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Nicholas H. v. Norristown Area School District

United States District Court, E.D. Pennsylvania

February 10, 2017

NICHOLAS H., through his Parents JEFFREY and DENISE H. of Jeffersonville, PA Plaintiffs


          JOYNER, J.

         This matter has been brought before the Court on cross-motions of the parties for judgment based upon the administrative record before the Hearing Officer. For the reasons set forth below, the motions shall be granted in part and denied in part.

         History of the Case

         Nicholas H. is a 16-year-old high school sophomore who resides with his parents in the Norristown Area School District. Nicholas has been identified as a child with a disability within the meaning of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400, et. seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794.[1] Specifically, Nicholas has been diagnosed as having a variety of disabilities and/or conditions which impair his ability to learn including: Attention Deficit Hyperactivity Disorder, combined type (“ADHD”), Generalized Anxiety Disorder, Developmental Coordination Disorder, Dysgraphia (writing disorder), Developmental Arithmetic Disorder, Congenital Cardiac Disorder, Seizure Disorder, Executive Functioning Deficits and Cognitive Disorder, Auditory Processing Disorder and Nonverbal Learning Disability. Many, if not all of these disorders are related to Nicholas' having suffered a perinatal brain injury called Periventricular Leukomalacia (“PVL”).

         Although he spent several years in the Norristown public schools in the elementary and middle school grades, Nicholas' parents unilaterally removed him from the Norristown public school system following his fifth grade year at East Norriton Middle School and placed him at the Stratford Friends School in Newtown Square, PA because he was experiencing severe anxiety and, in their opinion, wasn't making any real academic progress in the public schools. Nicholas remained at Stratford Friends, which has small class sizes and specializes in educating children who are challenged by disabilities such as his and thus learn differently, for the following three years - through grades 6, 7 and 8.

         Stratford Friends School, however, only went through the 8thgrade and thus at the end of the 2013-2014 school year, Nicholas' parents began searching for another school. In the Spring of 2014, Nicholas' parents independently retained Dr. Mary Lazar, Psy.D., the Director of the Neuropsychology Assessment Center at Widener University to undertake a comprehensive neuropsychological evaluation of their son. Dr. Lazar's evaluation took place over two days - on March 25 and April 1, 2014, during which she interviewed Nicholas and his parents, reviewed educational records, questionnaires and rating scales from his teachers, and administered a wide variety of educational, psychological and behavioral tests. Nicholas demonstrated greater performance in the verbal domain and weaknesses in the nonverbal/perceptual reasoning domain and with functional communications skills. He was found to have, inter alia, “pronounced difficulty learning and encoding new visual information as well as trouble retrieving this information from long-term memory.” (Joint Exhibit “J” 10, p. 8). He was also found to have difficulty with spatial perception and perceptual organization, analyzing complex visual information, integrating visual knowledge while formulating a motor response and displayed low abilities to solve higher level problems in reading, writing and math.

         In addition, Nicholas experienced considerable problems with inattention and impulse control during everyday functioning. His executive functioning skills - organizing, directing, managing, planning, sustaining effort to task completion and learning from experience were also weak. Mathematics posed the area of greatest academic weakness and Nicholas was found to have difficulty solving multi-step problems and conceptually understanding numerical and quantitative concepts. Finally, Nicholas met the criteria for Generalized Anxiety Disorder in that he very frequently worried about his health (almost to the point of obsession), as well as his performance and how he is perceived by others, and suffered from overall anxiety.

         Based upon these findings, Dr. Lazar made a number of general recommendations including that Nicholas consult with his treating physician regarding the appropriateness of medication to address his significant problems with self-regulation and anxiety, and specific recommendations for Nicolas' future educational treatment[2], the first being that Nicholas be placed in a small, highly structured classroom with a low student to teacher ratio. Dr. Lazar's report was provided to the School District prior to the start of the 2014-15 school year and in advance of the Individualized Education Program (“IEP”) meeting which was eventually held on September 9, 2014.

         Shortly after receiving Dr. Lazar's report, in May 2014 Nicholas' parents applied and enrolled him in the Woodlynde School in Strafford, PA for the following school year. Like Stratford Friends, Woodlynde School is dedicated to the education of students like Nicholas who learn differently and offers smaller class sizes and built-in structures designed to accommodate its students' learning needs, many of whom have been diagnosed with the same or similar learning disabilities or conditions as Nicholas. Unlike Stratford Friends, Woodlynde is a K-12 college-preparatory school. Despite having enrolled Nicholas at Woodlynde in May, Mr. and Mrs. H. had purchased tuition insurance such that they could obtain a refund from Woodlynde if they opted to return him to the public school setting or chose another placement for their son.

