R.B. v. DOWNINGTOWN AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

R.B., et al., : CIVIL ACTION

: NO. 19-4035

Plaintiffs, :

:

v. :

:

Downingtown Area School District, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. December 23, 2020

I. INTRODUCTION

This case involves whether a Student receiving special

education in the Downingtown Area School District was denied a

free appropriate public education (“FAPE”) in kindergarten and

first grade. Following a due process hearing before a state

Hearing Officer, the parents of Student (“Parents”) filed suit

in this Court, alleging a violation of the Individuals with

Disabilities Education Act (“IDEA”). The case proceeded with

both parties filing motions for judgment on the administrative

record. Parents challenged the Hearing Officer’s denial of

reimbursement for private school tuition/2018 Extended School

Year (“ESY”) services and independent educational evaluations.

Parents also argue that the compensatory education award should

have been larger. Defendant (“the District”) argued that the

Hearing Officer erred in ordering them to provide compensatory

education to Parents.

The District’s motion will be denied because the Hearing

Officer did not clearly err in finding a denial of FAPE for the

2016-17 and 2017-18 school years. Parents’ motion will also be

denied because they have not demonstrated that Student’s

Individualized Education Program (“IEP”) was not implemented,

that the May 2018 IEP constituted a denial of FAPE, or that the

District’s evaluations were flawed.

II. FACTUAL/PROCEDURAL BACKGROUND

Student is a primary elementary school-aged student

residing in the Downingtown Area School District (“District”).

Student is eligible for special education pursuant to the IDEA

on the bases of an Other Health Impairment (i.e., ADHD) and a

Speech/Language Impairment.

Student began school in the District in kindergarten and

also attended first grade there, but attended a private school

at the Parents’ election for the 2018-19 school year and

repeated first grade. The Parents’ decision was made following

the District’s proposed program for that school year. Parents

filed a due process complaint against the District, asserting

that it denied Student a FAPE under the IDEA and Section 504 of

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

regulations implementing those statutes. Their claims related to

the 2016-17 and 2017-18 school years, as well as the program

proposed for the summer of 2018 and the 2018-19 school year.

At the due process hearing, the Parents sought compensatory

education, reimbursement for tuition and related expenses at the

private school, and reimbursement for two private evaluations.

The District maintained that its special education program, as

offered and implemented, was appropriate for Student and that no

remedy was due.

As relevant here, the Hearing Officer concluded that the

2016-17 IEP, developed when Student was 4.5 years old and

entering kindergarten, was appropriate except that most of the

goals did not have baselines, so progress on the goals was

consequently “impossible to glean.” Compl. Ex. 1, at 28, ECF No.

1-1. “As such, the progress monitoring reports and other

available information did not adequately inform the Parents, or

the Hearing Officer, on whether and how Student was achieving

the individualized expectations on [the relevant] IEP goals.”

Id.

As to the following year (2017-18), during Student’s first

grade, the Hearing Officer concluded:

Student’s impulsivity and lack of focus and attention

was negatively impacting academic skills including

reading to a marked extent, but the PBSP [Positive

Behavior Support Plan] was not revised. Although

academic interventions were implemented, a new FBA

[Functional Behavior Assessment] in February 2018 did

not result in any changes to the PBSP to any

meaningful degree until the May 2018 [Revision IEP]

that added interventions based on the FBA

recommendations. Progress on many goals including

those that did relate to behavior remained less than

clear, and was important to understanding whether and

how Student was or was not provided a FAPE in

addressing behaviors appropriately during the 2017-18

school year.

Id. at 29-30.

The Hearing Officer awarded compensatory education for the

FAPE denial in the amount of “(a) two hours per week for each

school day that the District was in session for students” during

the 2016-17 school year; and “(b) one hour per week for each

school day that the District was in session for students over

the 2017-18 school year.” Id. at 34. The Hearing Officer denied

Parents’ claim for reimbursement of private school tuition for

2018-19 and tuition for the 2018 Extended School Year (ESY)

program Student attended. Id. Reimbursement for privately

obtained evaluations was also denied. Id.

Parents filed a Motion for Judgment on the Administrative

Record, challenging the Hearing Officer’s conclusions in

relation to the compensatory education award and the

reimbursement for private school tuition, ESY tuition, and the

evaluations. The District also filed a Motion for Judgment on

the Administrative Record, challenging the Hearing Officer’s

conclusions in regard to the lack of baselines in the IEP goals

and the District’s behavioral programming. These motions are now

before the Court.

III. LEGAL STANDARD

In considering a challenge to a hearing officer’s decision

on an IDEA claim, district courts employ a “modified de novo”

standard of review. S.H. v. State-Operated Sch. Dist. of Newark,

336 F.3d 260, 270 (3d Cir. 2003). District courts may reach

different decisions than a hearing officer, but must accord the

decision of the hearing officer “due weight.” Carlisle Area Sch.

Dist. v. Scott P. ex rel. Bess P., 62 F.3d 520, 524 (3d Cir.

