B. v. ABINGTON SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

A. B. through his Parent K.B., CIVIL ACTION

Plaintiff,

v.

ABINGTON SCHOOL DISTRICT, NO. 19-1914

Defendants.

MEMORANDUM OPINION

The parties have filed cross-motions for judgment on the administrative record following

an Administrative Due Process Hearing and a decision by a Pennsylvania Special Education

Hearing Officer denying Plaintiff’s claim for tuition reimbursement from Defendant Abington

School District (the District). For the reasons that follow, the Hearing Officer’s decision is

affirmed.

I. Background

A.B. is an autistic twelve-year-old resident of the District. From first through fourth

grades (Fall 2012 to Spring 2016), A.B. attended Highland Elementary School, one of the

District’s elementary schools. In 2012, when A.B. was in first grade, the District evaluated him

and identified him as a student requiring special education services. The District subsequently

developed and implemented Individualized Education Plans (IEPs) for A.B., most recently at the

beginning of A.B’s fourth grade year, in the Fall of 2015. After A.B. completed fourth grade,

however, A.B.’s mother withdrew him from Highland and enrolled him in Abington Friends

School, a private Quaker school located within the District. Following A.B.’s withdrawal from

Highland, the District mailed A.B.’s mother, K.B., a notice informing her that programming

would be made available to A.B. if she chose to re-enroll him in a District school. K.B. has

indicated that she received this notice and understood its content.

The next contact K.B. had with the District was in October 2017 (i.e., the Fall of A.B.’s

sixth grade year), when she wrote an email to Highland’s Principal, Dr. Jim Etlen. The email

was two sentences long and read: “Per our conversation in May 2016, I did not feel Highland

was meeting A.B.’s needs. I am interested in finding out what programs the district can offer

A.B., please let me know.” Etlen, who had not heard from K.B. since A.B.’s fourth grade year,

responded that same day by inquiring, “I’m not sure if this is a recent email or something that is

just making its way to my inbox. Could you clarify this for me?” K.B. responded, “I am

currently looking for information about programming in the district for A.B. and the next steps I

would take.”

Etlen and K.B. then spoke on the phone in December 2017. That same day, Etlen

emailed K.B., stating “Per our conversation, since A.B. will be entering 7th grade in the fall I

believe Dr. Matt Wexler, coordinator of student services at the junior high school would be best

to answer your questions regarding programming for next year.” (Emphasis added). K.B. did not

contradict Etlen’s understanding of their conversation. Etlen also emailed Wexler that day,

explaining that he had just spoken to K.B. and that “[s]he was interested in programming for her

son, however, if they decide to return he will be entering 7th grade in September.” About five

weeks later, in January 2018, K.B. sent Wexler a two-sentence email reading, “I am interested in

finding out what programs the school district can offer. Please let me know.”

The District and K.B. disagree about what happened next, though K.B. does admit that

she never asked for an evaluation “[b]ecause A.B. already had an IEP.” K.B. contends that

neither Wexler not anyone else from the district followed up with her in response to her January

2018 email, while the District contends that Wexler did follow up but that K.B. did not express

further interest in the District’s programming. The District bases its position on Wexler’s

recollection that he spoke to someone he believed to be A.B.’s mother sometime after receiving

the January 2018 email. Wexler said that, during this conversation, he described the type of

special education services the District offers and answered a few questions, that he specifically

noted that the person on the phone seemed disappointed when he explained that the District does

not “offer one-to-one laptops or technology” and that the person then ended the call with

something to the effect of “thank you for the information.” He also noted that the person did not

ask about an evaluation for her child.

Both parties agree that K.B. emailed Wexler in August 2018 of that year. Her email read:

As you know, my son [A..B.] is a special education student of the Abington School

District who has been attending private school. I do not believe that the School

District has offered an appropriate program and placement for [A.B.] for the

upcoming school year, leaving us with no other option but to continue [A.B.]’s

enrollment at Abington Friends for the 2018-2019 school year, and we ask that the

school district fund the tuition. If there is anything the School District needs at this

time, please do not hesitate to contact me.

