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Michael J. v. Derry Township School Dist.

January 19, 2006


The opinion of the court was delivered by: Yvette Kane United States District Judge


I. Introduction

This case arises under the Individuals with Disabilities Education Act of 1997 ("IDEA"), 20 U.S.C. §§ 1400-1487 (2005), on appeal from a decision of the Special Education Due Process Appeals Panel of the Commonwealth of Pennsylvania ("Appeals Panel"). The underlying action was commenced on behalf of Patrick J., an eleven-year old boy with autism, by his parents, Michael J. and Deirdre J. ("Plaintiffs"). Plaintiffs claim that Defendant, Derry Township School District, failed to fulfill its statutory obligations under the IDEA to offer Patrick a free and appropriate public education, and that they should be reimbursed for Patrick's private school tuition with the Vista School, a school that Michael's parents established specifically to educate autistic children in Hershey, Pennsylvania.

Pursuant to a stipulation, the parties agreed to submit this matter to the Court for disposition on the administrative record. After review of the entire administrative record and applicable law, the Court makes the following decision on the issues presented. Before turning to the cross motions for judgment on the administrative record, the Court will first briefly address Defendant's motion to exclude the report and testimony offered by Plaintiff's expert, Andrew Klein. (Doc. No. 34.)

II. Motion to Exclude Andrew Klein's Testimony

Mr. Klein is a Certified Mediator in Educational Disputes, and a former regular and special education teacher, as well as a former hearing officer. (Doc. No. 34, Ex. C, Curriculum Vitae of Andrew M. Klein.) He was retained by Plaintiffs to "offer an opinion regarding the appropriateness of the school district's substantive and procedural undertakings regarding developing a free appropriate education [FAPE] for Patrick in the least restrictive environment [LRE]." (Doc. No. 34, Ex. A, Report of Andrew Klein.) In his report offered as an expert report, Dr. Klein reaches the conclusion that "[the individualized education program developed for Patrick] was not reasonably calculated to provide meaningful educational benefit to Patrick on the day it was finalized." (Id.) Mr. Klein also concludes that "the district's offer of FAPE in the LRE at Derry Township Elementary School was inadequate, insufficient and inappropriate . . . ." (Id.) Having established during his deposition that he is not an expert in the field of autism or in the area of educating children with autism, Defendants moved to exclude Mr. Klein's testimony on the basis that Mr. Klein is not a qualified as an expert in this case, and because the testimony was both unreliable and offers inappropriate legal conclusions that are of no assistance to the Court. Plaintiffs generally counter that Dr. Klein is qualified as an expert to testify about the adequacy of the IEP developed for Patrick, and that the report will be helpful to the Court as trier of fact.

Upon consideration, the Court finds the dispute over Mr. Klein's testimony and report to be largely misplaced. The Court agrees with Plaintiff that because the Court is the factfinder in this action, there is little concern over the factfinder being unduly swayed or prejudiced by the expert's "aura of infallibility." The Court also agrees with Defendant that Mr. Klein's report is not especially helpful in resolving the issues before the Court and adds little the Plaintiff's argument or to the record in this case. Additionally, the Court agrees that, ultimately, Mr. Klein strays into testifying about the ultimate legal issues presented in this action. Nevertheless, the Court finds it unnecessary to "exclude" the report. Rather, the Court has reviewed Mr. Klein's report and his conclusions, and has found them to offer very little assistance to the Court. Accordingly, acknowledging the position of both parties, Defendant's motion to exclude Mr. Klein's report and testimony will be denied.

Having resolved the foregoing dispute, the Court turns to the cross motions for judgment on the administrative record, beginning with a discussion of the facts relevant to this case.

III. Factual Background

Patrick J. was born on August 28, 1994 and resides with his parents, Michael and Deirdre, in Hummelstown, Pennsylvania, which is within the Derry Township School District ("District"). At all times relevant to this dispute, Patrick and his parents have resided within the District.

