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Central School District v. Kc Ex Rel. Sc

United States District Court, Third Circuit

July 3, 2013

K.C., by and through his parents, S.C. and S.C., Defendant.

Memorandum Opinion


This case arises under Section 615(i)(2)(B) of the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. Plaintiff, Central School District (the "District"), has appealed the decision of the Special Education Due Process Hearing Officer ("Hearing Officer"). In that decision, the Hearing Officer found that the District failed to meet its Child Find obligation under the IDEA, and awarded Defendant, K.C. (alternately "Student"), compensatory education. The District argues that the Hearing Officer's finding of a Child Find violation is legally erroneous and unsupported by the record, that the compensatory education award violates the IDEA's two-year statute of limitations and that the award of partial reimbursement for a summer reading program is unjustified. For the reasons that follow, we disagree with the District and will affirm the decision by the Hearing Officer.

I. Factual History

At the time of the Hearing Officer's decision, K.C. was an eleven-year-old student in the Central School District in Bucks County, Pennsylvania. (H.O. Op., F.F. ¶ 1.) K.C. began attending school in the District in first grade, where he was enrolled in general education classes. From the beginning of his first grade year, K.C.'s teacher recommended that he receive educational accommodations to help him develop basic academic skills, particularly reading. K.C. was referred to the Early Literacy Lab, was enrolled in the Basic Skills Lab Reading program, attended small group reading support instruction called STARS, and received supplemental materials and assistance with organization in the classroom. K.C.'s teacher also pre-taught him and re-taught him content. (H.O. Op., FF ¶ 5; R. at J-4.) Additionally, to support development of fine motor skills, K.C. was enrolled in a program called Helping Hands. (R. at J-60.)

Despite these accommodations, K.C. lagged behind his peers in math and writing, and his teacher was concerned about his ability to focus. (H.O. Op., FF ¶ 5; R. at J-4, J-9 and J-10.) With his parents' approval, K.C.'s teacher referred him to an Instructional Support Teacher (IST) tasked with providing a more structured academic support program. (N.T., pp. 961-62.) Working with K.C.'s parents, the IST decided to enroll K.C. in the Reading Recovery Program and the Writing Lab. (H.O. Op., FF ¶¶ 6, 9.) In March 2007, based on K.C.'s performance on the Developmental Reading Assessment ("DRA"), the IST determined that K.C. had improved enough that he would not require structured academic support in reading and writing in second grade, although the IST recommended continuing other regular accommodations. (H.O. Op., FF ¶¶ 9, 11.)

The IST's recommendations were followed when K.C. entered second grade, and he received a number of accommodations and supplemental programs. K.C. was enrolled in the Basic Skills Lab for reading, which consisted of working with a reading specialist twice per week throughout the entire school year. (H.O. Op., FF ¶ 13; N.T., pp. 64, 75.) He also participated in the Sonday reading program, [1] which focuses on phonological awareness, twice weekly between September 2007 and February 2008. (N.T., pp. 144-45; R. at J-14.) For writing, K.C. was referred to the Writing Lab to work on conventions such as capitalization, punctuation and neatness. (R. at J-4; N.T. pp. 67-68.) While other students were also referred to the Writing Lab, K.C. was the only student who participated in the program for the entire second grade school year. (H.O. Op., FF ¶ 16; N.T., pp. 69-70.) K.C. also received math tutoring twice per week, participated in the Basic Skills Lab math program and worked in small groups outside of class with an educational assistant. (N.T., pp. 70-74; H.O. Op., FF ¶ 16.) In the classroom, K.C. received supplemental small group instruction for phonic awareness of words, reading, language arts and math, and was pre-taught and re-taught material. (H.O. Op., FF ¶¶ 13-17.) All of these accommodations and programs supplemented the education received pursuant to the normal second grade curriculum.

