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D.B. v. Fairview School District

United States District Court, W.D. Pennsylvania

October 31, 2017

D.B., by and through his parents, M.B. and A.B., Plaintiffs


          Susan Paradise Baxter United States Magistrate Judge

         I. Introduction

         D.B. is a student attending school in the Fairview School District (“School District” or “Fairview”) in Fairview, Pennsylvania. On his behalf, D.B.'s parents filed a due process complaint during the third quarter of D.B.'s first grade year, raising concerns that Fairview was not affording D.B. the free appropriate public education (FAPE) he is entitled to under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and that Fairview had failed to meet its Child Find obligations under 20 U.S.C. § 1412(a)(3) and 22 Pa. Code § 14.121-14.125. Plaintiff contends that the District failed to identify D.B. as disabled upon his entry into the District and waited too long to implement an appropriate individualized education plan (“IEP”) for him and, accordingly, failed to provide him with a meaningful educational benefit during his kindergarten and first grade years. As a result, Plaintiff asserts that he is entitled to an award of compensatory education, an independent educational evaluation and reasonable attorneys' fees and costs.

         After three days of testimony and the submission of exhibits including D.B.'s extensive educational records, the Pennsylvania Special Education Hearing Officer determined that upon entry into the School District, an evaluation team appropriately found D.B. not to be currently disabled, and accounted for and implemented a plan to resolve certain identified behavioral and anxiety issues. The Hearing Officer further concluded that the District appropriately implemented an IEP in December 2012, when screening revealed the need for specialized speech and language instruction to facilitate behavioral support. However, the District failed to conduct a reevaluation of D.B. or revisit his 2013 IEP to implement additional measures necessitated by a sudden return of disruptive behaviors in the second half of first grade, and this failure resulted in the deprivation of a meaningful education benefit for much of the remaining school year. Despite this finding, the Hearing Officer denied an award of compensatory education because it was determined that the District acted timely in the implementation of remedial measures and, as such, did not violate the IDEA.

         The parties have filed cross-motions for summary judgment, with Plaintiff seeking reversal of the Hearing Officer's decision. Plaintiff contends that his Child Find claim was not considered, and that the Hearing Officer made errors of fact and law in reaching the conclusion that D.B. was not denied a FAPE during the entirety of his kindergarten and first grade years, and further erred in concluding that D.B. was not entitled to an award of compensatory education. ECF No. 41. Defendant counters that the Hearing Officer's findings of fact and conclusions of law rest soundly upon the entirety of the testimony and evidence presented in the hearing of this matter and should not be disturbed upon review by this Court. ECF No. 44.

         Plaintiff's principal brief serves as his opposition to the Defendant's motion, and is accompanied by his Concise Statement of Material Facts/Proposed Findings of Fact and Conclusions of Law, the extensive record of testimony and certain of the exhibits presented in the hearing below. ECF Nos. 42, 43. Defendant has filed its responses in opposition [ECF Nos. 45, 46, 47], and the motions are ripe for review. For the reasons more fully set forth below, the Court will grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment.

         II. Background

         D.B. is now an eleven-year-old boy who began receiving speech support services as a toddler in a birth to age three early intervention program. In February 2012, when D.B. was approximately five years old, a preschool early intervention individualized education program was initiated after referral by his mother to address concerns about D.B.'s activity level and an inability to maintain attention. ECF No.43-1, p. 1171. The Northwest Tri-County Intermediate Unit conducted comprehensive screening, including a review of D.B.'s past medical and developmental history, observation by a service coordinator, parental and preschool teacher reviews, and a battery of cognitive, developmental and behavioral testing. The screening revealed that while D.B. satisfactorily performed on cognitive, physical, and emotional testing, he was assessed by his preschool teacher as having significant attention and aggressive behavioral issues, and was rated by her as borderline in areas of emotionally reactive behavior. ECF No. 43-1, pp. 1177-78. Accordingly, the evaluator concluded that D.B. suffered a greater than 25% delay in one or more areas of development. However, the evaluation report indicated that these delays did not impede D.B.'s learning or the learning of other children. ECF No. 43-1, pp. 1179, 1188. As a result of his identification as a child with developmental delays, D.B. was provided services twice per month by the Intermediate Unit to improve areas of concern. ECF No. 43-1, p. 1199. In addition, because of “idiosyncratic behaviors, ” his parents privately consulted with a child psychologist to determine if D.B. suffered Attention-Deficit/Hyperactivity Disorder (ADHD), autism or Asperger's syndrome. ECF No. 43-1, pp. 88-89. This screening was completed in February 2012, and was negative as to each of these conditions.

         Upon learning of D.B.'s intent to enroll in kindergarten, the Fairview School District began an evaluation to determine whether continuation of services was necessary. The school psychologist observed D.B. in his preschool setting over the summer of 2012, and a reevaluation team met in late August 2012 to review his early intervention testing and developmental progress. ECF No. 43-1, pp. 1195. The team included the Fairview Director of Special Education Services, the elementary school psychologist, a special education teacher, and D.B.'s mother. Based upon its review, the District concluded that D.B. was not disabled, although it acknowledged that he presented with certain behavioral and focus issues. Id. Team members believed that the structured, repetitive and consistent methodology of his assigned kindergarten class teacher could resolve D.B.'s issues, and the team opted to gauge D.B.'s transition into the District before identifying him as emotionally or otherwise disabled. ECF No. 43-1, pp. 337-341, 524, 525.

