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Brady P. v. Central York School District

United States District Court, M.D. Pennsylvania

March 16, 2018

BRADY P., by Beth and Kevin P., Plaintiff


          Christopher C. Conner, Chief Judge United States District Court.

         Minor plaintiff Brady P. ("Brady"), by and through his parents Beth and Kevin P. ("Parents"), filed the above-captioned action alleging that defendant Central York School District ("School District") violated the Individuals with Disabilities Education Act ("IDEA"), as amended, 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973 ("Section 504"), as amended, 29 U.S.C. § 794, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Early Intervention Services System Act, 11 Pa. Stat, and Cons. Stat. Ann. § 875-101 et seq., and 22 Pa. Code §§ 14.131 to 14.133. (See Doc. 1). Parents appeal the decision of Pennsylvania Special Education Hearing Officer Cathy A. Skidmore ("Hearing Officer") that (1) Parents knew or should have known there were deficiencies in Brady's education on March 5, 2013; and (2) Parents' June 3, 2016 due process complaint was untimely filed, entitling Brady to relief for only the two year period preceding the due process complaint. Presently before the court are Parents' motion (Doc. 17) for judgment on the administrative record and the School District's motion (Doc. 19) for summary judgment. After thorough review of the record, the court will deny Parents' motion and grant the School District's motion.

         I. Background

         A. Factual Background[1]

         Brady is a fourteen-year-old student who at all times relevant was a resident of the School District. (H.O.D. ¶ 1; N.T. at 45-46). Parents engaged a private psychologist to evaluate Brady prior to his enrollment in the School District for kindergarten. (H.O.D. ¶ 3; Doc. 1 ¶ 19). The psychologist's February 20, 2009 evaluation concluded that Brady presented with Pervasive Developmental Disorder-Not Otherwise Specified ("PDD-NOS"), [2] Attention Deficit Hyperactivity Disorder ("ADHD"), Developmental Coordination Disorder, and a language disorder. (S-9 at 1-3). According to the report, Brady's language disorder manifested through difficulties with verbal expression, word retrieval, and language processing. (Id. at 3). He was also "at risk for [a] learning disability in written expression" and exhibited perseveration and illogical thinking when not focused. (Id. at 2). The evaluation recommended support services for Brady through an individualized education program ("IEP") focusing on "attention, language, writing, and social weaknesses." (Id. at 3).

         Ostensibly, the School District was slow to recognize Brady's disabilities. (N.T. at 48, 148-50). Parents responded by retaining an attorney. (Id. at 48, 79-80, 149-50). Upon receipt of correspondence from Parents' attorney, the School District conducted an evaluation of Brady on September 17, 2009 to assess his educational needs. (Id. at 149; S-4). Thereafter, the School District determined that Brady was eligible for special education services to address speech and language impairments secondary to his autism. (S-4 at 7). Parents approved a September 24, 2009 notice of recommended educational placement for itinerant speech and language support services, (S-15 at 1-3), and worked collaboratively with School District staff and administrators to develop Brady's IEP, [3] (see S-23).

         In the spring of 2010, driven by concerns over Brady's persistent attention deficits, Parents obtained an independent psychological evaluation by Vincent Monastra ("Dr. Monastra"). (S-10). In a report dated May 14, 2010, Dr. Monastra diagnosed Brady with ADHD and PDD-NOS. (Id. at 8). He recommended revisions to Brady's educational treatment plan. (Id. at 8-9). The School District reevaluated Brady on September 21, 2010 in response to Dr. Monastra's diagnosis and in preparation for the new school year. (See S-6). The September 2010 report concluded that Brady was performing at grade level academically in reading, writing, and mathematics. (Id. at 4). This report also concluded that Brady remained a suitable candidate for special education services to address his autism and his speech and language impairments. (Id.)

         Brady's first grade IEP responded to the two 2010 evaluations by including program modifications and specially designed instruction to assist him in processing directions and information. (S-24). At the conclusion of his first grade year, the School District reported that Brady met district standards in reading, writing, speaking and listening, and mathematics. (See S-7 at 3; S-32 at 6-7). Brady's teacher encouraged Parents to continue working with him over the summer on reading expression and comprehension, story writing, and mathematical concepts. (S-32 at 8).

         In June 2011, Dr. Monastra met with Parents for a consultation to assess Brady's progress since the May 2010 evaluation. (See S-ll). The consultation report reflected improvements in Brady's attentiveness and responsiveness to instructions and conversations. (Id. at 1). However, Dr. Monastra also identified multiple, persistent developmental concerns-namely, Brady was easily distracted, struggled to follow multi-step directions, and experienced reading and listening comprehension challenges. (Id. at 2).

         1. Second Grade

         Brady entered second grade in the fall of 2011. (H.O.D. ¶ 18). In his September IEP, Brady's mother observed that Brady was struggling to respond to questions, to carry on a conversation, and to process information. (S-25 at 8). His mother also identified disfluencies in Brady's speech, his difficulty organizing thoughts, and his trouble with short term memory and written expression. (Id.) In its contribution to the IEP, the School District observed that Brady needed to improve his social skills. (Id.) The September 2011 IEP maintained specially designed instruction as well as itinerant speech and language support for 30 minutes a week outside the regular classroom setting. (Id. at 19-20, 22-23).

