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L.M. v. Downingtown Area School District

United States District Court, E.D. Pennsylvania

April 15, 2015

L.M., BY AND THROUGH HER PARENTS, M.M. AND R.M., AND M.M. AND R.M. INDIVIDUALLY, Plaintiffs,
v.
DOWNINGTOWN AREA SCHOOL DISTRICT, Defendant.

MEMORANDUM OPINION

LINDA K. CARACAPPA, Magistrate Judge.

Presently before this court are Plaintiffs' Motion for Judgment on the Administrative Record (Document No. 11), Defendant's Motion for Disposition on the Administrative Record and Summary Judgment (Document No. 12), and Defendant's Response in Opposition to Plaintiffs' Motion for Judgment on the Administrative Record (Document No. 13). After carefully considering the parties' arguments and reviewing the administrative record and applicable law, and for the reasons that follow, this court grants defendant's motion and denies plaintiffs' motion.

I. BACKGROUND

This special education tuition reimbursement action was commenced by M.M. and R.M. on behalf of their daughter, L.M. ("plaintiffs") against the Downingtown Area School District ("defendant" or "the District"). L.M. attended Shamona Creek Elementary School ("Shamona Creek") in the District from Kindergarten through fourth grade. Compl. ¶ 1. After her fourth grade year, which was 2004-2005, L.M. left Shamona Creek and began taking classes at The Woodlynde School ("Woodlynde") for the 2005-2006 school year. See Pls.' Compl., Ex. A, Hearing Officer Decision and Findings of Fact ("HOD/FF") at 37; Pls.' Brief 12/15/14 at 4. Defendant funded L.M.'s placement at Woodlynde from 2005 through the summer of 2011 pursuant to settlement agreements. See HOD/FF at 39. In May 2011, during L.M.'s eighth grade year, the District proposed a public school placement for 2011-2012, L.M.'s ninth grade year. Id. at 37. Plaintiffs rejected the placement offered by the District and enrolled L.M. at Woodlynde for 2011-2012. Id. at 37, 46. Plaintiffs requested a due process hearing in 2011 seeking reimbursement for both L.M.'s tuition at Woodlynde and an independent educational evaluation ("IEE") plaintiffs' obtained at their own expense. Id. at 37. The administrative hearing officer denied said requests, and plaintiffs appealed that decision to this court. Thereafter, the parties consented to jurisdiction before the undersigned. This court has jurisdiction to review the decision of the hearing officer pursuant to 20 U.S.C. § 1415(i)(2) and 28 U.S.C. §§ 636(c), 1331.

Plaintiffs allege defendant failed to offer L.M. a free, appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794 et seq.; and Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. Compl. ¶ 1. Plaintiffs ask this court to review and reverse the decision of the Due Process Hearing Officer Linda M. Valentini, Psy. D. ("Hearing Officer"), and, as such, order defendant to reimburse plaintiffs for (i) the costs of a private school placement for the 2011-2012 school year to the present - and until such time as defendant develops and implements an appropriate program and placement for L.M. - and (ii) an IEE plaintiffs obtained at their own expense. Id. at ¶ 5. Plaintiffs additionally ask this court to award compensatory damages, as well as reasonable attorney's fees and costs under IDEA, Section 504, and the ADA. Id.

II. LEGAL FRAMEWORK

In order to receive federal education funding under IDEA, states must provide children with disabilities with a FAPE. 20 U.S.C. §§ 1401(3)(A), 1412(a)(1). A FAPE is defined as "special education and related services" that:

(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9). An individualized education program ("IEP"), as defined in section 1414(d), is the primary mechanism for delivering a FAPE. An IEP is a written statement that tailors educational services to meet the specific needs of a child with a disability, and it includes, but is not limited to, statements regarding a child's present levels of academic achievement, measurable annual goals, related services and supplementary aids to be provided to a child, and any individual appropriate accommodations necessary to measure academic achievement and functional performance. 20 U.S.C. § 1414(d).

Aside from these statutory definitions and requirements, IDEA has left the task of interpreting what constitutes a FAPE to the courts. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 203 (1982). As such, the Supreme Court has held a state offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id . Moreover, the Third Circuit Court of Appeals has defined a FAPE to require an education "that would confer meaningful benefit" upon the child. Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988). See also Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 198 (3d Cir. 2004) ("The IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential.") (internal citations omitted). IDEA does not, however, require a school district to provide the best possible education to the child or create an ideal IEP. Rowley, 458 U.S. at 197 n. 21 ("Whatever Congress meant by an appropriate' education, it is clear that it did not mean a potential-maximizing education.").