The District denied the request for payment,1 and A.B.’s mother requested a Due Process

Hearing on the matter—the outcome of which forms the basis of this case. In her Due Process

Complaint, K.B. asserted that:

[The District’s] failure to offer a special education program to Student for the 2017-

18 and 2018-19 school year operated to deny student a free, appropriate public

education (FAPE) under the [Individuals with Disability Education Act (IDEA)]

and Section 504 of the Rehabilitation Act of 1973, as well as the federal and state

regulations implementing those statutes.

And, she requested reimbursement from the District for A.B.’s private school tuition for those

years. The Hearing Officer defined the issues before her as:

(1) Whether the District had an obligation to develop and offer A.B. a special

education program for the 2017-18 school year;

1 The District also requested permission to evaluate A.B. A.B.’s mother approved the evaluation but challenged the

results. That challenge is still pending and is not related to this action.

(2) Whether the District had an obligation to develop and offer A.B. a special

education program for the 2018-19 school year;

(3) If the District was required to develop and offer A.B. a special education

program for either or both of the 2017-18 and 2018-19 school years, is the

private school appropriate for the student; and

(4) If the District was required to develop and offer A.B. a special education

program for either or both of the 2017-18 and 2018-19 school years, and the

private school appropriate for the student, are there equitable considerations to

reduce or deny the request for tuition reimbursement?

She concluded that the District did not have an obligation to develop and offer A.B. a

special education program for his sixth and seventh grade years because “the vague questions

that the Parent asked of the two District representative over a several month period were not

sufficient to alert the district to any responsibility to do more than it did during the 2017-2018

school year” and because with “no objective manifestation of a desire for a proposed program or

even communication to the District about Student between January and August 2018, there is no

basis for finding any obligation on the part of the District for the 2018-2019 school year.”

Because the Hearing Officer found that the District had not denied A.B. a FAPE, she rejected

K.B.’s claim for tuition reimbursement and did not address whether Abington Friends was an

appropriate educational placement for A.B. or whether equitable considerations demanded a

reduction in the reimbursement.

Acting on behalf of A.B., K.B. initiated this action against the District, asserting

violations of the IDEA and Section 504 of the Rehabilitation Act, as well as of the Americans

with Disabilities Act (ADA).2 She asks the Court to reverse the Hearing Officer’s decision and

2 Plaintiffs’ ADA claim will be dismissed pursuant to 20 U.S.C. § 1415(l) for failure to exhaust administrative

remedies, as Plaintiffs did not raise an ADA claim at the Administrative Due Process Hearing. See I.H., 842 F.

Supp.2d at 776 (citing R.R. v. Manheim Twp. Sch. Dist., 412 Fed. App’x. 544, 550 (3d Cir.2011)) (“[W]here the

ADA claim is based on the same set of circumstances and seeks the same relief as the IDEA claim but was not

raised at the administrative level, it fails the exhaustion doctrine.”).

order the District to pay tuition reimbursement and related costs for A.B.’s sixth and seventh

grade years at Abington Friends, as well as reasonable attorneys’ fees and costs.

II. Discussion3

i. Standard of review for administrative proceedings

A district court applies a “modified de novo” standard in reviewing the decision of a

Hearing Officer. S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir.

2003). Under this “unusual” standard, “although the [d]istrict [c]ourt “must make its own

findings by a preponderance of the evidence,” it “must also afford ‘due weight’ to the [Hearing

Officer’s] determination.” Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194,

199 (3d Cir. 2004). Specifically,

factual findings from the administrative proceedings are to be considered prima

facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain

why. In addition, if a state administrative agency has heard live testimony and has

found the testimony of one witness to be more worthy of belief than the

contradictory testimony of another witness, that determination is due special

weight. [T]his means that a [d]istrict [c]ourt must accept the state agency’s

credibility determinations unless the non-testimonial, extrinsic evidence in the

record would justify a contrary conclusion.

