United States District Court, E.D. Pennsylvania
I. QUIÑONES ALEJANDRO, U.S.D.C. J.
before this Court are cross-motions for summary judgment
and/or judgment on the supplemented administrative
record filed by Plaintiff Methacton School District
(“School District”), [ECF 26], and by Defendants
D.W. and R.W. (“Parents”), individually and on
behalf of their minor child G.W. (“Student”),
[ECF 27]. These motions address the School
District's appeal of the decision issued by a
Pennsylvania Special Education Hearing Officer
(“Hearing Officer”) in the underlying due process
litigation brought by Parents pursuant to the Individuals
with Disabilities Education Improvement Act
(“IDEIA”),  20 U.S.C. § 1400 et
seq.Specifically, the issues presented are
whether the Hearing Officer erred in finding that the School
District did not offer Student a free and appropriate public
education (“FAPE”), that Student's placement
at Delaware Valley Friends School (“DVFS”) was
appropriate, and that Parents are entitled to the requested
private tuition reimbursement. These issues have been fully
briefed and are ripe for disposition. For the reasons stated
herein, Parents' motion is granted and the School
District's motion is denied. Consequently, the decision
of the Hearing Officer is affirmed.
the first grade year in 2006-2007, Student was identified by
the School District as a student with learning disabilities
in reading and written expression, and a speech/language
impairment. (Administrative Record (“A.R.”) Ex.
2, (Hearing Officer's March 2, 2016 Decision
(“Decision”), ¶ 1). Student was also
identified as having impairments related to attention
deficient hyperactivity disorder and anxiety. (Id.)
In three separate reevaluation reports issued in 2012 and
2013, the School District continued to recognize
Student's learning disabilities in reading and written
attended the School District's schools through seventh
grade. [ECF 26-1 at 2; ECF 27-1 at 2]. At the commencement of
the 2013-2014 eighth grade school year, Parents enrolled
Student at DVFS. [ECF 26-1 at 2; ECF 27-1 at 3]. Parents
sought reimbursement from the School District for
Student's private school tuition and, when the School
District denied reimbursement, Parents filed a due process
complaint. [ECF 26-1 at 2; ECF 27-1 at 3]. On November 3,
2013, the then-assigned hearing officer found in favor of
Parents, and ordered the School District to reimburse Parents
for the private school tuition costs. (Decision ¶ 2);
[ECF 26-1 at 2; ECF 27-1 at 3]. Thereafter, the School
District and Parents settled their dispute, with the School
District agreeing, inter alia, to provide for
Student's tuition at a private placement (DVFS) for the
2013-2014 and 2014-2015 school years; i.e.,
Student's eighth and ninth grade years. (Decision
¶¶ 3-5) (citing P- 35 (the “2013
Agreement”)). Under the terms of the 2013 Agreement,
Parents agreed that Student would undergo a School District
reevaluation process in the spring of 2015, with the
Parents' permission and cooperation. (Id. ¶
March 26, 2015, Parents paid a tuition enrollment fee of $3,
450.00 for Student to attend DVFS during the tenth grade
2015-2016 school year. (P-40). The School District claims it
was unaware of Parents' payment, and characterized the
payment as a unilateral decision by Parents to enroll Student
in DVFS for the 2015-2016 school year. [ECF 26-1 at 3].
Parents characterized the payment as one made to ensure
Student would have a place at DVFS in the event the School
District failed to offer him an appropriate education. [ECF
31 at 3].
spring of 2015, in accordance with the 2013 Agreement, the
School District commenced the reevaluation process of Student
which culminated with an April 13, 2015 reevaluation report
issued by the School District's school psychologist,
Rachel Hawthorne (“Dr. Hawthorne”). (Decision
¶¶ 7-8) (citing S-1). Following the issuance of
this report in April 2015, Student's individualized
education program (“IEP”) team, which included
Student, Student's father, a representative for the
School District, Dr. Hawthorne, special education and regular
education teachers, a speech therapist, and counsel for the
parties, met to design an IEP for Student's 2015-2016
school year. (Id. ¶ 9); (S-4 at 1). The April
2015 IEP contained ten goals in the following areas; to
wit: two in written expression, two in
organization/study skills, two in speech and language, three
in reading, and one in math. (Decision ¶ 10); (P-37 at
21-35). These goals did not contain any baseline information;
instead the goals indicated that the baselines were
identified in the present levels of educational performance
section of the IEP, which essentially were the reports of
standardized achievement testing from the evaluation process
written in terms of the School District's curriculum,
assignments, or instructional results and that further
baseline data would be gathered during the summer of 2015
programming at the School District. (Decision ¶¶
11-12); (P-37 at 7-12, 21-35). The April 2015 IEP provided a
number of program modifications and specially designed
instruction for Student, and indicated that Student would be
in a regular education program for 67% of the school day.