         After the IEP meeting in early September, the District submitted its proposed IEP and Notice of Recommended Educational Placement (“NOREP”) to the parents on or about September 10, 2014. The Defendant District recommended that Nicholas repeat his 8th grade year at the East Norriton Middle School with various accommodations in both special education and general education classrooms. The parents, however, rejected the IEP and the NOREP and commencing in the fall of 2014, Nicholas repeated his eighth grade year at the Woodlynde School.

         Towards the conclusion of the 2014-15 school year, on May 7, 2015, the parents sought reimbursement for Nicholas' Woodlynde tuition and transportation for the preceding year by filing a Due Process Complaint with the District on the grounds that it failed to provide Nicholas with a Free Appropriate Public Education. Despite the complaint or perhaps in response to it, the District scheduled another IEP meeting for the upcoming (2015-16) school year on July 30, 2015. Following that meeting, the District offered another IEP and NOREP to become effective on September 1, 2015 at Norristown Area High School. Because the offering for Nicholas called for his placement in large regular classrooms for his non-academic subjects and special education classrooms for his core, academic courses at the 1600-1700-student Norristown High School, his parents again rejected the District's IEP and NOREP and Nicholas remained at Woodlynde for his 9th grade year. They again sought Due Process and requested refund of tuition and transportation for the 2015-16 school year. A Special Education Hearing Officer held two days of hearings on the case on August 20 and October 19, 2015 and subsequently issued a Decision on December 14, 2015 finding that the District had sufficiently offered a FAPE in both of its proposals for the two school years at issue and denying the parents' request for tuition and transportation reimbursements. The parents then timely appealed to this Court.

         Standard of Review

         In considering an appeal from a state administrative decision under the IDEA, district courts are required to apply a nontraditional standard of review, sometimes referred to as a “modified de novo review.” D.S. v. Bayonne Board of Education, 602 F.3d 553, 564 (3d Cir. 2010); Mary T. v. School District of Philadelphia, 575 F.3d 235, 241 (3d Cir. 2009). Under this standard, the District Court must make its own findings by a preponderance of the evidence while affording “due weight” to the ALJ's determination. Mary T., id, (quoting Shore Regional High School Board of Education v. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). In so doing, the District Court “must accept the state agency's credibility determinations unless the non-testimonial extrinsic evidence in the record would justify a contrary conclusion.” D.K. v. Abington School District, 696 F.3d 233, 243 (3d Cir. 2014). Factual findings from the administrative proceedings are to be considered prima facie correct and if the Court does not adhere to those findings, it must explain why. Id. The Court may not, however, substitute its own notions of sound educational policy for those of local school authorities. Ridley School District v. M.R., 680 F.3d 260, 268 (3d Cir. 2012).

         Further, “[t]he issue of whether an IEP is appropriate is a question of fact.” D.S. v. Bayonne, supra, (quoting S.H. v. State-Operated Sch. Dis. Of Newark, 336 F.3d 260, 271 (3d Cir. 2003)). “But a court should determine the appropriateness of an IEP as of the time it was made, and should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district's decisions at the time that they were made.” Id, at 564-565 (citing Susan N. v. Wilson School Dist., 70 F.3d 751, 762 (3d Cir. 1995)).


         The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et. seq. was designed to overcome the pattern of disregard and neglect disabled children historically encountered in seeking access to public education. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 63, 126 S.Ct. 528, 538, 163 L.Ed.2d 387 (2005). Indeed, the Supreme Court has said that “Congress enacted the IDEA to ensure that all children with disabilities are provided a ‘free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.'” Forest Grove School District v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009)(quoting School Committee Of Town of Burlington, Mass. v. Department of Education Of Massachusetts, 471 U.S. 359, 367, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). A free appropriate public education (FAPE)[3]“consists of educational instruction specifically designed to meet the unique needs of the handicapped child supported by such services as are necessary to permit the child to benefit from the instruction.” Ridley School District v. M.R., 680 F.3d at 268-269 (citing Board of Education v. Rowley, 458 U.S. 176, 188-189, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). In addition to having to be specially designed to meet the unique needs of the child, the FAPE must be provided under public supervision and direction and at no cost to the parents. P.P. ex rel. Michael P. v. West Chester Area School District, 585 F.3d 727, 738 (3d Cir. 2009).

