UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DIANNA STEPP and MICHAEL : CIVIL NO: 4:12-CV-02290

STEPP, on behalf of M.S., :

:

Plaintiffs : (Magistrate Judge Schwab)

: 

v. :

: 

THE MIDD-WEST SCHOOL :

DISTRICT, :

:

Defendant :

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. 

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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. 

 

1 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. 

2 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.

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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).

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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 

 

4 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.

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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 

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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 

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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,5the 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 

 

5 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. 

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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. 

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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.

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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 

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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 

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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 

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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 

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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 

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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 

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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. 

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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. 

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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.

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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 

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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.

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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 

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(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 

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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. 

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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, 

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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 

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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 

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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. 

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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. 

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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 

 

7 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.

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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 

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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

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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 

 

10 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.

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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.

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