III. THE ADMINISTRATIVE RECORD

At all times relevant herein, plaintiffs have resided within the District, and L.M. has been identified as eligible for special education under IDEA and as a protected handicapped student under Section 504. See HOD/FF at 37, 38. L.M. was born on November 19, 1994, and at the time of the Due Process Hearings in 2012, L.M. was seventeen (17) years old and in the ninth grade. Id. at 36, 38; N.T. 13.

In order to consider whether the placement and IEP offered to L.M. by defendant for the 2011-2012 school year was appropriate, we must consider the evidence within the administrative record, including the Hearing Officer's Findings of Fact and the IEP itself. As such, it is necessary to set forth such evidence in some detail.

A. Hearing Officer's Findings of Fact

As referenced supra, plaintiffs made a request for a special education due process hearing in 2011 to address their complaint that defendant failed to offer L.M. a FAPE. Due process hearings were held on January 30, 2012, March 13, 2012, June 4, 2012, and June 5, 2012, and the Hearing Officer heard testimony from eleven (11) witnesses. See HOD/FF at 36. R.M., L.M.'s mother, and Georgia Solely, a school psychologist at the District who completed L.M.'s reevaluation, testified on the first day of the hearing. Dr. AnneMarie Brescia, a pediatric rheumatologist at DuPont Hospital for Children, Jill Dougherty, head of the upper school at Woodlynde, Donna Trigone, the school nurse at Woodlynde, and JoAnn Hibbs, a school psychologist at Council Rock School District who completed the IEE, testified on the second day of the hearing. Lauren Kertis, a learning support teacher at the District high school, Jeannine Rhatican, a reading specialist at the District high school, Ryan Farrell, the Assistant Principal of Downingtown High School West campus, and Christopher Fulco, head of school at Woodlynde, testified on the third day of the hearing. Andrew Hoffert, supervisor of Special Education for the District high school programs, testified on the fourth day of the hearing.

The Hearing Officer found, in a decision dated July 3, 2012, that at eight (8) months of age, L.M. was diagnosed with Juvenile Idiopathic Arthritis ("JIA"), also referenced in the record as Juvenile Rheumatoid Arthritis, which included symptoms such as rashes, joint pain, and morning stiffness.[1] See id. At eleven (11) months of age, L.M. was diagnosed with chronic static encephalopathy, or a brain injury, secondary to oxygen deprivation as a result of seizures. Id . L.M. has also been diagnosed with asthma and allergies, which require shots; side effects from the shots include welts on the arms and fatigue. See id. at 38-39. L.M. has permanent residual damage in the ankles, fingers, and wrists. See id. The Hearing Officer noted L.M.'s medical conditions and/or side effects from medications she has been prescribed have, at various times, resulted in a compromised immune system, macrophage activation syndrome ("MAS"), acid reflux, spiked fevers, and compromised bone strength. See id. at 38. L.M.'s conditions and medications change at various times, so side effects from medication are "present at some times and not at others." Id. at 39. For instance, at the first due process hearing on January 30, 2012, L.M. was not having spiked fevers, and her joint pain, skin rash, and fevers were absent as a result of being properly medicated. Id . L.M. was, however, having joint pain in the knee and had been wearing a knee brace for about one and a half years (1 ½) to two (2) years. Id . Prior to the start of the first due process hearing, L.M. had been arthritis symptom-free for one (1) year and had been weaning off her arthritis medication. After a symptom flare up, however, L.M. went back on arthritis medication as of the first due process hearing. Id.

Defendant funded L.M.'s placement at Woodlynde from 2005 through the summer of 2011 pursuant to settlement agreements. The original settlement agreement in 2005 covered two (2) school years, and it was extended twice - in 2007 and 2009 - before expiring in the summer of 2011. Id. at 40. On January 7, 2011, prior to the expiration of the extended settlement agreement, and prior to the start of the 2011-2012 school year, defendant provided plaintiffs with a Permission to Evaluate form to "make an offer of FAPE going forward." Id . Defendant's intention was "to try and bring [L.M.] back into the District." Id. at 41. Plaintiffs signed and returned the Permission to Evaluate form on January 12, 2011. Id. at 40. In a January 12, 2011 email to the District, L.M.'s parents wrote L.M. was receiving FAPE at Woodlynde, acknowledged that tough economic times make it necessary for the District to evaluate expenses and make adjustments, but that it "will not be at the expense of [L.M.'s] education. Id . L.M.'s parents also noted it was their intent "to see that L.M. continues to receive FAPE." Id . The District Psychologist testified she "knew the District was looking to try to bring back a lot of students since [the District] had programs available for Students." Id . The District Psychologist testified she was told in "not so many words, " but received the understanding from a special education director at the District, that the District was going to try to bring L.M. back to the District high school. Id.

