United States District Court, E.D. Pennsylvania
K.D., a minor, by and through her parents, THERESA DUNN and JONATHAN DUNN, Plaintiff,
DOWNINGTOWN AREA SCHOOL DISTRICT, Defendant.
a case brought under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq. (IDEA)
by parents of a young girl with a learning
disability. The parents took their daughter, K.D., out
of a public school district and placed her in private school.
They then sought reimbursement from the school district for
K.D.'s private school tuition, arguing the school
district denied K.D. a free and appropriate public education.
A Hearing Officer denied the parents' requested relief.
Thereafter, the parents commenced this action.
2011, K.D., a young girl, began kindergarten at Pickering
Valley Elementary School in Chester Springs, Pennsylvania.
Pickering Valley Elementary School is within the Downingtown
Area School District. (Doc. No. 1-4, Findings of Fact at 4
¶ 4) [hereinafter “FF”]. About halfway
through K.D.'s kindergarten year, the School District
began providing K.D. with an Instructional Support Team
(“IS Team”). (FF at 4 ¶ 5). The IS Team was
provided to more closely monitor K.D.'s educational
progress. (Id. at 4 ¶ 5). It also gave K.D.
support and instruction. (Id.).
April of K.D.'s kindergarten year, K.D.'s parents met
with K.D.'s IS Team. (Id. at 4 ¶ 6). Both
the parents and IS Team agreed that a special education
evaluation was needed for K.D. (Id.). A school
psychologist recommended they wait to evaluate K.D. until
after she finished kindergarten because some of the relevant
tests are not designed to be administered to students until
after kindergarten. (Id. at 4 ¶ 8). The parents
agreed to wait. (Id.).
the School District evaluated K.D. (Id. at 4 ¶
1). The School District met with K.D.'s parents and gave
them an evaluation report. (Id.). This report
included remarks from a classroom observation,  input from
K.D.'s kindergarten teachers, parental input, and a
summary of K.D.'s academic performance. (Id. at
4 ¶ 2). K.D's academic performance was recorded as
School District psychologist also evaluated K.D.'s
cognitive ability. (Id. at 4 ¶ 3). She did this
using the Wechsler Intelligence Scale for Children
(“WISC-IV”). (Id.). K.D.'s overall
IQ score was in the “low average” range.
(Id.). K.D. scored “average” in verbal
comprehension and working memory. (Id.). K.D.'s
perceptual reasoning and processing speed were assessed at
the “borderline” range. (Id.). The
psychologist determined that K.D. met the diagnostic criteria
for Attention Deficit Hyperactivity Disorder
(“ADHD”). (Id. at 4 ¶ 4).
addition to the WISC-IV, the School District had K.D.'s
parents and teachers complete a Behavior Rating Inventory of
Executive Functioning (“BRIEF”). (Id. at
4 ¶ 5). The BRIEF was developed in 2000 to assess the
executive functioning of children ages 5 to 18. It is an
86-item questionnaire, usually filled out by parents and
teachers alike. K.D.'s parents' and teachers'
responses to the BRIEF indicated K.D. had clinically
significant T-Scores on several scales. (Id.).
School District also had K.D.'s teachers complete a
Behavioral Assessment System for Children
(“BASC-2”) test. (Id.). Similar to the
BRIEF, the BASC-2 measures a child emotionally and
behaviorally. The results of K.D.'s BASC-2 suggested K.D.
had difficulty with impulsivity and organization.
addition to the BASC-2 and WISC-V, the School District
psychologist also used select subtests from the Wechsler
Individual Achievement Test (“WIAT-III”).
(Id. at 5 ¶ 6). K.D. scored
“average” on the oral language composite,
“below average” in total reading and basic
reading, and “extremely low” in early reading
skills. (Id.). With specific regard to the Oral
Reading Fluency subtest, a score could not be obtained
because K.D. was not able to read the passages presented.
