# O.P. v. Jefferson County Board of Education

> District Court, N.D. Alabama · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9991526

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991526

## How later opinions describe it (automated extraction)

- holding, in a case challenging the implementation of an IEP, that “[a] child’s actual educational progress (or lack thereof

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

O.P., a minor, by and through her ]
father and next friend, M.P., ]
]
Plaintiff, ]
]
v. ] 2:22-cv-0030-ACA
]
JEFFERSON COUNTY BOARD ]
OF EDUCATION, ]
]
Defendant. ]

MEMORANDUM OPINION

O.P. is a young child with significant physical disabilities. She has serious
difficulties with both gross motor skills like walking, jumping, and climbing, and
fine motor skills like handwriting. To address these difficulties, and as required by
the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., each
school year the Jefferson County School District and O.P.’s parents created
individualized education plans setting out annual goals. The plans provided that the
Jefferson County School District would provide physical therapy and occupational
therapy as “related services” to help O.P. advance appropriately toward her annual
goals. During O.P.’s first grade year, her parents requested a due process hearing on
the ground that Defendant Jefferson County Board of Education had denied O.P. a
free appropriate public education in kindergarten and first grade because the amount
of physical therapy and occupational therapy was inadequate to help O.P. reach her
annual goals. The hearing officer found that the Board had not denied O.P. a free

appropriate public education. In this lawsuit, O.P.’s father, Plaintiff M.P., challenges
that determination.
Both parties move for judgment on the administrative record. Because the

record supports the hearing officer’s determination that the Board did not deny O.P.
a free appropriate public education, the court WILL DENY M.P.’s motion and
WILL GRANT the Board’s motion.
I. LEGAL FRAMEWORK

The IDEA aims to provide “a free appropriate public education that
emphasizes special education and related services” for all children with disabilities.
20 U.S.C. § 1400(d)(1)(A); see also id. § 1412(a)(1)(A) (requiring States that

receive federal assistance under the IDEA to submit a plan ensuring that children
with disabilities receive a free appropriate public education); Loren F. ex rel. Fisher
v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1311 (11th Cir. 2003). A free appropriate
public education includes both “special education and related services.” 20 U.S.C.

§ 1401(9). Special education means “specially designed instruction . . . to meet the
unique needs of a child with a disability.” Id. § 1401(29). Related services are “such
developmental, corrective, and other supportive services (including . . . physical and

occupational therapy, recreation, . . . and medical services, except that such medical
services shall be for diagnostic and evaluation purposes only) as may be required to
assist a child with a disability to benefit from special education.” Id. § 1401(26)(A).

To provide a free appropriate public education, the Board, working together
with the child’s parents, develops an individualized education plan (“IEP”). 20
U.S.C. § 1414(d)(1)(A)–(B); M.M. ex rel. C.M. v. Sch. Bd. of Miami-Dade Cnty.,

437 F.3d 1085, 1095 (11th Cir. 2006). An IEP is a written statement that sets out
“measurable educational goals and special needs of the child, establishes how the
child’s progress will be measured and reported, and states the services available,
based on peer-reviewed research, to enable the child to attain the goals, advance

educationally, and participate with disabled and nondisabled children.” K.A. ex rel.
F.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195, 1201 (11th Cir. 2013) (footnote
omitted); see 20 U.S.C. § 1414(d)(1)(A)(i).

If the child’s parents object to the IEP, they can file a due process complaint.
20 U.S.C. § 1415(b)(6); M.M. ex rel C.M., 437 F.3d at 1096. After a due process
hearing, the hearing officer issues his decision. 20 U.S.C. § 1415(f). Any party
aggrieved by the hearing officer’s decision may file a civil lawsuit in the district

court. 20 U.S.C. § 1415(i)(2)(A). Although the civil lawsuit involves judicial review
of an administrative decision, it differs in important ways from a typical
administrative appeal. See Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett, 203

F.3d 1293, 1297 (11th Cir. 2000); see also M.M. ex rel. C.M., 437 F.3d at 1097
(“[T]he federal action is an independent civil action and not merely a review of a
state administrative decision . . . .”). The court should give “‘due weight’ to the