Id. (internal quotations, citations and alterations removed).

ii. IDEA and Section 504 claims

a. IDEA and Section 504 generally

“Under the IDEA, a state receiving federal educational funding must provide children

within that state a ‘free appropriate public education’ (FAPE).” C.H. v. Cape Henlopen Sch.

Dist., 606 F.3d 59, 65 (3d Cir. 2010). “A school district provides a FAPE by designing and

implementing an individualized instructional program set forth in an Individualized Education

3 Jurisdiction is proper here pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i), which provides that a party

aggrieved by a Hearing Officer’s findings and decision may bring an action in federal district court.

Plan (IEP), which must be reasonably calculated to enable the child to receive meaningful

educational benefits in light of the student’s intellectual potential.” P.P. ex rel. Michael P. v. W.

Chester Area Sch. Dist., 585 F.3d 727, 729-30 (3d Cir. 2009) (internal quotations omitted).

“[A]n IEP . . . is, in essence, an offer of a FAPE.” I.H. ex rel. D.S. v. Cumberland Valley Sch.

Dist., 842 F. Supp. 2d 762, 771 (M.D. Pa. 2012).

“The IDEA also requires that a state have a system in place to identify, locate, and

evaluate all children in the state who have disabilities and need special education and related

services,” i.e., the “Child Find” requirement.4 P.P., 585 F.3d at 730. If a district suspects a child

of having a disability, the district “must conduct an evaluation of the [child’s] needs, assessing

all areas of suspected disability, before providing special education and related services to the

child.” Id.

As for Section 504, it and the IDEA “do similar statutory work.” P.P., 585 F.3d at 735.

Under Section 504, recipients of federal funds must “provide a [FAPE] to each qualified

handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of

the person’s handicap.” 34 C.F.R. § 104.33(a). Section 504 “is parallel to the IDEA in its

protection of disabled students: it protects the rights of disabled children by prohibiting

discrimination against students on the basis of disability, and it has child find, evaluation, and

FAPE requirements.” Id.5

4 Pennsylvania codifies these Child Find duties at 22 Pa.Code. §§ 14.121-14.125. Under Pennsylvania law, school

districts must: 1) implement a “public outreach awareness system” to notify the public of its special education

services; 2) establish a screening system to identify children requiring such services; 3) evaluate children suspected

of requiring such services following receipt of permission from parents, or upon parents’ request; and 4) re-evaluate

students where appropriate. See 22 Pa.Code. §§ 14.121-14.124. In short, Child Find places the burden on districts,

rather than on parents, to identify a child as a student in need of services. See Culley v. Cumberland Valley Sch.

Dist., 758 F. App’x 301, 306 (3d Cir. 2018).

5 Because “[t]he claims in this case made under § 504 are parallel to the IDEA claims,” i.e., because both claims

concern the District’s alleged FAPE denial, resolution of the IDEA issue will also resolve the Rehabilitation Act

issue. See P.P., 585 F.3d at 730. The Court’s analysis will thus focus on the IDEA, and resolution of the IDEA

b. Districts’ IDEA obligations to students in private schools

Though generally “[a] school district is obligated to have an IEP in place at the

beginning of the school year,” D.P., 482 F. App’x at 672 (citing 20 U.S.C. § 1414(d)(2)(A)),

“[i]f a student is enrolled at a private school because of a parent’s unilateral decision [to wit,

when a student is disenrolled from a public school and placed in a private school without the

district’s consent] the school district does not maintain an obligation to provide an IEP.” Sch.

Comm. of Town of Burlington, Mass., 471 U.S. at 365 (citing 20 U.S.C. § 1412(a)(10)(A)(i)); see

also I.H., 843 F. Supp.2d at 772 (“[T]he IDEA does not require the school district of residence to

provide a FAPE to an unenrolled student residing in its district.”). That is because “[u]nder the

federal regulations, a school district has different obligations to students enrolled in private

schools by their parents as opposed to students enrolled by the school district.” D.P., 482 F.

