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Karrissa G. v. Pocono Mountain School District

United States District Court, M.D. Pennsylvania

December 11, 2017

KARRISSA G., Plaintiff,
v.
POCONO MOUNTAIN SCHOOL DISTRICT, Defendant.

          MEMORANDUM

          A. Richard Caputo, United States District Judge

         Presently before this Court are cross-motions for judgment on the administrative record filed by Plaintiff Karrissa G. and Defendant Pocono Mountain School District. Because the evaluation provided to Plaintiff was timely and appropriate, and the accommodations afforded to Plaintiff provided a free appropriate public education, Defendant's Motion for Judgment on the Administrative Record will be granted.

         I. Background

         A. Factual History

         Following her parents' relocation[1] Plaintiff Karrissa G, a minor student, enrolled in the Pocono Mountain School District (“the District”) on April 29, 2013. (NT 62-63; S-47.)[2] Prior to arriving at the District, Plaintiff was enrolled in public schools in New York.[3] (S-1, 2.) She entered the District as a seventh-grade student without any reported health problems, developmental or behavioral difficulties, or diagnoses of disability. (S-2, 3, 15; NT 351) Notably, this meant that Plaintiff entered the District without identification as an eligible student under the Individuals with Disabilities Education Act (“IDEA”), or Section 504 of the Rehabilitation Act of 1973 (“Section 504”).

         Plaintiff did not regularly attend school during the 2012-13 school year. In fact, after enrolling in the District on April 29, 2013, school officials noted that she spent “less than two days” in the District before moving back to New York to live with her father. (NT 85; S-6, 15, 40, 47.) Consistent with Plaintiff's apparent relocation to New York, but citing Plaintiff's anxiety, Plaintiff's mother attempted to withdraw Plaintiff from the District on June 4, 2013. (S-2, 15.) On July 17, 2013 the District formally denied the request to withdraw Plaintiff from school because Plaintiff's mother failed to note-as required-where Plaintiff would be continuing her education. (Id.; P-2). At the same time, the District notified Plaintiff that she had failed to pass the seventh grade due to her poor academic performance. (P-2.)

         Plaintiff returned to the District for the 2013-14 school year expecting to retake seventh grade. However, her mother was informed of an alternative program offered by the District-the Pocono Mountain Academy (“the Academy”)-that would allow Plaintiff to advance to eighth grade. The Academy was designed on a Response-to-Intervention (“RTI”) model and was tailored to promote students who would otherwise be retained in an earlier class year. This program provides students with small classes and specially designed education interventions, including counseling, with the purpose of supporting students emotionally. (NT 111-121, 128-130; S-5.) Further, this program was specifically designed to monitor a student before a decision was made as to whether a formal IDEA evaluation was needed. Plaintiff's parents consented to her placement in the Pocono Mountain Academy. (NT 64-67, 111-113; S-6, 40.)

         As required by the Academy program, Plaintiff met with an assigned counselor on September 24, 2013 to discuss the problems she was encountering at school; namely her absenteeism. (NT100-101; S-33.) During conversations with her counselor Plaintiff stated that she was upset about having to leave her home and friends in New York.[4] (NT 100-101, 118, 131; S-33). Because District personnel believed that Plaintiff's absenteeism was a result of a short-term problem related to Plaintiff's transition to a new home and school, District personnel did not refer Plaintiff for a formal evaluation as would be required if they believed Plaintiff suffered from an emotional disorder. (HO, at 3 ¶17.) Plaintiff's counselor provided her a list of private therapists[5] in case Plaintiff wished to talk to someone outside of the District and constructed a re-entry plan for Plaintiff to gradually start getting back to class. (S-33).

         Plaintiff's attendance improved at the outset of the 2013-14 school year. For example, in September of 2013 Plaintiff was absent 13 days, but only missed 4 days in October of 2013. (S-33; HO, at 4 ¶22.) While Plaintiff's attendance record was “far from good, ” the District believed that Plaintiff was making improvements due to her participation in the Academy program. (NT 104.) Unfortunately, even though Plaintiff's attendance had improved the District reported her truancy. On December 4, 2013, a criminal complaint was filed against Plaintiff's mother related to Plaintiff's unexcused absences from school.

