Full opinion text
MEMORANDUM OPINION KARON OWEN BOWDRE, District Judge. This matter, a cross appeal from an administrative due process hearing Decision issued pursuant to the Individual with Disabilities Education Act (“IDEA”) and the Alabama Exceptional Child Education Act, is before the court on two motions: “Defendant/Counter-Plaintiffs Motion for Judgment on the ‘Appropriate Education’ Issue” (doc. 16) and “The Jefferson County Board of Education’s Motion for Summary Judgment (Judgment on the Record) on the Independent Educational Evaluation Issue” (doc. 30). Both of these motions have received thorough briefing. For the reasons stated in this Memorandum Opinion, the court FINDS as follows: that, regarding the “Appropriate Education” issue, Lolita S.’s motion is due to be GRANTED IN PART and DENIED IN PART — the hearing officer’s Decision is due to be REVERSED and REMANDED as to areas of reading and transition skills and AFFIRMED as to the other items challenged; and that, regarding the “Independent Educational Evaluation” issue, the Jefferson County Board of Education’s motion is due to be DENIED — the hearing officer’s Decision on this issue is due to be AFFIRMED. I. PROCEDURAL BACKGROUND and OVERVIEW OF THE IDEA This case represents a dispute between a parent of a child eligible for special education and the Board of Education responsible to provide that child’s special, education program. The parties disagree about whether the Board has provided an appropriate education for the child and whether the Board must pay for an independent educational evaluation of the child. A. The IDEA The Plaintiff and Counterclaim Defendant, the Jefferson County Board of Education, is the Alabama agency with the authority and responsibility to provide public education services to school-age residents located within the Jefferson County School District. The Board must abide by requirements, including those in the IDEA and the Alabama Exceptional Child Education Act. The Individual with Disabilities Education Act, (“IDEA”) provides federal assistance to states that provide a free and appropriate education (“FAPE”) to children with disabilities by offering each eligible student special education and related services under an individualized education program (IEP). 20 U.S.C. § 1412(a)(1)(A). In compliance with this Act, states must identify children in need of special education services. Id. § 1412(a)(3)(A). Having identified a child as disabled, the state must develop an IEP that complies with the Act. Id. § 1412(a)(4). The Act’s procedures include the requirements that the school and parent(s) develop the IEP together and that the IEP be reviewed at least annually. The IEP must be “reasonably calculated to enable the child to receive educational benefits.” See Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1279 (11th Cir.2008). And if a parent of the disabled child disagrees with the appropriateness of the IEP, and informal review procedures fail, the parent has the right to resolve the disagreement through an impartial due process hearing conducted by an administrative law judge. Following a Decision as a result of the hearing, the parents or the educational agency each has the right to challenge the Decision through an appeal brought in either state or federal court. 20 U.S.C. § 1415(i)(2)(A); see, e.g., CP v. Leon Cnty. Sch. Bd., 483 F.3d 1151, 1153 (11th Cir.2007). B. Procedural History of this Case The Defendant and Counter-Plaintiff, Lolita S., is a resident of Jefferson County and is the parent and legal guardian of M.S., who is a minor and a male student in the Jefferson County School System. No dispute exists that M.S. is a student with disabilities eligible to receive special education services. Lolita S. requested a due process hearing, claiming that the Board had violated her son’s right to “timely and comprehensive evaluations [and] the provision for a free appropriate public education [“FAPE”] in the least restrictive environment, including the provision of related services and appropriate individualized academic instruction.” As a result of the Board’s alleged violation, Lolita S. contended that M.S. failed “to make reasonable progress in numerous areas.” The relief Lolita S. sought included, among other things, reimbursement for her out-of-pocket expenses, such as attorneys fees and the fee for independent educational evaluations (“IEE”). (R. 1513). The Board claims that the IEE conducted on M.S.’s behalf by Dr. Joseph Ackerson was not a true IEE, but rather, was “expert” testimony procured for the purpose of supporting Lolita S.’s position in the litigation. The parties participated in a due process hearing, and the administrative hearing officer subsequently issued a Decision dated May 9, 2012. In that Decision, the hearing officer ruled in favor of the Board on the “appropriate education” issue, finding that the Board had met its programmatic obligations to M.S. under the law and that the Board had not denied M.S. his right to a FAPE. However, the hearing officer also ruled in favor of Lolita S. in part, finding that she was due to be reimbursed for the cost of the IEE by Dr. Ackerson. (R. 1922-23). On June 29, 2012, the Board filed the appeal to this court, challenging the ruling in favor of Lolita S. on the IEE issue. (Doc. 1). In her Answer, Lolita S., individually and on behalf of her son, M.S., filed a counter-claim against the Board in the nature of a cross-appeal, challenging the ruling in favor of the Board on the “appropriate education” issue, and she also contests the Board’s failure to assure appropriate due process procedures that the IDEA requires. Lolita S. requests not only compensatory damages and attorneys fees but also declaratory relief and a permanent injunction to prevent the Board from committing the challenged educational practices. These cross motions request only rulings on the substantive matters; any issues regarding attorneys fees are “on hold” and will be addressed, if they remain viable, after the court rules on the substantive matters. One of the two issues addressed in this appeal — the “Independent Educational Evaluation” issue was addressed in a case before the Eleventh Circuit Court of Appeals, Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691 (11th Cir.2012), which was pending at the time the instant case was appealed to this court. The court ordered separate briefing on the two issues, allowing briefing on the “Independent Educational Evaluation” issue to be delayed until after the Eleventh Circuit ruling. (Doc. 11). The Eleventh Circuit entered a decision on the Phillip C. case at the end of November of 2012. Accordingly, briefing on the second issue began in March of 2013, and both issues are now under submission. II. FACTS M.S., the student who is the subject of this appeal, was sixteen years old at the time of the due process hearing and seventeen years old at the time of the briefing. M.S. has several siblings and half-siblings, and at least two of them are disabled and were receiving special education services during the period at issue. M.S. lives with his mother, and his father is not a strong presence in his life. The 2,000 page Record paints widely divergent pictures about M.S.’s personality and capabilities. All parties agree that he speaks clearly and distinctly, but from that agreed starting point, the disputes