United States District Court, M.D. Pennsylvania
Richard Caputo, United States District Judge.
before me are a Motion for Judgment on the Administrative
Record (Doc. 23) filed by the Pocono Mountain School District
(the “District” or “Plaintiff”) and a
Motion for Judgment on the Administrative Record (Doc. 26)
filed by J.W. (“Student”), by and through J.W.
and S.W. (“Parents”), as well as Parents in their
right own right (collectively, “Defendants”). The
District commenced this action by filing the Complaint on
March 2, 2016, which is in the nature of an appeal under the
Individuals with Disabilities Education Act, 20 U.S.C. §
1400 et seq. (“IDEA”), seeking reversal
of a final administrative decision dated December 14, 2015
(the “Hearing Officer's Decision”), which
found that the District denied Student a Free Appropriate
Public Education (“FAPE”) for his sixth and
seventh grade years. Because the Hearing Officer's
factual findings are supported by the administrative record
and the educational program offered to Student was not
reasonably calculated to allow him to make progress
appropriate in light of his circumstances, the Hearing
Officer's Decision will be affirmed, Defendants'
Motion for Judgment on the Administrative Record will be
granted, and the District's Motion for Judgment on the
Administrative Record will be denied.
entered the District in kindergarten and continued in the
District into junior high school. (See HOD, ¶
2). Student has a documented medical
history of developmental delays. (See id. at ¶
1). Student has been diagnosed with pervasive developmental
disorder, Asperger's Disorder, Attention Deficit
Hyperactivity Disorder, Oppositional Defiant Disorder,
Language Disorder, Developmental Coordination Disorder and
Mood Disorder. (See id.). Student's educational
history includes early intervention services, such as
classroom based education and speech and language support, as
well as emotional support services. (See id. at
¶ 3). Student's in-school behavioral background
includes fifty-five (55) disciplinary referrals since he
enrolled in the District in kindergarten. (See S-14,
2). Student received disciplinary referrals for reasons such
as defiance, disrespectful behavior, physical alterations,
inappropriate language, and possession of a weapon.
(See HOD, ¶ 5).
October 2012, while Student was in fifth grade, he was
offered an Individualized Education Program
(“IEP”) placing him in Supplemental Education
Support, with full-time inclusion in regular education
classes. (See id. at ¶ 8; see also
S-2, 28). The October 2012 IEP indicated referral to the
Emotional Support Classroom when needed by Student or to
address inappropriate behavior or conduct. (See HOD,
¶ 8; see also S-2, 48). Student was also to
continue receiving speech and language support. (See
S-2, 26). The October 2012 IEP also offered a behavior
support plan addressing work refusal, frustration, and
physical aggression. (See id. at 41-50).
Academically, the October 2012 IEP identified Student's
performance as below fourth grade average in mathematics and
average in reading fluency and comprehension pursuant to
criterion-based testing. (See HOD, ¶ 9). On the
Pennsylvania System of School Assessment (“PSSA”)
for his fifth grade year, Student tested basic on math and
writing and below basic in reading. (See S-7, 6).
began his sixth grade year, i.e., the 2013-2014
school year, with the October 2012 IEP in place.
(See N.T. 314:7-16). During Student's
sixth grade year, Student struggled with academic
performance, organization, and homework/assignment
completion. (See HOD, ¶ 16). Student frequently
slept in class and his conduct interfered with the learning
process, including acts of aggression, cursing and muttering
under his breath, refusal to follow rules, and defiance.
(See id.). Student's struggles and behavioral
issues were known by the District from the outset of the
2013-2014 school year. (See id. at ¶ 18). To
help Student with his performance that year, Parents retained
a private tutor. (See id. at ¶ 19).
