Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

L.G. and E.G., On Behalf of E.G. v. Wissahickon School District

January 4, 2011

L.G. AND E.G., ON BEHALF OF E.G. PLAINTIFFS,
v.
WISSAHICKON SCHOOL DISTRICT
DEFENDANT.



The opinion of the court was delivered by: Norma L. Shapiro, J.

CONSOLIDATED

MEMORANDUM

L.G. and E.G. bring this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., on behalf of their minor son, E.G., an autistic student residing in the Wissahickon School District. Plaintiffs allege defendant Wissahickon School District ("Wissahickon") failed to provide E.G. with a free and appropriate public education ("FAPE") for the 2004-2005 and 2005-2006 school years. Plaintiffs request reimbursement of private school tuition and related expenses, and compensatory education. Plaintiffs' claims were heard by a Pennsylvania Special Education Hearing Officer ("Hearing Officer") and reviewed by a Special Education Due Process Appeals Panel ("Appeals Panel"); both denied relief. Plaintiffs, filing in this court, seek reversal of the decision of the Appeals Panel. The parties have now filed cross-motions for judgment on the administrative record. After reviewing the administrative record and considering the parties' arguments, defendant's motion is granted and plaintiffs' motion is denied.

I. BACKGROUND

E.G. is a minor diagnosed with autism disorder at the severe end of the spectrum. He is functionally nonverbal and apraxic, with low-functioning cognitive abilities. At the time his parents brought this action, he communicated primarily through sign language but was able to put four or five words together to form a sentence. He also engaged in autistic behaviors such as vocalizations, in which he made noises resembling a whining sound, tugging on his ears and folding them over onto themselves, and chewing on his shirt collar or sleeve.

In January 2001, when he was six years old, E.G.'s parents registered him at Wissahickon. E.G. was deemed eligible for special education services and support under IDEA.*fn1

Wissahickon developed an individualized education program ("IEP"), providing placement in a full-time autistic support classroom at an elementary school in a neighboring school district and a publicly funded home program. E.G. received instruction under this IEP until January 2003, when his parents moved to the Council Rock School District, so E.G. could participate in a verbal behavior program offered by that district.*fn2 E.G. attended Council Rock's verbal behavior program for the remainder of the 2002-2003 school year.

E.G.'s parents returned to Wissahickon in the summer of 2003 and enrolled E.G. in Lower Gwynedd Elementary School ("Lower Gwynedd") for the 2003-2004 school year. Wissahickon proposed an IEP providing placement in a full-time autistic support classroom, but unlike E.G.'s prior IEP, it did not include a publicly funded home program. The parents rejected the proposed IEP, and enrolled E.G. in the Mulberry School, a private nursery and day care center, where he attended kindergarten classes. Had he remained at Lower Gwynedd, E.G. would have been placed in second grade.

While E.G. attended the Mulberry School, his parents worked with Wissahickon personnel to prepare for E.G. to enter second grade at Lower Gwynedd for the spring term of the 2003-2004 school year. The parties met several times to develop a new IEP. The resulting IEP (the "December 2003 IEP") provided for inclusion in a regular education classroom supplemented by learning support, but did not include a home program. The parents requested a due process hearing to challenge the December 2003 IEP's: (1) lack of a publicly funded home-based verbal behavior program; (2) statement of E.G.'s educational levels; and (3) method of data collection. In January 2004, following a due process hearing, the Hearing Officer approved the IEP's denial of a home program, but ordered, among other things, that the IEP provide for daily rather than weekly data collection. The Appeals Panel affirmed, and the parents did not take further legal action. E.G. joined a second grade class at Lower Gwynedd for the remainder of the 2003-2004 school year. E.G. was the only learning impaired student in the regular education classroom. His parents felt his differences were accentuated during interactions with his non-disabled peers.

E.G.'s December 2003 IEP was modified following the January 2004 order of the Hearing Officer. In April 2004, the parties agreed to a new IEP (the "April 2004 IEP") continuing most of the December 2003 IEP, but revising the method of data collection from weekly to daily. The April 2004 IEP provided for instruction in a regular second grade classroom with a full-time one-to-one aide, except for reading, writing, and math instruction in a separate learning support classroom. The April 2004 IEP also provided weekly occupational, physical, and speech therapy. To implement the IEP, teachers drew from a variety of teaching methodologies, including the VB method, but did not exclusively apply the VB method. At the conclusion of the 2003-2004 school year, E.G.'s second grade teacher, Mrs. Faust, believed he made meaningful educational progress. She testified that in the short amount of time E.G. attended her class, his attention skills improved, he began to participate in classroom activities, and he exhibited increased confidence interacting with his peers. Due Proc. Hr'g Tr. 149-50 (Testimony of Margaret Faust). He also improved his ability to write his name, recollect numbers and letters, and order events into a sequence. Id. Although he engaged in autistic behaviors such as vocalizations and tugging on his ears, the frequency of the behaviors reduced, and his teacher did not find the behaviors disruptive to the class. Id. at 59-60, 93, 147-48.

