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Brandywine Heights Area School District v. B.M.

United States District Court, E.D. Pennsylvania

March 28, 2017

B.M., by and through his parents, B.M. and J.M.; and B.M. and J.M., in their own right, Defendants.


          Joseph F. Leeson, Jr. United States District Judge

         I. Introduction

         B.M. is a student with autism who attends school in the Brandywine Heights Area School District. He entered Brandywine Heights as a kindergartener, transitioning to the District from an early intervention program. Concerned that Brandywine Heights was not affording B.M. the free appropriate public education he is entitled to under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., his parents requested a due process hearing partway through B.M.'s first-grade year. They argued that the District waited too long to begin planning for his arrival, did not have an appropriate plan in place for him when he arrived, and failed to provide him with a meaningful educational benefit during his kindergarten and first-grade years. The hearing officer concluded that the District initially failed to account for and control certain disruptive behaviors that B.M. had exhibited at times during the early intervention program, depriving him of a meaningful educational benefit for much of his kindergarten year and entitling him to compensatory education for that period of time. But, the hearing officer concluded that the District rectified the problem toward the end of B.M.'s kindergarten year and has been providing B.M. with a free appropriate public education since that time.

         Neither side was entirely pleased with that outcome. The District believes that it has provided B.M. the education he is due under the IDEA since the time he arrived, while B.M.'s parents[1] maintain that no part of B.M.'s first two years at the District provided him with a meaningful educational benefit. The Court largely agrees with the hearing officer's decision, with one difference of opinion about the amount of compensatory education that B.M. is due.

         II. Background

         B.M. began receiving special education services soon after he was born. He participated first in a birth-to-three early intervention program before transitioning to a preschool early intervention program. In early 2011, partway through B.M.'s second year at the preschool early intervention program, his parents met with representatives of Brandywine Heights to consider transitioning him to kindergarten, but they ultimately decided to keep him in the early intervention program for an additional year.

         In January 2012, B.M.'s parents met again with District representatives. This time, they signed an intent-to-register form, committing B.M. to start kindergarten at Brandywine Heights in the fall. During that meeting, the District representatives informed B.M.'s parents that they planned to conduct a reevaluation of B.M. as part of their transitioning planning, and they explained that they would be sending a permission-to-reevaluate form that would need to be completed to authorize them to conduct the reevaluation. But the District did not mail the form until April 24, more than three months later. According to Brandywine Heights's director of special education, it is the District's policy to wait until the month of April to issue permission-to-reevaluate forms for students transitioning from early intervention programs; as she put it, “That is how we've always functioned.”[2]

         B.M.'s mother claims that she did not receive the form in the mail until May 7. Concerned that the reevaluation might not begin in time to be completed before B.M. started kindergarten, she hand-delivered the form to the District three days later. Pennsylvania regulations allow schools sixty days from the date of parental consent to complete student reevaluations, not counting the summer months between school years. 22 Pa. Code § 14.124(b). The District completed the reevaluation on September 6-eleven days after B.M.'s first day of kindergarten.

         The following day, the District convened a meeting with B.M.'s parents to discuss the reevaluation and the District's overall individualized education program (IEP) for B.M. An IEP is a “comprehensive plan” that a school district must prepare for each disabled student, which must “include ‘a statement of the child's present levels of academic achievement and functional performance, ' describe ‘how the child's disability affects the child's involvement and progress in the general education curriculum, ' and set out ‘measurable annual goals, including academic and functional goals, ' along with a ‘description of how the child's progress toward meeting' those goals will be gauged.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, at *4 (U.S. Mar. 22, 2017). The development of an IEP for each disabled student is “the centerpiece of the [IDEA's] education delivery system for disabled students.” Id. (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). An IEP had been created for B.M. while he was attending the early intervention program (and it had been updated fairly recently, in May 2012), but the District's plan was to craft a new IEP that would be tailored to the learning environment at Brandywine Heights and that would incorporate insights from the reevaluation.

         At the meeting, B.M.'s parents reviewed the reevaluation with various representatives of the District, but after more than two hours spent discussing it, they ran out of time before they could discuss the IEP. As a result, the District scheduled a second meeting to take place twelve days later, on September 19.

         B.M.'s parents penned a letter to the District on the 12th, expressing their frustration that a new IEP was still not in place. In the absence of a new IEP, the District had been following the early intervention IEP, but his parents were concerned that the early intervention IEP did not account for some of the changes in B.M.'s environment, such as the need for a “plan [to] be put in place to prevent him eloping [from school grounds] . . . [and] a plan for end of day dismissal [procedures].”[3] But there were also other, more troubling issues with B.M.'s transition to Brandywine Heights. Within his first few days, he exhibited some physically aggressive behavior, including grabbing a teacher's hand and using it to strike himself in the head and physically disrupting group activities with other students. B.M. had a history of striking himself in the head, as well as striking others with his head when frustrated (behavior the parties refer to as “head-butting”), but those behaviors had appeared to wane during his last year in the program. Now, they seemed to be reappearing as he acclimated to a new environment.

