HEMPFIELD SCHOOL DISTRICT v. S.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HEMPFIELD SCHOOL DISTRICT : CIVIL ACTION

:

v. : NO. 23-2800

:

S.C., M.C. and S.R.-A :

MEMORANDUM

KEARNEY, J. January 31, 2024

Teaching young children on the autism spectrum is a special calling. Finding qualified

teachers and professionals to teach kindergarten and first grade students on the autism spectrum

during a worldwide pandemic presented greater challenges for school administrators. Teachers

leave and the schools must still teach. The schools must be mindful Congress mandates the states

accepting federal education funds provide a free appropriate public education to students in their

district and must hire the staff to do so. And the school district must reimburse parents forced to

pay tuition at another school if the school district cannot provide the required education.

We today review a hearing officer’s findings a Lancaster County school district partially

met its obligations to the student for the kindergarten and first grade years beginning in November

2020. We agree with the hearing officer in part. The District did not provide a free appropriate

public education to the child on the autism spectrum during the entirety of the kindergarten and

first grade years. The student is entitled to compensatory education. We remand to the hearing

officer for a non-arbitrary finding as to the amount of compensatory education. The District must

compensate the child’s parents for tuition paid to a district who provided services. We are not

persuaded by the District’s arguments. Ordering it reimburse the parents for tuition paid to a

neighboring public school district does not violate the Constitution’s Spending Clause as the State

is on ample notice of its obligation to provide the appropriate education and reimburse

demonstrated tuition when it cannot meet its obligations. The parents are entitled to

reimbursement of their tuition payment and reasonable attorney’s fees but must now timely

demonstrate the amount and reasonableness of the tuition and reasonable attorney’s fees before we

can enter a final judgment.

We do not suggest the District acted in malice or ignorance; it tried to meet its obligations

to its student with stopgap coverage resulting in largely ineffective steps without special education

teachers or appropriate training. But the record confirms it did not meet its obligations to this

young student in its District for part of his kindergarten and first grade years.

I. Facts developed during the due process hearing.

S.C. is a nine-year-old student with autism and a speech and language impairment.1

Physicians diagnosed S.C. with a cleft palate making it difficult for him to make certain sounds.2

S.C. requires specially designed instruction throughout his school day to support his development

of verbal and nonverbal communication skills and make progress in his education. S.C. began

attending school in the Hempfield School District in kindergarten and received special education

services.3 Hempfield District always provided the eligible S.C. with special education services

while attending the Hempfield District school.4

S.C. receives early intervention services.

S.C. received early intervention education services as a preschool student with autism

through the Lancaster-Lebanon Intermediate Unit 13 beginning in 2017.5 Lancaster-Lebanon

Intermediate Unit 13 developed an individualized education program (IEP) for S.C. in May 2017.6

The IEP team set measurable goals related to, among other things, building S.C.’s social

interaction skills and his ability to listen to and follow teacher instructions. The IEP Team met at

least annually to discuss S.C.’s progress toward his goals and revise the IEP based on

recommendations from S.C.’s teachers, service providers, and his Parents.7

Preparing for S.C.’s transition to a school-age program.

S.C.’s Parents planned to transition S.C. from early intervention services, which are only

two-and-a-half hours of instruction per day, to an all-day school age program in the Hempfield

School District for the 2020-2021 school year. The District issued a Reevaluation Report finding

S.C. still qualified for special education and related services under the primary eligibility category

of autism and secondary eligibility category of speech or language impairment.8 The Hempfield

School District then convened an IEP team meeting with S.C.’s Parents to prepare for S.C.’s

transition to school-age programming.

S.C.’s June 2020 IEP for kindergarten.

The IEP Team developed a school-age IEP in June 2020 to be implemented through S.C.’s

2020-2021 kindergarten year in the Hempfield School District.9 The IEP required the District

provide S.C. with all of his academic instruction in an autistic support classroom using a modified

curriculum.10

The IEP team set annual goals in the June 2020 IEP including: (1) functional

communication (communicating wants and needs, labeling items, following simple one-step

directions), (2) requesting (also referred to as “manding,” meaning the ability to independently ask

for desired objects and activities), (3) imitation (immediately following instructions prompting

him to “do this”), (4) following one-step directions, (5) echoics (repeating spoken verbalizations),

(6) tacting (identifying and labeling pictures laid out on table), and (7) visual-motor/fine motor

skills (tracing, coloring, cutting, writing name, and closing fasteners on practice boards).11

Program modifications and items of specially designed instruction included a timed-

toileting program, use of behavior protocols to increase safety awareness, escort to and from the

bus each day, a communication log between home and school, a personal care assistant for five-

and-a-half hours per day, individualized and small group instruction, a pair teaching environment,

use of a wide variety of reinforcers (including toys and edibles), errorless teaching procedures,

interspersing easy and difficult demands, fast-paced instruction, transportation to and from school,

mixed and varied types of instructional demands, promised reinforcers for transitioning to less

preferred activities, prompts for grasp, guided practice for visual motor and self-care tasks,

assistance for self-care tasks, a feeding protocol, speech and language therapy, and occupational

therapy.12

The IEP provides his progress on certain goals, including tacting and following one-step

directions, would be measured through daily probes. S.C.’s progress would be assessed on a

trimester basis. S.C. would spend approximately 85% of his day in special education settings and

the remaining 15% in a regular classroom.13 S.C.’s parents approved the District IEP on June 8,

2020.14

S.C. attends kindergarten in the Hempfield School District (2020-2021 school year).

S.C. began kindergarten in the Hempfield School District in August 2020.15 S.C. was

primarily non-verbal and used gestures to communicate his wants and needs.16 S.C. had a difficult

transition to kindergarten in part because he had a lot of self-stimulatory behaviors.17 He also had

poor instructional control, meaning he had a short attention span, was easily distracted, and he

struggled to sit still and follow the teacher’s directions.18 S.C. struggled to maintain his attention

during a task, but he did not exhibit aggressive or destructive behaviors.19

The District educated S.C. in an autism support classroom using a verbal behavior

methodology to teach functional skills and communication such as manding (requesting), tacting

(labeling or identifying certain objects), listening, playing and socializing with peers, and

following simple one-step directions.20 The autistic support classroom had mostly nonverbal

students who were not toilet trained, including students who “eloped” (tried to escape) and self-

injurious students.21 The autism support classroom used a curriculum called the Verbal Behavior

Milestones Assessment Placement Program designed to teach, track, and assess skills of students

with autism based on verbal behaviors and established developmental milestones.22

S.C.’s kindergarten autism support class included a special education teacher, four

classroom aides, and six to eight students at any one time.23 The classroom teacher Chanel Yoder

and aides were all trained in how to deliver verbal behavior programming.24

The special education teacher is responsible for creating individualized programming for

all students based on their skill deficits, conducting behavioral assessments, and training other

classroom staff in how to collect data and implement individualized programming in the

classroom.25 The classroom aides rotate between students throughout the day and are responsible

for executing classroom routines, implementing students’ individualized education programs,

tracking student behaviors and program-related skills, and assisting students with daily living skills

including feeding, toileting, unpacking bags, and transitioning between settings.26

Kimberly Hilton and Audrey Dulio worked as classroom aides in the District’s autism

support classroom for S.C.’s kindergarten school year and from August 2021 to November 2021

of S.C.’s first grade school year. They were both trained in the verbal behavior program. They

testified at the due process hearing about the learning environment in the District’s autistic support

classroom, including student programming and behavioral issues.

The District assigns its Director of Special Education Denise Galen responsibility for hiring

and supporting special education teachers and support staff, overseeing special education

programming within the department, and ensuring compliance with applicable regulations.27

The District conducts initial testing for S.C.

The District conducted assessments to gauge S.C.’s education levels in September 2020.28

The District used a Verbal Behavior Milestones Assessment to measure S.C.’s learning and

language skills.29 Teachers often use the Milestones Assessment with students who have autism

or language impairments.30 The Milestones Assessment is designed to measure a student’s

strengths and weaknesses in a variety of developmental learning and language milestones.31 The

Milestones Assessment is divided into three developmental levels: (1) 0 to 18 months, (2) 18 to 30

months, and (3) 30 to 48 months.32

S.C. took the Milestones Assessment several times before he started his school-age

program in the District. He scored 63 points on the Milestones Assessment in February 2020.33

When his teacher administered the Milestones Assessment in September 2020, S.C. scored only

38 points, suggesting S.C. regressed in his language skills.34 S.C. exhibited many milestones at the

0-18 months level and scattered milestones at the 18-30 months and 30-48 months levels.35 S.C.’s

special education teacher reviewed S.C.’s performance on the Milestones Assessment to develop

an individualized learning program to address S.C.’s skill deficits.36

S.C.’s special education teacher Ms. Yoder goes on leave.

The District notified Parents S.C.’s classroom teacher Ms. Yoder took maternity leave in

October 2020.37

Danielle Frederick, the District’s internal autism support coach, notified S.C.’s Parents she

would assume the role of classroom teacher until the District could find a long-term substitute.38

Autism Coach Frederick is a highly trained special education teacher with seventeen years of

teaching experience in the District.39 As an internal autism support coach, her duties included

rotating a day in each of the six autism classroom in the District, training new staff, assessing

students, conducting behavioral observations, and developing instruction for students.40

Autism Coach Frederick was not in the classroom on a daily basis once the regular

classroom teacher left because she had to attend to her full-time job overseeing other autism

support classrooms in the District.41 Classroom aides Hilton and Dulio inquired about receiving

special education emergency certifications to fill the role as “joint teachers.”42 Director Galen told

them they were not eligible for emergency certification because they did not have a teaching

certification or education beyond high school.43

The District IEP team meets in October 2020 to revise S.C.’s IEP.

The IEP team met in October 2020 to discuss revisions to S.C.’s IEP.44 The IEP team

made two revisions to the June 2020 IEP. They agreed to assess S.C.’s academic performance in

English Language Arts and Math in accord with the District’s kindergarten curriculum/standards.45

They also added specially designed instruction geared toward improving S.C.’s activities of daily

living, including providing S.C. support with toileting readiness skills by having staff accompany

him to the toilet at least once every thirty minutes and teach him how to use the toilet.46

The annual goals, specially designed instruction, and modifications in the October 2020

IEP otherwise remained the same as in the June 2020 IEP. S.C. would continue to spend

approximately 85% of the day in the autistic support classroom.47

The autism support classroom experiences staffing issues.

The District never hired a long-term substitute teacher.48 Autism Coach Frederick

continued to fill the role of classroom teacher but she was not present in the classroom all day or

every day because she still had to fulfill her role as autistic support coach in other classrooms.49

Autism Coach Frederick swore she taught in the classroom two to three days a week because the

District could not find a substitute every day.50 She spent more time in the classroom toward the

end of the school year.51

The District staffed the classroom with multiple day-to-day substitute teachers, none of

whom had any training in verbal behavior programming.52 The substitute teachers included a

librarian, a chiropractor, and a college student who did schoolwork during the day.53

The District granted a few of the substitute teachers an allotment to substitute in the

classroom for no more than twenty days as required by state law.54 Other substitutes were in the

classroom for only one day and did not return.55 There were also days where the speech therapist

and the occupational therapist would teach the class for the entire day.56 Classroom aides Dulio

and Hilton swore one of the other classroom aides missed “at least 25” days, or “a month to six

weeks,” of the school year.57

The record is not clear as to teacher presence in the classroom. Classroom aides Dulio and

Hilton testified there were a few days when there was no teacher in the class.58 But Autism Coach

Frederick testified she does not recall days when there was no teacher.59 Director Galen did not

know of any time during S.C.’s kindergarten or first grade years when the classroom did not have

a teacher.60

The substitute teachers could not carry out the programming in the autistic support

classroom due to their lack of training.61 They were generally placed with the “easiest” children.62

S.C. would not be paired with a substitute except for a brief session because his program was more

complex.63 Classroom aides Dulio and Hilton swore it felt like “having another student” or

“another body” in the classroom because the substitute teachers were not trained and were

generally unhelpful.64

Classroom aide Hilton swore the classroom aides were confused how to implement S.C.’s

complex programming on the days when Autism Coach Frederick was out of the classroom and a

substitute taught.65 Classroom aides Dulio and Hilton swore there were days when they were

unable to implement any of S.C.’s programs because they were so focused on trying to keep the

kids in the classroom safe.66 The students did not regularly go out to recess or leave the classroom

for specials or lunch because it was dangerous.67

Daily staffing issues, including staffing of aides and day-to-day substitute teachers, is

handled by building-level administration. Classroom aides Dulio and Hilton swore they repeatedly

shared concerns about staffing with building-level administrators and other educators in the

building but their concerns were not addressed.68 They felt overwhelmed by the behavior and

needs of the students in the classroom and undervalued by the administration.69 Director Galen

swore she never received any communication from S.C.’s classroom aides, teachers, or principal

indicating staffing was a major concern during the 2020-2021 school year, although some staff

reached out to her asking about the District’s progress in finding a new teacher for the autistic

support classroom.70 Director Galen testified she only started to hear about staffing concerns in

S.C.’s classroom during the Fall of his first grade year.71

S.C.’s regular classroom teacher who went on maternity leave in the Fall notified the

District she resigned and a permanent replacement would need to be found in February 2021.72

S.C.’s Parents did not learn there were substitute teachers in the kindergarten classroom until Fall

2021 when S.C. was in first grade.73

Autism Coach Frederick assesses S.C. in November 2020.

Autism Coach Frederick administered the Verbal Behavior Milestones Assessment again

in November 2020.74 S.C. scored 63 points on the assessment.75 S.C. showed particular strengths

in academic areas including reading, writing, and math.76 Autism Coach Frederick also

administered a “Barriers Assessment” which measured S.C.’s learning and language acquisition

barriers, including, among other things, behavior problems, poor instructional control, defective

social skills, defective listener skills, self-stimulation, and failure to make eye contact.77

The results showed S.C. struggled with requesting help or materials from others, answering

questions or having a conversation, and socializing with his peers.78 The results also showed S.C.

had poor instructional control and a high level of sensory defensiveness, meaning he reacted to

specific sensory stimuli with “escape behavior”—e.g., hands over ears, closing eyes, getting

agitated.79 But S.C. first learned to speak some words in Kindergarten despite these difficulties.80

The IEP team develops a new IEP for S.C. January 2021 IEP.