         During the 2013-14 school year, Plaintiff was required to sit for a state-wide standardized test known as the Pennsylvania System of School Assessment exam or PSSA. (S-34.) This exam is “an annual, standards-based assessment used to measure a students attainment of academic standards.” (Id.) Specifically, the assessment tests proficiency in four subjects: math, reading, science, and writing. (Id.) Plaintiff scored “basic, ” a score below proficient, in math, science, and writing. (Id.) But, she did obtain a proficient score in reading. (Id.) While these scores are far from optimal, school officials were surprised Plaintiff did this well considering the amount of school she missed in the 2012-13 and 2013-14 school years. (NT 169-171.)

         On April 29, 2014 Plaintiff's mother requested the school conduct a full educational evaluation of Plaintiff to determine if Plaintiff was in need of special education services. (S-10; NT 200.) At that time, the District knew that an evaluation was requested due to Plaintiff's mother's concern about Plaintiff's anxiety. (NT 200.) Plaintiff was evaluated by a certified school psychologist who ultimately prepared a report regarding Plaintiff's evaluation. (S-15.) This report concluded that Plaintiff was not a child with a disability as defined by the IDEA.[6] (Id.) The report did, however, recommend a Section 504 service agreement in recognition of Plaintiff's mild anxiety. (Id.) Further, the report noted that many of her academic problems stemmed from poor attendance, which was likely fueled by Plaintiff's mild anxiety related to her relocation to Pennsylvania. (Id.) On August 22, 2014, the District provided this report to Plaintiff's parents. (Id.)

         After a satisfactory performance in eighth grade, and the completion of a full evaluation, Plaintiff began ninth grade at the local high school. (S-17.) However, immediately upon starting the 2014-15 school year Plaintiff's mother applied to enroll Plaintiff in a cyber charter school.[7] Ultimately, Plaintiff enrolled in the cyber charter school on September 22, 2014. (S-18; NT 332-33.)

         Plaintiff's stay at the cyber charter school was short lived. She returned to the District on November 21, 2014. (S-18, 22; NT 335-36). Upon Plaintiff's return to the District high school Plaintiff was provided a Section 504 service plan.[8] This plan was designed to mitigate the mild anxiety Plaintiff reported during her psychological evaluation in June of 2014. (S-15, 23). The Section 504 service plan contained two accommodations. First, Plaintiff was allowed to leave class five minutes early to provide her an adequate amount of time to find her next classroom. Second, Plaintiff was allowed to remove herself from class and report to the guidance office anytime she had feelings associated with anxiety. (S-23.) Notably, during her time at the cyber charter school, Plaintiff received no special education services or Section 504 accommodations. (S-22.)

         Plaintiff was routinely absent from class after her return to the District in November of 2014. In fact, between November 21, 2014 and January 23, 2015, Plaintiff was absent twenty-eight times. (NT 365-68; S-28.) Again, Plaintiff's mother believed these absences were caused by Plaintiff's anxiety. (NT 343.) Because Plaintiff's mother believed that going to school with anxiety was “too much for her, ” she withdrew Plaintiff from the District on January 23, 2015. (S-24, 25.) Plaintiff was re-enrolled in a cyber charter school on February 2, 2015. Plaintiff remained enrolled at the cyber charter school for the remainder of the 2014-15 school year. Unfortunately, while enrolled at the charter school Plaintiff frequently missed class and was not advancing academically. (NT 374, 382; S-18, 27.)

         In September of 2015 Plaintiff was re-enrolled in the District high school for tenth grade; the 2015-16 school year. (NT 344.) Upon her return to the District, she was referred to school-based mental health services, and an anxiety support group. Plaintiff regularly participated in the anxiety support group. Additionally, Plaintiff's Section 504 service plan remained in place. But, Plaintiff did not regularly use the accommodation offered. In fact, Plaintiff remarked to her counselor that she “was not having situations with anxiety at school.” (NT 392.) For this reason, while plaintiff checked in with her guidance counselor when required, she only sought out her counselor on one occasion during the 2015-16 school year. (HO, at 7 ¶61.) Overall, Plaintiff's school experience improved in the tenth grade; her grades improved and she was overcoming any anxiety she had suffered earlier.

