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Parker C. v. West Chester Area School District

United States District Court, E.D. Pennsylvania

July 6, 2017

PARKER C., through his Parents TODD and CRYSTAL C., Plaintiffs,


          ANITA B. BRODY, J.

         Parker 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. § 794.[1] 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.

         Before 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.

         I. BACKGROUND

         a. Early Medical History

         Parker 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 hospital. Id.

         Parker's 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”).[1] 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 at 4.

         Despite 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. 553:17-20

         b. Early Educational History

         Parker 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.

         At the 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 5.[2] 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.[3]

         In 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. Id.[4]

         In the 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.[5] 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.

         c. Parker's Third Grade Year, 2013-2014

         The IEP 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 5.

         Parker's 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.

         Parker 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.

         On May 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.[6] Reading fluency and math fluency goals were added to his IEP. F.F. ¶ 40.

         d. Parker's Fourth Grade Year, 2014-2015

         The IEP 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.

         A 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. ¶ 64.

         On 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.

         Parker 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.

         The 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.[7] 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 category.[8]

         Dr. 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.

         On July 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.

         e. Parker's Fifth Grade Year, 2015-2016

         Parker's 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.

         Parker's 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.

         f. Procedural Background

         The 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 ...

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