The District and Parents developed a new IEP in January 2021 to be implemented through

S.C.’s first grade year.81

The IEP team set annual goals in the January 2021 IEP including: (1) functional

communication (developing skills similar to those in the earlier IEP but with increased difficulty);

(2) manding (same goal as in earlier IEP), (3) imitation (developing skills similar to those in the

earlier IEP but with increased difficulty), (4) following one-step directions (developing skills

similar to those in the earlier IEP but with increased difficulty), (5) echoics (same goal as in earlier

IEP), (6) following “noun-verb” directions (e.g., “show me the marker”), (7) visual-motor and fine

motor skills (developing skills similar to those in the earlier IEP but with increased difficulty); (8)

reading comprehension (vocabulary and decoding), (9) addition and subtraction, and (10) speech

intelligibility.82

The speech and language therapist indicated in the January 2021 IEP S.C. made

substantial progress toward his first IEP goal related to speech therapy and functional

communication.83 The IEP team revised S.C.’s speech goals due to progress he made since

September 2020.84 The occupational therapist indicated S.C. “made good progress” toward his IEP

goals for visual-motor and fine motor skills goals but noted S.C. continued to struggle with

independently completing visual motor and self-care tasks in school.85

The District proposed to continue much of what it previously provided to S.C. in terms of

items of specially designed instruction and modifications. S.C. would continue to receive speech

and language therapy, occupational therapy, and a personal care assistant for five-and-a-half hours

a day. The IEP team removed the more intensive “timed toileting” program from the IEP but the

plan still required the staff support S.C. with toilet readiness skills by accompanying him to the

toilet every thirty minutes.86

S.C. would continue to spend approximately 85% of the day in the autistic support

classroom.87 The District found S.C. qualified for extended school year services during the

summer.

District hires a special education teacher for the autistic support classroom.

The District finally hired a classroom teacher, Emily Haws, in late May 2021 near the

end of the 2020-2021 school year.88

S.C.’s educational progress from January-May/June 2021.

S.C. received the following marks on his progress reporting for March through December

2021:

• “Not proficient” for his functional communication skills goals in both March and May

2021 but he made some progress toward his goals;89

• “Not proficient” for his manding goal in March, June, and December 2021 but he made

some progress toward his targets;90

• “Not proficient” for his goal of following one-step directions in March, June, and

December 2021 but he made some progress toward his targets;91

• “Mastered” his goal of repeating verbalizations by June 2021 and continued to make

progress as of December 2021;92

• “Not proficient” for his goal of following noun-verb directions, which was placed “on

hold” from March through December 2021 due to poor instructional control;93

• “Partially proficient” for his visual motor and self-care tasks goal in March, May, and

December 2021 but S.C. made progress toward his targets;94

• “Partially proficient” for his vocabulary and decoding goals in March 2021, but Autism

Coach Frederick noted S.C.’s “performance is inconsistent and progress is slow.”95 The

District neglected to even report on this goal in June 2021, but marked him “mastered”

as of December 2021;

• “Not proficient” on his math goals in March, June, and December 2021. Teacher Haws

noted “instructional control is weak, therefore performance is inconsistent and progress

toward learning new skills is at a standstill.”;96

• “Not proficient” on his speech intelligibility goal in May 2021 but his speech therapist

notes S.C. learned “15 new words with trimester;”97 and,

• “Mastered” his goal of performing at least 30 new motor actions by June 2021, but

Teacher Haws’ notes suggest S.C. only demonstrated mastery of 18 actions.98

Autism Coach Frederick swore she did not see problems with S.C.’s progress despite the

staffing issues.99 She swore S.C. made “good progress” during the kindergarten school year.100

Classroom aides Hilton and Dulio swore S.C. is “very smart” and he could have progressed more

if he had more one-on-one support.101

S.C. returns to autistic support classroom at the beginning of the 2021-2022 school year.

S.C. returned to the District for the 2021-2022 school year with the January 2021 IEP in

effect. Teacher Haws continued as the autistic support classroom teacher for first grade.102 The

autistic support classroom included seven to eight students and three classroom aides – one less

than the year before.103 Classroom aides Dulio and Hilton continued to work as classroom aides

for S.C.’s first grade year.104 The other classroom aide missed approximately two weeks of school

for personal reasons.105

Classroom aide Hilton identified times when the aides were just “babysitting” the students

in the autistic support classroom and “learning wasn’t happening.”106 Another aide confirmed

“hours missed everyday” dealing with behavioral issues.107 When a student displayed an unsafe

behavior, it often required two adults to address the situation and one adult to keep the remaining

children safe—cutting into the students’ intensive teaching time.108 Teacher Haws swore she had

a student who displayed aggression in the classroom requiring them to evacuate the other students

for safety purposes.109

Teacher Haws noted staffing issues affected her ability to implement S.C.’s IEP goals with

fidelity.110 She admitted struggling to perform errorless teaching sessions, use fast-paced

instruction, and provide S.C. regular toileting support.111 Classroom aides Hilton and Dulio swore

they struggled to consistently implement S.C.’s programs due to staffing shortages and he

regressed as a result.112 Classroom aide Hilton believes S.C. “missed a year-and-a-half of

learning.”113

The staffing shortage worsens.

Teacher Haws became increasingly concerned with staffing issues in late October 2021

when the more experienced classroom aides Dulio and Hilton indicated they may be leaving their

positions.114 Teacher Haws told Director Galen the two classroom aides were looking for new

jobs.115

The Parents only learned of the staffing concerns in late October 2021 from conversations

with fellow parents and the classroom aides.116 The Parents emailed Director Galen expressing

concerns the classroom is “chronically understaffed, with incorrect student to teacher ratios,” they

received reports faculty “are primarily focused on keeping the children safe and fed,” and they are

concerned about “the teacher’s ability right now to meet educational requirements.”117 The Parents

asked about a rumor they heard regarding two classroom aides seeking employment elsewhere.

They also asked whether the speech therapist is on maternity leave and followed up on an earlier

request for S.C.’s progress reports.118 The Parents concluded the email by requesting Director

Galen visit the classroom to check on the conditions.119 Director Galen did not recall if she had

ever visited the classroom during the previous school year.120

Director Galen then told Parents (only after they inquired) the speech therapist is on

maternity leave on November 5, 2021.121 The District told Parents it had hired a substitute speech

therapist, but there would be fourteen days without a therapist before the new therapist started.122

The District offered compensatory sessions—either during the day or after school—to make up

for the missed sessions of speech therapy.123 The Parents and the District dispute whether S.C.

received these compensatory sessions. The Parents swear S.C. left the District before it provided

compensatory sessions.124 Director Galen disagrees, claiming the District provided S.C. with all

of his compensatory sessions before he left the District.125

The Parents asked for a meeting and the District met to discuss Parents’ concerns about

staffing and review S.C.’s progress on November 10, 2021.126 The District told the Parents of no

applications/resumes for the open positions. The Parents discussed a number of options for

addressing the problem with the District but left the meeting feeling as though the District did not

have a plan to remedy the situation.127

Classroom aides Hilton and Dulio leave the District in November 2021.

Classroom aides Hilton and Dulio left the District’s employ in November 2021 frustrated

the children in the classroom were not getting enough educational support.128 The Parents later

asked for letters from the two former aides regarding their views of the staffing issues over S.C.’s

kindergarten and first grade years.129 Ms. Dulio, who has a child with autism and an IEP, and Ms.

Hilton, who has children educated by the District, both expressed feeling like the children in S.C.’s

autistic support classroom “deserved better” because they lacked the services they needed and did

not have a voice to tell their parents about the conditions in the classroom.130 Classroom aides

Hilton and Dulio both described how their repeated requests for assistance from the District fell

on deaf ears and how they believed the children in the autism support classroom “deserved

better.”131 Classroom aides Dulio and Hilton swore they left the District because they did not want

to be a part of “the problem” anymore and hoped their departures would alert the District to the

severity of the conditions in the classroom.

The Parents learned in early December of classroom aides Dulio’s and Hilton’s departure

only after contacting Teacher Haws for a list of teachers to whom they could send Christmas

cards.132 Teacher Haws then told the Parents of classroom aides Dulio and Hilton leaving and they

were “[c]rossing [their] fingers for more staff soon!”133

Parents enroll S.C. at Warwick.

The Parents began to investigate schooling options for S.C. outside of the District in

November 2021 after they learned the severity of the District’s staffing shortage.134 The Parents

swore they vetted all private school options within a sixty-mile radius and toured some of the

schools with S.C.135 The Parents could not find a suitable private school for S.C. within this radius.

Parents heard a public school in the neighboring Warwick School District had a strong

special education program.136 Parents were not residents of the Warwick School District. They

reached out to Warwick to see if they could pay tuition for S.C. to enroll in their autistic support

program.137 Warwick School District’s Assistant Superintendent Melanie Calendar testified

Parents’ unilateral outreach presented a “unique situation” because typically Warwick contracts

directly with school districts about student transfers.138 Assistant Superintendent Calendar

confirmed the Warwick Board of Directors’ policies permitted them to offer S.C. placement in

their program.139 They decided to enroll S.C. in an out-of-district placement at Warwick. Parents

paid the out-of-pocket tuition rate to secure S.C.’s placement at Warwick.140 Parent testified they

paid $15,407.84 to enroll S.C. in the Warwick District school.141

Parents told the District in late November of their intent to withdraw S.C. from the District

and enroll him as a student in the Warwick School District.142 Parents explained they wanted to

give S.C. a chance to attend a fully-staffed autism classroom and they “hope that this is a temporary

move.”143 They also note the staffing shortage and their withdrawal “is not the result of your team

doing anything wrong.”144 There was only one teacher and one aide in the autistic support

classroom at the time the Parents decided to enroll S.C. in the Warwick School District, with

intermittent support from Autism Coach Frederick, the occupational therapist, and the speech and

language pathologist.145 Teacher Haws left her position shortly after S.C. enrolled at Warwick.

The District provides a progress report for S.C. in December 2021.

The parties did not adduce evidence of progress monitoring for the fall of the 2021-2022

school year. The District updated progress monitoring on six of S.C.’s ten IEP goals in December

2021.146 S.C. showed some degree of progress on the manding, following one-step directions,

echoics/vocalizations, visual-motor/fine motor skills, and addition and subtraction goals.147 S.C.

“mastered” his reading comprehension goal.148 S.C. remained “not proficient” in manding,

following one-step directions, and following two-component (noun-verb) directions.149 He

remained partially proficient in his visual-motor and self-care goal.150

The District’s progress report lacks data for S.C.’s goals in functional communication,

performing motor actions, following “noun-verb” directions (e.g., “show me the marker”), and

speech intelligibility.151 Two of these goals—performing motor actions and

echoics/vocalizations—had been “mastered” since June 2021 and should have been updated with

new goals.152 The goal for following “noun-verb” directions remained on hold.153 Parent testified

about the difficulties they encountered trying to gauge S.C.’s progress in kindergarten, explaining

“[S.C.] cannot talk. His classmates cannot talk…We are completely reliant on the adult to tell us

how his day was. It’s not like we get concerns from the child, from the student himself.”154

S.C.’s testing before starting at Warwick.

A teacher in Warwick’s autistic support classroom, Ms. Lewis, completed the Milestones

Assessment for S.C. before he enrolled in the Warwick District school.155 The Hempfield School

District had not completed the assessment for S.C. since November 2020 despite their practice of

testing students every Spring.156 Warwick Teacher Lewis gave S.C. a score of 59 in December

2021 as compared to his November 2020 score of 63.157 Warwick Teacher Lewis noted the slight

regression could be “due to lack of instructional control on the teacher end as well as some areas

could not be observed during the one hour assessment (group skills, some of the social interactions

and [S.C.] would not complete any writing activities),” or the lack of S.C. being able to complete

the material in a different setting.158 S.C. eloped a couple of times and tried to throw the writing

material off the table during the Assessment.159

Warwick Teacher Lewis completed the Milestones Assessment in only one hour.160

Hempfield Autism Coach Frederick would not trust this score or put weight in it because she does

not know how the Milestones Assessment could be completed in such a short period of time.161

Hempfield Autism Coach Frederick swore the Milestones Assessment can take weeks to

administer, especially if a student has poor instructional control like S.C.162 Warwick Assistant

Superintendent Melanie Calendar offered a different view, estimating it takes “two hours to three

hours” to complete the Milestones Assessment and it is usually administered “over multiple

sessions.”163 Warwick Assistant Superintendent Calendar also noted Warwick Teacher Lewis was

“very proficient” in administering the Milestones Assessment.164

Warwick convenes IEP meeting for S.C. in December 2021.

