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K.D. v. Downingtown Area School District

United States District Court, E.D. Pennsylvania

September 1, 2017

K.D., a minor, by and through her parents, THERESA DUNN and JONATHAN DUNN, Plaintiff,


          STENGEL, C.J.


         This is 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.[1] 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.


         In 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”].[2] 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.).

         In 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.).

         Thereafter, 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, [3] 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 “low.” (Id.).

         A 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).

         In 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.[4] (Id.).

         The 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. (Id.).

         In 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).

         Based 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.

         A. The First Individualized Education Program (“IEP”)

         On 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).[5]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 school year.

         The IEP 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).

         B. K.D.'s First-Grade School Year

         With 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).

         The IEP 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.).

         In the 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).

         In June of K.D.'s first-grade year, the IEP team reconvened to develop a new IEP for K.D.'s second-grade year.

         C. The Second IEP

         To formulate a second IEP, in June 2013, the IEP team gathered updated data and information from K.D.'s teachers. (FF at 6 ¶ 22).

         Like 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.

         In the 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).[6] 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.).

         D. K.D.'s Second-Grade School Year

         In September 2013, K.D. began second grade. (FF at 7 ¶¶ 28-29).

         Prior 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).

         K.D. 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).

         K.D. 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.).

         A month 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).

         At the end of her second-grade year, the IEP team met to formulate an IEP for K.D.'s third-grade year. (Id. at 8 ¶ 38).

         E. The Third IEP

         In May of 2014, the IEP team met to develop a new IEP for the 2014-2015 school year. (Id. at 8 ¶ 38).

         The new 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 supports. (Id.).

         The IEP 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 ¶ 41).

         The IEP 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 ¶ 44).

         Following 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 ΒΆΒΆ 45-46). This same summer, ...

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