         Shortly after the start of kindergarten, D.B.'s teacher became concerned about his behavior. D.B. exhibited an extreme response to frustration, expressed fear of the classroom toilet, had difficulty staying on task and expressing himself, and would “meltdown” by crying loudly. ECF 43-1, pp. 529-530. His classroom teacher contacted the school psychologist and school support team to request assistance. By September 20, 2012, it was determined that a speech and language assessment was necessary to address auditory processing and language concerns. ECF No. 43-1, pp. 343-345, 410. Based upon this initial screening, the school requested Permission to Evaluate D.B., and scheduled the Fairview School District behavior specialist to observe D.B. in the classroom for recommendations to address his behavior. Behavioral interventions including a comprehensive positive behavior support plan were implemented, and the District behavior specialist began working with D.B. on a weekly basis in October 2012. ECF No. 43-1, pp. 530-536. Assessments for speech and language, occupational therapy, and a Functional Behavioral Assessment were completed in October and November, culminating in a timely IEP in December 2012. In the intervening months, D.B. received ongoing counseling and support by the school psychologist and the District behavioral specialist. ECF No. 43-1, pp. 351-358.

         The IEP resulted in a diagnosis of a speech and language impairment, which was addressed with twice-weekly small group speech and language instruction to develop pragmatic language and social skills. In addition, D.B. received monthly occupational therapy, weekly in-school behavioral support intervention and counseling provided by the District behavior specialist, ongoing counseling and assistance from the school psychologist, and outside counseling with a community provider. ECF No. 43-1, pp. 358-360, 431-432, 1243-1255. With these supports in place, D.B. showed marked improvement, with “meltdowns” ceasing by January 2013, and no demonstrable need for in-school behavioral intervention with the District's behavior specialist by May 2013. ECF No. 43-1, pp. 640-643.

         D.B.'s successful behavior and social development continued into the first half of first grade. At the time of D.B.'s IEP renewal in December 2013, it was noted that while he continued to have intermittent episodes of crying, intervention strategies employed by his teacher were largely successful, and D.B. achieved satisfactory academic progress, with advanced levels of achievement in some areas. On measures of social skills and work habits, his progress was also evaluated as satisfactory or excellent. ECF No. 43-1, pp. 1264-1287.

         A private evaluation was conducted in late October 2013, resulting in an opinion that D.B. “is a very smart, detail oriented 7-year old boy who has some difficulties with anxiety, obsessiveness and compulsiveness. He meets criteria for generalized anxiety as well as OCD, both of which are unsurprising given the high intellectual function he demonstrates.” ECF No. 43-1, p. 1260. D.B. was found not to suffer hyperactivity or autism, and was determined to be socially appropriate. Id. D.B.'s mother provided the report to the School District in December, but in light of her satisfaction with his progress and the school services in place, she did not request an additional school evaluation to address his anxiety and OCD tendencies. ECF No. 43-1, pp. 97-98.

         Unfortunately, D.B.'s academic and behavioral progress regressed immediately after the winter holiday break, and he experienced increased frustration and extreme crying episodes that were disruptive to other children and impeded his ability to learn. ECF No. 43-1, pp. 74-78, 218-219. Despite this sudden change, in-school District behavioral support was not restored and D.B.'s behavior continued to deteriorate. In March, D.B.'s parents returned to his outside child development provider, and were informed that he suffered ADHD. In the interim, D.B.'s teacher communicated with his parents regarding his behavior and sent home a sheet tracking daily conduct, but did not inform the District special education director of D.B.'s regression. D.B.'s parents contacted the school psychologist on March 6, 2014, to request an evaluation to determine if D.B. was gifted, and on April 4, 2014, his parents filed a special education due process complaint, seeking to determine D.B.'s additional support needs. ECF No. 43-1, p. 699.

         The District special education director first learned of D.B.'s dramatic regression upon receipt of the complaint, by which time he was talking out of turn or acting out approximately 100 times per day, and had experienced failure in most academic and social areas. ECF No. 43-1, p. 650-657. The Director contacted the school psychologist, and requested completion of a revised Functional Behavior Assessment, positive behavior support plan, a full review of speech and language and occupational therapies, and renewed intellectual and academic assessments. ECF No. 43-1, pp. 699-700.

         The results of each assessment were compiled in a Reevaluation Report issued in May 2014, and included D.B.'s recent diagnosis of ADHD, anxiety, OCD, and continuing needs in speech and language. A revised IEP was issued on May 9, 2014, addressing each of these concerns with goals for appropriate classroom/peer interaction and behavior. In addition, the District behavioral specialist resumed weekly counseling sessions with D.B., and his on-going case management was assigned to the school's special education teacher. ECF No. 43-1, pp. 705-709.

         The Special Education Hearing of Plaintiff's due process complaint occurred over three days, commencing September 8, 2014, and ending on November 13, 2014. Based upon the testimony and exhibits presented, the Hearing Officer concluded that the District had afforded D.B. the free appropriate education he is due from his initial entry into kindergarten until February 3, 2014, the date “the District knew or should have known that it needed to request permission to re-evaluate the student.” ECF No. 43-1, p. 1441. The Hearing Officer determined that as ...

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