The Parents met with a new IEP team at Warwick in mid-December 2021.165 Warwick

Teacher Lewis observed S.C. had “strong prior instruction as his ‘ready hands’ is incredible.”166

Warwick’s speech therapist wrote in the December 2021 IEP S.C. “was very verbal, producing

both spontaneous speech and imitating words that were said to him. His imitation skills were

strong[.]”167 Warwick Teacher Lewis and the speech therapist could understand most of what S.C.

said although “some words were quiet.”168

The December 2021 IEP (including revisions in the winter/spring 2022) contained seven

goals, one each in mathematics (S.C. will pass the end of unit mastery test with 80% or higher in

areas of number identification, identifying sets of objects, comparing numbers, and understanding

“plus 1” math problems), visual-motor/fine motor skills and self-care tasks (writing, cutting, and

“functional vocational” skills), reading comprehension (answering “who, what, where, when,

why” questions after reading new passages), speech intelligibility (produce different types of

functional words), tacting (identify body parts and actions when prompted), listener response

(when presented with a phrase such as “point to, touch, give,” S.C. will respond with the correct

action), and manding (requesting items or activities with vocal language).169 S.C. would spend

approximately 78% of the school day in special education settings, including an autistic support

classroom.170

Warwick proposed to continue several of the modifications S.C. received in the Hempfield

School District, including speech and language therapy, occupational therapy, a daily

communication log, a pair teaching environment, errorless teaching procedures, and the use of

reinforcers.171 Warwick added a number of additional specially designed instructions to S.C.’s IEP

including Social Emotional Academic Development, a program where S.C. and the other children

in the classroom receive eighty minutes per month of direct social skills instruction with a

counselor or psychologist.172 The Warwick IEP team also added detailed behavior protocols based

on their observations of S.C. during the Milestones Assessment. For example, if S.C. engages in

“problem behavior,” classroom staff will repeat demands in a neutral voice until S.C. cooperates

and refrain from direct eye contact or dialogue with S.C. until the problem behavior ceases.173

The December 2021 IEP did not provide S.C. a personal care assistant or training to

classroom aides in verbal behavior programming. The Warwick IEP team also removed the

toileting program from the December 2021 IEP because Parents told Warwick they would be

seeking support from outside agencies for this service.174 A Parent confirmed they decided to seek

outside support because he had made “no progress” in toilet training during his time at the

Hempfield School District.175

S.C. begins schooling at Warwick in December 2021.

S.C. started in the autism support classroom at Warwick on December 13, 2021.176

The Warwick autistic support classroom had seven to eight students in the class, Warwick

Teacher Lewis, and three classroom aides.177 The autistic support classroom at Warwick also

focused on verbal behavior programming.178 The classroom utilized small group and

individualized instruction.179 S.C. participated with his regular education peers for Social

Emotional Academic Development class, reading, recess, and lunch.180

Warwick also struggled with staffing shortages.181 There were times when other

administrators or student services staff had to substitute for classroom aides in Warwick’s autistic

support classroom.182

The Warwick IEP team convenes in January 2022.

The Warwick IEP team met to discuss S.C.’s plan on January 19, 2022.183 The Parents

expressed concern with S.C.’s progress in the general education setting at Warwick because he

had never been included in general education setting in the Hempfield School District.

Warwick Teacher Lewis reported S.C. was doing well and making progress on his goals.184

He learned new sight words, labeled 335 different pictures of items and mastered one body part

and one action for his tacting goal, and mastered his motor imitation goal.185 S.C. mastered second

grade level sight words and was ready to learn third grade level sight words.186

The Warwick IEP team removed the motor imitation goal from S.C.’s IEP. They also

revised the tacting goal to focus on teaching body parts and actions.187

The Warwick IEP team convenes in February 2022.

The Warwick IEP team met again in February 2022 to discuss extended school year

services for S.C.188 S.C. did not qualify for extended occupational therapy services, but he still

qualified for academic and speech and language services at Warwick for summer 2022.189

The Warwick IEP Team adds a toilet training program in April 2022.

The Warwick IEP team added a toilet-training program to S.C.’s IEP in April 2022.190 A

Parent swore the Warwick IEP team had not added this program to S.C.’s December 2021 IEP

because the Parents told Warwick they were seeking support from outside agencies to assist with

toilet training.191 Parents decided to add this goal back in April 2022 and put the outside toilet

training services on hold after Warwick Teacher Lewis told them she was very skilled in toilet

training.192 Parent swore S.C. was partially toilet trained within three weeks of Warwick adding

this program to his IEP.193

Progress monitoring at the end of the 2021-2022 school year.

Warwick issued a progress report for S.C. at the end of the 2021-2022 school year.194

Parents and the Hempfield District dispute S.C.’s progress at Warwick. Parents contend he made

significant progress and they “felt like he was more responsive, talking more” and “doing

wonderful things with sight words.”195 The Hempfield District maintains S.C. made “little

progress” and regressed in the number of two-syllable and three-syllable words he could say.196

The District also maintains S.C. regressed at Warwick in occupational goals he had mastered when

he was previously enrolled in the District.197

The Warwick progress report shows S.C. made progress on his goals in math (passing three

unit mastery tests with a score of 80% or higher), visual motor/fine-motor (improving writing,

cutting, and functional vocational skills with 75-100% accuracy), reading comprehension

(answering basic who, what, where, when, why questions about a story but S.C. did not approach

the 80% accuracy goal), speech intelligibility (mastering more two-syllable words and other word

patterns), tacting (identifying twenty-three different actions and fifteen different body parts),

listener response (following directions for forty-six different listener response actions), and

manding (requesting twenty-three different items or activities).198

Warwick notified Parents near the end of the 2021-2022 school year they could no longer

accommodate S.C.’s out-of-district placement due to increased enrollment in the autistic support

classroom for the 2022-2023 school year.199 Assistant Superintendent Calendar did not work with

the Parents directly until the end of S.C.’s time at Warwick when she had to notify Parents

Warwick lacked space for S.C. She testified people “loved this young man” and people came to

her “campaigning to try to keep him” in the school for longer.200 Parents considered their options

and decided to return to Hempfield District.201

S.C. returns to Hempfield District for 2022-2023 school year.

S.C. returned to Hempfield District for second grade in the 2022-2023 school year.

Hempfield Autism Coach Frederick swore S.C. returned to the District not fully toilet trained

because he still required a toilet training schedule but he could independently use the bathroom

which was “a big deal.”202

Parents seek a due process hearing in November 2022.

Parents filed a due process administrative complaint on November 16, 2022 alleging the

District failed to implement programming designed to provide a free, appropriate public education

to S.C. under the Individuals with Disabilities Education Act.203 Parents sought (1) compensatory

education from November 16, 2020 through December 12, 2021 (when S.C. withdrew from the

District and enrolled at Warwick); (2) reimbursement for tuition and costs of unilateral placement

of S.C. at Warwick from December 13, 2021 through the end of S.C.’s first grade year; and (3)

reimbursement for attorney’s fees.204

Hearing Officer Michael J. McElligott, Esquire presided over a three-day virtual due

process hearing beginning on January 8, 2023 and concluding March 8-9, 2023. Hearing Officer

McElligott evaluated the credibility of testimony from seven witnesses including one of S.C.’s

Parents, District personnel, and Warwick’s Assistant Superintendent.205

Hearing Officer McElligott found “[a]ll witnesses testified credibly” and he accorded “a

degree of weight” to each witness’s testimony.206 Hearing Officer McElligott concluded the two

classroom aides’ testimony “cannot be fully credited” because “instruction and classroom

conditions were not as dire as portrayed in their testimony.”207 He continued the testimony of

Autism Coach Frederick cannot be fully credited either because “instruction and classroom

conditions were clearly negatively impacted by deficiencies of classroom staffing.”208 Hearing

Officer McElligott concluded conditions related to staffing in the kindergarten classroom “lies

somewhere between the two positions.” Hearing Officer McElligott credited Director Galen’s

testimony no one told her about daily staffing issues.209

Hearing Officer McElligott issued his decision on April 25, 2023 finding: (1) the District

provided S.C. a free appropriate public education for the 2020-2021 school year (kindergarten);

(2) the District did not provide S.C. a free appropriate public education from August 2021 through

December 2021 (first grade); (3) S.C. is entitled to sixty-five hours of compensatory education

attributable to the period August 2021 through mid-December 2021 when he withdrew from the

District; and (4) Parents are entitled to reimbursement of tuition for the period December 2021

through June 2022 while S.C. attended Warwick.210 Hearing Officer McElligott addressed the

Section 504 of the Rehabilitation Act claim on the same grounds as the claims under the

Individuals with Disabilities Education Act and did not provide a separate analysis for this claim.

The District and Parents sue each other.

The District sued S.C. and the Parents seeking to overturn the portion of Hearing Officer

McElligott’s decision finding the District denied S.C. a free appropriate public education for the

2021-2022 (first grade) school year and awarding the Parents sixty-five hours of compensatory

education for the period from August 2021 to December 2021. The District also seeks to overturn

the Hearing Officer’s award of tuition reimbursement to the Parents for S.C.’s time at Warwick.

The Parents seek to overturn the portion of Hearing Officer McElligott’s decision finding

the District provided S.C. a free appropriate public education for the 2020-2021 school year

(kindergarten). Parents sue the District seeking full days of compensatory education for the 2020-

2021 school year and the period of August 2021 through December 2021, and attorney’s fees and

costs.

II. Analysis

The District, S.C., and Parents ask us resolve issues arising from Hearing Officer

McElligott’s findings as to a free and appropriate public education for S.C. during S.C.’s 2020-

2021 kindergarten year and his 2021-2022 first grade year. We will address the issues in

chronological order starting with the kindergarten year. The parties’ dispute largely centers around

whether the District sufficiently staffed the autistic support classroom and provided S.C. sufficient

instruction and services to enable him to receive a meaningful education.

A. We reverse Hearing Officer McElligott’s FAPE decision as to the 2020-2021

school year and affirm his FAPE decision for the 2021-2022 school year except

using the correct legal standard to assess the claims.

We first address Hearing Officer McElligott’s findings as to whether the District provided

S.C. a free appropriate public education for the 2020-2021 and 2021-2022 school years.

The District moves for judgment on the administrative record, challenging Hearing Officer

McElligott’s decision as to full tuition reimbursement and sixty-five hours compensatory

education for the 2021-2022 school year arguing: (1) the Hearing Officer erred in finding the

provision of a free appropriate public education depends entirely on the rate of student progress,

(2) the Hearing Officer ignored objective evidence regarding S.C.’s actual progress during the

2021-2022 school year and erroneously faulted the District for allegedly deficient progress

monitoring when the IEP called for progress monitoring on a trimester basis, (3) the Hearing

Officer erred in ordering an award of public school tuition; and (4) the Hearing Officer’s award of

public school tuition and compensatory education is punitive and excessive. Parents respond the

Hearing Officer correctly concluded the District denied S.C. a free appropriate public education in

the 2021-2022 school year based on evidence the District fell wholly short of providing S.C.’s IEP

services. Parents argue the Hearing Officer correctly awarded tuition reimbursement because (1)

the Individuals with Disabilities Education Act does not specifically preclude tuition

reimbursement for placement in another public school, and (2) Warwick is an appropriate

placement.

Parents also move for judgment on the administrative record, primarily challenging

Hearing Officer McElligott’s finding the District did not deny S.C. a free appropriate public

education in his 2020-2021 kindergarten school year. Parents argue: (1) the Hearing Officer erred

in concluding the District provided S.C. a free appropriate public education during the 2020-2021

school year because the record establishes S.C. did not make reasonable progress commensurate

with his ability due to lack of staff support; (2) the Hearing Officer correctly concluded the District

denied S.C. a free appropriate public education during the 2021-2022 school year but erred in

awarding only one hour of compensatory education per day from August 2021 to mid-December

2021 (totaling sixty-five hours); (3) S.C. is entitled to full days of compensatory education from

November 16, 2020 to December 2021; (4) the Hearing Officer correctly awarded tuition

reimbursement for S.C.’s placement at Warwick; and (4) Parents are entitled to attorney’s fees and

costs as prevailing parties. The District responds: (1) the testimony of the two classroom aides’

should not be credited or used as the basis for finding S.C.’s IEP was not implemented with fidelity,

and without the classroom aides’ testimony, Parents fail to meet their burden of proving the District

did not implement S.C.’s IEPs with fidelity during the kindergarten year; (2) public school tuition

is not an available remedy under the Act, (3) the Hearing Officer’s award of sixty-five hours of

compensatory education is arbitrary and should be reversed; and, (4) Parents are not a prevailing

party.

The Parties agree the Hearing Officer erred in three ways. The Parties agree the Hearing

Officer erred in focusing exclusively on S.C.’s academic progress in his analysis because whether

S.C. made any progress is not the ultimate determinant of whether the District provided S.C. a free

appropriate public education.211 The Parties seem to agree the Hearing Officer made incongruent

findings the District provided S.C. a free appropriate public education in kindergarten but denied

S.C. a free appropriate public education in first grade given the factual circumstances—staffing

issues, IEP, progress—changed very little between S.C.’s kindergarten and first grade school

years.212 The Parties also agree the Hearing Officer’s award of sixty-five hours of compensatory

education was arbitrary.213

We apply a modified de novo review giving where due weight to Hearing Officer

McElligott’s fact findings when considering the parties’ appeals from Hearing Officer

McElligott’s decision.214 “This means a district court must make its own findings of facts by a

preponderance of the evidence while also giving ‘due weight’ to the factual findings of the Special

Education Hearing Officer.”215 Under this standard, if we depart from Hearing Officer

McElligott’s findings of fact, we must explain why since the factual findings are considered prima

facie correct.216

We afford Hearing Officer McElligott’s determinations “due special weight” when he

evaluates live testimony and determines one witness is more credible than another witness.217 We

must accept Hearing Officer McElligott’s credibility determinations unless the non-testimonial,

extrinsic evidence in the record justifies a contrary conclusion.218 We cannot substitute our own

notions of sound educational policy for those of local school authorities.219

If we hear additional evidence, we are “free to accept or reject the agency findings

depending on whether those findings are supported by the new, expanded record and whether they

are consistent with the requirements of the Act.”220 We review Hearing Officer McElligott’s legal

conclusions under the de novo standard.221

The party challenging Officer McElligott’s decision bears the “burden of persuasion . . . as

to each claim challenged.”222 We must base our decision on the preponderance of the evidence in

evaluating the arguments of the party challenging Hearing Officer McElligott’s findings.223

We studied the administrative record. We conclude Hearing Officer McElligott erred in

finding the District provided S.C. a free appropriate public education for the 2020-2021 school

year and grant the Parents’ motion to reverse his findings for the 2020-2021 year. Hearing Officer

McElligott correctly found the District denied S.C. a free appropriate public education for the

2021-2022 school year but applied the wrong law in reaching his conclusion. Applying the correct

law, we find the District failed to provide S.C. a free appropriate public education from August

2021 to December 2021 by failing to implement substantial portions of his IEP due to staffing

issues. Hearing Officer McElligott did not err in awarding tuition reimbursement for the time S.C.

spent at Warwick during the 2021-2022 school year. Parents are entitled to attorney’s fees as

prevailing parties but have not adduced evidence on the issue. We grant Parents leave to file a fee

petition. We remand to the Hearing Officer to determine, consistent with his expertise and this

memorandum, the amount of compensatory education to which S.C. is entitled between November

16, 2020 and December 12, 2021.