1995). Under this standard, the hearing officer’s factual

findings “are to be considered prima facie correct.” S.H., 336

F.3d at 270 (citing M.M. ex rel. D.M. v. Sch. Dist. of

Greenville Cnty., 303 F.3d 523, 530–31 (4th Cir. 2002)). “[I]f a

reviewing court fails to adhere to them, it is obliged to

explain why.” Id. (alteration in original) (quoting M.M., 303

F.3d at 531). “The court is not, however, to substitute its own

notions of sound educational policy for those of local school

authorities.” Id. (quoting M.M., 303 F.3d at 531). In other

words, the Court is not to serve as the arbiter of sound

educational policy.

Similarly, district courts must accept the hearing

officer’s credibility determinations “unless the non-

testimonial, extrinsic evidence in the record would justify a

contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v. P.S.

ex rel P.S., 381 F.3d 194, 199 (3d Cir. 2004) (quoting Scott P.,

62 F.3d at 529). “In this context[,] the word ‘justify’ demands

essentially the same standard of review given to a trial court’s

findings of fact by a federal appellate court.” Id.

Importantly, “whether the District fulfilled its FAPE

obligations” is “subject to clear error review as [a] question[]

of fact.” P.P. ex rel. Michael P. v. West Chester Area Sch.

Dist., 585 F.3d 727, 735 (3d Cir. 2009). And, “claims for

compensatory education and tuition reimbursement are subject to

plenary review as conclusions of law.” Id.

IV. DISCUSSION

A. The District’s Motion for Judgment

The District argues that “the hearing officer erred in two

basic regards: (1) concluding the IEP goals did not contain

baselines and so progress was ‘impossible to glean’ and ‘less

than clear,’ and (2) concluding the school district did not

respond properly to the February 2018 Functional Behavioral

Assessment (‘FBA’).” Def.’s Mot. J. Administrative R. 1, ECF No.

16. These will be reviewed in turn for clear error.

1. Finding Regarding Baselines in IEP Goals

The IDEA provides that an IEP must include “a statement of

measurable annual goals, including academic and functional

goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(II). Such a statement is

“designed to – (aa) meet the child’s needs that result from the

child’s disability to enable the child to be involved in and

make progress in the general education curriculum; and (bb) meet

each of the child’s other educational needs that result from the

child’s disability.” Id. The IDEA also requires that every IEP

include “a statement of the child’s present levels of academic

achievement and functional performance.” Id. §

1414(d)(1)(A)(i)(I).

In relation to the IEP goals determination, the District

argues that the Hearing Officer erred because “[t]he law does

not require ‘baselines,’ Lathrop R-II Sch. Dist. v. Gray, 611

F.3d 419, 425 (8th Cir. 2010), but goals that are measurable in

context, Colonial Sch. Dist. v. G.K. ex rel. A.K., 763 F. App’x

192, 197 (3d Cir. 2019).” Def.’s Mot. J. Administrative R. 2-3,

ECF No. 16.1 The term “baselines” is a bit ambiguous, since the

case law separates the term into two separate categories: (1)

historical baseline data, and (2) baseline data regarding the

Student’s present levels of educational performance (PLEP).

Given that the current dispute appears to center around the lack

of baselines related to PLEPs, see Compl. Ex. 1, at 5–9, ECF No.

1, the majority of the District’s case law becomes inapposite,

as the cases either deal with historical baseline data or

1 The District and Parents both cite non-precedential cases in support

because there are no precedential cases from the Third Circuit or analogous

cases from the Eastern District of Pennsylvania.

situations in which PLEPs were present.2 The District’s argument

is therefore only partially true. While the law does not require

historical baselines, it does require baselines relating to the

“child’s present levels of academic achievement and functional

performance.” See 20 U.S.C. § 1414(d)(1)(A)(i)(I); Red Clay

Consol. Sch. Dist. v. T.S., 893 F. Supp. 2d 643, 650-52 (D. Del.

2012). Consequently, the hearing officer’s decision is not

incorrect “[o]n this legal matter alone,” as the District

asserts. See Def.’s Mot. J. Administrative R. 18, ECF No. 16.

However, while a lack of PLEPs is an “undisputed procedural

violation,” “a procedural violation is not a per se denial of

FAPE. Substantive harm must be further proven.” Red Clay, 893 F.

Supp. 2d at 651 (internal citation omitted) (citing Nack ex rel.

Nack v. Orange City Sch. Dist., 454 F.3d 604, 612 (6th Cir.

2006)). Substantive harm occurs if the preponderance of the

2 See Lathrop R-II Sch. Dist. V. Gray, 611 F.3d 419, 424 (8th Cir. 2010)

(“The IDEA does not explicitly mandate such [historical baseline] data,

however. What it does require is ‘a statement of the child’s present levels

of educational performance . . . .’”); C.B. ex rel. Baquerizo v. Garden Grove

Unified Sch. Dist., 575 F. App’x 796, 799 (9th Cir. 2014) (“[T]he baselines

for C.B.’s goals in the IEP meet the requirements of the IDEA and provided

sufficient information upon which to measure C.B.’s progress toward goals;

any lack of greater specificity in the baselines did not amount to a denial

of a FAPE.” (citation omitted)); A.G. v. Paso Robles Joint Unified Sch.

