3d Cir.
2000)(quoting Rowley, 458 U.S. at 188-89). An IEP must offer more than a trivial
or de minimis educational benefit. Id. at 577. “Though the IEP must provide the
student with a ‘basic floor of opportunity,’ it need not necessarily provide ‘the
optimal level of services’ that parents might desire for their child.” D.S., 602 F.3d at
557 (quoting Holmes, 205 F.3d at 590 and Carlisle Area Sch., 62 F.3d at 534).
Thus, the state is not required to maximize the potential of a handicapped child, but
37

it must provide an education sufficient to confer “significant learning” and
“meaningful benefit” to the child. Id. at 556. The educational benefit of the IEP
must be gauged in relation to the child’s potential. Ridgewood Bd. of Educ. v. N.E.,
172 F.3d 238, 247 (3d Cir. 1999).
If a student has been denied a FAPE, the court may award compensatory
education to account for the period of that denial. Mary T. v. School Dist. of
Philadelphia, 575 F.3d 235, 249 (3d Cir. 2009). Compensatory education is a
judicially created, “equitable remedy designed to replace the educational services a
disabled child should have received pursuant to a FAPE.” Jana K. ex rel. Tim K. v.
Annville-Cleona Sch. Dist., No. 13-CV-0115, 2014 WL 4092389, at *17 (M.D. Pa.
Aug. 18, 2014). It “serves to ‘replace[ ] educational services the child should have
received in the first place’ and . . . such awards ‘should aim to place disabled
children in the same position they would have occupied but for the school district’s
violations of IDEA.’” Ferren C. v. Sch. Dist. of Philadelphia, 612 F.3d 712, 717-18
(3d Cir. 2010) (quoting Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir.
2005)).
The parents challenge the Hearing Officer’s decision that M.S. is entitled to
only four hours of compensatory education for the 2011-2012 school year. They,
instead, seek a total of 900 hours of compensatory education.
38

A. The Administrative Record and the Hearing Officer’s Findings
and Conclusions.
The Hearing Officer held a hearing on the parents’ administrative due process
complaint. Six witnesses testified at the hearing: (1) Jessica Shuman, a behavior
support consultant with the Central Susquehanna Intermediate Unit, who testified
about her observations of M.S. and about the development and implementation of
the functional behavioral assessment and positive behavior support plan;
(2) Shannon Woodling, M.S.’s fourth-grade teacher, who testified about what M.S.
was like as a student, about his behavior, and about her implementation of his IEP;
(3) Alan Babcock, the private school psychologist who performed an independent
educational evaluation on M.S., and who testified about his evaluation and testing of
M.S. and about the School District’s shortcomings in their testing and
recommendations as to M.S.; (4) Deanna Stepp, M.S.’s mother, who testified about
M.S.’s problems in the 2011-2012 school year, about Dr. Dowell’s evaluation, about
her interaction with School-District staff, and about the limitation on her
communications with staff and how that limitation made her feel; (5) Kathleen
Troutman, a learning support teacher, who testified about the creation and
implementation of M.S.’s IEP, about the assistance M.S. received in Math from an
instructional assistant, and about Mrs. Stepp’s communications with her; and

39

(6) Judy Grose, a special education teacher, who testified about her role in providing
emotional support to M.S. and about her communications with Mrs. Stepp.

1. The Hearing Officer’s Findings of Fact.
The October 11, 2011 IEP placed M.S. in the regular education classroom for
93% of the school day. Doc. 29-1 at ¶19. It provided for specially designed
instruction and goals to address M.S.’s needs and numerous modifications and
accommodations to help support him. Id. The IEP also provided for
emotional/social work support for 30 minutes every six-day cycle. Id. It also
included consultations between the regular education teacher and special education
teacher, as well as support from emotional support staff. Id. Further, it specified
that Dr. Fassett would be the “single point of contact” for M.S.’s mother to contact
when she had concerns regarding the IEP. Id.
Ms. Woodling, M.S.’s regular education teacher, was primarily responsible
for providing the specially designed instruction pursuant to the IEP. Id. at ¶20.
M.S. was often disrespectful to his assigned aide during math class, and he resisted
her efforts to assist him. Id. at ¶21.
On December 15, 2011, with the assistance of Jessica Shuman, a behavior
consultant from the intermediate unit, the School District developed a functional
40

