United States District Court, E.D. Pennsylvania
MEMORANDUM RE: CROSS MOTIONS FOR JUDGMENT ON THE
action was commenced by Michael and Karen A. (collectively,
“Parent”) on behalf of their son, B.A., against
the Unionville-Chadds Ford School District (the
“District”). On March 13, 2015, Parents filed a
due process complaint against the District, alleging that it
failed to provide B.A. a free, appropriate public education
(“FAPE”), in violation of the Individuals with
Disabilities in Educational Improvement Act
(“IDEA”). Parents also bring claims against the
District under Section 504 of the Rehabilitation Act
(“Section 504”), and the Americans with
Disabilities Act (“ADA”). Parents seek
compensatory education and tuition reimbursement for that
denial, as well as reimbursement for a private
neuropsychological report issued in September 2014 that the
Parents obtained at their own expense.
five hearing sessions, the Administrative Hearing Officer
Jake McElligott, Esquire (the “Hearing Officer”)
concluded that the District had not denied B.A. a FAPE, and
B.A. was not entitled to the relief Parents sought.
before the Court are the parties' cross motions for
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 the District's motion, and deny the Parents'.
order to consider whether B.A. was, as the Parents claim,
denied a FAPE, we must consider the evidence within the
Administrative Record (“AR”), including the
Hearing Officer's Decision and Order, dated February 24,
2016 (“HO Rpt.”), the Hearing transcripts (AR,
Exs. 5-9), and the various IEPs themselves (AR, Ex. 11,
Parents' Exhibits, “P”- 13, 15, 17, 19, 20,
24). As such, it is necessary to set forth the evidence in
B.A. was born on July 1, 2002,
and at the time of the Due Process hearings in mid-2015, B.A.
was thirteen years old and in the seventh grade. At all
relevant times, B.A. and his Parents have resided within the
District, and B.A. has qualified under the IDEA for specially
designed instruction/related services as a student with
health impairment; specifically, a seizure disorder. (HO Rpt.
suffered a stroke in utero that has led to epilepsy and a
lifelong seizure disorder. (HO Rpt. ¶ 2). He also has a
condition known as electrical status epilepticus of sleep, an
epileptic condition resistant to medication management where
the person has sub-clinical seizures during sleep.
(Id.). B.A. has also been diagnosed with attention
deficit disorder (“ADD”). (Id.; see
also AR, Ex. 9, Transcript of July 29, 2015 Hearing
(“7/29 Tr.”), at 145).
has attended the District since kindergarten and has had an
Individualized Education Plan (“IEP”) for all
school years. (HO Rpt. ¶ 2; see also AR, P-1,
5a, 5b, 7, 8, 10, 13, 15, 17, 19, 20, 24).
2010, near the end of B.A.'s first grade year, the
District re-evaluated B.A., and produced the May 2010
re-evaluation report (the “May 2010 RR”). (HO
Rpt. ¶¶ 3-5). The May 2010 RR found that B.A.'s
academic achievement was commensurate with a full-scale IQ of
115, and so did not identify him with any learning
disability. (Id.). Based on the RR, the District
determined that B.A. did not require direct speech and
language instruction, but identified B.A. as a student with
health impairment related to his seizure disorder, and speech
language disorder, and recommended modifications and
specially designed instruction (“SDIs”) to
support him with social skills/pragmatic communication,
direction, transitions, and gross motor skills. (HO Rpt.
¶¶ 6-8 (citing P-3 at 12-18)). Throughout
the 2010-2011 and 2011-2012 school years, B.A.'s IEPs
were revised multiple times. (Id. ¶ 9
(citing P-5a, 5b, 7, 8)).
April 2012, B.A. underwent a neuropsychological evaluation at
the Children's Hospital of Philadelphia
(“CHOP”). In June 2012, a comprehensive
neuropsychological evaluation report (the “2012 CHOP
Report”) diagnosed B.A. with “Intractable Complex
Partial Epilepsy, ” “Encephalopathy, not
otherwise specified” and ADD. (HO Rpt. ¶ 10; P-12
at 5). After sharing the 2012 CHOP report with the District
at the outset of the 2011-2012 school year, B.A.'s IEP
was revised again. (See P-13 at 1).