Dist., 561 F. App’x 642, 644 (9th Cir. 2014) (“Although the IDEA requires ‘a

statement of measurable annual goals,’ it does not requires [sic] a statement

of quantifiable baselines. Rather, the IDEA requires baselines to contain ‘a

statement of the child’s present levels of academic achievement and

functional performance.’” (citation omitted)); Red Clay Consol. Sch. Dist. v.

T.S., 893 F. Supp. 2d 643, 650-52 (D. Del. 2012) (“[H]istorical baseline data

is not a necessary component of an IEP, especially when that IEP had PLEPs

from which to measure progress.”); Candi M. v. Riesel Indep. Sch. Dist., 379

F. Supp. 3d 570, 580 (W.D. Tex. 2019) (“A PLAAFP [present level of academic

achievement and functional performance] statement was included for each set

of [IEP] goals and objectives.”).

evidence shows that the “procedural inadequacies (i) [i]mpeded

the child’s right to a FAPE, (ii) significantly impeded the

parent’s opportunity to participate in the decision-making

process regarding the provision of a FAPE to the parent’s child;

or (iii) caused a deprivation of the educational benefit.”

Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 564 (E.D.

Pa. 2013) (Robreno, J.) (quoting C.H. v. Cape Henlopen Sch.

Dist., 606 F.3d 59, 66–67 (3d Cir. 2010)).

The District cites at least two cases which have found that

substantive harm does not exist as long as the IEP goals are

objectively measurable.3 On the other hand, Parents cite

Methacton School District V. D.W., No. 16-2582, 2017 WL 4518765,

at *7 (E.D. Pa. Oct. 6, 2017), where this Court affirmed a

hearing officer’s conclusion that “failure to obtain any

baseline data meant that the goals themselves were insufficient

to provide guidance to teachers regarding Student’s specific

3 See Nack, 454 F.3d at 612 (“[T]he short-term objectives in the IEP are

capable of measurement . . . . In the end, the minor procedural violations of

the sixth-grade IEP cannot be said to have caused David any substantive

harm.”); Dudley v. Lower Merion Sch. Dist., No. Civ. A. 10-2749, 2011 WL

5942120, at *8 (E.D. Pa. Nov. 29, 2011) (“Although the[] [IEPs] state that ‘a

baseline for this goal will be established by the end of January 2009,’ they

nonetheless set forth measurable goals. . . . The lack of baselines, in and

of itself, does not render the IEP inadequate.”). The District also cites

Kathryn F. v. West Chester Area School District, No. Civ. A. 12-6965, 2013 WL

6667773, at *3 (E.D. Pa. Dec. 18, 2013) (affirming hearing officer’s

conclusion that “[a]lthough none of these goals included baselines, they were

. . . objectively measurable”), but it is not clear whether the hearing

officer was discussing historical baselines or present level baselines.

instruction needs based on Student’s disabilities, and the

expected progress at the district high school.”

In relation to substantive harm, the District argues that

“[p]rogress reporting did not affect a FAPE” and that “[b]y

focusing on progress, the hearing officer wrongly imposed

liability based on outcome.” Def.’s Mot. J. Administrative R.

19-20, ECF No. 16. However, the District misses the Hearing

Officer’s point. The Hearing Officer found that:

The one problem with the 2016-17 IEP and its

implementation in this case, however, is a significant

one: most of the IEP goals over the course of the

2016-17 school year lacked baseline information, and

progress on the goals is therefore impossible to

glean. As such, the progress monitoring reports and

other available information did not adequately inform

the Parents, or the hearing officer, on whether and

how Student was achieving the individualized

expectations on IEP goals in occupational therapy,

speech/language, and social skills with behavioral

components. This is particularly concerning given

Student’s impulsivity and other behaviors that

interfered with Student’s learning, and will be

remedied through compensatory education.

Compl. Ex. 1, at 28, ECF No. 1.

The Hearing Officer later concluded that “the District denied

Student FAPE with respect to providing sufficient baseline and

other quantifiable information in order to assess progress on

IEP goals over the course of the 2016-17 school year . . . the

flaws were apparent on the face of the IEP from the start.” Id.

at 32.

The District’s characterization is therefore inaccurate

because the Hearing Officer did not hold that the District’s

progress reports caused the denial of a FAPE, but that the IEP

denied Student a FAPE due to the lack of baseline information

related to PLEPs. Similarly to the situation in Methacton, the

focus of the issue here was the lack of baselines relating to

PLEPs, and a consequence of that flaw was a lack of guidance

regarding expected progress on the IEP goals. See 2017 WL

4518765, at *19. Consequently, the Court cannot say that the

Hearing Officer wrongly imposed liability on outcome, since the

focus was actually on the inadequacy of the IEP and the

resulting lack of guidance regarding expected progress, rather

than the Student’s progress itself.

As a result of the foregoing, the Hearing Officer did not

clearly err in her determination that the IEP’s lack of baseline

information relating to PLEPs constituted a denial of FAPE.

2. Finding Regarding Behavioral Programming

In relation to the 2017-18 school year, the Hearing Officer

found that “unlike in the prior school year, there was more

information about Student’s baselines on the goals and progress

toward those areas over the first grade year that, when

considered together with all of the other information provided

to the Parents, did not amount to a denial of FAPE.” Compl. Ex.