As part of the reevaluation process, defendant's District Psychologist reviewed L.M.'s educational file at the District, contacted L.M.'s parents to obtain current information about L.M.'s medical needs and medications, along with L.M.'s needs and strengths at home, and provided the following subjective inventories: the Behavior Assessment System for Children, Second Education ("BASC-II"); the Behavior Rating Inventory of Executive Functioning ("BRIEF"); and the Adaptive Behavior Assessment System, Second Edition ("ABAS-II"). Id . The subjective inventories were then scored and interpreted. Id . In addition, the District Psychologist spoke to two (2) staff members from Woodlynde, reviewed accommodations and specially designed instruction provided to L.M. at Woodlynde, sought input from teachers at Woodlynde by, for instance, providing and reviewing teacher response forms, reviewed L.M.'s class schedule and attendance records from 2010-2011, reviewed daily and quarterly progress reports from Woodlynde, and reviewed L.M.'s G-MADE and STAR reading scores. Id . Moreover, the District Psychologist interviewed L.M. regarding post-secondary goals and obtained input from L.M.'s parents regarding post-secondary goals. Id . She observed L.M. at Woodlynde in order to assess, among other things, whether L.M. had trouble focusing, and what accommodations, if any, were in place for L.M.'s physical limitations. Id. at 42. The District Psychologist also conducted two (2) days of testing with L.M. and observed that L.M. did not exhibit fatigue or other manifestations of physical discomfort, and when breaks in testing were offered, L.M. indicated breaks were not needed. Id . The District Psychologist received input from Woodlynde's school nurses, and the nurses opined L.M. did not need more than the allotted three (3) minutes in between classes at Woodlynde to travel to her classes and she walked at a normal pace. Id.

In response to the District Psychologist's request for information, L.M.'s parents sent a list of thirty-two (32) "learning accommodations" that had been drafted by the director of the middle school at Woodlynde. Id . The accommodations included: repeated directions by teacher and repeated/paraphrased directions by student; visual and auditory prompts; extended response time and extended time for tests and assignment completion; foreign language exemption; preferential seating; multimodal learning opportunities; computer and calculator use; graphic organizers; use of recorded materials; use of electronic software for reading and writing; alternative assessment; small group instruction; chunking of assignments; a reader for test taking as required; and a quiet room for tests/quizzes. Id. at 41-42.

In preparing the reevaluation, the District Psychologist also reviewed L.M.'s testing regarding different subject areas. On the Wechsler Intelligence Scale for Children - Fourth Edition ("WISC-IV"), L.M.'s verbal comprehension scores were at the bottom of the borderline range, her processing speed was at the top of the extremely low range, and her perceptual reasoning and working memory scores were within the average range. Id. at 42. Working memory was in the average range and was listed as a strength in the reevaluation, however L.M.'s mother testified regarding L.M.'s difficulties with memory, and L.M.'s teachers also referenced memory issues. Id . The District Psychologist agreed that by third party reports, L.M. had deficits in both long and short term memory. Id . The District Psychologist also reviewed L.M.'s scores on the Wechsler Individual Achievement Test - Third Edition ("WIAT-III"), which revealed a significant discrepancy between cognitive ability and achievement in basic reading, reading comprehension, reading fluency, math fluency, math problem solving, and listening comprehension. Id . L.M.'s independent reading comprehension was at a third grade level, and she scored within the broad average range in written expression. Id. at 42-43. On the BASC-II parent scales, leadership, functional communication, and resiliency were in the at-risk range. Id. at 43. All of L.M.'s other scores on the parent and teacher scales and on L.M.'s self-report were in the average range. Id . On the ABAS-II teacher scales, L.M.'s scores in communication skills, functional academics, leisure, and self-care were observed as areas of significant weakness. Id.

