Opinion

N.H. v. PHOENIXVILLE AREA SCHOOL DISTRICT

Court
District Court, E.D. Pennsylvania
Filed
Dec 20, 2021
Cited by
0 cases
Authority
More cited than 28.9%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

N.H., a Minor, By and Through : CIVIL ACTION

his Parents S.H. and L.H. :

:

v. :

: NO. 21-1066

PHOENIXVILLE AREA SCHOOL :

DISTRICT

MEMORANDUM

Bartle, J. December 20, 2021

Plaintiffs N.H. by and through his parents S.H. and

L.H. brought this action against the Phoenixville Area School

District (“District”) under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., and

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. N.H. is

a student with a primary disability of Other Health Impairment

(“OHI”) and a secondary classification of Autism. His parents

seek private school tuition reimbursement for the 2019-2020 and

2020-2021 school years. They assert that the District in those

years failed to provide N.H. with a free appropriate public

education (“FAPE”). A special education hearing officer held a

hearing and issued a decision denying plaintiffs relief. Before

the court are the cross-motions of the parties for judgment on

the administrative record.

I

Under the IDEA, states receiving federal educational

funds must provide to children with disabilities between the

ages of three and twenty-one a FAPE.1 See 20 U.S.C.

§ 1412(a)(1)(A). States, through local education agencies, must

identify, locate, and evaluate children who are in need of

special education and related services. § 1412(a)(3)(A). For

each child identified and in need of a FAPE, the agency must

develop an individualized education program (“IEP”).

§ 1412(a)(4); § 1414(d).

An IEP is a comprehensive plan prepared by a team,

including the student’s teachers and parents, in compliance with

a detailed set of procedures. § 1414(d). It identifies a

student’s educational needs and present abilities, designs

services for addressing the student’s needs, and sets goals for

measuring progress as well as a timeline for reaching those

goals. Id.

The IDEA creates a cause of action against a school

district that does not meet its legal obligations. A school

district may be liable for violating the procedural requirements

of the IDEA as well as for providing a substantively inadequate

1. Section 504 of the Rehabilitation Act likewise obligates

recipients of federal funds to provide a free appropriate public

education. See 34 C.F.R. § 104.33(a); D.K. v. Abington Sch.

Dist., 696 F.3d 233, 253 n.8 (3d Cir. 2012). Plaintiffs’ claims

under the IDEA and Section 504 of the Rehabilitation Act will be

considered together because in this context both acts impose on

the District the same duty. D.K., 696 F.3d at 253 n.8.

IEP that deprives a student of a FAPE. C.H. v. Cape Henlopen

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

To be eligible for compensatory relief for an

education agency’s violating an IDEA procedural requirement, a

plaintiff must show that the procedural violation caused the

student “substantive harm.” Id. (citation omitted). The IDEA’s

implementing regulations provide that a student has been

substantively harmed if “the procedural inadequacies

(i)[i]mpeded the child's right to a FAPE; (ii) [s]ignificantly

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) [c]aused a deprivation of the

educational benefit.” 34 C.F.R. § 300.513(a)(2).

For an agency’s failure to provide a substantively

adequate IEP, a plaintiff may either seek compensatory relief

for appropriate educational services within the district or

tuition reimbursement for a suitable placement in a private

school. C.H., 606 F.3d at 66. To be entitled to private school

tuition reimbursement, parents must establish: (1) the

education agency failed to propose an IEP that constituted an

offer of a FAPE, (2) the private school placement was

appropriate, and (3) equity requires reimbursement. Florence

Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12–

16 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.

359, 369–70 (1985).

A plaintiff may demand a “due process hearing” to

dispute an education agency’s compliance with the IDEA before an

administrative body, in this case the Pennsylvania Department of

Education’s Office of Dispute Resolution. 20 U.S.C. § 1415(g);

22 Pa. Code § 14.162. N.H.’s parents did so here. The losing

party may challenge the resolution of the administrative process

in state or federal court. § 1415(i)(2)(A). The reviewing

court shall receive the administrative record and hear

supplemental evidence at the request of a party.

§ 1415(i)(2)(C).

In reviewing administrative decisions under the IDEA,

the court applies a “modified de novo” standard of review.