1, at 29, ECF No. 1. However, the Hearing Officer found that

FAPE was denied on the basis of behavioral programming instead:

The Parents correctly observe that Student’s

identified behaviors remained essentially constant

over the two year period that Student was in the

District. By first grade, however, Student’s

impulsivity and lack of focus and attention was

negatively impacting academic skills including reading

to a marked extent, but the PBSP [Positive Behavior

Support Plan] was not revised. Although academic

interventions were implemented, a new FBA [Functional

Behavior Assessment] in February 2018 did not result

in any changes to the PBSP to any meaningful degree

until the May 2018 [Revision IEP] that added

interventions based on the FBA recommendations.

Progress on many goals including those that did relate

to behavior remained less than clear, and was

important to understanding whether and how Student was

or was not provided a FAPE in addressing behaviors

appropriately during the 2017-18 school year.

Id. at 29-30.

Where a student’s behavioral problems are impeding

their ability to learn, and the school district fails to

address those problems in an appropriate way, such a

failure may constitute a denial of FAPE. See Lauren P. ex

rel. David P. v. Wissahickon Sch. Dist., 310 F. App’x 552,

554–55 (3d Cir. 2009) (non-precedential) (affirming the

district court’s finding of a denial of FAPE due to

Wissahickon’s failure to systematically and consistently

address student’s behavioral problems which were impeding

her ability to learn).

Looking at the facts of this case, the Court cannot

say that the Hearing Officer clearly erred in finding a

denial of FAPE in the 2017-18 school year due to behavioral

programming. Similarly to Lauren P., the District knew that

distractibility was part of Student’s disability, that this

disability was negatively impacting Student’s academic

skills, and that Student’s IEP was not working, as

explained below. See id.

The District was well aware of Student’s behaviors

prior to the start of kindergarten, and Student’s

identified off-task and non-compliant behaviors persisted

throughout kindergarten and first grade. See, e.g., Compl.

Ex. 1, at 10, ECF No. 1 (“Student began the first grade

school year exhibiting difficulty remaining focused and on

task.”). Student’s identified behaviors remained

essentially constant throughout kindergarten and first

grade, but the District did not meaningfully change the

PBSP until almost the end of the Student’s first grade

year, despite the fact that “Student’s impulsivity and lack

of focus and attention was negatively impacting academic

skills including reading to a marked extent.” Id. at 29.

The District was also aware that Student’s IEP was not

working. Id. at 11 (“The teacher also indicated that

behaviors continued despite the use of charts and

implementation of the PBSP.”).

In the face of this record and the Hearing Officer’s

determination addressing Student’s entire tenure in the

District, the District’s argument that the Hearing Officer

“found the school district liable because it took about

three months to make changes to the PBSP” mischaracterizes

the Hearing Officer’s conclusion. See Def.’s Mot. J.

Administrative R. 21, ECF No. 16. A plain reading of the

Hearing Officer’s conclusion shows that the District did

not meet its FAPE obligations for the entire 2017-18 school

year.4 Under these circumstances, the District was liable

not only because of its failure in waiting until almost the

end of the school year to add interventions based on the

FBA recommendations from several months before, but also

because of its failure to properly address Student’s

behavioral needs all year. The District was aware of the

behavioral issues identified in the February 2018 FBA at

the beginning of the school year (and even before that),

and yet the PBSP was not meaningfully changed until almost

the end of the school year.

4 Hence the Hearing Officer’s compensatory education award of “one hour

per week for each school day that the District was in session for students

over the 2017-18 school year.” Compl. Ex. 1, at 34, ECF No. 1.

This case is also different from Coleman v. Pottstown

School District, 983 F. Supp. 2d 543 (E.D. Pa. 2013)

(Robreno, J.), where the school district took proactive

steps to address Student’s misbehavior, which was periodic

rather than ongoing. In that case, at the time the

student’s IEP was developed, “members of the IEP team

believed that the behavioral plan in the prior IEP was

working, that [student’s] social skills were improving, and

that the weekly counseling sessions sufficiently addressed

[student’s] behavioral problems.” Id. at 558. In the

instant case, members of the IEP team were aware in the

beginning of first grade that Student’s PBSP was not

working, that Student’s behaviors were continuing despite

implementation of the PBSP, and that the use of behavioral

charts was not sufficiently addressing Student’s problems,

and yet no meaningful revisions were made to the PBSP until

close to the end of the school year, even though the IEP

was revised in January as well.

The District also argues that “the question is one of

parent participation in decision-making about how the school

district responded to the FBA, and that is a procedural matter.”

Def.’s Mot. J. Administrative R. 21, ECF No. 16. It is unclear

how the District came to this conclusion, but a plain reading of

the Hearing Officer’s conclusion suggests that the question is

not one of parent participation, but rather concerns the content

of the IEP (for which the PBSP is a part of).5 The Third Circuit

has held that “[t]he content of an IEP . . . does not implicate

the IDEA’s procedural requirements for content is concerned with

the IEP’s substance.” Ridley Sch. Dist. v. M.R., 680 F.3d 260,

274 (3d Cir. 2012) (quoting D.S. v. Bayonne Bd. of Educ., 602

F.3d 553, 565 (3d Cir. 2010)). Given that the issue here is the

inadequate content of the PBSP (due to the District’s failure to

update the PBSP with new strategies despite ongoing awareness of

Student’s behavioral needs), the Court cannot say that the

Hearing Officer clearly erred in concluding that the behavioral

programming in 2017-18 denied Student a FAPE.