(Id. at 5 ¶ 7). K.D. scored “below
average” in math and written expression. (Id.
at 5 ¶¶ 8-9).
on all the above, the School District concluded that K.D.
qualified for special education services. (Id. at 5
¶ 10). The School District found K.D. to have a primary
disability category of Specific Learning Disability
(“SLD”) and a secondary category of Other Health
Impairment (“OHI”). The following facts, which
delve into the School District's conduct and K.D.'s
progress, form the basis for the instant action.
The First Individualized Education Program
September 14, 2012, the School District offered K.D. an
Individualized Education Program (“IEP”), which
K.D.'s parents signed and approved. (FF at 5 ¶
12).The IEP was also signed by Ms. Suzanne
Bargmann (K.D.'s regular education teacher) and Ms.
Lindsay Smith (K.D.'s special education teacher). (Doc.
No. 13-3, Sept. 2012 IEP) [hereinafter “First
IEP”]. This IEP was designed for K.D.'s first-grade
contained measureable annual goals tailored toward helping
K.D. in the following areas: (1) letter naming and letter
sound frequency, (2) letter writing, (3) rhyming, (4) reading
comprehension, (5) writing, (6) starting and completing
tasks, (7) math facts, and (8) math calculation. (First IEP
at 13-17). The IEP also contained specifically designed
instructions (“SDIs”). For example, the IEP
provided K.D. with extended time for quizzes and tests, audio
books, a “think aloud, visual imagery” approach
for text recall, and testing in a quiet location.
(Id. at 18-19). The IEP provided K.D. with three
hours per school day of learning support instruction. (FF at
5 ¶ 16).
K.D.'s First-Grade School Year
the first IEP in place, K.D. began first grade at Pickering
Valley Elementary School. She spent part of her time in class
with Ms. Smith (special education) and part of her time in
class with Ms. Bargmann (regular education).
was informally modified in January 2013 by Ms. Smith. (FF at
6 ¶ 17). Ms. Smith changed K.D.'s homework and gave
her a packet of stories in an attempt to help improve
K.D.'s reading and letter-naming skills. (Id.).
During K.D.'s first-grade year, the School District
determined that K.D. qualified for extended school year
services. (Id. at 6 ¶ 18). The School District
offered this service hoping it would prevent K.D. from
regressing over the summer into second grade. (Id.).
Spring of K.D.'s first-grade year, Ms. Smith became
concerned with K.D.'s visual and motion skills.
(Id. at 6 ¶ 19). Therefore, the School District
requested an Occupational Therapy screening of K.D. with a
private agency. (Id.). A week later, K.D.'s IEP
team reconvened to add extended school year services to her
IEP. Specifically, the School District offered three hours of
academic support, three days a week, from July 1, 2013 to
August 1, 2013. (Id. at 6 ¶ 20).
of K.D.'s first-grade year, the IEP team reconvened to
develop a new IEP for K.D.'s second-grade year.
The Second IEP
formulate a second IEP, in June 2013, the IEP team gathered
updated data and information from K.D.'s teachers. (FF at
6 ¶ 22).
with the first IEP, this second IEP also had measurable
annual goals. (Id.). The goal for K.D.'s letter
naming and sound frequency remained the same, but her
baseline rose from 11 to 24. (Id.). K.D.'s
letter writing, rhyming, starting and completing tasks, and
math goals remained the same. (Id.). K.D.'s
reading comprehension goal changed in that the reading probes
were given at the first/second grade level and K.D. was not
expected to answer both literal and inferential questions.
(Id.). K.D.'s writing goal changed in that the
new IEP expected K.D. to write more-going from 1 sentence to
1-3 sentences. (Id.). K.D.'s math calculation
goal improved, moving from number correspondence to addition
and subtraction. (Id.). This new IEP added a new
SDI: an “evidence based multi sensory reading and
writing program” for 2.5 hours in K.D.'s Language
Arts class. (Id. at 7 ¶ 23). The IEP kept in
place supplemental level of learning support and extended
school year services.
Summer of 2013, K.D.'s parents asked Ms. Smith about
testing K.D. for dyslexia and dysgraphia. (Doc. No. 13-1 at 5
¶ 16). Ms. Smith responded that school
psychologists do not diagnose dyslexia or dysgraphia. (FF at
7 ¶¶ 27-28). Ms. Smith nonetheless offered to put
K.D.'s parents in touch with the school psychologist.
