United States District Court, E.D. Pennsylvania
H.D., A MINOR, BY AND THROUGH HIS PARENTS, JEFFREY D. AND PATRICIA H.,
KENNETT CONSOLIDATED SCHOOL DISTRICT
MICHAEL M. BAYLSON UNITED STATES DISTRICT COURT JUDGE.
this case, the Court is called to decide whether to sustain
or reverse the opinion of the Hearing Officer who concluded
that Defendant Kennett Consolidated School District
(“the District”) fulfilled its obligations to one
of its students, H.D.
has received treatment for anxiety and obsessive-compulsive
disorder for most of his life. However, he maintained good
grades through his sixth-grade year. His grades, attendance,
and behavior began declining in seventh grade, and the
District began providing him individualized accommodations
and support in his eighth-grade year. Nonetheless,
Plaintiffs, his parents (“the Parents”) removed
him from the District and put him in alternative educational
placements towards the end of his eighth-grade year. They now
seek reimbursement for H.D.'s alternative educational
placements and other expenses incurred while they pursued
what they felt was an appropriate education for their son.
May of 2018, a Pennsylvania Special Education Hearing Officer
determined that the School District had met its obligations
to H.D. under both the Individuals with Disabilities
Education Act (“IDEA”) and § 504 of the
Rehabilitation Act of 1973 (“§ 504”).
Parents appeal that determination.
There are three central factual and legal disputes in this
i. First: when the District should have known that H.D.
needed specially-designed instruction.
ii. Second: whether the District acted in a reasonably timely
manner once it knew or should have known of H.D.'s need
for specially-designed instruction.
iii. Third: if the District violated any of its obligations
to H.D., what relief is warranted.
the reasons that follow, the Court will not disturb the
Hearing Officer's rulings that the District met its
obligations to H.D. and that the Parents are not entitled to
described in the Hearing Officer's Final Decision and
Order (“Hearing Officer's Decision”), the
District did not know, and need not have known, that H.D.
needed specially-designed instruction until shortly before
the Parents removed him to his first alternative educational
placement. Given that conclusion, the Hearing Officer's
subsequent finding that the District was addressing
deficiencies in H.D.'s educational program in a
reasonably timely manner is also supported by the record.
Finally, since the District did not violate any of its
obligations to H.D., no remedies are warranted.
Court will therefore GRANT the District's Motion for
Judgment on the Administrative Record and DENY the
November of 2017, the Parents filed a Due Process Complaint
against the District asserting that the District denied H.D.
a free, appropriate public education (“FAPE”)
under IDEA, § 504, and the ADA, as well as implementing
regulations through his seventh- and eighth-grade years.
parties held a four-day hearing before a Pennsylvania Special
Education Hearing Officer on February 6, 20, and 27, and
April 13, 2018.
Hearing Officer ruled for the District on May 10, 2018.
i. After reviewing the evidence, the Hearing Officer
determined that the District was aware during H.D.'s
seventh-grade year that he was encountering some challenges.
H.O.D. at 19-20. However, he was not yet exhibiting signs
of “a need for accommodations or special
ii. Consequently, the District had neither fallen short of
its obligations to identify H.D. as a student with special
needs nor denied him a FAPE during his seventh-grade year.
Id. at 20.
Hearing Officer also concluded that all the witnesses were
‘generally credible, ” and that none
“exhibited a demeanor that suggested a lack of
trustworthiness or evasion.” Id. at 15.
Parents appealed the Hearing Officer's ruling to this
Court by a Complaint dated August 7, 2018. ECF 1.
Parents filed a Motion for Judgment on the Administrative
Record on December 26, 2018. ECF 10. The District filed a
single brief in support of its Cross-Motion for Judgment on
the Administrative Record and in opposition to the
Parents' motion on February 18, 2019. ECF 12. The Parents
replied on March 5, 2019. ECF 15.
rare exceptions, the Hearing Officer's findings of fact
are undisputed. The parties do sometimes dispute what to make
of factual ambiguities, or attempt to draw more attention to
facts which the Hearing Officer's Decision did not focus
on. It is rare that such disputes indicate actual disputes of
fact rather than mere disagreements over emphasis. The
following review of the facts of the case will clearly
identify actual factual disputes among the parties.
