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Wh v. Schuykill Valley School District

United States District Court, Third Circuit

June 20, 2013

W.H. et al., Plaintiffs,


LAWRENCE F. STENGEL, District Judge.

This matter was initiated by Plaintiff, C.H., and her parents, W.H. and T.H., individually and on C.H.'s behalf, pursuant to 20 U.S.C.A. §1415 (i)(2) and 34 C.F.R. §300.512(2002), as an appeal from an administrative order, entered on June 30, 2011, from the Commonwealth of Pennsylvania Office for Dispute Resolution, finding that the defendant, Schuylkill Valley School District, was not in violation of the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. §§1400 et. seq.; Section 504 of the Rehabilitation Act of 1973 ("§504"), 29 U.S.C. §§794, 794(a); and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12111 et seq., and that the defendant did not fail to provide C.H. with a free and appropriate public education.

I. Background

C.H. is an eleven (11) year-old student in the Schuylkill Valley School District who is eligible for special education under the IDEA.[1] C.H's Parents filed a due process complaint on March 28, 2011 against the District[2] asserting that it denied C.H. a free, appropriate public education ("FAPE") under the IDEA and §504 from the time period beginning with the start of the 2008-09 school year through the present and including the summer of 2011.[3] Over the course of three hearings, the hearing officer barred C.H.'s parents' claims for the 2008 school year under the statute of limitations. The hearing officer found that, although no educational program is without flaws, the district provided C.H. with a FAPE that was "reasonably calculated to, and did, provide meaningful educational benefit." The hearing officer concluded that the parents' failed to show any deficiency in the educational program and it was not deficient for the District to disagree with and reject independent recommendations while still fulfilling its obligations.

The hearing officer also made the following findings of fact regarding, which the plaintiffs include in their Complaint:

a. 2008-2009 School Year

C.H. began attending school in the District in first grade (2006-07).[4] C.H. has had individual speech/language therapy three times during a six-day cycle and has been provided with occupational therapy (OT) and physical therapy (PT) and weekly private speech/language therapy.

In December 2006, C.H.'s classroom began participating in Pennsylvania's Verbal Behavior Project and C.H.'s parents gave permission for the class to use the Assessment of Basic Language Skills (ABLLS) as its curriculum guide. Prior to September 2008, Student was evaluated for use of a ChatPC[5] and in October, the District implemented a behavior plan. The local intermediate unit ("IU") conducted hearing tests in January 2009 and discovered mild hearing loss in C.H.'s left ear, which would impact C.H.'s access to communication.

For the 2009-10 school year the VB class switched to the Verbal Behavior Milestones Assessment and Placement Program (VBMAPP).[6] The District met with C.H.'s parents in March 2009 and developed behavioral plans to deal with C.H.'s problematic behaviors.[7] At that time, C.H. was using a combination of vocalizations, signs, and gestures to communicate and was beginning to use two and three-word phrases. Progress reports for the 2008-2009 school year indicated improvement with C.H.'s challenging behaviors, such as putting the head down and flopping on the floor.

b. 2009-2010 School Year

At the beginning of the 2009-10 school year, the Verbal Behavior Project changed from using the ABLLS to the Verbal Behavior Milestones Assessment and Placement Program (VB-MAPP).[8] C.H.'s IEP team met several times in the fall of 2009 to develop an IEP, which included goals for academic subjects like math, science, and language and included natural environment teaching and use of computer programs, such as ChatPC.[9] (Doc. #1-1 at ¶ 14). C.H. was also involved in special subject modifications and testing accommodations, and by February 2010 C.H.'s IEP was revised in February and March 2010 to increase the expectations for several of the goals and provide for extended school year programs ("ESY").

The District conducted a re-evaluation of C.H. in May of 2010 to aid in the transition to middle school, and issued a re-evaluation report (RR), based on a number of assessments, such as cognitive and achievement testing.[10] The RR showed that C.H. had made improvements in a number of areas, such as problematic behaviors, and language skills and made recommendations and set goals as to improving basic academic skills and continued OT and PT. Another test that spring revealed more hearing loss, and the audiologist made several recommendations for accommodating C.H., including minimizing background noise and using clearly written and spoken communications. Progress reports for the 2009-10 school year reflected improvements in the vocal imitation, reading, motor skills, and behavioral problems; C.H.'s improvements in math were generally inconsistent.

C.H.'s parents requested, and the District agreed to fund, an Independent Educational Evaluation (IEE) in the summer of 2010. The District provided C.H. ESY services during the summer and while C.H. made no clear progress, there was no regression shown.

c. 2010-2011 School Year

In September 2010, C.H.'s IEP was revised to address new goals and program modifications and included PT, OT, speech/language therapy and a one-on-one aide. C.H. repeated the fourth grade, spending 3½ hours per day in the learning support classroom, and spent the rest of the day in homeroom and engaging in What I Need (WIN) time, which includes special activities like music and computer class. A one-on-one aide accompanied C.H. throughout the entire day, except for lunchtime (during the second half of the school year). Throughout the year, C.H. used the Edmark Program for reading, Distar Math, and Touchmath for mathematics, and regular science and social studies classes with some accommodations and modifications.

In October 2010, an independent auditory language processing evaluation was conducted confirming C.H.'s receptive and expressive language delays, articulation difficulties, and hearing loss. The audiologist again made recommendations concerning specific programs, such as auditory training through the FastForWard Language program. Id . At this same time, C.H.'s parents obtained a private occupational therapy evaluation, which revealed "sensory processing disorder impacting [C.H.'s] ability to regulate attention and focus on tasks, follow directions, engage in appropriate play activities and motor tasks, engage in self-help independently, and derive information from a multisensory environment" and made various recommendations.

Additionally, in October 2010, C.H. was evaluated by an independent school psychologist and an Independent Educational Evaluation (IEE) report was issued, which reflected C.H.'s weaknesses and identified language as C.H.'s primary academic deficit. The IEE evaluator made various recommendations for changing C.H.'s educational plan. C.H.'s IEP team met in January and February 2011, and the parents provided a list of the IEE recommendations that they wished to see implemented. C.H's parents did not approve the February 2011 IEP and advised the District that they did not agree to the IEP because it set low expectations for C.H., failed to adequately address functional Communication needs, and lacked authentic participation in the classroom. They also expressed concerns about the effectiveness of the Verbal Behavior classroom. Progress reports for the 2010-2011 school year again noted improvements in all of C.H.'s academic subjects except math, which was too difficult to gauge.

II. Procedural History

Defendant filed a Motion to Dismiss on October 17th, 2011, which I granted with leave to Plaintiffs to amend. Plaintiffs filed their first Amended Complaint on January 22, 2012. Defendant filed a second Motion to Dismiss, which I denied. The parties have since filed cross motions for judgment, which are ripe for review. For the ...

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