United States District Court, E.D. Pennsylvania
PARKER C., through his Parents TODD and CRYSTAL C., Plaintiffs,
WEST CHESTER AREA SCHOOL DISTRICT Defendant.
B. BRODY, J.
C. and his parents, Todd C. and Crystal C. (“the
Family”) bring this action against the West Chester
Area School District (“the District”). The Family
alleges that the District failed to afford Parker a
meaningful educational benefit, and therefore failed to
provide Parker with a free appropriate public education
(“FAPE”) in violation of the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400, et seq., and § 504 of the
Rehabilitation Act (“RA”), 29 U.S.C. §
The Family seeks a compensatory education for Parker's
third, fourth and fifth grade years, as well as reimbursement
for an independent educational evaluation (“IEE”)
they arranged. At a due process hearing that took place last
year, Due Process Hearing Officer Dr. Linda Valentini
(“Hearing Officer”) concluded that Parker had not
been denied a FAPE and therefore declined to award a
compensatory education or reimbursement to the Family. The
Family now challenges that decision.
me are the parties' cross motions for judgment on the
administrative record. I exercise jurisdiction to review the
Hearing Officer's decision under 20 U.S.C. §
1415(i)(2). Because I find that the Hearing Officer's
conclusion that Parker was not denied a FAPE is not clear
error, and for the reasons explained below, I will grant the
District's motion and deny the Family's motion.
Early Medical History
C. is a quintuplet, born weighing 1 pound 12 ounces after
only 26 weeks' gestation. Due Process Hearing Decision,
Findings of Fact ¶ 1, June 10, 2016
(“F.F.”). He suffered severe medical
complications at birth, including an intraventricular
hemorrhage and associated hydrocephalus, requiring a nearly
year-long stay in the neonatal intensive care unit.
Id. He was the last of his siblings to leave the
early medical complications had an extensive impact on the
right side of his brain, leading to significant physical and
mental impairments. Tr. Due Process H'rg, 545:11-18
(“N.T.”). His medical history has impacted his
physical, social, behavioral, and neurocognitive development.
Compared to his siblings and the general population, Parker
was very late to achieve early language and motor milestones
and continues to struggle with developmental difficulties
like lack of motor coordination. Neuropsychological
Evaluation of Dr. Kara S. Schmidt, July 5, 2015, S-50 at 3-4,
(“Schmidt Report”). He suffers from visual impairment
and auditory processing delays. Id. at 5.
Cognitively, Parker faces challenges in attention,
organizational skills, memory, and executive functioning,
which includes deficits in initiating tasks, planning, and
using past experience to guide future behavior. F.F. ¶
15. See also Evaluation of Marianne Glanzmann, M.D.,
Children's Hospital of Philadelphia, June 12, 2013, S-18
at 4. As a second grader, Parker showed “less developed
performance with tasks requiring higher level attention and
executive functioning skills.” Neuropsychological
Evaluation of Dr. Karen Kelly, May 13, 2013, S-14 at 16,
(“Kelly Report”). At the time, the impact of
these deficits was expected to “dramatically change
each year, where the expectation[s] . . . increase.”
Id. . These deficits place Parker at “great
risk for increasing academic and social problems.” S-18
his hurdles, Parker's disposition is unreservedly praised
by everyone who meets him: he is described as sweet,
persistent, hardworking, affectionate, and all-around
well-liked, with a good sense of humor. Schmidt Report at 2;
F.F. ¶ 29; Testimony of Nina Yost, N.T. 588:6-9; S-32 at
8. Parker “is doing remarkably well regarding his . . .
medical history and neurological history.” N.T.
Early Educational History
was first identified as eligible for special education in
Tennessee. N.T. 24. In 2011, the Family moved to Pennsylvania
immediately before Parker was to begin first grade. F.F.
