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Colonial School District v. G.K.

United States District Court, E.D. Pennsylvania

April 30, 2018

G.K., by and through his parents, A.K. and S.K., and A.K. and S.K., individually



         The Colonial School District (“the School District”) has filed this matter under Section 615(a) of the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §1415(i)(2), seeking the reversal of the decision of a Hearing Officer who found it failed to provide a free and appropriate public education (“FAPE”) to G.K., a twelve year old student. As explained below, I find that the Hearing Officer's decision applies an erroneous standard in several respects and should be overturned.

         I. Legal Standards

         A. The IDEA and the IEP

         The IDEA offers states federal funds to assist in educating children with special needs. Endrew F. v. Douglas County School District RE-1, 137 S.Ct. 988, 993 (2017), citing 20 U.S.C. §1400 et seq. In exchange, a state agrees to provide a free appropriate public education (“FAPE”) to all eligible children. Id., citing §1412(a)(1).

         Services are provided to an IDEA eligible child in conformity with that child's individualized education program (“IEP”). Id. at 994, citing §1401(9)(D). The IEP is a comprehensive plan prepared by a child's “IEP Team”, which includes teachers, school officials, and the child's parents. Id., citing §1414(d)(1)(B). It is generally a multi-page report describing how specific special education services and related services will be provided to the student, and it must be drafted in compliance with procedures set forth in the IDEA:

The IDEA requires that every IEP include “a statement of the child's present levels of academic achievement and functional performance, ” describe “how the child's disability affects the child's involvement and progress in the general education curriculum, ” and set out “measurable annual goals, including academic and functional goals, ” along with a “description of how the child's progress toward meeting” those goals will be gauged. §§1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the “special education and related services ... that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and when possible, “be involved in and make progress in the general educational curriculum.” §1414(d)(1)(A)(i)(IV).

Endrew F., supra, at 994.

         When disagreement arises as to the contents of the IEP, parents are entitled to what the IDEA calls a “due process hearing” before a state or local educational agency. Id., citing §1415(f)(1)(A) and (g). At the end of the administrative process, the unsuccessful party may appeal to a state or federal court. Id., citing §1415(i)(2)(A). The burden of proof is on the party bringing the administrative complaint, here A.K. and S.K., and this burden continues on appeal. Schaffer v. Weast, 546 U.S. 49 (2005).

         B. Judicial Review

         Judicial review in an IDEA case is much broader than review in other agency actions, in which the courts are generally confined to the administrative record and are held to a highly deferential standard of review. Susan N. v. Wilson School District, 70 F.3d 751, 757 (3d Cir. 1995). As a court in this District recently explained:

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 School District, 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 School District 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 School District 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.O. ex rel. Michael P., 585 F.3d at 735.

Montgomery County Intermediate Unit No. 23 v. C.M., Civ. A. No. 17-1523, 2017 WL 4548022 at **1-2 (E.D. Pa. Oct. 12, 2017).

         C. Standards Applicable to the Hearing Officer

         Decisions made by hearing officers “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.” 20 USC. §1415(f)(3)(E)(i). This is known for short as “FAPE.” A procedural violation may be the basis for relief, but only where the procedural inadequacies (a) impeded the child's right to FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to their child; or (c) caused a deprivation of educational benefits. §1415(f)(3)(E)(ii); and see E.D. v. Colonial School District, Civ. A. No. 09-4837, 2017 WL 1207919 at *7 (E.D. Pa. Mar. 31, 2017).

         Pennsylvania regulations provide that, in an administrative procedure pertaining to the provision of services under the IDEA, “the decision of the hearing officer shall include findings of fact, discussion and conclusions of law.” 22 Pa. Code §14.162. Further, “although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.” Id.