1. Congress sets our scope of review.224

Congress enacted the IDEA to “protect[ ] the rights of disabled children by mandating that

public educational institutions identify and effectively educate those children, or pay for their

education elsewhere if they require specialized services that the public institution cannot

provide.”225 States receiving federal education funding must make available a free and appropriate

public education to all children with disabilities residing within their borders.226 A free and

appropriate public education includes both “special education” and “related services.”227 The

obligation to provide a free and appropriate public education is substantially the same under

Section 504 of the Rehabilitation Act of 1973 and the American with Disabilities Act.228

The District can meet its free appropriate public education obligation through the

development and implementation of an IEP, which is the “centerpiece of the statute’s education

delivery system for disabled children.”229 An IEP is “the means by which special education and

related services are ‘tailored to the unique needs’ of a particular child.”230 An IEP requires a

specific statement of S.C.’s present abilities, goals for improvement of S.C.’s abilities, services

designed to meet those goals, and a timetable for reaching the goals by way of the services.231 The

IEP must be “reasonably calculated to enable [S.C.] to make progress appropriate in light of [his]

circumstances.”232 “The District is required to review each child’s IEP at least annually to

determine whether the child is reaching the stated goals, and the IEP team is to revise the IEP to

address lack of progress and make necessary changes arising from reevaluation of the child and

parental input.”233

“The ultimate question in every case is whether a school has provided a free appropriate

public education.”234 But there are two ways a school can fail to do so: (1) by failing to comply

with the Act’s procedures for formulating an IEP or failing to include appropriate provisions in a

student’s IEP based on the student’s needs (“content cases”), or (2) by failing to implement the

provisions of an IEP (“implementation cases”).235 “Content cases involve a prospective

comparison of the IEP as written to the substantive standard that the IDEA guarantees;

implementation cases, by contrast, involve a retrospective comparison between the education as

delivered and the plan on paper.”236 “In implementation cases, reviewing courts can presume that

an unchallenged IEP, if adequately implemented, would offer a free appropriate public education

... and a court is left only to determine whether the school delivered an education ‘in conformity

with’ the presumptively valid IEP.”237

“To prevail on a claim that a school district failed to implement an IEP, a plaintiff must

show that the school failed to implement substantial or significant provisions of the IEP, as

opposed to a mere de minimis failure, such that the disabled child was denied a meaningful

educational benefit.”238 “Flexibility to implement an IEP is maintained, yet the school district is

accountable for ‘confer[ring] some educational benefit upon the handicapped child,’ as required

by the IDEA.”239 The state, through the District, “is not required to maximize the potential of every

handicapped child,” but “it must supply an education that provides ‘significant learning’ and

‘meaningful benefit’ to the child.”240 “[A] district court must consider the intellectual potential of

the individual student when making its decision.”241

The District may be responsible for reimbursing Parents for the private school costs if the

District cannot provide a free and appropriate public education to S.C. but a private school could

provide a free and appropriate public education.242

2. Hearing Officer McElligott erred in finding the District provided S.C.

with a free appropriate public education for the 2020-2021

(kindergarten) year.

Hearing Officer McElligott found the District provided S.C. with a free and appropriate

public education for the 2020-2021 (kindergarten) school year. Whether the District fulfilled its

free appropriate public education obligation is a question of fact.243 Because Parents challenge the

Hearing Officer’s decision, they bear the burden of showing the District “failed to implement

substantial or significant provisions of the IEP, as opposed to a mere de minimis failure, such that

the disabled child was denied a meaningful educational benefit.” 244 We find the District denied

S.C. a free and appropriate public education during the 2020-2021 (kindergarten) school year.

Parents bring an IEP implementation challenge. They do not challenge the procedures

followed to develop the IEP. They also do not challenge the appropriateness of S.C.’s IEP or

whether the IEP is “reasonably calculated to enable [S.C.] to make progress appropriate in light of

[his] circumstances.”245 Parents instead argue the District denied S.C. a FAPE because it did not

implement certain provisions of S.C.’s programs due to staffing shortages and a lack of consistent

programming. The Hearing Officer acknowledged staffing issues in the classroom during

kindergarten, but he concluded the District did not deny S.C. a free appropriate public education

because S.C. “gained the benefit of significant learning in the 2020-2021 school year.”246 We

review Hearing Officer McElligott’s fact findings under the “due weight” standard and conduct a

plenary review of the Hearing Officer’s conclusions of law.247

Hearing Officer McElligott found, and we agree, the record establishes the District

experienced staffing issues in the autistic support classroom during S.C.’s 2020-2021 kindergarten

year. After the regular classroom teacher went on maternity leave in October 2020, the District did

not hire a long-term substitute teacher until May 2021.248 Autism Coach Frederick filled the role

of classroom teacher but she could be present in the classroom all day or every day because she

still had to fulfill her role as autistic support coach in other classrooms.249 Between October 2020

and May 2021, the District staffed the classroom with multiple day-to-day substitute teachers.250

Autism Coach Frederick swore on average she taught in the classroom two to three days a week

because the District could not find a substitute every day.251 The two classroom aides testified one

of the classroom aides missed “at least 25” days, or “a month to six weeks,” of the school year.252

Officer McElligott concluded “regardless of how [the staffing issues] played out, [S.C.]

gained the benefit of significant learning in the 2020-2021 school year” as evidenced by his

progress “in almost all goal areas.”253 The Hearing Officer explained “it is the student’s progress,

as evidenced by the documentary progress monitoring, which is the dispositive evidence.”254

The Parties argue, and we agree, the Hearing Officer’s findings are invalid to the extent he

relied exclusively on evidence of S.C.’s progress in determining whether the District provided S.C.

a free appropriate public education.

Progress is not dispositive evidence the District provided S.C. a free appropriate public

education under well-established case law.255 We are guided by our colleague’s reasoning in

Colonial School District v. G.K.256 Judge Hart reviewed Hearing Officer McElligott’s finding the

Colonial School District failed to provide student G.K. a free appropriate public education.

Colonial School District argued Officer McElligott erred in finding the G.K.’s IEP was not

appropriate solely by evaluating the student’s progress (or lack thereof) under the IEP. Judge Hart

agreed, finding the Supreme Court instructs us the Act does not “guarantee any particular level of

education.”257 Judge Hart found Hearing Officer McElligott “erred in explicitly basing his grant

of compensatory education on his finding that ‘on certain goals ... the student did not make

progress.’”258

Judge Hart found progress is not dispositive in the context of IEP content cases. The same

is true for implementation cases.259 To prevail on their failure-to-implement claim, Parents must

show the Hempfield District School “failed to implement substantial or significant provisions of

the IEP, as opposed to a mere de minimis failure,” and thus denied S.C. “a meaningful educational

benefit.”260 “A child’s actual educational progress (or lack thereof) can be evidence of the

materiality of an implementation failure—but it is not dispositive.”261 “It is merely one piece of

evidence courts may use in assessing whether a school failed to implement substantial or

significant provisions of the IEP.”262

We find Officer McElligott erred as a matter of law by focusing his analysis exclusively

on S.C.’s progress over the kindergarten year.263 Progress is not dispositive in either content cases

or implementation cases. But Hearing Officer McElligott’s fact findings primarily related to S.C.’s

progress. While he made findings as to the state of the autistic support classroom as a whole, he

did not make findings related to S.C.’s specific programming and he did not ascertain which of the

services in S.C.’s IEP, if any, the District did not deliver. We cannot determine whether the District

denied S.C. a free appropriate public education in an implementation case without first making

these fact findings.

We now apply the correct legal standard to the evidence in the record, giving due weight

to Hearing Officer McElligott’s findings of fact. The first step in a failure-to-implement analysis

is to identify which IEP services, if any, the District did not deliver.264 The next step is to determine

whether those services constitute “substantial or significant” provisions of the IEP.265 We start by

focusing on “the proportion of services mandated to those actually provided, viewed in context of

the goal and import of the specific service that was withheld.”266 “That means that courts must

consider implementation failures both quantitatively and qualitatively to determine how much was

withheld and how important the withheld services were in view of the IEP as a whole.”267

Parents argue the District failed to implement S.C.’s IEPs during the 2020-2021 school

year because the District failed to consistently implement S.C.’s programming on a daily basis,

especially the toilet-training program. The relevant IEPs for S.C.’s kindergarten year are S.C.’s

June 2020 IEP (as revised during the October 2020 IEP meeting) and S.C.’s January 2021 IEP.

Both the June 2020 IEP and the January 2021 IEP provide S.C. will receive the following daily

programming: specially-designed instruction geared toward improving S.C.’s activities of daily

living, including providing S.C. support with toileting readiness skills by having staff accompany

him to the toilet at least once every thirty minutes; a personal care assistant for five-and-a-half

hours per day; use of behavior protocols to increase safety awareness and compliance;

individualized and small group instruction; a pair teaching environment; errorless teaching

procedures; and fast-paced instruction.

The record establishes the District did not provide S.C. regular programming during the

kindergarten school year due to staffing issues. The autistic support classroom had untrained

substitute teachers two to three days per week during the time period November 2020 through the

end of May 2021 when the District hired Teacher Haws. Substitute teachers did not deliver new

programming but instead worked with the students on known skills.268 Two to three days per week

is a substantial period of time for students to be working on known skills. Although Autism Coach

Frederick generally did not pair S.C. with substitute teachers (he stayed with the classroom aides

because his program was more complex), the classroom aides swore they were often confused how

to implement S.C.’s programming. And neither the substitute teachers nor the classroom aides had

access to S.C.’s IEP—they relied on Autism Coach Frederick for guidance.269 Neither the

substitutes nor the paraprofessionals could carry out S.C.’s IEP program consistently due to

Autism Coach Frederick’s absence in S.C.’s classroom.

Both classroom aides testified there were days when they were unable to implement any

of S.C.’s programs because they were so focused on trying to keep the kids in the classroom safe.270

Classroom aide Hilton explained they “really could not do” S.C.’s toileting program once the

regular classroom teacher left because it required S.C. to have one-to-one support staff take him

to the bathroom every thirty minutes.271 Classroom aide Dulio confirmed this testimony.272 Autism

Coach Frederick swore she did know the classroom aides could not carry out S.C.’s daily

programming.

The Parties dispute the credibility of the classroom aides’ testimony. Parents rely heavily

on the testimony of the two classroom aides as “firsthand witnesses to the events in the classroom”

during S.C.’s kindergarten year, noting “[t]hey are the only two witnesses who have no stake in

the current dispute” because they no longer work for the District.273 The District asks we not credit

“the testimony of two disgruntled former employees” because the Hearing Officer’s determination

one witness is more credible than another is entitled to “heightened deference.”274

We agree we must generally accept Hearing Officer McElligott’s credibility

determinations. But contrary to the District’s suggestion, the Hearing Officer did not find Autism

Coach Frederick’s testimony to be “more credible” than the aides’ testimony. Hearing Officer

McElligott found with respect to the “factual mosaic of conditions” in the kindergarten classroom,

neither the aides’ testimony nor the teacher’s testimony could be “fully credited.”275 Hearing

Officer McElligott found “the impact of those staffing issues on the student’s learning lies

somewhere between the aides’ views that staffing seriously impeded instruction/services and the

teacher/internal-coach’s view that instruction/services were largely unaffected by staffing

issues.”276

Weighing Autism Coach Frederick and the aides’ testimony equally but not fully crediting

either as the Hearing Officer instructed, we conclude the record establishes, at a minimum, the

District did not provide S.C. with consistent IEP programming during the kindergarten school year.

Even if the classroom conditions are “not as dire” as the aides portrayed in their testimony, the fact

remains S.C. did not receive daily services and supports provided in his IEP. Autism Coach

Frederick claimed she was “not aware” about issues with S.C.’s daily programming, but she also

admitted she was only in the classroom two to three days of week for a period of time. The two

classroom aides swore staffing and implementation issues arose primarily when Autism Coach

Frederick was absent from the classroom. Because Autism Coach Frederick was not regularly

present in the autistic support classroom, she does not have significant knowledge regarding day-

to-day implementation struggles, especially for the time period between October 2020 and March

2021 when she admits she was only in the classroom two to three days per week.277

The implementation failure is significant. The aides’ testimony suggests S.C. did not

receive proper programming for two to three days per week during the relevant period. The staffing

disruptions and lack of consistency can be especially challenging for a child like S.C. who

struggles with instructional control. The language in the IEP confirms the importance of consistent,

repetitive daily programming: “[S.C.] is in need of specially designed instruction throughout his

school day. Without these supports, [S.C.] would not be able to make appropriate progress.”278

S.C.’s IEP provided S.C. would receive his services, including errorless teaching procedures,

assistance for self-care tasks, and support with toilet readiness skills, daily. The IEP provides

teachers must measure S.C.’s progress daily for most of his goals. In recommending S.C. for

extended school year services, the agreed IEP report notes S.C. “shows some regression when

there are breaks in programming.”279

The District’s implementation failures are supported by the record showing S.C.’s lack of

progress. Parents saw very little progress with toileting. While S.C. “mastered” his goal for

verbalizations and performing motor actions by June 2021, progress on his remaining goals

stalled.280 The teacher marked S.C. “not proficient” on his goals for speech, manding, math, and

following one-step directions from March through June 2021.281 The teacher commented under

his math progress report: “instructional control is weak, therefore performance is inconsistent and

progress toward learning new skills is at a standstill.”282 The teacher placed S.C.’s IEP goal for

following noun-verb directions “on hold” from March through December 2021 due to S.C.’s poor

instructional control.283 The teacher marked S.C. “partially proficient” in vocabulary and decoding

in March 2021, but noted S.C.’s “performance is inconsistent and progress is slow.”284 The District

neglected to even report on this goal in June 2021. And while the progress report notes S.C.