Immediately after the birth of Patrick and his twin brother, Sean, the boys were placed in a neo-natal intensive care unit ("NICU") and received antibiotic treatment to treat against pneumonia. Due to their placement in the NICU, the brothers were eligible for an infant development program sponsored by the hospital. During this time, a developmental pediatrician diagnosed Patrick with pervasive developmental delay ("PDD"). (N.T. 1159, 1166.) In 1994, Dr. Thomas Bowers identified Patrick as autistic. (Pl. Ex. 3.)

Concerned that Patrick was not progressing adequately, in August 1997 his parents undertook to develop a home therapeutic program built upon the theory of Applied Behavioral Analysis ("ABA"). Relying upon their own resources, Patrick's parents contracted with Rutgers University to obtain a consultant to train the parents and other service providers in ABA methods. Between September 1997 through December 2001, Patrick received intensive ABA-based services in the home a minimum of 40 hours per week. It is clear from the record that Patrick made significant progress in the home-based program, and the family achieved the ability to communicate meaningfully with Patrick and to impart basic life skills. At the same time, Patrick continued to resort to his idiosyncratic behaviors when intensive structure was relaxed, often fascinated by private rituals and self-stimulatory behaviors, and unaware of the need to communicate with others. (N.T. 887, 891, 1146-1154, 1166-1167, 1169, 1286-1289; Pl. Exs. 8 & 47.)

ABA is a systematic, analytical approach to addressing learning as a function of behavior that targets concrete and measurable goals, utilizes constant and consistent data to analyze what techniques are working and how, and draws upon a system of planned reinforcements to bring an autistic child into a world where the child can communicate and function independently. ABA is marked by consistency and intensity. During initial phases of ABA, educators and therapists rely upon Discrete Trial Training ("DTT"), which provides a systematic and rapid reward based training for each step of the skills being taught. ABA utilizes DTT in order to assure that a student begins to master and generalize skills in less restrictive and more natural settings. In order to achieve the goal of generalization, an ABA program requires implementation by a trained staff, supervision by experienced ABA consultants, and delivery in a variety of settings.

(N.T. 748-796, 811-824, 908-09, 1059-1076, 1115-1122; Pl. Ex. 14.)

The parents continued with their home ABA program through 1998 and 1999, employing their own resources as well as medical assistance from an outside program called Provider 50. During this time, Patrick had an individualized education program ("IEP"), and received occupational therapy ("OT") from services provided by the Capital Area Intermediate Unit 15 ("IU-15"), which is contracted to provide special education services to the District. During early 1999, Patrick began attending the Derry Township Pre-School Program ("Derry Preschool") two afternoons per week, at all times accompanied by an aide from his home program. Patrick made progress during this period. (N.T. 897, 899, 1028, 1029, 1056-1058, 1146-1154, 1173, 1176, 1291-1297, 1346-1348, 1369-1371.)

During the 1999-2000 school year, Patrick received educational services in the Derry Preschool three mornings a week, in addition to immersion in the parents' intensive home therapeutic program and receipt of services provided by IU-15. The IU-15 prepared an IEP for Patrick during this time that included services in speech and language, occupational therapy, and inclusion services. Patrick continued to make progress in the home ABA program. (N.T. 362, 363, 901-904, 1062, 1304, 1306, 1346-1348; Pl. Ex. 49, p. 99.)

Although Patrick reached school age and was eligible to begin transitioning to a school-age program at the end of the 1999-2000 school year, his parents elected to keep him in the intensive home-based program for an additional year, coupled with attending regular education preschool four mornings per week, accompanied by his ABA-trained aide. (N.T. 353, 354, 360-364, 1065, 1066, 1104, 1179, 1309, 1310, 1351; Pl. Ex. 490, p. 99.)

