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Souderton Area School Dist. v. J.H.

February 11, 2009

THE SOUDERTON AREA SCHOOL DISTRICT, PLAINTIFF
v.
J.H., BY AND THROUGH HIS PARENTS, J.H. AND S.H., AND J.H. AND S.H. IN THEIR OWN RIGHT, DEFENDANTS



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

MEMORANDUM

The question presented in this case is whether a school district should pay the private school tuition of a learning disabled student. Pursuant to the Individuals with Disabilities Education Act,*fn1 J.H., by and through his parents, J.H. and S.H., initiated due process hearings against the Souderton Area School District (Souderton) for failing to provide an appropriate individualized education program (IEP),*fn2 thereby denying him a free appropriate public education (FAPE). Both parties have moved for a judgment on the administrative record (Defs.' Mem. (Document #10); Pl.'s Mem. (Document #12)).

At their request, the parties presented oral arguments on December 1, 2008. After careful consideration, I will grant Souderton's motion and deny J.H.'s motion.

I. Background

J.H. is a minor who suffers from certain learning disabilities. These were first identified when he was in the first grade. He was diagnosed with "a phonologically based learning disability that affect[s] decoding and encoding and a weakness in visual and auditory memory that affect[s] acquisition of sight words and math skills." (Defs.' Mem. at 1). He has also been found to have "low average to lower end of average range cognitive [abilities]." Jonathan H. v. Souderton Area Sch. Dist., 2008 WL 746823, at *6 (E.D. Pa. Mar. 20, 2008). He has received special education services in reading, writing, and math. (Id. at 1--2.) Of these, writing has been his area of greatest need. (Id. at 2.) During the relevant time period, he was thirteen years old.

J.H. was enrolled in the Souderton Area School District (Souderton) through the 2005--2006 school year (fifth grade). His parents then unilaterally decided to remove him and placed him at The Crossroads School (Crossroads) for the 2006--2007 (sixth grade) school year. Crossroads is a private school in Paoli, Pennsylvania, geared to instructing children with learning disabilities. (Defs.' Mem. at 2.) J.H. continues to attend that school at his parents' expense. Pursuant to 20 U.S.C. § 1414(d)(2)(A), Souderton has continued to draft IEPs for J.H. for each school year.

A) Prior Proceedings Between the Parties

The present case is the second set of proceedings between these parties. The first set of proceedings arose in March, 2006, when J.H.'s parents rejected the Notice of Recommended Educational Placement (NOREP)*fn3 and the IEP. Jonathan H., 2008 WL 746823, at *1. The parents rejected the IEP because they believed the specially designed instructions (SDI) were insufficient and that the goals did not reflect "meaningful progress placement." (Dr. Linda Valentini's report at 8, Findings of Fact ¶ 29 (Souderton Ex. 1).) They also believed the IEP may have failed to address J.H.'s speech and language needs. (Id.)

A few months thereafter, his parents decided to apply for J.H.'s admission to Crossroads. Jonathan H., 2008 WL 746823, at *1. At or around this time, J.H. and his parents commenced due process hearings against Souderton pursuant to 20 U.S.C. § 1415(f). They sought compensatory education for the 2004--2005 and 2005--2006 school years (the years J.H. was still enrolled in Souderton's schools), and tuition reimbursement for J.H.'s enrollment at Crossroads for the then-upcoming 2006--2007 school year.*fn4

After several sessions with the parties and counsel, the hearing officer, Dr. Linda Valentini, issued her decision on April 20, 2007. Consulting the results of two individually administered, nationally normed, standardized tests-the Wechsler Individual Achievement Test (WIAT II), and the Woodcock Johnson Third Edition (WJ III)-Dr. Valentini found that J.H. had made "meaningful educational progress" in reading and in math while attending Souderton schools. (Valentini Report at 16.) She concluded that Souderton did provide a FAPE in those areas. (Id. at 18.)

In the area of written expression, Souderton had failed to routinely assess J.H.'s performance. Based on the available data, Dr. Valentini could not find that he had made meaningful educational progress. (Id. at 16--17.) She concluded that Souderton had failed to provide a FAPE in the area of written expression while J.H. was still a Souderton student. (Id. at 18.) She awarded J.H. some compensatory education in this area (Id.)

