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E.G. v. Great Valley School District

United States District Court, E.D. Pennsylvania

May 23, 2017

E.G., et al
v.
GREAT VALLEY SCHOOL DISTRICT

          MEMORANDUM

          KEARNEY, J.

         Parents and school districts they fund through taxes share a common goal of providing children with a free appropriate public education. For many students facing a variety of educational challenges, the school districts prepare individualized education plans to promote the student's growth. When results from these plans do not meet a parent's expectations, the parent may challenge the school district's actions or inactions. Given the student's necessary step-by-step growth, we require timely challenges to perceived deficiencies both so the district can timely resolve them and to avoid examining years of problems when the issues arose long ago. These challenges are resolved by an independent hearing officer subject to our review. Today, we review a hearing officer's detailed findings, after five days of hearings, supporting his conclusion a school district met its obligations for a second to fifth grade student in the district who later transferred to a private academy. In the accompanying Order, we hold the hearing officer properly found the district provided a free appropriate public education for the two years before the parents filed their challenge on June 12, 2015 but the hearing officer erred in barring possible challenges of the district's actions and inactions before June 2013. We remand in part to ensure the hearing officer applies a fine-grained analysis as to each claim before June 2013, including when the parents knew or should have known of the district's alleged deficiency.

         I. Background

         E.G., a former student in the Great Valley School District, is challenged with severe learning disabilities particularly in the areas of reading, written expression, and mathematics. E.G. completed first grade at a private Montessori school where the teacher informed E.G.'s Parents the private school could not meet his special education needs. A private institute evaluated E.G. over the summer after first grade and his Parents then enrolled him in Great Valley School District for second grade, the 2011-2012 school year.

         The District issued an Individualized Education Plan ("IEP") in February 2012 for the remainder of second grade into third grade. E.G.'s IEP set specific goals for reading, written expression, and math. In December 2012, the District and E.G.'s Parents revised his IEP with higher expectations for reading, written expression, and math for the remainder of third grade and into fourth grade. The District also offered E.G. extended school year for summer 2013 in math but not in reading or written expression. E.G.'s Parents did not accept the District's extended school year offer.

         At the start of E.G.'s fourth grade, school year 2013-2014, his Parents requested an IEP meeting and requested tutoring in a particular program for his reading needs. The District and the Parents agreed to have E.G. re-evaluated in November 2013 which showed, as of November 21, 2013, E.G. made minimal progress towards his IEP goals. The District and the Parents eventually agreed to a new IEP in January 2014 including the Parents' requested reading program. In May 2014, the District offered extended school year for E.G.'s reading program and the Parents accepted. In June 2014, the District and Parents updated E.G.'s math goals for his IEP.

         At the start of E.G.'s fifth grade, school year 2014-2015, his Parents requested a meeting with the District with the hope of fitting E.G.'s reading program into his daily class schedule. The Parents requested a re-evaluation and the District agreed. The District issued its re-evaluation report in January 2015. The District and the Parents met to revise E.G.'s IEP based on the re-evaluation. In February 2015, the District presented the Parents an IEP which they rejected. The Parents then enrolled E.G. in a private academy's summer school after fifth grade and enrolled E.G. in the private academy for sixth grade.

         On June 12, 2015, the Parents filed a due process complaint against the District alleging the District denied E.G. a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act. The Parents sought tuition reimbursement for E.G.'s present private schooling. The Parents also seek reimbursement for extended school year programming for 2013 and 2015 and compensatory education from September 2011 until June 2015. The District moved to strike portions of E.G.'s complaint as untimely and argued it does not have to pay E.G.'s private school tuition because it provided E.G. with a FAPE. Hearing Officer Brian Jason Ford conducted a five day due process hearing. Hearing Officer Ford applied the two year statute of limitations and held E.G. could not recover compensatory education damages for actions arising before June 12, 2013. Hearing Officer Ford then decided the District did not deny E.G. a FAPE from June 12, 2013 until he left the District and the District does not have to reimburse the Parents for E.G.'s private school tuition.