On April 2, 2001, the parents met with District representatives to begin the process of developing appropriate school-age programming for Patrick. During their meeting with the District, the parents discussed their plans to found a specialized school for the education of autistic children, utilizing exclusively ABA techniques. (N.T. 34, 35, 44, 1181-1183, 1313, 1323.) Following this meeting, Michael's father sent an email to the District's Director of Special Education, Sherry Zubeck, formally requesting that the District conduct an evaluation of Patrick, and suggesting that the District have a school psychologist observe Patrick within the parents' home program. (Pl. Ex. 4.)

On April 30, 2001, Michael J. sent a follow-up email requesting information on when the District expected to have developed Patrick's IEP. Sherry Zubeck responded by letter dated May 7, 2001, in which she expressed interest in reviewing details about the specialized school the parents were planning to start, and noted that the District expected to conduct a Multiple Disciplinary Evaluation ("MDE") in the near future. (N.T. 1184, 1313, 1314.) On May 18, 2001, the District formally requested permission to conduct an MDE of Patrick, and on May 22, 2001, the parents gave their written consent to such evaluation. (N.T. 44, 1314.) In connection with this MDE, on May 17, 2001, an occupational therapist observed Patrick while he attended Derry Preschool, and noted that Patrick roamed around the room, made little eye contact, attempted some parallel play, responded to environmental cues at times, sometimes answered direct questions, and circled the perimeter of the playground. (Pl. Ex. 8.)

On June 20, 2001, Child Psychiatrist Dana L. Crites issued a psychiatric evaluation. This evaluation indicates that Patrick was given psycho-educational testing on June 7, 2001, administered by Daniel Russo, a school psychologist. (Pl. Ex. 7.) On the Stanford-Binet Intelligence Scale 4th Edition, Patrick obtained a Full Scale IQ 47, with Verbal Reasoning 59, Abstract/Visual Reasoning 58, Quantitative Reasoning 54, and Short-Term Memory 52. On the Woodcock Reading Mastery Test, he obtained standard scores of Letter Identification 101 and Word Identification 112. On the Bracken Basic Concept Scale-Revised, Patrick obtained a School Readiness Composite standard score of 63 with wide discrepancies between subtests, indicating that Patrick had more ability with colors, letters, numbers, and shapes, and less ability with language. (Id.)

The District also contributed test results used in the psychiatric evaluation. Speech Therapist, Pamela Yocum, administered several tests, including the Peabody Picture Vocabulary Test, the Expressive One Word Picture Vocabulary Test, and the Preschool Language Scale, which tested both auditory comprehension and expressive communication. After evaluating Patrick's scores on the foregoing tests, Dr. Crites indicated that Patrick "was noted to have severe receptive, expressive, and pragmatic language delay with need for intensive speech and language services in his school program." (Id.) Dr. Crites noted that the data collected by occupational therapist Sheila Miller indicated that Patrick's fine and gross motor skills "seemed functional for school." (Id.) Upon consideration of the data obtained, Dr. Crites confirmed Dr. Bowers' original diagnosis of Autistic Disorder, diagnosed Patrick as moderately mentally retarded based upon an IQ score of 47, and identified Patrick as presenting serious impairment in communication ability. (Id.) Dr. Crites recommended identifying Patrick as an exceptional student with the school exceptionality of "Autism/PDD" and indicated that he would require special education services including speech/language, occupational therapy, and academic support. (Id.) Additionally, Dr. Crites's evaluation recommended a "multi-faceted program including placement with other special needs students as well as opportunity for mainstreaming and hopefully some generalization of acquired skills . . . ." (Id.)

Sometime prior to June 20, 2001, the parents, together with other similar minded parents of children with autism, formed the Central Pennsylvania Autism Education and Resource Center ("CPAERC"). The group planned to form and operate a private licensed academic school that would feature instruction through the use of ABA techniques. Patrick's father is the President of CPAERC and the address for the organization is the father's place of employment. (N.T. 1162; Pl. Ex. 6.)