[hearing officer’s] decision, and must be careful not to substitute its judgment for
that of the state educational authorities,” R.L. v. Miami-Dade Cnty. Sch. Bd., 757
F.3d 1173, 1178 (11th Cir. 2014) (some quotation marks omitted), but the court “is

free to accept the [hearing officer]’s conclusions that are supported by the record and
reject those that are not so long as it explains any rejections,” L.J. by N.N.J. v. Sch.
Bd. of Broward Cnty., 927 F.3d 1203, 1210 (11th Cir. 2019) (quotation marks
omitted). In addition, the court is permitted to make findings about disputed facts

based on a preponderance of the evidence. Loren F. ex rel. Fisher, 349 F.3d at 1313–
14. Bearing this framework in mind, the court turns to the facts presented in this
case.

II. BACKGROUND
O.P. is a young girl diagnosed with hydrocephalus (a condition involving
accumulation of “excessive cerebrospinal fluid” in the brain), Dandy-Walker
Malformation (a “congenital brain malformation involving the cerebellum and the

fluid filled spaces around it”), cleidocranial dysplasia (a condition affecting teeth
and bones), an open fontanel (an unfused space between the bones of the skull), a
missing right clavicle, a small left clavicle, radioulnar synostosis (a “fusion of

portions of the radius and ulna” in one arm), midfoot pronation, a narrow pelvis, hip
dysplasia, hypotonia (a “low state of muscle tone”), astigmatism, and strabismus
hypertropia (in which one eye turns upward). (Doc. 11-20 at 1–2 ¶¶ 3–15).

In August 2020, O.P. enrolled in the Jefferson County School District as a
kindergartner. (Id. at 3 ¶ 26; see doc. 11-30 at 90). Because of the COVID-19
pandemic, the school district offered students the option to participate in virtual

instruction instead of in-person learning. (Doc. 11-20 at 3 ¶ 28; doc. 27-1 at 19). On
the advice of O.P.’s physician, O.P.’s parents chose to participate in virtual
instruction because her various diagnoses put her at a high risk for COVID-19. (Doc.
11-20 at 3 ¶ 29; doc. 27-1 at 19).

The 2020–2021 school year began on September 1, 2020. (Doc. 11-20 at 3
¶ 31). In September, Wendy Speigle, a district-employed occupational therapist,
reviewed O.P.’s preschool IEPs and wrote an “Occupational Therapy IEP

Summary,” in which she recommended providing O.P. with thirty minutes of
occupational therapy once a month, to focus on “fine motor skills and effective
handwriting strategies.” (Doc. 11-30 at 62; see also doc. 27-1 at 48). In October,
Mallory Lambeth, a school district physical therapist, performed an evaluation of

O.P., finding that her strength and range of motion were within functional limits but
that she fatigued when walking long distances and required supervision and
increased time on stairs, as well as close supervision during physical education.
(Doc. 11-30 at 82). Ms. Lambeth recommended monthly physical therapy consults
with O.P.’s teachers and staff. (Id.).

O.P.’s IEP team met in October 2020 and determined that O.P. needed
occupational therapy “in the areas of fine motor skills and effective handwriting
strategies” and physical therapy “in the areas of reducing fatigue, promoting safety,

and participating in activities with peers.” (Doc. 11-30 at 91). In the fine motor skills
area, the IEP set a goal for O.P. to be able to independently write her first and last
name in four out of five trials by October 2021. (Id. at 93). In the gross motor skills
area, the IEP set a goal for O.P. to be “able to ambulate throughout the school

environment on level and unlevel surfaces with safety and no loss of balance in 3/4
trials.” (Id. at 94).
Under the IEP, the school agreed to provide direct occupational and physical

therapy services once monthly for thirty minutes each. (Doc. 11-30 at 95). The IEP
also provided that each week, the school’s exceptional education teacher would
provide O.P. with thirty minutes of specialized instruction “in the area of writing for
writing her first and last name focusing on letter formation and pencil grip in small

group or 1-on-1 setting” and thirty minutes of specialized instruction “in the area of
gross-motor/mobility to promote safety when walking on level and unlevel surfaces,
in a small group or 1-on-1 setting.” (Id.). After the IEP team’s October 2020 meeting,

an adapted physical education instructor recommended inclusion of adapted physical
education programming, so in November 2020 the team modified the IEP to include
that recommendation. (Doc. 11-20 at 3 ¶¶ 36–38; see also doc. 11-30 at 109; doc.

