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R.F. v. Southern Lehigh School District

United States District Court, E.D. Pennsylvania

August 7, 2019

R.F., through his parents R.F. and E.F., of Coopersburg, PA, Plaintiffs,
v.
SOUTHERN LEHIGH SCHOOL DISTRICT, Defendant.

          MEMORANDUM OPINION

          EDWARD G. SMITH, J.

         This case arises under the Individuals with Disabilities Education Act (“IDEA”) and represents years of back and forth between the minor plaintiff's parents and the school district. The plaintiffs argue the school district violated the IDEA by failing to provide the minor plaintiff with a free and appropriate public education during his third, fourth, and fifth grade school years. The plaintiffs presented their case to a due process hearing officer who upheld the school-prepared individual education plans.

         The plaintiffs now move for judgment on the administrative record and argue that, if the hearing officer applied the correct legal standard and properly understood their expert's testimony, then they would have prevailed below. The school district disagrees and contends that the court should deny the plaintiffs' motion because it fully complied with its obligations under the IDEA. Ultimately, the court agrees with the hearing officer because the record reveals that the school district provided the minor plaintiff with a free and appropriate public education during his years of enrollment. As such, the court denies the motion for judgment on the administrative record, including the request for reimbursement for an independent educational evaluation and compensatory education, because the hearing officer did not err in either his legal or factual analysis.

         I. PROCEDURAL HISTORY [1]

         In the summer of 2017, the minor plaintiff's parents initiated the underlying administrative action by requesting a due process hearing from the Pennsylvania Office of Dispute Resolution. Admin. R., Ex. 11.[2] The case proceeded to a three-day hearing before Charles Jelley, Esq. (“Hearing Officer”) in late 2017. Decision at 1. The parents argued that Southern Lehigh School District (“District”) denied R.F.[3] a Free and Appropriate Public Education (“FAPE”) and violated the Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation Act during the 2014-2015 (third grade), 2015-2016 (fourth grade), 2016-2017 (fifth grade), and 2017-2018 (sixth grade) school years. Decision at 2. After making extensive findings of fact, the Hearing Officer found the District provided R.F. with a FAPE as to each challenged individualized education program (“IEP”) and accordingly denied the parents' requested relief, namely reimbursement for an independent educational evaluation (“IEE”) and compensatory education. See generally Decision at 20-26. After receiving the Hearing Officer's order, R.F., through his parents, filed the instant action on April 26, 2018, asserting causes of action under the IDEA, the Rehabilitation Act, the ADA (collectively, the “Acts”) and the Acts' respective state analogues. Compl. at 1.

         On September 28, 2018, the plaintiffs moved for judgment on the administrative record and voluntarily withdrew their claims under section 504 of the Rehabilitation Act and the ADA. See Pl's Mot. for J. on the Admin. R. at 1 n.2 (“The Parents voluntarily withdraw their claims asserted under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act as the same relief requested under those two laws is available to the Family's claims under IDEA and Chapter 14.”), Doc. No. 9.[4] The defendant filed a response in opposition to the motion on October 31, 2018, Doc. No. 10, and the plaintiffs filed a reply brief on November 14, 2018. Doc. No. 11. On December 4, 2018, the court heard oral argument on the motion. Doc. No. 12.

         The motion is ripe for disposition.

         II. DISCUSSION

         A. Standard of Review - Motions for Judgment on the Administrative Record

          “When a federal district court reviews state administrative proceedings, it ‘(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.'” Colonial Sch. Dist. v. G.K. by & through his parents A.K. and S.K., 763 Fed.Appx. 192, 196 (3d Cir. 2019) (quoting 20 U.S.C. § 1415(i)(2)(C)). In an IDEA case, “the District Court applies a modified version of de novo review and is required to give due weight to the factual findings of the ALJ.” L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006). Under the modified de novo standard,

“[f]actual findings from the administrative proceedings are to be considered prima facie correct. ‘If a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however, to substitute its own notions of sound educational policy for those of local school authorities.'” S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003) (quoting MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 531 (4th Cir. 2002)). “Within the confines of these standards, a district court is authorized to make findings based on the preponderance of the evidence and grant the relief it deems appropriate.” D.S.[ v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (citations omitted); see also Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (describing a district court's burden as “unusual” in that it must make its own findings by a preponderance of the evidence, but nevertheless afford “due weight” to the administrative officer's determinations).