Background Through Sixth Grade (2014-2015)
attended school in the District from first grade, beginning
in 2009, through March 2017, near the end of his eighth-grade
year. N.T. at 37:11-20; S-7.
first grade, H.D. began private counseling to address anxiety
and Obsessive Compulsive Disorder (“OCD”). N.T.
January of his second-grade year, the District sought
permission to evaluate H.D. for concerns with speech
articulation, but hos Parents did not consent. N.T. at
899:7-12, S-2. That February, the District evaluated H.D. for
gifted education at his Parents' request. S-1. The report
concluded that H.D. was not eligible for gifted services.
S-3, S-4. The District recommended that H.D. continue in
regular education from that time forward, and his Parents
H.D.'s anxiety occasionally manifested in school prior to
May of his second-grade year, a teacher reported to
H.D.'s Parents that his behavior had been “off the
wall” for two weeks. P-17 at 1. She reported that he
“has been unable to follow directions . . . calling out
and being extremely off task . . . . He's been making
inappropriate noises, shouting out in class, and touching
other people. In the hallways, he seems unable to walk
without talking or being silly.” Id. His
Parents now call this “H.D.'s emotional needs
manifest[ing] . . . .” Pl. Br. at 6.
third-grade entry in H.D.'s Kennett Consolidated School
District Comprehensive Medical Report stated that he suffers
from “Anxiety Disorder” without further comment.
S-5 at 3.
3. On a
few other occasions from third to fifth grade, H.D. was
disruptive or anxious, or underperformed, in school. P-17 at
2-10. It is not clear how many of the instances of his
behaving disruptively or underperforming stemmed from his
third through sixth grades, H.D.'s attendance record
included a minimum of ten absences for each school year. S-7
at 2; S-41 at 6. During fifth grade, H.D. also arrived tardy
on twelve occasions. S-41 at 6. During the 2014-2015 school
year (sixth grade), H.D. arrived tardy on fourteen occasions
and was absent nineteen times. S-7 at 2.
Nonetheless, all of H.D.'s final grades were excellent
through sixth grade, and he made the Honor Roll in sixth
grade. S-7 at 2.
H.D.'s anxiety generally manifested more severely at home
than at school.
mother testified that “He's always been the type of
kid, he would go to school and he would function, then he
would come home and all of his anxieties and fears would come
out.” N.T. at 852:9-12. She also agreed with the
characterization that H.D. “didn't demonstrate [his
primary modes of expressing anger] outside of the
home.” N.T. at 907:10-11, 907:16-19.
During his eighth-grade year, his Parents provided input into
a § 504 evaluation to the effect that H.D. “hides
his worries and anxiety at school and then at home his
frustrations surface.” S-30 at 1, 7, P-2 at 1. His
anxiety and OCD also affected his sleep. E.g., N.T.
at 855:8-13, S-30 at 2.
Seventh Grade (2015-2016)
received minor discipline on four occasions during his
seventh-grade year for making fun of other students and for
disruptive behavior outside of the classroom. S-31 at 3-4.
September of his seventh-grade year, H.D.'s parents (the
“Parents”) alerted an assistant principal to text
messages that H.D. exchanged with a peer, expressing concerns
with the peer's language and indicating that H.D. was
upset by them. H.O.D. Findings ¶ 15. Others also
contacted the assistant principal concerning H.D.'s own
problematic use of social media. N.T. at 429:1-430:10;
470:8-474:13, 838:14-22; S-8, S-63, S-65. Overall, school
principals did not consider H.D.'s use of social media to
be atypical for a middle school student or indicate a need
for special education. N.T. at 148:6-149:16, 167:15-168:13,
H.D. inarguably received worse final grades in seventh grade
than he did in sixth grade.
H.D.'s grades declined particularly noticeably in core,
year-long academic subjects:
a. His final Math grade fell from a B- in sixth grade to a C-
in seventh grade;
b. his final Science grade, from a B to a C-;
c. his final Social Studies grade, from an A- to a D; and d.
his final Language Arts grade, from a B to a B. S-7 at 1-2.
grades also declined modestly from the first to the second
semester. In the first semester, he received 11 As or Bs and
7 Cs, Ds, or Fs. In the second semester, he received 9 As or
Bs and 7 Cs, Ds, or Fs. Id. at 1.