         On the 18th-one day before the planned IEP meeting-B.M.'s parents wrote again to the District, this time to express their belief that the reevaluation that had been reviewed with them at the September 7th meeting suffered from a number of deficiencies that would hamper the creation of an appropriate IEP. They asked the District to arrange for another evaluation of B.M., this time by an independent examiner, at the District's expense. The District responded the following day, telling them that it had agreed to their request. See 34 C.F.R. § 300.502 (providing that if a parent disagrees with an evaluation conducted by a school and requests an independent examination, the school has only two options: convene a due process hearing to prove that the school's examination was proper, or pay for the independent examination).

         The IEP meeting scheduled for that day still went ahead as planned, and the District presented B.M.'s parents with a draft IEP as well as a recommendation that B.M. be placed in a full-time learning support classroom at the school. In a written response sent a week later, his parents informed the District that they disagreed with the plan because they believed that it did not adequately address certain concerns they had raised at the meeting, and they also mentioned that the plan would need to be revisited after receiving the results of the independent examination.

         Over the next few weeks, B.M. engaged in more disruptive behavior. During one episode, which occurred when he was allowed to join the rest of his kindergarten class in the library, he “refused to sit in his seat, and began scripting[4] loudly and crawling around on the floor” before “[running] through the class blindly and yelling” and becoming “extremely loud and agitated.”[5]Concerned for the safety of the class, two teachers had to remove B.M. from the library. Another incident occurred during a group speech session. Frustrated that he could not access a musical instrument that other students were using, he struck another student with his head. A similar incident occurred the following day during lunch with his class, where B.M. struck another student with his head three times after being prevented from taking a snack from the other student's lunch tray.

         B.M.'s parents were kept apprised of these behaviors by District faculty. Concerned that these behaviors were interfering with B.M.'s progress, they sent a letter to the District to request that a functional behavior assessment be conducted to better understand why these behaviors were occurring and how to control them. They also asked for the assessment to be performed by a behavioral analyst at the Berks County Intermediate Unit[6] with whom B.M.'s parents were familiar. The District agreed to the request, and it contacted the Intermediate Unit the following day to seek its assistance.[7]

         Toward the end of November, B.M.'s parents met with District representatives and the behavioral analyst to lay the groundwork for the functional behavior assessment. During the meeting, they identified B.M.'s behaviors of striking himself in the head and striking others with his head as two particular behaviors of concern to study. Over the next few weeks, data was collected on these behaviors to determine their frequency and timing. They found that B.M. struck his head approximately 62 times per day and struck others with his head approximately 60 times per day. Their hypothesis was that he struck his head “to gain sensory stimulation and to gain increased adult attention” and struck others with his head when frustrated, such as when he was refused permission to engage in certain activities or when told to perform a certain task.[8]

         A report of these findings was finalized on December 19, together with a proposed positive behavior support plan designed to recognize and control these behaviors. That same day, B.M.'s IEP was amended to incorporate that support plan. By late January, District faculty observed a “noted improvement” in the number of times he struck his head into others.[9]

         In late March, the independent reevaluation of B.M. was completed, which was delivered to the District along with recommendations for his IEP. A notable point of difference between those recommendations and his current IEP was a recommendation to place B.M. in a dedicated autism support classroom, where he could be educated along with other autistic students, rather than the learning support classroom he was currently attending, where he was educated alongside other students with various types of learning needs. The independent evaluators acknowledged that the IEP the District had crafted targeted B.M.'s particular needs as an autistic student, but they were concerned that addressing those needs in the environment of the learning support classroom may leave little opportunity for him to participate in group instruction with similarly-situated peers. In their view, the ideal setting for him would be a hybrid environment, where he would receive “communication, social skills and behavior” instruction in an autistic support classroom (those being areas of his greatest difficulty), language arts instruction in an ordinary kindergarten classroom, with one-on-one support available (because his language arts skills were comparable to his peers), and mathematics instruction in a small-group, learning support environment (because they believed that he showed signs of having a mathematics disorder).[10]

         The problem with that recommendation was that an autism support classroom was not available for kindergarten-aged students at Brandywine Heights. The independent evaluators suggested considering placing B.M. in a dedicated autism support classroom at a different school, but that would have come at a substantial tradeoff. Brandywine Heights was a familiar environment for B.M.-he lived just down the street, and before he enrolled, he was already “very familiar” with the school from accompanying his mother to Parent-Teacher Club meetings.[11] Sending him to another school would have deprived him of those familiar surroundings, and for B.M., transitions from one environment to another were a substantial source of concern.

         At the end of May, toward the end of B.M.'s kindergarten year, his parents met with District representatives to discuss the independent evaluation. They discussed implementing at least two of the recommendations: a math program called “TouchMath, ” which had a high degree of success, and the possibility of B.M. receiving language arts instruction in an ordinary classroom with his peers.[12] The District's director of special education also mentioned that the District anticipated being able to offer an autistic support classroom for B.M.'s first-grade year due to an increase in the number of autistic students in the District at that age level. The District also anticipated being able to offer him the ability to receive instruction in a program called “verbal behavior”-a “research based program of instruction [that is] utilized to teach communication skills.”[13] B.M. had received verbal behavior instruction during his time in the early intervention program, but the District had suspended offering that service in 2010 due to an insufficient number of eligible students.