“mastered” his goal for performing at least 30 new motor actions by June 2021, the teacher’s

comments section indicates he only demonstrated mastery of eighteen actions.285

The Hearing Officer erred in finding S.C. received the benefit of significant learning. The

Hearing Officer concluded S.C. made “continued improvement in milestone achievement”

because he scored a 38 on the Milestones in September 2020 and then a 63 only two months later

in November 2020. But the relevant time period for our purposes is November 2020—after the

regular classroom teacher went on leave—through December 2021 when S.C. withdrew from the

District. S.C. scored a 59 in December 2021—suggesting he regressed slightly over the relevant

time period. Classroom aides Hilton and Dulio both swore they noticed regression in S.C.’s skills

and opined he could have made much more progress with proper support. The non-testimonial

data included in the progress reports supports the classroom aides’ testimony S.C. did not make

reasonable educational progress commensurate with his ability.

We are not persuaded by the District’s reliance on two decisions of our Court of Appeals

and one decision of our colleague Judge McHugh in support of its argument it did not fail to

implement S.C.’s IEP. These decisions do not assist the District; they instead highlight the relative

deficiencies in Hempfield’s implementing the IEP.

In Melissa S. v. School District of Pittsburgh, the parents of a child with Down Syndrome

sued the Pittsburgh School District for failing to implement the child’s IEP by failing to provide

the child with an aide on certain occasions.286 Judge Lancaster held the Pittsburgh School District

did not deny the child a free appropriate public education because there was no evidence the staff

ever left the child unattended.287 On days when a personal aide could not be provided, the school

notified the parent and told them to keep the child home for the day. Even if the school did leave

the child unattended, the failure was not substantial or significant as it occurred “several” times at

most.288 Our Court of Appeals affirmed Judge Lancaster’s decision the Pittsburgh School District

did not deny the child a free appropriate public education based on this limited evidence.289

In Fisher v. Stafford Township Board of Education, a mother sued the Stafford Board of

Education for failing to properly implement the IEP for her son with autism and a developmental

disorder.290 The IEP provided the student a personal trained aide for the full school day. The Board

could not find a trained aide. The mother decided to keep her son out of school until they could

find a trained aide. The mother found a qualified aide and convinced the Board to hire them. The

qualified aide eventually resigned and the Board replaced her with other aides. The mother decided

to supplement the aides’ salaries using her own resources. The mother sought reimbursement for

the payments she made to the son’s aides on a theory the Board failed to properly implement the

son’s IEPs by failing to provide the son with a trained aide for a total of ten days.291 Judge Wolfson

decided the mother was not entitled to reimbursement for the amount she paid to supplement the

aides’ salaries because the Board’s failure to provide the son an aide for a total of ten days was de

minimis.292 Our Court of Appeals affirmed.

The District also relies on the decision in J.C. v. Upper Darby School District, in which a

mother sued the Upper Darby School District for failing to provide a personal care assistant to her

son J.C., who had a hearing impairment.293 Although J.C. did not have a diagnosis of autism

spectrum disorder, the Upper Darby School District educated him in an autism support classroom

based on his need for verbal programming. J.C. had a hearing support teacher who worked with

him on American Sign Language individually each week.294 J.C.’s IEP also provided him with a

personal care assistant who would use basic nonverbal signs and provide sign language support to

assist J.C. in understanding instruction. J.C. did not have a consistent personal care assistant in

part because J.C. was frequently absent from school due to transportation issues.295 Sometimes a

personal care assistant was not available for the entire school day. Judge McHugh found even if

the record evidenced periodic inconsistency in providing a personal care assistant to J.C., “nothing

in the record convinces [him] that this prevented [the student] from receiving meaningful

educational benefits considering the individualized support he received through his autistic support

teacher and teaching assistants.”296 Judge McHugh concluded the Upper Darby School District did

not deny the child a free appropriate public education.

We are not persuaded by the District’s reliance on these inapposite fact patterns. When the

student in J.C. v. Upper Darby School District lacked a personal care assistant on just a few

occasions, other members of the teaching team filled in to provide the student with individualized

support. S.C.’s autistic support classroom lacked this safety net. The classroom aides and substitute

teachers could not implement S.C.’s programming when Autism Coach Frederick could not be in

the classroom for several days over several months. And unlike the schools in Melissa S. and

Fisher and J.C., the District’s failure is not merely periodic. One aide estimated there were multiple

days per week when teaching did not take place, although they would try to fit in forty-five minutes

of instruction “here and there.”297 The other aide estimated they spent 75% of their days “just

keeping kids safe, changing diapers and keeping them fed.”298 And unlike Judge McHugh in J.C.

v. Upper Darby School District, we find evidence in the record shows the implementation failures

prevented S.C. from receiving meaningful educational benefits.

We are guided instead by the Court of Appeals for the Fourth Circuit’s analysis of an

implementation claim with a more similar fact pattern presented in Sumter Cty. Sch. Dist. 17 v.

Heffernan.299 A student with autism received only 7.5-10 hours of the 15 hours of applied

behavioral therapy instruction required by his IEP.300 The record showed the lead teacher and the

aides did not have a good understanding of the terminology or techniques used in applied

behavioral therapy. The Sumter School District argued they did not materially fail to implement

the IEP because the student still received some educational benefit during the school year.301 Judge

Anderson accepted the hearing officer’s factual findings but determined “the evidence considered

as a whole pointed to a different legal conclusion.”302 Judge Anderson credited the testimony of

an applied behavior therapist who worked in the classroom who explained (1) many of the

student’s problems were caused by the failure of the lead teacher and aides to properly understand

and implement the ABA teaching techniques, and (2) it took months of working with the student

to cure the problems caused by improper implementation of his program.303 The court of appeals

affirmed Judge Anderson’s finding the missing hours, in combination with the school’s failure to

utilize the teaching techniques specified in the IEP, amounted to a failure to implement the

student’s IEP.304

The record shows S.C. struggled academically because he received inadequate

programming and only a fraction of the services detailed in his IEP, much like the student in

Sumter. We follow Judge McHugh’s lead in considering the testimony of the individuals actually

present in the classroom on a daily basis—the two classroom aides. Both classroom aides testified

S.C. is “very smart” but the lack of consistent teacher support impacted S.C.’s progress.305 One of

the classroom aides explained her students “need that repetitive teaching in order to retain it” and

if they cannot provide programming for the appropriate amount of time each day then the students

regress.306 The record supports this observation. The Parents testified as of November 2021, they

still struggled with toilet training S.C. and were not seeing “any success” with the District’s

program implementation.307

The evidence establishes the District did not consistently provide S.C. with the IEP

supports and services he required to receive a free appropriate public education, and the

implementation failures deprived S.C. of a meaningful education benefit.308

3. Hearing Officer McElligott properly found the District did not provide S.C. with

a free appropriate public education for the 2021-2022 school year.

Hearing Officer McElligott found the Hempfield School District did not provide S.C. with

a free and appropriate public education for the 2021-2022 (first grade) school year. Whether the

District fulfilled its free and appropriate public education obligation is a question of fact.309

Because the District challenges the Hearing Officer’s decision, it bears the burden of showing it

did not fail to implement substantial or significant provisions of the IEP or deny S.C. a meaningful

educational benefit.310 We find the District denied S.C. a free and appropriate public education to

S.C. during the 2021-2022 school year giving “due weight” to the Hearing Officer findings under

the modified de novo standard.

Hearing Officer McElligott found and we agree the record establishes the autistic support

classroom’s staffing issues during the 2020-2021 school year persisted into the 2021-2022 school

year. The classroom had one fewer classroom aide than the year before despite having the same

number of students. S.C. went without a speech therapist for fourteen days. Two of the classroom

aides left in November 2021 because they were frustrated the children in the classroom were not

getting enough educational support.311 Teacher Haws confirmed there was only one teacher and

one paraprofessional in the classroom at the time the parents decided to enroll S.C. in Warwick,

with only intermittent support from other staff.312 The Hearing Officer further concluded the

District did not complete progress monitoring during the fall of 2021.

While Hearing Officer McElligott acknowledged the staffing issues, he found “it is the

progress monitoring—or, more precisely, the lack of progress monitoring—that tells the tale and

is the grounds for finding that the student was denied FAPE in the fall of 2021.”313

We again find Officer McElligott erred as a matter of law in his analysis by focusing

exclusively on progress or progress monitoring. Parents assert an implementation claim under the

Act. We now apply the correct legal standard to the evidence in the record, giving due weight to

the Hearing Officer’s findings of fact.

The relevant IEP is the January 2021 IEP, which included daily specially-designed

instruction geared toward improving S.C.’s activities of daily living, including providing S.C.

support with toileting readiness skills by having staff accompany him to the toilet at least once

every thirty minutes; a personal care assistant for five-and-a-half hours per day; the use of behavior

protocols to increase safety awareness and compliance; individualized and small group instruction;

a pair teaching environment; errorless teaching procedures; and fast-paced instruction.

The record establishes the District did not provide S.C. regular programming during the

first-grade year due to staffing issues. Teacher Haws admitted staffing issues negatively impacted

her ability to implement S.C.’s IEP goals with fidelity.314 Teacher Haws explained less staff meant

each staff member had to instruct a larger group of children.315 Teacher Haws swore she had a

student who displayed aggression in the classroom requiring them to evacuate the other students

for safety purposes.316 When a student displayed an unsafe behavior, it often required two adults

to address the situation and one adult to keep the remaining children safe—further reducing the

amount of precious learning time for the students.317 Teacher Haws admitted she specifically

struggled to perform errorless teaching sessions, use fast-paced instruction, and provide S.C. with

regular toileting support as required by his IEP.318 The classroom aides testified they also struggled

to consistently implement S.C.’s programs due to staffing shortages.319

The implementation failure during the first grade is significant. S.C.’s IEP repeatedly

provides S.C. must receive daily services. One classroom aide testified there were times when they

were just “babysitting” and “learning wasn’t happening.”320 Another aide testified there were

“hours missed everyday” dealing with behavioral issues.321 The District’s implementation failures

are also supported by the December 2021 progress data. While S.C. “mastered” his vocabulary

and echoics goals, S.C. remained “not proficient” in many of his IEP goals including manding,

following one-step directions, and math.322 The goal for following two-step directions remained

on hold.323 S.C. remained partially proficient in his visual-motor and self-care goal.324 The

progress report lacks any December 2021 data for S.C.’s goals in functional communication,

performing motor actions, and speech intelligibility.325 Both classroom aides, who were

responsible for tracking and assessing S.C.’s progress on a daily basis, testified S.C. regressed in

his skills during first grade.326

The District argues S.C. made progress under the January 2021 IEP but provides little

support for its position. The District relies on classroom aide Hilton’s testimony in support of its

argument S.C. “made so much progress with toileting that he was able to sign when he needed to

go to the bathroom.”327 The District’s characterization of classroom aide Hilton’s testimony is

inaccurate. Classroom aide Hilton swore S.C. had a “good day” where he was able to sign to go to

the bathroom but she thought toileting “would have gone much better had we had help” and “he

could have been much further ahead” with the proper supports.328

The District, and the Hearing Officer, repeatedly did not consider S.C.’s progress in light

of his potential.329 Classroom aide Hilton observed S.C. is “brilliant,” “super smart,” “the smartest

kiddo in there,” and “picked things up really fast.”330 Classroom aide Dulio observed S.C. “is a

very smart kid” who “could have progressed a lot more than he did.”331 Classroom aide Dulio

found S.C.’s regression “concerning” for “as smart as a kid he was and how quickly he picked up

stuff.”332 Autism Coach Frederick referred to him as “a smart little whip!”333 The fact S.C. did not

make progress commensurate with his abilities is supported by how fast he progressed between

September 2020 and November 2020—when he benefited from Teacher Yoder’s instruction—and

his regression from November 2020 to December 2021—when he did not receive consistent

programming because of staffing shortages and inadequate supports.

The District places great emphasis on the Parents’ view being “very pleased” with S.C.’s

progress. The record suggests otherwise. In July 2021, Parent reached out to Autism Coach

Frederick expressing her concern with S.C.’s latest progress reports and noting she has seen a

regression in speech at home.334 Parent reached out to staff in the District in July 2021 and again

in November 2021 explaining they have not seen progress with potty training and seeking help

from outside agencies.335 Parents only learned of the staffing issues in the classroom in Fall 2021

after speaking with fellow parents and the classroom aides who expressed their concerns. Parents

emailed Director Galen requesting she visit the classroom and expressing concerns the classroom

is “chronically understaffed, with incorrect student to teacher ratios,” they received reports faculty

“are primarily focused on keeping the children safe and fed,” and they are concerned about “the

teacher’s ability right now to meet educational requirements.”336 Director Galen told Parents the

speech therapist was on maternity leave only after they specifically inquired.337 Parents asked for

a meeting and the District met to discuss Parents’ concerns about staffing and review S.C.’s

progress in November 2021.338 Parents discussed a number of options for addressing the problem

with the District but left the meeting feeling as though the District did not have a plan to remedy

the situation.339 Parents learned in early December of classroom aides Dulio’s and Hilton’s

departure only after contacting Teacher Haws for a list of teachers to whom they could send

Christmas cards.340

The District also cites to the fact Teacher Haws implemented the students’ IEPs every day

as evidence S.C. received meaningful educational benefit. The question is not whether Teacher

Haws implemented the IEPs, but rather the extent to which she implemented them. The District

mischaracterizes the evidence on this point, claiming first Teacher Haws said staffing shortages

did not impede the fidelity of IEP implementation.341 Teacher Haws said precisely the opposite.