K.C.'s progress throughout the second grade year was assessed partly by classroom testing administered by his teacher. In March 2008, in preparation for an end of the year meeting between the teacher and parents called a "Portfolio Conference, " K.C.'s teacher sent his parents a progress report. The teacher indicated that although K.C.'s effort and work habits were satisfactory, his academic progress was not, and K.C. was not proficient in either reading or language arts. (R. at J-15.) K.C.'s teacher also expressed concern with his handwriting and periodic inattentiveness. (H.O. Op., FF ¶ 18.) Similar issues were reported on K.C.'s end-of-the-year report card. (R. at J-18.) While the report card indicated "satisfactory" performance in all academic areas, and his teacher found that K.C. had met "most" of the second grade benchmarks, she also indicated that K.C. needed to work on the neatness of his handwriting and recommended that he work on fluency and comprehension in reading over the summer to prepare for third grade. (Id.)

In addition to classroom evaluations, K.C.'s reading ability was tested four times using the DRA, which consists of testing for comprehension and fluency. (See R. at P-1A, p. 2.) In all four tests, K.C. scored "proficient" in comprehension at his grade level, but was not proficient in fluency on either the September 2007 or May 2008 tests. Indeed, at the end of second grade, K.C.'s fluency was at the level expected of students in the middle of the year. (R. at P-1A, p. 2.)

With the exception of the Sonday program, every accommodation provided to K.C. in second grade continued in third grade. He continued to attend the Basic Skills Lab for both reading and math, receive instruction in the Writing Lab, and was pre-taught and re-taught material. (R. at J-20.) He also continued to receive small group instruction and supplemental material. (Id.) K.C.'s second and third grade teachers testified that although K.C. had met the benchmarks for appropriate progress at the end of second grade, they felt that he should continue to receive these accommodations because they had benefited his education. (H.O. Op., FF ¶ 23; N.T., pp. 90-91, 236-38.) Additional accommodations were also provided to K.C. in third grade. He was assisted with organization, and given study guides for language arts and math. He was also allowed to respond orally to classroom assessments in language arts and reading, and was given re-tests in math.[2] (H.O. Op., FF ¶ 20).

With these additional accommodations, the classroom assessments of K.C.'s academic performance in third grade showed progress in some areas, but continuing weakness in others. He improved in his use of punctuation and capitalization, and, with accommodations like graphic organizers, was able to write a sequential story by the end of the year. (H.O. Op., FF. ¶ 24.) In K.C.'s April 2009 Portfolio Conference Report, his teacher reported that K.C. was proficient in math based on third grade benchmarks, but not in reading or language arts. (R. at J-22; N.T., pp. 326-28.) His teacher also testified that K.C. showed outstanding effort throughout the year, and made progress in independently applying strategies developed during small group work. (N.T., pp. 226, 324-28.) On his spring report card, K.C. received letter grades in reading, writing and math based on his performance with the accommodations provided by the District. K.C. earned B's in reading, C's in writing, and two C's and one B in math. (R. at J-23.) By the end of the fourth marking period, K.C.'s teacher felt that he had improved throughout the year and met the District standards for reading, writing and math. (H.O. Op., FF ¶ 27.)

Objective testing also reflected progress in some areas, but not in others. K.C.'s performance on the Pennsylvania System of School Assessment (PSSA) exam in Spring 2009 showed that he was proficient in both reading and math. (R. at J-21.) However, other tests indicated persisting problems with reading fluency. On the October 2008 DRA, K.C.'s fluency score was only 69 words per minute, barely within the proficient range. (R. at P-1A, pp. 2-3.) When K.C.'s fluency was re-tested using the Oral Reading Analysis ("Minute Read") in April 2009, his fluency was still only 69 words per minute, which was now well below the expected range for a student his age, and his comprehension was just 50%. (Id.)

Fourth grade in the District marks an important shift in academic focus, and the emphasis of the curriculum shifts from "learning to read" to "reading to learn." (H.O. Op., FF ¶ 30.) From the start of the fourth grade year, K.C. experienced difficulty meeting these academic expectations. He skipped words when reading, and his comprehension of text was below 70%. (Id.). A September 2009 DRA requested by K.C.'s teacher revealed that although he read with 94% accuracy, he was "instructional" rather than "independent"[3] at a fourth-grade reading level and his fluency was 52 words per minute, well below the acceptable range of 71-124 words per minute. (R. at J-33.) When writing, K.C. continued to have difficulty using correct punctuation and capitalization. (Id.) After noticing these continued difficulties, and talking with K.C.'s third grade teacher, K.C.'s fourth grade teacher continued the accommodations K.C. previously received, and implemented additional ones. K.C. was now pre-taught and re-taught material in math, language arts and reading, and worked in an isolated area to help him focus. He was also provided study guides and was re-tested in social studies because his reading difficulties impeded his ability to learn the material quickly. (H.O. Op., FF. ¶ 31.) Additionally, K.C. worked on cursive handwriting with his teacher after school once per week. (N.T., pp. 430-31.)