behavioral assessment of M.S. Id. at ¶22. The functional behavioral assessment
identified the functions of M.S.’ inappropriate behaviors as avoiding, escaping, or
postponing assigned tasks and gaining adult attention in the form of redirection and
prompting. Id. Also on December 15, 2011, with Shuman’s assistance, the School
District developed a positive behavior support plan to address M.S.’s problem
behaviors. Id. at ¶23. M.S.’s mother expressed concerns about the behavior plan,
and Shuman responded in writing with explanations of the plan and responses to
each concern. Id.
Ms. Grose, the School District’s emotional support teacher, was primarily
responsible for implementing M.S.’s positive behavior support plan. Id. at ¶24.
M.S. reported to Ms. Grose for the first 15 minutes of the school day in order to gear
up for the day and for the last 15 minutes of the school day in order to wind down
and prepare for his homework assignments. Id. During this time, he talked with
Ms. Grose about problems that he might have been encountering. Id.
M.S.’s parents obtained a neuropsychological assessment of M.S. from Dr.
Dowell. Id. at ¶25. Dr. Dowell conducted his assessment of M.S. on December 14,
2011 and January 5, 2012. Id. He concluded in his report that M.S. had a nonverbal
learning disability. Id. Dr. Dowell’s report does not contain academic
recommendations because Dr. Dowell did not conduct any academic testing. Id.
41

Dr. Dowell recommended a follow-up intervention plan by a specific school
psychologist—Alan Babcock. Id. Dr. Dowell’s report also contains other
recommendations based on the needs of students with nonverbal learning disabilities
in general. Id.
At first, M.S.’s mother provided Dr. Dowell’s report to only the School
District’s school psychologist and special education director, but later she provided
it to the IEP team members. Id. at ¶26. As a result, the School District conducted a
reevaluation of M.S. Id. In a reevaluation report dated March 23, 2012, the School
District considered Dr. Dowell’s report, but it did not change M.S.’s category of
disability or adopt the diagnosis of nonverbal learning disability. Id. at ¶27. The
School District noted that, according to Ms. Woodling, M.S. was functioning as an
average student with his fellow classmates in mathematics. Id. M.S.’s social
worker reported that she had a positive working relationship with M.S. and that M.S.
was making progress. Id. She recommended that the current level of social work
services be maintained. Id. The reevaluation report notes that all of M.S.’s teachers
felt that the IEP and positive behavior support plan were adequately meeting M.S.’s
needs academically, behaviorally, and socially. Id.
Alan Babcock conducted a psychological evaluation of M.S. on May 19, 2012
and May 26, 2012. Id. at ¶28. He prepared an initial draft report dated June 20,
42

2012. Id. In that report, he recommended, among other things, that M.S.’s category
of eligibility for special education be changed to specific learning disability as a
result of Dr. Dowell’s diagnosis of nonverbal learning disability. Id. Babcock
changed his initial report to include the specific learning disability recommendations
as a result of conversations with M.S.’s mother and in order to make her feel more
included in the process. Id.
M.S. was an average student. Id. at ¶29. He was making academic progress,
including progress in math, pursuant to the educational plan contained in his IEP. Id.
M.S.’s final grades on his report card for the 2011-2012 school year were: C in
reading; D in writing; C in mathematics; D in spelling; C in social studies; B in
science; A in art, A in physical education, and A in music. Id.
M.S.’s behaviors at school fluctuated. Id. at ¶30. Until the very end of the
2011-2012 school year, with the exception of a flare-up around the Christmas
holidays and one other flare-up, M.S.’s behaviors were fairly well controlled in
accordance with his positive behavior support plan. Id. But M.S.’s inappropriate
behaviors increased significantly near the end of the school year, and many of the
behaviors were of a sexual nature. Id. at ¶31. At the end of April of 2012, he told
two young girls that he wanted to have sex with them. Id. On an unspecified date,
he again made statements about wanting to have sex with a number of girls in book
43