P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d

727, 734 (3d Cir. 2009). Key to this inquiry is deference to

the educational expertise of the hearing officer. See, e.g.,

Montgomery Cnty. Intermediate Unit No. 23 v. K.S. ex rel. K.S.,

Civ. A. No. 20-2330, 2021 WL 2654144, at *7 (E.D. Pa. June 29,

2021). Review of questions of law is plenary. P.P., 585 F.3d

at 735. The court gives “due weight” and deference to the

factual findings of the hearing officer in the administrative

proceedings. Id. at 734. As such, the court treats the factual

findings of the hearing officer as “prima facie correct” and

reviews those findings for clear error. Id. at 734–35.

Although the court may depart from those findings if it fully

explains why by citing to the administrative record, the court

may not “substitut[e] its own notions of sound educational

policy for those of the agency it reviews.” S.H. v.

State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270

(3d Cir. 2003); see also Bd. of Educ. of Hendrick Hudson Central

Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982).

II

The hearing officer found the following facts. The

court defers to these findings, many of which are undisputed,

and none of which is clearly erroneous.2

N.H. is a fifteen-year-old student who has been

diagnosed with two disabilities recognized under the IDEA, OHI

and Autism. He began attending an elementary school in the

District during the 2015-2016 school year when he was a fourth

grader. The following school year, N.H. engaged in physically

aggressive behavior such as hitting and kicking adults as well

as throwing objects around the classroom. His parents informed

the District that N.H. would attend a private school in

Pennsylvania for the 2017-2018 school year.

2. As neither party has sought to offer additional evidence,

the court’s review is limited to the administrative record.

In October 2017, N.H.’s parents briefly considered

reenrolling N.H. as a student in the District. On the advice of

a therapist, however, they enrolled him in a private therapeutic

boarding school in Idaho for the rest of the school year. N.H.

continued to attend the Idaho boarding school the following

2018-2019 school year.3

N.H.’s parents considered reenrolling N.H. in the

District for the 2019-2020 school year. In March 2019, while

N.H. was finishing eighth grade at the Idaho boarding school,

his parents requested an offer of a FAPE from the District for

the upcoming school year. The District issued a notice to

reevaluate N.H. and requested N.H.’s availability for testing in

Pennsylvania. His parents consented to the reevaluation in

April but did not respond to the District’s request for dates

when N.H. would be available for testing.

N.H.’s parents and the District had no contact until

June when the District’s Director of Specialized Programs &

Services called N.H.’s parents and left a voicemail inquiring

about N.H.’s availability for testing. The Director followed up

via email in July. N.H.’s parents eventually responded that

N.H. would be returning to Pennsylvania from Idaho at the end of

3. Although the hearing officer analyzed whether plaintiffs

were entitled to reimbursement for N.H.’s tuition from the

2018-2019 school year, plaintiffs do not seek tuition

reimbursement from this court for that school year.

August and would be available between August 19 and September 3.

Later in July, N.H. visited Pennsylvania for two days en route

to an out-of-state family vacation. N.H.’s parents did not

inform the District of his possible availability during those

two days.

It was not until July 29 that N.H.’s parents supplied

the District with an educational evaluation of N.H. that a

clinical psychologist prepared earlier in March. The evaluation

considered N.H.’s scholastic aptitude and achievement as well as

behavioral metrics. It also relied on reports from N.H., his

parents, as well as his therapist and teachers at the Idaho

boarding school. It identified areas of need with various

behavioral traits such as executive functioning and social

skills. It found that N.H. struggled to use his coping skills

in unstructured settings and otherwise had difficulties with

attention, impulse control, and emotional control. It

recommended placing N.H. in a boarding school with a lower level

of care or a “structured setting with access to therapeutic

supports, predictability, smaller class size, extended time,

regular psychiatric services, physical activity, and ongoing

individual therapy.”

On August 1, 2019, N.H.’s parents requested funding

from the District for N.H. to attend a private Rhode Island

boarding school for the 2019-2020 school year. Although the

school year was set to begin on August 26, the District proposed

to test N.H. on August 27, 28, and 29. N.H.’s parents signed a

release granting the District access to N.H.’s records from the

Idaho boarding school on August 27. The next day,

representatives from District met with N.H.’s parents to discuss

additional testing needs. At that meeting, the District also

described its “interim” IEP for N.H.

