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G.L. v. Saucon Valley School District

United States District Court, E.D. Pennsylvania

March 30, 2017

G.L. by and through his parents, S.H. and K.L.; and S.H. and K.L., Plaintiffs,


         Henry S. Perkin, M.J. March 30, 2017 Plaintiffs S.H. and K.L. bring this action pursuant to the Individuals with Disabilities Education Act (“IDEA”)[1] on behalf of G.L., their son. 20 U.S.C. § 1415(I).[2] S.H. and K.L. challenge the September 20, 2015 decision of Hearing Officer William F. Culleton, Jr., Esquire, that the Saucon Valley School District did not fail to provide G.L. with a free and appropriate public education (“FAPE”) from April 13, 2013 through September 15, 2015, that the District provided an appropriate placement for G.L. during the subject period of time and that no compensatory education or prospective relief was warranted. (A.R., Ex. 2.)[3] This matter is brought before the Court on the cross-motions for judgment on the administrative record which was before the Hearing Officer. In the Amended Complaint, Plaintiffs ask this Court to: hear additional evidence on the appropriateness of G.L.'s IEP and whether the District provided him with a free and appropriate public education from the end of the 2012-2013 school year through the present time; reverse the decision of the Hearing Officer and order all relief that is appropriate under the IDEA, including but not limited to compensatory education and prospective placement; Order the District to pay Plaintiffs their attorneys' fee and costs incurred in litigating this action pursuant to 20 U .S.C. Sections 1415(i)(3)(B); and grant any other relief as the Court deems just and proper. See Am. Compl., p. 7.

         This Court has subject matter jurisdiction over this matter pursuant to 20 U.S.C. Section 1415 (i)(2) and (3), as an appeal of an administrative hearing under the IDEA and pursuant to 28 U.S.C. Section 1331. Venue is proper pursuant to 28 U.S.C. Section 1391(b) in that the district is located in the Eastern District of Pennsylvania and because a substantial part of the events and/or omissions giving rise to the Plaintiffs' claims occurred in this judicial district.[4]The court has received the administrative record and despite Plaintiffs' request for relief in the Amended Complaint which included asking this Court to hear additional evidence on the appropriateness of G.L.'s IEP and whether the District provided him with a free and appropriate public education from the end of the 2012-2013 school year through the present time, during the Rule 16 Scheduling Conference held telephonically on June 9, 2016 and in the Motions, the parties have not proposed taking any additional evidence or additional evidence for this Court's consideration. Disposition by motion for judgment on the administrative record is proper. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3rd Cir. 2006); Brett S. v. The West Chester Area Sch. Dist., Civ. A. 04-5598, 2006 WL 680936 (E.D. Pa. March 13, 2006); Marissa F. v. The William Penn Sch. Dist., Civ. A. 04-0286, 2005 WL 2304738 (E.D. Pa. Sept. 20, 2005), aff'd 199 Fed.Appx. 151 (3rd Cir. 2006). There is no question about disputes of fact so much as application of the facts by the Hearing Officer. For the reasons that follow, the Defendant's Motion will be granted and the Plaintiffs' Motion will be denied.


         At the time of the filing of the Complaint in this Court on December 3, 2015, G.L. was an eleven year-old student identified as a student with a disability in need of specially designed instruction under the disability category of Emotional Disturbance. G.L. recently turned thirteen and is currently in the seventh grade. G.L. resides with his mother, maternal grandparents and three siblings within the Saucon Valley School District (“the District”) in Northampton County, Pennsylvania. G.L. received special education and related services from the District. He brings this action by and through his mother, S.H., who has primary physical custody of G.L. and has the right to make educational decisions for him, and his father, K.L.

         S.H. requested an administrative due process hearing seeking an appropriate placement for G.L., alleging that he was denied a free and appropriate public education beginning in April of 2013, including the 2013-2014 and 2014-2015 school years and continuing to the present. The District is a school district in Northampton County, Pennsylvania and is a local educational agency (“LEA”) within the meaning of the IDEA. As such, it receives federal funds for the purpose of educating children with disabilities within its boundaries.