club. Id. In early May, M.S. swore and used lewd language in book club, and he
made an inappropriate, sex-related comment to a boy in math class. Id. On another
occasion, he called another student stupid and mean, and he told a young girl that he
wanted to have kids with her. Id. In mid-May, he made inappropriate sexual
comments about a young girl at recess. Id. Also, he made explicit sexual comments
about a young girl to another boy, and he threatened to kill the girl’s parents if she
told. Id. Near the end of May of 2012, he again made explicit, inappropriate
sexually related comments to other students. Id. at ¶32. On the last day that he
attended school for the 2011-2012 school year, he pulled another boy’s pants down.
Id. at ¶31.
In mid-May, the School District charged M.S. with sexual harassment for
some of these incidents, and he received a three-day out-of-school suspension. Id. at
¶32. As a result of the changes in the nature of M.S.’s behaviors near the end of the
school year, Dr. Fassett and Jessica Shuman considered conducting another
functional behavior analysis to determine whether additional interventions were
necessary. Id. at ¶33.
In October of 2011, Dr. Fassett imposed a restriction upon the
communications that M.S.’s mother was allowed to make concerning M.S.’s IEP. Id.
at ¶34. The restriction prevented M.S.’s mother from talking to any IEP team
44

member other than Dr. Fassett concerning the IEP. Id. Before imposing this
restriction, Dr. Fassett did not discuss with M.S.’s mother whether she had been
abusing her right to participate, nor did he provide her a warning. Id. The
restriction was announced at an IEP team meeting. Id. This was the first time that
M.S.’s mother learned that the School District considered her communications with
other IEP team members to be improper. Id. She felt extremely frustrated as a
result of the restriction; she felt she was not part of the team. Id.
Prior to the due process hearing, M.S.’s mother requested all educational
records concerning M.S. Id. at ¶35. Once she reviewed the emails that were
provided, she found an email in which Dr. Fassett made a joke with another IEP
team member which was a pun concerning her last name that was intended to
ridicule her for being overweight. Id. In another email to Jessica Shuman, Dr.
Fassett asked if he should “spank” M.S.’s mother for sending an email directly to
Shuman. Id. In still another email, Dr. Fassett referred to M.S.’s mother as M.S.’s
“mouthpiece.” Id.
Toward the end of the school year, M.S.’s mother terminated the services that
M.S. was receiving from the School District’s social worker. Id. at ¶36. She did so
in large part because she thought that the social worker was trying to bait M.S. into
using inappropriate internet websites. Id.
45

M.S. received private counseling since the second grade. Id. at ¶38. M.S.’s
parents did not share information about that counseling with school-district staff. Id.
For the last few days of the 2011-2012 school year, M.S. was placed on homebound
instruction because of anxiety issues he was experiencing, and he received
instruction from Ms. Woodling at the library. Id. at ¶37.
M.S.’s IEP was reasonably calculated to confer meaningful educational
benefit. Id. at ¶39. The School District appropriately addressed M.S.’s behavioral
needs until the end of the 2011-2012 school year, but near the end of the school year,
M.S.’s behaviors began to impede his learning. Id. at ¶41. The School District
denied M.S. a FAPE by failing to provide meaningful participation to M.S.’s mother
in his educational process. Id. at ¶40.

2. The Hearing Officer’s Conclusions of Law and Reasons for
Awarding Four Hours of Compensatory Education.
The Hearing Officer concluded that the School District denied M.S. a FAPE
by failing to allow M.S.’s mother to meaningfully participate in his educational
process. He found that four hours of compensatory education in the form of
counseling or similar services was appropriate to remedy the harm caused by that
denial.