On June 20, 2001, the District issued the parents a Comprehensive Evaluation Report ("CER"). The CER contains information supplied from the parents regarding Patrick's development, and summarizes the findings compiled by Drs. Bowers and Crites, and the reports from other professionals who evaluated Patrick. The CER concluded that Patrick met the diagnostic criteria for autistic disorder and was found to be in the 01st percentile for his age in terms of cognitive abilities. (Pl. Ex. 8.) The CER recommended that Patrick have an IEP and receive OT and speech/language services. Deirdre J. agreed with the recommendations contained in the CER. (Id.)

Following receipt of the CER, the parents requested recommendations from the Rutgers University Autism Program regarding Patrick's future educational needs. (Pl. Ex. 9.) In response, Kendra Peacock, a behavioral specialist with the Rutgers program, emphasized Patrick's acute need for a "highly structured educational setting, reinforcement to be used as a primary tool for teaching, and a thorough and systematic approach to learn." (Id.) Ms. Peacock opined that "[o]nly a specialized placement with people trained in these areas will be able to meet [Patrick's] educational needs." (Id.) Among other recommendations, Ms. Peacock indicated that Patrick required a 1:1 teaching ratio and systematic transition planning to allow him to learn in very small group settings. To facilitate Patrick's need for transitions, Ms. Peacock recommended use of visual supports, including an icon/word schedule to navigate transitions between classrooms, and a token system of rewards for reducing hand and vocal self-stimulatory behavior. (Id.)

Central to Ms. Peacock's recommendations was the continued use of reinforcement in Patrick's instruction. Ms. Peacock stated that "interventionists" in Patrick's new placement "must be fluent at the use and interpretation" of contingent, immediate, and differential reinforcement, as well as request training to encourage Patrick to request his own reinforcers throughout the day, particularly to facilitate language development. (Id.) Ms. Peacock also indicated her view that Patrick's peers within the educational environment must have skills to utilize request training to facilitate Patrick's educational development. (Id.) Finally, Ms. Peacock indicated that because Patrick was at "a critical juncture in his education," any transition from his familiar home environment to a new educational setting needed to proceed with "the utmost care." (Id.) Ms. Peacock suggested that without such a careful, structured, and systematic approach, Patrick was at risk for regression in academic and functional skills. (Id.)

The District invited the parents to participate in an IEP meeting on July 18, 2001. This initial IEP meeting was attended by the following individuals: the parents; Sherry Zubeck, the Director of Special Education; an OT; a speech pathologist; a special education teacher; and a regular education teacher. (Pl. Ex. 10.) The IEP included present levels of educational performance, strengths, needs, measurable annual goals, short-term objectives, and specially designed instruction that included TEACHH strategies, ABA, one-to-one instruction, small group instruction, manipulatives, repeated practice, a hand-writing series, and verbal and visual prompts. (Id.)

The IEP generated through this meeting was not a final version and the District IEP team agreed to consider revisions. One of the reasons that the IEP was not finalized and a Notice of Recommended Educational Placement ("NOREP") not issued is that the parents were adamant that Patrick's needs could best be met through the private school they planned to open. (N.T. 36, 48, 49.) Sherry Zubeck testified that the District did not proceed to a due process hearing and remained willing to consider the parents' proposed placement, but that the team could not blindly agree to a placement in a school program that did not yet exist. (Id. 36, 93.) In particular, the District team was concerned about opportunities for Patrick to interact with nondisabled peers if he were to be placed at the parents' proposed school. (Id. 36.) The parents agreed to provide further information to the District, and other school districts, regarding the proposed school. (Id.) Sherry Zubeck testified that she felt certain that the District could meet Patrick's needs, but she did not want to disregard the parents' planned school as an option to the extent it was found to be equally appropriate. (Id. 49.)