As a result of the foregoing, the District’s Motion for

Judgment on the Administrative Record will be denied.

B. Parents’ Motion for Judgment

Parents make three arguments: 1) the Hearing Officer’s

compensatory education award was insufficient; 2) the Hearing

Officer’s denial of tuition reimbursement was legal error; and

3) the Hearing Officer erred in failing to reimburse Parents for

the costs of Student’s independent educational evaluations

(IEEs). These arguments will be addressed in turn under plenary

review.

5 The fact that Student’s parents participated in a March 2018 IEP

meeting and signed a Notice of Recommended Educational Placement (NOREP) does

not change the inadequate nature of the IEP’s content.

1. Conclusion Regarding Compensatory Education

Compensatory education is an appropriate form of equitable

relief where a local educational agency (“LEA”) knows, or should

know, that a child’s special education program is not

appropriate or that he is receiving only trivial educational

benefit, and the LEA fails to take steps to remedy deficiencies

in the program. See M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389,

397 (3d Cir. 1996). Longstanding Third Circuit precedent

demonstrates that this type of award is designed to compensate

the child for the period of time of the deprivation of

appropriate educational services, while excluding the time

reasonably required for a school district to correct the

deficiency. Id.

There are also cases in which a denial of FAPE creates a

harm that permeates the entirety of a student’s school day. In

such cases, full days of compensatory education (meaning one

hour of compensatory education for each hour that school was in

session) may be warranted when the overarching impact of a

district’s denial of FAPE resulted in a pervasive loss of a

student’s educational benefit. See Tyler W. v. Upper Perkiomen

Sch. Dist., 963 F. Supp. 2d 427, 438-39 (E.D. Pa. 2013) (finding

that a district’s failure to address a student’s needs pervaded

his entire school day and warranted the award of full days of

compensatory education where “there was absolutely no

implementation of [student’s] IEP”).

The Hearing Officer found that “the denial of FAPE was

rather limited in this matter.” Compl. Ex. 1, at 31, ECF No. 1.

With respect to the 2016-17 school year, the Hearing Officer

concluded that the District denied Student FAPE by failing to

provide sufficient baseline information in order to assess

progress on IEP goals over the course of the school year. Thus,

the Hearing Officer used the amount of special education

specified in the April 2017 IEP as an “equitable and reasonably-

related number to quantify the compensatory education,” and

awarded Student two hours of compensatory education for each

week that the District was in session for students over the

2016-17 school year. Id. at 32. “No period of rectification

[was] made because the flaws were apparent on the face of the

IEP from the start.” Id.

In relation to the 2017-18 school year, “where FAPE was

denied on the basis of behavioral programming but other

interventions were appropriate,” the Hearing Officer concluded

that “the increase in special education support leads to an

equitable adjustment to one half of the amount of compensatory

education for the 2016-17 school year.” Id. Thus, one hour of

compensatory education was awarded for each week the District

was in session for students over the 2017-18 school year.

Parents argue as follows:

The Hearing Officer erred. The error principally arose

from the Hearing Officer’s failure to properly account

for (1) the District’s failure to appropriately

program for Student’s reading needs, and (2) the

extent to which the District’s denial of FAPE

permeated Student’s school day and impacted all

domains of Student’s progress. The record here

supports an award of full days [of] compensatory

education because like in those cases where Courts

award full days, Student made little to no progress.

This indicates that the District’s failure to address

Student’s needs pervaded his entire school day and

warrants the award of full days of compensatory

education. This Court should award additional

compensatory education to compensate Student for the

District’s failure to provide an appropriate reading

program, social skills programming, executive

functioning supports, and appropriate behavior

interventions.

Pls.’ Mot. J. Administrative R. 20, ECF No. 17.

As to the Parents’ first argument, the record does not

support their conclusion that the District failed to

appropriately program for Student’s reading needs.6 To the

contrary, and as the Hearing Officer noted in her report, “[t]he

record as a whole supports the conclusion that the District

recognized Student’s reading skill weaknesses as they were

manifested and responded with increasingly more intensive

supports through the 2016-17 and 2017-18 school years.” Compl.

Ex. 1, at 26, ECF No. 1-1.

6 Parents do not appear to disagree with any of the Hearing Officer’s

specific factual findings, but rather disagree with the legal conclusion

regarding compensatory education that was drawn from those facts.

Student’s benchmark testing in winter 2016-17 revealed that

Student was only below expectations in one of the four early

reading skills assessed.7 Id. at 25. Student thus continued with

regular education reading instruction (including Multi-Tiered

System of Supports (“MTSS”)), and it was only at the end of

kindergarten that Student began displaying weaknesses in other

early reading skills on benchmark assessments. Id. Importantly,

however, Student received an average score on an academic

achievement test in April 2017 and on that measure only attained

a “low average” score in oral reading fluency. Id. at 25-26.