The interim IEP was so termed because the District

developed it “in the interim of reevaluation” based on future

testing. It relied exclusively on the findings of the

March 2019 private evaluation supplied by N.H.’s parents. The

District proposed for N.H. “supplemental autistic and gifted

support and services” and set goals for measuring their

effectiveness. It recommended providing N.H. with, among other

things, a structured classroom and a school aide to provide one-

to-one behavioral and social support.

In September N.H. left for the Rhode Island Boarding

school where he lived until the school sent its students home at

the outset of the COVID-19 pandemic in March 2020. Meanwhile

the District continued to test N.H. when he returned to

Pennsylvania, including two days in October 2019, one in

November 2019, and another in January 2020. On these visits,

the District conducted various assessments of N.H.’s skills in

speech and language as well as his need for occupational therapy

and physical therapy. The District also sought information from

N.H.’s private schools. In September 2019, the District

received N.H.’s academic discharge report from the Idaho

boarding school. In December, the District requested records

from the Rhode Island boarding school.

In March 2020, the District completed its reevaluation

report. The report relied on the private evaluation, input from

N.H.’s teachers and parents, an interview with N.H., records

from N.H.’s schools in Idaho and Rhode Island, and the

assessments conducted earlier in the school year. It confirmed

that N.H. had a primary disability of OHI and continued to

qualify as a student with Autism. It found that N.H. struggles

with attention regulation, executive functioning, and

self-regulation. It also recommended changes to N.H.’s school

programming to promote his transition to a less restrictive

educational environment.

Later in March 2020, the District presented the

finalized IEP to N.H.’s parents in a meeting with them. The IEP

aimed to address N.H.’s needs in certain behavioral areas such

as his “perspective-taking” abilities in social settings, his

ability to prevent and cope with anxiety, as well as his

attention regulation and executive functioning. It offered

goals for him to improve his skills in these areas. It also

suggested specially designed instruction and modifications to

N.H.’s educational environment, including the following:

a highly structured classroom, checklists,

extended time, preferential seating, graphic

organizers, a 1:1 aide, scheduled breaks,

direct social skills instruction, gifted

enrichment activities, personalized lunch

selection, a transition plan, direct

executive functioning instruction, movement

breaks, weekly counseling with a social

worker, a FBA for PBSP development and

observation by a BCBA to assess classroom

functioning.

N.H.’s parents were not satisfied with the District’s

plan. In April 2020 they relayed to the District their

objections, among other things, to the proposed one-to-one aide,

N.H.’s placement in a regular education setting, and the

proposed classroom size. For those reasons, N.H.’s parents the

following month requested a due process hearing on the draft IEP

and sought tuition reimbursement for the 2019–2020 and 2020-2021

school years.

N.H.’s parents presented their case for reimbursement

before a hearing officer. Over the course of the four-day

hearing held by videoconference, they called ten witnesses,

including professionals who had evaluated N.H. from the District

and from the Idaho and Rhode Island boarding schools. One

parent testified at this hearing as well. The hearing officer

found each witness testified credibly although she explained she

gave more weight to the testimony of certain witnesses than to

that of others.

The hearing officer denied plaintiffs all relief. She

found that they were not due reimbursement for the 2019-2020

school year. In doing so, she concluded that the delay in

producing the August 2019 interim IEP did not cause N.H. or his

parents substantive harm. She also determined that the

August 2019 interim IEP constituted a proper offer of a FAPE.

With respect to the 2020-2021 school year, the hearing officer

rejected plaintiffs’ procedural and substantive arguments for

reimbursement. She ruled that the ten months it took the

District to complete the reevaluation report was not a basis to

entitle plaintiffs to compensation. She also held that the

March 2020 IEP was appropriate as it adequately addressed N.H.’s

needs with respect to coping skills, social skills, and

executive functioning.