         II. Factual and Procedural Background

         A. Events Preceding the Due Process Hearings

         G.K. is a student identified as disabled under the category of autism, who for that reason needs special education and related services under the IDEA. Complaint at ¶9, citing 20 U.S.C. §1401(3)(A) and 34 C.F.R. §300.8(c)(1). A.K. and S.K. are his parents. Complaint at ¶3. G.K.'s disability causes difficulties particularly with reading comprehension, written expression, math problem-solving and social language/social skills. Hearing Officer Decision at 2. At all relevant times, G.K. attended school in the Colonial School District. Complaint at ¶3.

         In G.K.'s fourth-grade school year, 2015-2016, he received special education services. In May, 2016, following a conference, his parents requested in writing that the School District not promote him to fifth grade for the 2016-2017 school year. S-16 at 1. They were concerned that G.K. had not demonstrated “grade level appropriate achievement/proficiency” in all respects, and they told the School District that they believed he should obtain mastery at the fourth-grade level before being presented with fifth grade work. Id.

         The School District denied this request. In a letter of May 6, 2016, it stated that school data and “anecdotal information” showed that G.K. had made “excellent improvement” that year, both academically and socially. S-16 at 2. Also, they pointed out that G.K. would turn twelve at the end of the first semester of the 2016-2017 school year, and they stated that it would not be “appropriate or beneficial” for G.K. to be two years older than his classmates. Id.

         On May 30, 2016, A.K. and S.K. filed a Due Process Complaint, in which they stated:

We requested the [School District] to provide current assessment for G.K.'s reading and writing against 4th grade rubric, the school district has failed to provide this information. We requested G.K.'s current IEP goals and assessment but the school district has failed to provide this information. We feel we have the right to know where our child is assessed.

S-17 at 3. Clearly, G.K.'s parents wanted to see whether the “excellent improvement” of which the School District assured them would be proved by objective testing results.

         After mediation, the parents and the School District reached an agreement. S-23. They agreed that G.K. would advance to fifth grade. Id. A “facilitated” IEP meeting would be held in September, 2016. Id. Further, it was agreed that the parents would be provided with “Benchmark Assessment” (i.e., standardized testing) results in July, for their use in assessing G.K.'s status “in relation to other students in his grade.” The School District also agreed to pay for an Independent Educational Evaluation for G.K. Id.

         In July, 2016, Benchmark Assessment results were forwarded to A.K. and S.K. S-27. They showed that, while G.K. was functioned at an Advanced or Proficient level in some areas, as compared to other students finishing fourth grade, he was functioning only at a Basic level in other areas, and in some instances, was Below Basic.[1]

         On Wednesday, August 17, 2016, the School District sent the parents a copy of the Independent Educational Evaluation. S-28. According to the evaluator, the Wechsler Individual Achievement Test showed that G.K. functioned in the Average range in most of the subtests, and in some subtests was Above Average. Id. at 5-6. However, he was Below Average in reading comprehension and oral expression. Id. Notably, the Average range was quite wide, and included areas in which G.K. scored as low as the 19th percentile. Id. Thus, although when examining composite scores, G.K. was scored Average in every area except for an Above Average in basic reading, he was at or over the 50th percentile only in two out of nine areas. Id.

         The tester also identified deficiencies in G.K.'s concentration and focus, and set forth strategies to address them. Id.

         A.K. and S.K. attended G.K's IEP meeting on September 27, 2016. S-32. According to handwritten notes taken at that meeting, most likely by the facilitator, the parent concerns and School District responses were:

Parental Concern: All areas that are basic or below basic - how will school address? Response: We will write objectives that will get worked on on-going.
Parental Concern: How will I know which objective is being worked on when? Response: We will send home progress notes specific to objectives and curriculum instruction map - additional info will come home on a more regular basis.
Parental Concern: More rigorous homework, homework to reflect IEP. Response: Daily homework based on IEP.
Parental Concern: Can we meet again in November to talk about progress toward IEP goals/objectives with homework packet?
Response: Yes. Mid-November, week of November 7th.

Id. at 2. It is also noted under Parent Concerns: “Want tangible, measureable objectives that explain goals.” Id. at 1.