K.C.'s parents met with his teacher in November, and discussed their concerns about K.C.'s academic issues. Specifically, they were bothered by K.C.'s increased reliance on accommodations, and his failure to become a more independent learner. (H.O. Op., FF. ¶¶ 31-32.) K.C.'s parents testified that fourth grade homework was very difficult for K.C., and often took him two or three hours to complete. K.C.'s teacher recommended continuing the accommodations, and worked with his parents to develop strategies to help cope with the most difficult homework assignments. K.C. continued to struggle with homework, however, and his teacher eventually recommended that K.C. be limited to forty minutes of work each night, regardless of whether he had completed the assignments. (H.O. Op., FF. ¶ 34.)

Following the November parent-teacher conference, and after meeting with a pediatrician, K.C.'s parents asked the District to evaluate him for a learning disability. (H.O. Op., FF ¶ 35; R. at P-6.) Initially, the District declined to evaluate K.C., and referred him to an IST instead. (H.O. Op., FF ¶ 36; R. at J-26.) K.C.'s parents were provided with a form to report his strengths, weaknesses and attitude toward school, and their concerns about his academic performance. (H.O. Op., FF ¶ 36.) The District also conducted an academic screening that included aptitude tests and observation of K.C.'s performance in the classroom, both in large and small group settings. ( Id., FF ¶ 40.) K.C. performed in the average range in most of the tests, although some weaknesses in reading and writing were evident. (R. at P-4.) For example, K.C. had difficulty offering written responses to questions, and his rate of reading and level of reading comprehension were well below what was expected in fourth grade. ( Id., p. 4.) During the classroom observations, it was noted that K.C. did not participate as much as other students, particularly in large group settings. ( Id., pp. 5-6.) Following this screening, the IST recommended that continuation of the accommodations already being provided was sufficient. (H.O. Op., FF ¶ 40; N.T., pp. 850-53.) Nonetheless, on December 22, 2009, the school issued a "Permission to Evaluate" ("PTE"), authorizing an assessment of K.C. for a learning disability. His parents agreed to the evaluation on January 4, 2010. (H.O. Op., FF ¶ 35.)

The evaluation requested by K.C.'s parents took place in March 2010. It incorporated the results from the IST's December 2009 academic screening, and was supplemented by other assessments, including portions of the Wechsler Intelligence Scale for Children (WISC-IV), the Reynolds Intellectual Assessment Scales (RIAS) and the Wechsler Individual Achievement Test (WIAT-II). (H.O. Op., FF ¶¶ 44-45.) The WISC-IV, which assesses intellectual ability, indicated that K.C. had "high-average" intelligence, and the RIAS, a measure of academic potential, indicated that his verbal intelligence was in the "High Average" range, and that his nonverbal intelligence was "Average." ( Id., FF ¶ 44; R. at J-33, p. 7.) The WAIT-II, which measures achievement, showed that K.C.'s performance was average or above in reading, writing and math. (R. at J-33, p. 14; H.O. Op., FF ¶ 45.) The evaluation also included a speech and language screening that revealed K.C. had age-appropriate abilities. (H.O. Op., FF ¶ 45.)

As part of the evaluation, the District also surveyed K.C.'s teachers and his parents for signs of attention deficit disorders using the Connors 3rd Edition rating scale. Only one teacher reported a high score for these symptoms, while the parents' ratings were elevated for most indicators. (Id.) Other than the Connors questionnaire, parental input was not considered during the evaluation, although an input form was provided at the meeting to review the result of the District's ...

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