III

Plaintiffs first argue that the District is liable for

not finalizing N.H.’s IEP before the beginning of the 2019-2020

school year. The hearing officer acknowledged the interim IEP

was not made available until August 28, 2019, two days after the

first day of school. Nonetheless, she found the timing did not

cause a denial of a FAPE. She explained that N.H.’s parents

contributed to the delay and had previously determined to send

N.H. to the Rhode Island boarding school:

On April 29, 2019, the Parents consented to

a reevaluation of Student. When issued, the

PTE indicated that assessments were planned

that would require the Student’s in-person

availability. Specifically, the District

planned to administer “psychoeducational

tests, perceptual-motor, academic and

social/emotional functioning,

speech/language, physical therapy and/or

occupational therapy assessments.” However,

communication lapsed between the parties

during May and most of June with phone calls

attempting to move the process forward,

either unreceived or unacknowledged between

the parties. On July 16, 2019, the Parents

advised the District that Student would be

available for in-person testing at the end

of August. On July 29, 2019, the Parents

provided the District with a privately

obtained psychological assessment of

Student. Although this evaluation occurred

months before, the Parents did not share it

with the District. By August 1, 2019, before

Student graduated from the Idaho boarding

school, the Parents had decided that the

Student would attend a Rhode Island boarding

school for the 2019-2020 school year. The

Parents then advised the District that

Student would be available for testing, in

person, between August 20, 2019 (after

graduation from the Idaho school) and

September 3, 2019 (commencement of school

year at the Rhode Island boarding school).

To be sure, the IDEA requires an education agency to

have an IEP in effect for each child with a disability in its

jurisdiction “[a]t the beginning of each school year.”

§ 1414(d)(2)(A). However, the failure to provide an IEP before

the first day of school is considered a procedural violation.

C.H., 606 F.3d at 68. Thus, a school district need only

compensate a plaintiff if the tardiness of the IEP caused the

student or parents substantive harm. See id. at 68–69.

Our Court of Appeals addressed in P.P. the effect of

an untimely drafted IEP. 585 F.3d 727. Even though the school

district delayed evaluating the student for months, an

administrative body denied parents relief because the parents

never intended to send the student to the public school. The

administrative body and district court found compelling that the

parents had enrolled their child in a private school before the

beginning of the school year. The Court of Appeals affirmed the

district court’s reliance on that finding. It explained that

the parents were not entitled to relief because “the record

[did] not show that the delay had any impact” on the parents’

decision to keep their child in private school. Id. at 737–38.

As noted above, the hearing officer found N.H.’s

parents had already decided to send N.H. to the Rhode Island

boarding school by August 1. To dispute that finding,

plaintiffs direct the court to the testimony of N.H.’s parent,

who stated that the plan throughout N.H.’s time at the Idaho

boarding school was to send N.H. back to a school in the

District. Plaintiffs also cite N.H.’s “Individual Service Plan”

at the Idaho boarding school, drafted in 2018, which stated that

N.H. was to return home to Pennsylvania following his discharge.

This evidence all relates to the parents’ state of mind prior to

August 1, 2019. The hearing officer did not find this evidence

persuasive as to the parents’ intent as of August 1, and this

court has no basis to reject her finding. Plaintiffs simply

have not identified any basis for any substantive harm from the

interim IEP’s late release. Accordingly, the hearing officer

properly found the delayed release of the interim IEP did not

cause N.H. or his parents substantive harm.4

Plaintiffs next argue the hearing officer erred in

finding that the interim IEP for the 2019-2020 school year was

substantively adequate. An IEP must be “reasonably calculated

to enable a child to make progress appropriate in light of the

child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas

Cnty. Sch. Dist. RE-1, 137 S. Ct. 998, 999 (2017). Whether an

IEP is reasonably calculated to do so is a question of fact that

this court reviews for clear error. K.D. ex rel. Dunn v.

Downingtown Area Sch. Dist., 904 F.3d 248, 254 (3d Cir. 2018).

The court must assess the IEP based on the information available

4. Although the hearing officer found the interim IEP was

dated August 28, 2019, N.H. claims the interim IEP was first

produced on September 13, 2019. Plaintiffs admit, however, that

N.H.’s parents met with the District to discuss the interim IEP

on August 28, and they do not cite any new information contained

in the interim IEP that was not discussed at this meeting.

Thus, even if N.H. had cited evidence showing the hearing

officer’s finding that the interim IEP was offered on August 28

was clearly erroneous, it does not alter the court’s holding.

to the school district “at the time it was made.” D.S. v.

Bayonne Bd. of Educ., 602 F.3d 553, 564–65 (3d Cir. 2010). In

doing so, the court is mindful that “the question is whether the

IEP is reasonable, not whether the court regards it as ideal.”

Endrew F., 137 S. Ct. at 999.