Upon review of the above-referenced materials, the District's Reevaluation Report ("RR") was completed on February 15, 2011 and was emailed to L.M.'s parents on February 25, 2011. Id . The RR identified L.M.'s primary disability classification as Other Health Impairment ("OHI") due to chronic static encephalopathy and other complex medical conditions. Id . The secondary disability classification was identified as Specific Learning Disability ("SLD") in the areas of basic reading skills, reading comprehension, reading fluency, math problem solving, and listening comprehension. Id . L.M.'s mother testified that upon review of the report, she had concerns about the medical piece of the RR but not about the educational piece. Id . The Hearing Officer noted L.M.'s mother emailed the District Psychologist after receiving the RR on February 25, 2011 and asked, "Can you clarify... for [L.M.] to continue to accept Woodlynde as FAPE I will need to schedule a due process hearing?" Id . On February 28, 2011, the District's Director of Special Education responded to L.M.'s mother's inquiry and explained the process. The Director of Special Education explained that after plaintiffs' had a chance to review the RR, the special education teacher assigned to develop a draft IEP would schedule an IEP team meeting to review the report and discuss program options. Id . After an IEP team meeting, the team would construct an IEP they felt would meet L.M.'s academic and transitional needs. Id . The Director of Special Education explained the finalized IEP would constitute the District's offer of FAPE, and upon completion of a finalized IEP, plaintiffs would be issued a Notice of Recommended Educational Placement ("NOREP"). Id . Plaintiffs could then indicate whether they approved of the plan, and if they did not, they could request an informal meeting, mediation, or a due process hearing. Id. at 43-44. L.M.'s mother responded to said email on February 28, 2011 stating "... it is my intention that [L.M.] continues to receive FAPE thru the Woodlynde School. Please except (sic) this as my written authorization for Due Process." Id. at 44.

On April 9, 2011, the District developed a draft IEP in advance of the IEP team meeting and sent it to plaintiffs on April 11, 2011, so plaintiffs could review and revise the draft prior to the meeting. Id. at 45. The District also prepared a draft sample class schedule for L.M. for grades nine (9) through twelve (12) for graduation planning purposes and sent it to plaintiffs in advance of the meeting. L.M.'s proposed courses for the 2011-2012 school year included: (i) Reading Foundations - a regular education class (where the majority of students in said class were special education), which had up to fifteen (15) students and one (1) teacher; (ii) English II - a regular education class with up to twenty (20) students and one (1) teacher; (iii) Algebra IA - a regular education class with up to twenty (20) students and one (1) special education teacher along with one (1) support staff in one section; (iv) Math Plus Lab - a special education class with up to five (5) students and one (1) teacher; (v) Earth Space and Science - a regular education class with over twenty six (26) students, or alternatively, Earth and Space Science Assist, a smaller supported class; (vi) Freshman Orientation - a special education class with up to fifteen (15) students and one (1) special education teacher; (vii) Wellness/Fitness - a regular education class with up to thirty (30) students; and (viii) Structured Study Hall - a special education class with between five (5) and fifteen (15) students with one (1) teacher and one (1) support staff. Id. at 44. Finally, the District proposed placing L.M. in Read 180®, a reading program designed for students in grades 3-12 whose reading achievements are below the proficient level. See id. at 45. Read 180® could be delivered to L.M. in a daily 90-minute block in a group of (15) students. Id.

The IEP team meeting was held on May 4, 2011. Id . L.M. and her mother attended the meeting, and L.M.'s mother participated in discussions about which grade level L.M. would be assigned to and which gym class L.M. would take. Id . The Hearing Officer found that at the IEP meeting, neither L.M. nor her mother raised a concern regarding L.M. having to walk too far at the high school or L.M.'s psychical condition, except in the context of which gym class L.M. would take. Id . The Assistant Principal at the District testified if the IEP team had met again, they would have considered additional class options for L.M. Id. at 44. At L.M.'s request, L.M. spent a full day at the District's high school approximately three (3) days after the IEP meeting, shadowing another student, in order to see what a typical school day would be like. Id. at 45. The Hearing Officer found L.M. raised no concerns regarding her visit, and no one reported seeing L.M. having any trouble navigating the building. Id . The only item raised by plaintiffs at the time, the Hearing Officer noted, was a remark from L.M.'s father when he picked L.M. up at the end of her visit that the District high school was larger and had more pupils than Woodlynde. Id. at 45-46.