abound. According to M.S.’s mother, he is shy, socially withdrawn, and capable of pursing the regular, academic diploma track, but she acknowledges that he cannot write in cursive, has difficulty making change, and has yet to pass his driving test despite numerous attempts. The doctor she hired to evaluate M.S. opines that he is mildly depressed, that the occupational diploma track is a better fit for him, and that he is not likely to obtain his driver’s license anytime soon or live independently. Teachers draw a picture of a generally happy, social young man who is capable of performing the academic work but who lacks interest and motivation. This court has the unenviable task of combining the sometimes conflicting pictures drawn from the 2,000 pages of words, applying the law to those pictures, and determining whether the resulting answer is to affirm or to reverse or some combination. Some information about M.S. is objective, but even the objective facts are not always consistent. Take, for example, his IQ scores. Based on the Standard Binet 5th edition testing that the Jefferson County Board administered to M.S., his Full Scale IQ score is 74 with a score of 100 being average, placing him in the “borderline” or “slow learner” range of intellectual functioning. His standard scores on both the Nonverbal IQ — -74, and the Verbal IQ — 77, also fall into the borderline/slow learner intelligence range. Based on the WISC-IV IQ testing administered by Dr. Joseph Ackerson, a neuropsychologist that Lolita S. hired to evaluate her son, M.S. has a Full Scale IQ of 66, which generally reflects an intellectual disability. Early Academic History M.S.’s early academic history reflects a lack of consistency in his school environment; he attended five different Birmingham Schools during the period from 2002-2008. Further, his academic results appeared uneven; his third grade ARMT (Alabama Reading and Mathematics Test) reflected scores that “met standard” for both reading and math, but testimony also indicated that he had failed either second or third grade. During the 2007-2008 year, the year before he began attending Jefferson County schools, he attended sixth grade in a “regular” — i.e., not “special ed” — class at Putnam Middle School, and received passing grades with tutoring assistance. 2008-2009 School Year in Jefferson County Schools In August of 2008, M.S. began attending seventh grade in the Jefferson County School District as a seventh grader, and he received no special services or accommodations during that school year. M.S.’s year-end grades for the 2008-2009 school year were dismal, receiving failing grades in every subject except Art and P.E., with English (45) and Math (32) grades particularly low. M.S.’s standardized test scores in March 2009 were commensurate with his grades; he' scored in the 1-10% range on every part of the test except Mathematics Problem Solving and Language Mechanics; his score in those areas was in the 10-30% range. 2009-2010 School Year Because of his failing grades the year before, M.S. repeated the seventh grade during the 2009-2010 school year, and his grades that year were as follows: English — 75, Math — 60, Science — 67, Social Studies — 75, Physical Education — 89, Choir — 86, Reader’s Workshop — 69, Problem Solving — 67. M.S. did not receive special education services or accommodations during this school year. Because he received passing grades, he was promoted to eighth grade. His standardized tests during March of the 2009-2010 year indicated that on ARMT his reading and math scores partially met the standard and on the Stanford Achievement Tests, his total reading and reading comprehension remained below 10% with the rest of the scores remaining below 50% in the 10-30% range. Special Education Evaluation and 2010-2011 IEP In late May or early June of 2010, after his second year in seventh grade, Lolita S. asked for M.S. to be evaluated for special education testing. The Jefferson County District held a meeting to refer him for such testing. At that meeting, Lolita S. expressed her desire that M.S. catch up with his peers’ grade level by bumping him up a grade. In September of 2010, the Jefferson County School Board completed its evaluation of M.S. which included administering two achievement tests. One achievement test, which placed the fifteen-year-old in the seven-to-ten-year-old range, revealed that M.S. was below average in almost all academic areas, and in some areas he was in the lower extreme. The second achievement test, the Wechsler Individual Achievement Test II (WIAT-II), administered for his special education evaluation, resulted in the following results: grade equivalent listening comprehension of 2.5, reading comprehension of 1.9 and oral expression of 2.6. The IQ portion of the achievement test resulted in a score of 74, which is in the fourth percentile of students. The Board used those tests to make a determination whether M.S. was eligible for special education services. Both IDEA and Alabama’s implementing regulations have thirteen separate categories of eligibility, each with its own requirements. One way to qualify is through the significant discrepancy calculation: under this measure, the discrepancy between the IQ score and the obtained achievement scores must be greater than one standard deviation unit (15 points) below the predicted achievement score. In other words, test scores needed to show at least a 16-point discrepancy between what M.S.’s IQ score predicted he could achieve versus his actual achievement scores. The Board measured the discrepancy between predicted and actual achievement two ways, and based on the first measurement, M.S. did not qualify, but based on the second measurement, he had a 16-point discrepancy in the area of oral language. In light of this discrepancy, the Board found that M.S. was eligible for special education services in the area of oral language within the category of a specific learning disability. Using the severe discrepancy model, M.S. did not qualify for a disability in the areas of reading comprehension, writing, and math. Based on the finding of eligibility for services in the area of oral language, the district developed an IEP for M.S. for the 2010-2011 school year. The Board argues that this IEP appropriately addressed M.S.’s unique needs and meets the requirements of IDEA, and Lolita S. argues that it did not. The Challenged 2010-2011 IEP The 2010-2011 IEP, dated September 30, 2010, addressed three areas in which M.S. was struggling: Reading, Personal Management, and Math. Although the pages of the IEP document have M.S.’s name at the top, in pages 3, 4, and 5 of that document, under “Type of Services,” another child’s name is typed in, crossed through, and M.S.’s first name is written in above. The IEP contains the signatures of Lolita S.; Cindy Anderson, the special education teacher; Delphine Rowe, the LEA representative, and an unreadable signature of a general education teacher. In Reading, based on achievement testing, the IEP identified his specific weakness as Letter Word Recognition, Reading Comprehension, and Reading Composite. The measurable goal in this area stated: “[M.S.] will apply strategies, including making inferences to determine theme, confirming or refuting predictions, and using specific context clues, to comprehend eighth grade recreational reading materials (8.1) with 70% accuracy.” The IEP did not call for a specific reading program to help bridge the gap between his current reading comprehension level of 1.9 and the goal of comprehending eight grade reading materials. (R. 1741). In Math, the IEP identified his specific weakness as Math Concepts & Applications and Math Composite and noted that he was currently failing Math with a score of 47. The measurable goal was to “use various strategies and operations to solve problems involving real numbers (8.1) with 70% accuracy.” The IEP provided that M.S. would receive daily service for 30 minutes each in both Reading and Math from the special ed teacher, occurring in the general education classroom through inclusive services, including the following accommodations: peer helper; extended time to complete assignments; reinforcement of concepts; teacher checking for understanding; opportunities to make up assignments; receipt of clear and concise directions; use of calculator in math; and the option of being tested with an exceptional education teacher as needed. In the area of Personal Management, listed as a “transition services need,” the IEP states that M.S. has a problem asking for help with assignments and is easily frustrated, resulting in shut down of effort. The measurable goal was to “develop communication skills to interact with others in integrated settings (e.g. expressive, receptive, written) with 100% accuracy.” The IEP called for a special education teacher to service M.S. daily for 30 minutes in the general education classroom through inclusive services. 2010-2011 School Year Fall 2010 — Eighth Grade M.S.’s grades for the Fall semester of 2010 list as follows: English Language Arts Grade 8 — 65; “Instru Level 1” — 87; “Instru Level 1” — 88; Math 8 Pre-Algebra — 47; Physical Ed Gr 7-8 — 94; Physical Science — 72; Reading Gr 8 — 62; Wrld His 8 — 73. On September 30, 2010, M.S. took MEDC Achievement Tests and received the following results: Letter Word Recognition — 76; Reading Comprehension — 67; Reading Composite — 70; Math Concepts and Application — 77; Math Computation— 81; Math Composite — 77; Written Expression — 74; Spelling — 79; Written Language Composite — 75; Listening Comprehension — 76; Oral Expression — 61; and Oral Language Composite — 67. Mid-Year Move to Ninth Grade On January 7, 2011, despite M.S.’s bad grades in English, Reading, and Pre-Algebra, the district team held a meeting regarding whether M.S. should be moved to ninth grade. His 2010-2011 IEP was amended to include the following on the “Student Profile” page: 1/7/2011 — The committee met to discuss/finalize moving [M.S.] up to the 9th grade. [M.S.] will be turning 16 in August. Mom is aware that [M.S.] will not get all of his credits due to missing the 1st semester of 9th grade. He will have to make up his credits by attending summer school sessions. [M.S.’s] grades have improved somewhat. He continues to struggle in math, which is an area of difficulty for him. [M.S.] continues to have difficulty staying in some classes for the entire period. Committee feel [sic] this placement will be beneficial due to age. The committee hopes that it will encourage him to do better academically. He is fully capable of producing great academic results if he applies himself. [M.S.] will be placed on the regular diploma track and his grades will be monitored. If [h]is grades continue to drop, he will be changed to the AOD (Alabama Occupational Diploma). Mom states that this placement will be beneficial because he’s starting to give up and being in the 9th will encourage him more by being around his peers his age. Mom doesn’t want him to drop out of school when he turns 16. The committee agreed on placing [M.S.] in the 9th grade at the end of the [Fall] semester. He will continue to receive exceptional educational services through the SLD program. (R. 1750). The amended IEP contains the date of January 7, 2011 and the following signatures: [M.S.]; Lolita S.; Cindy Anderson; Donna King as the LEA representative; and K. Hunter, a general education teacher. Lolita S. acknowledged that she consented to this change, but claims she did so because Anderson characterized M.S. performance as “really good as far as his academics.” However, Lolita S. presumably had access to her son’s grades. Lolita S. acknowledges that the team discussed moving M.S. to the AOD track, but claims that discussion focused only on M.S.’s ability/inability to make good grades and not upon whether the AOD track met M.S.’s unique needs as a student with a learning disability or upon how that track would benefit M.S. because of its “emphasis on functional skills” or “employability.” Spring 2011 Grades — Ninth Grade M.S.’s grades for the Spring Semester of 2011 list as follows: Essential Math I — 86; Freshman Studies — 95; LIFE phys Ed Gr 9 — 91; LS I World History — 20; LS I Eng 9 — 71; LS II Biology — 27; Strategies Lab — 39; Theatre Level 1 — 27. These grade records indicate that M.S. did not receive full credit for both years because of this move. As the list reflects, M.S. failed most of his classes Spring Semester, when he had been “moved up” to ninth grade; he only passed essential math and English in his academic classes. According to Lolita S.’s testimony at the due process hearing, Anderson, M.S.’s special education case manager for the Fall Semester of 2010, told her, in effect, that no special education case manager worked with M.S. during this semester. However, Anderson denied that statement, but acknowledged that the school had no documentation showing that M.S.’s IEP was followed in the Spring semester. According to the school district, M.S. did have a case manager in Spring 2011 but that person was no longer employed by the school system at the time of the hearing and did not provide testimony. Summer 2011 Summer School M.S. did not participate in summer school during the Summer of 2011 because of a lack of communication between the school and Lolita S. According to Lolita S., she made inquiries about summer school but no one at the school ever contacted her and, when she finally spoke with a counsel- or, summer school had ended. As noted previously, the Amended 2010-2011 IEP did call for M.S. to participate in summer school to make up the credits he missed when he moved up to ninth grade midyear. The district claimed that Lolita S. was aware of the dates for summer school. August 2011 Lolita S. requested an IEP meeting in the summer of 2011, and she spoke with the special ed teacher assigned to M.S.’s case on August 18, 2011, within a few days of the beginning of the school year. Anderson again became M.S.’s special ed case manager and retained this position throughout the 2011-2012 school year. At that time, Anderson learned of problems with M.S.’s school schedule and discovered that he was not getting credit for classroom attendance. The scheduling problem occurred when the State Department of Education converted to a new information technology system, causing scheduling problems in the Jefferson County School System and throughout the state. The Challenged 2011-2012 IEP The 2011-2012 IEP contained the following information in the student profile section: M.S. was now pursuing an AOD diploma instead of a regular diploma, and M.S. wanted to remain on that track; M.S. was doubling up on 9th and 10th grade courses to remain with his grade; M.S. did