The hearing officer found the interim IEP offered N.H.

a FAPE. She highlighted the needs identified in the private

evaluation, including “increased perspective-taking abilities

within social situations, ability to identify antecedent to

anxiety and apply coping strategies, executive functioning

strategies, and application of coping skills.” She then found

the interim IEP adequately addressed those needs:

Although the private evaluation suggested a

step down from the Idaho therapeutic setting

to another boarding school might be

appropriate, it also provided instructional

recommendations for incorporation into a

school setting. The District incorporated

some of those suggestions into its interim

offer of FAPE. The interim IEP proposed

supplemental autistic support and services

and gifted programming with goals designed

to address Student’s known gifted, executive

functioning, social skills, and behavior

needs. Program modifications and specially

designed instruction (SDI) included a highly

structured classroom, a checklist with

expectations, a one-to-one aide to provide

behavior and social supports throughout the

school day, and a transition plan for

adjustment back to a community public school

setting.

Plaintiffs argue the interim IEP did not sufficiently

account for N.H.’s transition from the Idaho boarding school to

a placement in the District. Rather than place N.H. in general

education classes, plaintiffs argue the District should have

provided him a smaller class setting. They claim the hearing

officer erred in disregarding the testimony to that effect from

N.H.’s therapist at the Idaho boarding school, an administrator

at the Rhode Island boarding school, and his parent. They

object to the District’s proposal for N.H. to leave each class

after fifteen minutes to finish his coursework in a special

education classroom and the District’s designation of a one-to-

one aide, which they say would have been “stigmatizing and

alienating.” They also contend the interim IEP did not offer

enough mental health support because it did not program enough

special education time into his schedule.

To begin with, the hearing officer properly evaluated

the interim IEP based on the information the District had

available at the time. See D.S., 602 F.3d at 564–65. Because

of the parents’ delay in producing N.H. for testing, the

District could rely only on N.H.’s March 2019 private evaluation

when it drafted the interim IEP. At the time, the District was

not privy to the testimony from the Rhode Island school official

that plaintiffs reference in their motion as N.H. had not yet

enrolled in that institution. Likewise, due to the failure of

N.H.’s parents to communicate with the District, the District

received minimal input from them. Even if the District should

have actively sought information from N.H.’s parents and the

Idaho boarding school, the March 2019 private evaluation

incorporated reports both from N.H.’s therapist and teachers at

the Idaho boarding school as well as his parents. Thus, the

hearing officer did not err in evaluating the effectiveness of

the interim IEP based on the needs identified in the private

evaluation.

With this scope in mind, the court finds no clear

error in the hearing officer’s conclusion that the interim IEP

was reasonably calculated to address those needs. The hearing

officer found that N.H.’s needs in perspective-taking, executive

functioning, and coping skills were sufficiently addressed with

the proposed modifications to the classroom environment and

specially designed instruction. The interim IEP incorporated

some of the private evaluation’s recommendations for

reintroducing N.H. to a general education setting. Although the

interim IEP did not match every recommendation in the private

evaluation, such as smaller class sizes, the interim IEP did not

overlook any aspect of the evaluation in a way that would render

the IEP unable to offer a meaningful education benefit. Again,

the IEP must simply be reasonable and does not need to be ideal.

See Endrew F., 137 S. Ct. at 999.

IV

Plaintiffs also seek reimbursement for N.H.’s ninth

grade tuition at the Rhode Island private school for the

2020-2021 school year. They contend that during this school

year, the District committed procedural violations of the IDEA

and failed to offer N.H. a substantively adequate IEP.

Plaintiffs first argue they are entitled to tuition

reimbursement because the District did not timely complete the

reevaluation report and point to the ten-month period between

the time when N.H.’s parents consented to the reevaluation on

April 29, 2019, and the report’s release on March 2, 2020. This

is a longer interval than the sixty days allowed under

Pennsylvania law. See 22 Pa. Code § 14.123(b).

The hearing officer denied plaintiffs compensatory

relief over the District’s delay in completing the reevaluation

report. She noted that an education agency need not shoulder

the burden of evaluating a student placed on the parents’ sole

initiative in an out-of-state private school. For that

proposition, she relied on Great Valley Sch. Dist. v.

Douglas M., 807 A.2d 315, 321–22 (Pa. Commw. Ct. 2002), and

H.D. ex rel. Jeffrey D. v. Kennett Consol. Sch. Dist.,

Civ. A. No. 18-3345, 2019 WL 4935193, at *23–24 (E.D. Pa.