         B. Procedural History

         Based on the foregoing facts, Plaintiff's mother filed a due process claim against the District on or about July 16, 2015 requesting a hearing pursuant to the IDEA and Section 504. (Doc 9-5.) Specifically, the due process claim alleges that the District failed to “timely and appropriately evaluate and identify [Plaintiff] as a student with special education needs. . . [d]espite [Plaintiff's] significant academic, social, emotional, behavioral, and executive functioning needs. . . .” (Id., at 2). As relief, Plaintiff requested: (1) the development and implementation of an appropriate program and placement; (2) an IEE to determine Plaintiff's complete educational needs, including a psycho-educational evaluation; (3) full days of compensatory education from the beginning of the 2013-14 school year until the District develops an appropriate educational program for Plaintiff; and (4) reasonable attorneys' fees and costs. (Id.)

         The Hearing Officer conducted evidentiary hearings on February 1, 2016 and February 6, 2016. (HO, at 1.) By decision dated March 15, 2016, the Hearing Officer denied the relief requested by Plaintiff. (HO, at 1, 21). The Hearing Officer did so because he concluded that Plaintiff had failed to offer sufficient evidence that the District failed to perform its Child Find obligations under the IDEA or to provide appropriate accommodations under Section 504. (HO, at 21.)

         Following the decision of the Hearing Officer, Plaintiff timely appealed by filing a Complaint (Doc. 1) with this Court on June 13, 2016. The District filed their Answer (Doc. 10) on August 2, 2016. Thereafter, on June 30, 2017, the District filed a Motion for Judgment on the Administrative Record and a supporting brief. (Docs. 18-19.) That day, Plaintiff also filed a Motion for Judgment on the Administrative Record (Doc. 20). Both Motions have been fully briefed and are ripe for disposition.

         II. Legal Standards

         A. Review Under IDEA

         A district court has jurisdiction to review the decision of a state educational agency under the IDEA. See 20 U.S.C. § 1415(i)(2)(A); Ridley Sch. Dist. v. M.R., 680 F.3d 260, 268 (3rd Cir. 2012). The party challenging the administrative decision in the district court bears the burden of persuasion. See Ridley, 680 F.3d at 270; see also Sch. Dist. of Pittsburgh v. C.M.C., No. 16-092, 2016 WL 4273175, at *5 (W.D. Pa. Aug. 12, 2016).

         “When considering a petition for review challenging a state administrative decision under the IDEA, a district court ‘applies a nontraditional standard of review, sometimes referred to as a modified de novo review.'” Ridley, 680 F.3d at 268 (quoting D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010)). A district court must give “due weight” to the finding of the hearing officer under this standard. See id. (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). “Factual findings from the administrative proceedings are to be considered prima facie correct. ‘If a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however, to substitute its own notions of sound educational policy for those of local school authorities.'” Id. (quoting S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003)); see also D.S., 602 F.3d at 564 (“The ‘due weight' obligation prevents district courts from imposing their own view of preferable education methods on the states.”).

         Further, when a hearing officer “has heard live testimony and determined that one witness is more credible than another witness, [the hearing officer's] determination is due special weight.” Ridley, 680 F.3d at 268. A district court “must accept the [hearing officer's] credibility determinations ‘unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.'” Id. (quoting Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199(3d Cir. 2004)) (emphasis in original). A district court, however, is not bound by the hearing officer's conclusions of law, and the application of legal standards at the administrative hearing are subject to de novo review. See In re Educational Assignment of Joseph R., 318 F. App'x 113, 118 (3d Cir. 2009) (“In contrast, the ‘due weight' to be afforded to the administrative proceedings is ‘not implicated with respect to issues of law, such as the proper interpretation of the IDEA and its requirements'; that is, the district court owes no deference to conclusions of law drawn by a state or local educational agency.” (alteration omitted)).

         B. Review ...


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