Ridley Sch. Dist. v. M.R., 680 F.3d 260, 268 (3d Cir. 2012).

         On the other hand, “the due weight to be afforded to the administrative proceedings is not implicated with respect to issues of law, such as the proper interpretation of the [IDEA] and its requirements; that is, the district court owes no deference to conclusions of law drawn by a state or local educational agency.” In re Educ. Assignment of Joseph R., 318 Fed.Appx. 113, 118 (3d Cir. 2009) (alteration in original) (citations and internal quotation marks omitted). However, “[a] District Court must accept the state agency's credibility determinations unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion. 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.” Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (quotation marks and citations omitted).

         “[T]he party challenging the administrative decision bears the burden of persuasion before the district court as to each claim challenged.” Ridley Sch. Dist., 680 F.3d at 270 (footnote and citations omitted). Here, the plaintiffs “bear[] the burden of persuasion in the case at bar[, ]” Jack J. through Jennifer S. v. Coatesville Area Sch. Dist., Civ. A. No. 17-cv-3793, 2018 WL 3397552, at *7 (E.D. Pa. July 12, 2018), and “to prevail on the IDEA claim, the [plaintiffs] must to [sic] demonstrate that the District did not provide a FAPE.” J.G. v. New Hope-Solebury Sch. Dist., 323 F.Supp.3d 716, 724 (E.D. Pa. 2018). Whether the District provided a FAPE is “subject to clear error review as a question of fact.” Id. (alterations omitted) (citation and quotation marks omitted). “Finally, ‘claims for compensatory education and tuition reimbursement are subject to plenary review as conclusions of law.'” Id. (citation omitted).

         B. Factual History [5]

         The plaintiffs appeal from the Hearing Officer's denial of their claims under the IDEA. The court will describe the material facts delineated by academic year and conclude by discussing the Hearing Officer's decision.[6] Except as otherwise noted, the court adopted all factual findings by the Hearing Officer.[7] N.M. ex rel. W.M. v. Cent. Bucks Sch. Dist., 992 F.Supp.2d 452, 455 n.1 (E.D. Pa. 2014).

         1. 2013-2014: R.F.'s Second-Grade Year[8]

         During the 2012-2013 school year, R.F. attended Colts Neck Township School (“Colts Neck”) in New Jersey. S-6 at 1; Decision at ¶ 1. Colts Neck provided R.F. with special education services through an IEP. P-3 at 1; Decision at ¶ 2. According to the Colts Neck “Educational Assessment” (“EA”) dated January 3, 2013, presumably administered during R.F.'s first-grade year, Colts Neck administered several tests to analyze his intellectual abilities, including the Woodcock-Johnson III Tests of Achievement (“WJ-III”). S-6 at 3-9; S-7 at 5. The WJ-III test analyzed R.F.'s reading, math, written language, and oral language skills and he scored in the “average” range for the majority of tested areas-he obtained a few “low average” scores in areas related to reading and several “high average” or superior scores in areas related to math. S-6 at 8, 9.

         Colts Neck also conducted a psychological examination of R.F. on January 8, 2013 and January 11, 2013. S-7 at 1. The psychological evaluator administered the Wechsler Intelligence Scale for Children, Fourth Edition (“WISC-IV”). Id. On balance, R.F. obtained average results on the WISC-IV in all areas but verbal comprehension. S-7 at 5 (scoring “low average” in verbal comprehension, “average” in perceptual reasoning, “average” in working memory, “average” in processing speed, and obtaining average “Full Scale IQ” score of 98). According to the evaluator, R.F.'s WISC-IV results indicated “slight weaknesses . . . in word knowledge and common sense social judgment[, ]” but noted that “[a]ll other areas were within the average range.” Id. Based on these results, Colts Neck developed R.F.'s January 2014 IEP. Hearing at 115-16 (confirming that S-6 and S-7 are part of same evaluation). This IEP included eight goals (four in area of speech and language, three in area of motor skills, and one in area of daily living skills) and school-provided speech and occupational therapy, each for one hour a week. P-3 at 12-13; Decision at ¶ 3.

