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Daniel P., et al. v. the Downingtown Area School District

October 3, 2011

DANIEL P., ET AL.
v.
THE DOWNINGTOWN AREA SCHOOL DISTRICT



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

MEMORANDUM

In this case, it is contended that the Downingtown Area School District failed to provide an appropriate education to Daniel P., a child with learning disabilities, that his parents were justified in placing him in a private school, and that they are entitled to be reimbursed for their tuition expenses pursuant to the Individuals with Disabilities Education Act ("IDEA"). It comes before me on cross-motions for judgment on the administrative record. The hearing officer found in favor of the plaintiffs, but was reversed by the appeals panel. The primary issues of fact in this case concern the timeliness of the District's identification of Daniel as eligible for special education services, whether the proposed Individualized Education Program ("IEP") was appropriate to meet his needs, and whether he meets the exception to the notice requirement for tuition reimbursement. For the reasons that follow, I will grant the District's motion and uphold the decision of the appeals panel.

I. FACTS AND PROCEDURAL HISTORY

Daniel first became a student of the District in the 2003-2004 school year when he began kindergarten at West Bradford Elementary. During kindergarten, he received informal remedial interventions in the regular classroom setting four days each week that included an extra half- hour of instruction on listening and following directions.

In first grade (the 2004-2005 academic year), an Instructional Support Team ("IST") was assigned to Daniel to provide additional interventions in reading four days per week. Early that year, Daniel was diagnosed with Attention Deficit Disorder ("ADD"). His parents advised the school of this diagnosis and requested a multi-disciplinary evaluation pursuant to the IDEA to determine Daniel's eligibility for special education services. An evaluation report was issued in December 2004 ("first evaluation") and concluded that Daniel had a specific learning disability in reading, noting a severe discrepancy between Daniel's cognitive ability and his reading comprehension. It was further determined that his needs were being adequately addressed through the IST interventions he was receiving in the regular classroom setting. The report stated that Daniel's progress was to be closely monitored and further evaluation was a possibility if his needs were not being met in the regular classroom setting.

In second grade (the 2005-2006 academic year), Daniel continued to receive interventions through the IST program. He continued to exhibit academic difficulties and he was increasingly frustrated and anxious about school.

In September 2006, at the start of his third-grade year, Daniel's parents obtained an independent educational evaluation. The resulting September 25, 2006 report showed Daniel's academic achievement was falling behind that expected of him and noted a delay in his reading, math, and writing skills. The school district also evaluated Daniel at that time and the District's September 26, 2006 evaluation report ("second evaluation") concluded that he had a specific learning disability and was eligible for special education under the IDEA because of his deficits in reading, math, and writing.

The school district therefore scheduled an IEP meeting with Daniel's parents to discuss its proposed IEP for Daniel. On October 13, 2006, prior to that meeting, Daniel's parents withdrew Daniel from the District, without notice to or approval by the District, and enrolled Daniel in Woodlynde School, a private school that provides educational programming to children with disabilities. Nonetheless, the IEP meeting took place on October 25, 2006. Daniel's parents attended and requested a due process hearing, seeking tuition reimbursement for enrolling Daniel in private school and compensatory education for the District's decision not to provide special education following the first evaluation in December 2004.

The due process hearing was conducted in April and May of 2007 and the hearing officer issued her decision on June 2, 2007.*fn1 The District argued that its decision in the first evaluation was correct and that the parents could not receive tuition reimbursement because the IEP it offered was appropriate and the parents failed to comply with the IDEA notice requirement. However, the hearing officer found that the District failed to timely identify Daniel as eligible for special education under the IDEA, that the district's proposed IEP was not appropriate, and that Daniel's parents were entitled to compensatory education and tuition reimbursement because they met the exception to the notice requirement.

The District appealed and the Pennsylvania Special Education Appeals Panel found in its favor, reversing the hearing officer. The appeals panel found that the District timely identified Daniel as having a specific learning disability in September 2006 and the IEP was appropriate, and denied tuition reimbursement, noting that Daniel's parents failed to follow the required notice provisions.

The plaintiffs appealed to this court pursuant to the IDEA's judicial review provisions which permit me to review the administrative record, in addition to the hearing officer and appeals panel opinions, and to base my decision on the record. 20 U.S.C. § 1415(j).

II. DISCUSSION

A. Applicable Law

The IDEA defines a "child with a disability" as a child who has a specific disability such as Daniel's "and who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A) (emphasis added). The Pennsylvania State Board of Education, since 1999, has required school districts, including Downingtown, to develop plans "for additional instructional opportunities for students not achieving at the proficient level, including identification procedures, alternate instructional strategies, monitoring of assessment procedures, and opportunities for extended learning time." 22 Pa. Code § 4.13(c)(11).

Prior to July 2005, the IDEA stated that a child needed special education and related services when "the child does not achieve commensurate with his or her age ability levels" if he or she was "provided with learning experiences appropriate for the child's age and ability levels."

34 C.F.R. § 300.541(a)(1) (2005). The United States Department of Education ("DOE"), in its implementing regulations, had required a "severe discrepancy" between academic achievement and intellectual ability as the means to identify a child in need of special education services. These regulations were in place at the time of Daniel's first evaluation in December 2004.

The IDEA was revised effective July 1, 2005, to modify the language defining a need for such services where the child "does not achieve adequately for the child's age or to meet State-approved grade level standards . . . when provided with learning experiences and instruction appropriate of the child's age or State-approved grade-level standards." 34 C.F.R. ยง 300.309(a)(1) (2007) (emphasis added to show revisions). The process now utilized under the revised IDEA is referred to as "response to intervention" or "RtI model." See e.g, Michael P. v. Dep't of Educ., No. 09-16078, 2011 U.S. App. LEXIS 18616, *8 (9th Cir. Sept. 8, 2011) (noting the revised IDEA "regulations prohibit states from requiring school districts to use the 'severe discrepancy model' and compel states to allow school districts to use the 'response to ...


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