Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montgomery County Intermediate Unit No. 23 v. C.M.

United States District Court, E.D. Pennsylvania

October 12, 2017

C.M., et al.


          BARTLE, J.

         Plaintiff 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.


         Under 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).

         If a 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).

         In 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.

         The 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).


         We first turn to the facts as set forth in the administrative record.[1] 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.

         C.M.'s 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.

         The 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.

         On the 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 assessments.

         On 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.

         The 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.

         On 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.

         On 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.

         On 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.

         On May 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.