App’x at 672; see 34 C.F.R. § 300.137 (“No parentally-placed private school child with a

disability has an individual right to receive some or all of the special education and related

services that the child would receive if enrolled in a public school.”). “The statutory framework

logically suggests that [a school district] need not have in place an IEP for a child who has

unilaterally enrolled in private school and thereby rejected the district’s offer of a FAPE.”

Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp.2d 1057, 1068 (D.N.J. 2011).

Nevertheless, a school district maintains its obligation to provide an offer of a FAPE to

such a child—i.e., to evaluate such a child and develop an IEP for him—upon parental request, 6

and a district which does not comply with such a request fails in its FAPE obligations, and, thus,

issue in this case will also resolve the Section 504 issue.

6 This is in contrast to the Child Find requirements, which place the initial burden of “identify[ing] children in need

of special education services” on school districts and are not triggered by parental requests. D.K. v. Abington Sch.

Dist., 696 F.3d 233, 244 (3d Cir. 2012).

violates the IDEA. Id. at 1069 (explaining that “the statutory language makes clear that where

parents request reevaluations of their child for purposes of having an offer of a FAPE made for

him, and the child is domiciled in the district, the school district must comply”). Parents who

have unilaterally enrolled their child in private school are “entitled to request a reevaluation of

the student’s IEP at any time [from their resident school district], 20 U.S.C. § 1414(a)(2)(A)(ii),7

[which evaluation a] district must complete within 60 calendar days, 22 Pa. Code § 14.124(b),”

D.P., 482 F. App’x at 673, regardless of whether the child is enrolled in a district school or not,

see Moorestown, 811 F. Supp.2d at 1077.8

Because the IDEA imposes no obligation on school districts to sua sponte evaluate and

develop IEPs for students unilaterally placed in private schools, “the first question” a court must

answer in determining whether a district violated its FAPE obligations by failing to propose a

special education program for such a student is whether the parent made a “request” pursuant to

the IDEA. See id. at 1067. The decision in this case turns on what a parent must do to be

deemed to have made a “request” for a reevaluation in the context of Section 1414(a)(2)(A)(ii) of

the IDEA.

Cases interpreting “request” under the IDEA have generally construed the term narrowly.

In D.K., for example, the Third Circuit explained that “general expressions of concern [do not]

constitute a ‘parental request for evaluation.’” 696 F.3d at 248 n.5 (interpreting phrase “parental

request for evaluation” in 20 U.S.C. § 1514(d)(1)(A)(1)). Likewise, H.D. by & Through Jeffrey

7 20 U.S.C. § 1414(a)(2)(A)(ii) provides that “[a] local educational agency shall ensure that a reevaluation of each

child with a disability is conducted . . . if the child’s parents or teacher requests a reevaluation.”

8 If this were not the case “[p]arents would have to enroll their child in public school with no information about the

type of program the district may offer, where the child may be placed, or even if the district’s IEP would constitute a

FAPE,” Moorestown, 811 F. Supp.2d at 1070—a result inconsistent not only with the language of 20 U.S.C. §

1414(a)(2)(A)(ii), but also with the IDEA’s “broad purpose of providing children with disabilities a FAPE,” see

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238 (2009); see also I.H., 842 F. Supp.2d at 773.

D. v. Kennett Consolidated School District, held that a school district did not deny a child a

FAPE by failing to perform “further evaluation in anticipation of possible reenrollment” where

the parent’s request was not “clearly” made. 2019 WL 4935193, at *24 n.11 (E.D. Pa. Oct. 4,

2019). And, consistent with the Third Circuit, the Eleventh Circuit in Durbrow v. Cobb County

School District found that a parent’s request for “help” or to “test [the child] for something”

would not have “amount[ed] to a parental request for an IDEA evaluation.” 887 F.3d 1182, 1193

(11th Cir. 2018). By contrast, in Moorestown, parents were found to have made a “request” for