(Decision ¶¶ 13-14).
8, 2015, the School District issued a notice of
recommended education placement (“NOREP”),
which offered Parents the terms of the April 2015 IEP as
Student's placement for the 2015-2016 year, recommended
that Student attend a high school within the School District
during that school year, and denied Parents' request for
tuition reimbursement for the upcoming 2015-2016 school year.
(Id. ¶ 15); (P-38 at 1-4). Parents rejected the
May 2015 NOREP. (Decision ¶ 15); (P-38 at 4).
4, 2015, the School District revised the April 2015
reevaluation report to include information obtained from a
subsequent reevaluation of Student's speech, language,
and occupational therapy needs. (Decision ¶ 16); (S-2 at
1-20). On June 8, 2015, the IEP team met to
discuss the June 2015 reevaluation report and to revise
Student's IEP. (Decision ¶ 16); (S-4 at 9-11).
Thereafter, the School District issued a new NOREP which
called for Student to be placed at the School District's
high school for the 2015-2016 school year and, again, denied
the request for tuition reimbursement. (S-3 at 17-20).
2015, Student underwent a private evaluation conducted by Mr.
Arthur F. Moffa, II. (Decision ¶ 17); (P-43 at 1-8). On
July 26, 2015, Mr. Moffa issued an independent educational
evaluation (“IEE”), which included a reading
assessment, a behavior assessment, and Mr. Moffa's review
of the record and interviews with Student and Parents, (P-43
at 1-8), a copy of which Parents provided to the School
District the following day. [ECF 26-1 at 4-5]. On July 28,
2015, Parents submitted their notice of intent to place
Student at DVFS for the 2015-2016 school year. [ECF 26-1 at
5; ECF 31 at 14].
early August 2015, the School District again revised
Student's IEP in light of Mr. Moffa's IEE. (Decision
¶ 18); (S-4 at 12-65). The goals of the August 2015 IEP
were the same as those established in the April 2015 IEP,
with the exception that some of the goals contained
intermittent baseline information augmented by assessments of
Student's evaluations or grades earned at DVFS. (Decision
¶ 19); (S-4 at 36-50). The August 2015 IEP also
indicated that new baselines would be developed within two
weeks of the implementation of the IEP, and that for certain
goals that had not been assessed by DVFS, the School District
would conduct probes to measure Student's current level
of mastery, should Student attend a School District school.
(Decision ¶ 20); (S-4 at 36-50). On August 20, 2015, the
School District emailed the August 2015 IEP and a NOREP dated
August 19, 2015, to Parents. (Decision ¶ 21); (S-5 at
1-5). The August 19, 2015 NOREP recommended that Student
attend the School District's high school for 2015-2016,
and denied Parents' requests for tuition reimbursement
for the 2015-2016, 2016-2017, and 2017-2018 school years.
(S-5 at 3). On August 21, 2015, Parents filed a special
education due process complaint which led to the underlying
proceedings. (Decision ¶ 22); (S-6 at
2-15). Student remains in private placement at
DVFS. (Decision ¶ 23).
October 23, 2015, an evidentiary due process hearing was
convened before Hearing Officer Jake McElligott, held over
three separate sessions, (id. at 1),  and concluded on
January 11, 2016, with the submission of written closing
arguments. (Id.); (A.R. Ex. 3-4). Essentially, the
issues at the due process hearing were whether Parents were
entitled to reimbursement for: (1) the cost of Mr.