         2. 2014-2015: R.F.'s Third-Grade Year

         After completing his second-grade year in New Jersey, R.F.'s parents moved to the District at the beginning of his third-grade year. P-4 at 1 (registering R.F. at Southern Lehigh School District on August 15, 2014).[9] To accommodate R.F.'s needs, the District initially provided him with the services required under his out-of-state IEP. S-10 at 1; Hearing at 53;[10] Decision at ¶ 7. Per IDEA requirements, the District sought permission to evaluate (“PTE”) R.F. in order to prepare his new IEP on September 11, 2014. S-9 at 1. R.F.'s mother consented on the same day for the initial evaluation. Id. at 2. The PTE allowed the District to test R.F.'s present levels of functioning and determine his educational needs. Id. at 1; Decision at ¶ 7.

         On November 10, 2014, the District issued its first “Evaluation Report” (“ER”). S-10. This ER included input from R.F.'s teachers, parents, an evaluation from the school psychologist, and the results of several school-administered standardized tests and assessments. Id. On balance, R.F. obtained average scores in reading and writing and above-average scores in math. See, e.g., id. at 3-4 (describing R.F.'s WIAT-III scores as generally in the “average” range for all areas aside from “early reading skills” (below average), mathematics (above average), and numerical operations (very superior)); Decision at ¶¶ 8-10 (describing the November 2014 ER results as indicating “no significant academic achievement concerns”). The ER also indicated that R.F. required assistance for speech and language and occupational therapy. S-10 at 21-23; Decision at ¶¶ 20-21.

         The District made several findings based on the November 2014 ER, namely that: (1) R.F. “demonstrate[d] Average intellectual functioning and academic achievement and [did] not require special education supports to meet his needs[, ]” S-10 at 4 (emphasis omitted); (2) R.F. qualified for “speech-language therapy services to improve thought organization for narrative language skills and improve pragmatic and prosodic aspects of speech to increase speech intelligibility during conversational exchanges[, ]” id. at 8 (emphasis omitted); (3) R.F.'s vision, while impaired slightly, did not qualify for vision services, id. at 9; (4) R.F. has an “Auditory Processing Disorder[, ]” id. at 13 (emphasis omitted); (5) R.F. did not require school-supplied physical therapy, id. at 14; (6) and R.F. would “benefit from continued Occupational Therapy[, ]” id. at 19; see also Decision at ¶¶ 16-21.

         Based on the November 2014 ER, the District prepared an IEP dated December 8, 2014 (“December 2014 IEP”).[11] The December 2014 IEP included the modifications and Specially Designed Instruction (“SDI”) listed below. The District planned for all of the modifications and SDIs below to run from December 10, 2014 to December 8, 2015. The modifications and SDI provided in the December 2014 IEP were as follows:[12]

Modifications and SDI

Location

Frequency

Multi-sensory techniques for improved speech intelligibility, Visualizing and Verbalizing strategies for improved thought organization

speech classroom

lXweek-30 mins. with the exception of building/district programs and/or absence.

Therapy will begin the third week of school and end two weeks prior to the last day of school.

Earobics Program

home

Per[] program specifications

An assistive listening device such as classroom sound field is recommended to improve classroom signal to noise ratio and assist [R.F.]'s performance in background noise.

classroom

daily

Use of visual cues and examples [to] assist [R.F.'s] understanding of verbal messages.

classroom

daily

[R.F.] may need tests presented in a quiet area without distractions. He may require extra time to process oral directions.

classroom

as needed

In group instruction [R.F.] should be seated away from noise sources and visual distractions.

classroom

daily

If [R.F.] requests repetition he should first repeat what he has heard allowing teachers and staff to complete the message rather than repeat in entirety.

classroom

daily

[R.F.] may benefit form [sic] use of metacognitive devices to assist his memory trace. Techniques such as [the] use of mnemonic devices, putting information to a rap beat or music, pairing each item in a list of information to a raised finger are examples of devices that may cue memory.

classroom

as needed

Frequent movement breaks embedded in classroom routine throughout the day. Opportunities to manipulate items and materials on a regular basis during [sic][.]

classroom

daily

Assess need for reduction in writing requirements due to fatigue or if work; Develop clear expectations of written work including legibility and spacing; Develop a positive reinforcement program to encourage the student to be motivated to complete written work with the expectation of legibility and proper spacing[.]

classroom

daily

Copy notes written by another student who is a good note-taker to reduce the amount of writing the student is completing in a typical school day; Provide an upper visual boundary (drawing a line) on papers that have one line only for answers to help him remain within the boundaries for writing[.]

classroom

daily

Monitor [R.F.'s] ability to keep pace with written work and assess need for technology if a deficit is noted[.]

classroom

monthly

S-11 at 18-19;[13] Decision at ¶¶ 22-26.