         G.L. was identified in February of 2010 as a student with a Speech and Language Impairment and is entitled to special education under the IDEA. 20 U.S.C. §§ 1400, et seq. Until the Spring of 2013, G.L. received only speech and language services through an Individualized Education Plan (“IEP”) at Saucon Valley Elementary School, where S.H. is employed as a third grade teacher. G.L.'s history of behavioral problems began in Kindergarten and his diagnoses include: Bipolar Disorder, Obsessive Compulsive Disorder, Intermittent Explosive Disorder, Pervasive Developmental Disorder - not otherwise specified, Adjustment Disorder, Posttraumatic Stress Disorder and mood disorder.

         In May of 2013, G.L.'s emotional and psychological state significantly deteriorated. He threatened to kill three peers and expressed suicidal ideation. He was hospitalized twice prior to his return to school in August of 2013. (H.O. Finding Nos. 5, 6.) As of May 28, 2013, G.L. transitioned from partial hospitalization at Kids Peace to partial hospitalization at The Horsham Clinic. The Horsham Clinic discharged G.L. on or about May 31, 2013. ln addition to disturbing behaviors such as hearing voices and seeing spirits, by the summer of 2013, G.L. was evidencing obsessive sexual thoughts. (H.O. Finding No. 9.) Prior to G.L.'s return to school in the Fall of 2013, S.H. provided the reports of G.L.'s treatment teams from the hospitalizations to the District. (H.O. Finding Nos. 10, 11.)

         On August 29, 2013, the IEP Team, including S.H., met to revise G.L.'s IEP. At the IEP Team meeting, the School District received The Horsham Clinic's Confidential Psychological Consultation report and the Holcomb Behavioral Health Systems' evaluation report.[5] On August 29, 2013, the School District issued a Permission to Reevaluate consent form to conduct a comprehensive assessment including a Functional Behavioral Assessment (“FBA”). S.H. signed the consent for the reevaluation on September 4, 2014. (H.O. Finding No. 12.) On September 3, 2013, school staff developed and issued a crisis plan for G.L. Carol Tavormina, G.L.'s 4th Grade teacher, described G.L.'s behaviors at the very start of the school year, implementation of the crisis plan and behavioral coordination with Russ Carawan to address G.L.'s behaviors, and how she successfully implemented the plan and to attain instructional control of G.L. Russ Carawan, the School District's mental health treatment specialist, commenced observing G.L. and recording observation notes, and developing a Functional Behavioral Assessment (“FBA”) using a state format. Russ Carawan observed G.L., observed no behaviors, and found that Carol Tavormina was implementing appropriate strategies and had G.L. under instructional control.

         On October 21, 2013, G.L. became severely agitated during a family-based therapy session in which his father, K.L., as well as his mother, S.H., was present. (H.O. Finding No. 19). G.L. also threatened school personnel. (H.O. Finding No. 21.) He was admitted to Kids Peace on that date and apparently remained there until October 30, 2013.[6] On November 6, 2013, the IEP Team met to consider program supports pending transition to the recommended Partial Hospitalization Program (“PHP”) where G.L. would receive full-time special education Emotional Support at the Asa Packer Elementary School in the Easton Area School District featuring, among other things, medical-based treatment plans, psychiatrist supervision, and monthly team meetings that included S.H. On November 11, 2013, Russ Carawan shared the FBA with the school team and, prior to that, provided all the information to S.H.

         School District staff developed an informal crisis/behavior support plan to support G.L. in the interval before transition to the PHP. On November 14, 2013, the IEP Team met to revise G.L.'s IEP as he transitioned to the PHP. On November 14, 2013, S.H. approved the Notice of Recommended Educational Placement/Prior Written Notice (“NOREP”) to confirm G.L.'s change of placement to the Full-Time Emotional Support Program/PHP. The School District confirmed its financial responsibility for the PHP. On December 5, 2013, the School District issued the Reevaluation Report (“RR”) which changed G.L.'s IDEA identification to Emotional Disturbance and also concluded that he no longer qualified for speech/language services. (H.O. Finding No. 27.) G.L.'s placement in the PHP began on November 14, 2013 and lasted until November 3, 2014. (H.O. Finding No. 24.)