11-31 at 2).
During the 2020–2021 school year, O.P. only received monthly occupational
therapy services from Ms. Speigle over the internet. (Doc. 11-31 at 72, 78, 80, 82–

86, 89; doc, 27-1 at 19–20, 49). Ms. Speigle testified that she “saw a general
improvement in [O.P.’s] skills between sessions.” (Doc. 27-1 at 50). O.P.’s special
education teacher also noted improvement in O.P.’s ability to write her own name
over the course of the school year. (Doc. 11-31 at 42, 45).

In May 2021, O.P.’s IEP team met to discuss transitioning her from virtual
learning to traditional school. (Doc. 11-20 at 4 ¶ 40; doc. 11-31 at 54). Two months
later, O.P.’s father, M.P., filed a due process complaint challenging, among other

things, the amount of occupational and physical therapy offered to O.P. (Doc. 11-1
at 1, 13–18). The hearing officer held a due process hearing on November 17, 2021.
(Doc. 27-1 at 1).
In the meantime, Ms. Speigle reevaluated O.P. in October 2021. (Doc. 11-32

at 39–40). She performed the evaluation in the controlled environment of the
school’s therapy room. (Doc. 27-1 at 51). Based on the “Beery Test of Visual Motor
Integration,” an informal handwriting assessment, and her own knowledge of the

writing demands in first grade, Ms. Speigle found that O.P. needed occupational
therapy services “in the areas of fine motor, visual attention, handwriting,
keyboarding, and self help skills.” (Doc. 11-32 at 40; see doc. 27-1 at 61). She

defined “self help skills” to include a child’s ability to “[tie] shoes, manag[e] [her]
own clothes for toileting, open[ ] packages in the lunchroom.” (Doc. 27-1 at 53).
At O.P.’s due process hearing, Ms. Speigle testified that she knew before she

did the reevaluation that O.P. would need more occupational therapy than she had
received in kindergarten because the demands on students are higher in first grade
than in kindergarten. (Doc. 27-1 at 61). Specifically, kindergarten focuses on writing
letters, while first grade focuses on simple sentences. (Id. at 55). After O.P.’s

reevaluation, Ms. Speigle recommended that the school increase the amount of
direct occupational therapy from thirty minutes monthly to thirty minutes weekly.
(Doc. 11-32 at 40; compare doc. 11-30 at 95). The direct occupational therapy

services would focus on “fine motor activity with an academic slant to it that can
improve hand dexterity, hand strength, grip strength, that is helpful in her reaching
her writing—her written expression goal.” (Doc. 27-1 at 56). Ms. Speigle’s
recommendation was based on O.P.’s level of function and the need to limit “pull-

out time for services so that she is not missing as much time in the general education
curriculum, whole-group time and instructional time.” (Id. at 55).
In early October 2021, Christine Jones, a school district physical therapist,

reevaluated O.P. by observing her during lunch, recess, and her adapted physical
education class. (Doc. 11-32 at 41–43; Doc. 27-1 at 70–71). Ms. Jones determined
that O.P. could walk safely and independently on level surfaces throughout the

school building, up and down a curb, and on slightly unlevel surfaces such as the
playground. (Doc. 11-32 at 42). The school had no stairs that O.P. would have to
climb during the school day, but the gymnasium had three steps that O.P. could climb

up without the use of the handrail and could climb down with the use of the handrail.
(Id.). However, “due to medical concerns,” O.P. needed adult supervision
throughout the day and during physical education and recess. (Id. at 43). Ms. Jones
found that, based on the Berg Balance Scale, O.P. had a “low fall risk.” (Id.).