and in light of the 2012 CHOP Report, in December 2012, the
District conducted an additional evaluation of B.A., and
promulgated another re-evaluation report (the “December
2012 RR”). (HO ¶ 11; P-14; 7/29 Tr. at 159-167).
The December 2012 RR found that B.A. had
cognitive/achievement strengths and weaknesses but that
overall, B.A. did not exhibit any deficits that would lead to
an identification of any “specific learning
disability.” (HO Rpt. ¶ 13; P-14 at 22). The
December 2012 RR, however, noted that B.A. is “in need
of specially designed instruction, ” and “will
need adaptations and accommodations to the curriculum in
order to make meaningful progress in the regular education
setting.” (Id.) The Report recommended,
inter alia, support in reading comprehension skills,
small group direct instruction in writing, as well as various
strategies to help with his executive functioning, attention,
and organizational difficulties. (HO Rpt. ¶ 17; P-14 at
January 2013, following the issuance of the December 2012 RR,
B.A.'s IEP was revised. (HO Rpt. ¶ 18; P-15). The
January 2013 IEP-which was implemented in the second half of
the 2012-2013 school year, B.A.'s fourth grade
year-contained three “Measurable Annual Goals”:
(1) behavior/task initiation, (2) reading comprehension, and
(3) written expression, each of which indicated a
corresponding method of measuring B.A.'s progress and the
frequency with which that progress would be tracked. (P-15 at
20-22). The January 2013 IEP also contained a chart of
“Modifications and SDIs, ” which were categorized
to address B.A.'s specific needs, including, inter
alia, his “Writing Needs, ” “Executive
Functioning Needs, ” “Social Needs, ”
“Reading Comprehension Support, ” “Language
Needs, ” and “Inattention.” (P-15 at
22-27). B.A.'s out of classroom or “pull out
instruction” included “physical therapy for two
30-minute sessions a month, social skills instruction one
time a week for 20 minutes and written expression for 40
minutes a day.” (AR, Ex. 6, Transcript of September 2,
2015 Hearing, “9/2 Tr., ” at 396). Under the
terms of the January 2013 IEP, B.A. spent 85% of the day in
regular education. (HO Rpt. ¶ 21; P-15 at 32).
Johnson, B.A.'s regular education fourth grade teacher,
testified at the Hearing about how she implemented B.A.'s
January 2013 IEP. (See AR, Ex. 7, August 21, 2015
Hearing Transcript, “8/21 Tr.”). For instance,
Ms. Johnson testified that she helped B.A. with task
completion by using, inter alia, “a timer on
his desk, ” “checklists, ”
“chunk[ing] the task, ” and “reward
systems.” (8/21 Tr. at 356-60). She also worked with
him on organizational skills (Id. at 363 (“I
would check his homework planner to make sure he wrote down
his homework” and “helped him organize his
desk” to “try to teach him how to do it
himself”)), as well as reading skills (id. at
368-9 (“I would . . . chunk the test” and ask
“basic comprehension questions as he was reading to
make sure he was reading and checking in.”)). Ms.
Johnson testified that she believed that B.A. made meaningful
educational progress in fourth grade. (Id. at
Corcoran, B.A.'s fourth grade learning support teacher,
also testified about how she implemented B.A.'s January
2013 IEP, specifically with regard to the SDIs that were
outlined therein. (9/2 Tr. at 395). Ms. Corcoran's
classroom was a special education classroom, and B.A. came to
her classroom, in which there were about eight other
students, for about forty minutes per day for writing
instruction. (Id. at 396-7). Ms. Corcoran also went
into B.A.'s regular education classroom
“daily” to check on him, pursuant to the SDIs,
and to provide “visual support.” (Id. at
398). When asked about why there was no “direct
instruction listed for executive functioning skills” in
the January 2013 IEP, Ms. Corcoran responded, “[t]he
words direct instruction for executive functioning skills
aren't used, but there are-we did incorporate a lot more
SDIs to address his executive functioning needs, ” in
“authentic settings.” (Id. at 488-491).
She explained that she did not employ “pull out
[executive functioning] direct instruction” with B.A.
because she “thinks it's important to teach
executive functioning kind of skills while they're doing
it” and in “real life situations.”
(Id. at 491). Ms. Corcoran also explained how she
helped B.A. with organization (id. at 467) and task
completion in her class, namely with “redirection or
chunking” and “scheduled breaks, ” as a
result of which she noticed improvement. (Id. at
450-454). Ms. Corcoran testified that her goal for B.A. was
“to get [him] to do this by himself using the
strategies that [she and Ms. Johnson] gave him.”
(Id. at 472).
Corcoran also testified generally that B.A.'s
“grades supported that he was in the right place”
such that he did not need to be in small classes at all
times, that he “benefitted from being with his regular
education peers, ” and that she was “pleased with
the progress that [B.A.] made in fourth grade[.]”