         On December 11, 2013, G.L. was readmitted to inpatient hospitalization at Kids Peace. (H.O. Finding No. 29.) The IEP Team, including S.H., met on January 2, 2014. On January 9, 2014, an Individualized Education Plan (“IEP”) was developed for G.L. which did not note behaviors interfering with learning as a concern for G.L. and did not contain any behavioral goals or include a positive behavior support plan. (H.O. Finding No. 31.) However, the January 9, 2014 IEP and the related January 10, 2014 Notice of Recommended Educational Placement (“NOREP”) recommended G.L.'s continued placement in the PHP, a structured, therapeutic emotional and behavioral support program. The School District issued a NOREP dated January 10, 2014, recommending G.L.'s continued placement in the PHP, which G.L.'s parents did not return. The information in the record from the PHP is very limited. PHP Treatment Plan Summaries and PHP Quarterly Progress Reports are included at S-30 and S-31, respectively.[7]

         Staff at the PHP completed a Functional Behavioral Assessment (“FBA”) on May 29, 2014 which details G.L.'s behavioral history, including the following:

He can make himself vomit and may cough and throw up when over excited. G.L. has eloped from the classroom in the past. He was reportedly oppositional, defiant, and does not want to follow rules. He wants to do want he wants to do. He acknowledges a history of throwing multiple temper tantrums per day at home and at school where he becomes loud, screams, curses, hits people, slams doors and makes threats. He has threatened to harm his school principal in the past. He reports that he gets irritated, angry and rageful very easily to the point where he made a suicidal gesture of taking a knife to his throat but did not hurt himself; G. has experienced four psychiatric hospitalizations during the 2013-2014 school year.

(S-26.) On the basis of the FBA, a Revision IEP dated June 5, 2014 was developed to formally include the FBA and a Positive Behavior Support Plan (“PBSP”). (H.O. Finding No. 36.) The IEP Team formally added the FBA and PBSP to G.L.'s IEP through a Revision IEP dated June 5, 2014. This was the first time that G.L.'s educational program included a FBA and PBSP.

         During the Summer 2014, G.L. participated in the Intermediate Unit's Summer Support Program. On September 8, 2014, Dr. Saxena, the PHP psychiatrist, indicated that “[G.L.] should be referred for further sexual risk assessment and treatment. Monitor his behaviors all the time” (P-6, page 5), but the PHP took no action to follow through with the recommendations of their psychiatrist. In October of 2014, G.L. eloped from the PHP and was restrained by staff, but this incident was not reported to S.H. (H.O. Finding No. 41.)

         Throughout this time, G.L. reported increasing obsessive sexual thoughts. S.H. and his therapist testified at length regarding the severity of G.L.'s sexual obsessions, anger, impulsivity and compulsion, and sexual comments from peers and bullying increased G.L.'s obsessive thoughts. G.L. reported to S.H. negative peer interactions and bullying and she had significant challenges getting G.L. to school in the morning. On November 3, 2014, the IEP Team met and issued a Revision IEP to prepare for G.L.'s discharge from the PHP and placement in the Intermediate Unit's full time Therapeutic Emotional Support (“TES”) class housed at Easton Middle School. Although mentioned in a September 8, 2014 psychiatrist's note and the September 26, 2014 Treatment Summary, the PHP psychiatrist's November 7, 2014, discharge summary contains no mention of psycho-sexual concerns. Consistent with the documents, psycho-sexual concerns were not discussed at the discharge meeting. G.L.'s participation in the PHP was marked by overall emotional and behavioral progress as noted in the Treatment Plan Summaries.

         On January 12, 2015, in advance of an upcoming IEP Team meeting, the Intermediate Unit staff updated G.L.'s PBSP. G.L. was ten years old and in the fifth grade. On January 13, 2015, the parties met as an IEP Team with respective counsel present and developed a new annual IEP and continued placement in the I.U. therapeutic emotional support class. Correspondence from the District's attorney memorialized the discussion of this meeting, noting that the January 13, 2015 discussion centered on two specific concerns: placement and attendance. The letter also notes that the IEP Team, including S.H. and Plaintiffs' counsel, agreed upon the following changes and actions:

