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H.D. v. Kennett Consolidated School District

United States District Court, E.D. Pennsylvania

October 4, 2019




         I. Introduction

         a. In 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.

         b. 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.

         c. In 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”).

         d. The Parents appeal that determination.

         e. There are three central factual and legal disputes in this case.

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.

         f. For 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 any relief.[1]

         g. As 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.

         h. The Court will therefore GRANT the District's Motion for Judgment on the Administrative Record and DENY the Parents'.

         II. Procedural History

         a. In 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.

         b. The parties held a four-day hearing before a Pennsylvania Special Education Hearing Officer on February 6, 20, and 27, and April 13, 2018.

         c. The 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.[2] However, he was not yet exhibiting signs of “a need for accommodations or special education.” Id.
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.

         d. The 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.

         e. The Parents appealed the Hearing Officer's ruling to this Court by a Complaint dated August 7, 2018. ECF 1.

         f. The 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.

         III. Factual History

         With 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.

         a. Background Through Sixth Grade (2014-2015)

         i. H.D. 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.

         ii. In first grade, H.D. began private counseling to address anxiety and Obsessive Compulsive Disorder (“OCD”). N.T. at 827:12-16.

         iii. In 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 approved. S-4.

         iv. H.D.'s anxiety occasionally manifested in school prior to seventh grade.

         1. In 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.

         2. A 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 anxiety.

         v. From 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.

         vi. 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.

         vii. H.D.'s anxiety generally manifested more severely at home than at school.

         1. His 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.

         2. 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.

         b. Seventh Grade (2015-2016)

         i. H.D. 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.

         ii. In 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, 475:1-476:3.

         iii. H.D. inarguably received worse final grades in seventh grade than he did in sixth grade.

         1. 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.

         2. His 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.

         3. 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.

         4. 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.

         5. 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.

         iv. 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.

         v. On 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.

         vi. The Parents and the Hearing Officer disagree on how often H.D. arrived tardy to school in seventh grade.

         1. The 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.

         2. The Parents claim that H.D. was tardy on sixty occasions. Pl. Br. at 18.

         3. 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.

         4. Of 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.

         vii. “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. More specifically:

         1. In 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.

         a. The 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.

         b. 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 2.

         c. The two eventually met on January 28, 2016. P-18 at 1.

         2. On 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.

         a. 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 better.” Id.

         b. His Physical Education teacher reported that H.D. “works well independently in gym class. . . . I haven't noticed any troublesome behaviors.” Id. at 3.

         c. H.D.'s Social Studies teacher wrote a brief message: “Quiet as usual. Has been participating more since meeting with dad.” Id. at 5.

         d. His 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.

         e. His 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.

         f. 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.

         g. Each of the teachers responded individually to the Assistant Principal. Id. at 2-8.

         3. On 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.

         4. On 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.

         viii. 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.

         ix. On 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 342:19-345:11.

         x. 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.

         1. His 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.

         2. The 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. at 371:9-372:7.

         3. 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.

         4. H.D.'s mother later testified that at the time, she “did know what an IEP was.” Id. at 917:14.

         5. 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.

         xi. 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.

         xii. On 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 meeting.

         c. Eighth Grade (2016-2017) and After

         i. Events Early in the Year

         1. 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.

         2. Two days later, H.D. visited the nurse for reported anxiety. H.O.D. Findings ¶ 30.

         3. In 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.

         4. 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 consent. Id.

         5. On September 19, H.D.'s therapist provided a note to the District recommending a “504 plan” to accommodate his anxiety. Id. ¶ 33.

         6. The school began evaluating H.D. on or around September 23, 2016. S-22 at 2.

         ii. The Evaluation Process

         1. Parental Input

         a. The 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.

         b. The 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. at 1-2.

         c. On 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.

         2. The Evaluation Report

         a. The final § 504 Evaluation Report (“the Evaluation Report”) acknowledged and reproduced medical documentation of H.D.'s anxiety diagnosis. S-30 at 2.

         b. It 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 time. Id.

         c. The 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.

         d. The 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.

         e. 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.

         f. The Evaluation Report also summarized H.D.'s grades, attendance, standards-based assessment performance, and school nursing records. Id. at 3-5.

         g. Ultimately, the Evaluation Report recommended that the District provide H.D. three accommodations, starting immediately:

i. “Homework must be a practice of a skill that [H.D.] has already demonstrated an ability to complete ...

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