(Id. at 495-6).
Lichter, B.A.'s fifth grade regular education math
teacher for the first quarter of the 2013-2014 school year,
also testified as to how he worked with B.A. to implement the
January 2013 IEP. (7/29 Tr. at 318). He acknowledged that
B.A. had issues with respect to time management, task
initiation, and organization, and described his main concern
with respect to B.A. as his “inattention.”
(Id. at 318-320; 334). Mr. Lichter testified that he
implemented the SDIs that were to be implemented in regular
the education environments, such as instructing B.A. to use a
calendar or planner, and to organize his materials so that he
could turn in his homework assignments. (Id. at
Lichter also testified about how he asked B.A. to go into the
hallway with him “several times, ” which was a
“last” resort to get B.A. to focus, (id.
at 338-340; 360). When asked, Mr. Lichter specifically noted
that sending B.A. into the hallway was not “a
punishment, like going to the corner or something like
Lichter testified that he emailed B.A.'s mother to inform
her that B.A. would receive a “D” for the first
quarter marking period in his math class. (Id. at
342-345). Because B.A. was not thriving in his class, he and
Mrs. Williamson determined that he should move into Mrs.
Williamson's class after the first quarter, a decision
with which Parents agreed. (Id. at 351-2).
December 2013, B.A.'s IEP team met for its annual
consideration of B.A.'s IEP, which led to the
implementation of the January 2014 IEP. (HO Rpt. ¶¶
24; 37; see P-17). The January 2014 IEP contained
two “Measureable Annual Goals”: (1) Reading
Comprehension, and (2) Writing. (P-17 at 17-18). It also
contained various “Modifications and SDI[s], ”
including ones to address “Writing Needs, ”
“Executive Functioning Needs, ” “Social
Needs, ” “Reading Comprehension, ” and
“language needs” and “inattention.”
(P-17 at 19-21). It also specified that B.A. would
“receive direct instruction in written expression and
reading comprehension” in a special education or
learning support setting for 45 minutes per day, 5 days per
week. His “spelling, math, science, and social studies
instruction” would occur in the “regular
education setting.” (P-17 at 24). Under the terms of
the January 2014 IEP, B.A. spent 77% of the day in regular
education. (P-17 ay 26; HO Rpt. ¶ 29).
Williamson, B.A.'s regular education teacher for most
subject, except writing and math (for the first quarter of
the year), testified about how she implemented B.A.'s
January 2014 IEP (AR, Ex. 8, Transcript of July 31, 2015
Hearing, “7/31 Tr.” at 146-209). B.A. was in Mrs.
Williamson's regular education class (with twenty-three
students and one adult aide) for reading, spelling, social
studies and science. Mrs. Williamson testified that she
implemented the IEP using several strategies regarding task
completion and organizational skills, such as teaching B.A.
how to make check lists and to write things in his planner.
(Id. at 200-201). Mrs. Williamson also testified
that she “provide[d] direct instruction with
organization with all of [her] students. [B.A.] in particular
would be instructed with the class, but then separately
because of the needs that were evident in the IEP.”
(Id. at 149). She further testified that, “if
something we were doing [in class] was not enough,
specifically if he needed more monitoring or writing his
assignments down, or if he needed more review of concepts
being taught, that occurred on a regular basis and changed as
the year went on.” (Id. at 183; 201). Mrs.
Williamson testified that she saw improvement on this
dimension throughout B.A.'s fifth grade year.
Williamson explained that B.A. was switched from Mr.
Lichter's math class to her class after the first quarter
of fifth grade because “he was not making adequate
progress” in Mr. Lichter's class. (Id. at
193). Ms. Williamson's math class-while it had the same
curriculum as Mr. Lichter's class-was smaller (with about
fourteen or fifteen students), had two or three other
supporting adults, and moved at a slower pace. (Id.
at 193-4). Ms. Williamson noted that after the change,
B.A.'s performance in math improved. (Id.).
Lefko, B.A.'s fifth grade learning support teacher, also
testified about how he helped to implement B.A.'s January
2013 and 2014 IEPs. (See 9/2 Tr. at 515-616). In
fact, as Ms. Williamson testified, Mr. Lefko personally went
through B.A.'s applicable IEP with each of B.A.'s
teachers to ensure that it was being implemented. (7/31 Tr.
at 197-8). Mr. Lefko testified that he was aware of all of
B.A.'s areas of need, including his “deficits with
respect to executive functioning skills, ” which he
considered to be highly related to his issues with
organization and “study skills.” (Id. at
518-519; 537-8). He testified that while there was no
“direct pull-out instruction, ” there was
executive functioning instruction in the classroom.
