The opinion of the court was delivered by: Goldberg, J.
This case arises under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs, M.R. and J.R. (hereinafter "Parents"), have alleged that the Ridley School District (hereinafter "Ridley") failed to timely evaluate and identify their child, E.R., as a student in need of special education and failed to implement an appropriate plan during E.R.'s kindergarten, first and second grade years. Parents also claim that Ridley discriminated against E.R. based upon her disabilities.
The Administrative Hearing Officer concluded that Ridley complied with the IDEA for E.R.'s kindergarten year but found several violations of that Act for E.R.'s first and second grade years. The Officer also concluded that Ridley's discriminatory conduct during E.R.'s first grade year violated the Rehabilitation Act.
Currently before me are the parties' cross motions for judgment on the administrative record. After careful consideration of the parties' extensive briefing and review of the administrative record, I agree with the Hearing Officer only to the extent that she concluded that Ridley complied with the IDEA for E.R.'s kindergarten year. I disagree with the remaining findings reached by the Officer, and accordingly, I will grant Ridley's motion and deny E.R.'s motion.
I. FACTS AND PROCEDURAL HISTORY
A. Facts - Free Appropriate Public Education
E.R., who was eight years old when the Hearing Officer's April 21, 2009 report was issued, attended school in the Ridley School District, for kindergarten (2006-2007), and first grade (2007-2008). After first grade, Parents removed E.R. from Ridley and enrolled her in the Benchmark School, a private school that specializes in teaching students with learning disabilities.
Prior to attending kindergarten, Parents had concerns about E.R.'s pre-academic skills and had her evaluated at the Chester County Intermediate Unit.*fn1 Although that testing noted some academic difficulties, the results reflected that E.R. did not qualify as a child with special needs. (H.O. Rpt. ¶¶ 7-8.)
In September of 2006, E.R.'s kindergarten year, Ridley placed her in extended day kindergarten for extra academic help. Parents were notified of this placement and were advised it was for math and reinforcement of kindergarten academic skills. (H.O. Rpt. ¶ 10.)
In November of her kindergarten year, Parents requested that Ridley undertake an educational evaluation due to what they perceived to be E.R.'s academic struggles and attention issues. Ridley agreed, and an Initial Evaluation Report was completed on January 31, 2007. While this report noted certain academic difficulties, it concluded, consistent with the Chester County Intermediate Unit's findings, that E.R. did not qualify for special services because her cognitive ability and achievement levels were both in the average range. (H.O. Rpt. ¶ 13.)
On February 7, 2007, Ridley convened an Independent Educational Plan (hereinafter IEP) team meeting to review the initial evaluation. There, Parents expressed their disagreement with Ridley's assessment that E.R. was not learning disabled. In response, Ridley agreed to additional testing, which included: The Children's Memory Scale, Test of Auditory Processing Skills, and The Behavior Rating Inventory of Executive Functioning. Ridley also agreed to undertake provide a physical therapy evaluation. (H.O. Rpt. ¶ 18.)
This additional testing resulted in addendums to the original Evaluation Report. The first addendum, dated April 18, 2007, concluded that E.R.'s memory and auditory processing and executive functioning were all within the average range, but noted a relative weakness in retaining and manipulating numbers. A second addendum, dated June 5, 2007, found average cognitive functioning and academic skills also within the average range. In summary, these addendums reflected average ranges for E.R. in most areas tested. Indeed, the WIAT-II (Wechsler Individual Achievement Test - Second Edition)indicated average skills for E.R. across all academic areas. (H.O. Rpt. ¶¶ 20, 23.)
Based on these results, Ridley's school psychologist noted that there was a lack of a statistically significant discrepancy between E.R.'s cognitive functioning and standardized achievement tests and E.R.'s classroom based assessments, which indicated "consistent and significant progress in all areas." Consequently, Ridley's psychologist again concluded that there was an absence of a specific learning disability. (H.O. Rpt. ¶ 23.)
Pursuant to E.R.'s kindergarten teacher's recommendation, E.R. attended a summer program called "Summer Steps Program" to reinforce her academic skills. There, it was reported that E.R. made academic progress but that she needed improvement in several academic areas, and that she had difficulties recognizing numbers and counting. (H.O. Rpt. ¶¶ 24-25.)
The initial portion of E.R.'s first grade year were spent reviewing kindergarten materials. During that time, E.R. struggled academically. In late September 2007, Parents requested a meeting with E.R.'s first grade teacher, Janet Cenname. Because the school year had just started, Mrs. Cenname believed it was premature to meet and would be more prudent to allow E.R. to develop her skills at school and at home. However, Mrs. Cenname readily offered to meet with Parents shortly thereafter in early October. (H.O. Rpt. ¶¶ 32-33; Parents' Ex.13.)
