United States District Court, E.D. Pennsylvania
P. HART UNITED STATES MAGISTRATE JUDGE
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.
The IDEA and the IEP
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).
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
Endrew F., supra, at 994.
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).
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.
Standards Applicable to the Hearing Officer
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).
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
Factual and Procedural Background
Events Preceding the Due Process Hearings
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.
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.
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
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
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.
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.
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.
tester also identified deficiencies in G.K.'s
concentration and focus, and set forth strategies to address
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
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
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.
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
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.
October 12, 2016, S.K. wrote the following email to Ms.
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.
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
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.
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.
October 17, 2016, S.K. filed a Due Process Complaint. In it,
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.
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