         The December 2014 IEP noted that R.F. “read[] on grade level” and “demonstrate[d] strong academic proficiency, performing in the average range across reading, math, and writing tasks.” S-11 at 7. The December 2014 IEP also included two “measurable” annual goals: (1) [R.F.] “will produce grade level language, demonstrating competency in form, content, and use in the 4/5 opportunities over three consecutive sessions[;]” and (2) “[R.F.] will demonstrate the ability to motor plan and organize himself so that he completes presented assignments in the time frame expected (equal with his peers) 3 out of 4 times across 6 data collection points.” Id. at 16; see Decision at ¶ 23 (noting reduction from eight goals in Colts Neck IEP to two goals). R.F.'s IEP further included five “short term objectives” related to his speech abilities and incorporated the SDIs previously identified in the IEP.[14] S-11 at 16-19. The IEP called for R.F. to spend 99% of the day in the “regular” classroom. Id. at 23.

         During R.F.'s third-grade year, the District tracked his progress and conducted several progress check-ins. S-15. In January 2015, during the first IEP progress interval, the District's speech language pathologist, Linda Milliman (“Milliman”), noted R.F. made “satisfactory progress” towards his speech and language goals. Id. at 1; Hearing at 513. In April 2015, during the second progress interval, Milliman noted that R.F. “demonstrated 80% accuracy for accurately imitating the clinician's model for word stress within sentences and 70% accuracy for chunking of words within phrases using appropriate breath support for fluent speech” but further noted that when the District tested R.F. without a model, he had some difficulty sequencing syllables and organizing thoughts. Id. at 1. Milliman also noted that R.F. “appear[ed] to enjoy working in a small group setting with one other peer.” Id. During the third progress interval in June 2015, R.F. continued to show improvement and exhibited “90% accuracy for correctly imitating the clinician's model for prosody activities in the following areas: speech rate, volume, word stress.” Id. at 2. Milliman also noted that R.F. sometimes requires cues, but that he “demonstrated the ability to correctly sequence 7/7 story frames and described the basic elements of the story.” Id.

         At the conclusion of R.F.'s third-grade year in the spring of 2015, the District obtained several additional data points on his progress, namely his Pennsylvania System of School Assessment (“PSSA”) scores and year-end grades. On his Spring 2015 PSSAs, R.F. scored “proficient” in English/Language Arts and “advanced” in Mathematics. S-13 at 1. R.F. also obtained passing grades in all his third-grade classes. S-14 at 2 (obtaining B in Reading, “S” for satisfactory in Writing/Communication and Science, A- in Math, and “N” for needs improvement in Handwriting).

         3. 2015-2016: R.F.'s Fourth-Grade School Year

         During R.F.'s fourth-grade year, the District viewed his progress positively because he was “mastering” his IEP goals; however, his parents became dissatisfied with his progress and the District's special education services. See Hearing at 70 (describing R.F. at end of his third-grade year as “still having issues” with reading). To determine whether R.F. qualified for additional services under his IEP, R.F.'s parents hired a private evaluator to conduct several assessments of him. Decision at ¶ 27; Hearing at 66-68.

         a. The Private Evaluation

         The parents hired Dr. Kimberly Flounders to assess R.F.'s abilities using the Woodcock Reading Mastery Test-III in October 2015. P-14; Decision at ¶ 27. Dr. Flounders determined that R.F.'s

high scores on the WRMT-III, while nearly two grades below his current grade level, involved the two areas of Word Identification and Oral Reading Fluency and fell in the Below Average range. Every other subtest fell within the Well Below Average range, with his two lowest scores in the areas of Listening Comprehension and Passage Comprehension.