Rather than re-contacting Mrs. Cenname, Parents met with the school's principal on November 1, 2007, where Parents were advised that E.R. had been placed on a "reading watch list."After this meeting, E.R. was placed in a reading support group, but according to Parents, she had difficulty catching up because the group had started two months earlier. (N.T. 130-133; H.O. Rpt. ¶ 35.)
On November 16, 2007, Parents requested a comprehensive re-evaluation. Ridley issued its permission to re-evaluate on November 27, 2007 and the re-evaluation was completed on February 26, 2008. (H.O. Rpt. ¶¶ 34-36, 39.) The Re-evaluation Report found E.R. to have disabilities in the areas of reading, written language, and math and reasoning skills. She was also found to have "fine motor delays and a language disability." (H.O. Rpt. ¶ 40.) Accordingly, Ridley's psychologist prepared recommendations for the IEP team regarding special educational services for E.R.*fn2 Parents signed the Re-evaluation Report in agreement. (H.O. Rpt. ¶ 41.)
Based on the Re-evaluation Report, the district offered two possible placements for E.R.: the learning support room at her current school or a self contained classroom at a different elementary school within the district. Parents observed both classrooms but concluded neither program was appropriate for E.R. (H.O. Rpt. ¶ 42.)
After Parents completed their visit and review of the two suggested placements, the IEP team met on March 28, 2008,to review the draft IEP. At that meeting, the team agreed to certain revisions. In addition to other services and accommodations, Ridley's Director of Special Education suggested a program called Project Read as a possible reading aid for E.R. and agreed to look into the program and provide follow-up recommendations. Thereafter, the IEP team met several more times, with Parents requesting further revisions to the proposed IEP. On May 9, 2008, after most of these requested revisions were incorporated, a corrected Notice of Recommended Educational Placement (NOREP) was issued and Parents signed it in agreement. (H.O. Rpt. ¶¶ 43-50.)
On May 13, 2008, in accordance with the IEP, E.R. began going to her school's resource room every day for an hour of reading assistance and a separate hour of math assistance. The resource room reading program consisted of the following: Read Naturally, Reading Workshop, Writing Workshop, and Patricia Cunningham's Systematic Phonics. Aimee Hodges, the resource room teacher, testified that everything done in the resource room was multi-sensory, meaning there were visual, oral, and hands on components. Hodges explained that she concentrated on areas of weakness that were noted in E.R's evaluation. The resource room math program consisted of Everyday Math. Hodges again noted that she focused on areas where E.R. needed work. (N.T. 615-25.)
There were five other students in the resource room. None were first graders and each had different learning issues, yet all were provided with the same reading programs. (H.O. Rpt. ¶ 53.) Hodges testified that while all the students used the same program, different parts of the program were used for different students, so that assistance was geared towards each student's specific needs. (N.T. 638-39.)
E.R.'s grades in the resource room improved, however, Parents attributed this improvement to resource room assistance. E.R. received eighteen days of resource room assistance before her first grade year concluded. (H.O. Rpt. ¶¶ 51, 56-57.)
On June 9, 2008, the IEP team met to update E.R.'s IEP. There, it was recommended that E.R. continue to receive services from the resource room: one hour per day concentration in reading and at least one hour for math. (H.O. Rpt. ¶ 59.) Additionally, Ridley agreed to pay for a summer learning program at the Benchmark Camp along with summer math tutoring three times a week. (H.O. Rpt. ¶ 47.) Ridley also again suggested Project Read, to begin in late September of E.R.'s second grade year.Specifically, the NOREP issued after that meeting set out that Ridley would train their learning support staff on Project Read during the summer and the program would be up and running by the end of September. Parents researched Project Read and concluded that it was not appropriate for E.R. (H.O. Rpt. ¶¶ 60-61.)
On August 14, 2008, Parents advised Ridley that for second grade (2008-2009), E.R. would be enrolling at the Benchmark School. Parents testified that E.R. required an "intensive multi-sensory approach to reading" and that 60 minutes a day was not sufficient. (H.O. Rpt. ¶¶ 60, 63.)