IDEA purposes where they objectively manifested their desire for an evaluation and IEP in

letters to the district requesting that “the child study team conduct appropriate evaluations,”

explaining that they needed to discuss the school district’s proposed program before deciding

whether to continue their child’s private placement, and noting that the statutory deadline for

evaluating their child and developing an IEP was approaching. 811 F. Supp. 2d at 1067; see also

James ex rel. James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 768 (6th Cir. 2000)

(finding that school district violated its IDEA obligations when it refused to develop an IEP for a

student unilaterally placed in private school despite “the parents specifically approach[ing] the

school district about re-enrollment and obtaining a new IEP” (emphasis added)).

v. District’s obligations to Plaintiffs

At the Due Process Hearing, the Hearing Officer heard testimony from witnesses for both

parties, including K.B., Etlen and Wexler. She detailed her findings of fact in a February 2019

order which denied Plaintiff’s request for tuition reimbursement. Of critical relevance is the

Hearing Officer’s findings that K.B. did not intend to remove A.B. from Abington Friends and

re-enroll him in the District in the middle of his sixth grade year; that Etlen understood K.B.’s

December 2017 call as relating to seventh grade programming, (i.e., to the 2018-19 school year);

that “all of the witnesses who testified [were] generally credible;” but that Wexler’s testimony on

the issue of whether he followed up with K.B. after her January 2018 email “is deemed to be

more reliable than that of the Parent on this specific fact” because “Parent’s testimony, while

clearly heartfelt and at time emotional, was not persuasive that [Wexler] failed to contact or

otherwise respond to her at all.”

Plaintiffs argue that the Hearing Officer erred in holding that K.B.’s contacts with the

District were insufficient to trigger its obligation to evaluate A.B. and propose an IEP for him.

They assert the Hearing Officer applied the wrong legal standard when she inquired into whether

K.B.’s contacts with the District objectively manifested a desire for the District to develop

programming for A.B.. They insist that “there is no need [a parent] to ‘objectively manifest a

desire for’ an evaluation or IEP or proposed program;” that “[a]ny such parental requests need

not be clear or unambiguous;” and that “[a]ll parents need to do is put the District on notice that

they are seeking possible programming.” And, they contend that, to the extent K.B. was

responsible for putting the District on notice, K.B.’s emails to Etlen and Wexler provided such

notice. Plaintiffs also contest the Hearing Officer’s finding that K.B. and Wexler discussed the

District’s special education services following K.B.’s January 2018 email.

While K.B. did not need to decide to give up A.B.’s spot at Abington Friends and send

him to a District school before she knew what programming it would offer, she did need to

request an evaluation by “objectively manifest[ing] a desire” for one. See D.K., 696 F.3d at 248

n.5; H.D., 2019 WL 4935193, at *24 n.11; Moorestown, 811 F. Supp.2d at 1067; Durbrow, 887

F.3d at 1193. This conclusion is consistent with the IDEA’s general approach of limiting school

districts’ responsibilities towards students unilaterally placed in private schools. See, e.g., 34

C.F.R. § 300.137.

Shane T. by & through Cathy K. v. Carbondale Area Sch. Dist., 2017 WL 4314555 (M.D.

Pa. Sept. 28, 2017), cited extensively by the Plaintiffs, is distinguishable. In Shane T., the school

district failed to evaluate a student unilaterally placed in private school following his re-

enrollment in public school. Id. at *5. Here, by contrast, it is undisputed that A.B. was never re-

enrolled in a district school.