(Id. at 7 ¶ 28). K.D.'s parents also asked
Ms. Smith if the School District offered the Wilson reading
program. (Id.). The Wilson Reading System
(“WRS”) is an instructional program used to help
struggling readers. Ms. Smith responded that the School
District did not offer Wilson until intermediate grades, but
it did have a program with a similar approach geared toward
younger children. (Id.).
K.D.'s Second-Grade School Year
September 2013, K.D. began second grade. (FF at 7
to this school year, the School District used a reading
program called Harcourt/Project Read. (Id. at 7
¶ 30). However, beginning in 2013, the School District
changed over to Fundations, which is a Wilson reading
program. (Id. at 7 ¶¶ 30-31).
Coincidentally, Wilson was the type of reading program
requested by K.D.'s parents a few months prior.
(Id. at 7 ¶ 28).
took the Fundations placement test beginning her second-grade
year. (Id. at 7 ¶ 32). K.D. placed at Level 1.
(Id.). Both parties agree that mastery of one level
is required before moving on to the next level of Fundations.
(Id. at 7 ¶ 33). K.D. did not meet the required
criteria in 7 of the 11 units taught in second grade.
(Id.). In addition to Fundations, K.D. participated
in the School District's regular reading program,
“Being a Writer.” (Id. at 8 ¶ 35).
took one Fundations placement test in October and another in
August. (Id. at 8 ¶ 34). In the category of
naming letters, K.D. improved from a 75% to a 95%.
(Id.). In the category of sound-to-letter
correspondence, K.D. improved from 80% to a Level 1 at 100%.
(Id.). In the category of writing letters and words,
K.D. improved from a 70% to a Level 1 at 80%. (Id.).
In the category of reading words, K.D. improved from
“no level” to a Level 1 at 48%. (Id.).
later, K.D.'s IEP was again amended to reflect her
participation in the Fundations program. (Id. at 8
¶ 36). It was also amended to add some Occupational
Therapy services to K.D. (Id.). This included
Occupational Therapy goals and evaluation. (Id.). At
the end of her second-grade year, the School District again
offered K.D. extended school year services for the summer.
(Id. at 8 ¶ 37).
end of her second-grade year, the IEP team met to formulate
an IEP for K.D.'s third-grade year. (Id. at 8
The Third IEP
of 2014, the IEP team met to develop a new IEP for the
2014-2015 school year. (Id. at 8 ¶ 38).
IEP reflected K.D. making progress in literal and inferential
comprehension. (Id. at 8 ¶ 39). K.D. had
mastered the rhyming goal from the previous IEP at this
point. (Id.). K.D. was earning an average of 87% on
Fundations phonics tests and being re-tested when she did not
pass. (Id.). K.D. had mastered her letter sounds
goal but not the letter naming fluency goal. (Id.).
Finally, this IEP reflected K.D.'s progress in writing,
math, and on-task behavior with the use of prompts and
team increased K.D.'s baseline from a 24 to a 34 in
letter naming fluency. (Id. at 8 ¶ 40). The
team also added to the IEP a nonsense word reading fluency
goal. (Id.). K.D.'s letter writing goal was
removed. (Id.). As for literal and inferential
comprehension, the IEP moved K.D. up from a first/second
grade level to a second grade level. (Id. at 8
increased K.D.'s writing goal. (Id. at 9 ¶
42). Her original IEP had a goal of 1 sentence and then was
increased to 1-3 sentences in the second IEP. At this point,
K.D. could write 3 sentences with some prompting.
(Id.). Her goal in the third IEP was increased to
3-5 sentences. (Id.). As for math, the newest IEP
added a baseline to reflect K.D.'s mastery of the prior
level and the goal was increased. (Id. at 9 ¶
her second-grade year, K.D.'s parents hired a tutor for
K.D. (Id. at 9 ¶ 52). K.D. also attended the
School District's extended school year services that
summer. (Id.). The newest IEP kept in place
K.D.'s prior Occupational Therapy goals and SDIs.
(Id. at 9 ¶¶ 45-46). This same summer,