However, H.D. received more As or Bs than Cs or Ds for final
grades, and only one failing final grade (a D in social
studies). H.O.D. Findings ¶ 24.
Overall, H.D. received twenty As and Bs for quarterly grades,
and only seventeen Cs, Ds, and Fs. Id. He received
ten As or Bs for final grades, and four Cs or Ds.
Id. Seven of those ten As or Bs were for quarter- or
semester-long classes, such as “Health, ”
“Art, ” or “STEM.” Id.
H.D.'s scores on the Pennsylvania System of School
Assessment also decreased in the spring of his seventh-grade
year as compared to earlier years. S-6.
H.D. had twenty-six total absences in seventh grade. S-7 at
1. Twenty-four were excused and two unexcused. Id.
1. On a
few occasions, the Parents explained to the District that
H.D. was absent because of illness or planned days off.
H.O.D. Findings ¶ 26 (citing P-17 at 15, 21 (stomach
virus); P-18 at 13-14, 17-19 (mono); S-10 at 7 (stomach
problems); S-11 (same); S-13 (planned days off adjacent to
winter break); S-53 (mono)). Other excused absences do not
appear to be explained in the record.
at least two occasions, the Parents explained to H.D.'s
teachers that H.D. had failed to complete homework for
reasons unrelated to his anxiety: on one occasion, it was an
incident with a family pet, and on the other, a medical
appointment. S-10 at 1; S-19 at 1.
Parents and the Hearing Officer disagree on how often H.D.
arrived tardy to school in seventh grade.
Hearing Officer concluded that H.D. had “approximately
sixteen tardy arrivals, with a number of other occasions of
being merely late to school for some unspecified period of
time.” H.O.D. Findings ¶ 25.
Parents claim that H.D. was tardy on sixty occasions. Pl. Br.
Exhibit S-54 reflects somewhere between fifty and sixty tardy
or late arrivals to the first class H.D. attended. S-54 at
4-7. It is not clear exactly what, practically speaking,
distinguishes tardy from late arrivals.
those fifty-to-sixty tardy or late arrivals shown on Exhibit
54, only nine occurred in the first semester. Id.
The remaining dozens of tardy or late arrivals occurred in
the second semester. Id. The uptick in the rate of
tardy or late arrivals began in January. Id.
“Teachers occasionally reported [H.D.] having
difficulties with written assignments, attention and focus,
leaving class to go to the restroom, and participating in
class during” seventh grade. H.O.D. Findings ¶ 18.
January of that year, H.D.'s father exchanged emails with
H.D.'s Social Studies teacher about H.D.'s
performance in class. S-13.
teacher reported that H.D. was quiet, showed little effort in
his written work, and “seemed to suffer more from [the
class being early in the morning] than most of his
classmates.” Id. at 3.
H.D.'s father responded that “H.D. is definitely
not a morning person and getting him to get enough sleep is
an issue, ” and that “He is an anxious kid and if
he perceives things are not going well it can feed on itself
and I think he can feel intimidated.” Id. at
two eventually met on January 28, 2016. P-18 at 1.
February 2, 2016, an Assistant Principal emailed H.D.'s
teachers seeking information about H.D.'s in-class
behaviors in preparation for a call with H.D.'s Parents.
Id. at 2.
H.D.'s Music teacher reported that he would “act
silly and not totally ‘with it, '” that
“[h]is apathy and lack of effort impacts his
performance in class, ” and that “[h]e is
belligerent and argumentative when spoken to about his
behavior.” Id. She believed that all of these
behaviors had escalated over the course of the year, and that
“[h]is grades are not terrible, but should be much
Physical Education teacher reported that H.D. “works
well independently in gym class. . . . I haven't noticed
any troublesome behaviors.” Id. at 3.
H.D.'s Social Studies teacher wrote a brief message:
“Quiet as usual. Has been participating more since
meeting with dad.” Id. at 5.
Math teacher said that H.D. “is not a behavior problem
during instruction. However, maintaining attention is a
struggle for him. I do think he wants to do well. It is
interesting, however, that [H.D.] leaves the class every day
to use the bathroom. . . . This interruption makes the flow
of instruction even more of a challenge for him.”