P-14 at 1; see Decision at ¶¶ 28-29 (finding that Dr. Flounders' report indicated that R.F. performed “two grades below the then current grade level” in reading). Dr. Flounders recommended another evaluation (from a speech language pathologist) and “language processing support services to build his receptive and expressive skill acquisition.” P-14 at 1-2. R.F.'s mother admitted that she believed some of Dr. Flounders' results were inaccurate, namely that they were “a little low.” Hearing at 73; see also Id. at 163 (describing Dr. Flounders' results as lower than R.F.'s actual performance abilities).

         b. The District's Reevaluation

         In advance of R.F.'s third-grade IEP's expiration in December 2015, the District sought the parents' consent to reevaluate him on November 16, 2015. S-17. While the District did not successfully obtain the parents' consent prior to the reevaluation, id. at 3, the District nevertheless reevaluated R.F. prior to his third-grade IEP's expiration.[15] During the reevaluation process, the District reviewed R.F.'s records and his teacher's impressions of his abilities. S-19; see Hearing at 518 (describing review progress as looking at R.F.'s “data, his progress monitoring in the speech room” and discussion with his teachers). The District initially limited the reevaluation to a records review because the District comprehensively tested R.F. a year prior and intermediately tested him throughout the year which “showed his language skills to be in the average range.” Hearing at 518. In addition, “[R.F.] was achieving 90 percent accuracy in the objectives that [the District was] instructing him on. And he continued to demonstrate that accuracy level.” Id.

         The school issued a final RE on December 4, 2015 (“December 2015 RE”). S-19 at 2.[16] In the December 2015 RE, the District found that R.F. “demonstrat[ed] satisfactory progress within the classroom setting” and “mastered all of his speech and language goals.” Id. at 5.[17] Due to R.F.'s progress, the District concluded that he “no longer qualifie[d] for school based speech and language support services.” Id. The District further concluded that R.F. remained eligible for “classroom accommodations to address” his APD through a “504 Service Agreement” but that he no longer required SDI. Id.; Decision at ¶ 35.[18] The parents disagreed with the District's determination that R.F. no longer qualified for SDI and did not believe that a 504 plan would sufficiently address his learning disabilities. S-19 at 13; Decision at ¶ 37. As a result, the parents returned the “Notice of Recommended Educational Placement/Prior Written Notice (NOREP/PWN)” (“NOREP”) to the District on December 11, 2015, and designated their disapproval of the District's decision to exit R.F. from SDI. S-19 at 13; Decision at ¶ 37. On December 10, 2015, the parents also requested the District conduct a comprehensive evaluation of R.F. and indicated their desire to mediate the dispute. S-19 at 13.[19]

         On December 20, 2015, the parents informed the District via e-mail that they withdrew their request for mediation because they agreed with the District's compromise to continue providing R.F. services under his third-grade IEP until a reevaluation was completed. S-21 at 1; Hearing at 558-59 (describing District's decision to continue providing services under R.F.'s earlier IEP until reevaluation completed).[20] In the same e-mail, the parents provided the District with private reports regarding R.F.'s abilities and informed the District that he received private speech and OT services outside of those provided by the District. Id. at 1-15.[21] Prior to the parents' December 20, 2015 notice, the District did not know that R.F. underwent private speech and language evaluations or received private therapies. Hearing at 210.

         On January 4, 2016, the District sought the parents' permission to reevaluate R.F., and the parents consented on January 11, 2016. S-22 at 1, 3. On March 11, 2016, the District provided the parents with the RR (“March 2016 RR”). S-23 at 10; Decision at ¶ 38. The March 2016 RR included a review of R.F.'s testing history, [22] academic progress, and a summary of recent observation results by his teachers, the school psychologist, occupational therapist, and guidance counselor.[23] S-23 at 11-44. The March 2016 RR also included the results of various tests and evaluations, such as the WISC-V (administered on February 24, 2016), WIAT-III, [24] BASC-2 (completed in February 2016), and the Social Skills Improvement System (“SSIS”) (also completed in February 2016). Id. at 25, 29, 30.

         On the WISC-V, R.F. obtained average or better scores aside from “working memory” in which he obtained a below average score. Id. at 25. On the WIAT-III, R.F. obtained average or better scores on all areas tested, including areas related to reading. Id. at 27. On the BASC-2, a behavioral assessment, R.F.'s parents, his English Language Arts/Social Studies teacher (Ms. Dill), and his Math teacher (Ms. DeSanctis) all rated him in different areas related to his social skills. Id. at 29. His teachers both rated him in typical range for all areas aside from “withdrawal.” Id. However, R.F.'s parents rated him in the “at-risk” category for several categories and rated him in the “clinically significant” range for “withdrawal.” Id. Concerning the SSIS, which was administered to Ms. DeSanctis, Ms. Dill, and R.F.'s parents, R.F.'s teachers rated him as “average” in most areas, aside from “below average” in communication and engagement, id. at 30, whereas his parents rated him as “below average” in four out of the seven “Social Skills Subscales[.]” Id. On the “Problem Behaviors Subscales[, ]” his teachers rated him as “above average” for internalizing and autism spectrum but average for externalizing, bullying, hyperactivity/inattention. Id. His parents rated him as average for each of those categories other than autism spectrum. Id.[25]