not attend 2011 summer school because of a lack of communication between the school and the parent; M.S. did not receive full credit for 8th and 9th grade courses because of the mid-year move to 9th grade. The profile also listed the 2010 MEDC Achievement Test results and stated that M.S. “has weaknesses across the board” based on those test results. It identifies reading comprehension, math concepts and application, written expression, and oral expression as the areas most in need of attention and notes that math computation is his strength. The profile refers to the challenge of catching up because of the mid-year move and school absence for discipline reasons, but the plan was for M.S. to double up his course load, despite his difficulty of making good grades with a normal load, and to take both ninth and tenth grade Math and ninth and tenth grade English. The profile recorded Lolita S.’s concern that the IEP was not enforced when he moved up to ninth grade in mid-year, noting his failing subjects and opining that lack of support prevented him from achieving success with the move. (R. 1759). The 2011-2012 IEP focused on four specific areas: Personal Management, Oral/Written Expression, Math, and Reading Comprehension. In the Personal Management area, listed as a transition-related goal, the IEP stated M.S. “[wa]s starting to communicate with teachers and ask questions” but remained “somewhat reluctant” to do so, and his measurable goal was to “continue to develop communication skills to interact with others in integrated settings (e.g.expressive, receptive, written) for 80% of the time.” This reduction from 100% to 80% occurred to afford M.S. a better opportunity to reach realistic goals. To work on this area, the IEP called for a special ed teacher to provide services to M.S. three times per week for 45 minutes each session in the regular or special ed classroom. Other than developing communication skills, the IEP did not include “transition skills” or skills necessary for post secondary life in the areas of employment, education, and community living. (R. 1762). In Oral/Written Expression, the IEP noted that M.S. spoke in short, choppy sentences, and wrote sentences, but not paragraphs. The measurable annual goal stated that M.S. would receive a graphic organizer and was required to produce “a three paragraph essay to include an introduction, body and a conclusion [with] at least 80% accuracy. He will then paraphrase-retell what he wrote about for at least (2) 10 minute intervals.” The services designated on the IEP were to be performed by a special education teacher three times weekly for 45 minutes each session by inclusive or pull-out services. (R. 1763). At the time of Anderson’s testimony at the due process hearing in February of 2012, M.S. was still unable to complete this goal. In Math, the IEP stated M.S.’s achievement/performance was best reflected in his achievement testing, and listed the following measurable goal: to “simplify numerical expressions using properties of real numbers and order of operations, including those involving square roots, radical form, or decimal approximations with at least 8 out [of] 10 opportunities.” This goal was the ninth grade math standard. The services to be provided by the special education teacher were inclusive and pull-out services three times a week for 45 minutes a session with the following accommodations/supplemental aids and services: “peer helper, extended time on assignments, check for understanding, opportunity to make up assignments, preferential seating as needed to avoid distractions; allow one retake below 70, and calculator” plus weekly testing, as needed, with the exceptional education teacher. (R. 1764). In Reading Comprehension, the IEP stated that, based on achievement testing, M.S. had “significant weakness” in that area plus weak oral expression skills, and that his measurable goals were to “identify genre, tone, and plot in short stories, drama, and poetry and identify organizational structure in essays and other nonfiction text to comprehend ninth grade recreational reading materials.” This goal was standard for the ninth grade, and was based in part on his English teacher’s agreement that he was capable of working on comprehension of short stories assigned to ninth and tenth grade students. The Record does not provide testing evidence reflecting that M.S.’s reading comprehension had increased from first grade level to ninth grade level during the 2010-2011 year. To follow up on these math and reading comprehension goals, M.S. would receive service by a special education teacher, either his case manager or another special education teacher, three times weekly for 45 minutes for each of those two areas in the regular classroom or pull-out services in the special education classroom. (R. 1765). When M.S. was pulled out of the regular classroom, he was generally excused from P.E. classes. The IEP also provided that M.S. would receive the following accommodations in reading: peer helpers; extended time on assignments; teacher check for understanding; opportunities to make up assignments; preferential seating as needed to avoid distractions; the allowance of one retake for scores below 70; and the encouragement of verbal communications. Further, M.S. has the option to test with and exceptional education teacher as needed. The IEP did not call for M.S. to participate in any specific reading program. (R. 1765). The district team set up a meeting with Lolita S. to discuss the 2011 IEP. The IEP document is dated September 28, 2011, and Lolita S. signed it, along with K. Conner, Cindy Anderson, and W. Simmon. Lolita S. claims, however, that the district team did not adequately explain the results of their evaluations of M.S. and that she did not understand his educational needs until she obtained evaluation results from her own expert, Dr. Ackerson. The principal was not present at this IEP meeting because of an emergency drug-related incident, and although the principal invited Lolita S. to reconvene the meeting when the principal could attend, Lolita S. did not insist on a second meeting. 2011 Request for Due Process Hearing and Ensuing Pre-Hearing Matters In a letter dated October 13, 2011, Lolita S. requested a due process hearing pursuant to the IDEA, alleging that the school system had failed to provide adequate and appropriate public education services to M.S. More specifically, the request alleged that the IEP expressed vague, limited goals insufficient to meet M.S.’s needs; that the district had committed procedural violations such as the lack of appropriate personnel at IEP meetings and inappropriate placement on the AOD track; and that the school system failed to comply with the provisions of Child Find. The letter indicated that it was transmitted by both email and U.S. mail to the State Superintendent of Education. Lolita S. also requested “reimbursement of the parent’s out of pocket expenses, including for independent educational evaluations,” although no IEE had been performed at that point. (R. 1928). Upon State Superintendent of Education’s receipt of her request for an IEE at public expense by email on October 13, 2011 and U.S. mail on October 18, 2011, the Board did not provide her with any information about where she could obtain an IEE, or agency criteria applicable to IEEs. Further, upon receipt