46

Characterizing M.S.’s mother as “a handful,” the Hearing Officer stated that
she “engaged in a high volume of communication” with M.S.’s teachers and service
providers. Although the Hearing Officer found that the School District “would
have been well within its right to place a reasonable limit on her communications
with IEP team members,” before doing so it should have first conferred with her,
told her there was a problem, and requested that she limit her communication or, at
least, given her some kind of warning. Because the School District did not do that,
the Hearing Officer determined that it arbitrarily imposed the limitation that Dr.
Fassett would be M.S.’s mother’s sole point of contact for IEP issues.
The Hearing Officer also determined that Dr. Fassett’s emails to other IEP
team members ridiculing M.S.’ mother were inexcusable and the “sort of
mean-spirited and unprofessional behavior [that] stands the collaborative nature of
[the] IDEA on its head.” Doc. 29-1 at 30. He correctly observed that “[t]here is no
place in the system designed by [the] IDEA for one IEP team member to ridicule a
parent to the other team members; the development of an education plan for a child
with a disability is not intended to be a mean and nasty process.” Id.
The Hearing Officer concluded that the arbitrary limit on M.S.’s mother’s
communication with the IEP team, coupled with the ridiculing emails, “had a
chilling effect upon the mother’s participation as a full and equal IEP team
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member.” Doc. 29-1 at 30. While acknowledging that M.S.’s mother actively
participated in IEP team meetings along with both an advocate and an attorney, the
Hearing Officer determined that the limitation “caused serious trust issues between
[M.S.]’s parents and the school district.” Doc. 29-1 at 31.
The Hearing Officer concluded that these trust issues caused M.S.’s mother to
terminate the School District’s social work services for M.S.:
The issues involving trust surfaced dramatically near the
end of the school year when the student’s mother clearly
overreacted to the actions of Respondent’s social worker who
was providing the related service of counseling to the student.
The mother’s cancellation of social work services of the student
as a result of a fear that the social worker was trying to trap the
student into going to an inappropriate website on a computer
might seem almost paranoid in isolation, but in view of the trust
issues directly caused by the actions of Respondent’s special
education director, the mom’s overreaction seems much less
crazy and perhaps almost understandable. Cancellation of the
social worker services by the parent was the direct result of the
trust issues caused by Respondent which impaired the student’s
mother’s meaningful participation in the student’s educational
process.
Doc. 29-1 at 31.
The Hearing Officer concluded that, until near the end of the school year, the
School District did a good job addressing M.S.’ s behaviors. Toward the end of the
school year, however, M.S.’s behaviors impeded his learning and needed to be
address, and at that time, M.S. would have benefited from the counseling of the
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School District’s social worker. But as a result of the trusts issues, M.S.’s mother
terminated those counseling services.
Concluding that the School District’s impairment of M.S.’s mother’s right to
participate in the education process was a substantive violation of the IDEA, the
Hearing Officer found that four hours of compensatory education was appropriate
because the deprivation “was relatively short and only involved the period of time
near the end of the school year.” Doc. 29-1 at 35. M.S. had been receiving
counseling services for thirty minutes every six-day cycle. While it was not clear
exactly how many counseling sessions M.S. missed, the Hearing Officer estimated
that M.S. missed four hours with the social worker, and he determined that four
hours of compensatory education was sufficient and appropriate to remedy the
IDEA violation. In addition to the four hours of compensatory education, the
Hearing Officer ordered that, going forward, the School District treat M.S.’s mother
“as a full and important member” of the IEP team. Doc. 29-1 at 36. He also ordered
that Dr. Fassett stop ridiculing M.S.’s mother, and he ordered that, if the parents
abuse their right to participate in the process by, for example, communicating
excessively with staff, the School District meet with the parents and provide a
warning before imposing reasonable restrictions.