October 2013, a new IEP was offered to Student for the
remainder of his sixth grade year. (See S-4,
generally). The October 2013 IEP documented
Student's academic performance in mathematics as severely
below fifth grade average, while his reading fluency and
comprehension performance were both average. (See
id. at 10-11). The October 2013 IEP offered measurable
goals for mathematics, vocabulary, language processing
skills, and English language syntax. (See HOD,
¶ 25). Additionally, modifications and specially
designed instruction were provided to address, inter
alia, Student's needs regarding organization,
processing instructions, processing speed, homework
completion, vocabulary, attention difficulties, and emotional
regulation/classroom behavior. (See id.). The
October 2013 IEP further provided a behavior support plan
addressing work refusal, frustration, and physical
aggression. (See id. at ¶ 26). The behavior
plan also utilized a point plan which Student would earn
points based upon teacher judgment and teacher assessment of
Student's overall behavior during each class. (See
id. at ¶¶ 27-28).
reevaluation report of Student was prepared by the District
in March 2014. (See id. at ¶ 30). The March
2014 reevaluation report included a review of Student's
educational records as well as the administration of
sub-tests of a standardized achievement test. (See
id. at ¶ 31). The results of Student's reading
scores in the March 2014 reevaluation report were mixed,
including that Student was reading at a third grade level and
that his scores were below basic, but Student scored above
the benchmark for reading fluency in a standardized
assessment for monitoring the emergence of early literacy
skills. (See id. at ¶ 32). In math,
Student's benchmark testing was below basic, but his
performance on the fifth grade PSSA in math was basic.
(See id. at ¶ 33). Student's first and
second quarter grades for the 2013-2014 school year were
passing and at or above the “C” level. (See
id. at ¶ 34). The report concluded that Student no
longer had a speech/language impairment and should be
dismissed from the speech/language support program. (See
id. at ¶ 30). Student's primary disability
category as identified in the March 2014 reevaluation report
was Other Health Impairment. (See S-7, 13).
April 2014, a new IEP was offered by the District.
(See S-8, generally). The April 2014 IEP
continued Student's placement in supplemental emotional
support with all classes in regular education. (See
id. at 22). The positive behavior support plan again
noted Student's behaviors of concern, including work
refusal, frustration, and physical aggression. (See
id. at 27-28). Additionally, the April 2014 IEP
identified falling asleep during class as a behavior of
concern. (See id. at 28).
April 2014 IEP remained in place at the beginning of
Student's seventh grade year, the 2014-2015 school term.
(See N.T. 339:4-23). A team IEP meeting was held in
February 2015 at the request of S.W. because of concern about
Student's behavior. (See HOD, ¶ 49). S.W.
also requested a reevaluation of Student's IEP at that
time to ensure it was meeting Student's academic needs.
(See S-11, 1). S.W. further indicated that it was
taking Student a “very long time” to complete his
homework. (See id.). However, S.W. was reluctant to
cut down her son's workload. (See id. at 1-2).
Student's grades for the second quarter of his seventh
grade year were poor, including 65% in social studies, math,
and English language arts, and 70% in science. (See
id. at 8). The main cause for the poor grades was
identified as Student's lack of effort and completion of
work. (See id.). At that time, it was determined
that Student would be placed in learning support for his
English language arts class and that a reevaluation of
Student would be conducted which would include educational
testing. (See id.). Additionally, the February 2015
IEP noted that Student's classroom behavior inhibited his
ability to learn and that Student refused to complete work
and would fall asleep in class. (See id. at 9). The
IEP was also revised to permit Student to chew gum or have
candy in class to reduce Student's use of inappropriate
language when frustrated. (See id. at 21).
Functional Behavioral Assessment (“FBA”) of
Student was prepared in May 2015. (See HOD, ¶
55). The FBA noted Student's concerning behavior to
include frustration and falling asleep in class. (See
id.; see also S-13, 1).
reevaluation report of Student was provided by the District
on or about May 27, 2015. (See HOD, ¶ 56). The
reevaluation report summarized Student's educational,
behavioral, and medical history. (See S-14, 1-4).
