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D. K. v. Abington School District

March 25, 2010

D. K., ET AL., PLAINTIFFS,
v.
ABINGTON SCHOOL DISTRICT, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs' Motions for Introduction of Additional Evidence and for Judgment on the Supplemented Administrative Record and Defendant's Motion for Summary Judgment or Judgment on the Administrative Record.

This civil action arises under 20 U.S.C. §1401 et seq., pursuant to the Individuals with Disabilities in Education Act ("IDEA"). The Court has jurisdiction based on 28 U.S.C. 1331. Under the IDEA, parties who have satisfied the administrative remedies available in their state may file a civil cause of action in the courts of the United States.*fn1 The claims giving rise to this appeal have been exhausted at the administrative level by a Pennsylvania Special Education Hearing Officer ("Hearing Officer") and a Special Education Appeals Panel ("Appeals Panel") authorized to hear special education matters. Testimony and documentary evidence were considered by the Hearing Officer and the Panel, both of which ruled in favor of Defendant Abington School District ("the District"), in accordance with the standards and procedures set forth in the IDEA and the Code of Federal Regulations ("CFR").*fn2

Plaintiffs D. K., a Minor, by and through his Parents, S. K. and L. K., ("the Parents") now request reconsideration of the District's alleged refusal to evaluate D.K. and provide him a Free Appropriate Public Education ("FAPE") beginning in September 2004, pursuant to the IDEA and Section 504 of the Rehabilitation Act of 1973 ("Section 504").*fn3 Plaintiffs argue that the Hearing Officer and the Appeals Panel committed substantive and procedural errors in reaching their findings, and as such, should be reversed. In converse, Defendant requests in its Motion that the Court affirm the administrative decisions of the Hearing Officer and Appeals Panel below.

Plaintiffs also seek to introduce two documents as additional evidence to supplement the administrative record: an expert report of Emily Perlis, Psy.D. and the 1995 Guidelines for Effective Behavioral Support of the Pennsylvania Department of Education ("PDE Guidelines").

I. FACTUAL AND PROCEDURAL BACKGROUND*fn4

D.K. is a student who has attended an elementary school in the District since his kindergarten year in 2003. D.K. exhibited reading and behavioral difficulties in his first year of kindergarten, which was a half-day program.*fn5 In response, the District implemented supports and accommodations for D.K. to address his perceived academic and behavioral limitations.*fn6 With the Parents' participation and agreement, Defendant required D.K. to repeat kindergarten in a full-day program for the 2004-2005 school year.*fn7 The District commenced Title 1 reading support for D.K. and constructed numerous behavior plans for him from kindergarten through the second-grade.*fn8 D.K. improved academically in his second year of kindergarten, but continued to have problems with following rules and self control.*fn9 D.K.'s first-grade teacher was able to control his behavior in the classroom, though he still had continued difficulties with following directions and paying attention.*fn10

In January 2006, during D.K.'s first-grade year, the Parents requested an evaluation of D.K. for special education eligibility.*fn11 In response, the District conducted a comprehensive evaluation. The resulting Evaluation Report, dated April 24, 2006, concluded that D.K. was ineligible for special education services.*fn12 Suzanne Grim, Ph.D., a certified school psychologist in the District with specialized training in the identification and diagnosis of ADHD, administered the April 2006 Evaluation.*fn13 In assessing D.K.'s learning abilities, Dr. Grim performed a cognitive assessment and concluded that D.K.'s score fell in the low-average range; Dr. Grim believed that this score was an accurate indication of D.K.'s IQ score of 83, as it was within a few points of what was reflected through two Cognitive Abilities Test ("CogAT") administrations.*fn14 In addition to the cognitive assessment, Dr. Grim used a visual-motor integration test ("VMI") to assess D.K.'s skills in that area.*fn15 Results from the VMI standardized test also indicated that he was in the low-average to average range.*fn16

As part of the 2006 Evaluation, Dr. Grim observed D.K.'s classroom behavior in his first grade class and integrated those observations with her observations previously noted during his full-day kindergarten class.*fn17 Dr. Grim noted that D.K.'s concentration and attention level appeared age appropriate.*fn18 In preparing the Evaluation Report, Dr. Grim used the Behavior Assessment System for Children ("BASC") rating scale to determine whether D.K. had ADHD.*fn19

The rating scale reflected that D.K. did not show elevated scores in two or more settings and that he was not in the "at risk" or "clinically significant" ranges.*fn20 The 2006 Evaluation did not include a functional behavioral assessment.*fn21 Upon completion of Dr. Grim's analysis, Parents signed a Notice of Recommended Education Placement ("NOREP"), approving the April 2006 evaluation.*fn22