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B. Discussion.
The parents contend that M.S. is entitled to compensatory education for the
entire 2011-2012 school year, and, as a result, they are seeking a total of 900 hours
of compensatory education.7 After considering the administrative record, we agree
with the Hearing Officer’s findings of facts. Based on those findings, we conclude,
as did the Hearing Officer, that the parents are not entitled to any more than four
hours of compensatory education.8
The parents suggest that the School District’s evaluations of M.S. were not
adequate, and, therefore, neither was his IEP. For the reasons discussed above in
connection with the claim regarding in the independent educational evaluation, we
agree with the Hearing Officer that the evaluations were adequate.
The parents also suggest that the School District failed to provide sufficient
special education services for M.S. In support of that assertion, they cite the
testimony of M.S.’s teachers, but they misrepresent, or at least misconstrue, some of
In accordance with Pennsylvania law, students shall attend public school for 180
days of instruction, which, according to the parents, is equal to 900 hours of instruction
for elementary students.
8 The School District does not challenge the Hearing Officer’s conclusion that they
denied M.S. a FAPE near the end of the school year. Nor does it challenge the award
of four hours of compensatory education. Therefore, we assume that the Hearing
Officer’s decision in that regard was proper. The issue we address, as framed by the
parents, is whether M.S. was denied a FAPE for the entire year and whether he is
entitled to 896 additional hours of compensatory education.
7

50

that testimony. For example, the parents assert that Ms. Grose, the emotional
support teacher, testified that, during the 2011-2012 school year, she made only one
recommendation, which was to change M.S.’s seat in the classroom. Although Ms.
Grose did testify that she made the recommendation to change M.S.’s seat in the
regular classroom, she did not testify that that was the only recommendation that she
made. See Doc. 29-2 at 52. Further, Ms. Grose testified about her work with M.S.
at the beginning and end of each school day. Id. at 46-47 & 51-52.
The parents also assert that Ms. Troutman, the learning support teacher, never
went into the M.S.’s regular education classroom due to scheduling conflicts.
Although Ms. Troutman did testify that she did not go into M.S.’s regular education
classroom, she testified that she worked closely with Ms. Grose to implement M.S.’s
IEP, that she discussed issues with Ms. Woodling two to three times a week, that she
relied on feedback from the instructional assistants as well as Ms. Woodling, that
she made suggestions to the instructional assistant, and that she made changes to
how M.S. was taught, and tested in, Math. Id. at 40-43 & 45.
Intimating that the School District should have had M.S. spend more time
with instructional assistants, the parents assert that Ms.Woodling, M.S.’s
fourth-grade teacher, testified that M.S. never had behaviors of concern when