         Following the September 27, 2016, meeting, the School District produced a revised IEP. S-34. It appears that this was forwarded to the parents by Ms. Rebecca Kaslow, G.K.'s special education teacher and language arts instructor at the time, on October 7, 2016. S-36, S-37. It set forth five long-term “Measurable Annual Goals” in which progress measures were described generally, such as “District and Teacher-made assessments” or “teacher/therapist observation.” Id. at 18-20.

         These Annual Goals included one for reading comprehension involving answering factual and inferential questions; one for written expression; one for math word problems; a speech/language goal for producing verbal explanation; and a speech/language goal for drawing inferences as to the thinking and/or behavioral impact of a character on other characters in a picture or live scene. Id. at 18-20. The Annual Goals relating to reading comprehension and math word problems were accompanied by a number of Short Term Objectives, setting forth discrete sub-skills of the goal, to be evaluated by periodic data probes. Id. at 18-21.

         On October 12, 2016, S.K. wrote the following email to Ms. Kaslow:

We have carefully reviewed the IEP you've sent us, and we are afraid that the IEP goals and objectives do not appear to address the deficiencies identified in the end of school year assessments from last year. Furthermore, we are left to wonder what additional competencies are introduced in 5th grade that G.K. must master by the end of the year. Therefore, I think we need to have a workshop to hammer out the IEP ASAP.

S-38 at 3.

         On October 14, 2016, Ms. Carole Chasen responded:

I received your email and in order to prepare for the IEP meeting, would it be possible for you to share exactly which goals and objectives you are referring to? I am asking this just so the teachers could review what they wrote and be able to present to you possibly more of the wording that you are looking for. The other issue you raise regarding competencies can be addressed when we meet.

Id. The parents responded by reiterating the language in their first email: “Our concern is that there are identified deficiencies from last school year's assessment and we are not clear as to how they are going to be addressed. Plus, what other new competencies are introduced this school year, and how will they be addressed?” Id.

         On October 17, 2016, Ms. Chasen wrote to the parents:

The IEP team will be available to meet with you Thursday, October 20, 2016, from 8:30-9:30. However, after just meeting with G.K.'s special education teachers to review the IEP that was developed with our input and unanimously agreed to at the September 27, 2016 PDE Facilitated IEP team meeting, we strongly believe that all of his identified needs - based on teacher and parent input, 2015-16 end-of-year curriculum-based assessments, and finding of the Independent Educational Evaluation ... are addressed in the IEP's goals, objectives and/or SDIs. That said, prior to the meeting, kindly provide us with those specific needs that you feel have not been addressed.
The competencies that will be introduced this year are those covered in the 5th grade core curriculum which is determined by the PA Department of Education. Please let me know if you would like a link to the PDE web site listing those competencies that we are required, per PDE, to instruct. These competencies will be addressed through G.K.'s instructional programming using the Specially Designed Instruction that is identified in his IEP.
I look forward to receiving from you those specific needs that you feel have not been addressed prior to that meeting.

S-38 at 2.

         S.K. replied on the same day: “Based on your response, I would like to file due process with the ODR regarding this matter.” Id. at 2. Ms. Chasen wrote: “I am sorry you feel the need to pursue the route of Due Process, but that certainly is your right. I do need to know if you still want to meet this Thursday, October 20, 2016 at 8:30 with the IEP team to address the concerns you have. Please let me know.” Id. at 1. S.K. wrote that they would not be attending the meeting. Id.

         Also on October 17, 2016, S.K. filed a Due Process Complaint. In it, she wrote:

1. Parents and the school met at the end of last school year about achieving 4th grade competencies for our child prior to moving him up to 5th grade. The school officials told us that our child met all the competencies to move up. Upon reviewing the assessments conducted by the school, our child had many areas that were either basic or below basic in achievements.
2. Our child G.K. is placed in 5th grade with dubious IEP goals and objectives where we the parents have very little confidence that our child will be able to complete 5th grade successfully with passing grade/competencies.

         Due Process Complaint at 2. S.K. also wrote: “1. The support services are insufficient, if not inadequate” and “2. Current draft version of IEP goals do not appear ...

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