Hempfield Sch. Dist. v. S.C.

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HEMPFIELD SCHOOL DISTRICT v. S.C., M.C. and S.R.-A

Civil Action No. 23-2800

United States District Court, E.D. Pennsylvania

January 31, 2024

MEMORANDUM

KEARNEY, J.

Teaching young children on the autism spectrum is a special calling. Finding qualified teachers and professionals to teach kindergarten and first grade students on the autism spectrum during a worldwide pandemic presented greater challenges for school administrators. Teachers leave and the schools must still teach. The schools must be mindful Congress mandates the states accepting federal education funds provide a free appropriate public education to students in their district and must hire the staff to do so. And the school district must reimburse parents forced to pay tuition at another school if the school district cannot provide the required education.

We today review a hearing officer's findings a Lancaster County school district partially met its obligations to the student for the kindergarten and first grade years beginning in November 2020. We agree with the hearing officer in part. The District did not provide a free appropriate public education to the child on the autism spectrum during the entirety of the kindergarten and first grade years. The student is entitled to compensatory education. We remand to the hearing officer for a non-arbitrary finding as to the amount of compensatory education. The District must compensate the child's parents for tuition paid to a district who provided services. We are not persuaded by the District's arguments. Ordering it reimburse the parents for tuition paid to a neighboring public school district does not violate the Constitution's Spending Clause as the State is on ample notice of its obligation to provide the appropriate education and reimburse demonstrated tuition when it cannot meet its obligations. The parents are entitled to reimbursement of their tuition payment and reasonable attorney's fees but must now timely demonstrate the amount and reasonableness of the tuition and reasonable attorney's fees before we can enter a final judgment.

We do not suggest the District acted in malice or ignorance; it tried to meet its obligations to its student with stopgap coverage resulting in largely ineffective steps without special education teachers or appropriate training. But the record confirms it did not meet its obligations to this young student in its District for part of his kindergarten and first grade years.

I. Facts developed during the due process hearing.

S.C. is a nine-year-old student with autism and a speech and language impairment.^[1]Physicians diagnosed S.C. with a cleft palate making it difficult for him to make certain sounds.^[2]S.C. requires specially designed instruction throughout his school day to support his development of verbal and nonverbal communication skills and make progress in his education. S.C. began attending school in the Hempfield School District in kindergarten and received special education services.^[3] Hempfield District always provided the eligible S.C. with special education services while attending the Hempfield District school.^[4]

S.C. receives early intervention services.

S.C. received early intervention education services as a preschool student with autism through the Lancaster-Lebanon Intermediate Unit 13 beginning in 2017.^[5] Lancaster-Lebanon Intermediate Unit 13 developed an individualized education program (IEP) for S.C. in May 2017.^[6]The IEP team set measurable goals related to, among other things, building S.C.'s social interaction skills and his ability to listen to and follow teacher instructions. The IEP Team met at least annually to discuss S.C.'s progress toward his goals and revise the IEP based on recommendations from S.C.'s teachers, service providers, and his Parents.^[7] Preparing for S.C.'s transition to a school-age program.

S.C.'s Parents planned to transition S.C. from early intervention services, which are only two-and-a-half hours of instruction per day, to an all-day school age program in the Hempfield School District for the 2020-2021 school year. The District issued a Reevaluation Report finding S.C. still qualified for special education and related services under the primary eligibility category of autism and secondary eligibility category of speech or language impairment.^[8] The Hempfield School District then convened an IEP team meeting with S.C.'s Parents to prepare for S.C.'s transition to school-age programming.

S.C.'s June 2020 IEP for kindergarten.

The IEP Team developed a school-age IEP in June 2020 to be implemented through S.C.'s 2020-2021 kindergarten year in the Hempfield School District.^[9] The IEP required the District provide S.C. with all of his academic instruction in an autistic support classroom using a modified curriculum.^[10]

The IEP team set annual goals in the June 2020 IEP including: (1) functional communication (communicating wants and needs, labeling items, following simple one-step directions), (2) requesting (also referred to as “manding,” meaning the ability to independently ask for desired objects and activities), (3) imitation (immediately following instructions prompting him to “do this”), (4) following one-step directions, (5) echoics (repeating spoken verbalizations), (6) tacting (identifying and labeling pictures laid out on table), and (7) visual-motor/fine motor skills (tracing, coloring, cutting, writing name, and closing fasteners on practice boards).^[11]

Program modifications and items of specially designed instruction included a timed-toileting program, use of behavior protocols to increase safety awareness, escort to and from the bus each day, a communication log between home and school, a personal care assistant for five-and-a-half hours per day, individualized and small group instruction, a pair teaching environment, use of a wide variety of reinforcers (including toys and edibles), errorless teaching procedures, interspersing easy and difficult demands, fast-paced instruction, transportation to and from school, mixed and varied types of instructional demands, promised reinforcers for transitioning to less preferred activities, prompts for grasp, guided practice for visual motor and self-care tasks, assistance for self-care tasks, a feeding protocol, speech and language therapy, and occupational therapy.^[12]

The IEP provides his progress on certain goals, including tacting and following one-step directions, would be measured through daily probes. S.C.'s progress would be assessed on a trimester basis. S.C. would spend approximately 85% of his day in special education settings and the remaining 15% in a regular classroom.^[13] S.C.'s parents approved the District IEP on June 8, 2020.^[14]

S.C. attends kindergarten in the Hempfield School District (2020-2021 school year).

S.C. began kindergarten in the Hempfield School District in August 2020.^[15] S.C. was primarily non-verbal and used gestures to communicate his wants and needs.^[16] S.C. had a difficult transition to kindergarten in part because he had a lot of self-stimulatory behaviors.^[17] He also had poor instructional control, meaning he had a short attention span, was easily distracted, and he struggled to sit still and follow the teacher's directions.^[18] S.C. struggled to maintain his attention during a task, but he did not exhibit aggressive or destructive behaviors.^[19]

The District educated S.C. in an autism support classroom using a verbal behavior methodology to teach functional skills and communication such as manding (requesting), tacting (labeling or identifying certain objects), listening, playing and socializing with peers, and following simple one-step directions.^[20] The autistic support classroom had mostly nonverbal students who were not toilet trained, including students who “eloped” (tried to escape) and self-injurious students.^[21] The autism support classroom used a curriculum called the Verbal Behavior Milestones Assessment Placement Program designed to teach, track, and assess skills of students with autism based on verbal behaviors and established developmental milestones.^[22]

S.C.'s kindergarten autism support class included a special education teacher, four classroom aides, and six to eight students at any one time.^[23] The classroom teacher Chanel Yoder and aides were all trained in how to deliver verbal behavior programming.^[24]

The special education teacher is responsible for creating individualized programming for all students based on their skill deficits, conducting behavioral assessments, and training other classroom staff in how to collect data and implement individualized programming in the classroom.^[25] The classroom aides rotate between students throughout the day and are responsible for executing classroom routines, implementing students' individualized education programs, tracking student behaviors and program-related skills, and assisting students with daily living skills including feeding, toileting, unpacking bags, and transitioning between settings.^[26]

Kimberly Hilton and Audrey Dulio worked as classroom aides in the District's autism support classroom for S.C.'s kindergarten school year and from August 2021 to November 2021 of S.C.'s first grade school year. They were both trained in the verbal behavior program. They testified at the due process hearing about the learning environment in the District's autistic support classroom, including student programming and behavioral issues.

The District assigns its Director of Special Education Denise Galen responsibility for hiring and supporting special education teachers and support staff, overseeing special education programming within the department, and ensuring compliance with applicable regulations.^[27]

The...