Based on this reevaluation, Ms. Jones recommended once monthly
consultative physical therapy. (Doc. 11-32 at 43). Consultative physical therapy
would require Ms. Jones to meet and confer with O.P.’s general education teacher,

special education teacher, physical education teacher, and paraprofessional, but
would not involve any work directly with O.P. unless an issue presented itself. (Doc.
27-1 at 72).
The IEP team met on October 5 and October 12, 2021 to conduct an annual

review of O.P.’s IEP. (Doc. 11-20 at 4 ¶¶ 54–55; doc. 27-1 at 22). The 2021 IEP
found that O.P. had met the 2020 IEP’s goals of (1) independently writing her first
and last name in four out of five trials with 80% accuracy and (2) ambulating safely

through the school environment on level and unlevel surfaces with no loss of balance
but with adult supervision. (Doc. 11-32 at 49). The 2021 IEP further found that
O.P.’s handwriting had improved but she needed a model to write her responses and

required more time to provide answers. (Id. at 48–49). It set new goals for O.P.,
including: (1) being able to write numbers up to fifty, in four out of five trials, with
80% accuracy; and (2) being able to write simple sentences that convey meaning,

with and without a model, in four out of five trials. (Doc. 11-32 at 54–55).
Under the IEP, each week O.P. would receive four thirty minute sessions of
specialized instruction from the exceptional education teacher focusing on math,
including writing numbers; four thirty minute sessions focusing on reading; two

thirty minute sessions focusing on writing simple sentences; and one weekly session
of adapted physical education to work on motor skills. (Id. at 57). Each week, she
would receive one thirty minute session of occupational therapy. (Id. at 57). And

each month, she would receive one monthly thirty minute session of physical therapy
(which, in excess of Ms. Jones’s recommendation, would be a direct service instead
of a consultative service). (Id. at 57–58). The IEP also provided for other
accommodations, such as additional time to complete assignments, shorter

assignments, fewer answer choices, oral responses when appropriate, and the
availability of a touchscreen computer. (Id. at 58–59).
Shortly after the IEP team met, Katie Beaton, an independent physical

therapist who began treating O.P. when she was three years old, evaluated O.P. at
her parents’ request. (Doc. 11-32 at 64; doc. 27-1 at 23, 38). Ms. Beaton performed
the evaluation in a controlled environment, not at school. (Doc. 27-1 at 40, 45). She

found that O.P. was able to walk independently on all surfaces but had decreased
confidence on uneven surfaces; she was able to climb a few steps without a railing
but needed the railing afterward, and she could not descend the stairs with an

alternating gait unless she used the railing. (Doc. 11-32 at 65; doc. 27-1 at 39). She
also found that O.P. was “a fall risk for situations such as stairs, uneven surfaces,
playground equipment.” (Doc. 11-32 at 65). Ms. Beaton testified that O.P.’s
difficulties with locomotion affected her ability to access her education because it

made interacting with friends on the playground or maneuvering through a
lunchroom with a tray difficult. (Doc. 27-1 at 41).
Ms. Beaton recommended two monthly physical therapy sessions of sixty

minutes each so that O.P. could meet the goals of being able to ascend and descend
stairs using alternating feet without a railing; being able to walk in line with
classmates at the same speed; and being able to play safely on playground
equipment. (Doc. 11-32 at 65–66; see doc. 27-1 at 43 (testifying that these goals

were necessary for O.P.’s education)). Ms. Beaton testified that she did not believe
thirty minutes of physical therapy once per month would allow O.P. to access her
education and the goals she set were intended to advance O.P. to the maximum

possible extent. (Doc. 27-1 at 42, 45).
Later that month, Nicole Rollier, an independent occupational therapist who
began treating O.P. when she was ten weeks old, also completed an evaluation of

O.P. (Doc. 27-1 at 23, 27–28). Like Ms. Speigle, she did the Beery Test of Visual-
Motor Integration as well as a handwriting evaluation. (Id. at 29–31). She found that
O.P. could write her first name with difficulty, though she improved when given a

visual guide. (Doc. 11-32 at 68; doc. 27-1 at 31). O.P. could not write the sentence,
“The quick brown fox jumped over the lazy dog”: her writing was outside the lines
on the paper, she switched her motor patterns and the hand she was using, she had
difficulty with letter formation, and she gave up the attempt after three words. (Doc.