During this time, the District was represented by outside counsel, Jeff Champagne, who is a member of the law firm McNees, Wallace & Nurick LLC ("MWN"). Patrick's father, Michael J., is also a member of MWN. Between the first IEP meeting of July 18, 2001 and August 16, 2001, Michael J. and Jeff Champagne exchanged a number of email messages concerning the parents' progress on opening their planned school for the education of autistic children. In particular, counsel for the District and Patrick's father corresponded regarding anticipated costs associated with the new school, as well as the District's repeated requests to learn of other school districts that were considering placements at the planned school. (N.T. 1200-1204.) Also during this time, Attorney Champagne and Michael J. engaged in conversation with the MWN member in charge of ethics at the firm to discuss the potential for conflict of interest if MWN continued to represent the District in negotiation with the parents. (Id. 1200.) Although Attorney Champagne felt he could adequately represent the District in spite of his professional relationship with Patrick's father, the men were admonished that if negotiations between the parents and the District devolved into litigation, the firm would have to reconsider the engagement. (Id.)

In consideration of the difficulty the District faced in working toward timely placing Patrick in the planned ABA school sponsored by CPAERC even though the school was not operational, on August 16, 2001, the parents executed a 45-day waiver of the District's obligation to provide Patrick with appropriate educational services. (Pl. Ex. 13.) This waiver period ran for 45 days from the earlier of: (1) the date on which the parents notified the District that the planned school would not operate during the 2001-2001 school year; or (2) the date on which the District notified the parents that it no longer looked favorably at placing Patrick at the school. (Id.) The waiver letter was drafted and revised by both Attorney Champagne and Michael J., and expressed the parents' understanding that although the District continued to require more information about the planned school, the District "look[ed] favorably upon placing Patrick at the School." (Id.; N.T. 1205-1207.)*fn1

On August 21, 2001, the parents sent a memorandum to a number of individuals who were interested in the planned school but had missed CPAERC's August 14, 2001 presentation regarding the school's progress toward operating. (Pl. Ex. 14.) The memorandum indicated that the school was to be officially called The Vista School ("Vista") and that CPAERC had received indications from two school districts expressing interest in placing two children with Vista. (Id.) The memorandum also indicates that Vista would commence operations once the school had received agreements from school districts to place an additional four children in the school. (Id.)

Approximately one week later, Michael J. wrote to Sherry Zubeck indicating that Vista would be delayed in opening and expressing an interest in developing an "appropriate interim placement for Patrick." (Pl. Ex. 15.) The letter served as formal notice to the District that the 45-day waiver extended by the parents was to begin running. (Id.) In the letter, Michael J. represented the parents' understanding that the District was willing to explore placing Patrick in an early-elementary setting, as evidenced by the District's "expression of interest in a Vista School placement[.]" (Id.) The letter states that if the parents did not receive a letter to the contrary within five business days, the parents would assume that their proposal for Patrick's interim placement (also contained in the letter) would "form the basis" for discussions going forward. (Id.)

The parents specifically proposed an interim home placement for Patrick, with educational and therapeutic components "provided under a common set of protocols." (Id.) The parents proposed that the therapeutic component would be funded by Medical Assistance, with the exception of speech/language and OT, for which the parents requested District funding. (Id.) The parents also proposed to retain the services of a classroom instructor who was "private-ed certified" and experienced with ABA methodology, and requested that the District fund such teacher's salary. (Id.) The parents asserted that they would retain their current consultant, Accelerated Learning LLC, and would agree to pay 25% of the consulting fees relating to therapy, with the District responsible for the remaining 75% relating to educational services. (Id.) The parents agreed to pay for the facility and material costs associated with the proposed home program. (Id.)

In order to provide the District with "reasonable due diligence" on the parents' proposal, the parents announced that they would provide the District with the following information: outcomes data from Patrick's then-current home program; a detailed budget; proposed curriculum and instructional methodology; resumes of staff and consultants; description of training protocols; proposed needs assessment and other provisions for Patrick's IEP; and a proposed methodology for data collection and outcomes reporting. (Id.)

Alternatively, the parents also agreed to consider an interim placement for Patrick with the IU-15 autism-support program operated out of Hershey Elementary School, and requested that the District provide them with the same data and other information about IU-15 that the parents agreed to provide regarding their home program. (Id.)