Oct. 4, 2019). Because N.H.’s parents unilaterally enrolled him

in an out-of-state school, she held the District could avoid

liability for the delay so long as the manner in which it

conducted the evaluation was reasonable. As N.H. lived in

Pennsylvania for only two weeks of the evaluative period--from

August 20 through September 3, 2019--she found the District’s

actions in performing tests on days when he returned to

Pennsylvania from Rhode Island to be reasonable:

The Student attended school in Idaho

and then Rhode Island for most of the

evaluative period. This decision effectively

rendered Student unavailable for the

performance of necessary assessments needed

to complete the reevaluation. The parties

communicated their availability, and except

for Student’s undisclosed return to

Pennsylvania in July, the Parents did their

best to comply and made Student available.

However, the longest period of Student’s

availability was mid-August 2019 until early

September. This timeframe provided a limited

window during the summer of 2019 (during

which the District had no obligation to

evaluate). The District had no

responsibility to push Student’s evaluation

to the front of the line during the summer

when the Parents had already decided to

place Student in another out of state

placement. This District did not participate

in any decisions to place Student in out of

state boarding schools. The Parents made all

decisions regarding placement of the

Student.

After the start of the 2019-2020 school

year, the same pattern continued. Student

remained in Rhode Island at a boarding

school. The parties communicated their

availability and made Student available on

select days for continued assessment.

The hearing officer further found that the District’s delay in

completing the reevaluation report did not cause N.H. or his

parents any substantive harm.

Plaintiffs assert that the District should have moved

more quickly to obtain certain information for the reevaluation

report. They fault the District for not assigning a school

psychologist until the first day of the 2019-2020 school year

and not requesting N.H.’s records from the Idaho boarding school

until January 2020. They also argue the school psychologist

took an unreasonable amount of time to draft the report once the

testing was completed.

The court agrees that the District acted reasonably in

evaluating N.H. considering the geographical constraints with

which it was encumbered. Before the District received N.H.’s

records from the Idaho boarding school, it had access to

information about his progress and current abilities at that

school through the March 2019 private evaluation since, as noted

above, the evaluation relied on input from N.H.’s teachers and

therapists. Furthermore, save for a couple of weeks in August

and September 2019, N.H. was in Idaho and Rhode Island during

the evaluative period. The District cannot be blamed for the

decision of N.H.’s parents to place him at schools faraway. The

District was reasonable in coordinating with N.H.’s parents to

schedule testing for N.H. once or twice a month on dates when

N.H. could return from his Rhode Island school. The court also

notes, as did the hearing officer, that N.H.’s parents

contributed to this delay. Although N.H.’s parents requested an

offer of a FAPE in April 2019, they did not respond to the

District’s request for N.H.’s availability until July 2019, and

when they did, they provided the school with only a two-week

window to complete the testing when N.H. was in Pennsylvania.

Likewise, N.H.’s parents commissioned a private evaluation of

N.H. in March 2019 but did not share it with the District until

July 29. In sum, given the circumstances, the District

scheduled testing for N.H. on a reasonable timeline.

Even if the District’s evaluative process were

unreasonable, the reevaluation report delay would be a

procedural violation of the IDEA. The delay must cause

substantive harm to warrant compensatory relief. See, e.g.,

P.P., 585 F.3d at 737–38. As noted above, as early as

August 1, 2019, N.H.’s parents were already set on sending him

to the Rhode Island boarding school roughly a month before the

start of the 2019-2020 school year. And in March 2020 there was

still ample time ahead of the 2020–2021 school year for N.H.’s

parents to decide to reenroll him in the District. The court

agrees with the hearing officer that the District’s delay in

completing the reevaluation report did not result in any

substantive harm.

Next, plaintiffs challenge the District’s methodology

in compiling the reevaluation report. They claim the District’s

speech and language therapist did not adequately assess N.H.’s

social skills. The therapist testified that during her

evaluation, however, she questioned N.H. to determine if he

could “make social inferences based on pictures that he was

viewing” and also “read him social scenarios [to] see if he

responded appropriately with his pragmatic language skills.”