(Id. at 602).
Lefko testified that because, pursuant to the March 2014 IEP,
“learning support for reading” was added, B.A.
came to his special education classroom for written
instruction for about 45 minutes per day, in a classroom
setting with anywhere from five to eight students.
(Id. at 521-523; 542). He also went to Mr. Lefko 45
minutes per day for reading comprehension, and was in a small
class of students who had a variety of reading related
issues. (Id. at 542). He noted that while, during
that time, they worked “predominately” on reading
comprehension, they sometimes also worked on other things.
(Id. at 554).
February 2014, Mr. Lefko started an “executive
functioning group, ” in which B.A. and two other
students met for fifteen minutes per day. (9/2 Tr. at 551-2).
Mr. Lefko believed that executive functioning “grew as
a concern to [B.A.'s mother], ” but that it was not
the “overriding concern from day one.”
(Id. at 558-9).
Lefko testified that he believed that B.A. benefited from
spending the majority of his time in regular classes, and
that he benefitted from his time with his regular education
peers. (Id. at 611). He explained,
“[t]here's so much to be gained by being in a
classroom of 23, 25 kids from listening to their experiences,
to have them listen to your experiences, and to
connect[.]” (Id. at 612). He indicated that he
was pleased with B.A.'s progress during fifth grade.
IEP was again revised in March 2014 (the “March 2014
IEP”). (See P-19). The key modification in the
March 2014 IEP was that B.A. would now have “pull
out” time devoted to executive functioning.
Specifically, the revision to the executive functioning
“Modification and SDI” stated: “The IEP
team has concerns related to [B.A.'s] executive
functioning abilities: Executive Functioning Skills
Instruction: 30 min. per day/5 days per wk. for instruction
in active listening skills, memory strategies, study
strategies, reasoning and organization.” (P-19 at 17;
HO Rpt. ¶ 31; 7/31 Tr. at 172-4). Pursuant to this
revision, B.A. would spend 69% of his day in a regular
education classroom. (Id. at 24; HO Rpt. ¶ 32).
District held another IEP meeting on May 13, 2014, the
purpose of which was to discuss B.A.'s transition from
elementary school to middle school, and promulgate B.A.'s
May 2014 IEP. (P-20; HO Rpt. ¶ 33). The SDI related to
executive functioning remained the same as stated, as did the
percentage of time that B.A. would be in regular education
classes. (P-20 at 24, 30). However, in the section explaining
the portion of time B.A. would not spend in regular
education, the May 2014 IEP stated as follows:
Reading: 45 min. day/5 days per week Written Expression: 45
min. day/ 5 days per week Executive Functioning Skills
Instruction: 30 min. per day/ 5 days per week 6th
Literacy: 45 min. day/ 5 days per week English: 45 min. day/
5 days per week Executive Functioning Skills Instruction: 40
min. per day/ ? days per week
(P-20 at 27). Carol Stern testified that, notwithstanding the
“?” in the IEP, it was determined that B.A. would
receive 40 minutes of instruction 4 out of 6 days in a school
cycle, which would result in either 3 or 4 days of 40-minute
instruction per week. (7/31 Tr. at 186-7).
summer of 2014, B.A.'s Parents enrolled him in a private
school summer program at the Centreville School. (7/29 Tr. at
201; SOF ¶ 9; HO Rpt. ¶ 36). Several teachers,
including Ms. Johnson, Ms. Corcoran and Mr. Lefko, testified
that B.A. never showed any signs of “regressions”
over schools breaks that would have suggested that he needed
ESY. (8/21 Tr. at 370-371; 7/31 Tr. at 203; 9/2 Tr. at 610).
Significantly, there was testimony in the record that
B.A.'s family took vacations at the end of B.A.'s
fourth and fifth grade years that caused him to miss the last
three weeks of school. (9/2 Tr. at 610-613). While B.A. was
given assignments to complete during that time, they were not
the summer of 2014, B.A. underwent a private
neuropsychological evaluation, at Parents' expense,
conducted by Dr. Kara Schmidt (the “Schmidt
Report”). (HO Rpt. ¶ 35; P-23 at 22-28; P-31 at
56). The Schmidt Report was thorough and comprehensive, and
concluded that while “[B.A.] is performing remarkably
well given the nature and severity of his neurological
history”-specifically, his “left thalamic stroke
and intractable epilepsy”-his weakness “with
regard to executive functioning, impact[s] all aspects of his
academic day and home life as well as his coping skills and
ability to develop typical social relationships with his same
age peers.” (P-23 at 22). The Schmidt Report
incorporates a number of recommendations to accommodate his
academic and social needs. For instance:
• B.A. “requires direct specially designed
instruction and academic support, ” but “will
benefit from grade appropriate curriculum exposure across all
classes; however inclusion and/or co-taught settings should
be employed based on his needs”;
• B.A. “will do best in a small classroom
environment with a low student-to-teacher ratio.”