Id. at 6.
Language Arts instructor said, “He has been a little
more inattentive than usual, however I have not seen any
super alarming behaviors. He and the other boys like to bang
their pencils and do other immature annoying
distractions...” Id. at 7.
Finally, his Computer Instruction teacher reported that H.D.
“appears to be quieter socially. His energy seems down.
He's had no significant behavioral issues since the
incident with [redacted]. I know this isn't about
behavior, but his grade as [sic] dropped . . . .”
Id. at 8.
of the teachers responded individually to the Assistant
Principal. Id. at 2-8.
February 9, 2016, H.D.'s Math teacher sent an email to
H.D.'s Parents with comments substantially similar to
what she had sent to the Assistant Principal the week before.
Id. at 9.
February 23 and 24, 2016, H.D.'s father again exchanged
emails with H.D.'s Social Studies teacher about
H.D.'s participation and homework completion.
Id. at 11.
District staff testified that, overall, they did not consider
H.D.'s difficulties with social skills, feeling
overwhelmed in class, anxiety behaviors,
tiredness, or participation in class in his
seventh-grade year to be atypical of middle-school students
such that H.D. would have required support other than that
provided by regular education. N.T. at 354:5-355:8,
535:20-536:22, 542:15-24, 635:14- 636:11, 663:21-25,
675:10-676:2, 692:2-7; P-19 at 39-41. The Hearing Officer
considered this testimony “persuasive and
compelling.” H.O.D. at 19-20.
February 12, 2016, H.D. visited the school nurse because of
anxiety symptoms, which both his guidance counselor and
H.D.'s mother described as a “panic attack.”
S-53 at 3. Before visiting the nurse, he had attempted to
visit his guidance counselor, but she was unavailable that
day. N.T. at 403:15-404:1; 842:5-10. After that incident, the
guidance counselor kept in touch with H.D.'s Parents
concerning H.D.'s anxiety and H.D.'s becoming
overwhelmed when working on homework. Id. at
Towards the end of H.D.'s seventh-grade year, H.D.'s
guidance counselor, following instructions from a school
administrator, contacted his mother to ask for documentation
of his anxiety diagnosis. N.T. at 303:9-24; P-18 at 23-25.
mother mentioned the request in a separate email to the
school nurse the same day. P-18 at 25. The nurse replied,
“Yes, to include Anxiety in his IEP we need a medical
diagnosis.” Id. at 24. His mother replied,
“We have not requested an IEP for [H.D.] and I was a
bit confused by the request for” documentation.
Id. at 23. The guidance counselor followed up to
explain that the District did not intend to give H.D.
“and [sic] IEP or any other documentation, ” but
that they were simply trying to understand whether H.D.'s
anxiety “[wa]s a medical diagnosis that should be noted
in his medical file or not.” Id.
guidance counselor testified before the Hearing Officer that
she was also trying to understand whether that entry was
accurate or a data-entry error that should be corrected. N.T.
According to H.D.'s guidance counselor, H.D.'s mother
was “a bit confused and maybe taken aback by [the
counselor's] request” for documentation, and was
“uncertain of [her] intentions, ” id. at
373:17-22, and therefore responded “with hesitation,
” id. at 302:25-303:2, 305:5-22. (H.D.'s
mother later testified to the effect that there was no
hesitation between “May the 3rd and May the 4th when
[she] requested the letter from the doctor.”
Id. at 849:16-18.) The counselor attempted to
clarify to H.D.'s mother that she did not intend
“to do anything negative with the information.”
Id. at 373:22-374:4.
H.D.'s mother later testified that at the time, she
“did know what an IEP was.” Id. at
H.D.'s Parents received a doctor's note documenting
H.D.'s anxiety diagnosis on May 4, 2016, the next day,
and provided it to the District five days later, on May 9.
S-53 at 6.
Sometime in the spring of H.D.'s seventh-grade year, his
guidance counselor contacted another District representative
to discuss whether H.D. should be supported by a § 504
service agreement. N.T. at 36:7-37:1.