As for the 2006--2007 IEP, she found that it did provide a FAPE. (Id. at 17.) It contained, among others, present levels of academic achievement, measurable annual goals, descriptions of how J.H. was to reach those goals, descriptions of how Souderton would track J.H.'s progress, and a statement of the special education services and program modifications he would receive. (Id.) She noted that "[t]he IEP would be enhanced by the addition of 'annual administration of a standardized achievement assessment instrument such as the WJ III' under the progress monitoring section of each goal...." (Id.) She suggested that Souderton "use the WJ III or another similar instrument with a nationally normed well-researched sample to assess writing." (Id.)

Having found that J.H. and his parents had failed to demonstrate that the 2006--2007 IEP would not provide a FAPE, she declined to address their tuition reimbursement request. This decision was upheld on appeal by the Pennsylvania Special Education Appeals Review Panel (Appeals Panel) and the Honorable Judge Katz.*fn5 (See 2007 Appeals Panel Report (Souderton Ex. 2); Jonathan H., 2008 WL 746823.)

B) Evaluations Performed Prior to the Drafting of the 2007--2008 IEP

In June and July of 2007, J.H. underwent an occupational therapy (OT) evaluation performed by Ms. Amy Carroll, a licensed occupational therapist. (See OT Report (J.H. Ex. 5).) His parents paid for the evaluation after some of the Crossroads teachers expressed concern about J.H.'s handwriting skills. (Id. at 1.) Ms. Carroll tested his motor, hand, visual, visual perceptual, visual-motor, and handwriting skills. (Id. at 2--4.) The results indicated "significantly decreased visual-motor skills which likely impacts [J.H.'s] handwriting performance." (Myers Report, Findings of Fact ¶ 3 (Joint Ex. 3).) Ms. Carroll noted that J.H. wrote slowly and that his handwriting was at times difficult to decipher. (OT Report at 3--4.) She recommended that J.H. be provided OT once a week "to increase his legibility with written output." (Id. at 4.) She also suggested that he be instructed on using cursive and be permitted the use of a computer for longer writing assignments. (Id.)

In August, 2007, Souderton reassessed J.H.'s academic performance and skills using the WJ III. (Myers Report, Findings of Fact ¶ 4.) The assessment was performed by Dr. Deborah Nelson. On the Broad Reading section,*fn6 J.H. performed at a 4.3 grade equivalent (fourth grade, third month); Broad Written Language,*fn7 4.3 grade equivalent; Broad Math,*fn8 5.1 grade equivalent. (IEP at 31 (Souderton Ex. 6).) J.H.'s math calculations skills were at a 4.6 grade equivalent. (Id.) His academic skills*fn9 were rated at a 5.3 grade equivalent; academic fluency,*fn10 3.8 grade equivalent; academic applications,*fn11 4.5 grade equivalent. (Id.)

He was also asked to provide a writing sample by responding to an essay prompt.

(Id. at 36.) The sample was analyzed under the Pennsylvania System of School Assessment (PSSA) writing rubric. On the PSSA's four-point scale, J.H.'s writing expression was determined to be a 1, which represents "below basic" performance. (Id. at 48--49.) This assessment was reached on the basis of this one sample alone.

C) The 2007--2008 IEP

In light of the prior proceedings and the 2007 WJ III results, Souderton began the process of formulating the 2007--2008 IEP. This IEP also incorporated the results of J.H.'s performance at Crossroads. A draft was presented and discussed with J.H.'s parents on August 28, 2007. (See IEP meeting notes at 1 (Souderton Ex. 4).) At this meeting, Souderton was first informed of Ms. Carroll's OT evaluation. (Test. of Ms. Rebecca Fogle 95:9--13, Nov. 8, 2007.) Speech/language services were not included in this draft of the IEP; when asked to identify any additional area of need, J.H.'s parents did not specify any. (IEP meeting notes at 1, 3 (identifying J.H.'s needs as primarily in reading fluency and comprehension, written expression, math fluency and calculation, and self-advocacy).)

On September 10, 2007, J.H.'s parents rejected the proffered NOREP and IEP for failure to address certain needs, namely J.H.'s OT, writing, and language needs.*fn12 (IEP at 2 ("IEP does not adequately address writing and language development.").) They commenced due process hearings to challenge the IEP for the absence of measurable goals in writing and failure to address J.H.'s speech/language and OT needs.*fn13 Wishing to keep J.H. enrolled at Crossroads, his parents again sought tuition reimbursement.