11-32 at 68; doc. 27-1 at 31).
Ms. Rollier recommended twice weekly thirty minute school-based
occupational therapy to address “motor planning, strength/endurance, visual-motor

integration, visual-motor coordination and writing and self help skills.” (Doc. 11-32
at 69). She also recommended outpatient occupational therapy twice monthly for
sixty minutes to assist with visual motor integration/coordination and handwriting.
(Id.). Ms. Rollier opined that Ms. Speigle’s recommendation of once weekly thirty

minute occupational therapy was insufficient because O.P.’s deficit was “pretty
significant . . . , which directly affects her academics. Reading, writing, math, all of
those skills. And so I think to maximize her potential . . . . she absolutely needs

outpatient and school system therapy.” (Doc. 27-1 at 34–35).
The hearing officer held the due process hearing on November 17, 2021. (Id.
at 1). At the hearing, O.P.’s mother, M.J.P., testified that contrary to the statement

in the 2021 IEP, O.P. could not write her last name; her writing of her first name was
“barely legible”; and she could not write even simple three-word sentences. (Id. at
15–16; see also id. at 59). She also could not zip or unzip shoes, zip up a jacket

unless someone else got the zipper started, or manipulate buckles or clothing with
snaps. (Id. at 17). M.J.P. further testified that because of O.P.’s open fontanel and
fragile bones, a minor fall could cause a traumatic brain injury. (Doc. 27-1 at 14).
O.P. was required to wear a helmet when she was younger, but no longer wore one

by the time of the due process hearing. (Id. at 23).
At the hearing, M.J.P. played videos of O.P. showing: (1) O.P. walking with
a marching gait on the school’s playground, stumbling slightly on the uneven ground

(doc. 27-1 at 10; PX05A1); (2) O.P. briefly interacting with another student,
attempting to climb on the playground equipment, and tripping and falling to her
hands and knees (doc. 27-1 at 10–11; PX05B); (3) O.P. attempting to sit with the
teachers, who encouraged her to return to the playground (doc. 27-1 at 11; PX05C);

(4) O.P. walking up some stairs without a handrail (doc. 27-1 at 7–8; PX07A);
(5) O.P. walking down some stairs without a handrail but with significant difficulty

1 The videos were submitted conventionally under seal. (Doc. 10). The court cites them
using the same labels given in the notice of conventional filing.
(doc. 27-1 at 8; PX07B); and (6) O.P. stepping onto and jumping off a box step with
the assistance of an adult and with great hesitance (doc. 27-1 at 8–9; PX08A). All

the videos were recorded in the summer of 2021, between O.P.’s kindergarten and
first grade years. (Doc. 27-1 at 9, 11).
At the due process hearing, Ms. Jones (the school’s physical therapist)

testified that she had reviewed Ms. Beaton’s independent physical therapy
evaluation. (Id. at 73). Ms. Jones noted that Ms. Beaton’s evaluation was very
similar to her own, but she disagreed with Ms. Beaton’s recommendation that the
school should provide two monthly sixty-minute sessions or pay for outpatient

physical therapy. (Id. at 73–74). She testified that, while more physical therapy
would certainly benefit O.P., the school-provided physical therapy of one monthly
thirty-minute visit was sufficient to allow O.P. to be safe and independent in the

school environment, especially when considered in conjunction with O.P.’s adapted
physical education, which also focused on gross motor skills in the areas of balance,
strength, and hand/eye coordination. (Id.).
Similarly, Ms. Speigle testified that she had reviewed Ms. Rollier’s

occupational therapy evaluation. (Doc. 27-1 at 57). She, too, concluded that
Ms. Rollier’s evaluation was similar to hers but disagreed with the extent of school-
based occupational therapy recommended. (Id.). She testified that her