Student had also moved into a pre-primer reading level by that

time. Id. at 26. Based on this performance and data, and when

viewed in context (i.e., Student was one of the youngest in the

grade given the kindergarten cut-off date), it was reasonable

for the School District not to rush to judgment quite yet. See

D.K. v. Abington Sch. Dist., 696 F.3d 233, 251 (3d Cir. 2012)

(finding school district was correct not to “jump to . . .

conclusion[s],” particularly for younger students); Bd. of Educ.

v. L.M., 478 F.3d 307, 313-14 (6th Cir. 2007) (same); see also

K.D. ex rel. Dunn v. Downingtown Area Sch. Dist., 904 F.3d 248,

255 (3d Cir. 2018) (“We may not rely on hindsight to second-

guess an educational program that was reasonable at the time.”).

7 It is also important to note that Student was in kindergarten at the

time and the classroom included students with varied reading skills.

By the start of first grade, Student’s reading skills

remained below expectations in several areas, so the District

moved Student to a more intensive MTSS level. Compl. Ex. 1, at

26, ECF No. 1-1. By the time of the November 2017 Reevaluation

Report (“RR”), individualized reading instruction was

recommended and Student started working with a reading

specialist while the IEP team worked to schedule a meeting that

was eventually held in January 2018. Id. As the Hearing Officer

noted, “[a]lthough Student was not identified as having a

specific learning disability in reading, Student began receiving

reading instruction with the learning support teacher addressing

needs in decoding, encoding, and sight words, with two goals in

the IEP directly related to Student’s areas of early reading

skills deficits.” Id.

Parents argue that the Wilson Reading program, which

private evaluators recommended and which Student allegedly

benefitted from in private school, demonstrates the type of

programming that the District should have provided to Student.

But the IDEA does not guarantee a specific

methodology/intervention or a specific outcome from the

programming that is provided. The IDEA “open[ed] the door of

public education to [disabled] children on appropriate terms”

but did not “guarantee any particular level of education once

inside.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

Rowley, 458 U.S. 176, 192 (1982); see also Endrew F. ex rel

Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 998

(2017) (“No law could do that—for any child.”); Polk v. Cent.

Susquehanna Intermediate Unit 16, 853 F.2d 171, 179 (3d Cir.

1988) (noting the Rowley Court’s focus on access to special

education and conclusion that the IDEA does not “guarantee any

particular level of education once inside”).

Notably, although Student’s private neuropsychologist

recommended the Wilson program and recommended that the District

program for a specific learning disability in reading and the

related areas of writing and spelling, she did not base that

recommendation on eligibility criteria in the IDEA. Compl. Ex.

1, at 26, ECF No. 1-1. This is also not a case where MTSS was

used to delay an evaluation; Student was evaluated twice by the

District during the relevant time period without identification

of a specific learning disability. Id. Although, as Parents

note, a finding of a specific learning disability was not a

prerequisite to a requirement to meet Student’s reading needs,

the findings, when taken in the context set out above, help to

understand the District’s reasonable decision not to “jump to .

. . conclusion[s]” and to wait until first grade to provide

Student with a reading specialist. See D.K., 696 F.3d at 251;

L.M., 478 F.3d at 313-14.

With respect to written expression and spelling, concerns

with those (beyond fine motor skills) were not raised until

April 2018 and the District responded with a SETT (Student,

Environment, Task, Tools) evaluation and action plan. Compl. Ex.

1, at 27, ECF No. 1-1. In short, the Parents have not met their

burden of establishing that the District violated the IDEA with

respect to programming for Student’s reading/writing needs.

Next, Parents argue that the record supports an award of

full days of compensatory education because like in those cases

where Courts award full days, Student made little to no progress

and the District’s denial of FAPE impacted all domains of

Student’s progress. However, the cases that Parents cite are

inapposite. The only precedential case, Tyler W., involved a

student in a partial hospitalization program (“PHP”) who only

received one hour of academic instruction per day, and even that

hour was not compliant with the specially designed instruction

in the student’s IEP.8 963 F. Supp. 2d at 438 (“[T]here was

8 Parents’ non-precedential cases are likely inapposite or unhelpful to

their argument. See Jana K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d

584, 600-10 (M.D. Pa. 2014) (awarding full days of compensatory education in

a situation where no IEP was implemented at all due to a school district’s

failure to identify the student as a student in need of special education --

the district had ample reason to suspect that the student suffered from a

disability, and yet never initiated an IDEA evaluation); Keystone Cent. Sch.

Dist. v. E.E., 438 F. Supp. 2d 519 (M.D. Pa. 2006) (affirming a Panel’s award

of full days of compensatory education for two school years in which there

was no IEP in place for one of the years, and a denial of FAPE for the other

year, but the court does not explain why there was a denial of FAPE); Damian

J. v. Sch. Dist. of Phila., No. 06-3866, 2008 WL 191176 (E.D. Pa. Jan. 22,

2008) (awarding full days of compensatory education where student’s emotional

support classroom teachers failed to implement substantial provisions of

student’s IEP); Montgomery Cnty. Intermediate Unit No. 23 v. C.M., No. 17-

absolutely no implementation of [student’s] IEP.”). The record

in this case certainly does not support such a “total failure to

implement [student’s] IEP.” See id. at 439. As explained above,

there is no indication that the IEP itself was not implemented.