B. Facts - Rehabilitation Act Claims, 29 U.S.C. § 701, et. seq.
E.R.'s health related disabilities included severe food allergies, asthma and eczema, which necessitated her wearing loose cotton clothing to avoid skin irritation. (H.O. Rpt. ¶ 4.) In June of 2006, prior to E.R.'s kindergarten year, Ridley prepared an Allergy Treatment Plan to address these health issues. (H.O. Rpt. ¶¶ 4-5.)*fn3
In February, 2007, a § 504 Service Agreement was implemented to further address E.R.'s allergies. The original agreement was issued to provide Occupational Therapy (OT) services and under this plan, E.R. was to receive OT once weekly for 30 minutes and "consultative services to the home and classroom on a regular basis." On February 9, 2007, an Addendum was developed to include the Health Action Plan and address E.R.'s allergies. Parents signed the agreement on March 8, 2007. (Ridley's Exs. 14, 16.) In August of 2007, Parents reiterated that despite her allergies, E.R. should be included in as many activities as possible. To that end, E.R.'s Service Agreement reflected that Parents were to be contacted before activities involving shared food so that appropriate alternatives could be offered. (H.O. Rpt. ¶¶ 19, 26, 28.)
Parents alleged that E.R.'s first grade teacher, Mrs. Cenname,
"stubbornly and persistently refused" to implement E.R.'s Service
Agreement, which resulted in E.R. being "consistently singled out,
isolated and denied full participation with her classroom peers."
(Parents' Mem. 40.)*fn4 Parents' evidence of
discrimination specifically included the following:
- Regarding what has been referred to as the "Clifford Dog"
celebration, which included a theme of red food, E.R.'s classmates
were given red icing and red juice while E.R. was given a cupcake
suitable to her health/dietary needs. (Parents' Mem.
41.) - Parents cite a second example wherein a program on nutrition
was offered along with a specific snack. Parents claim E.R. was subject to discrimination in
that they were not notified as to what the snack would be and
consequently, E.R. had a snack from home while the other children had
the integrated snack. (Parents' Mem. 41-42.) - Parents also point to
two occasions where Mrs. Cenname noted that E.R.'s clothes were not in
compliance with the school's dress code. Parents allege that E.R.'s
embarrassment at being singled out also amounts to discrimination.
Parents filed a due process complaint with the Pennsylvania Department of Education on December 4, 2008, alleging that Ridley had violated the IDEA and Section 504 of the Rehabilitation Act. Parents asserted that Ridley had failed to timely identify E.R. as a child with a disability, failed to develop an appropriate IEP, and subjected her to discrimination by failing to comply with her § 504 health plan. The district filed its answer on December 19, 2008.
Administrative hearings were held on January 29, 2009, February 10, 2009 and March 10, 2009, and the Hearing Officer's "Decision - Due Process Hearing" Report was issued on April 21, 2009. In summary, the Hearing Officer found that (1) Ridley did not commit any violations in E.R.'s kindergarten year; (2) Ridley violated the IDEA, as well as § 504 in E.R.'s first grade year; and (3) the IEP proposed for E.R.'s second grade year was inadequate, thereby violating the IDEA.*fn5
Ridley filed a petition for review in the Pennsylvania Commonwealth Court, and the matter was subsequently removed to the Eastern District of Pennsylvania. E.R.'s Parents treated the petition as a complaint and filed an answer and counterclaims, adding E.R.'s first grade teacher, Janet Cenname, as a third party defendant. On July 7, 2009, Parents filed a complaint essentially identical to their answer and counterclaims in this Court against Ridley and Cenname (09-3041), which was voluntarily dismissed on October 9, 2009. (Doc. no. 16.) After a Rule 16 conference, Ridley filed a motion for judgment on the administrative record, and Parents filed an answer and counter-motion for judgment on the administrative record.
D. The Hearing Officer's Conclusions
Regarding E.R.'s kindergarten year, the Hearing Officer found that Ridley did not violate the IDEA. The Officer noted that Ridley: - Provided extra academic support for E.R. by placing her in the extended day kindergarten; - Conducted extensive testing in the Fall of E.R.'s kindergarten year, which reflected cognitive ability and achievement levels in the average range; and - Acquiesced to additional testing requested by Parents.
Specifically, the Officer concluded that the "evaluation produced by Ridley was substantively appropriate" and that Parents' allegation that Ridley violated the IDEA by not finding E.R. eligible for special services "lacks any basis in the testimony or documents." (H.O. Rpt. p. 14 (citing 34 C.F.R. § 300, 304(c)(6)).)
However, the Hearing Officer found that Parents had proven that Ridley improperly denied E.R. a free and appropriate education (FAPE) from the beginning of first grade to the time an evaluation was completed and the IEP team determined that E.R. was eligible for special education services in February 2008. Primarily, the Officer focused upon Mrs. Cenname's alleged failure to promptly recognize that E.R. was not progressing and was a student in need of special education, and Mrs. Cenname's alleged rejection of Parents' request for a meeting in September of that year (2007). (H.O. Rpt. p. 15.) No mention was made by the Hearing Officer of the Chester County Intermediate Unit's conclusion approximately a year prior, that E.R. did not qualify as a child with special needs. Nor did the Hearing Officer discuss the results of the ...