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School District of Philadelphia v. Post

United States District Court, E.D. Pennsylvania

July 5, 2017

JOHN POST, et al.


          BAYLSON, J.


         This case arises under the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act (“RA”), and the Americans with Disabilities Act (“ADA”). John and Marissa Post (collectively, “Parents”) filed a due process complaint against the Philadelphia School District (“District”) alleging that it failed to provide their son, D.P., a free, appropriate public education (“FAPE”), discriminated against him because of his disability, and retaliated against them for their advocacy on behalf of D.P. The Administrative Hearing Officer concluded that the District had denied D.P. a FAPE and had discriminated against D.P., but that it had not retaliated against Parents. Presently before the Court are the parties' cross motions for partial judgment on the administrative record. Having considered the parties' briefing and the administrative record, we affirm the findings of the Hearing Officer and therefore grant Parents' motion, and deny the District's.

         II. FACTS

         A. Background

         D.P. is currently a second-grade student who was diagnosed with Autism Spectrum Disorder (“ASD”) at the age of four. (H.O. Rpt. ¶ 6.) The chain of events relevant to the instant motions occurred during the lead up to D.P.'s entry into kindergarten in September 2014. Following his ASD diagnosis, D.P. was evaluated by an early intervention service provider who concluded that he was eligible for early intervention services, which are provided to children in Pennsylvania birth to age five with developmental delays and disabilities. (Id. ¶ 7.) In January 2013, an Individualized Family Service Plan/Individualized Education Program (“Early Intervention IEP”) was developed, which indicated that D.P.'s behavior did not impede his own learning or that of others and which included support services for D.P. in a regular preschool environment. (Id. ¶ 8.) The Early Intervention IEP also included a plan for D.P.'s transition to kindergarten programming. (Id. ¶ 9.)

         During the 2013-2014 school year D.P. attended two typical preschools at which he received early intervention services. (Id. ¶ 10.) D.P.'s behavior throughout that school year was generally on par with that of his peers, and his teachers noted that he was an observational learner who benefitted from modeling his behavior after his classmates'. (Id. ¶¶ 3, 10.)

         B. Transition from Pre-School to Kindergarten

         As the time came for D.P. to transition to kindergarten, Parents attempted to register him at McCall School but were rebuffed by the school secretary, who told them that because the family lived outside the geographic area served by the school, D.P. could not attend. (Id. ¶¶ 4, 12; N.T. 1021.) Parents set up a meeting with McCall's principal, Rose Rock, to sort out the issue. (N.T. 1021.) Principal Rock invited Brian Siket, Director of Special Services for the “Learning Network” of which McCall is a part, to attend the meeting, as well. (N.T. 1024.) Mr. Siket stated at the meeting that “McCall could not support an autistic child” and that it would be in the best interest of the family “to send [D.P.] somewhere else that had the services.” (Id. 1022-1023.) Nevertheless, Principal Rock agreed at that meeting to register D.P. at McCall. (H.O. Rpt. ¶ 12; N.T. 1024-1025.)

         In June 2014, Todd Mendelsohn, a District psychologist, was asked to evaluate D.P. as part of D.P.'s transition from early intervention to the District. (H.O. Rpt. ¶ 19; N.T. 277.) The result was a Psychoeducational Reevaluation Report (“PRR”), which found D.P. eligible for special education on the basis of ASD, “evidenced by a previous diagnosis of autism and current results from the [Childhood Autism Rating Scale, Second Edition (CARS2)] confirming the previous diagnosis.” (H.O. Rpt. ¶¶ 21-22; S-3 at 3.) Many of Dr. Mendelsohn's recommendations in the PRR were based on D.P.'s ASD diagnosis rather than on the doctor's specific observations of D.P. (N.T. 299 (stating “[t]hese are general recommendations I make for most students with autism”); H.O. Rpt ¶¶ 21-22; see, e.g., S-3 at 4 (“Although the student with ASD may be able to learn ordinary rote academic skills, special attention must be given to the application of skills such as math and reading to practical tasks like independently buying an ice cream and getting the correct change.”).) Dr. Mendelsohn's primary recommendation was that D.P. “may require a highly structured program with an emphasis on the systematic presentation of materials, with a small class size and student: teacher ratio which permits considerable personalized attention.” (S-3 at 4.) Dr. Stephen Wong, another school psychologist involved in determining D.P.'s kindergarten placement, “read that as a recommendation for placement in an autistic support class, ” which often, although not always, means the child is placed in a separate classroom from the general education students. (N.T. 343-346.) It can also refer to a curriculum whereby an autistic support teacher consults with the general education teacher and advises him regarding how to support the student. (Id.)