         Macomb performed a series of tests to determine R.F.'s speech abilities. Id. at 33 (administering Comprehensive Assessment of Spoken Language (“CASL”), Test of Narrative Language, and the Clinical Evaluation of Language Fundamentals (“CELF”) 4th Edition, Four Formulated Sentences Subtest). R.F. scored in the average range on all the tests Macomb administered. See Id. at 34 (“[R.F.'s] overall performance for the . . . []CASL[] placed his performance within the average range for his chronological age. He obtained a standard score of 107, which placed his receptive and expressive language abilities at the 68th percentile.”), id. at 35 (“[R.F.] achieved an overall Narrative Language Ability Index of 121, which placed his narrative discourse skills in the 92nd percentile for his chronological age.”); id. (showing CELF results as “[R.F.] received a standard score of 12, which placed in the 75th percentile for his chronological age”).

         As to R.F.'s purported physical disabilities, the District's physical therapist (“PT”) and occupational therapist both evaluated him. The PT evaluated R.F.'s physical therapy needs based on the parents' reported concerns (e.g., low muscle tone, “possible mild Cerebral Palsy”); however, the PT concluded that R.F. did not have any significant physical limitations. Id. at 23- 24. The occupational therapist evaluated R.F. using a variety of assessments, namely an ecological assessment, Wide Range Assessment of Visual Motor Abilities (“WRAVMA”), handwriting tasks, Detroit motor speed and precision test, Wold sentence copying test, and Wold digit symbol test. Id. at 35. On the WRAVMA, a test to assess R.F.'s skills in the areas of “Visual-Motor, Visual- Spatial, and Fine Motor[, ]” he obtained scores in the average range for all categories. Id. at 35-36. The occupational therapist also tested R.F.'s hand skills and motor skills and noted some difficulties (related to his “awkward grasp pattern”) but found, on balance, that R.F. successfully completed the handwriting and copying tests. Id. at 37-38.

         Overall, the District's March 2016 RR concluded that R.F.'s “overall cognitive ability fell within the Average range, with strengths in verbal comprehension skills and a weakness in working memory.” Id. at 38. In the area of Reading, the District found R.F.'s current data “very inconsistent with the scores received in the private evaluation completed by Kim Flounders.” Id. As a result, the District again determined that R.F. no longer qualified for SDI, but that a 504 Plan would properly accommodate his needs. Id. at 40; Decision at ¶ 43.

         The parents sent a letter dated March 29, 2016 via e-mail to the District indicating their disagreement with the March 2016 RE and requesting a publicly funded IEE. P-24 at 1-2 (noting parents withdrew December 2015 publicly funded IEE request). On April 8, 2016, the parents returned a NOREP (“April 2016 NOREP”) to the District indicating that they both approved and disapproved of the recommendation. P-25 at 8. Specifically, the parents agreed with the implementation of a 504 Plan, but they did not agree with the District's decision to exit R.F. from services. Id. On the April 2016 NOREP, the parents also withdrew their March 29, 2016 request for a publicly funded IEE, but “reserve[d] [the] right to request reimbursement for an IEE in the future.” Id.; see also P-24 at 1-2; Decision at 8.

         In response, the District ceased providing “direct speech and language supports, specially-designed instruction and OT, ” Decision at ¶ 45, and prepared a 504 Service Agreement (“504 Plan”), outlining the following “adaptation, modification, service, or related aid”:

• Provide opportunity to change position and movement breaks
• Verbal prompts for attention when needed
• Allow use of technology for longer writing assignments to include the use of a computer or the use of talk to text feature
• Use finger or reading window to assist with tracking while reading
• Assistive listening device such a as a classroom sound field (FM system)
• Use of visual cues and examples will assist [R.F.'s] understanding of verbal messages
• [R.F.] may needs [sic] tests presented in a quiet area without distractions
• [R.F.] may require extra time to process oral directions
• Seat [R.F.] away from noises and distractions
• If [R.F.] requests repetition, he should first repeat what he has heard
• Use of mnemonic devices to aid in recall of information
• Prompting to reread /revise or use of editing checklists at the completion of each ...

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