recommendation of one sixty minute session per week, in conjunction with
consultation with the classroom staff and special education manager, was sufficient
to address O.P.’s educational needs. (Id. at 57–58). She testified that outpatient

physical therapy is aimed at medical improvement, but school-based occupational
therapy is directed at reaching the goals set out in the IEP. (Id. at 63).
O.P.’s first grade teacher, Ashley Barnes, testified that, in addition to

occupational and physical therapy, O.P. received special education services and
assistance on tests. (Doc. 27-1 at 78, 84). Ms. Barnes felt that additional therapy
sessions could impact O.P.’s progress in class because each therapy session meant
she was not receiving in-class instruction, either with the whole class or in small

groups. (Id. at 86). Ms. Barnes had already noticed progress with O.P.’s handwriting,
and she also offered O.P. accommodations like providing lines on the paper, more
space for answers, or accepting oral responses. (Doc. 27-1 at 79, 80, 83–84).

As far as gross motor skills, Ms. Barnes testified that O.P. could navigate
through the school. (Doc. 27-1 at 81). O.P. sometimes “veer[ed]” when walking on
her own but always had the option to hold Ms. Barnes’ hand, in which case she could
usually walk in a straight line. (Id.). In the “week or two” before the hearing,

Ms. Barnes had noticed O.P. walking with her shoulder on the wall, but she had not
yet had a chance to discuss that development with Ms. Jones. (Id.).
The hearing officer concluded that the Board had not denied O.P. a free

appropriate public education in either kindergarten or first grade with respect to
either occupational therapy or physical therapy. (Doc. 11-40 at 8–17). He found that
the IEP team set the occupational therapy requirements based on knowledge of

O.P.’s specific deficits, focused on handwriting in kindergarten because self-help
skills like buttoning and snapping were too difficult to do remotely, and offered other
therapies, consultations, and specialized education that would spill over into the

same territory as occupational therapy. (Id. at 10–13). With respect to physical
therapy, the hearing officer found that the school was not required to treat or
rehabilitate O.P.’s disabilities, the IEP was based on prospective judgment and did
not have to aim to maximize a student’s progress, and O.P.’s lack of progress did

not necessarily show that the goals were inadequate when they were formed. (Id. at
16–17).
M.P. then filed this case challenging “all issues on which [he] did not prevail

in [the] hearing officer[‘s] decision.” (Doc. 13 at 24 ¶ 78). M.P. seeks a finding that
the Board denied O.P. a free appropriately public education, an award of
compensatory education, and attorney’s fees and costs. (Id. at 27 ¶¶ 93–101).
III. DISCUSSION

The parties have both moved for judgment on the administrative record.
(Docs. 22, 23). M.P. contends that the Board denied O.P. a free appropriate public
education by failing to adequately evaluate O.P.’s need for physical and

occupational therapy and by failing to provide sufficient physical and occupational
therapy during her kindergarten and first grade years. (Doc. 22 at 18–30). The Board
contends that it provided all the occupational and physical therapy necessary for O.P.

to access her education. (Doc. 23 at 21–31).
“To meet its substantive obligation under the IDEA, a school must offer an
IEP reasonably calculated to enable a child to make progress appropriate in light of

the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist.
RE-1, 137 S. Ct. 988, 999 (2017). Because “crafting an appropriate program of
education requires a prospective judgment by school officials,” a court reviewing
the adequacy of an IEP “must appreciate that the question is whether the IEP is

reasonable, not whether the court regards it as ideal.” Id. (emphasis in original).
“[F]or a child fully integrated in the regular classroom,” reasonableness typically
means the IEP is “reasonably calculated to enable the child to achieve passing marks

and advance from grade to grade” or “to permit advancement through the general
curriculum.” Id. at 999–1000 (quotation marks omitted).
The IEP must seek to enable “more than de minimis” progress. Id. at 1000.
But a school is not required to offer or provide the “‘best’ program” or to maximize

a child’s potential. M.M. ex rel. C.M., 437 F.3d at 1102; see also Endrew F. ex rel.
Joseph F., 137 S. Ct. at 1001 (rejecting the argument that a free appropriate
education is one “that aims to provide a child with a disability opportunities to

achieve academic success, attain self-sufficiency, and contribute to society that are
substantially equal to the opportunities afforded children without disabilities”); Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S.