         Shortly thereafter, on June 17, 2014, the District issued D.P.'s Reevaluation Report (“RR”). An RR provides a more holistic assessment of the student and his needs than that provided by the PRR insofar as it includes data from “other specialists and related service providers such as speech and occupational therap[ists].” (H.O. Rpt. ¶ 24; N.T. 335.) The RR issued for D.P. incorporated Dr. Mendelsohn's recommendations verbatim, and concluded that D.P. was eligible for special education on the basis of ASD and a speech/language impairment. (H.O. Rpt. ¶ 24; S-4; N.T. 311.) Because McCall did not offer the type of autism support the RR deemed necessary, the report's conclusions meant that D.P. would have to attend a different school. (N.T. 1153-1158.) Parents were extremely upset about this and requested that a new PRR be written.

         The District agreed to do so. On September 12, 2014, Dr. Wong issued the revised PRR, which incorporated Parents' input, including their request for full inclusion in the general curriculum for D.P., as well as supplementary information from D.P.'s preschool and early intervention service providers and his pediatric neurologist. (H.O. Rpt. ¶¶ 27-28, 30; N.T. 158-159.) Nevertheless, the report still maintained all of Dr. Mendelsohn's original recommendations, the primary one being that D.P. needed autistic support incapable of being provided at McCall. (N.T. 337-346 (Dr. Wong stating that “if I haven't evaluated the student, and you know, I have to stick with the . . . person that did the evaluation, I have to stick with his opinion. And in this particular case, I decided to keep that as is. I didn't want to alter his recommendations, if he had made these recommendations I didn't feel to change them”); S-6 at 10.) Following the issuance of the new PRR, the District also issued a new RR on the same day in which it came to the same conclusion as the original RR: D.P. was eligible for special education on the bases of ASD and a speech/language impairment. (S-7; H.O. Rpt. ¶ 31.)

         At some point in September, District personnel convened to discuss D.P.'s placement and concluded that D.P. should be in a “blended program” that combined regular education with autistic support programming. (N.T. 359-360.) Such a program could not exist at McCall, which does not offer autistic support programming. (N.T. 359.) Shortly thereafter, another meeting was held regarding D.P.'s placement, this time with Parents present. At that meeting, Mr. Siket and all other District representatives maintained their position that McCall could not support D.P. and that D.P should be placed at Bache-Martin. (N.T. 1032-1033, 1170-71.)

         C. Development of an IEP

         Meanwhile, a few weeks prior, in August 2014, Principal Rose had asked Tina Giangrante, a special education liaison at McCall, to “complete a draft IEP for [D.P.] for autistic support.” (N.T. 480-81.) Principal Rose informed Ms. Giangrante that “[t]he level of support is unknown at this time.” (N.T. 480-81.) Ms. Giangrante wrote the IEP based on the reevaluation reports and recommendations that had been completed for D.P. but she believed it would only be a draft IEP rather than the “be-all end-all product” because she felt she was working with limited information. (N.T. 482-83, 488; H.O. Rpt. ¶ 34.) She was unsure of whether the IEP should be drafted to recommend life skills support, which is what one does for students who will be placed in an autistic support program, but decided it should be, due to the psychologists' recommendations in the PRR and RR. (N.T. 484-87; H.O. Rpt. ¶ 34.) The draft IEP issued in September did not include the type and level of special education support to be provided. (S-5; H.O. Rpt. ¶ 35.)

         On October 9, 2014, D.P.'s IEP team, including Parents, met to review the draft IEP and finalize it. (H.O. Rpt. ¶ 36.) The District representatives present reiterated their position that D.P. should be placed at Bache-Martin and there appears to have been minimal, if any, discussion of the possibility of providing D.P. with supplemental aids and services such that he could be educated in a regular education classroom. (N.T. 1175, 1179-80.) Parents expressed their concerns regarding D.P. attending Bache-Martin, and their desire that he stay at McCall, apparently in the process convincing Mr. Siket and others that D.P.'s draft IEP should be revised to be “based upon learning support” rather than autistic support. (N.T. 361, 499.) The following day, October 10, 2014, a new IEP was sent to Parents' attorney (“October IEP”) recommending that D.P. be placed at McCall, where he would be in a regular kindergarten classroom for 48% of the school day and receive learning support for the other 52% of the day. (N.T. 1052, 1178; S-8 at 38.) Parents declined the placement because they felt it called for too much time removed from the general education class and because they did not “feel that [they] ever really collaborated as a team about what would work for [D.P.].” (N.T. 1053, 179-80 (discussing lack of consideration of “[D.P.'s] needs and what is specific to him”).)