The May 2015 reevaluation report set forth Student's
report card grades for the prior three years, as well as the
first three quarters of his seventh grade year. (See
id.). On the sixth grade PSSAs, the May 2015
reevaluation report noted that Student performed below basic
in both reading and mathematics. (See id. at 8). The
reevaluation report “recommended that the IEP team
continue to find [Student] eligible for and in need of
special education services as a student within an Other
Health Impairment, due to his medical diagnoses and continued
behavioral concerns with the school setting, which are
adversely impacting upon his educational performance.”
(Id. at 31). The May 2015 reevaluation report
further indicated that Student satisfied the eligibility
requirements for the educational classification of Specific
Learning Disability. (Id.). More particularly, the
May 2015 report stated that Student “does not achieve
adequately for a student his age in the areas of basic
reading skills, reading comprehension, mathematics
calculation, and mathematics problem-solving” based on
standardized test performance, and the report provided that
Student exhibits weaknesses in these areas relative to his
intellectual development and same-aged peers. (Id.
at 35; see also HOD, ¶ 62).
revised IEP was offered by the District in June 2015.
(See HOD, ¶ 68). The June 2015 IEP included a
modification of work in Student's core academic classes
according to his reading and writing ability. (See
S-15, 29). Itinerant emotional support was provided for in
the June 2015 IEP. (See id. at ¶ 69). The June
2015 IEP also provided a positive behavioral support plan to
address inappropriate language and in-class sleeping.
(See id. at ¶ 73). Student, however, was
ineligible for Extended School Year (“ESY”)
following the 2014-2015 school year because Student
“continue[d] to make progress on his IEP goals.
[Student] does not demonstrate difficulties recouping
previously learned information and/or skills upon return of
an extended interruption of curricular instruction. In
addition, he also demonstrates the ability to maintain
curricular instruction and content.” (S-15, 32-33).
August 26, 2015, the District revised Student's IEP to
change Student's school to the catchment area school.
(See id. at ¶ 74). Further, Student was placed
in a supplemental emotional support classroom for
mathematics, English language arts, science, and social
studies. (See id.).
on the foregoing, Parents filed a due process complaint on or
about July 14, 2015 requesting a hearing pursuant to the
IDEA. (See Doc. 7-2, generally).
Specifically, Parents alleged that the District denied
Student a FAPE as a result of the District's failure to
provide adequate behavioral and academic support and
Student's failure to make meaningful educational
progress. (See id. at ¶ 6). As relief, Parents
requested that the District develop an appropriate
educational placement for Student, as well as an award of
compensatory education for the 2013-2014 and 2014-2015 school
years, i.e., Student's sixth and seventh grade
years. (See id).
Hearing Officer conducted evidentiary hearings on October 28,
2015 and November 2, 2015. (See N.T.,
generally). By decision dated December 14, 2015, the
Hearing Officer granted in part the relief requested by the
family. (See HOD, generally). More
particularly, the Hearing Officer awarded compensatory
education to Student in the amount of six (6) hours per day
for every school day attended by Student from the first day
of school in the 2013-2014 school year until and including
February 28, 2015 and in the amount of two (2) hours per day
for every school day attended by Student from March 1, 2015
until the last day of the 2014-2015 school year. (See
id. at 21-22). The Hearing Officer, however, denied all
other requests for relief, including Parents' claim for
ESY for the summer of 2015. (See id. at 19).
finding in favor of Student and Parents, the Hearing Officer
[T]he District failed to provide Student with educational
services that were reasonably calculated to provide Student
with an opportunity for meaningful educational gain, based
upon the District's state of knowledge at the beginning
of Student's sixth grade and throughout Student's
sixth and seventh grades. The District failed to identify
Student with a specific learning disability in reading,
writing and mathematics, despite its knowledge of
Student's severely below-grade academic performance in
previous testing. It failed to provide the intensity of
supports that would have been reasonably calculated to
address these needs appropriately. It failed to address
appropriately Student's serious organization and