176, 189 (1982) (explaining, in a case about the predecessor statute to the IDEA,
that “if personalized instruction is being provided with sufficient supportive services
to permit the child to benefit from the instruction, . . . the child is receiving a ‘free

appropriate public education’ as defined by the Act”).
1. Occupational Therapy
M.P. contends that the Board denied O.P. a free appropriate public education
in kindergarten because (1) Ms. Speigle did not evaluate O.P. in preparation for the

2020 IEP; and (2) Ms. Speigle did not work on self-help skills like snapping and
buttoning during O.P.’s kindergarten year. (Doc. 22 at 18–20). M.P. argues that the
Board denied O.P. a free appropriate public education in first grade because O.P.’s

handwriting and other fine motor skills have not progressed adequately. (Id. at 20–
23; doc. 24 at 10–13, 16–25).
For its part, the Board contends that (1) Ms. Speigle’s October 2020
recommendation about the amount of occupational therapy the school should offer

to O.P. was based on O.P.’s previous records, even though she did not do an in-
person evaluation; (2) the other services, including specialized education and
teacher-therapist consultation, buttressed the direct occupational therapy services;

(3) progress is not dispositive in showing the denial of a free appropriate public
education, but even so, O.P. has made progress; (4) more out-of-classroom time
could harm O.P.’s progress; and (5) Ms. Rollier’s recommendations stem from a

goal of maximizing O.P.’s potential and addressing O.P.’s medical, rather than
educational, needs. (Doc. 23 at 21, 23–28; doc. 25 at 19–20, 24–27).
O.P. has not shown a denial of her right to a free appropriate education in

either kindergarten or first grade based on the amount of occupational therapy
provided by the school. The evidence shows that, although Ms. Speigle did not do
an independent evaluation of O.P. before the creation of the 2020 IEP, she reviewed
O.P.’s previous and unchallenged IEPs. (Doc.27-1 at 48). The court further finds no

reason to disregard the hearing officer’s finding that “[a] review of the IEPs and
transcript would indicate that Ms. Speigle did indeed have knowledge of [O.P.]’s
specific deficits.” (Doc. 11-40 at 11). Likewise, O.P. has not shown by a

preponderance of the evidence how the IEP’s failure to address—or Ms. Speigle’s
failure to work on—“self-help” skills like buttoning, snapping, and zipping denied
her a free appropriate education, given that O.P. can wear clothing that does not have
buttons, snaps, or zippers, or can seek the assistance of a teacher if she does wear

clothing or shoes that she cannot manipulate on her own.
Finally, given the evidence in this case and the prospective nature of drafting
IEPs, O.P.’s progress (or lack of progress) is insufficient to show that the IEPs were

not reasonably calculated to enable O.P. to advance. See Endrew F. ex rel. Joseph
F., 137 S. Ct. at 999–1000. Even if O.P.’s progress were de minimis—which the
court does not find on this record—a lack of progress is not dispositive. Cf. L.J. by

N.N.J., 927 F.3d at 1214 (holding, in a case challenging the implementation of an
IEP, that “[a] child’s actual educational progress (or lack thereof) can be evidence
of the materiality of an implementation failure—but it is not dispositive. . . . [S]ome

evidence of success—or failure—in achieving certain outcomes is not outcome-
determinative here any more than it is in a [case challenging the content of an
IEP].”). It is an unfortunate reality that “the IDEA cannot and does not promise any
particular educational outcome. No law could do that—for any child.” Endrew F. ex

rel. Joseph F., 137 S. Ct. at 998 (cleaned up).
Because M.P. has not shown the denial of a free appropriate public education
in either kindergarten or first grade based on the provision of occupational therapy

services, the court WILL DENY M.P.’s motion for judgment on the administrative
record and WILL GRANT the Board’s motion.
2. Physical Therapy
M.P. contends that the Board denied O.P. a free appropriate public education

in kindergarten and first grade because (1) Ms. Jones’s evaluation of O.P.’s fall risk
was based on an evaluation in a controlled environment instead of an uncontrolled
environment like a school hallway or playground or in light of O.P.’s tendency to

fall when fatigued; (2) O.P. has not progressed in her ability to ambulate in all the
scenarios she encounters during a school day, denying her full access to her
education; and (3) the Board erroneously relied on a false distinction between