¶ 6. On November 14, 2011, The District evaluated
Parker, and found him eligible under the IDEA as a special
education student with visual impairment. Evaluation Report,
November 14, 2011, S-7 (“2011 ER”). Parker was
later deemed eligible as a student with Other Health
Impairment (“OHI”). Although placed in the
regular education classroom, Parker began to receive vision
support and occupational therapy from the District beginning
in 2011. N.T. 25. He received these supports, as well as
regular education reading support, into his second grade
year. F.F. ¶ 9.
time of the 2011 ER, the District also administered a variety
of cognitive tests to Parker. On the Wechsler Intelligence
Scale for Children Fourth Edition (WISC-IV), Parker scored in
the Low Average range. F.F. ¶ 6; 2011 ER at
He scored in the Average range on the General Ability Index.
On the Woodcock-Johnson Tests of Achievement Third Edition
(WJ-III), Parker scored broadly in the Average to High
Average range on a variety of subcategories. F.F. ¶ 7;
2011 ER at 7.
November 2012, pursuant to the IDEA, an Individualized
Education Program (“IEP”) was formulated for
Parker's second grade year. F.F. ¶ 20. This IEP was
revised throughout second grade and updated six times.
spring of 2013, near the end of Parker's second grade
year, the Family raised concerns that Parker was struggling
in school and needed additional supports. The Family
requested and the District agreed to fund a private
independent evaluation. F.F. ¶ 10. On May 17, 2013,
Karen Kelly, Ph.D., conducted an evaluation of Parker. This
report was considered an Independent Education Evaluation
(“IEE”) for the purposes of the IDEA. Kelly
Report 1. On the Woodcock-Johnson Test of Cognitive Abilities
Third Edition, Parker obtained a General Intellectual Ability
score of 93 (32nd percentile), revealing cognitive skills in
the Average range. Kelly Report 28. On the WJ-III, Parker
scores were again mixed within the Average to High Average
range. F.F. ¶ 11; Kelly Report 26. Dr. Kelly
diagnosed Parker with a Special Learning Disability
(“SLD”), as well as a cognitive disorder. Kelly
Report 18. Overall, the report indicated that Parker's
“intellectual functioning was in the lower end of the
average range, with average . . . achievement testing.”
Kelly Report 16. “This is notable, ” the report
reads, “given [Parker's] risk status as a youngster
who falls into a category of children that have typically
fared less well on such measures.” Id.
Parker's Third Grade Year, 2013-2014
for Parker's third grade year was developed on September
25, 2013. F.F. ¶ 20. Over the course of that year, his
IEP was revised at least four times. N.T. 20:10-23. It
contained forty-one discrete services and individualized
supports to be implemented throughout the year, both in the
regular classroom and in special education settings. S-27 at
34-40. The District also reevaluated Parker, issuing a
Reevaluation Report on November 11, 2013. S-25 (“2013
RR”). Pursuant to IDEA regulations, 34 C.F.R. §
300.305(a)(1), the 2013 RR contained a review of existing
evaluation data, classroom observations, input from parents,
teachers, and therapists, as well as reading assessments and
skills ratings. 2013 RR at 3-34. This report recommended that
Parker's physical, occupational, and speech therapy
continue, and also recommended Parker receive Special
Disability Instruction (“SDI”) in the areas of
processing speed, inferential skills and scaffolding of
instruction. F.F. ¶ 22. The 2013 RR also identified
Parker's primary disability classification as Other
Health Impairment (“OHI”). 2013 RR at 32; S-56 at
IEP was revised again on December 6, 2013. The needs
identified included processing speed, organization, reading
comprehension, inferential thinking, concept formation,
sustained attention, vision services, higher level
coordination, and dysfluency. F.F. ¶ 23; S-27 at 1. By
the middle of third grade, although Parker was receiving
language arts and reading instruction in the regular
education classroom, he was increasingly receiving services
by learning support staff in pull-out sessions. F.F. ¶
24. Parker also received reading specialist and social skills
support from the guidance counselor. F.F. ¶¶ 26-30.