         II. Analysis

         E.G. and his Parents appeal both the statute of limitations bar on recovery for actions before June 12, 2013 and Hearing Officer Ford's substantive determinations for actions after June 12, 2013. E.G. and his Parents "bear the burden of persuasion" on appeal.[1] We review Hearing Officer Ford's findings under a modified de novo standard.[2] Under the modified de novo standard, we exercise plenary review over Hearing Officer Ford's legal conclusions.[3] We "accord due weight" to Hearing Officer Ford's factual findings considering them prima facie correct unless "contrary non-testimonial extrinsic evidence" exists in the record.[4] Our court of appeals cautions us not "to substitute [our] own notions of sound educational policy for those of the local school authorities which [we] review."[5]

         For the reasons below, we affirm Hearing Officer Ford in part and remand in part. We affirm Hearing Officer Ford's detailed finding the Parents are not entitled to tuition reimbursement for enrolling E.G. in a private school because the District offered an appropriate placement to E.G. We remand Hearing Officer Ford's dismissal of E.G.'s claims for compensatory education and extended school year before June 12, 2013 so he may determine a date for each claim the Parents knew or should have known the District's actions denied E.G. a FAPE. If warranted, Hearing Officer Ford will then dismiss claims barred by the statute of limitations and decide remaining claims on the administrative record.

         A. The District provided E.G. with a FAPE after June 12, 2013.

         Hearing Officer Ford decided E.G.'s claims for tuition reimbursement and compensatory education after June 13, 2013 on the merits. We review and affirm his finding the District did not deny E.G. a FAPE after June 12, 2013 and affirm the denial of tuition reimbursement. When Parents request tuition reimbursement, they must show: (1) the District did not provide a FAPE to E.G.; (2) their placement of E.G. in private school is proper; and, (3) "the equities weigh in favor of reimbursement."[6] We affirm Hearing Officer Ford's finding the District provided E.G. with a FAPE and do not reach the second and third prongs.

         Whether the District provided a FAPE is a unique fact question but we have guiding standards. The District must create an IEP which is "reasonably calculated to enable [E.G.] to make progress appropriate in light of the child's circumstances."[7] The IEP must confer a "meaningful benefit" on E.G. and "the benefit must be substantial, not minimal."[8] "The FAPE promised to students in the IDEA is not a perfect or ideal education."[9]

         "The adequacy of a given IEP turns on the unique circumstances of the child for who it was created."[10] The Supreme Court recently noted for children who are not fully integrated in the regular classroom the goals may differ because standard grade level progress might not be achievable. "If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement."[11] We give deference to the District where it "offer[s] a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances."[12]

         The District must provide an IEP in the least restrictive environment possible. "The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled."[13] The District's offering does not have to be "optimal" and "superior to the alternatives, " it simply must be calculated to enable E.G. to make progress in light of his specific learning disabilities. The District "offer[s] a cogent and responsive explanations" how the 2015 IEP would ensure E.G. made progress through Wilson tutoring and special education in the least restrictive way possible in light of E.G.'s severe learning disabilities.[14]

         1.Hearing Officer Ford's factual findings support E.G.'s TAPE.

         Fourth Grade (2013-2014)

         E.G.'s learning disability caused him to struggle in reading, written expression, and mathematics through second and third grade. In the summer between third and fourth grade, the Parents, frustrated by E.G.'s reading progress, enrolled him in tutoring using the Wilson Reading System.[15]

         Hearing Officer Ford found Wilson "is a reading program based in the Orton-Gillingham methodology."[16] The program is broken down into steps 1 through 12.[17] The step numbers do not correlate to a student's grade level.[18] "Wilson teaches to automaticity, meaning that a student masters each step before moving to the next. Assuming that Wilson is delivered with fidelity, a student's progression from level to level indicates progress through Wilson itself."[19]