         School districts provide a FAPE by designing and administering a program of individualized instruction that is set forth in an Individualized Education Plan (“IEP”). Mary T., 575 F.3d at 240. The IEP has been characterized as the “centerpiece” of the IDEA's “education delivery system for disabled children, ” with the premise that each would be designed by parents and schools working together. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1988); M.R. v. Ridley School District, 744 F.3d 112, 117 (3d Cir. 2012). “An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services.” D.S., 602 F.3d at 557 (quoting Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000) and 20 U.S.C. §1401(a)(20)).

         Finally, “[t]he IEP must be ‘reasonably calculated' to enable the child to receive ‘meaningful educational benefits' in light of the student's ‘intellectual potential.'” Id, (quoting Shore Regional High School Board of Education v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) and Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182-85 (3d Cir. 1988)). A “meaningful benefit” must entail “more than a trivial educational benefit, ” but it does not have to maximize the child's potential. F.C, 636 Fed.Appx. at 861 (quoting L.E. v. Ramsey Bd. Of Educ., 435 F.3d 384, 390 (3d Cir. 2006) and D.S. v. Bayonne, 602 F.3d at 556). Because an education is “specially designed” if the IEP is made “in light of the student's intellectual potential, ” whether an education is “appropriate” depends upon the individual child's abilities and needs. Id. (quoting Chambers v. Philadelphia Board of Education, 587 F.3d 176, 182 (3d Cir. 2009)).

         If parents believe that an IEP fails to provide their child with a free and appropriate public education, they may challenge the IEP in an administrative proceeding. D.S., 602 F.3d at 557 (citing 20 U.S.C. §1415(b)(6)). A parent who believes that a school has failed to provide a FAPE may request a hearing, commonly known as a due process hearing, to seek relief from the school district for its failure to provide a FAPE. Norristown Area School District v. F.C., 636 Fed.Appx. 857, 860, 2016 U.S. App. LEXIS 270 at *7, n.7 (3d Cir. Jan. 8, 2016); Mary T., 575 F.3d 240 (citing 34 C.F.R. §300.507). In Pennsylvania, which now follows a single-tier administrative process, all state-level review is provided by hearing officers who conduct the due process hearings. P.P., 585 F.3d at 734, n.2; Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995). The burden of proof at such hearings is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 136 L.Ed.2d 387 (2005)).

         A party to the due process hearing aggrieved by its outcome may then bring a civil action challenging the decision in any state court of competent jurisdiction or in a federal district court, without regard to the amount in controversy. D.S., 602 F.3d at 558; 20 U.S.C. §1415(i)2). In that event, a reviewing “court's inquiry under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized education program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-207, 102 S.Ct. at 3051.

         “Parents who believe that a public school is not providing a FAPE may unilaterally remove their disabled child from that school, place him or her in another school, and seek tuition reimbursement for the cost of the alternate placement.” Mary T., 575 F.3d at 242 (citing 20 U.S.C. §1412(a)(10)© and Burlington School Committee v. Dept. of Educ., 471 U.S. 359, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). “A court may grant tuition reimbursement if the School District failed to provide the required FAPE and the parents sought an appropriate private placement.” Id., (citing, inter alia, Lauren W., ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 276 (3d Cir. 2007)). Indeed, the Supreme Court has explicitly stated that “[p]arents ‘are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.'” Forest Grove, 129 S.Ct. at 2496 (quoting Florence County School Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). “No reimbursement is required if the school offered a FAPE and the parents placed the child in a private school anyway.” P.P., 585 F.3d at 739. And, “even where private placement is appropriate and reimbursement is otherwise due, the IDEA permits the equitable reduction or elimination of tuition reimbursement under certain circumstances.” C.H. v. Cape Henlopen School District, 606 F.3d 59, 67 (3d Cir. 2010). Such circumstances might be found to exist where the parents did not inform the District or the IEP team that they were rejecting the proposed placement, did not give the requisite 10 business days' notice that they were rejecting the placement prior to removal of the child from the public school or where the parents failed to make the child available for an evaluation. See, e.g., 20 U.S.C. §1410(a)(10)(C)(iii).

         In determining whether a private placement is proper, a disabled student is not required to demonstrate that he cannot be educated in a public setting. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 248 (3d Cir. 1999). Nor must the parents of a disabled student seek out the perfect private placement in order to satisfy the IDEA. Mary T., 575 F.3d at 242. Indeed, a private placement is proper if it provides significant learning, confers meaningful benefit and is provided in the least restrictive educational environment. Id.; Ridgewood, supra. And a private school placement may be proper and confer meaningful benefit even despite the private school's failure to provide an IEP or meet state educational standards. Mary T., supra, at 242 (citing, inter alia, Carter, 510 U.S. at 14-15 and DeFlaminis, 480 F.3d at 276).