51

supported by an instructional assistant. But Ms. Woodling testified as follows
about M.S. behavior while with the instructional assistants:
Q: And when you discussed many—you went over a lot
of these different behavior incidents that occurred during the
course of the school year.
Do you recall any of those behavior incidents
occurring when [M.S.] was with his instructional assistant?
A: No.
...
Q: Do you recall ever talking to anyone about the fact
that [M.S.] was successful with his instructional aide for math,
and that perhaps his time with an instructional aid should be
increased to address the behavior issues that you were dealing
with throughout the—on a daily basis at school?
A: We would talk on numerous occasions about the
instructional assistant[s] and how to best utilize them. . . .
Q: . . . The basic question is that you’ve testified in quite
some detail about a quite significant daily list of behavior
issues—
A: Yes.
Q: —that you were dealing with. And that when he had
the instructional aide for math, that you didn’t see behavior
issues.
And so my question is: If you recalled discussing that
with, say, the case manager, the learning support teacher or a
special education supervisor or the building principal about,
folks, maybe we need to increase the instructional aide, support
that we’re providing to [M.S.], which could help address the
behaviors of concern.
A: Yes, the behaviors did improve when the
instructional aid was—as far as in reference to the other
students. There were still some behaviors that were a little
disrespectful to the aides that were a bit of a problem.
I did talk to both Ms. Grose and Ms. Troutman and
Mr. Wetzel about how to best utilize them. We actually did
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end up increasing aide time with him. More emotional
support aides started to come and spend more time with
him.
Q: And was that successful when they would spend time
with him?
A: On some days, yes.
...
Q: [on redirect examination] Do you have any idea
whether or not [M.S.] ever complained about the aides or the
paraprofessionals throughout the school day?
A: Yes.
...
He often did not like that they were there to help him.
On some occasions, he would be grateful for their help, but
on many occasions he treated them with disrespect, arguing
with them. And he did not—he disengaged from them on
many occasions as well.
Q: Do you know whether or not his mother ever asked
anyone at the district to stop the assistance from the
paraprofessionals that were with him?
A: At one point, I believe that there was a request to
have the aides pull back.
Doc. 29-3 at 31 & 34.
In sum, although the parents suggest that M.S. received few special education
services and supports during the 2011-2012 School year, they failed to convince the
Hearing Officer of that, and they have likewise failed to convince the Court.
The parents contend that the Hearing Officer erred in according Alan
Babcock’s testimony and report no weight. As to this issue, the Hearing Officer
stated:

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The testimony of Petitioner’s expert school psychologist
is accorded no weight. In addition to the factors discussed
above, the testimony of said expert is impaired by the fact that he
apparently views the role of special education as that of potential
maximizing. Said expert also had a difficult time tying his
conclusions to any academic effect upon the student and to the
extent that he did draw such conclusions, they were not
contained in his written draft report. More importantly, said
expert school psychologist testified that the Respondent’s
functional behavioral analysis was deficient because it did not
identify the function of the student’s behaviors. Petitioner’s
post hearing brief includes an argument to this effect, claiming
that the functional behavioral analysis is fatally flawed as a
result. However, as Respondent’s counsel pointed out in
cross-examining the witness, said expert drew his conclusions
concerning the functional behavioral analysis without ever
looking at the report of the functional behavioral analysis.
Instead, he relied solely upon a summary of the functional
behavioral analysis contained in the Respondent’s reevaluation
report. In fact, the functional behavior analysis prepared by
Respondent does identify the functions of the student’s
behaviors. The FBA identified the functions of the student’s
inappropriate behaviors as avoiding, escaping or postponing
assigned tasks and gaining adult attention in the form of
redirection and prompting. The testimony of Petitioner’s expert
school psychologist in this regard is highly problematic. That
said witness would draw such a serious conclusion without even
looking at the document he is criticizing seriously impairs his
credibility and persuasiveness of his testimony.
Doc. 29-1 at 26-27. The Hearing Officer did not find Babcock’s testimony
credible. The court must accept credibility determinations made by the Hearing
Officer unless the non-testimonial, extrinsic evidence in the record would justify a
contrary conclusion. The only non-testimonial, extrinsic evidence that the parents
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point to is one page of the functional behavioral assessment, and they assert that the
Hearing Officer failed to recognize that the functional behavioral assessment does
not state a hypothesis for M.S.’s behaviors. But, in fact, the page of the functional
behavioral assessment cited by the parents sets forth the following two hypotheses
regarding the function of M.S.’s behavior of concern:
(1) When presented with an academic task demand [M.S.] will
fail to engage and/or dis-engage from the activity in order to
avoid, escape and/or postpone the task demand.
(2) When presented with an academic task demand [M.S.] will
fail to engage and/or dis-engage from the activity in order to gain
adult attention in the form of redirection and prompting.
Doc. 29-4 at 82. The parents have failed to point to nontestimonial, extrinsic
evidence sufficient to warrant the Court to disagree with the credibility
determination of the Hearing Officer.
Referencing the Hearing Officer’s description of Mrs. Stepp as a “handful,”
the parents assert that the Hearing Officer stated that they abused their right to
participate without citing any evidence to support that such abuse occurred. The
Hearing Officer did not, however, state that the parents abused their right to
participate. Rather, the Hearing Officer stated that Mrs. Stepp “engaged in a high
volume of communication” with M.S.’s teachers and service providers. That
statement is supported by the testimony of Ms. Troutman. In any event, the
Hearing Officer determined that, before the School District limited Mrs. Stepp’s
55