• B.A. should receive “direct instruction”
with regard to “organization and execution of multistep
• B.A. should receive “research based
instruction” from a “learning support
teacher” in the areas of reading and writing;
• B.A. should receive “assistance with social
functioning and general social coping skills in a group
(P-23 at 22-26). The Schmidt Report also provided a list of
“additional accommodations” to help B.A. with his
“difficulties with distractibility, impulsivity,
attention, working memory and sustained mental effort within
the classroom setting.” (Id. at 26).
Schmidt reiterated some of the results of her Report in her
testimony, where she explained, “many of the struggles
that [B.A.] has with regard to academics in terms of reading
comprehension and in terms of his written language are due to
his executive function, his inattention, and the social
weaknesses that he has[.]” Asked how significant, in
her opinion, B.A.'s executive functioning deficits were,
she said, “I think that he has significant executive
functioning deficits, but I think it's  important to
think about it in a broader way, that he has significant
disattention and inconsistency in general.” (8/21 Tr.
Schmidt testified that B.A. would do best in a “small
setting” such as Hill Top as opposed to a public school
in general (8/21 Tr. at 277-8). Dr. Schmidt recognized that
at Hill Top, “[B.A.] does not have exposure to and does
not go to school with regular ed peers[.]”
(Id. at 289).
Schmidt admitted, on cross examination, that she “did
not see [B.A.] when he was a student at [the District],
” nor did she specifically recall ever conducting
observations at B.A.'s school. (Id. at 285-6).
Dr. Schmidt further admitted that she “did not know for
the program that was proposed for [B.A.] how many students
would have been in any of his classes at the middle
school.” (Id. at 287; 302). Dr. Schmidt did
not see B.A.'s IEP except in anticipation for her Hearing
Testimony, which was after she completed the Schmidt Report.
August 2014, Parents informed the District that they intended
to place B.A. in a unilateral private placement at Hill Top,
at public expense. (HO Rpt. ¶ 37). B.A.'s mother
testified that Parents made the decision to send B.A. to Hill
Top based on the Schmidt Report. (7/29 Tr. at 205).
was enrolled at Hill Top in September 2014, where he
completed both the 2014-2015 and 2015-2016 school years
(sixth and seventh grades). (Id.). At Hill Top, B.A.
did not have an IEP, but rather a so-called personal
education plan (“PEP”). (7/29 Tr. at 255). The
PEP did not contain “goals” in the way that his
IEP did, but rather included “skills” to be
improved upon, which were based largely on the Schmidt
Report. (Id. at 255).
provided Dr. Schmidt's report to the District on October
8, 2014. (7/29 Tr. at 253)
November 10, 2014, in light of the Schmidt Report, B.A.'s
IEP team met to revise the IEP (the “November 2014
IEP”) to further expand the support provided to B.A. at
the District. (See P-24; 9/2 Tr. at 680-1 (“Q:
And as a result of this letter did you determine that the
School District should hold an IEP meeting for [B.A.]? A:
Yes.”)). The District heavily utilized the Schmidt
Report in revising B.A.'s November 2014 IEP.
(See 7/31 Tr. at 41-48 (Carol Stern discussing in
detail the incorporation of the Schmidt Report into the
November 2014 IEP)).
review of the “Accommodations and SDI” portion of
the November 2014 IEP reveals that virtually all of Dr.
Schmidt's recommendations were incorporated into this
IEP. (SOF ¶ 156; 7/29 Tr. at 46-60). For instance, the
November 2014 IEP (1) added a measurable goal of
“Listening Skills” (P-24 at 21); (2) placed B.A.
in a small classroom environment for reading, written
expression, executive functioning and social skill (P-24 at
30); (3) called for in-class support in the areas of both
speech/language and math (id.; 7/31 Tr. at 49); and
(4) listed a number of classroom accommodations “to
address focus and attention.” (P-24 at ...