June 8, 2016, at the very end of H.D.'s seventh-grade
year, H.D.'s guidance counselor met with H.D.'s
Parents to discuss H.D.'s difficulties and whether he
should be supported by a § 504 service agreement. S-64
at 1. The record does not reflect that the Parents requested
special education or a § 504 service agreement at that
Eighth Grade (2016-2017) and After
Events Early in the Year
Early that fall, one of H.D.'s Parents notified
H.D.'s guidance counselor that was entering the building
tardy because he would sit in his car in the parking lot
feeling anxious and overwhelmed. S-22 at 4. In the same
communication, the Parent asked about whether H.D. could take
a different foreign language class. Id.
days later, H.D. visited the nurse for reported anxiety.
H.O.D. Findings ¶ 30.
mid-September, the Parents met with a District school
psychologist and H.D.'s counselor to discuss their
concerns with H.D.'s anxiety and tardy arrival.
Id. ¶ 31.
Within a few days of that meeting, the District issued a form
seeking permission to evaluate H.D. for a possible Service
Agreement under § 504. Id. ¶ 32. The form
specified that the evaluation would include record review,
teacher and parent input, a classroom observation session,
and homework monitoring. Id. The Parents gave their
September 19, H.D.'s therapist provided a note to the
District recommending a “504 plan” to accommodate
his anxiety. Id. ¶ 33.
school began evaluating H.D. on or around September 23, 2016.
S-22 at 2.
The Evaluation Process
Parents provided detailed input into the evaluation through a
form issued by the District. See P-2. They briefly
described H.D.'s history of therapy, and a family history
of anxiety. Id. at 1. They checked off boxes and
offered brief explanatory comments indicating his
difficulties with homework and sleeping due to anxiety or
OCD; with following directions; with attending to some
non-preferred tasks; with listening; with social
interactions; with transitioning among activities; and with
math. Id. at 1.
Parents also told the District in a free-answer section that
“[t]he way [H.D.'s] anxiety impacts academics is
that he gets overwhelmed and worried about homework or tasks.
He hides his worries and anxiety at school and then comes
home and feels he ‘can't do it' and is
frustrated. His anxiety impacts his tests as well, and his
self-esteem. He shuts down and all of his worries run through
his head. He is learning coping strategies and mindfulness
techniques in his work with [his therapist]. He does well
with one on one instruction and attention. Classroom
participation or ‘answering questions in front of the
class' can be very anxiety provoking.” Id.
October 19, the Parents attended a District presentation
about § 504 and special education. H.O.D. Findings
¶ 35; S-26 at 3. Afterwards, H.D.'s mother shared
her thoughts about how H.D.'s anxiety manifested and the
§ 504 evaluation process with H.D.'s guidance
counselor. S-26 at 3-4. H.D.'s guidance counselor
referred to that email in determining H.D.'s § 504
eligibility. Id. at 3.
final § 504 Evaluation Report (“the Evaluation
Report”) acknowledged and reproduced medical
documentation of H.D.'s anxiety diagnosis. S-30 at 2.
stated that H.D.'s disability limits his concentration
and sleep. Id. It incorporated his Parents'
comments that his anxiety often affected homework
completion-making it harder for him to sleep, and making it
harder for him to get up in the morning and get to school on
Evaluation Report also recounted his Parents' comments to
the effect that “that anxiety impacts [H.D.'s]
school performance. [The Parents] feel that once he begins to
worry about homework and other tasks he does not perform as
expected. They feel that he hides his worries and anxiety at
school and then at home his frustrations surface.”
Id. at 7.
Evaluation Report included five teachers' ratings of his
work habits in nine different areas, and summarized narrative
teacher input that H.D. often seemed sleepy in class, that
his materials were disorganized, that he had difficulty
remaining focused and following along, and that he required
“a significant amount of prompting to follow the
established classroom procedures.” Id. at 6.
According to the Evaluation Report, H.D.'s counselor
observed H.D.'s behavior in the Science classroom, where
H.D. reportedly engaged in some off-task behaviors and did
not participate in answering questions. Id.
Evaluation Report also summarized H.D.'s grades,
attendance, standards-based assessment performance, and
school nursing records. Id. at 3-5.
Ultimately, the Evaluation Report recommended that the
District provide H.D. three accommodations, starting
i. “Homework must be a practice of a skill that [H.D.]
has already demonstrated an ability to complete