The parents suggested that the parties exchange information within thirty days and take a minimum of two weeks to review and prepare for an IEP meeting, at which time it was hoped the parties would resolve Patrick's interim placement. In any event, the parents requested that such a meeting be held within 45 days from the date of the Michael J.'s letter. (Id.)

By letter dated August 30, 2001, Sherry Zubeck responded to the parents' proposal. (Pl. Ex. 16.) Ms. Zubeck indicated that she was unable to respond fully to the letter within the requested five days, and proposed to present her initial reactions during the week of September 4, 2001. (Id.) At the same time, Ms. Zubeck concurred with the parents' desire to move forward expeditiously with educational planning for Patrick, given that the school year had already commenced. (Id.) Ms. Zubeck closed the letter by noting the failure of the Vista School to open and the parents' new request for a home-based program was "somewhat unexpected" and would require the District to consider the proposal carefully. (Id.)

On September 5, 2001, Patrick underwent another psychiatric evaluation, this time administered by Dr. Michael J. Murray at Ephrata Community Hospital. (Pl. Ex. 17.) Patrick's parents requested the evaluation to determine an appropriate educational placement for Patrick. (Id.) The evaluation contains a comprehensive history of Patrick's condition and development, a review of his psychiatric and medical history, and a mental status examination. (Id.) Dr. Murray concluded that Patrick's autism conferred impairment in the use of non-verbal behaviors such as eye contact and facial expressions; difficulty with peer relationships; a lack of spontaneous seeking to share enjoyments and interests; lack of spontaneous and imaginative play; and self-stimulatory behaviors. (Id.) Dr. Murray observed that "Patrick's difficulties have been mitigated somewhat by his long-standing immersion in an Applied Behavioral Analysis (ABA) home program." (Id.) Dr. Murray strongly encouraged continued use of the ABA with Patrick, noting that ABA "and their educational techniques have been the only empirically documented forms of treatment to successfully teaching children with moderate to severe autism new skills and abilities." (Id.) Dr. Murray found it would be important for Patrick's educational plan to be unified in all environments in his life, and that such educational plan be consistent. (Id.) Until such a comprehensive ABA program could be made available to Patrick, Dr. Murray recommended that Patrick's parents continue their home-based program. (Id.)

Under cover of letter dated September 28, 2001, Attorney Champagne provided Dr. Murray's evaluation to the District. (Pl. Ex. 19.) Additionally, Attorney Champagne presented a proposed budget for the parents' home program, and a generalized IEP that was intended to be helpful to the District in formulating an educational approach for Patrick. (Id.) In this letter, Attorney Champagne represents that Patrick's parents "had wanted to present a draft IEP for consideration by now, but [are] unable to do so. This is in part because the family had hoped to have an analysis of performance data by now, but the family does not have it." (Id.)

Following several conversations with Patrick's father, Attorney Champagne sent a written report to Sherry Zubeck dated October 12, 2001. (Pl. Ex. 20.) In this report, Attorney Champagne represented that Patrick's father did not object to the District's counsel attending IEP meetings, although the parents left open the possibility of bringing their own counsel. (Id.) Additionally, Patrick's father did not believe that the staff provided by Medical Assistance were capable of providing adequate services to Patrick and the family was willing to pay an additional amount to secure competent personnel. (Id.) At this time, the parents were not fixated on obtaining a placement in their home program, nor were the parents demanding that if placement began in the home, it would have to remain there. (Id.) The parents did not oppose efforts by the District to contract with or employ Patrick's key teacher from his home program. (Id.)

On October 19, 2001, Attorney Champagne faxed Sherry Zubeck a detailed program developed by Kendra Peacock, the special consultant working with Patrick's family, that set forth numerous proposed goals and objectives to be incorporated into Patrick's IEP. (Pl. Ex. 21.) Although the proposed program contained a number of annual goals, the draft was silent ...

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