         In this case, the parents and the school district have filed competing/cross-motions for judgment on the administrative record such that each party contends that the record of testimony and evidentiary materials submitted to the Hearing Officer justifies the entry of judgment in their favor. Stated otherwise, Plaintiffs seek to overturn the finding of the Hearing Officer that Norristown Area School District offered a FAPE to their son whereas the District submits that the Hearing Officer's decision is amply supported by the record. According to the Plaintiffs, the Hearing Officer erred in finding that the IEPs for the school years at issue addressed Nicholas' needs as those needs were identified in Dr. Lazar's Independent Educational Evaluation (“IEE”) and in updated testing from Woodlynde. Rather, Plaintiffs assert, the IEPs for the 2014-15 and 2015-16 school years disregarded Dr. Lazar's findings and recommendations for Nicholas' placement and accommodations[4], most particularly that he be placed in a small, highly-structured classroom with a low student-to-teacher ratio.

         At the outset, we observe that the District complied with all of the requisite procedures set forth in the applicable statutes and thus we find no procedural grounds to reverse the Hearing Officer's decision. Next, in examining the IEPs offered by the District for the 2014-15 and 2015-16 school years, we find that both referenced Nicholas' history of congenital heart defect and perinatal brain injury which “manifests itself as a complex neurobehavioral disorder that includes seizures, attention problems, mood dysregulation, impulsivity and numerous cognitive and academic disabilities, ” and that he had diagnosed conditions including: Attention Deficit Hyperactivity Disorder, Central Auditory Processing Disorder, Developmental Coordination Disorder and generalized Anxiety Disorder. The IEPs further noted that he had specific learning disabilities in the areas of math (problem solving and numerical operations) and written expression, and referenced Dr. Lazar's neuropsychological evaluation discussing a pattern of impairment in visual-spatial skills, motor coordination and executive function. Also included in both IEPs was a review of Nicholas' various educational tests' scores (which ranged from borderline to average), performance on state and local assessments (which were all below basic), his grades at the private schools, reports from his teachers, and the reported observations of two District representatives, Mrs. Helen Morein, the Acting Special Education Supervisor and Ms. Kate Jacovin, the Program Support Specialist from the Middle School. Thus we find that the two IEPs included all of the necessary information called for by law.

         The 2014-15 IEP contemplating Nicholas' return to the East Norriton Middle School for 8th grade included a number of accommodations for standardized state and local testing (e.g., PSSA, Keystone exams) such as having the directions read and reread to him, extended testing time, preferential seating, and testing in a separate room or small group and several measurable annual goals[5] to be measured through weekly probes, checklists or observational data with progress toward those goals being reported to the parents through the trimester report cards. Presumably to achieve these annual goals, the following modifications and specially designed instruction (“SDI”) for the classroom were offered in the 2014-15 IEP:

1. “Direct instruction in assisting Nicholas with breaking down studying by night to develop study skills and assist with organization.” This was to take place in the special education classroom “as per testing situation.”
2. “Provide Nicholas with a list of numbered instruction and/or tasks to complete an assignment. The list must be explicit. Nicholas will be reminded to check off each item on the list and reviewed frequently by the teacher to ensure accuracy and completeness of task prior to submission.” This was to take place in both special and general education classrooms “as per assignment.”
3. “Systematic strategy instruction in the area of math for completion required work problems - using a math frame.” This was to take place in the general education classroom “as per assignment.”
4. Allow Nicholas to listen to class lectures and highlight keywords during note-taking activities. Nicholas is a verbal learner and taking notes would detract from his ability to process new material.” This was also to take place in the special and general education classrooms “as per assignment.”
5. “Systematic strategy for written expression. Using graphic organizer to assist with organization in writing to support the use of transition words and idea development between paragraphs.” This was to take place in both the special and general education classrooms “as per assignment.”
6. “Provide student with skeletal outlines, highlighting critical features and essential vocabulary for all content areas.” Likewise, this was to occur in both the special and general education classroom on an “on-going” basis.
7. “Study guides will be provided for content area subjects at least 5 days prior to unit or chapter test. Nicholas will use the study calendar to support him in preparation for test.” This was also to occur in both the special and general education classroom “as per testing situation.”
8. “Preferential seating” in the general education classroom “as needed.”
9. “All teachers will allow ‘wait time' so Nicholas can organize his thoughts and respond to the question.” This was to occur in the general education ...

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