When asked whether she thought the staffing shortages impacted her ability to implement S.C.’s

IEP, she responded: “Yes, definitely with fidelity. With fewer staff in the room, it required

grouping, so it didn’t allow for things to be done with fidelity.”342

The evidence establishes the District did not consistently provide S.C. with the IEP

supports and services he required to receive a free appropriate public education. We conclude the

implementation failures deprived S.C. of a meaningful education benefit in first grade in the

Hempfield School District.343

B. We remand consideration of the award of compensatory education for the

2020-2021 and 2021-2022 school years to the expertise of the Hearing Officer

to make non-arbitrary findings consistent with this Memorandum.

Congress empowers us to “fashion an appropriate remedy to cure the deprivation” of S.C.’s

right to receive a free appropriate public education.344 S.C. is “entitled to be made whole with

nothing less than a ‘complete’ remedy.”345 “Compensatory education is an equitable remedy in

which a child is given additional education hours to make up for deficient hours of schooling when

not provided a FAPE.”346 Compensatory education is an appropriate remedy when the District

knows or should know a child’s special education program is not appropriate and fails to remedy

the deficiencies.347 “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.”348

After concluding the District denied S.C. a free appropriate public education, Hearing

Officer McElligott awarded S.C. sixty-five hours of compensatory education for the District’s

deficient schooling in the 2021-2022 school year.349 The Hearing Officer estimated approximately

sixty-five days of schooling occurred between late August 2021 when S.C. started in first grade

and mid-December 2021 when he withdrew from the District. He awarded one hour per day of

deficient schooling, reasoning despite the staffing issues and progress monitoring “there was

education unfolding over the fall of 2021.”350

Parents ask us to award six additional hours of compensatory education for each day of

schooling from November 16, 2020 through the conclusion of the 2020-2021 school year.351 The

District argues there is no evidence of an educational deprivation for which compensatory

education is owed. We already determined the District deprived S.C. of a meaningful education

benefit from November 2020 through December 2021.

“Determining the amount of a compensatory education award requires a fact-specific

inquiry.”352 “The award should ‘match the quantity of services improperly withheld throughout

that time period, unless the evidence shows that the child requires more or less education to be

placed in the position he or she would have occupied absent the school district’s deficiencies.’”353

In instances where “the denial of FAPE creates a harm that permeates the entirety of a student’s

school day,” “full days of compensatory education (meaning one hour of compensatory education

for each hour that school was in session) may be warranted[.]”354

Both parties argue the Hearing Officer’s award of compensatory education for the 2021-

2022 school year is arbitrary.355 We agree this award is arbitrary as the Hearing Officer did not

explain how one hour per day equitably put S.C. back in the position he was in before the deficient

schooling, nor did he make any factual findings to support this quantitative conclusion. We also

find Hearing Officer McElligott based the award on an erroneous application of the law. By

focusing exclusively on supposed deficiencies in progress monitoring, the Hearing Officer failed

to consider the full spectrum of services improperly withheld, including toileting programming,

individualized instruction, errorless teaching procedures, and fast-paced instruction. The Hearing

Officer must assess quantitatively the amount of services S.C. missed consistent with this opinion.

The Hearing Officer must also consider whether to exclude from its calculation the amount of time

reasonably required for the District to correct the deficiencies.

We find because Hearing Officer McElligott erred in determining the District provided

S.C. an appropriate education for the 2020-2021 school year, he also erred in excluding this period

from the ordered remedy. We remand to require (absent resolving the claim) the Hearing Officer

to address the issue of compensatory education for this period in the first instance. The Hearing

Officer may need to consider additional evidence to assess the scope of the implementation

failures, such as the daily graphs and probe sheets referenced by Autism Coach Frederick and data

the District has on the substitute teachers who occupied the kindergarten classroom during the

2020-2021 school year.

Although our review over determinations of compensatory education is plenary, we are

mindful we should not “substitute [our] own notions of sound educational policy for those of the

school authorities which [we] review.”356 We cannot make a quantitative assessment of the

implementation failures on the existing record. “[I]n the Third Circuit, remand is appropriate for

clarification of the record and when a hearing officer applies the wrong legal standard.”357

We remand to the Hearing Officer to determine, consistent with his expertise and this

memorandum, the amount of compensatory education to which S.C. is entitled between November

16, 2020 and December 12, 2021. Additional proceedings may be necessary to enable the Hearing

Officer to fashion a more particularized award based on the guidance in this opinion and a

calculation of the extent to which the District denied S.C. supports and services. On remand, the

Hearing Officer should also determine and explain exactly what form the compensatory education

should take. Parents ask the compensatory education award be placed in a fund for S.C.’s benefit.

C. Hearing Officer McElligott did not err in awarding full tuition

reimbursement.

Hearing Officer McElligott found the District failed to provide S.C. with a free and

appropriate public education for the period August 2021 to December 2021 and awarded full

tuition reimbursement for the period December 2021 through the end of the 2021-2022 school

year.358 We have plenary review of the Hearing Officer’s decision as to tuition reimbursement.

S.C. may be enrolled in an appropriate private school and the District may be obligated to

reimburse parents for private tuition expenses if the District first fails to offer a free and appropriate

public education.359 Congress through the IDEA authorizes tuition reimbursement for parents who

unilaterally decide to place their child in an out-of-district school if the IEP proposed by the District

failed to offer the child a free and appropriate public education and the placement the parents chose

is proper under the IDEA.360 Under the Burlington-Carter test, Parents are eligible to receive

private tuition reimbursement if: “(1) the public school did not provide a [free and appropriate

public education]; (2) placement in a private school was proper; and (3) the equities weigh in favor

of reimbursement.”361

1. Warwick is an appropriate placement.

Parents are entitled to tuition reimbursement only if we conclude, first, “public placement

violated [the] IDEA.”362 We applied prong one of the Burlington-Carter analysis and we find the

District denied S.C. a free appropriate public education for the period from August 2021 to

December 2021.

The Hearing Officer applied the second prong of the Burlington-Carter analysis,

concluding Warwick was an appropriate placement because “[t]he December 2021 IEP was

appropriate, and the student made progress under the terms of the IEP, benefiting from significant

learning in almost every goal area.”363 We agree the record supports a finding S.C. made progress

on his goals in math, visual motor/fine-motor, reading comprehension, speech intelligibility,

tacting, listener response, and manding (requesting).364 He also made great strides in toilet

training.365 We see no reason to disturb the Hearing Officer’s findings here and note Warwick

need not meet all of the Act’s FAPE requirements in order to make Parents eligible for

reimbursement.366

The District argues Parents are not entitled to tuition reimbursement because Warwick is

not an appropriate placement under the second test of the Burlington-Carter analysis even if the

Hearing Officer properly found the denial of FAPE under prong one. The District fails to meet its

burden.

Congress provides:

Reimbursement for private school placement. If the parents of a

child with a disability, who previously received special education

and related services under the authority of a public agency, enroll

the child in a private elementary school or secondary school without

the consent of or referral by the public agency, a court or a hearing

officer may require the agency to reimburse the parents for the cost

of that enrollment if the court or hearing officer finds that the agency

had not made a free appropriate public education available to the

child in a timely manner prior to that enrollment.367

The District argues the Hearing Officer is without authority to award tuition reimbursement

because Warwick is a public school. The District relies on a decision of the Court of Appeals for

the Ninth Circuit. In Minor v. Antioch Unified Sch. Dist., the parents of student N.F. withdrew N.F.

from the Antioch School District and enrolled him in an online public charter school.368 Despite

the fact they enrolled their son in a different public school, Parents requested Antioch School

District evaluate and offer an IEP to N.F. while he remained enrolled in the online public charter

school so they could determine whether they were eligible for reimbursement for their alternative

placement. The court of appeals considered whether the parents’ request was appropriate under

the IDEA’s “Child Find” regulation requiring school districts to identify, locate, and evaluate

children with disabilities within their local areas.369 The regulation applies to “parentally-placed

private school children with disabilities.”370 The court of appeals interpreted the plain language of

the regulation to extend only to children enrolled by their parents in private schools. The court of

appeals affirmed Judge Westmore’s holding the public charter school—not the District—is

responsible for providing the student’s IEP, reasoning, “These [Child Find] regulations have no

application here because it is undisputed that N.F. was enrolled in a public charter school, not a

private institution.”371

Parents distinguish the facts of Minor because it involved a District’s Child Find

obligations and did not address tuition reimbursement. The Parents cite to two separate regulations

under the Act requiring public agencies “ensure that a continuum of alternative placements is

available to meet the needs of children with disabilities for special education and related services”

and defining special education to include “[i]nstruction conducted in the classroom, in the home,

in hospitals and institutions, and in other settings” in support of their argument they are entitled to

a remedy not explicitly provided for in the language of the Act.372

Congress through the Act grants us plenary equitable powers to “grant such relief as [we]

determine[] is appropriate.”373 The Supreme Court has long instructed “the only possible

interpretation [of the Act] is that the relief is to be ‘appropriate’ in light of the purpose of the

Act”—namely, providing children free appropriate public educations.374 In School Committee of

Burlington v. Department of Education, the father of a child with a disability rejected the school

district’s proposed IEP and sought review by a state agency.375 While administrative review was

pending, the father enrolled the child in a private school for special education at his own expense.

The Supreme Court considered for the first time whether the IDEA authorizes reimbursement for

the cost of private schooling when a parent unilaterally enrolls a child in private school because

the public school failed to provide a FAPE. At the time of the decision, Congress did not explicitly

refer to the possibility of reimbursement.

The Court reasoned the Act confers broad discretion to judges to fashion remedies as long

as they are “appropriate” in light of the Act’s purposes.376 The Court explained in instances where

a judge finds an IEP is improper and placement at a private school is appropriate to remedy the

situation, “appropriate” relief would entail a prospective injunction directing school officials to

develop an appropriate IEP placing the child in a private school.377 But because administrative

review and judicial review can take months to years, parents are faced with a decision of whether

to subject their child to deficient schooling or pay for what they consider to be an appropriate

placement in the interim. The Court held it is empowered to grant retroactive reimbursement as a

remedy, reasoning, Congress intended the Act to provide children “both an appropriate education

and a free one; it should not be interpreted to defeat one or the other of those objectives.”378

We too must exercise our broad discretion to fashion an appropriate remedy considering

the purposes of the Act. Parents here could not access a free appropriate public education and

considered other options for S.C. Parents testified they were unable to locate an appropriate private

school able to support S.C.’s needs. They chose to enroll S.C. in a school district capable of

providing S.C. with an appropriate program and placement. When they unilaterally moved their

child to a public school, they did so “at their own financial risk.”379 As the Court explained in

Burlington, “it would be an empty victory” for us to tell Parents they were right—the District

denied their son an appropriate education—but they must bear the cost of the District’s failure.380

We do not make Parents choose between a free education and an appropriate one by denying them

reimbursement for the cost of enrolling their child at Warwick. The Hearing Officer properly

granted Parents the award of full tuition reimbursement.

We are not persuaded otherwise by the District’s reliance on the Court of Appeals for the

Ninth Circuit’s analysis in Minor as the case did not involve the same equitable considerations

presented to us. The court of appeals in Minor reviewed a decision concerning which school district

must provide the student a free appropriate public education under the plain language in the Act.

The court of appeals did not consider the issue of tuition reimbursement in Minor. We are instead

persuaded by the Supreme Court’s guidance in Burlington and by the many instances in which our

colleagues departed from the strict language of the IDEA to fashion equitable remedies serving

the purposes of the Act.381

The Hearing Officer found Warwick an appropriate placement under the third prong of the

Burlington-Carter analysis. We see no reason to depart from his findings.

2. Awarding tuition reimbursement does not violate the Spending Clause.

Congress enacted the IDEA using its powers under the Spending Clause.382 “While

Congress has broad power to set the terms on which it disburses federal money to the States, any

conditions it attaches to a State’s acceptance of such funds must be set out ‘unambiguously.’”383

“Fund recipients are bound only by those conditions that they accept ‘voluntarily and knowingly,’

and States cannot knowingly accept conditions of which they are ‘unaware’ or which they are

‘unable to ascertain.’”384

The District argues awarding tuition reimbursement to the Parents for placement at another

public school violates the Spending Clause. The District contends because Congress provides

States federal funds under the IDEA, it must provide clear notice to the States of the conditions

upon which the funds are distributed so the States are fully informed when making the decision to

accept the funds. The District asserts we cannot award tuition reimbursement for placement at a

public school because the IDEA does not explicitly authorize (or provide “clear notice”) this award

is available.

