United States District Court, E.D. Pennsylvania
G.L. by and through his parents, S.H. and K.L.; and S.H. and K.L., Plaintiffs,
SAUCON VALLEY SCHOOL DISTRICT, Defendant.
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”) on behalf of G.L., their
son. 20 U.S.C. § 1415(I). 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.
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.
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.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.
HISTORY OF THE CASE.
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.
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
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.
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.)
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. 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.
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. 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.
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.)
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.
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.
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.
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.
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
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
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
(A.R., Ex. 8; S-36.)
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.
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.
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
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. 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. 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. 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.
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
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
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.
STANDARD OF REVIEW.
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)).
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).
The Hearing Officer's Conclusions of Law.
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.
PLACEMENT AND PROVISION OF A FAPE - APRIL 30, 2013 TO END OF
. . . 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
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
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
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 ...