The IEP was finalized and the District issued a NOREP to plaintiffs dated May 4, 2011. Id. at 46. On May 13, 2011, plaintiffs indicated they did not approve of the recommendation. Id . The parents stated they believed Woodlynde to be the least restrictive appropriate environment for L.M. due to its multisensory approach and its classroom size of eight (8) to twelve (12) students with two (2) learning support teachers. Id . The Hearing Officer noted that in rejecting the NOREP, plaintiffs did not make any reference to the two (2) principal concerns plaintiffs raised throughout the due process hearing: L.M.'s medical issues and perceived problems with the proposed IEP. Id.

On May 17, 2011, the District sent a letter to plaintiffs denying plaintiffs' request for tuition reimbursement for Woodlynde for the 2011-2012 school year. Id . By email dated May 19, 2011, plaintiffs indicated their intent to re-enroll L.M. at Woodlynde for 2011-2012 and again requested that the District fund L.M.'s placement. Id . On June 20, Woodlynde sent the District a tuition bill for the 2011-2012 school year, and the District informed Woodlynde it would not be funding plaintiffs' unilateral placement. Id.

About two (2) months after receiving the District's RR, in April 2011, plaintiffs procured a neuropsychological evaluation from the Children's Hospital of Pennsylvania ("CHOP"), wherein a hospital evaluator, who was a licensed psychologist, but not a certified school psychologist, agreed with the District's classification of L.M.'s primary disability category as OHI due to static encephalopathy, but did not disclose a learning disability in any area, because the psychologist used a testing system that did not permit for comparison with academic achievement. Id . The psychologist's evaluation was performed on April 27, 2011, and was sent to plaintiffs on June 26, 2011. The psychologist's evaluation noted ordinary activities such as walking through hallways in a large school building can be stressful for a person with JIA. Id . She also noted that due to "lags in social maturity, " L.M. lacked the emotional resources to cope effectively with the social demands of a school setting where most students are at a higher level of maturity. Id. at 46-47. In addition, however, the psychologist opined L.M. is seen by Woodlynde teachers as "well able to meet demands of everyday situations age-appropriately" as evidenced by L.M.'s BASC-II scores, and noted L.M. "did not appear to be affected by [a facial rash]" (in the sense of being self-conscious), was physically capable of remaining invested in her performance throughout a five (5) hour test session, denied pain, and walked unassisted with a "grossly normal gait." Id. at 47. The psychologist made the following recommendations for addressing L.M.'s medical needs at school: determine a plan for homebound instruction should absenteeism for illness be expected to last for a period of two (2) weeks; provide counseling assistance with regard to how L.M. should inform peers and others when a facial rash may invoke concern; provide psychosocial counseling around the issue of assertive communication at school regarding medical and other needs; and provide a gym program that is coordinated with L.M.'s outpatient Physical Therapy program, with regard to addressing related goals. Id.

On October 21, 2011, plaintiffs received an IEE from a certified school psychologist, which included a record review, testing of L.M., observations of L.M. during a summer program at Woodlynde, and an opinion on the appropriateness of defendant's proposed IEP for the 2011-2012 school year. Id . The independent evaluator noted L.M. had a remarkable focus and attention span over three (3) sessions of testing, worked diligently and appeared highly motivated, and denied needing breaks on multiple occasions. Id . The independent evaluator did not note any difficulties regarding L.M.'s social or emotional behavior; however, she disagreed with the District and CHOP evaluators that OHI should be L.M.'s primary disability category, and instead opined SLD should be the primary disability category, while OHI should be a secondary category. Id . The independent evaluator opined L.M.'s IEP should include written expression goals, interventions to assess L.M.'s memory and process speed deficits, and a transition plan to address emotional needs arising from switching schools. Id. at 48. The evaluator stated L.M. must need what Woodlynde is providing, because L.M. is making progress at Woodlynde. Id . The independent evaluator submitted a supplemental report subsequent to plaintiffs' formal request for a due process hearing after observing thirty-two (32) minutes of the Read 180® program and one (1) English period at the District high school. Id.

On November 22, 2011, L.M.'s rheumatologist submitted a letter opining L.M. needs a smaller educational setting to minimize exposure to infections and decrease stress on joints from walking long distances. Id . The letter further stated L.M. should avoid steps, running, excessive walking, and prolonged sitting. Id . The rheumatologist recommended L.M. receive two (2) sets of books, use of an elevator, a laptop for writing assignments, no timed tests, no grades for handwriting, and extended time between classes. Id.

The Hearing Officer noted Woodlynde is an old elementary school building, and in ninth grade, L.M. walked 1227 to 1378 feet on a given day. Id . The longest distance between classes, which is 242 feet, is the walk from the last class of the day to the bus. There is no elevator at Woodlynde, and L.M. ascended or descended stairs at least six (6) times per day. Id . Moreover, L.M. was required to go outside each day to access a mobile classroom. Id.