         School District psychologist Jessica Molinero ("Dr. Molinero") administered two evaluations to Brady in October 2011: a psycho-educational evaluation and a speech and language evaluation. (N.T. at 75-76, 317; S-26 at 9-12). Thereafter, the School District issued a new report which determined that Brady remained eligible for special education services based upon autism and speech and language impairments. (S-8). The October 2011 report further concluded that Brady's current instructional setting and protocol were sufficient to meet his needs. (Id. at 11). Brady's IEP team revised the IEP on November 17, 2011 following a team meeting. (See S-26). Parents approved a notice of recommended educational placement to continue itinerant speech and language support services. (S-15 at 4-6). Brady's year-end report card indicated that he met all district benchmarks in reading, speaking and listening, and mathematics as well as most writing standards. (S-32 at 10-11).

         2. Third Grade

         Brady began third grade in September 2012. (H.O.D. at 5). His November 2012 IEP reflected Parents' concerns regarding Brady's spelling and reading fluency. (S-27 at 8). The November 2012 IEP also identified Brady's ongoing challenges with social skills, including communication with peers and adults and thought organization. (Id.) Brady's mother requested that the School District evaluate Brady for a reading disability. (Id.; N.T. at 152-53). When the School District denied her request, Brady's mother hired private psychologist Daniel H. Ingram ("Dr. Ingram") to evaluate Brady because she believed the School District may have failed to diagnose dyslexia. (N.T. at 75, 152-53, 168-69, 205-06).

         Dr. Ingram evaluated Brady on December 8, 2012. (S-12). The psychological evaluation noted Brady experienced significant delays in written expression secondary to learning disability dysgraphia. (Id. at 4-5). Dr. Ingram also determined that Brady presented with dyslexia and consequently struggled with phonics skill development, which contributed to a diminished reading accuracy of narrative passages. (Id. at 5). Parents requested an IEP team meeting to discuss Dr. Ingram's findings. (P-10 at 13). In the interim, Parents asked then Principal Ryan Billet ("Principal Billet") to conduct an occupational therapy evaluation of Brady. (N.T. at 71). The School District declined to administer the requested evaluation. (H.O.D. ¶ 27; N.T. At 71, 73).

         Brady's IEP team met on March 5, 2013 to discuss the December 8, 2012 psychological evaluation. (P-9 at 1; N.T. at 87, 418-19). Parents invited Dr. Ingram to attend the meeting. (N.T. at 88). Dr. Ingram discussed his findings and informed the IEP team that Brady presented with characteristics of dyslexia. (Id.) Dr. Ingram stated that "because of Brady's age, there would be a five percent chance that Brady would be a competent reader and writer." (Id.) Dr. Ingram purportedly opined that had the characteristics of dyslexia been identified earlier, "[Brady's] brain could have been rewired." (Id.) Following the meeting, Principal Billet purportedly called Brady's mother to apologize and he allegedly stated that he and Dr. Molinero "couldn't believe that they had missed this." (Id. at 88-89). Following the March 2013 meeting, the School District agreed to purchase a systematic research-based instruction program for Brady called "Wilson." (Id. at 89-90, 94, 264-65, 273-74, 438-39; P-10 at 19-20; S-28 at 21). Wilson addresses student deficits in phonetic skills. (S-28 at 21).

         The School District assigned Debra Hicks ("Hicks") to administer Wilson instruction four days per week for 30 minutes. (P-4; N.T. at 267-69, 273-74). Prior to her assignment, Hicks had not received formal Wilson training. (N.T. at 264-65, 273-75). Throughout the spring of 2013, Parents once again expressed concerns that Brady was struggling with reading because of a learning disability. (P-10 at 14, 16, 19-20). According to plaintiffs, the School District declined to identify or to evaluate Brady for dyslexia. (See N.T. at 444-45; S-41 at 16; P-10 at 17-18). Brady's third grade report card reflected that he met all district standards in reading, writing, speaking and listening, and mathematics by the end of the school year. (S-32 at 14-15). The report card identified several areas in need of improvement including, inter alia, self-monitoring and self-correction when reading and providing details and applying spelling strategies when writing. (Id.) Parents contemplated withdrawing Brady from the School District in May 2013 because he was exhibiting behavioral problems. (N.T. at 72).

         3. Fourth Grade

         Brady entered the fourth grade in the fall of 2013. (H.O.D. at 6). The School District's reading specialist, Elizabeth Zimmerman ("Zimmerman"), provided Wilson instruction to Brady beginning in October 2013. (N.T. at 339-43). Zimmerman had completed formal Wilson training. (Id. at 356). Brady received 25 minutes of Wilson daily. (Id. at 131, 342; P-10 at 34; S-41 at 22; S-43 at 117). Brady would occasionally miss a day of Wilson instruction, (P-9 at 13; N.T. at ...

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