Plaintiffs put much stock in the following language from Shane T.: “it is not the parent’s

obligation to clearly request an IEP or FAPE; instead, it is the school’s obligation to offer a

FAPE unless the parent makes clear his or her intent to keep the student enrolled in the private

school.” Id. at *15. To the extent that this “request” standard was intended as general guidance

(as opposed to guidance specific to the post-re-enrollment request context) it is unpersuasive in

that it is derived from a 2006 Office of Special Education and Rehabilitative Services (OSERS)

policy document unrelated to the issue of what constitutes a “request” for purposes of triggering

a school district’s obligation to evaluate and propose an IEP for a student unilaterally placed in

private school. Id. In that document, OSERS addressed confusion about which school district

would be responsible for offering a FAPE to a student unilaterally placed in private school where

a child resided in one district but attended school in another. The policy document explains that

[i]f a determination is made by the LEA [i.e., the school district] where the private

school is located that a child needs special education and related services, the LEA

where the child resides is responsible for making FAPE available to the child. If

the parent makes clear his or her intention to keep the child enrolled in the private

elementary or secondary school located in another LEA, the LEA where the child

resides need not make FAPE available to the child.

71 Fed. Reg. 46540-01, 46593. While this policy statement addresses the question of which

district must offer a FAPE to a child residing in one district but attending school in another, it

does not address how a request for an offer of FAPE must be made when a parent has

unilaterally enrolled in a private school but is exploring re-enrolling their child in the public

school district in which the child resides. Here, it is uncontested that A.B. both resides in the

Abington School District and attends private school in that same district.

From a review of the record and of the law, giving due weight to the Hearing Officer’s

decision, the Court finds by a preponderance of the evidence that the Hearing Officer’s decision

is correct. Plaintiffs insist that Wexler never spoke to K.B. about programming for A.B.’s

seventh grade year. However, Wexler recalled that he had “a very brief conversation” the week

of January 29, 2018 with a parent explaining that her child was a student at Abington Friends and

that, during the course of that conversation he “label[ed]” the type of special education support

offered by the District and answered a few follow-up questions. Wexler testified that the

conversation ended with something to the effect of “thank you for the information,” and it is

uncontested that K.B. had no contact with the District after her January 2018 email until she

made a request for tuition reimbursement seven months later. Though Wexler could not

remember the name of the person he had spoken with, the details he did remember—such as the

student at issues’ private placement and the timing of the conversation with the parent—were

consistent with Plaintiffs’ situation. The Hearing Officer—who had the opportunity to see and

hear the witness’ live testimony in this case, including that of K.B. and Wexler—determined that

Wexler’s testimony to the contrary was more credible than K.B.’s. The Court affords the

Hearing Officer’s determination “special weight” and accepts her determination on this matter as

true, because no “non-testimonial, extrinsic evidence in the record . . . justif[ies] a contrary

conclusion.” Shore Reg’l High Sch. Bd. of Educ., 381 F.3d at 199.

K.B.’s contacts with the District were insufficient to trigger the District’s responsibility to

evaluate A.B. and propose an IEP. Unlike in Moorestown, at no point did K.B. mention an IEP.

Neither did she request that the District evaluate A.B., develop a special education program for

him, or provide him with any type of services. At most, K.B.’s contacts with the District may be

interpreted as requests for information about potential services. A request for information,

however, is different from a request for action. See, e.g., A.B. v. San Francisco Unified Sch.

Dist., 2008 WL 4773417, at *8 (N.D. Cal. Oct. 30, 2008) (identifying “requests for services” and

“requests for information about programs, assessments, goals and objectives” separately in

discussing whether school district had denied child a FAPE).

Because the District’s obligation to propose a special education program for A.B. was

never triggered—either for the 2017-18 or the 2018-19 school year—the District did not have an

obligation to develop IEPs for A.B. for those years, did not deny A.B. a FAPE and Plaintiffs are,

thus, not entitled to reimbursement from the District for the costs of private school education in

those years. 20 U.S.C. § 1412(a)(1)(c)(i)-(iv); Jalen Z. v. Sch. Dist. of Philadelphia, 104 F.

Supp. 3d 660, 678 n.10 (E.D. Pa. 2015) (citing Sch. Comm. of Burlington, Mass., 471 U.S. at 369

(1985); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12, 15-16 (1993))

(no private school reimbursement if no denial of FAPE).

An appropriate order follows.

February 24, 2020 BY THE COURT:

/s/Wendy Beetlestone, J.

_______________________________

WENDY BEETLESTONE, J.