         D. D.P.'s Kindergarten Curriculum

         D.P. began kindergarten at McCall on the first day of the 2014-2015 school year without an up-to-date IEP having been finalized. (N.T. 87.) D.P.'s kindergarten teacher, Rachel Keenan, tried and failed to get in touch with Parents, as was her regular practice with all parents to incoming kindergarteners. (H.O. Rpt. ¶ 41; N.T. 203, 419-20.) Ms. Keenan knew that D.P. was entering her class with the Early Intervention IEP, which she states she implemented throughout the year. (N.T. 408-09, 411-12.) Ms. Keenan further explained that she consulted with various special education teachers regarding how to accommodate D.P., and that one such teacher provided one-on-one assistance to D.P. in class on several occasions. (N.T. 406-07.) In addition, Ms. Keenan accommodated D.P. by obtaining a special chair and a cushion so that D.P. would be more comfortable in class. (N.T. 406-10.)

         D.P. exhibited some disruptive behavior at the beginning of the school year, such as lying on the carpet and exhibiting a fascination with bathrooms, and Ms. Keenan questioned whether he should be in her classroom. (N.T. 444-45.) Those behavioral issues resolved themselves quickly, and Ms. Keenan stated that she believed she was meeting his needs fully. (N.T. 432-33, 446-48.)

         Unbeknownst to Parents, beginning in mid-October D.P. began being pulled out of the regular classroom for reading and mathematics instruction by a special education teacher because he was not as proficient in those areas as his peers. (H.O. Rpt. ¶¶ 50, 51; N.T. 148-49, 210-11, 739-50, 755-56.) These sessions took place between 45 and 90 minutes per day for a total of 360 minutes per week. (H.O. Rpt. ¶ 50.) Principal Post stated that the decision to pull D.P. out of regular education was made because the Response to Intervention (“RTI”) team “thought that [D.P.] should have that service, ” even though it was not authorized by D.P.'s last agreed upon IEP. (N.T. 149.) Parents were apprised of this pullout instruction in January or February 2015, and first learned of its scheduling at the due process hearing. (N.T. 1074-75, 1206-07.)

         Because an IEP had not been finalized for D.P., although D.P. met all of the goals in his Early Intervention IEP, those goals were never revised to reflect that outside of draft form and, in addition, no progress reports were generated for D.P. (H.O. Rpt. ¶¶ 52, 53; N.T. 758-59, 769-72.)


         Parents initiated this matter on December 21, 2014 by filing a due process complaint against the District in which they alleged that the District denied D.P. a FAPE under the IDEA, Section 504 of the RA, and the ADA. Specifically, Parents argued that the District failed to provide D.P. “an appropriate educational program in the least restrictive environment as [D.P.] made the transition to school-aged programming; that the District discriminated against [D.P.]; and that the District retaliated against . . . Parents.” (H.O. Rpt. at 2.) The District countered that the special education program it provided for D.P. was appropriate and that it neither discriminated nor retaliated against Parents or D.P. After a four day evidentiary hearing, the Hearing Officer concluded that “the District denied [D.P.] [a] FAPE by failing to comply with its [least restrictive environment] obligations and that the District discriminated against [D.P.].” (Id. at 25.) The Hearing Officer ordered:

(1) The District to convene a meeting of D.P.'s IEP team to revise his 2015-2016 school year IEP such that he would be placed in a regular classroom at McCall “to the maximum extent appropriate, utilizing the SAS Toolkit to determine appropriate supplementary aids and services.” (Id. at 25.)
(2) The District to provide D.P. compensatory education of 360 minutes per week for each week school was in session from the date of the initiation of the due process complaint, October 15, 2014, through the end of the 2014-2015 school year. (Id.)

         The Hearing Officer found in favor of the District on the retaliation claim. (Id.) On July 20, 2015, the District appealed the Hearing Officer's decision by filing a Petition for Review in the Commonwealth Court of Pennsylvania, which Parents removed to this Court. (ECF 1.) Parents filed an Answer and Counterclaims on August 20, 2015, seeking:

(1) Enforcement of the Hearing Officer's order requiring the District to convene a meeting of D.P.'S IEP team to revise his 2015-2016 IEP;
(2) Compensatory damages as a remedy for the District's intentional violation of D.P.'s rights under Section 504;
(3) Attorneys' fees and costs.

         On September 23, 2015, Parents filed an Amended Answer and Counterclaims in which they added a claim for retaliation, coercion and intimidation for Parents' advocacy on behalf of D.P.'s rights. (ECF 5.) The District filed an Answer on October 14, 2015, and an Amended Answer on November 2, 2015. (ECF 7, 8.) On February 10, 2017, the District moved for summary judgment on the counterclaims asserted by Parents (ECF 54), and on February 27, 2017, Parents responded (ECF 56).


         A. IDEA ...

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