         The Wilson tutor told E.G.'s Parents he did not have "good foundational skills for reading" and this prompted the parents to request an IEP meeting at the start of fourth grade, and then a re-evaluation in November of fourth grade.[20] The Parents also requested the District provide Wilson to E.G.[21] In January 2014, the District and Parents agreed to a new IEP which included three 90 minute sessions of Wilson.[22] Hearing Officer Ford found this IEP did not revise E.G.'s reading goals to reflect the new Wilson goals and "created a disjunction between the progress monitoring embedded in the reading goal and [E.G.'s] reading program."[23] The District, however, did provide E.G. a Wilson tutor and he began at Wilson Step l.3.[24]

         In February 2014, the District evaluated how E.G. may benefit from assistive technology and because E.G.'s listening comprehension is significantly better than his reading, the District provided him with an iPad to help him listen to textbooks in his classes.[25] The Hearing Officer found, while E.G. had access to the iPad throughout the remainder of fourth grade and fifth grade, his "access to and use of the iPad was inconsistent, and the Parents frequently expressed their frustration about the iPad not working."[26]

         At the close of E.G.'s fourth grade year, the District offered Wilson for extended school year but did not offer extended school year for math because E.G. met his math goal.[27] The Parents accepted and the District provided E.G. with Wilson over the summer.

         Fifth Grade (2014-2015)

         E.G. then returned for fifth grade, his final year in District. Before the school year began, the Parents requested an IEP meeting to discuss how Wilson would fit into E.G.'s fifth grade schedule that year.[28] The District suggested Wilson be provided during E.G.'s regular social studies and science classes but the Parents objected because they wanted E.G. to have as much regular instruction with his peers.[29] Hearing Officer Ford found credible "the District acquiesced and [E.G.] received Wilson during Language Arts period" when E.G. already is apart from his regular peers. This decision caused E.G. to have to split his traditional language arts special education curriculum with Wilson three days a week.[30]

         E. G. 's 2015 Re-evaluation and IEP

         The District and the parents approved the IEP in September 2015 and then the Parents requested the District reevaluate E.G.[31] The District agreed and issued a re-evaluation in January 2015. According to the benchmark testing, E.G.'s instructional reading level was at the second grade.[32] The AIMS web testing showed E.G. could read orally "comfortably" with second grade material and his reading comprehension was average at a third grade level.[33] The evaluation showed E.G. applied Wilson strategies to his reading which "reduced [E.G.'s] reading fluency (speed in this context) but increased [E.G.'s] reading accuracy."[34]

         The District also evaluated E.G. using WADE, which assesses a student's progress in Wilson. The WADE showed E.G.'s "progress towards mastery of the then-current Wilson level (level 5). Generally, the WADE suggested that [E.G.] was ready to advance having mastered level 5 reading and spelling skills."[35] E.G. began Wilson at Step 1.3 in January 2014 and now after the November 2014 WADE, E.G. nearly mastered Step 5.

         The District also evaluated E.G. through the KTEA-II and WJ-III where E.G. overall scored below average or average in reading, writing, and math skills. The evaluator concluded E.G. "was making progress towards all academic goals with the exception of reading fluency."[36] Hearing Officer Ford found, based on testimony, "Wilson values accuracy over speed" and "[r]eading fluency is expected to improve as basic reading skills improve."[37]

         After E.G.'s re-evaluation, the District and Parents worked together to revise E.G.'s IEP. Hearing Officer Ford found the IEP "includes an accurate, detailed description of [E.G.'s] present levels of academic achievement and functional performance, incorporating nearly all of the" 2015 re-evaluation.[38] He found the IEP includes (1) accommodations for state testing; (2) math computation, concepts, and applications goal; (3) Wilson decoding, encoding, reading comprehension, and written expression; and, (4) specially designed instruction for math, reading program, Wilson, supplemental academic support, assistive technology for iPad, and modification to content area courses.[39] The Parents rejected the IEP in February 2015. After E.G.'s fifth grade year, the Parents enrolled E.G. in a private tutoring and then enrolled E.G. in private schooling for his sixth grade year.[40]

         2. We affirm Hearing Officer Ford's finding the District provided E.G. a FAPE.

         The Parents' central challenge is Hearing Officer Ford ignored or found the Parents acquiesced to E.G.'s lack of "meaningful academic progress over several years in the District, in math, writing, and especially reading."[41] The Parents also argue the District did not implement the Wilson method with fidelity, the tutor moved forward before E.G. mastered a level or did not cover on lessons in each level. Hearing Officer Ford's factual findings are supported by the evidence and we do not disturb his credibility determinations.