of the request for an IEE at public expense, the Board did not file its own request for due process hearing to defend the appropriateness of M.S.’s program and to obviate the need for an independent IEE. On October 25, 2011, the officer assigned to preside over the due process hearing held a pre-trial conference with counsel for both sides, and at that time, the Board had not yet determined all of the defenses it intended to present and took the position that it did not have an obligation to provide a copy of the child’s academic records to the child’s counsel. On November 11, 2011, the Board filed an Answer to the Due Process Request, denying, among other things, “that the IDEA authorizes the Secretary of Education to require a board of education to pay for or reimburse parents for the cost of an independent educational evaluation.” (R. 1517). As of the time of briefing before this court, Lolita S. had not yet paid for the IEE; her counsel has acknowledged advancing the costs for that examination. In a letter dated November 30, 2011, Lolita S. informed the Board that she planned to hire Dr. Joseph Ackerson, a pediatric neuropsychologist, to perform the IEE on M.S. Further, she requested that the Board expedite matters by sending M.S.’s academic records straight to Dr. Ackerson. (R. 1804). Dr. Ackerson has performed at least 20 independent evaluations for Lolita S.’s counsel over the years and has also worked with school districts to develop IEPs for children. Dr. Ackerson charges a flat fee of $2,500 for all IEEs. After receiving notice that Dr. Ackerson would be performing an evaluation of M.S., the Board did not request a hearing to show that its evaluation of M.S. was appropriate. Dr. Ackerson’s Evaluation — Report and Due Process Hearing Testimony On December 1, 2011, at the request of Lolita S. and on referral by her counsel, Dr. Ackerson tested and evaluated M.S. Prior to the testing and evaluation process, Dr. Ackerson met with Lolita S. for an hour and M.S. for thirty minutes. Dr. Ackerson’s office administered a number of tests to M.S., and Dr. Ackerson acknowledged that the testing “revealed deficient to borderline deficient intellectual (previously characterized as mentally retarded) index scores.” M.S.’s full scale IQ score on the WISC-IV was 66, which falls in the range of intellectually deficient or mildly mentally retarded. M.S. earned a composite score of 63 on the verbal comprehension sub-test, which index score Dr. Ackerson identified as the strongest predictor of a child’s functional abilities and which reflected deficient abilities. Further, the achievement test results revealed that M.S. had grade equivalent scores of four to five years below the ninth/tenth grade he was then attending: his scores were 3.6 in broad reading, 5.0 in broad math, and 5.5 in broad written language. (R. 1783). Dr. Ackerson’s ultimate diagnosis of M.S. was (1) Mixed Language Disorder, (2) Dyspraxia (a chronic developmental coordination neurological disorder also known as “clumsy child syndrome” that can affect planning of movements and co-ordination as a result of brain messages not being accurately transmitted to the body and can result in problems with writing and other fine motor skills), (3) Dysthymia (mild depression with feelings of “learned helplessness”); and (4) noted a “[n]eed to rule out Attention Deficit Hyperactivity Disorder-Inattentive type.” He acknowledged, however, that he could not rule out a diagnosis of Intellectual Disability (formerly called Mental Retardation) but based on the Dyspraxia, Dysthemia, lack of appropriate academic services, and inconsistent test findings, he was not yet prepared to make that diagnosis and preferred at this point to attribute the low scores to M.S.’s “failure to benefit from his educational experiences” as opposed to mental deficiencies or mental retardation. He indicated that mental deficiencies should result in consistent, across-the-board deficient scores whereas M.S.’s scores had highly unusual fluctuation, ranging from deficient in reading, to borderline deficient in math and written language to average in spelling and receptive language (memory and learning, fluid reasoning, verbal fluency, numeric sequencing, and rapid naming— “skills that are not typically preserved in individuals with [mild intellectual disabilites] who more typically present with global cognitive deficits”). (R. 1783). In diagnosing M.S. with a mixed language disorder, Dr. Ackerson concluded that M.S.’s “learning potential far exceeds his academic knowledge.” However, he did not administer any standardized or comprehensive measure, such as the Clinical Evaluation of Language Fundamentals (CELF) Test or the Oral and Written Language Scales (OWLS), that assessed both receptive and expressive language skills. The Alabama Administrative Code would require such a test for a child to qualify under the Speech Language Impaired category. Dr. Ackerson also did not review the files of or consult with Dr. Wayne Fleisig, a clinical psychologist at Children’s Hospital who had met with M.S. regarding possible ADHD, but who had not reported any formal diagnosis for M.S. Further, Dr. Ackerson did not consult with or meet with members of the school staff even though he ordinarily does so prior to completing a student evaluation. He did, however, send teacher rating scales to school staff, but the teachers did not return them to him prior to the completion of his report. Dr. Ackerson stated that the language processing disorder prevents M.S. from understanding what the teacher is saying and writing it down. Dr. Ackerson concurred with the district’s finding that a functionally and vocationally oriented curriculum, such as the AOD, was appropriate for M.S. According to Dr. Ackerson, standardized tests are the best evidence of actual functioning. However, Dr. Ackerson disagreed with the IEPs for the 2010-2011 and the 2011-2012 years. He criticized the IEP goals. For example, in the 2011-2012 goals for written and oral expression, he stated that these goals were incapable of addressing M.S.’s language processing disorder and were too advanced for his current academic levels. As one example, the reading goal required him to read age-level appropriate materials when his assessment tests indicated that he read and comprehended at far below that level, and did not provide a reading program to lift those skills. He also disagreed with the “social promotion” of M.S. to ninth grade in mid-year despite the clear academic deficiencies, and to the plan of providing him instruction in both ninth and tenth grade levels when both levels are above his abilities. Dr. Ackerson recommended that M.S. be served in the regular classroom with specific services addressed to his speech and language disorder, and also recommended occupational therapy for his dysparyxia and writing difficulties. Further, Dr. Ackerson found that the district should perform a transition assessment to examine M.S.’s current skills and provide a social skills program; assistive technology; a functional reading assessment to determine the appropriate reading program; intensive instruction in reading and math; and a behavioral management plan to improve, among other things, his motivation. Dr. Ackerson characterized these recommendations as designed to enable M.S. to make reasonable progress not to maximize his potential. 