# R.B. v. DOWNINGTOWN AREA SCHOOL DISTRICT

> District Court, E.D. Pennsylvania · December 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10400197

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10400197

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400197. Public record. Not legal advice.