Plaintiffs also contend the District’s occupational therapist

erred by not seeking teacher input from his Rhode Island

boarding school. The therapist testified he solicited input

from the Rhode Island boarding school but, when he did not hear

back, he concluded the information he gleaned from examining

N.H. was sufficient to compile his report. Because evidence in

the record supports the hearing officer’s findings that the

assessments of both therapists were adequate, plaintiffs have

not met their burden of showing those findings to be clearly

erroneous.

Plaintiffs finally contend the March 2020 IEP, based

on the revaluation report, did not constitute an offer of a

FAPE. First, they take issue with the March 2020 IEP’s

monitoring goals. An IEP must “identify goals for meaningful

improvement relating to a student’s potential.” Coleman v.

Pottstown Sch. Dist., 983 F. Supp. 2d 543, 563 (E.D. Pa. 2013);

see 20 U.S.C. § 1414(d)(1)(A). However, an IEP can be

sufficient even if it does not include “specific monitoring

goals for every single recognized need of a disabled student.”

Coleman, 983 F. Supp. 2d at 573. The inquiry, of course, is

whether the omission or imprecision of a monitoring goal renders

the IEP unable to provide a meaningful educational benefit.

See id.

Plaintiffs argue that the IEP’S coping skills goal

inaccurately responds to anxiety. Instead, they contend this

goal should address N.H.’s “perspective-taking and regulating

behaviors in response to frustrating circumstances.” They claim

the IEP also fails to address N.H.’s needs in executive

functioning. The executive functioning goal called for N.H. to

use a day planner, and while this may address his organization

skills, plaintiffs believe it overlooks N.H.’s needs in

“cognitive flexibility, sustaining attention, and inhibitory

control.” Plaintiffs further contend the IEP was deficient for

not including a goal to address N.H.’s self-confidence.

The hearing officer found that the March 2020 IEP

proposed goals responsive to the needs identified in N.H.’s

reevaluation report. She endorsed N.H.’s coping skills goal:

The IEP goals were interrelated and designed

to teach the Student necessary coping and

self-regulatory behaviors while

acknowledging the ongoing struggle with

anxiety. The proposed coping skills goal was

designed to help Student self-identify

feelings of anxiety and incorporate

introduced strategies to reduce those

feelings. Specifically, the District offered

direct instruction in the areas of self-

regulation and problem-solving. Instruction

would occur three times per six cycle day

during counseling sessions to review coping

strategies and anxiety management. This goal

was based on the results from the

assessments of emotional functioning, the

Parent concerns, and the input received from

the boarding schools Student attended. All

that information was consistent that Student

although academically talented, required an

educational plan with explicit behavioral

expectations.

The hearing officer also found N.H.’s social skills

goals were appropriate:

The RR determined Student had social skills

needs requiring direct instruction,

emphasizing coping skills, perception

taking, and regulating behavioral responses

to frustrating circumstances. Appropriately,

the March IEP proposed two social skills

goals designed to address peer influence and

perspective. Direct instruction focusing on

reciprocal conversation, social cues, and

peer relations supported both goals. The

District proposed these goals in direct

response to Student’s identified needs as

outlined in recent parent and teacher input

and corroborative evaluative data. The

Parents’ assertion that the executive

functioning goal ignores identified needs is

also unsupported by the evidence. The

completed RR concluded that Student had

challenges with attention regulation and

executive functioning, warranting special

education eligibility as a child with OHI.

The evaluative conclusions recognized that

Student needed direct instruction in

“cognitive flexibility, attention,

inhibitory control and

planning/organization.”, precisely what the

IEP proposed. Through this goal, Student

would receive direct instruction focusing on

day planner usage, organization, work

completion, test preparation, task

initiation, and time management.

The record supports the hearing officer’s

determination that the IEP was reasonably calculated to enable

N.H. to make educational progress. At the outset, the court

sees no merit in plaintiffs’ attempts to dissect the coping

skills goal in the IEP. As the hearing officer observes, N.H.’s

struggle with anxiety is “interrelated” with his coping and

self-regulatory behavior. The exception plaintiffs take to the

District’s attempt to address anxiety through these skills is

perplexing considering the hearing officer’s finding that N.H.’s

2019 private evaluation and his parent’s testimony “extensively

referenced” his history and former diagnosis with anxiety and

its impact on his functioning. The court likewise notes that

the coping skills goal mentions “direct instruction in

self-regulation.” Although the coping skills goal does not

address N.H.’s perspective-taking skills, the IEP addresses them

in a separate social skills goal.