Moffa's IEE, and (2) Student's private tuition at
DVFS for the 2015-2016 school year. (Decision at 3).
Parents' argument was centered on their contention that
the School District's proposed program and placement was
not designed to provide Student a FAPE. (Id. at 2).
March 2, 2016, the Hearing Officer issued a decision applying
the Burlington-Carter analysis, discussed
infra, and found that the proposed August 20, 2015
IEP for the 2015-2016 school year was not reasonably
calculated to yield meaningful education benefits to Student;
that the program which was provided to Student by the private
placement was appropriate, that equity did not impact the
determination regarding tuition reimbursement; and,
therefore, Parents were entitled only to tuition
25, 2016, the School District timely filed a complaint in
federal court appealing the administrative decision and
arguing that the Hearing Officer erred by: (1) concluding
that the School District did not offer Student a FAPE; (2)
concluding that Student's placement at DVFS was
appropriate; (3) failing to find that the balance of equity
favored the School District.
the IDEIA, institutions that receive federal education
funding are required to provide all children with
disabilities a “free and appropriate public
education” or “FAPE.” 20 U.S.C. §
1400(d)(1)(A); § 1412(a)(1)(A); Endrew F. ex rel.
Joseph F. v. Douglas Sch. Dist., 137 S.Ct. 988, 993
(2017); D.K. v. Abington Sch. Dist., 696 F.3d 233,
244 (3d Cir. 2012). A free appropriate public education
“includes both ‘special education' and
‘related services.'” Endrew F., 137
S.Ct. at 994 (citing 20 U.S.C. § 1401(26), (29)). Once a
disabled child is identified, the School District must
develop an IEP for the child that is “reasonably
calculated to enable [the student] to make progress
appropriate in light of the child's circumstances.”
Endrew, 137 S.Ct. at 1001; see also 20
U.S.C. § 1414(d) (defining individualized education
program). “The adequacy of a given IEP turns
on the unique circumstances of the child for who it was
created.” Id. It must “set out a plan
for pursuing academic and functional advancement.”
Id. at 999 (citing 20 U.S.C. §
1414(d)(1)(A)(i)(I)-(IV)). Although the state is not required
to “maximize the potential of every handicapped child,
” it must provide an education that confers a
“meaningful benefit” to each child. Ridley
School Dist. v. M.R. 680 F.3d 260, 268 (3d Cir. 2012).
The benefit must be substantial, not minimal. Endrew
F., 137 S.Ct. at 1001.
core of the IDEIA is the collaborative process between
parents and schools officials to fashion the IEP. Endrew
F., 137 S.Ct. at 994 (citing 20 U.S.C. § 1414).
This collaboration among the parents and educators ensures
careful consideration of the child's individual
circumstances. Id. “It is through the IEP that
[t]he ‘free appropriate public education' required
by the Act is tailored to the unique needs of a particular
child.” Id. at 1000 (internal quotations
omitted). The IDEIA “requires that every IEP include
‘a statement of the child's present levels of
academic achievement and functional performance, '
describe ‘how the child's disability affects the
child's involvement and progress in the general education
curriculum, ' and set out ‘measurable annual goals,
including academic and functional goals, ' along with a
‘description of how the child's progress toward
meeting' those goals will be gauged.” Id.
at 994 (citing 20 U.S.C. § 1414(d)(1)(A). “An IEP
is not a form document. It is constructed only after careful
consideration of the child's present levels of
achievement, disability, and potential for growth.”
Id. at 999.
school district fails to offer a FAPE, a child may be
enrolled in an appropriate private school and the school
district may be obligated to reimburse parents for the
tuition expenses. 20 U.S.C. § 1412(a)(10)(C)(ii).
Otherwise reimbursable tuition expenses, however, may be
reduced for equitable reasons, including, the parents'
failure to give written notice to the school district that
they were rejecting the school district's proposed
placement at least ten business days prior to the
“removal of the child from the public school, ”
or “upon a judicial finding of unreasonableness with
respect to actions taken by the parents.” Id.
