United States District Court, W.D. Pennsylvania
D.B., by and through his parents, M.B. and A.B., Plaintiffs
FAIRVIEW SCHOOL DISTRICT, Defendant.
MEMORANDUM OPINION 
Paradise Baxter United States Magistrate Judge
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.
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.
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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 ...