The record also does not support plaintiffs’ claim

that N.H.’s executive functioning goal in the IEP was deficient.

It was not, as they claim, “focuse[d] simply” on teaching

organization by having N.H. use a day planner. The reevaluation

report named additional areas of need in cognitive flexibility,

sustained attention, and inhibitory control. The hearing

officer found that his executive functioning goal responded to

all these needs. The goal involved direct instruction--and not

just on his use of a planner but also on his skills in

“organization, work completion, test preparation, task

initiation, and time management.”

It is true that the March 2020 IEP did not contain an

express goal to improve N.H.’s self-confidence. Consistent with

the precept that the IDEA requires only a reasonably calculated

IEP, the absence of a goal to address N.H.’s self-confidence

need is not fatal. See, e.g., Coleman, 983 F. Supp. 2d at 573.

The court sees no error in the hearing officer’s determination

that, in the totality of the circumstances, the March 2020 IEP

goals were sufficient to meet N.H.’s needs.

Aside from its monitoring goals, plaintiffs maintain

the IEP is flawed because the District offered to place N.H. in

a regular education class with a one-to-one aide. They

reiterate the presence of the aide in the regular education

classroom would have stigmatized N.H. They believe the only

proper placement for him would be in a “small, structured

classroom environment.”

The hearing officer found that the District’s plan to

place N.H. in regular education classes with an aide was

reasonably calculated to provide a meaningful educational

benefit. She credited the District for proposing specially

designed instruction in a “highly structured” environment. She

noted the District planned for N.H.’s “gradual acclimation to a

larger school environment.” She also considered and rejected

concerns over the potential stigmatization of having the aide in

N.H.’s classroom:

Under this plan, in the morning, the Student

with the aide would report to the autistic

support classroom to review the daily

schedule. Student would then report to the

appropriate class for fifteen minutes with

time increasing consistent with a growing

comfort level. A [Board Certified Behavioral

Analyst] was also proposed to conduct a

classroom observation, collect data, and

make recommendations about the necessity of

continued support by the one-to-one aide.

The proposal of an aide was in direct

response to concerns about Student’s

potential for anxiety and coping skills

associated with adjustment to a public

school. To reduce possible anxiety, the

District proposed the assignment of two

different aides to Student. Testimony from

the District established that as Student

learned and then implemented the social and

behavioral skills, a reduction of the aide’s

time would commensurately decrease.

The hearing officer weighed conflicting evidence on

whether the placement in the regular classroom with the

one-to-one aide would be effective. N.H.’s therapist at the

Idaho boarding school testified that N.H. needed a smaller

classroom because N.H. would become overwhelmed in big group

settings. Likewise, an administrator from the Rhode Island

boarding school said that the presence of an aide in the

classroom would damage N.H.’s self-esteem and self-confidence,

and N.H.’s parent also testified that N.H. had an aide when he

attended an elementary school in the District and that the

presence of the aide was stigmatizing.

By contrast, the District’s Special Education Teacher

testified that the regular education classes the District

proposed would have structure and set routines. She testified

that the District trained regular education teachers to provide

clear and precise expectations, which she said would help N.H.

with his executive functioning skills. She explained that the

District had taken steps to mitigate the possibility of stigma

from the presence of the one-to-one aide in the classroom. The

aides, she testified, would facilitate classwork and support the

teacher “in a less discrete, less involved kind of way.” To

further reduce potential stigma, the District would provide N.H.

with two different aides throughout the day.

Plaintiffs essentially argue that the hearing officer

erred in weighing the evidence. The hearing officer was well

within her province to credit and give more weight to the

testimony offered by the District. Considering the evidence

supporting her decision, plaintiffs have not met their burden to

show that the hearing officer committed clear error in finding

that the March 2020 IEP was appropriate. As noted above, it is

not for the court to “substitute its own notions of educational

policy for those of local school authorities.” S.H., 336 F.3d

at 270.

V

The court agrees with the hearing officer that the

District did not deny N.H. a FAPE for the 2019-2020 and

2020-2021 school years. Thus, the court need not reach the

issues of whether N.H.’s placement at private schools was

appropriate and whether equitable considerations require

reimbursement.

The court will deny the motion of plaintiffs for

judgment on the administrative record and will grant the motion

of the defendant Phoenixville Area School District for judgment

on the administrative record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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