His proportion of time outside the classroom increased from
22 percent to 31 percent over the course of the third grade
year. N.T. 20:22-23.
received generally satisfactory grades throughout his third
grade year. S-49 at 9. He was described as a
“hard-worker.” Id. His IEP Progress
Report notes that he had “improved on completing his
work in a timelier manner, ” and that his
“confidence . . . improved much” and his task
completion had “slightly improved.” S-32 at 8.
But the report also notes that Parker often “forgets to
implement certain strategies” and that he needed
improvement in organizational skills and inferential
thinking. Id. Parker's IEP team reconvened on
February 4, 2014 to address the Family's concerns that
Parker's grades were not reflective of his true academic
ability. F.F. ¶ 33. The IEP was amended to reflect the
Family's input but no substantive changes were made to
the plan at that time. S-32 at 1-2.
21, 2014, at the end of Parker's third grade year, Parker
again received Woodcock-Johnson testing and his IEP was
updated a fourth time. F.F. ¶¶ 40, 46. Parker's
testing revealed that he remained in the broadly Average
range, although he received fewer High Average range scores
than the previous administration of the test. F.F.
¶¶ 46-47. Reading fluency and math fluency goals
were added to his IEP. F.F. ¶ 40.
Parker's Fourth Grade Year, 2014-2015
for Parker's fourth grade year was developed on September
14, 2014. F.F. ¶ 51. At the IEP meeting, the Family
requested more help in the area of executive functioning.
S-39 at 14. In addition to updating the goals of his prior
IEP, Parker's fourth grade IEP included goals for reading
comprehension, inferential and critical responses, reading
fluency, math fact fluency, math concepts and applications,
and task completion. F.F. ¶ 50. The IEP team determined
there was not a need for direct instruction in social or
study skills. F.F. ¶ 51. The IEP team modified
Parker's IEP with respect to task prompting to set a goal
of no more than two requests before a task is initiated,
modifying the goal on account of the higher difficulty level
of tasks in fourth grade. F.F. ¶ 63.
substantial portion of Parker's school day continued to
be devoted to individualized special education. He received
pull-out instruction in reading, as well as push-in support
in a co-teaching model for science and social studies. F.F.
¶ 52. He received regular consultation with a reading
specialist. F.F. ¶ 53. Parker began the year receiving
push-in instruction in math, but that model was updated to
pull-out instruction in the learning support classroom so
that the pace and content could better suit Parker's
individualized needs. F.F. ¶ 54; N.T. 242-244. Parker
also continued to receive pull-out services in occupational
therapy, physical therapy, and speech and language therapy.
F.F. ¶ 56. Parker's IEP incorporated twenty-eight
discrete services and individualized supports to be
implemented throughout the year. S-39 at 32-37. He also
received instruction on task organization strategy. F.F.
March 23, 2015, Parker's IEP was revised to include
recommendations from a functional behavioral assessment
(“FBA”) he received. New goals were set to reduce
“off-task” behaviors, and a strategy of nonverbal
prompting was incorporated into the IEP. F.F. ¶ 65.
maintained satisfactory grades in fourth grade, although
“modifications [were] made to the general 4th grade
curriculum for him.” S-49 at 12. The expectations of
Parker were “different for him than what is expected of
a neuro-typical child in 4th grade.” Id.
Nonetheless, the number of “Needs Improvement”
grades in his Learning Related Behaviors assessment decreased
from 3rd grade to 4th grade. Id. In physical
education, Parker “improved from the start of the year,
” but “did not meet end of year
proficiency” in game skills. S-49 at 14. The learning
support specialist reported that Parker “definitely
improved and progressed” in reading fluency. N.T.
370:25-371:2. Parker met both of his individualized goals in
Speech and Language Therapy, S-56 at 9, and continued to
progress in speech fluency. N.T. 583:5. His Occupational
Therapy progress report showed that Parker “has met or
exceeded the criteria for his occupational goals for all four
reporting periods.” S-56 at 8. He also met his social
skills goals for initiating conversations. S-56 at 10.