The Hearing Officer stated the District high school for ninth grade is a two-story building, and pursuant to the District's proposed class schedule, L.M. would travel approximately 2035 feet per day, not including returning to the main entrance of the building to return home. Id. at 49. The District high school has an elevator, and L.M. would have the option of either climbing the stairs or using the elevator. Id.

In addition to the factual findings described above, the Hearing Officer made findings of credibility regarding the witnesses who testified at the hearings. The Hearing Officer found that although all witnesses seemed to be testifying honestly, some witnesses' testimony was deemed less reliable. Id. at 50. With regard to plaintiffs' witnesses, the Hearing Officer noted although the head of the upper school at Woodlynde testified in detail about L.M.'s schedule and the physical layout of the school, it was only on cross examination that the head of the upper school admitted L.M. had to ascend and descend stairs about five (5) times per day and travel outdoors to a mobile classroom. Id . The Hearing Officer further found the independent evaluator, who performed plaintiffs' IEE, went beyond the bounds of her data set and the data she had available to her from the two (2) psychologists whose reports predated hers in an attempt to establish (i) L.M. had a specific learning disability in written expression, and as a result, the IEP was inadequate for failing to address this area in a goal, and (ii) SLD, and not OHI, was L.M.'s primary disability category. Id . The Hearing Officer found these efforts by the independent evaluator obscured the issues. Id . With regard to the District's witnesses, the Hearing Officer noted the District Psychologist who drafted the IEP did not present as secure in her professional knowledge and did not do well on cross-examination, possibly due to a lack of confidence and experience. Id . The Hearing Officer noted the District's reading teacher explained the Read 180® program in a lucid and engaging manner that established the District was offering an excellent reading program with a good likelihood of success in helping L.M. to make meaningful progress in literacy. Id.

B. The Hearing Officer's Decision

In a decision dated July 3, 2012, the Hearing Officer found: (i) plaintiffs were not entitled to reimbursement for the 2011-2012 school year, because defendant's proposed program and placement for said year was appropriate; (ii) plaintiffs' request for IEE reimbursement was denied, because defendant produced a complete and thorough reevaluation of L.M. in all areas of suspected exceptionality; and (iii) plaintiffs had waived their claims under Section 504, based upon a lack of evidence and argument. See id. at 21-22.

II. STANDARDS OF REVIEW

If the parents of a disabled child do not agree with the IEP offered by a school district, they may request a due process hearing. 20 U.S.C. § 1415(f)(1). Any party "aggrieved by the findings and decision" of the administrative hearing may appeal the decision to a state educational agency. 20 U.S.C. § 1415(g). If a party disagrees with the final result of the administrative review process, they may appeal that result to federal district court. 20 U.S.C. § 1415(i)(2)(A).

"Where no new evidence has been presented to the [district court], motions for summary judgment in an IDEA case are the procedural vehicle for asking the judge to decide the case based on the administrative record." K.H. o/b/o B.Y. v. N. Hunterdon-Voorhees Reg'l High Sch., 2006 WL 2331106, at 4 (D.N.J. Aug. 10, 2006). "The standard of review under which [a district court] considers an appeal of a state administrative decision under the IDEA differs from that governing the typical review of summary judgment.'" M.A. ex rel. G.A. v. Voorhees Tp. Bd. of Educ., 202 F.Supp.2d. 345, 359 (D.N.J. 2002) (citation omitted). The court "applies a modified version of de novo review." L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006). The modified de novo standard is "unusual." Shore Reg'l, 381 F.3d at 199. Indeed, a district court "must make its own findings by a preponderance of the evidence, [and] must also afford due weight' to the ALJ's determination." Id . (citations omitted). "[T]he party challenging the administrative decision bears the burden of persuasion before the district court as to each claim challenged." Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir. 2012).

The district court takes into account not only the record from the administrative proceeding, but also any further evidence the district court accepts into the record. Here, plaintiffs have not proffered additional evidence beyond the administrative record. Under modified de novo review, "factual findings from the administrative proceedings are to be considered prima facie correct." Shore Reg'l, 381 F.3d at 199 (citations omitted). "If a reviewing court fails to adhere to them, it is obliged to explain why." Id . (citations omitted). A district court should defer to the hearing officer's factual findings from an administrative proceeding "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion." S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d ...


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