The District cites to the Supreme Court’s analysis over forty-two years ago in Pennhurst

State School & Hosp. v. Halderman in arguing IDEA is a Spending Clause statute and must provide

“clear notice” to states and fund recipients of the conditions for accepting funding.385 The Court

explained in Pennhurst “legislation enacted pursuant to the spending power is much in the nature

of a contract: in return for federal funds, the States agree to comply with federally imposed

conditions.”386 “Unlike ordinary legislation, which imposes congressional policy on regulated

parties involuntarily, Spending Clause legislation operates based on consent: in return for federal

funds, the [recipients] agree to comply with federally imposed conditions.”387 The Court explained

because of this important distinction, “if Congress intends to impose a condition on the grant of

federal moneys, it must do so unambiguously” because a State or fund recipient cannot knowingly

accept funds if it is “unaware of the conditions or is unable to understand what is expected of it.”388

The District also relies on the Supreme Court’s analysis in Arlington Central School

District Board of Education v. Murph holding parents who prevailed in administrative proceedings

under the IDEA could not recover expert fees the parents incurred.389 In determining whether

parents could recover expert fees, the Supreme Court began its analysis with the IDEA’s text,

reasoning if its “language is plain,” judges must enforce it according to its terms.390 The IDEA

provides judges may award “reasonable attorneys’ fees as part of the costs[.]”391 As a Spending

Clause statute, clear notice of liability for such fees is required in an action to enforce the IDEA.392

Applying the “clear notice” mandate of Pennhurst, the Court reasoned “this provision does not

even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing

parents for services rendered by experts.”393 The Supreme Court reasoned the term “costs” in the

Act’s fee-shifting provision is a term of art which does not ordinarily include expert fees. The use

of the word costs, a term of art, rather than “expenses,” suggests the provision is not meant to be

“an open-ended provision that makes participating States liable for all expenses incurred by

prevailing parents in connection with an IDEA case—for example, travel and lodging expenses or

lost wages due to time taken off from work.”394 The Court also looked to other provisions of the

Act, which are designed to ensure the awards of attorney’s fees are reasonable and which notably

do not mention expert fees anywhere.395

Parents respond the IDEA does not explicitly prohibit tuition reimbursement for placement

at a public school. Parents argue the States are on clear notice of this potential remedy because the

Act allows reimbursement for private school tuition and placement at an out-of-district public

school at their own expense is “in essence no different than a private school because S.C. could

not attend this school without paying the tuition.”396 Parents also cite to other laws requiring public

schools fund public services provided outside of its district, including Section 504 of the

Rehabilitation Act which requires a public school district to fund the educational portion of a

handicapped student’s program in a public residential facility if necessary for the student to receive

a FAPE.397

We are guided by a recent decision of the Court of Appeals for the Second Circuit in J.S.

v. N.Y. State Department of Corrections addressing a Spending Clause challenge to the IDEA’s

fee-shifting provision.398 The fee-shifting provision permits judges to award reasonable attorney’s

fees “to a prevailing party who is the parent of a child with a disability.”399 A twenty-year-old

incarcerated person, J.C., prevailed in an administrative proceeding against the New York

Department of Corrections for denying him a free appropriate public education.400 The Department

refused to pay J.S.’s attorney’s fees and costs. Relying on the Supreme Court’s decision in

Arlington, Judge Sinatra dismissed for failure to state a claim reasoning the IDEA “unambiguously

disallows J.S. from receiving a fee award” because only a “parent” of a child with a disability can

prevail under the language of the Act.401 The court of appeals reversed, finding J.S. may pursue

an award of fees because the statutory phrase defining “parent” is broad enough to include J.S.,

Congress gave no textual indication it meant to exclude persons in J.S.’s situation from its

definition, and its interpretation is confirmed by the broader statutory scheme.402

The court of appeals explained the IDEA defines “parent” to include “an individual who is

legally responsible for the child’s welfare.”403 When a child is under the age of 18, the person

“legally responsible” is often someone other than the child. But the IDEA continues to apply

between ages 18 and 21, when an adult child may seek relief on their own behalf. The court of

appeals interpreted “parent” to include adult children because to find otherwise would undermine

the purposes of the Act by finding a child is protected under the IDEA but unable to vindicate their

rights.404 The court of appeals distinguished Arlington, reasoning “[f]rom the vantage of a state

official…the fee-shifting provision did not furnish sufficiently clear notice that the state could be

liable for expert fees on top of attorneys’ fees.”405 The court of appeals also distinguished the

Supreme Court’s analysis in Arlington finding it: “speaks to recovery of a type of cost—non-

attorney expert fees—that the statute did not address at all; here, we address liability for a type of

cost—attorneys’ fees—that the statute expressly allows.”406 In accepting IDEA funding, states

committed to providing a FAPE to all children with disabilities and they are on notice if they fail

to do so, they may be liable for reimbursing the prevailing party. The only information they may

not have known is the identity of the prevailing party. This is not a violation of the Spending Clause

because the provision gives “states ample notice of a possible obligation to pay fees to a prevailing”

party.407 “It is the notice of liability for a prevailing party’s attorneys’ fees, not the precise identity

of the prevailing party, that is of operative significance.”408

We distinguish Arlington on a similar basis. The District is right – there is no reference in

the IDEA to reimbursement for a public school placement. But the notice of liability, not the

precise identity of the placement, is of “operative significance.”409 While State officials may not

have known exactly what type of placement they would be obligated to provide reimbursement

for, Congress placed State officials on notice of their obligations to provide a FAPE to all children

with disabilities including S.C. and they may be liable for reimbursement if they failed to do so.

Nothing in the text of the IDEA suggested States could be liable for expert fees in Arlington.

We are also guided by our Supreme Court’s decision in Forest Grove Sch. Dist. v. T. A.410

T.A. attended public school in the Forest Grove School District from kindergarten through high

school. A school psychologist evaluated him before he started high school and concluded he did

not qualify for special education services. The family sought another opinion from a private

specialist who diagnosed T.A. with attention deficit hyperactivity disorder and a number of

memory and learning related disabilities.411 The parents enrolled T.A. in a private residential

placement based on the specialist’s advice. The hearing officer found the school district did not

offer T.A. a free appropriate public education because it did not properly identify him as eligible

for special education services. The hearing officer found the parents’ private placement appropriate

and ordered the school district reimburse T.A.’s parents for the cost of tuition.412 The school

district argued the hearing officer erred in granting reimbursement because the statute only

provides reimbursement for students who “previously received special education and related

services under the authority of a public agency” and T.A. did not receive special education services

before the private placement.413 The school district argued reimbursement was improper because

the IDEA does not provide clear notice under the Spending Clause.

The Supreme Court began by looking at the language of the IDEA. The provision

addressing reimbursement provides, “If the parents of a child with a disability, who previously

received special education and related services under the authority of a public agency, enroll the

child in a private elementary school or secondary school without the consent of or referral by the

public agency, a court or a hearing officer may require the agency to reimburse the parents for the

cost of that enrollment…[.]”414 The Court reasoned this provision is phrased permissively, as it

provides courts “may require” reimbursement under certain circumstances but “it does not

foreclose reimbursement awards in other circumstances.”415 The Court reasoned Pennhurst’s

notice requirement is clearly satisfied because States have been on notice since the Burlington

decision the IDEA authorizes courts to order reimbursement in certain circumstances. The Court

reasoned the Act is best read as “elaborating on the general rule that courts may order

reimbursement when a school district fails to provide a FAPE by listing factors that may affect a

reimbursement award in the common situation in which a school district has provided a child with

some special-education services and the child’s parents believe those services are inadequate.”416

The Hempfield District makes a similar argument as the Forest Grove District made: the

statute provides for reimbursement in only a certain limited number of circumstances (when

parents place their child in a private school) and those circumstances are not present here so

reimbursement is improper. But the Court made clear in Forest Grove the reimbursement provision

is to be read permissively and we should not read it to prohibit what it does not authorize. Here,

the reimbursement provision authorizes reimbursement for private school tuition but it does not

prohibit reimbursement for public school tuition. The reimbursement provision lists factors

affecting a reimbursement award in common situations in which parents believe a district’s special

education services are inadequate. But the situation before us, where parents paid for their child to

receive special education services at a different public school, is not a common one. While “federal

grant programs originate in and remain governed by statutory provisions expressing the judgment

of Congress concerning desirable public policy,” Spending Clause precedent does not require

Congress to “prospectively resolve every possible ambiguity concerning particular applications”

of a statute before we find a state accepted a condition of federal funds.417 States have been on

notice since Burlington they are required to reimburse parents for the costs of special educations

in certain circumstances.

The District knew its obligation under the Act to provide a free appropriate public

education and understood its obligation to reimburse Parents in the event they failed to provide

one to S.C. The District does not offer a reason, for our purposes today, how there is a meaningful

difference between a parent who enrolls their child in a private school at their own financial risk

and a parent who enrolls a child in an out-of-district public school at their own financial risk. The

out-of-boundary public school is the only alternative for Parents’ purposes. And Parents

reasonably chose to do an out-of-boundary placement because it was less expensive than a private

school without uprooting their family. We see no reason to punish the Parents for making a

reasonable decision after considering their options. The District’s arguments suggest the student

has no choice but to accept repeated deficiencies in implementing the IEP if the Parents cannot

find or afford a private school near the district where they pay taxes. We cannot find Congress

precluded reimbursement to S.C.’s Parents given their options. Interpreting the IDEA in the

manner suggested by the District today would penalize an autistic child because of where the child

lives including the District’s inability to provide the mandated services.

We exercise our broad remedial powers consistent with the purposes of the Act to award

tuition reimbursement for S.C.’s public-school placement given today’s facts We find obligating

the District to reimburse Parents for the demonstrated tuition paid to Warwick School District does

not violate the Spending Clause.

D. We find no present basis to award attorney’s fees under IDEA but we grant

Parents leave to file a fee petition.

Parents argue they are entitled to attorney’s fees and costs under the Act as the prevailing

parties on the claims for the 2020-2021 and 2021-2022 school years. We cannot grant their relief

today as they did not adduce evidence to support a finding of attorney’s fees under the IDEA. We

grant them leave to file a fee petition.

Congress in the IDEA provides we, “in [our] discretion, may award reasonable attorneys’

fees as part of the costs” “to a prevailing party who is the parent of a child with a disability[.]”418

To “prevail” under the IDEA, Parents must obtain a “material alteration of the legal relationship

of the parties” that is “judicially sanctioned.”419 A party achieves a “material alteration” of the

parties’ legal relationship and “prevail[s]” for attorneys’ fees purposes only if he obtains relief that

is “in some way merit[s]-based.”420

The Parents are also entitled to reasonable attorney’s fees after we find the District

deprived S.C. of a free appropriate public education during the 2020-21 and 2021-22 school years.

But the Parents offer no evidence in support of their reasonable attorney’s fees incurred in

prevailing for the 2020-2021 and 2021-2022 school year. We deny the Parents’ motion for

reasonable attorney’s fees under IDEA today without prejudice given the parties did not fully brief

this issue given our rulings on the parties’ cross-motions for judgment on the administrative record.

We grant them leave to timely petition for fees.

III. Conclusion

Hearing Officer McElligott found and we agree the record establishes the District

experienced staffing issues in the autistic support classroom during S.C.’s 2020-2021 kindergarten

year and part of the 2021-2022 first grade year. But the Hearing Officer erred as a matter of law

by focusing his FAPE analysis exclusively on S.C.’s progress over the kindergarten year and on

the District’s progress monitoring in the 2021-2022 first grade year. Applying the correct legal

standard, we find the District failed to implement substantial or significant provisions of S.C.’s

IEP, including toilet training, errorless teaching, and fast-paced instruction, and thus denied S.C.

“a meaningful educational benefit” for the 2020-2021 school year and from August to December

2021.

We grant Parents’ Motion for judgment on the administrative record in part finding (1) the

District denied S.C. a free appropriate public education during the 2020-2021 school year, (2) the

District denied S.C. a free appropriate public education from August to December 2021; and (3)

the Hearing Officer correctly awarded tuition reimbursement for S.C.’s placement in the Warwick

School District. We deny Parents’ Motion for attorney’s fees without prejudice to timely

petitioning for attorney’s fees along with the demonstrating the exact amount paid to Warwick

School District for tuition.

We deny the District’s Motion for judgment on the administrative record. We remand to

the Hearing Officer to determine, consistent with his expertise and our guidance today, the amount

of compensatory education to which S.C. is entitled between November 16, 2020 and December

12, 2021 and what form the compensatory education should take.

1 ECF No. 11-9 at 29. The parties filed the full administrative record at ECF No. 11. We will

reference the record using the pagination assigned by the CM/ECF docketing system.

2 ECF No. 11-7 at 6. S.C. was born premature at 29.5 weeks gestation.

3 ECF No. 11-9 at 35.

4 Id. at 35-148.

5 Id. at 2.

6 Id.

7 Id.

8 Id. at 26-34.

9 Id. at 35.

10 Id. at 42.

11 Id. at 46-52.

12 Id. at 53-54. Errorless teaching is a teaching method frequently used in Applied Behavior

Analysis therapy. The method involves using positive reinforcement combined with prompting

strategies to teach new skills to students while minimizing the number of errors they make during

the learning process. ECF No. 11-7 at 38; see also, Amelia Dalphonse, Errorless Teaching:

Complete Guide, https://masteraba.com/errorless-learning/.

13 Id. at 58.

14 Id. at 62.

15 ECF No. 11-9 at 25; ECF No. 11-10 at 2.

16 ECF No. 11-7 at 5.

17 ECF No. 11-6 at 55.

18 Id.; 11-7 at 36; 11-9 at 301.

19 ECF No. 11-6 at 7.

20 ECF No. 11-9 at 68-82.

21 ECF No. 11-6 at 35-37.

22 Id. at 30, 49. Witnesses at the hearing often referred to the curriculum’s assessment tool as the

“VB-MAPP.”

23 ECF No. 11-6 at 6, 75, 78. Three of the classroom aides are personal care assistants and one is

a paraprofessional, but they share the same duties in this classroom and we refer to them

collectively as “aides.” Id. at 76. Utilizing District guidelines, the District considered the autism

support classroom to be fully staffed. Id. at 75.

24 Id. at 8, 18, 40, 76-77, 79; ECF No. 11-7 at 29.

25 ECF No. 11-6 at 49.

26 Id.

27 Id. at 74.

28 ECF No. 11-7 at 30.

29 ECF No. 11-9 at 75.

30 Id. at 6.

31 Id. at 75-80.

32 Id. at 68-73.

33 Id. at 6.

34 Id. at 68-82.

35 Id. at 68.

36 Id. at 49.

37 ECF No. 11-10 at 5.

38 Id.

39 ECF No. 11-6 at 48. Autism coach Frederick has a bachelor’s degree in special education and a

Master’s degree in general rehabilitation and disability studies. Id. She also has a certificate in

behavioral intervention in Autism through the University of Massachusetts. Id.