2011 Fall Semester Grades' The grades from the first nine weeks of the Fall semester were as follows: LIFE PE — A; LS Eng 9 — C; LS II Eng 10 — C; ESS Math 1 — B; LS 1 Phy Sci — D; LS I WorHist — C; LS II USHis — B. The grades from the second nine weeks of the Fall semester were as follows: LIFE PE — A; LS I Eng 9 — 70, 50, 66; LS II Eng 10 — 73, 58, 70; Ess Math I — 72, 90, 75; LS I Phy Sci — 61; LS II Biolog — 70, 49, 66; LS I WorHist-D; LS II USHis— 85, 77, 83. The facts presented did not identify the grades for the second semester. Due Process Hearing The due process hearing occurred, off and on, over a period of five months. It began on December 13-14, 2011, but then was continued until a time that Lolita S.’s neuropsychologist expert could continue to participate. The witnesses who testified on behalf of the district included as follows: the regular education teachers; Cindy Anderson — M.S.’s special ed case manager who has a Master’s Degree in Special Education; Carolyn Liggins, who is a Counselor with a Master’s Degree in Counseling; Norma Ramsey, who has a Master’s Degree in School Counseling; Principal Van Phillips; and Susan Wirt— Jefferson County’s special ed director, who is a National Certified School Psychologist; but no outside expert. Parts of the hearing took place in February of 2012, and it was completed on April 23, 2012. The petitioner raised the following procedural issue at the hearing still viable on appeal: (1) whether the IEPs drafted and implemented for the 2010-2011 and 2011-2012 school years were “appropriate” because petitioner argued that he had made insufficient progress through implementation of those IEPs; and (2) whether the school system incorrectly placed M.S. on the AOD track. The petitioner raised the following substantive issues: (1) whether the failure to evaluate M.S. at the conclusion of his sixth (2007-2008) and/or seventh (2008-2009) grade school years violated IDEA “child-find” provisions; (2) whether the evaluation, when it eventually occurred, was adequate; and (3) whether the child received appropriate speech/language services. M.S.’s expert, Dr. Ackerson, testified at the hearing, and his testimony was consistent with his evaluation as set out above. The school system personnel disagreed with much of the written report and with many of Lolita S.’s statements about her son. The testimony of M.S.’s teachers offered a different description of M.S. than Dr. Ackerson’s evaluation and his mother reported; they stated that he is quiet and respectful of authority but very social with his peers (often flirting with female students), and acts happy (usually) and “streetwise.” According to the teachers, he has no difficulty speaking or requesting assistance and he is capable of satisfactorily performing his lessons when he makes the effort. They acknowledged, however, that he had difficulty expressing himself in writing, did not know his multiplication tables, and had to view a movie rather than read a book to complete a book report. The problems they identified related not to M.S.’s capacity to learn but to his lack of effort and organizational skills: he is frequently tardy to class after the school day is in progress, is disinterested in school, and fails to arrive in class with the appropriate school supplies. M.S.’s guidance counselor during his first year in seventh grade testified that her observation of M.S. did not lead her to believe that he needed to be referred for special education. Teacher testimony at the hearing relayed that the school had initiated practical accommodations to encourage M.S. to arrive on time to class with supplies. For example, a teacher accompanied him to class so that he could not skip or be tardy, and his attendance improved. M.S. also had the opportunity to take tests either in the classroom or in the resource room, as well as other accommodations listed on the IEP and available to him, such as the use of peer helpers, extended time to take tests, the ability to re-take tests with bad grades, rephrasing directions as needed, and the assistance of an inclusion teacher during testing. Teachers were unable to identify any reading programs provided to M.S.; the “STAR” program implemented or to be implemented was an assessment of reading level competence as opposed to a reading program to increase reading proficiency. The teachers also testified that M.S. sometimes refused to take advantage of the accommodations, refusing, for example, to re-take tests, to use an inclusion teacher during testing, or to take tests in a resource room. M.S.’s teachers testified that they used several techniques to improve his reading ability: “Echo reading” — reading aloud and then having the child read what had already been read to him; “chunking”— dividing the reading into short segments and working one-on-one regarding reading passages; and encouraging “recreational reading” -with books of the student’s own choice simply to practice reading. The special education director for the school system testified and stated criticisms of Dr. Ackerson’s written report. The director pointed out that the manual for mental disorders upon which Dr. Ackerson relied used different criteria in conducting disability evaluations that those upon which the State Department of Education required educators to rely. She was also critical of Dr. Ackerson’s diagnosis of a mixed language disorder without administering standard comprehensive language tests such as the CELF and OWLS. Hearing Decision As a result of that hearing, in a thirty-three page Decision dated May 9, 2012, the hearing officer found in favor of the Board, finding it provided M.S. with an appropriate education, but found in favor of Lolita S. regarding her request for public funding of the IEE. The following relevant findings address the procedural issues: M.S.’s IEP for the 2010-2011 and 2011-2012 school years were appropriate and, while not perfect, substantially complied with the IDEA. He also determined that the evaluation conducted was sufficient to formulate those IEPs. The hearing officer found that the IEPs contained an adequate statement of the child’s present level of academic achievement and functional performance, articulated measurable goals, and were reasonably calculated to provide educational benefit in the least restrictive environment. The IEPs were not vague but were sufficiently clear so that M.S., his teachers, and Lolita S. could know what services would be implemented and what accommodations were offered. M.S. made meager but not de minimis progress, and the meagerness of progress “may be attributed more to his cognitive level, his lack of effort, his failure to complete homework assignments, his refusal to re-take tests he has failed and his tendency to skip classes than to an inadequate IEP or the absence of appropriate special education services.” Further, the educational benefit provided to M.S. by the IEPs, when gauged in relation to M.S.’s potential, was reasonable. The IQ score that M.S.’s own expert administered was 66, and the expert pointed to the IQ verbal comprehension score— on which M.S. made a 63 — as the strongest predictor of his academic achievement, yet M.S.’s achievement scores exceeded in all but one academic area the score suggested by his verbal comprehension. M.S.’s expert acknowledged that he could not rule out that M.S. was entitled to special