1. Consideration of possible placement options is deferred pending completion of the psycho-sexual evaluation and receipt of all other evaluations, such as the I.U. psychiatric evaluation, which may not have been available to all necessary persons. Parent will sign whatever releases are required in order to allow the School District to obtain the report (and other records that the I.U. has not provided based on consent concerns).
2. The IEP will provide for a “safety plan” to monitor G.L. in order to assure safety for self and others given his expressions of sexual interest in others, including a specific female student. S.H. did not disclose the name of the girl concerned, but will inform appropriate school staff of the name of the girl mentioned by G.L.
3. Health Class will be removed from G.L.'s schedule, which is anticipated to relieve stress and anxiety as he has expressed concerns about the class and images in the materials. In particular, he has expressed to S.H., but not to staff, that Health Class is among the reasons he does not want to attend his current program.
4. The IEP will bolster current counseling services to provide that individual counseling will address G.L.'s perceptions of events at school. In particular, he reports to S.H. worries of being bullied, of not having friends, and similar social unease, while staff state that in school the reality is quite the opposite of what G.L. is reporting. Believing that skewed perceptions are another cause of anxieties related to the school attendance issues manifesting at home, the IEP Team decided to use the counseling time, including some time during 6th period now available as a result of dropping Health Class, to address perceptions.
5. S.H. will communicate to the school, with Mr. Palos [the Intermediate Unit emotional support teacher, and the teacher in charge of G.L.'s therapeutic emotional support class] as her point of contact, about G.L.'s reports at home concerning his school perceptions. The home-school communications should assist the counselor, and staff generally, in working with G.L. regarding his perceptions.
6. The school will develop a schedule of activities for G.L. to work on during the 6th period. The activities may include dialogue with Mr. Palos as well as positive reinforcing and not punitive activities (e.g., no “make-work” activities) to provide a positive in-school experience for G.L., which should also assist in addressing his adverse perceptions from his current school setting.
7. The responsible I.U. staff member will assist S.H. with fully completing an application for Medical Assistance that the Team hopes will lead to in-home BHRS for G.L. and the family. Of course, the school system can only support her and cannot decide whether G.L. will qualify.
8. After receiving the pending psycho-sexual evaluation, the School District will assume financial responsibility and pay the evaluator for the report.
9. The IEP Team will meet again after receiving the psycho-sexual evaluation.

(A.R., Ex. 8; S-36.)

         About this time period, G.L. reported to his mother that he was having certain difficulties with peers. Also during this time frame, parental concerns about G.L.'s reported sexual obsessions came to the fore. The A.R. contains emails which were exchanged between S.H. and G.L.'s teacher memorializing G.L.'s reports to his mother in late January and early February of 2015.[8]

         In April 2015, S.H., through counsel, provided to the School District a letter from Valliere & Counseling Associates, Inc., concerning its February and March evaluation and intake attempts with G.L., but does not offer any educational recommendations. Valliere & Counseling Associates, Inc., could not proceed with services because it did not have consent to treat G.L. from G.L.'s father.

         G.L. remains in the TES placement. He continued to have significant difficulties with his peers with bullying and sexual comments and reported these concerns to S.H. and therapist. He had meltdowns, perseverative thoughts, displayed anger and made threats. (H.O. Finding No. 59.) These difficulties were testified to at length by S.H. and some incidents are detailed in email correspondence between S.H. and G.L.'s TES teacher. (A.R., P-7.) G.L.'s sexual urges increased and he indicated a desire to have sex with girls at school and sought opportunities to meet girls. (H.O. Finding No. 57.) However, TES staff reported that G.L. did well at school and claimed to be unaware of his social difficulties.

         On April 30, 2015, S.H. brought a due process complaint pursuant to the IDEA seeking an appropriate placement for G.L. and compensatory education beginning in April of 2013. S.H. sought G.L.'s placement at Souderton Vantage Academy. A due process hearing was held over the course of three hearing sessions on June 19, 2015, August 31, 2015 and September 3, 2015. During the first day of the hearing, the Hearing Officer ordered that G.L. should undergo a psychosexual evaluation. The Hearing Officer selected the evaluator and J.J. Peters Institute completed the assessment before the second and third hearing sessions. The August, 2015 J.J. Peters Institute's Comprehensive Biopsychosocial Evaluation - Psychosexual report (“J.J. Peters report”) indicates a need for certain medical-based and family supports, that could be coordinated with G.L.'s IEP, but not specific education-based recommendations.[9] The J.J. Peters report recommends BHRS and family-based services and confirms that “[S.H.] and [G.L.] denied that [G.L.] ever received family-based services or [BHRS].” During the hearings, G.L.'s treating therapist, Erik Young, endorsed features of an “intensive emotional support class” that are features of the Intermediate Unit's therapeutic emotional support class, such as continuum of care, licensed social workers and clinical supervisors, trauma-informed training, socials skill curriculum, and violence prevention curriculum.[10] The Intermediate Unit's therapeutic emotional support classroom provides a complete range of emotional support services and resources on-site and in-house. The I.U. therapeutic emotional support staff have significant experience working with children similar to G.L., in both mental health and educational settings.[11] No one who instructed G.L. in the PHP testified at the hearing but Lorraine Sulik, the Program Director at Souderton Vantage Academy, testified regarding her opinion of how Vantage Academy can provide for G.L.'s needs and address the recommendations in the J.J. Peters report.