Family was not satisfied with Parker's progress through
fourth grade, so at the end of that year the Family
commissioned a second IEE. In July 2015, Parker was evaluated
by Dr. Kara Schmidt. Dr. Schmidt met with Parker for
“six or seven hours, ” plus one hour of classroom
observation. N.T. 489:3-8; 490:17. In her report dated July
5, 2015, Dr. Schmidt noted the cognitive deficiencies Parker
suffered on account of his early medical history, and pointed
out particular weaknesses in executive functioning.
Nonetheless, she reported that Parker's
“intellectual skills were within the average
range.” N.T. 492:21-25. She noted that Parker's
deficits were similar to those identified by Dr. Kelly in
2013. F.F. ¶ 74; Schmidt Report 3 (“[Kelly's]
diagnostic impression was as follows: Cognitive disorder NOS
(attention, organizational deficits, memory impairment,
executive functioning weaknesses) . . .). She also
administered the WJ-IV, and Parker received broadly Average
range scores, although he received more Low Average scores
than he had previously received. Dr. Schmidt also
administered the WISC-IV, and Parker received solidly Average
range scores. Compared to the WISC-IV assessment Parker had
received in 2011, his numeric scores increased in every
Schmidt diagnosed Parker with an SLD in reading, written
expression, and mathematics, as well as a speech and language
impairment. F.F. ¶ 78. She recommended that Parker
receive direct instruction in reading, reading comprehension,
executive functioning and social skills. F.F. ¶ 79.
30, 2015, Parker's IEP team met with Dr. Schmidt to
consider the results of her evaluation and incorporate her
recommendations into Parker's IEP. The team added
specially designed instruction to Parker's IEP, including
additional organizational goals and social skills goals, but
did not implement direct instruction in executive
functioning. F.F ¶ 81; S-52.
Parker's Fifth Grade Year, 2015-2016
fifth grade IEP was created on September 16, 2015 and revised
in December of that year. F.F. ¶ 86. In addition to the
physical, speech, and vision therapy, Parker's IEP
included the following: accommodations for slow processing
speed, support with organization of materials and work space,
direct instruction in inferential reading comprehension,
direct instruction in math fact fluency and math concepts,
and accommodation to assist with concept formation. F.F.
¶ 86; S-56. Parker also received social skills
instruction from a special education teacher, which consisted
of small group sessions and individualized support. F.F.
¶ 88. His IEP set forth thirty-three individualized
supports and services provided to him throughout the school
day. S-56 at 32-39.
speech therapist reported progress in decreasing speech
dysfluencies from November 2015 to January 2016. 2011 ER at
16; N.T. 598:1. Parker also continued to receive satisfactory
grades during the first half of his fifth grade year. P-9 at
1. He received grades of 97 and 95 in Science for the first
two marking periods of fifth grade, higher grades than he had
ever received in the past three years. Id. The
number of “Demonstrates Consistently” scores on
his Learning Related Behaviors assessment, the highest mark,
also increased from fourth grade to fifth grade. Id.
Parker's fifth grade teacher noted his “strong work
ethic.” Id. In physical education,
Parker's teacher wrote: “Parker's effort is
noticeably improved this year. His skills are improving as a
result. Keep it up! I am proud of him for his efforts.”
Id. at 3.
Family continued to be dissatisfied with Parker's
progress and felt that the revisions to his IEP were not
fully addressing Parker's needs. On December 1, 2015,
pursuant to the IDEA, the Family initiated a due process
hearing based upon the District's alleged failure to
provide Parker a FAPE. The Family sought compensation for
this failure, as well as reimbursement for the Independent
Educational Evaluation (IEE) conducted by Dr. Kara Schmidt.
On June 10, 2016, following a multi-day hearing in which