The issues narrowly lie in the content of the IEP and whether

certain items should have been added or updated in the IEP.

As a result of the foregoing, the Court will affirm the

Hearing Officer’s conclusion that additional compensatory

education is not warranted in this case.

2. Conclusion Regarding Tuition Reimbursement

To determine whether parents are entitled to reimbursement

for their unilateral placement of a student in private school

after refusing a public school’s offered IEP, courts apply a

three-part test (the “Burlington-Carter” test) based upon School

Committee of Burlington v. Department of Education, 471 U.S. 359

(1985) and Florence County School District Four v. Carter by and

Through Carter, 510 U.S. 7 (1993). Under this test, the party

seeking relief must show: (1) the public school did not provide

a FAPE; (2) placement in a private school was proper; and (3)

the equities weigh in favor of reimbursement. See Florence, 510

1523, 2017 WL 4548022 (E.D. Pa. Oct. 12, 2017) (affirming an award of five

hours per day of compensatory education where student “was not receiving the

amount of personal care assistance initially recommended by [Plaintiff’s] own

staff and services to which he was entitled under his IEP were being provided

on a delayed or intermittent basis” for at least half of the time in which

compensatory education was granted).

U.S. at 12-16; Burlington, 471 U.S. at 374. The parties’

disagreement in this case turns on prong (1) and whether the May

2018 IEP provided Student with a FAPE. On that issue, the

Hearing Officer found as follows:

That [May 2018] IEP was responsive to Student’s

identified needs including in reading, written

expression, and spelling. By that time, more detailed

relevant baseline information was available for the

goals, and the PBSP had been revised to address the

data from the February 2018 IEP to add strategies

pursuant to that new information. The proposed ESY

services targeted the areas that Student needed to

maintain over the summer: reading, occupational

therapy, and social skills. That the Parents may have

wanted Student to make more progress over the summer

of 2018, especially in reading, is not a basis to

fault the District’s ESY proposal. Moreover, after

receipt of the Parents’ private evaluations, the

District convened a meeting to consider the new

information as it was required to do and suggested a

revision to the IEP in accordance therewith. 34 C.F.R.

§ 300.502(c). The denial of FAPE does not extend to

the offer for ESY in 2018 or the 2018-19 school year.

Compl. Ex 1, at 30, ECF No. 1-1.

Parents disagree and argue that several components of the

May 2018 IEP denied Student a FAPE. First, Parents argue that

“[c]ontinuing with the same goal in social skills after two

years despite that Student repeatedly touched, kicked, or

physically contacted peers inappropriately is not FAPE.” Pls.’

Mot. J. Administrative R. 27, ECF No. 17. It is not clear why

Parents object to the goal remaining the same for social skills

while simultaneously objecting to a “tweak to the occupational

therapy goal (even though Student had not met it).” Id. It is

also not clear which “goal” Parents are referring to, or even

that Student was “repeatedly” exhibiting those behaviors. After

the 2018 FBA was conducted, “Student received one behavior

report in March 2018 for touching and hitting other students two

days in a row; and another in April 2018 for kicking a peer

during recess. The teacher discussed the latter incident with

Student and Student completed a behavior report.” Compl. Ex. 1,

at 13, ECF No. 1-1. The record shows that the PBSP was revised

in May 2018 to remove physical contact with peers as a behavior

of concern, but that ESY services related to social skills,

among others, were added to help Student maintain these social

skills over the summer. Id. at 14. Afterwards, progress

monitoring in late spring 2018 and June 2018 showed that Student

was approaching mastery in respecting personal space in a small

group setting with prompts. Id. at 14-15. Consequently, the

District appears to have handled Student’s physical behavioral

issues appropriately.

Next, Parents argue that “increasing reading instruction

from 30 to 45 minutes per day without a systematic, phonics-

based, multisensory reading program such as Wilson was not FAPE.

. . . Student was instructed using a staggering seven different

curricula and one phonics game.” Pls.’ Mot. J. Administrative R.

28, ECF No. 17. Parents seem to be confusing a publisher’s

program (such as Wilson) with a curriculum. Given that the

fundamental purpose of special education is to address the

unique needs of a student resulting from their disability, it is

not unusual that an individualized education program would

utilize different instructional programs to address the

student’s varying needs.

Furthermore, the District only “refused to use Wilson,”

id., after Ms. Butler (Student’s special education teacher)

carefully considered and determined that Wilson was not

appropriate for Student. One of the programs Student was

receiving was Fundations, which is produced by the Wilson

Reading System and is very similar to Wilson Reading. Thus,

while Ms. Butler considered Wilson, she ultimately rejected it

because of Student’s demonstrated difficulty with Fundations,

which is very similar. She thus chose to use Reading Mastery

instead, which Student was responding to, as evidenced by his

progress.9 The fact that Parents wanted Student to make more

progress than he did or the fact that Student benefitted from

Wilson at private school does not mean that the District’s

choice of program was unreasonable. “We may not rely on

hindsight to second-guess an educational program that was

9 The April 2018 assessments showed that Student increased his F&P

(Fountas-Pinnell) guided reading level from B to D, and testimony from Meghan

Dennis (the Supervisor of Special Education) supports Student’s progress as

well: “After speaking with Mom, I also looked at his data and he seemed to

really be responding at that time. His rate of improvement really increased

sort of in that early spring coming to the end of the school year, he seemed

to really be responding to SRA, the Reading Mastery program.” Dennis Test.