The hearing officer at the second proceeding, Daniel J. Myers, Esq., heard testimony from Ms. Jennifer Cordivari, Crossroads' psychologist and education director; Ms. Rebecca Fogle, Souderton's supervisor of secondary special education; Ms. S.H., J.H.'s mother; and Ms. Dona Italiano, Souderton's language arts coordinator and literacy coach for grades 6 through 12. Mr. Myers found that the IEP provided a FAPE and denied the parents' request for relief. His report discussed the Valentini Report, which found the prior IEP to be sufficient in almost all areas, and noted that "nothing has changed except that [Souderton] has strengthened its proposed IEP." (Myers Report at 7.) Mr. Myers characterized the new IEP as including "updated present levels of academic performance," "updated and individualized writing goals," and "monthly consultation[s] between [J.H.'s] special education teacher and a speech therapist." (Id. at 7--8.)

Mr. Myers dismissed J.H.'s language development and writing instruction arguments. He noted that Dr. Valentini had already considered and rejected the language argument. As "no new evidence of changed speech and language needs" had been presented, he deemed that the issue had already been ruled on, and that this IEP could not be considered inadequate for not including such services. (Id. at 8.)

As to the writing instruction complaint, Mr. Myers summarizes J.H.'s argument as based on the findings of a private OT evaluation report, Souderton's insistence on using the PSSA writing rubric as an assessment tool, and Souderton's failure to have an appropriate program in place at the beginning of the school year. (Id. at 8--9.) He found the OT report to be "equivocal," indicating there might be some needs but not stating that OT was a requirement; moreover, Souderton was entitled to perform its own evaluation before having to include OT in the IEP. (Id. at 9.) Although Souderton continued to include the state PSSA writing rubric, which has been held to be an inappropriate assessment tool, it had sufficiently compensated for the rubric's shortfalls by including the WJ III as another mode of assessing improvement. (Id. at 9--10.)

Finally, the proposed IEP was determined to be proper given that the parents had not provided the OT evaluation report to Souderton until mid-October. The revised IEP provided for an OT evaluation to be performed within a certain time after J.H.'s return to Souderton's schools. (See Revised IEP (Souderton Ex. 15).) Mr. Myers found this to be a timely and appropriate response. (Myers Report at 9.) Because he found the IEP to be appropriate, Mr. Myers declined to address the tuition reimbursement request.

The Appeals Panel found that the IEP failed to provide a FAPE and reversed Mr. Myers' ruling. The decision identified a number of deficiencies such as a lack of clarity in describing J.H.'s present levels of educational performance, and the failure to address his OT needs.*fn14 Given J.H.'s severe difficulty with processing, the IEP "[did] not [adequately] address [his] needs" and was "not calculated to provide meaningful educational benefit." (2008 Appeals Panel Report at 4 (Joint Ex. 4).)

The Appeals Panel granted J.H.'s tuition reimbursement request. It determined that Crossroads' program addressed J.H.'s needs, and noted his progression in many areas. In weighing the equities, the Appeals Panel stated that the parents "have cooperated" with Souderton and "have attended IEP team meetings consistently expressing as best they could their concerns...." (Id. at 5.) The Panel also noted that Souderton had not performed a psychoeducational assessment and had failed to appropriately assess J.H.'s performance in written expression. Accordingly, the Panel found in favor of J.H. and his parents and awarded tuition reimbursement. Souderton appeals this ruling.

II. Applicable Law

A) The IDEA

State and local educational agencies receiving federal education funding must provide a FAPE to all disabled children in their jurisdiction. See 20 U.S.C. § 1412(a)(1)(A) (requiring states to provide a FAPE). This includes the provision of any necessary "related services" such as physical or speech therapy. See Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at *1 (E.D. Pa. Oct. 22, 2007). The education agencies are to set out these education plans in an IEP. Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) ("States provide a FAPE through [the IEP].").

To provide a FAPE, the IEP "must be sufficient to confer some educational benefit upon the handicapped child." L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006) (internal quotation marks omitted). The state's obligation, however, is not unlimited. It is "not required to maximize the potential of handicapped children"; it need not "provide the optimal level of services, or even a level that would confer additional benefits. T.R. v. Kingwood ...


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