During D.K.'s second-grade, in the 2006-2007 school year, D.K. received 180 minutes per week of reading support and 30 minutes per week of math support.*fn23 D.K.'s report card grades improved as compared with the previous year.*fn24 On May 12, 2007, however, the Parents had D.K. evaluated privately by a licensed audiologist.*fn25 On June 26, 2007, the Parents obtained a private scoring of an attention deficit disorder scale, which indicated that D.K. was moderately atypical for attention problems, with subscales indicating markedly atypical scores for behavioral control.*fn26 All test scores were eventually provided to the District and in July 2007, the Parents asked the District to provide a second educational evaluation of D.K.*fn27

D.K.'s third-grade, 2007-2008, started and continued well. The Parents were pleased with D.K.'s academic and behavioral progress under the guidance of a teacher the Parents helped to select.*fn28 Despite D.K.'s improved behavior, Parents obtained a private pediatric neurological evaluation in September 2007. The resulting report supported a diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD").*fn29 In November 2007, the second special education evaluation performed by District resulted in D.K. being identified as a student with "Other Health Impairment", eligible for special education services under the IDEA.*fn30 On November 30, 2007, the District convened an Individualized Education Program ("IEP") team meeting to discuss the second evaluation and plan a formal program for D.K.*fn31 In February 2008, the parties revised the IEP slightly and after some "fine-tuning", the Parents signed the NOREP on March 25, 2008, approving the plan and thereby agreeing to the now contested educational placement and program for D.K. The IEP included educational goals in line with the November Evaluation Report March 25, 2010 for occupational therapy, reading comprehension, written expression, and on-task behaviors.*fn32

On January 8, 2008, in the midst of finalizing their approval of the IEP, the Parents, on behalf of D.K., requested a special education due process hearing pursuant to the IDEA and Section 504, seeking compensatory education for the period of September 2004 (the date District allegedly failed to identify D.K. as needing special education services) through March 12, 2008.*fn33

Parents alleged that the District improperly delayed identifying D.K. as a special education student and then, once having made the identification in 2007, the District offered him an inappropriate educational placement and program. At the hearing, Plaintiffs also sought reimbursement for an Independent Educational Evaluation ("IEE") that Parents privately funded in September 2007.

On June 14, 2008, after conducting four hearings between March 18, 2008 and May 14, 2008, the Hearing Officer denied Plaintiffs' claims in their entirety. The Hearing Officer found, in pertinent part, that (1) the District's decision not to evaluate D.K. for special education eligibility prior to 2006 did not violate its Child Find obligations under IDEA and Section 504; (2) the District's initial Evaluation Report was appropriate; (3) the PDE Guidelines were inadmissible; (4) the relevant time period for Parents' compensatory education claims ended on January 8, 2008; (5) the limitations period in IDEA-2004 is applicable*fn34 ; (6) the District's November 15, 2007 IEP was appropriate; and (7) D.K. was not entitled to compensatory education.*fn35

Parents timely appealed the Hearing Officer's determinations to the Appeals Panel. Based on the totality of the record, the Panel found no abuse of discretion, and affirmed the Hearing Officer's findings on July 2008.*fn36 Plaintiffs did not offer expert testimony or a report at either level of the administrative proceedings.

Plaintiffs thereafter filed the instant action "requesting review and reversal of the Hearing Officer and Appeals Panel decisions regarding their application of a statute of limitations and on the merits of Plaintiffs' remaining claims", and seeking compensatory damages as well as reasonable attorneys fees under the IDEA and Section 504.*fn37

The Court has carefully reviewed Plaintiffs' Motion for Introduction of Additional Evidence*fn38 ; Plaintiffs' Motion for Judgment of the Supplemented Administrative Record*fn39 ; Defendant's Motion for Summary Judgment or Judgment on the Administrative Record and Defendant's Response in Opposition to Plaintiffs' Motion for Introduction of Additional Evidence and For Judgment on the Supplemented Administrative Record*fn40 ; Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Introduction of Additional Evidence*fn41 ; Plaintiffs' Response to Defendant's Motion for Summary Judgment or for Judgment on the Administrative Record*fn42 ; and Plaintiffs' Response to Defendant's Motion for Summary Judgment or Judgment on the Administrative Record and Reply to Opposition to Plaintiffs' Motion for Introduction of Additional Evidence*fn43 and all accompanying materials, and this matter is now ready for disposition.

II. LEGAL STANDARD

Civil actions brought under the IDEA require a standard of review for summary judgment that differs from the traditional inquiry into genuine issues of material fact.*fn44 Under the IDEA, the reviewing court of "any action brought... (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence , shall grant such relief as the court determines is appropriate."*fn45 This standard, generally referred to as a "modified de novo " review of the factual findings of the administrative hearing officer, affords those findings "due weight."*fn46 When reviewing an administrative proceeding in an IDEA case, the district court should "defer to the hearing officer's factual findings", unless it can point to contrary non-testimonial extrinsic evidence in the record.*fn47 This requires the court to consider factual findings made in the ...


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