Perkiomen Valley Sch. Dist. v. S.D., CIVIL ACTION NO. 18-2093

405 F.Supp.3d 620

PERKIOMEN VALLEY SCHOOL DISTRICT, Plaintiff,

v.S.D., BY AND THROUGH her parents, J.D. and J.D., and J.D. and J.D., individually Defendants.

CIVIL ACTION NO. 18-2093

United States District Court, E.D. Pennsylvania.

Filed September 24, 2019

Christina M. Stephanos, Sweet Stevens Katz & Williams LLP, New Britain, PA, for Plaintiff.

Joshua Michael Kershenbaum, Benjamin J. Hinerfeld, Kershenbaum & Raffaele LLC, Bryn Mawr, PA, for Defendants.

MEMORANDUM OPINION

Rufe, District Judge.

This case arises under the Individuals with Disabilities Education Act ("IDEA")¹ and Section 504 of the Rehabilitation Act of 1973.² S.D., a student with disabilities, attended public school at Perkiomen Valley School District ("District") for three years and received special education services. Her parents, J.D. and J.D. ("Parents"), then moved S.D. to a private school based on concerns that S.D. was not making sufficient academic progress. Parents then commenced an administrative special education due process hearing against the District, where a Hearing Officer determined that the District failed to provide S.D. with a free appropriate public education ("FAPE") with respect to reading fluency, and ordered that the District reimburse Parents for one year of private school tuition and transportation expenses to and from that school. The District appealed the Hearing Officer's decision to this Court³ and moved for disposition on the administrative record. For the following reasons, the Court will grant the District's motion, therefore reversing the Hearing Officer's decision.

I. IDEA OVERVIEW

The IDEA requires school districts that receive federal education funding to provide every child with disabilities with a "free appropriate public education," commonly referred to as a FAPE.⁴ A FAPE is "an educational instruction ‘specially designed ... to meet the unique needs of a child with a disability,’ coupled with any ‘related services’ that are ‘required to assist a child with a disability to benefit from [that instruction].’ "⁵ The FAPE required under the IDEA must be "tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)."⁶

An IEP is developed through collaboration between parents and school districts,⁷ and "must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide."⁸ If "parents believe that the school district is not providing a FAPE for their child, they may unilaterally remove him [or her] from the school, enroll him [or her] in a different school, and seek tuition reimbursement for the cost of the alternative placement."⁹ The IDEA provides recourse in the form of an administrative due process hearing.¹⁰

A Hearing Officer's decision can be based on either substantive or procedural grounds.¹¹ A decision based on substantive grounds requires "a determination of whether the child received a [FAPE]."¹² A Hearing Officer may find that a procedural violation warrants relief "only if the procedural inadequacies (I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a [FAPE] to the parents' child; or (III) caused a deprivation of educational benefits."¹³

If either party is aggrieved by the findings and decision reached after such a hearing, the IDEA further allows that party to file a civil suit in state or federal court.¹⁴ "When parents challenge a school's provision of a FAPE to a child, a reviewing court must (1) consider whether the school district complied with IDEA's procedural requirements and (2) determine whether the educational program was ‘reasonably calculated to enable the child to receive educational benefits.’ "¹⁵

II. IDEA STANDARD OF REVIEW

In IDEA actions, the court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."¹⁶ In evaluating such claims, the court applies a "modified de novo " standard of review.¹⁷ This standard requires the court to give "due weight" and "deference" to the findings in the administrative proceedings.¹⁸ "Although a district court must make its own findings by a preponderance of the evidence,"¹⁹ factual findings of the hearing officer, such as whether a school district fulfilled its FAPE obligations, are considered prima facie correct, and if the reviewing court does not adhere to them, it must explain why.²⁰ In addition, credibility determinations based on live testimony are given "special weight," and the court must accept them "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion."²¹ The hearing officer's legal conclusions are reviewed de novo.²² "The party challenging the administrative decision bears the burden of persuasion before the district court as to each claim challenged."²³

III. PROCEDURAL HISTORY

On September 19, 2017, Parents, on behalf of S.D. and through counsel, filed a due process complaint against the District. Parents alleged that the District denied S.D. a FAPE in the 2015-2016, 2016-2017, and 2017-2018 school years based on deficiencies in S.D.'s programming.²⁴ Parents also alleged that this denial violated Section 504 by discriminating against S.D. based on her disability.²⁵ Parents requested compensatory education for the 2015-2016 and 2016-2017 school years, reimbursement for S.D.'s 2017-2018 private school tuition and transportation costs, and reimbursement for the May 2017 independent evaluation report which was obtained at Parents' expense.²⁶