communications with IEP team members, it should have told her that there was a
problem and requested that she reasonably limit her communications or, at least, it
should have warned her before imposing a limitation. And because it did not do so,
the Hearing Officer concluded that near the end of the school year, the limitation on
Mrs. Stepp’s communications with the IEP team, coupled with Dr. Fassett’s
ridiculing emails, resulted in a denial of a FAPE to M.S.9 The Hearing Officer did
not err in commenting on Mrs. Stepp’s communications.
The parents assert that they requested that the School District conduct a
Supplementary Aids and Services Toolkit process, and there is no record of this
occurring during the 2011-2012 school year. As noted earlier, the parties resolved
the issue of the implementing the Toolkit going forward. It does not appear that the
parents argued to the Hearing Officer that the failure to conduct the toolkit process
during the 2011-2012 school year resulted in a denial of a FAPE to M.S. See Doc.
29-1 at 58-67 (parents’ post-hearing proposed findings of fact and brief). Nor have
they established in this case that the failure resulted in a denial of a FAPE.
9 Although we agree with the Hearing Officer that the emails were inappropriate, it

is difficult to see how the emails contributed to a chilling effect on Mrs. Stepp given
that Mrs. Stepp did not view the emails until after the due process complaint was
filed, which was after the 2011-2012 school year (the relevant time period at issue)
ended.

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In sum, we agree with the Hearing Officer that the School District did not deny
M.S. a FAPE for the entire 2011-2012 school year, and any denial of a FAPE was
limited to near the end of the school year and resulted from the limitation on Mrs.
Stepp’s communications with the IEP team. Accordingly, we conclude that M.S. is
not entitled to additional compensatory education.10

VI. Rehabilitation Act.
In addition to their IDEA claims, the parents present a claim under the
Rehabilitation Act in connection with their complaint concerning compensatory
education.
Under Section 504 of the Rehabilitation Act, “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination” under any program that receives federal funds. 29 U.S.C. § 794(a).
“Whereas the IDEA provides an affirmative duty to provide education, Section 504
prohibits discrimination against the disabled.” Jana K. 2014 WL 4092389, at *20.
The Rehabilitation Act’s “negative prohibition” against discrimination is similar to the

The parents do not argue that four hours of compensatory education is not the
appropriate remedy for the limited denial of a FAPE found by the Hearing Officer.
10

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IDEA’s “affirmative duty” to provide a FAPE to a disabled student. Ridley, 680 F.3d at
280.
Here, the parent’s Rehabilitation Act claim appears to be based on the same
underlying allegations as their IDEA claim. As such, it fails for the same reasons.
Further, to establish a violation under the Rehabilitation Act, the parents must
establish: (1) M.S. was disabled; (2) he was “otherwise qualified” to participate in
school activities; (3) the School District received federal financial assistance; and
(4) M.S. was excluded from participation in, denied the benefits of, or subject to
discrimination by the School District. Ridley, 680 F.3d at 280. The parents, however,
have not pointed to evidence in the record that M.S. was excluded from participation
in, denied the benefits of, or subject to discrimination by the School District.
Accordingly, their Rehabilitation Act claim fails.

VII. Attorney’s Fees.
The parents also sought attorney’s fees in their complaints. The School District
asserts that because the parents were not the prevailing party at the administrative due
process proceedings, they cannot recover attorney’s fees. The parents do not address
this argument. Thus, we consider them to have waived any claim to attorney’s fees.

58