657:5-11.

reasonable at the time.” K.D., 904 F.3d at 255; see also D.S.,

602 F.3d at 564-65. In this case, Parents have not met their

burden of showing that the District’s reading program for

Student was unreasonable at the time.

Lastly, Parents also argue that the May 2018 IEP denied

Student a FAPE because it “included the same executive

functioning programming that had failed Student for two years.”

Pls.’ Mot. J. Administrative R. 28, ECF No. 17. The record

disputes this assertion—the May 2018 IEP proposed to switch

Student’s program from Skills Streaming to a new program the

District had just acquired, which would be implemented in small

group instruction (with two other first graders), thirty minutes

per cycle. See Compl. Ex. 1, at 13-14, ECF No. 1-1; Def.’s Resp.

to Pls.’ Mot. J. Administrative R. 15, ECF No. 18. In this case,

Parents have not met their burden of showing that the District’s

new program for Student was unreasonable at the time.

As a result of the foregoing, the Court will affirm the

Hearing Officer’s conclusion that the May 2018 IEP did not deny

Student a FAPE. Therefore, Parents’ request for tuition

reimbursement and reimbursement for ESY 2018 was correctly

denied.

3. Conclusion Regarding IEEs

Parents argue that the Hearing Officer erred in not

reimbursing them for Student’s independent educational

evaluations (IEEs). “A parent has the right to an independent

educational evaluation at public expense if the parent disagrees

with an evaluation obtained by the public agency . . . .” 34

C.F.R. § 300.502(b)(1) (2019) (emphasis added).

Parents argue that the Third Circuit applies §

300.502(b)(1) broadly to permit reimbursement not only when

plaintiffs expressly disagree with an evaluation, see Warren G.

by and Through Tom G. v. Cumberland County School District, 190

F.3d 80, 87 (3d Cir. 1999), but this is an incorrect reading of

the case law. Warren G. held that parents do not need to

disagree with a public evaluation before seeking an IEE, see

id., not that parents can avoid expressly disagreeing

altogether. The Third Circuit, in a non-precedential opinion,

recently addressed this standard in M.S. v. Hillsborough

Township Public School District, 793 F. App’x 91, 93 (3d Cir.

2019):

[A] parent must disagree with an evaluation before

there is a right to obtain public funding for an IEE.

Neither our prior decision, nor, more importantly, the

text of the statute, can be read to permit

reimbursement without ever disagreeing with the prior

evaluation. Put differently, Warren G. addressed when

a disagreement may arise, not whether a disagreement

is necessary. And the text of the statute and

regulations make plain that it is.

In this case, the Hearing Officer found that even if the

Parents had specifically disagreed with the District’s

evaluations, there would be “no rational basis for ordering

reimbursement for two evaluations that did not contribute in any

meaningful way to an understanding of Student’s education-

related needs.” Compl. Ex. 1, at 33, ECF No. 1-1. Parents argue

that this conclusion is incorrect because “[t]he evaluations

identified Student’s specific reading, social skills, and

executive functioning deficits10 and provided recommendations for

necessary programming changes that the District’s evaluations

lacked.” Pls.’ Mot. J. Administrative R. 32, ECF No. 17.

Here, the IEE concluded that Student was eligible for

special education under Other Health Impairment (which the

District had already identified), but also suggested

consideration of Specific Learning Disability in reading,

spelling and writing. Compl. Ex. 1, at 16, ECF No. 1-1. This

latter conclusion was essentially based on grade equivalency

scores, which the private neuropsychologist noted “should be

interpreted with caution, did not mean that the student was

performing at that level, and could be unpredictable.” Id.

Student was also evaluated by a private reading specialist who

similarly noted that grade equivalencies “do not indicate the

grade level at which the child is functioning.” Id. (emphasis in

original).

10 Children at that age are not expected to demonstrate a high level of

executive functioning skills, so there remains disagreement over whether

Student’s executive functioning weaknesses actually qualify as a “deficit,”

but as discussed above, the School District provided programming nonetheless.

Given that Student was not formally diagnosed with a

specific learning disability, it is not clear how the

evaluations helped to further any understanding of Student’s

educational needs, particularly since the District had already

identified reading weaknesses and was already providing reading

support, as discussed above. The District’s evaluations also

identified Student’s issues with social skills, so given the

lack of detail in the Parents’ brief, their argument seems to

boil down to the programming provided, rather than the

evaluations themselves. Although both evaluators made

programming recommendations that aligned with the Parents’

wishes, no authority entitles Parents to choose which

programming the District provides, as explained above.

Since there is no indication that the District’s

evaluations were flawed, and the only issues relate to the

content of the IEPs (as discussed above and already remedied),

the Court will affirm the Hearing Officer’s conclusion denying

reimbursement for the Parents’ IEEs.

V. CONCLUSION

For all of the aforementioned reasons, both motions for

judgment on the administrative record will be denied.

An appropriate order follows.