The administrative complaint resulted in six days of evidentiary hearings before a Hearing Officer,²⁷ after which the Hearing Officer concluded that although the District met its obligations to provide a FAPE to S.D. in many goal areas in S.D.'s programming, "the District denied the student FAPE, and more precisely barred the parents from meaningful participation in understanding the student's programming due to holes in the reading fluency goal-progress data, in its handling of reading fluency in the student's educational programming."²⁸ The District was ordered to reimburse Parents for (1) private school tuition for the 2017-2018 school year, and (2) the cost of transportation to and from S.D.'s private school for the 2017-2018 school year.²⁹

IV. FACTS

In reviewing the Hearing Officer's determination, the Court must consider the evidence within the administrative record, including the Hearing Officer's decision, the hearing transcripts, various administrative exhibits introduced by both parties, and S.D.'s relevant IEPs.

A. Background

In February 2012, S.D. was in her kindergarten year in private school.³⁰ A private evaluation diagnosed S.D. with dyslexia and determined that her full-scale IQ was 84.³¹

Parents enrolled her in the District for her 3rd grade year, in anticipation of which, in the Spring of 2014, S.D. was evaluated by the District.³² In May 2014, the District issued an Evaluation Report.³³ The Report recommended that S.D. be identified as a student with specific learning disabilities in reading, mathematics, and written expression.³⁴ The Report also recommended speech and language services for S.D.'s articulation needs.³⁵ In June 2014, S.D.'s team met to craft her IEP.³⁶

B. S.D.'s 4th Grade IEP (May 2015)

In May 2015, at the end of her third grade year, S.D.'s team met to revise her IEP.³⁷ S.D.'s present level of academic achievement on the AIMSweb assessment in reading fluency was calculated at 38 words-correct-per-minute ("wcpm") on a 3rd grade level—S.D.'s current grade level.³⁸ The IEP set a goal of 127 wcpm on the 3rd grade probe.³⁹ On the same assessment, at a 2nd grade level, S.D.'s median score was 58 wcpm.⁴⁰

C. Revisions to S.D.'s 4th Grade IEP (December 2015/January 2016)

In December 2015, S.D.'s IEP team met to update her IEP.⁴¹ At this meeting, Parents expressed concerns about S.D.'s progress and instruction, and aspects of S.D.'s programming in reading and mathematics were revised.⁴² On this revision, S.D. was reported to have improved to 80 wcpm on a 2nd grade probe.⁴³ One month later, in January 2016, S.D.'s IEP team met again to update the IEP.⁴⁴ Neither the December 2015 or January 2016 revisions to the IEP made any changes to S.D.'s goals.⁴⁵

D. S.D.'s 5th Grade IEP (May 2016)

In May 2016, at the end of 4th grade, at S.D.'s annual IEP team meeting, S.D.'s IEP was revised.⁴⁶ The May 2016 IEP was the IEP in place over the Summer of 2016 and in September 2016 for S.D.'s 5th grade year.⁴⁷ In the present levels of academic achievement in reading fluency on a 4th grade probe — S.D.'s current grade level — S.D.'s median score was 87 wcpm.⁴⁸ There were no reported 3rd grade probe scores. On the 2nd grade probe, S.D. had improved to 96 wcpm.⁴⁹ The May 2016 IEP kept in place the May 2015 goal of 127 wcpm on a 3rd grade probe.⁵⁰

E. May 2017 Reevaluation and Private Evaluation

In May 2017, the District issued the mandatory triennial Reevaluation Report on S.D.⁵¹ That Report recommended that S.D. continue to be identified as a student with specific learning disabilities and articulation needs.⁵² Also in May 2017, Parents obtained a private evaluation of S.D.⁵³ On this evaluation, S.D.'s full-scale IQ was determined to be 81.⁵⁴ The Hearing Officer found that the "assessments largely align with the comprehensive testing/assessments from the February 2012 private evaluation and the District's May 2014 evaluation, although the behavior measures show improvement."⁵⁵ The private evaluator recommended that S.D. be identified as a "student with specific learning disabilities in reading and mathematics and needs in language and written expression."⁵⁶

F. ...