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Benjamin A. v. Unionville-Chadds Ford School District

United States District Court, E.D. Pennsylvania

August 14, 2017

BENJAMIN A., through his parents MICHAEL and KAREN A.,
v.
UNIONVILLE-CHADDS FORD SCHOOL DISTRICT

          MEMORANDUM RE: CROSS MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

          Baylson, J.

         I. INTRODUCTION

         This 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.

         After 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.

         Presently 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'.

         II. FACTS

         In 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 some detail.

         B.A.[1] 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. at 2).

         B.A. 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).

         B.A. 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).

         In May 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)).

         In 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).

         Additionally, 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 23).

         In January 2013, following the issuance of the December 2012 RR, B.A.'s IEP was revised.[2] (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).

         Erika 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 372-3).

         Jennifer 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).

         Ms. 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).

         David 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 330-333).

         Mr. 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 that[.]” (Id.)

         Mr. 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).

         In 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).

         Barbara 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. (Id.).

         Mrs. 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.).

         Andrew 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).

         Mr. 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).

         In 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).

         Mr. 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. (Id.).

         B.A.'s 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).

         The 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:

5th Grade:
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 Grade:
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).

         In the 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 completed. (Id.).

         Also in 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 projects”;
• 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 context.

(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).

         Dr. 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. at 247-48).

         Dr. 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).

         Dr. 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. (Id.).

         In 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).

         B.A. 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).

         Parents provided Dr. Schmidt's report to the District on October 8, 2014. (7/29 Tr. at 253)

         On 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)).

         A close 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 ...


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