§ 1412(a)(10)(C)(iii)(I)(bb), (iii)(III); see also
C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 67 (3d
Cir. 2010) (“[E]ven where private placement is
appropriate and reimbursement is otherwise due, the IDEA
permits the equitable reduction or elimination of tuition
reimbursement under certain circumstances.”) (relying
on 20 U.S.C. § 1412(a)(10)(C)(iii).
the Supreme Court's precedents in Sch. Comm. of Town
of Burlington, Mass. v. Dep't of Educ. of Mass., 471
U.S. 359 (1985) and Florence Cty. Sch. Dist. Four v.
Carter By & Through Carter, 510 U.S. 7 (1993), a
“a three-step analysis should be applied to determine
whether to order tuition reimbursement.” Sinan L.
v. Sch. Dist. of Philadelphia, 2007 WL 1933021, at *5
(E.D. Pa. July 2, 2007). Under the so-called
“Burlington-Carter test, ” a district
court must first determine if the school district's
proposed IEP constitutes an offer of a “free,
appropriate public education.” Id. (citing
Carter, 510 U.S. at 16). If the school district does
not offer a FAPE, the court must next determine
“whether the parents' unilateral placement of the
child at a private school was ‘proper.'”
Id. (citing Carter, 510 U.S. at 16).
Finally, the court should consider whether “equitable
considerations are relevant in fashioning relief.”
Id. (citing Burlington, 471 U.S. at 374).
parents believe that an IEP fails to provide their child with
a FAPE, they may seek an administrative “impartial due
process hearing.” 20 U.S.C. § 1415(f). “Any
party aggrieved by the findings and decision” made in
the administrative proceeding “shall have the right to
bring a civil action” in state or federal court. 20
U.S.C. § 1415(i)(2)(A). The district court shall review
the record of the administrative proceedings, shall hear
additional relevant, non-cumulative and useful evidence at
the request of a party, and, based on a preponderance of the
evidence, grant such relief as it deems appropriate. 20
U.S.C. § 1415(i)(2)(C); Susan N. v. Wilson Sch.
Dist., 70 F.3d 751, 760 (3d Cir. 1995). The district
court must give “due weight” to the hearing
officer's decision. Bd. of Educ. v. Rowley, 458
U.S. 176, 205-06 (1982).
concept of “due weight” requires a district court
to conduct a “modified de novo review”
of the administrative proceedings. Shore Reg. High Sch.
Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004);
S.H. v. State-Operated Sch. Dist. of the City of
Newark, 336 F.3d 260, 270 (3d Cir. 2003). Thus, courts
are not free to “substitute their own notions of sound
education policy for those of the educational agencies they
review.” Susan N. v. Wilson Sch. Dist., 70
F.3d 751, 757 (3d Cir. 1995) (citing Rowley, 458
U.S. at 205-06). A district court reviewing an administrative
fact-finder's conclusions must defer to such factual
findings unless the court identifies contrary,
non-testimonial evidence in the record, or explains why the
record, read in its entirety, compels a different conclusion.
S.H., 336 F.3d at 270. The district court's
review of a hearing officer's application of legal
standards and conclusions of law, however, requires no
deference to the administrative hearing officer's legal
determinations; rather, the legal determinations are subject
to plenary review. Id. at 271; Warren G. v.
Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83 (3d Cir.
party challenging the administrative decision bears the
burden of persuasion before the district court as to each
claim challenged. M.R., 680 F.3d at 270 (citations
omitted). As the Supreme Court noted “[t]he burdens of
pleading and proof with regard to most facts have been and
should be assigned to the [party] who . . . seeks to change
the present state of affairs.” Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 56 (2005) (quoting 2
McCormick on Evidence § 337 at 412 (7th
ed.)). Under the IDEIA, it is the party “aggrieved by
the findings and decision” of the hearing officer that
seeks to change the present state of affairs. See 20
U.S.C. § 1415(i)(2)(A). “Absent some reason to
believe that Congress intended otherwise, ” the burden
of persuasion falls where it usually does, on the party
seeking relief. Schaffer, 546 U.S. at 57-58.
issues before this Court are whether the Hearing Officer
erred by concluding that: (1) the School District did not
offer Student a FAPE; (2) Student's placement at DVFS was
appropriate; and (3) that equity had no bearing on the
decision rendered. ...