         Hearing Officer Ford acknowledged E.G.'s progress was "maddeningly slow" and "stagnation on tests that link ability to grade level...would be a strong indication that progress was not made....and usually proves a denial of FAPE."[42] Hearing Officer Ford, however, found the Parents requested Wilson for E.G. "which is linked to skill acquisition, not grade level."[43]Hearing Officer Ford rejected the Parents' argument the District did not implement Wilson with fidelity because there is no evidence to support it. In fact, the WADE which tests E.G.'s progress with Wilson showed he progressed from step 1.3 to step 8.1 at the District.

         We closely reviewed the record and agree with Hearing Officer Ford "the record supports a conclusion that [E.G.] made meaningful real-world progress relative to the severity of [E.G.'s] disability. The significance of [E.G.'s] ability to generalize Wilson skills into the Language Arts classroom cannot be understated. Applying Wilson skills across all settings strongly indicates that Wilson instruction is working."[44]

         Hearing Officer Ford also found the Parents "insisted" Wilson administered to E.G. during his Language Arts time to maximize his time in regular classes. Hearing Officer Ford reasonably found E.G.'s MAP and AIMSweb performance suffered because the time spent in Wilson detracted from his other language arts subjects and not because the District's instruction was not appropriate.

         Hearing Officer Ford's determination the District provided E.G. a FAPE is supported by his factual findings the District provided effectual IEPs because it provided E.G. with Wilson and he made meaningful progress in Wilson. As the Supreme Court recently reminded us, the adequacy of the IEP turns on the child it is created for, not extrinsic factors.[45] E.G.'s severe reading disability meant grade level achievement is not a reasonable prospect. "If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement."[46] The parties agreed E.G.'s reading disability is the most problematic and his math and writing needs stem from it. The parties also agree E.G. needs an Orton-Gillingham methodology based program to learn foundational reading skills. It is reasonable for Hearing Officer Ford to accept the District's "cogent and responsive explanation" for E.G.'s instruction in Wilson which is "reasonably calculated" to enable him to progress in reading in light of his severe reading disability.[47] We affirm Hearing Officer Ford's holding the District provided E.G. a FAPE in the least restrictive manner in light of his needs.

         B. Hearing Officer Ford incorrectly applied the "knew or should have known" analysis to bar claims before June 12, 2013.

         Hearing Officer Ford limited the Parents' remedies to after June 12, 2013, two years before the Parents filed their complaint because the "entire period of time, the [knew or should have known] date (or dates) necessarily falls [sic] within the IDEA'S two-year filing deadline." Hearing Officer Ford dismissed claims occurring before June 12, 2013 as untimely and "did not consider the Parents' demand for compensatory education to remedy an alleged denial of FAPE during the 2012-2013 school year."[48]

         The Parents now appeal Hearing Officer Ford's finding E.G.'s claims before June 12, 2013 are untimely under our Court of Appeals decision in G.L. v. Ligonier Valley Sch. Dist. Auth..[49] The Parents argue Hearing Officer Ford erred in holding they were on notice for statute of limitations purposes the moment the District took each action. The Parents argue the date they knew or should have known the District's alleged actions denied E.G. a FAPE is November 21, 2013 when the District re-evaluated E.G.

         Hearing Officer Ford found the Parents had "contemporaneous knowledge of the District's actions as they occurred" but he never specifies the date E.G's Parents knew or should have known the District's alleged actions forming the basis of their complaint. Instead, he finds the Parents had permanent omniscience of the District's actions during E.G.'s four years there.[50]Hearing Officer Ford does not determine when the District's alleged actions manifested themselves to be ...


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