United States District Court, E.D. Pennsylvania
MONTGOMERY COUNTY INTERMEDIATE UNIT NO. 23
C.M., et al.
Montgomery County Intermediate Unit No. 23
(“MCIU”) brings this action for review of a
decision by a special education hearing officer awarding
compensatory education to defendants C.M. and his parents
J.M. and C.M. under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§
1400 et seq. Before the court is the motion of MCIU for
judgment on the administrative record.
the IDEA, states receiving federal educational funds must
provide, among other things, a free appropriate public
education (“FAPE”) to disabled children between
the ages of three and twenty-one. See 20 U.S.C.
§ 1412(a)(1)(A). The statute further obligates states,
acting through local educational agencies, to identify,
locate, and evaluate children who are in need of special
education and related services. Id. §
1412(a)(3)(A). Once a child is identified, the agency must
develop an individualized education program
(“IEP”) for the child. Id. §
1412(a)(4); § 1414(d). The IEP is a comprehensive plan
prepared by a team, including the child's teachers and
parents, in compliance with a detailed set of procedures.
Id. § 1414(d). Once the IEP team has decided on
an IEP for a child, the agency shall issue a written notice
of recommended educational placement (“NOREP”),
which then must be approved or rejected by the child's
parents. See id. § 1415(b)(3) & (c).
disagreement arises regarding a child's IEP or other
rights under the IDEA, a party may seek an administrative
“due process hearing” before a state or local
educational agency. Id. § 1415(f). In
Pennsylvania, the Department of Education Office of Dispute
Resolution is responsible for handling such complaints.
See Mary T. v. Sch. Dist. of Philadelphia, 575 F.3d
235, 240 n.1 (3d Cir. 2009). At the conclusion of the
administrative process, the losing party may seek relief in
state or federal court. 20 U.S.C. § 1415(i)(2)(A). The
reviewing court shall receive the administrative record and
shall also hear additional evidence at the request of a
party. Id. § 1415(i)(2)(C).
cases arising under the IDEA, we apply a “modified de
novo” standard of review, under which we give
“due weight” and deference to the factual
findings of the hearing officer in the administrative
proceedings. P.P. ex rel. Michael P. v. W. Chester Area
Sch. Dist., 585 F.3d 727, 734 (3d Cir. 2009). While
factual findings from the administrative proceedings are to
be considered prima facie correct, we may depart from those
findings if we fully explain why by citing to the
administrative record. S.H. v. State-Operated Sch. Dist.
of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). We
must accept the hearing officer's credibility
determinations “unless the non-testimonial, extrinsic
evidence in the record would justify a contrary conclusion or
unless the record read in its entirety would compel a
contrary conclusion.” Id. (quoting
Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520,
529 (3d Cir. 1995)). The district court may not
“substitute its own notions of educational policy for
those of local school authorities.” Id. Our
review of legal standards and conclusions of law is plenary.
P.P. ex rel. Michael P., 585 F.3d at 735.
burden of proof in an administrative hearing under IDEA is
placed upon the party seeking relief, which in this case was
C.M. and his parents. Schaffer v. Weast, 546 U.S.
49, 62 (2005); L.E. v. Ramsey Bd. of Educ., 435 F.3d
384, 391 (3d Cir. 2006). However, as the party challenging
the administrative decision, MCIU bears the burden of
persuasion before this court. Ridley Sch. Dist. v.
M.R., 680 F.3d 260, 270 (3d Cir. 2012).
first turn to the facts as set forth in the administrative
record. MCIU provides early intervention services
for children with disabilities residing in Montgomery County
from age three through the beginning of kindergarten pursuant
to a contract with the Commonwealth of Pennsylvania.
See 11 P.S. § 875-104. In October 2014,
C.M.'s parents approached MCIU seeking an evaluation of
C.M., who was then three years old, for services under the
IDEA. At that time, C.M.'s parents had concerns that C.M.
was having difficulty sitting still, socializing,
communicating with peers, and transitioning between
activities, as well as carrying out fine motor skills.
C.M.'s parents also reported that C.M. had been asked to
leave three mainstream preschools due to behavioral issues.
