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Council Rock School District v. Thomas Bolick

December 22, 2010

COUNCIL ROCK SCHOOL DISTRICT, PLAINTIFF,
v.
THOMAS BOLICK, II, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM

December____, 2010

Presently before this Court is Plaintiff Council Rock School District's Motion for Judgment on the Administrative Record (Doc. 27); Defendants' Thomas Bolick, II and Thomas Bolick, III Response in Opposition thereto (Doc. 32); Defendants' Motion for Summary Judgment (Doc. 29); Plaintiff's Response in Opposition thereto (Doc. 30) and Defendants' Motion for Leave to Reply to Plaintiff's Response (Doc. 33). This Court has thoroughly reviewed the administrative record, and for the reasons set forth below, this Court denies Defendants' Motion for Summary Judgment which the Court has construed as a Motion for Judgment on the Administrative Record. In addition, this Court denies Defendant's Motion For Leave to Reply. This Court grants Plaintiff's Motion for Judgment on the Administrative Record. Specifically, the Court will overrule the Hearing Officer's decision to the extent it found that Plaintiff's initial evaluation inappropriate and awarded Defendants the cost of the Independent Education Evaluation.

I. INTRODUCTION

This case concerns the education of Thomas Bolick, III ("the Student"), who is currently enrolled at Pennsylvania State University, Ambler campus. (Admin. R. Ex. 4 at 3. ) The instant action was brought by Plaintiff, Council Rock School District ("the District" or "Plaintiff") against Thomas Bolick, II ("Parent") and Thomas Bolick, III ("the Student") (collectively, "the Bolicks" or "Defendants"), pursuant to the Individuals with Disabilities in Education Act, 20 U.S.C. §1400, et seq., ("IDEA") and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). The District seeks review of the Hearing Officer's decision. Specifically, Plaintiff seeks review to the extent that the Hearing Officer found the initial evaluation inappropriate and awarded Defendants the cost of the Independent Education Evaluation. In its prayer for relief, Plaintiff requests that this Court issue an order declaring that the District is not required to reimburse Defendants for the private evaluation and finding that the initial evaluate was appropriate in accordance with the IDEA.

II. FACTUAL BACKGROUND

Thomas Bolick, III attended Council Rock High School North in the Council Rock School District until June of 2008. (Admin. R. Ex. 4 at 3.) While enrolled in Council Rock High School the Student was an above-average student. (Findings of Facts, No. 2) On or about January, 2006, Parent requested that the District evaluate the Student to determine whether the Student was eligible to receive special education services under Section 504 of the Rehabilitation Act.*fn1 "At [this] time, the Student was taking mostly accelerated academic classes, and was earning average grades; " however, Parent described the Student as having "impaired sensory, manual or speaking skills." (Admin. R. Ex. 2 at 2,4.)

Pursuant to this request, on May 22, 2006, Tammy Cook, a certified school psychologist, evaluated the Student on behalf of the District. At this time the Student was in the tenth grade. (Findings of Facts, No. 6) In her Initial Evaluation Report, Cook determined that "there were no indicators that [the] Student ha[d]... a learning disability or was a child in need of special education." (Findings of Facts, No. 8) Cook's determination relied in part on the Student's above-average score on the Reading Comprehension section of the Wechsler Individual Achievement Test, Second Edition ("WIAT").*fn2 The WIAT assessed the Student's cognition versus his achievement in a standardized format. (Compl. ¶27) The Student's performance on the WIAT suggested that he was able to read materials that were on a post-high school level of difficulty. (Findings of Facts, No. 9) In addition to the cognitive assessment, Cook also administered the Behavior Assessment System for Children Test, Second Edition ("BASC") to measure his emotional stability. In performing this test, Cook sought behavior ratings from the Student's teachers and parents. The Student's teachers indicated some "at risk" concerns in the areas of social skills, leadership skills and study skills, however, Cook found no significant issues. (Findings of Facts, No.11) The Student's parents neglected to complete the rating scales. (Findings of Facts, No.11) Upon completion of the evaluation report Cook invited the Student's parents to discuss her findings, however, they failed to respond or submit a rebuttal to her conclusions. (Findings of Facts, No.12)

In January and February of 2007, when the Student was in eleventh grade his Parent obtained an Independent Educational Evaluation ("IEE"). (Findings of Facts, No.13) This evaluation which was conducted by Kristen Herzel, PhD, recommended inter alia that his Parent consider having Student classified as having a Specific Learning Disability ("SLD") in the area of reading comprehension.*fn3 (Admin. Record, Ex. 2 at 2.) In assessing Student's cognitive abilities, Dr. Herzel administered the Grey Oral Reading Test ("GORT") and Nelson-Denny test. Dr. Herzel concluded that the Student's reading comprehension was poor based on his performance on both assessments. Dr. Herzel's results regarding the Student's cognitive ability were similar to the results of District's evaluation, in that, both reflected scores in the "High Average" range. (Findings of Facts, No. 15) However, the two evaluations differed significantly with regard to their findings of the Student's reading comprehension ability. "Dr. Herzel found the Student's reading comprehension to be poor, in the borderline range on the Grey Oral Reading Test,...which involved longer passages and did not allow him to refer to passages to answer questions, and at the lower end of the low average range of the Nelson-Denny, which involved briefer passages...." (Findings of Facts, No. 15) Although Dr. Herzel did not contact Cook, the school psychologist who evaluated the Student in 2006, she did not dispute the validity of Cook's findings. (Findings of Facts, No. 13) Subsequently, the Parent submitted the IEE to the District for consideration.

Thomas C. Barnes, Ph.D., the school psychologist for the District's high school, reviewed Dr. Herzel's IEE. Dr. Barnes found Dr. Herzel's evaluation deficient in many respects. Specifically, in critiquing the IEE, Dr. Barnes asserted that in order to make the determination of whether a student had a learning disability, it was necessary to test cognitive ability as well as achievement. (Findings of Facts, No. 16) Moreover, Dr. Barnes considered the tests used by Dr. Herzel to be initial screeners, meaning tests used to determine whether a student required additional testing for a learning disability. (Findings of Facts, No. 16) Consequently, the District reaffirmed its determination that the Student was not eligible for specially designed instruction under IDEA or for accommodations under Section 504. (Admin. R. Ex. 2 at 2-3.)

II. PROCEDURAL BACKGROUND

A. Due Process Hearing

On May 26, 2009, Parent filed a complaint with the Office of Dispute Resolution, seeking an impartial due process hearing on whether the District properly evaluated student and, if not, whether the District provided Student a Free Appropriate Public Education (FAPE). Consequently, an administrative hearing was held on July 17, 2009 before a Special Education Hearing Officer ("Hearing Officer") to determine (1) whether the District failed to identify the Student as having a disability under IDEA; and (2) whether the District failed to provide the Student with a FAPE.

In a written decision dated September 4, 2009, the Hearing Officer concluded as follows: (1) the District's initial evaluation was inappropriate, but the re-evaluation report corrected the major flaws in the Initial Evaluation Report; (2) the Student did not qualify for specially designed instruction under the IDEA or Section 504 accommodations; (3) the District properly considered the IEE; and (4) ...


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