         H.O. Culleton found the following:

Parents have agreed to provide Student with specialized psychosexual therapy to address Student's obsessive thoughts and compulsive behaviors of a sexual nature. In addition, Student continues in therapy for emotional regulation, anger management and frustration tolerance. (H.O. Finding No. 64.)
Student needs a placement that is located in a small group setting and is provided in a small special education classroom, and that provides Student with protection against aggressive or hostile peer behavior. (H.O. Finding No. 65.)
Student needs specially designed instruction and related services that include a crisis management plan and safety plan including control over access to sharp objects; full time one-to-one monitoring at the level of eye contact/line of sight, to prevent self-harm, sexual acting out and attempts to access sexual activity; increased availability of monitoring and data-gathering on Student's behavior, with consultation by a Board Certified Behavior Analyst, and a research-based positive behavior support plan, revised as needed to support Student's behavior; social skills training (including pragmatic language and training on bullying and its prevention in the school setting) through explicit teaching, reinforced in the classroom setting; classroom coordination with and reinforcement of therapy in the areas of emotional self-regulation, anger management, frustration tolerance, age appropriate sexual education including sexual responsibility and refusal skills, and continued support for improving Student's slow reading. (H.O. Finding No. 66.)
Student's Parent needs home-based services through the behavioral health system and needs support for completing the necessary application forms and requirements. This is needed in order to support Student's behavior management plan in the school setting. (H.O. Finding No. 67.)

(A.R., Ex. 2, pp. 7-8.) In his September 20, 2015 decision, Hearing Officer William Culleton, Esquire, found that the District:

did not fail to provide Student with a FAPE during any part of the relevant period of time. Hearing Officer intervention is not warranted, but in dicta I have urged the District to provide, on an emergent basis, the highly supportive special education and related services that the Student needs, as evidenced by the recent psychosexual evaluation report and the testimony of Student's therapist in this matter.

(Id. at 18.) Thus, H.O. Culleton denied and dismissed the Plaintiffs' requests for relief. G.L. continues to be educated in the TES program with the same supports and services provided at the time of the Hearing Officer's decision.

         Plaintiffs filed the Complaint in this Court appealing H.O. Culleton's decision on December 3, 2015, and an Amended Complaint was filed on January 8, 2016. Plaintiffs contend that the H.O.'s directives were never addressed by the District and the recommendations in the J.J. Peters report were not implemented.


         In reviewing 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.” Nicholas H. v. Norristown Area Sch. Dist., Civ. A. No. 16-1154, 2017 WL 569519, at *3 (E.D. Pa. Feb. 13, 2017)(citing D.S. v. Bayonne Bd. Of Educ., 602 F.3d 553, 564 (3d Cir. 2010) and Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 241 (3d Cir. 2009)).

         The court is required to make its own findings by a preponderance of the evidence while also giving due weight to the factual findings of the ALJ. Id. (citing Mary T., id. (quoting Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). See also S.H. v. State Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 269-270 (3d Cir. 2003); Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). A reviewing “court's inquiry under § 1415(e)(2) is two-fold. 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?” Nicholas, 2017 WL 569519, at *5 (quoting Rowley, 458 U.S. at 206-207). Further,

In addition, if a state administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contradictory testimony of another witness, that determination is due special weight. Specifically, this means that a District Court must accept the state agency's credibility determinations ‘unless the nontestimonial, extrinsic evidence in the record would justify a contrary conclusion.' (emphasis added). In this context the word ‘justify' demands essentially the same standard of review given to a trial court's findings of fact by a federal appellate court.

Shore Regional, 381 F.3d at 199 (citations omitted). The district court “may reach an independent decision, except that it must accord the decision of the [hearing officer] ‘due weight' in its consideration.” Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 524 (3rd Cir. 1995), cert. denied, 517 U.S. 1135 (1996). “Due weight” means “[f]actual findings from the administrative proceedings are to be considered prima facie correct.” S.H., 336 F.3d at 270. If the court departs from the administrative findings, it must detail why. Id. The burden of proof is on the party bringing the administrative complaint, here the Plaintiffs, a burden that continues on appeal. Schaffer v. Weast, 546 U.S. 49 (2005); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384 (3rd Cir. 2006). III.DISCUSSION.