C.M.'s pediatrician previously had evaluated C.M. for
autism in September 2014 but concluded that the diagnosis
“could go either way 50%-50%.” At the time, C.M.
attended a regular education preschool, Little Angels.
initial evaluation included input from C.M.'s parents, as
well as an occupational therapist, psychologist, speech
therapist, behavioral consultant, and C.M.'s teacher. As
part of the initial evaluation, C.M.'s preschool teacher
provided written information. She wrote that C.M. engaged in
several behaviors associated with autism while at school,
including fixation on certain topics, parroting out of
context speech heard in movies or television, refusal of
non-preferred activities including running out of the
classroom, and limited verbal interaction with other
children. The teacher also communicated that C.M. had average
cognitive ability and a “vast” vocabulary,
although C.M. had difficulty using that vocabulary to
communicate with his peers. A psychologist employed by MCIU
observed C.M. while at preschool. She similarly observed that
C.M. had trouble following classroom routine and interacting
with peers. Nonetheless C.M. seemed interested in his
classmates and responded well to direction.
initial evaluation included several standard assessment tools
including: the Conners Early Childhood Rating Scale
(“Conners”), an instrument designed to assess
behavioral, emotional, social, and developmental issues in
young children; and the Autism Spectrum Rating Scale
(“ASRS”), which is used to quantify observations
of a child that are associated with autism. The initial
evaluation also included: the Battelle Developmental
Inventory (“Battelle”), which is used to assess
adaptive behavior, social and communication skills, and
cognitive ability; the Developmental Assessment of Young
Children, Second Edition, which identifies potential delays
in gross motor skills and adaptive behavior; the Peabody
Developmental Motor Scales, Second Edition, which is used to
assess fine motor skills' the Preschool Language
Scales-5; and a Functional Behavioral Assessment.
Battelle, C.M.'s scores demonstrated a mild delay in the
area of social ability and a significant developmental delay
in cognitive ability. On the Conners, C.M.'s parents
reported concerns with impulsivity, attention/hyperactivity,
and adaptive skills, but C.M.'s scores were otherwise
average. On the ASRS, C.M.'s mother expressed concerns
about socialization but overall rated C.M. as “average,
” which was defined as not showing great concern that
C.M. was autistic. Although the ASRS and Conners typically
include both parent and teacher ratings, the MCIU
psychologist only asked C.M.'s parents for these
December 8, 2014, MCIU issued its initial Evaluation Report
for C.M. In its report, MCIU found C.M. eligible for special
education services under the disability category of emotional
disturbance. On December 17, 2014, MCIU issued an IEP, which
laid out the services C.M. would receive and his educational
goals. Under the IEP, C.M. would be given six hours weekly of
personal care assistance, despite the fact that the MCIU
behavioral support consultant had recommended ten hours per
week. C.M. would also have two hours weekly of behavioral
support and 45 minutes weekly of occupational therapy. These
services were to be provided at Little Angels and were
scheduled to start on January 5, 2015. C.M. did not receive
any speech therapy or physical therapy.
services initially provided to C.M. were delayed. C.M.
received no personal care assistance from January 5, 2015
through January 27, 2015. Between January 28, 2015 and March
30, 2015, C.M. was given a total of only 10.5 hours of
personal care assistance. The record shows that these delays
were due at least in part to personnel changes.
February 26, 2015, the IEP team reconvened to discuss
difficulties C.M. was experiencing at Little Angels. After
that meeting, MCIU increased C.M.'s behavioral support
from two to three hours weekly and occupational therapy from
45 minutes to one hour per week. The amount of personal care
assistance did not change.
February 27, 2015, C.M. was evaluated at the request of
C.M.'s parents by a psychologist with the Central
Montgomery MH/MR Center Preschool Intervention Program
(“PIP”), a program not associated with MCIU.
C.M.'s parents reported that C.M. was experiencing a
great deal of difficulty in his current preschool placement
and that they were seeking treatment for his behavioral
problems. The PIP psychologist concluded that “some of
[C.M.'s] behaviors would be consistent with Autism
Spectrum Disorder but this is not clear based on this
assessment.” He also found that C.M. had symptoms
consistent with moderate to severe Attention Deficit
Hyperactivity Disorder (“ADHD”). The psychologist
recommended that C.M. be placed in a partial hospitalization
program offered by PIP.
April 20, 2015, C.M.'s parents placed C.M. in the PIP
partial hospitalization program on an outpatient basis for
three hours a day, five days per week. During this time, C.M.
continued to receive services from MCIU under his IEP at his
home in the morning and attended the PIP program in the
afternoon. However, MCIU services were again provided on a
delayed basis and by April 2015, MCIU acknowledged that it
owed C.M. 66 hours of personal care assistance. MCIU also
owed behavioral support services to C.M.
1, 2015, while C.M. was still in the PIP partial
hospitalization program, MCIU issued a reevaluation report
for C.M. This report was the culmination of reevaluations in
the areas of physical and speech/language development
requested by C.M.'s parents in March 2015. The report
noted that C.M.'s parents continued to be concerned with
his ability to interact with peers. The report, with input
from C.M.'s regular education preschool teacher, stated
that C.M. continued to have difficulty interacting with other
children and answering questions. As a result of the
reevaluation, MCIU issued a revised IEP on May 20, 2015. This
IEP added 30 minutes of physical therapy per week, 30 minutes
of individual speech and ...