The parties met in August 2004 to plan for the 2004-2005 school year, but could not agree on a new IEP. E.G.'s parents decided to enroll him in the Nexus School ("Nexus"), a private school, rather than have him continue at Lower Gwynedd. Nexus educates seven to nine students per school year; all are autistic. Nexus did not develop an IEP for E.G., but devised an educational program of half a day in a one-to-one setting and the other half in a classroom with two other severely autistic students. Tuition at Nexus for the 2004-2005 school year totaled $50,000. Wissahickon denied the parents' request for tuition reimbursement because it was prepared to offer a FAPE under the April 2004 IEP.

The parties met again in May 2005 to discuss developing an IEP for the 2005-2006 school year. To prepare an IEP, Wissahickon personnel reviewed the April 2004 IEP and Nexus progress reports, observed E.G. in a Nexus classroom, and prepared a re-evaluation report assessing E.G's educational levels. The resulting IEP (the "September 2005 IEP") provided for a combination of instruction in regular education and learning support classrooms, a one-to-one aide for assistance in the regular education classroom, and occupational, physical, and speech therapy. The teacher who would have been assigned as E.G.'s regular education teacher had teaching experience with autistic students; she also attended all the IEP meetings and met separately with the learning support teacher to plan curriculum modifications for E.G. The September 2005 IEP called for application of the VB method in conjunction with other teaching methods. E.G.'s parents rejected the September 2005 IEP, and E.G. continued at Nexus for the 2005-2006 school year. Tuition totaled $55,000.

E.G.'s parents requested a due process hearing on October 19, 2005 to obtain reimbursement of the Nexus private school charges for the 2004-2005 and 2005-2006 school years, compensatory education, and payment of a prior reimbursement obligation. The due process hearing lasted four days, and transcripts of the testimony total over one thousand pages. On April 4, 2006, the Hearing Officer issued a detailed opinion holding that Wissahickon offered E.G. a FAPE for the 2004-2005 and 2005-2006 school years, and denying reimbursement. The Hearing Officer reasoned that the parties' fundamental dispute concerned teaching methodologies: inclusion in a regular education classroom versus a special education classroom, and strict application of the VB method versus a combination of several methods, including VB, for teaching an autistic child. Because IDEA requires only that an educational program be reasonably calculated to confer a meaningful educational benefit, the Hearing Officer found that E.G.'s IEPs met IDEA's substantive requirement, and declined to endorse a particular teaching methodology. The Appeals Panel affirmed. The parents then sought relief in this court. Before the court are the parties' cross-motions for judgment on the administrative record.

II. DISCUSSION

IDEA requires that public schools receiving federal education funding make a FAPE available to all disabled children. 20 U.S.C. § 1412(1)(A). A FAPE is "a basic floor of opportunity," consisting of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982). A school district must evaluate a disabled student and design an IEP to meet the student's unique needs. 20 U.S.C.§ 1414(d)(1)(A); Honig v. Doe, 484 U.S. 305, 311 (1988). If parents are not satisfied with their child's IEP, they may request an impartial due process hearing. 20 U.S.C. § 1415(b)(2). If concerns remain, Pennsylvania provides the right to appeal to a Due Process Appeals Panel. 22 Pa. Code § 14.162. Any party still dissatisfied may then bring a civil action in state or federal court. 20 U.S.C. § 1415(e).

E.G.'s parents seek reversal of the decision of Appeals Panel. The Appeals Panel had adopted the Hearing Officer's findings and affirmed the decision to deny the parents relief. The parents argue the administrative tribunals erred because Wissahickon failed to provide their son with a FAPE for the 2004-2005 and 2005-2006 school years. As the parents enrolled E.G. in a private school rather than continue his education at Wissahickon, they seek reimbursement of private school tuition and related expenses, and compensatory education. The parents also argue that the administrative tribunals unfairly criticized and rejected the testimony of their expert witnesses, and that the administrative tribunals failed to consider their request for payment of a reimbursement obligation owed by Wissahickon. Wissahickon argues the decision of the Appeals Panel should be affirmed because it properly concluded Wissahickson provided a FAPE for the 2004-2005 and 2005-2006 school years, and properly affirmed the Hearing Officer's factual findings and credibility determinations.

A. Standard of Review

We review the decision of the Appeals Panel, as this is the final decision of the state authorities. See Carlisle Area Sch. v. Scott P. ex rel. Bess P., 62 F.3d 520, 527-29 (3d Cir. 1995). Because the Appeals Panel adopted the Hearing Officer's findings and affirmed its conclusions, discussion of the Hearing Officer's decision is also necessary.

A district court reviewing administrative adjudications of disputes arising under IDEA must make factual findings "by a preponderance of the evidence" while also giving "due weight" to the findings of the administrative tribunals. 20 U.S.C. § 1415(i)(2)(C); Rowley, 458 U.S. at 204-06. This standard requires a "modified de novo review." S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). "Factual findings from the administrative proceedings are to be considered prima facie correct." Id. A district court must defer to the administrative tribunals' factual findings and credibility determinations "unless it can point to contrary non-testimonial extrinsic evidence in the record." Id.; see also Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004). This ensures that courts, which "lack the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.