“medical” and “educational” purposes in declining to provide more physical therapy
to O.P. (Doc. 22 at 24–30; doc. 24 at 14–16, 27–32).
The Board contends that it satisfied its obligation to prepare adequate IEPs

because (1) O.P.’s parents elected virtual learning for O.P.’s kindergarten year and
did not tell Ms. Lambeth during that year that O.P. needed anything more than she
was receiving; (2) the IEP team considered that more out-of-classroom time could
harm O.P.’s educational goals; (3) Ms. Beaton’s recommendations seek to maximize

O.P.’s potential and address her medical, rather than her educational, needs; and
(4) the reasonableness of the IEP cannot be judged based on lack of progress. (Doc.
23 at 22, 25–26, 29–30; doc. 25 at 19, 28–29).

The court finds that O.P. has not proved by a preponderance of the evidence
that the Board denied her a free appropriate public education based on the provision
of physical therapy services. With respect to Ms. Jones’ evaluation of O.P.’s fall
risk, the evaluation and Ms. Jones’ testimony indicate that the formal Berg Balance

Scale test was conducted in a controlled environment (doc. 11-32 at 43), but
Ms. Jones also observed O.P. “during lunch and recess, as well as adapted physical
education” (id. at 41; doc. 27-1 at 70–71 (“I observed her in all facets of the school

environment just to make sure that she could . . . access her school environment.”).
With respect to O.P.’s progress, the court again finds that evidence presented in this
case does not support M.P.’s suggestion that lack of progress establishes that O.P.’s

IEPs were not reasonably calculated to enable progress, especially when considering
the provision of adapted physical education intended to develop O.P.’s motor skills
in “[a]ll school environments to include: gymnasium, hallway, playground, school

track, school football field, classroom, auditorium, and therapy room.” (Doc. 11-31
at 3; doc. 11-32 at 57); see Endrew F. ex rel. Joseph F., 137 S. Ct. at 999–1000; cf.
L.J. by N.N.J., 927 F.3d at 1214.
Finally, the court is not persuaded by M.P.’s argument regarding the

medical/educational distinction. (See doc. 22 at 29–30; doc. 24 at 31–32). The court
accepts the hearing officer’s finding that, when drafting the IEP, the Board declined
to offer additional physical therapy because it believed the amount of physical

therapy offered was sufficient to enable O.P. to meet her annual goals. (See doc. 11-
40 at 17). This is especially true when considering the provision of adapted physical
education, which focused on many of the same gross motor skills (see doc. 11-31 at
3; doc. 11-32 at 57; doc. 27-1 at 73–74), and the balance the school must strike in

providing pull-out services and in-classroom services (doc. 27-1 at 56, 86).
Because M.P. has not shown the denial of a free appropriate public education
in either kindergarten or first grade based on the provision of physical therapy
services, the court WILL DENY M.P.’s motion for judgment on the administrative
record and WILL GRANT the Board’s motion.
IV. CONCLUSION
The court is deeply sympathetic to O.P.’s parents’ wish for O.P. to receive
services that will maximize her educational opportunities and cause her to progress
in school at the same pace as her classmates. Unfortunately, the IDEA does not
require a school district to maximize a child’s potential, nor can it promise—or
deliver—progress at any particular pace for any child. Because M.P. has not shown
that the Board denied O.P. a free appropriate public education based on its provision
of occupational and physical therapy, the court WILL DENY M.P.’s motion for
judgment on the administrative record and WILL GRANT the Board’s motion for
judgment on the administrative record.
The court will enter a separate judgment consistent with this opinion.
DONE and ORDERED this February 7, 2023.
Lo
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991526. Public record. Not legal advice.