         A. The Hearing Officer's Conclusions of Law.

         The Hearing Officer found the following with respect to whether the Defendant provided G.L. with a FAPE during both G.L.'s Fourth and Fifth Grades.

. . . I conclude that the District provided Student with a FAPE during the relevant period ending on the last day of Student's fourth grade year. Based upon what it knew as of April 30, 2013, the District reasonably bolstered its regular education services to address inappropriate behaviors, and its methods were successful for a time. During the bulk of the ensuing period of time, Student was placed in a highly structured, highly restrictive school-based partial hospitalization program, pursuant to a medical prescription. The record shows that this placement was appropriate for Student. While the District did commit procedural violations of the IDEA, Parent has not proven by a preponderance of the evidence that any of these violations produced a substantive denial of a FAPE.
As noted above, the District'[s] actions with regard to Student during this period of time must be judged by what the District knew at the time. Student had exhibited both problematic and peculiar behaviors at a very early age. Some of these behaviors were disruptive in the school environment, and the District is charged with notice of these behaviors. Nevertheless, the District also was aware that its regular education teachers had established educational control and had proven able to educate Student while controlling Student's propensity to engage in inappropriate behaviors. Thus, it is not charged with notice that a change of educational placement was necessary in the beginning of the 2013-2014 school year.
Therefore, when District personnel met with Parent in August 2013 to discuss two private evaluations that Parent had obtained over the summer of 2013, they had good reason to believe that Student's regular education teacher could bring Student's behaviors under educational control by utilizing behavior management techniques prescribed by the District's behavior specialist. Its behavior specialist joined the meeting with Parent, listened to Parent's concerns about Student, and devised an interim behavior management plan with the objective of extinguishing a cluster of behaviors that Student was likely to demonstrate in the classroom, and that all participants believed would likely serve the function of escape from Student's educational program and its demands. The specialist trained the classroom teacher to implement this plan, and the record is preponderant that the teacher implemented it with sufficient fidelity to successfully modify Student's behavior and obtain Student's classroom participation and access to the curriculum. I conclude that the District's approach, based upon continuing Student's placement in regular education with specialized behavior supports, was reasonably calculated to provide Student with the opportunity to receive meaningful educational benefit.
At the same August meeting, the District began the process of obtaining a re-evaluation of Student for purposes of reviewing Student's need for special education under the IDEA, and in particular, to review Student's classification. The District received Parent's written permission to evaluate on September 4, 2013. Therefore, the District had until November 3, 2013 to complete its re-evaluation. During this period, Student remained in regular education, because Student's current classification was Speech or Language Impairment, which did not require a more restrictive setting. Based upon what the District knew, and based upon the apparent success of its interim behavior management plan, I conclude that it was not unreasonable for the District to defer any change of placement until after receiving a comprehensive re-evaluation.
The District did not meet the deadline specified by the IDEA and Chapter 14 (the Pennsylvania regulations implementing the IDEA) for delivering its re-evaluation report. It made its re-evaluation report available on December 5, 2013, more than one month late. This was a procedural violation, and I note that the District is obligated to ensure that its re-evaluation reports comply with IDEA timelines in all cases. Nevertheless, an administrative hearing officer is not authorized to find a deprivation of a FAPE unless a procedural violation deprives a parent of the opportunity to participate in the IEP process or impedes or deprives a child of meaningful educational benefit. 34 C.F.R. § 300.513 (a)(2).
Parent has not proven by a preponderance of the evidence that the late re-evaluation report resulted in a deprivation of her participation in educational planning for Student. Parent participated in the original August 2013 meeting, which resulted in both the crisis prevention plan and a modification of regular education classroom procedures in order to address Student's behaviors. Parent worked in the same building with Student's classroom and teacher, and the record reflects that Parent was able to communicate with Student's teacher about Student's progress while at school.
To the extent that the District's lateness could have caused a deprivation of parental participation, its impact on parental participation would have been obviated by a supervening event. On October 21, 2013, before the re-evaluation report was due under the law, Student was hospitalized after an exacerbation of Student's emotional disabilities because of Student's presence at a school meeting with the family, including Student's Father. The evidence is not preponderant that the Student's educational program had caused this recurrence of symptoms. Rather, the evidence more strongly supports the conclusion that this recurrence was caused by ...

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