         Along these lines, the District prepared a new IEP for B.M. toward the start of his first-grade year. Rather than receiving instruction in the learning support classroom, he was transitioned to the new autism support classroom with a plan for him to be included in general education settings for approximately a third of each day. The District also planned to provide him with verbal behavior instruction, though that instruction did not begin until November of B.M.'s first-grade year because the teacher trained in the verbal behavior program, who had just been hired earlier that year, was on maternity leave.

         B.M.'s parents filed a due process complaint partway through his first-grade year, on February 24, 2014, challenging the sufficiency of the education that B.M. had received at Brandywine Heights. A Pennsylvania Special Education Hearing Officer held three days of hearings between May and July 2014 and issued a forty-page written decision in August.

         The hearing officer concluded that from September 19, 2012, to February 1, 2013- approximately the first two-thirds of B.M.'s kindergarten year-the District failed to provide B.M. with a free appropriate public education. In his view, the District did not properly plan for or control B.M.'s physically disruptive behaviors, which impeded his learning to the point that he was deprived of a meaningful educational benefit. The hearing officer found that the District had been aware from its knowledge of B.M.'s experience in early intervention that he had a history of disruptive behaviors, but the IEP the District prepared for him at the start of his kindergarten year did not adequately identify and target those behaviors.

         He attributed this problem in part to deficiencies in a behavioral assessment that had been conducted as part of the reevaluation the District performed prior to the start of B.M.'s kindergarten year. He found that the behavioral assessment “jumbled numerous disparate behaviors, poorly defined, into one overall category, and did the same with the functions of those behaviors, rendering the assessment of little value in planning intervention.”[14] In the hearing officer's view, that lack of clarity was partly to blame for the inadequacy of the behavioral intervention plan that was incorporated into the IEP.

         The hearing officer also faulted the District for waiting an unreasonable amount of time to begin the reevaluation. As mentioned, B.M.'s parents met with District representatives in January 2012, while B.M. was still attending the early intervention program, to discuss B.M.'s transition to Brandywine Heights. At that meeting, B.M.'s parents signed an intent-to-enroll form, committing B.M. to begin kindergarten in the District that fall, but the District did not send a permission-to-reevaluate form to B.M.'s parents-the first step in the reevaluation process- until nearly the end of April. As a result, the reevaluation was not completed until September 7, and B.M.'s new IEP was not completed until September 19-nearly a month into his kindergarten year. In the hearing officer's view, that delay was “inappropriate in the circumstances of this matter.”[15]

         In sum, the hearing officer concluded the reevaluation was delayed too long, and when it was completed, the portion that dealt with B.M.'s problematic behaviors did not accurately analyze them, which-along with the District's failure to heed the record of B.M. engaging in those behaviors during early intervention-led to the implementation of an IEP at the start of B.M.'s kindergarten year that lacked an effective plan to control his behaviors. The hearing officer found that it was not until February of B.M.'s kindergarten year that the District, with the help of the functional behavior assessment that was performed by the behavioral analyst from the Berks County Intermediate Unit, was able to bring B.M.'s behaviors under control to a level that permitted him to learn.

         The hearing officer concluded that compensatory education was in order. He chose September 19 as the start date because that was the date that the IEP, and its inadequate behavior support plan, were put in place, and he chose February 1 as the end date because he found that by then, the new behavior support plan recommended by the behavioral analyst “began to show positive effects on [B.M.'s] behavior.”[16]

         But the hearing officer also concluded that since that time, B.M. has been afforded the free appropriate public education he is due. After an extensive review of B.M.'s kindergarten and first-grade IEPs, and the process the District followed to craft them, he found that they included “appropriate and thorough present levels of functioning, goals that addressed [B.M.'s] educational needs and [that] were constructed so as to be measurable, and specially designed instruction and modifications that met [B.M.'s] disabilities” by providing for “small group special education services, individualized for [him] through the provision of specially designed and related services that targeted [his] most serious communication, attention, sensory and fine motor disabilities.”[17] He also found that progress data in the record confirmed that B.M. “made progress that was meaningful in view of [his] profound combination of cognitive disabilities.”[18]

         He was careful to note that he was not suggesting that “the District's educational services were perfect, or even that they offered [B.M.] the best possible level of service, ” and he recognized that B.M.'s “[p]arents, in their diligence, [had] pointed out and pressed for remediation of a number of flaws and failures in the IEPs and . . . programs.”[19] But he explained that the IDEA does not require a District “to provide the best possible program to a student” or to “incorporate every program that parents desire for their child, ” and he found that in many-”if not most”-cases, the District responded to the concerns of B.M.'s parents “by improving the services and doing what [they] reasonably proposed.”[20]

         Against that backdrop, he declined to award any further compensatory education after February 1 of B.M.'s kindergarten year.

         The District responded by filing this action, claiming that the hearing officer erred in awarding compensatory education. B.M's parents counterclaimed, contending that the hearing officer should have awarded compensatory education for all of B.M.'s first two years at Brandywine ...

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