ed services under the designation of mild mental retardation or intellectual disability. Under those circumstances, the hearing officer could not and did not determine that the IEP was inappropriate or that it was responsible for M.S.’s failure to achieve. Finally, the hearing officer found that the transition services M.S. receives are appropriate and meet IDEA requirements. Acknowledging that the IEP “reveals broad and not particularly specific transition services,” the officer nevertheless found that the actual services provided pursuant to the IEP “demonstrate that the school system is preparing the student for post-high school living.” The Decision notes that M.S. attends a class to improve note taking, class preparation, organizational skills and career planning. Outside contractors come to the school twice a week to aid M.S. and others in job assessment and interests. As to the substantive issues, the hearing officer found: (1)The local education agency did not violate the provisions of Child Find in failing to evaluate M.S. for special ed services at an earlier point. The evidence in the case did not establish that the school system overlooked clear signs of disability, that the system was negligent in failing to order testing, or that the system had no rational justification for not deciding to evaluate. Transferring to a school and/or failing a grade does not automatically entitle a child to evaluation for special ed services. Although the parent testified that she inquired about services for M.S., the court found that the more credible evidence was that when Lolita S. sufficiently placed the system on notice that she requested an evaluation for special ed services, the system timely and appropriately engaged in the referral process. The parent’s initial inquiry about services did not trigger Child Find when she failed to follow-up after she was told that further steps were necessary to receive a referral, particularly when she was familiar with the steps for special ed evaluation through her other child(ren) placed in special ed. Further, even if Child Find were triggered, she failed to timely raise Child Find violations by failing to request a due process hearing within two-years of the point she knew or should have known of a Child Find violation. (2) The evaluation, when it occurred, was adequate given the information disclosed by M.S.’s IQ and two achievement tests. “Nothing in the IDEA or its governing regulations require a school system to assess a child for conditions such as mixed language disorder or other problems that may be contributing to a disability with respect to which a local education agency has no reason to suspect given the results of its tests, rating scales, and teacher observations.” (3) The fact that M.S. does not receive formal speech language services is not grounds for finding that a free appropriate public education has not been provided. A court cannot judge the agency’s actions and the IEP based on hindsight. At the time of the development of both IEPs, M.S. spoke well; he could convey his ideas on paper; and he received services for language in his oral reading instruction and responses. Further, the failure to provide formal speech language services was not inappropriate “when no speech language deficiencies of a consequential nature had been determined at the time the due process complaint was initiated in October 2011.” (R. 27). “The neuropsychologist uncovered specific areas of M.S.’s learning disabilities ... [; hjowever, “his findings — while pertinent to potential revisions of Petitioner’s IEP (or additional testing) — did not mean that a school system’s evaluation was inappropriate.” (R. 1921)The hearing officer acknowledged that the neuropsychologist stated that M.S. needed speech language services and a reading program, but the hearing officer noted that while the neuropsychologist desired services that would maximize the potential of the child, IDEA does not require services that maximize the potential of each child; IDEA requires that districts provide a program reasonably calculated to be of educational benefit to the child. The hearing officer listed the accommodations granted to M.S. but determined that he “seldom takes advantage of them.” The hearing officer determined that “[d]e-spite the efforts of the professionals who instruct him, the child simply does not want to be in school.... His teachers and principal are doing their best to alleviate Petitioner’s disinterest in school. However, if they fail, that failure cannot be attributed to their lack of effort. It certainly does not constitute evidence of a denial of a free appropriate public education.” Further, because Lolita S. had also asked for reimbursement for the cost of Dr. Ackerson’s evaluation of M.S., the hearing officer granted that request, ruling that the school system must reimburse her. The hearing officer noted that the school system “chose not to file its own due process request to defend its evaluation of the child or to demonstrate that the neuropsychologist did not follow agency criteria.” (R. 1922). Appeal On June 29, 2012, the Jefferson County Board of Education filed this civil action as an appeal of the finding that it must reimburse the cost of the IEE, and, as noted in the procedural background section, the Defendant, Lolita S. filed a counterclaim in the nature of a cross appeal regarding other determinations. III. STANDARD OF REVIEW Under the IDEA, any party who is “aggrieved” by an administrative decision “shall have the right to bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” 20 U.S.C. § 1415(i)(2)(A). In the instant case, both parties have acknowledged grieving over the administrative Decision, although, predictably, the grief emanates from different parts of the Decision for each litigant. The judicial review provision deviates from the familiar “substantial evidence” standard of review for administrative decisions. IDEA directs the district court to address the decision based on a preponderance of the evidence and to “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(A). “Whether an educational program provided an adequate education under the Act ‘is a mixed question of law and fact subject to de novo review.’ ” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284 (11th Cir.2008) (quoting CP v. Leon Cnty. Sch. Bd., Fla., 483 F.3d 1151, 1155 (11th Cir.2007)). An administrative decision challenged pursuant to the IDEA “is entitled to due weight and the court must be careful not to substitute its judgment” for that of the hearing officer. See Walker Cnty. School Dist. v. Bennett, 203 F.3d 1293, 1297 (11th Cir.2000) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). “To that end, administrative factfindings ‘are considered to be prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why.’ ” Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1314 n. 5 (11th Cir.2003) (quoting MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 531 (4th Cir.2002)). And yet, despite that call for deference to the administrative decision as to facts, the Eleventh Circuit Court of Appeals has stressed that “the district court conducts an entirely de novo review of the ALJ’s findings” in IDEA cases. Sch. Bd. of Collier County, Fla. v. K.C., 285 F.3d 977, 983 (11th Cir.2002) (emphasis added). To further erode the strength of the call for deference, the Court of Appeals has stated that “the extent of the deference to be given to the administrative decision is left to the sound discretion of the district court which must consider the administrative findings but is free to accept or reject them.” Bennett, 203 F.3d at 1297-98 (citing Jefferson Cnty. Bd. of Educ. v. Ala. Dep’t of Educ., 853 F.2d 853 (11th Cir.1988), and Doe v. Ala. Dep’t of Educ., 915 F.2d 651 (11th Cir.1990)). One “strand of authority” recognizes that “the degree of deference a district court should extend to the IDEA administrative determinations turns on whether the particular decision implicates the agency’s educational expertise.” See Escambia Cnty. Bd. of Educ. v. Benton, 406 F.Supp.2d 1248, 1257 n. 7 (S.D.Ala.2005) (using quoted language and citing Loren, 349 F.3d at 1314 n. 5 (“Courts owe some judicial deference to local administrative agency judgments [in IDEA cases], though that’s typically limited to matters calling upon educational expertise.”)). Other decisions, by courts of appeals that are not controlling but whose reasoning is nonetheless persuasive, suggest that the district court should accord greater deference to administrative determinations when a hearing officer’s findings appear “thorough and careful,” see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.1994), or where they turn on credibility determinations, see R.D. ex rel. Kareem v. District of Columbia, 374 F.Supp.2d 84, 89-90 (D.D.C.2005). The Eleventh Circuit has held that “each child and his or her IEP must be examined individually in determining whether the child has been provided ‘a basic floor of opportunity’ that affords ‘some’ educational benefit. The outcome need not maximize the child’s education; adequacy must be determined on a case by case basis in light of the child’s individual needs.” Bennett, 203 F.3d at 1296 n. 10. Although district courts are allowed to hear additional evidence at the request of the party, see § 1415(i)(2)(C)(ii), when no party introduces additional evidence in a civil suit seeking review, the motion for review operates as a motion for judgment based on the evidence comprising the record. As the parties did not request to submit new evidence in the instant matter, the court will treat the cross motions as motions for judgment based on the administrative record. IV. ANALYSIS OF ISSUES PRESENTED The issues presented on appeal fall into two categories: the “Appropriate Education” issue, raised by Lolita S.; and the “Independent Educational Evaluation” issue, raised by the Board. The court will address each separately. A. THE “APPROPRIATE EDUCATION” ISSUE The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free and appropriate education [FAPE] that 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). The Administrative Decision determined that the district provided M.S. with a FAPE based on his unique needs, but Lolita S. disagrees. The Supreme Court has formulated a two-part test to analyze whether a FAPE exists in cases arising under the IDEA: “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?” Board of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Lolita S. asserts that the court should overturn the Administrative Decision for three reasons, with subissues. The three reasons are that the hearing officer erred: (1) in finding that M.S. received a FAPE; (2) in finding that the district’s evaluation of M.S. was adequate; (3) in finding that the district complied with IDEA’S Child Find requirements; (4) in finding that the statute of limitations bars the claims arising before October 2009; (5) in finding that M.S. is not entitled to an award of compensatory education. The court will address these assertions in turn. 1. Did M.S. Received a FAPE? Lolita S. argues that M.S. did not receive a FAPE for six reasons: (1) insufficient evidence exists that M.S. progressed as a result of the IEP; (2) M.S.’s “meager” progress does not equate to a FAPE and does not comply with the IDEA; (3) the Decision fails to properly credit Dr. Ackerson’s testimony and report; (4) the record does not support the hypothesis that M.S.’s “meager” progress results from M.S.’s actions (alleged absences, missing assignments, etc.) instead of acknowledging the significance of M.S.’s disabilities; (5) the evidence does not support the hypothesis that M.S.’s “meager” progress results from M.S.’s low cognitive abilities; and (6) the Decision’s finding regarding transition services is contrary to the IDEA’S mandate. To ensure a comprehensive judicial determination for appellate purposes and to minimize inefficiencies on appeal, the court will address each of these legal issues. The court notes that Jefferson County’s brief failed to address these specific arguments. Instead, the brief block-quoted the hearing officer’s findings and argued generally that the district’s obligation was not to turn a slow, unmotivated learner into a fast learner. Block-quoting the Decision, which is already part of the Record available to the court, is less than helpful, and the court is left to address most of the specific issues raised without the benefit of any targeted response from Jefferson County. 1. & 2. Alleged failure to progress and/or “meager” progress In these two sections of Plaintiffs brief, she argues that M.S. did not progress as a result of the IEPs and their implementation in 2010-2012 or that his progress was so “meager” that it does not comply with the IDEA. The court understands that every parent wants to see her child progressing in school. The hope — and, indeed, the goal often expressed in the IEPs — is that, after the formulation and implementation of IEPs, positive results will ensue, and the child will become a successful student. The court notes at the outset, however, that a child’s failure to progress does not necessarily mean that the district has violated the IDEA and failed to provide a FAPE. The IDEA requires school systems to establish an IEP producing an educational program that is reasonably calculated at the time it is developed to lead to meaningful educational benefit. The IDEA does not require systems to produce such a program that actually results in a child’s academic success or even that actually results in meaningful progress. See Bd. of Educ. v. Rowley, 458 U.S. 176, 207 & 208-09, 102 S.Ct. 8034, 73 L.Ed.2d 690 (1982) (Although an IEP must be reasonably calculated to enable a child to receive a meaningful educational benefit, as the Senate report on this statute states, the special education process is “not guaranteed to produce any particular outcome.”). Similarly, a court does not measures FAPE by whether the student progresses on schedule to the next grade level, although whether he receives passing grades and, thus, progresses from grade to grade is one important factor, among many, that the hearing officer and court view in determining whether the IEP was reasonably calculated to provide a meaningful educational benefit. Id. at 207 & n. 28, 102 S.Ct. 3034. The IDEA does not call for judging the actions of the district based on hindsight or based on testing and expert evaluations that were not available to the district at the time of the IEPs’ formulation. See Susan N. v. Wilson School District, 70 F.3d 751, 762 (3rd Cir.1995); Roland M. v. Concord School Committee, 910 F.2d 983, 992 (1st Cir.1990). Instead, IDEA requires school district to p