40 Id.

41 Id. at 6.

42 Id. at 22-23, 45, 87.

43 Id.

44 ECF No. 11-9 at 83.

45 Id. at 87.

46 Id. at 83, 99-100.

47 Id. at 103.

48 ECF No. 11-6 at 59.

49 Id. at 6, 31-32, 50.

50 Id. at 51.

51 Id.

52 Id. at 7, 32, 50.

53 Id. at 7, 32. One substitute would spend excessive time in the bathroom and request to watch the

movie Toy Story. Id. at 32.

54 ECF No. 11-6 at 7, 42; see 22 PA. CODE § 354.25(f).

55 ECF No. 11-6 at 7, 32-33. Ms. Hilton testified there were two substitutes who blockaded

themselves behind the desk and then did not return. Id. at 7-8.

56 ECF No. 11-6 at 43.

57 Id. at 23, 36.

58 Id. at 21, 33.

59 Id. at 58.

60 Id. at 79-80.

61 Id. at 7, 10, 20, 32, 50.

62 Id. at 7, 32, 50.

63 Id. at 60.

64 Id. at 32; ECF No. 11-10 at 46.

65 ECF No. 11-6 at 8.

66 Id. at 9-10, 35.

67 Id. at 9.

68 ECF No. 11-10 at 46-49.

69 Id.

70 ECF No. 11-6 at 77, 88.

71 Id. at 79.

72 Id. at 52, 78.

73 Id. at 88; ECF No. 11-7 at 10; ECF No. 11-9 at 306; ECF No. 11-10 at 23-25.

74 ECF No. 11-6 at 55; ECF No. 11-9 at 69.

75 ECF No. 11-9 at 68.

76 Id.

77 Id. at 74.

78 Id. at 74-82.

79 Id. at 74.

80 ECF No. 11-7 at 5.

81 ECF No. 11-9 at 109-147.

82 Id. at 128-137.

83 Id. at 122.

84 Id. at 122-123.

85 Id. at 123. S.C. could independently unfasten zippers, buttons, and snaps and required minimal

assistance to fasten zippers and buttons since starting to work on this in November 2020. Id.

86 ECF No. 11-9 at 99-100, 138-39. The January 2021 IEP also provided S.C. would be exempt

from mask wearing required by the District during the height of the COVID-19 pandemic.

87 ECF No. 11-9 at 144.

88 ECF No. 11-10 at 12.

89 Id. at 50.

90 Id. at 51.

91 Id. at 53.

92 Id. at 54.

93 Id. at 55.

94 Id. at 56-57.

95 Id. at 58.

96 Id. at 59.

97 Id. at 60.

98 Id. at 52.

99 ECF No. 11-6 at 53.

100 Id.

101 Id. at 15, 35.

102 ECF No. 11-7 at 12, 32.

103 Id. at 32.

104 ECF No. 11-10 at 46-49.

105 ECF No. 11-6 at 23, 87.

106 Id. at 14.

107 Id. at 37.

108 Id.

109 ECF No. 11-7 at 33.

110 Id.

111 Id. at 34.

112 ECF No. 11-6 at 14-15, 37-39.

113 Id. at 15.

114 ECF No. 11-7 at 33.

115 ECF No. 11-6 at 80. Director Galen swore she could not post for the positions until they actually

submitted their letters of resignation. ECF No. 11-6 at 80.

116 ECF No. 11-6 at 79; ECF No. 11-9 at 306; ECF No. 11-10 at 23-25.

117 ECF No. 11-9 at 306.

118 Id.

119 Id.

120 ECF No. 11-6 at 85.

121 ECF No. 11-9 at 306; ECF No. 11-10 at 45.

122 ECF No. 11-10 at 45.

123 Id.

124 ECF No. 11-7 at 14.

125 ECF No. 11-6 at 81.

126 ECF No. 11-7 at 24.

127 Id. at 14-15.

128 ECF No. 11-6 at 15-16, 39.

129 ECF No. 11-10 at 46-29.

130 Id.

132 ECF No. 11-10 at 34.

133 Id.

134 ECF No. 11-7 at 14-15.

135 Id. at 15.

136 Id.

137 Id.

138 Id. at 48.

139 Id.

140 Id. at 16.

141 Id. The District disputed the amount of tuition Parents paid to Warwick in their written closing

statement in the administrative proceedings. ECF No. 11-4 at 16 (citing to an exhibit which has

since been removed from the administrative record). The District does not appear to dispute the

amount of tuition in its appeal from the Hearing Officer’s decision.

142 ECF No. 11-9 at 311-12.

143 Id.

144 Id.

145 ECF No. 11-7 at 35.

146 ECF No. 11-10 at 50-60.

147 Id. at 51, 53-54, 56-57, 59.

148 Id. at 58.

149 Id. at 51, 53, 55.

150 Id. at 56.

151 Id. at 50, 52, 55, 60.

152 Id. at 52, 54.

153 Id. at 55.

154 ECF No. 11-7 at 11-12.

156 ECF No. 11-6 at 62.

157 ECF No. 11-9 at 166, 290.

158 Id. at 166.

159 Id. at 172.

160 Id. at 166.

161 ECF No. 11-6 at 55.

162 Id. at 54.

163 ECF No. 11-7 at 54. Assistant Superintendent Calendar had some knowledge of S.C.’s

programs from her interactions with other Warwick personnel and her visits to his classroom, but

she did not engage in any of the discussions about S.C.’s IEP.

164 ECF No. 11-7 at 54.

165 ECF No. 11-9 at 149.

166 Id. at 166.

167 Id. at 175.

168 Id. at 166, 175.

169 Id. at 184-189.

170 Id. at 199.

171 Id. at 190-194.

172 Id. at 175.

173 Id. at 193.

174 Id. at 176.

175 ECF No. 11-7 at 17.

176 ECF No. 11-9 at 148-149. Warwick originally had an autistic support program at the

elementary, middle, and high school levels but Warwick had to move the middle school program

to the elementary school because of the high number of students enrolling in the program at the

elementary level. ECF No. 11-7 at 54. The Warwick Assistant Superintendent swore the

elementary programs are “somewhat split by grade level, so most of the primary students are

together and most of the intermediate students are together, but it’s not a hard and fast rule.” Id.

The Hempfield School District maintained an age range requirement for its autistic support

classroom.

177 ECF No. 11-7 at 50.

178 Id. at 54.

179 Id. at 50.

180 ECF No. 11-9 at 161.

181 ECF No. 11-7 at 55-56.

182 Id.

183 ECF No. 11-9 at 161.

184 Id. at 161-62.

185 Id. at 161-63.

186 Id. at 161. But S.C. had been reading up to third grade level sight words as of November 2020

at the Hempfield School District. ECF No. 11-9 at 81.

187 ECF No. 11-9 at 162.

188 Id. at 152.

189 ECF No. 11-7 at 17; ECF No. 11-9 at 160.

190 ECF No. 11-9 at 156-160.

191 Id. at 176.

192 ECF No. 11-7 at 17.

193 Id.

194 ECF No. 11-9 at 206-210.

195 ECF No. 11-7 at 18.

196 ECF No. 11-4 at 17.

197 Id.

198 ECF No. 11-9 at 206-210.

199 ECF No. 11-7 at 17.

200 Id. at 53.

201 Id. at 17-18.

202 ECF No. 11-6 at 64.

203 ECF No. 11-11.

204 ECF No. 11-11 at 1-3.

205 ECF Nos. 11-6, 11-7.

206 ECF No. 11-3 at 4.

207 Id. at 11-12.

208 Id.

209 Id. at 12.

210 Id. at 1-25.

211 ECF No. 20-1 at 16 (“The Hearing Officer erred in two respects – first by determining whether

FAPE was provided solely based upon the rate of a student’s progress[.]”); ECF No. 22 at 4

(“Whether S.C. did, or did not make any, even de minimis progress, is not the ultimate determinant

of whether the District provided S.C. with a FAPE.”).

212 ECF No. 19-1 at 10-11; ECF No. 20-1 at 16-17.

213 ECF No. 19-1 at 12 (“The Hearing Officer’s award of compensatory education for 65 days was

completely arbitrary.”); ECF No. 23 at 13 (“The decision to assign compensatory education for

only thirteen weeks of an annual IEP—an IEP that was deemed appropriate at the time it was

created in January of 2021—is arbitrary.”).

214 S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 269–70 (3d Cir. 2003);

Carlisle Area Sch. v. Scott P. By & Through Bess P., 62 F.3d 520, 524 (3d Cir. 1995) (holding we

may reach an independent decision, except we must “accord the decision of the state agency ‘due

weight’ in [our] consideration.”).

215 Upper Darby Sch. Dist. v. K.W., No. 22-04343, 2023 WL 4826736, at *5 (E.D. Pa. July 27,

2023).

216 S.H., 336 F.3d at 270.

217 D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010).

218 D.K. v. Abington Sch. Dist., 696 F.3d 233, 243 (3d Cir. 2012).

220 Id. (quoting Oberti by Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d

1204, 1220 (3d Cir. 1993)).

221 In re Educ. Assignment of Joseph R., 318 F. App’x 113, 118 (3d Cir. 2009) (“[T]he district

court owes no deference to conclusions of law drawn by a state or local educational agency.”).

222 Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir. 2012).

223 Sch. Dist. of Phila. v. Post, No. 15-4501, 2017 WL 2879684, at *5 (E.D. Pa. July 5, 2017)

(citing 20 U.S.C. § 1415(i)(2)(C)(iii)).

224 Congress, through the Individuals with Disabilities Education Improvement Act, provides

“[any] party aggrieved by the findings and decision” of the state administrative hearing officer

may bring suit in “any State court of competent jurisdiction or in a district court of the United

States without regard to the amount in controversy.” 20 U.S.C. § 1415(i)(2)(A). When reviewing

the complaint, we “(i) shall receive the records of the administrative proceedings; (ii) shall hear

additional evidence at the request of a party; and (iii) basing its decision on the preponderance of

the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C.

§ 1415(i)(2)(C).

225 D.K., 696 F.3d at 244 (quoting P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d

727, 735 (3d Cir. 2009)).

226 20 U.S.C. § 1412(a)(1); see also D.S., 602 F.3d at 556.

227 Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390-91 (2017).

“Special education” is “specially designed instruction . . . to meet the unique needs of a child with

a disability”; “related services” are the support services “required to assist a child . . . to benefit

from” that instruction. Id. (citing 20 U.S.C. §§ 1401(26), (29)).

228 Lauren G. ex rel. Scott G. v. W. Chester Area Sch. Dist., 906 F. Supp. 2d 375, 388 (E.D. Pa.

2012) (“The Third Circuit has ‘held that there are few differences, if any, between IDEA’s

affirmative duty and § 504’s negative prohibition and have noted that the regulations implementing

§ 504 require that the school districts provide a free and appropriate public education to each

qualified handicapped person in its jurisdiction.’”) (quoting Ridgewood Bd. of Educ. v. N.E. ex rel.

M.E., 172 F.3d 238, 253 (3d Cir.1999)).

229 Endrew F. ex rel. Joseph F., 580 U.S. at 391 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)).

230 Id. (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley,

458 U.S. 176, 181 (1982)).

231 D.S., 602 F.3d at 557.

232 Endrew F. ex rel. Joseph F., 580 U.S. at 399.

233 J.D.G. v. Colonial Sch. Dist., 748 F. Supp. 2d 362, 378 (D. Del. 2010) (citing 20 U.S.C.

§ 1414(d)(4)(A); S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 265 (3d Cir.

2003)).

234 L.J. v. Sch. Bd., 927 F.3d 1203, 1215 (11th Cir. 2019).

235 Id. at 1215-16; see also, Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n. 3 (8th Cir.

2003) (concluding content and implementation analyses “safeguard the same principles”).

236 L.J., 927 F.3d at 1216.

237 Id.

238 Melissa S. v. Sch. Dist., 183 F. App’x 184, 187 (3d Cir. 2006).

239 Id. (quoting T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000)).

240 Ridley Sch. Dist., 680 F.3d at 269 (quoting D.S., 602 F.3d at 556).

241 High v. Exeter Twp. Sch. Dist., No. 09-2202, 2010 WL 363832, at *4 (E.D. Pa. Feb. 1, 2010).

242 D.S., 602 F.3d at 557.

243 D.K., 696 F.3d at 243.

244 Melissa S., 183 F. App’x at 187.

245 Endrew F. ex rel. Joseph F., 580 U.S. at 399.

246 ECF No. 11-3 at 18.

247 P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009).

248 ECF No. 11-6 at 12, 31, 59.

249 Id. at 6, 31, 50.

250 Id. at 7, 32, 50.

251 Id. at 51.

252 Id. at 9, 23, 36.

253 ECF No. 11-3 at 18.

254 Id. at 17.

255 L.J. v. Sch. Bd. of Broward Cnty., 927 F.3d 1203, 1214 (11th Cir. 2019) (“A child’s actual

failure—but it is not dispositive.”); Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir.

2007) (“[W]e clarify that the materiality standard does not require that the child suffer

demonstrable educational harm in order to prevail. However, the child’s educational progress, or

lack of it, may be probative of whether there has been more than a minor shortfall in the services

provided.”).

256 Colonial Sch. Dist. v. G.K. by & through A.K., No. 17-3377, 2018 WL 2010915, at *1 (E.D.

Pa. Apr. 30, 2018), aff’d, 763 F. App’x 192 (3d Cir. 2019).

257 Colonial Sch. Dist., 2018 WL 2010915, at *11 (E.D. Pa. Apr. 30, 2018) (quoting Bd. of Educ.

of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176 (1982)).

258 Id. at *12.

259 See Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003) (concluding content

and implementation analyses “safeguard the same principles”).

260 Melissa S., 183 F. App’x at 187 (internal citation omitted).

261 L.J., 927 F.3d at 1214.

262 Id.

263 See also Perkiomen Valley Sch. Dist. v. S.D., 405 F. Supp. 3d 620, 632 (E.D. Pa. 2019) (finding

Hearing Officer McElligot premised his FAPE conclusion on erroneous interpretation of progress

data).

264 Stephen O. v. Sch. Dist. of Phila., No. 20-1991, 2021 WL 6136217, at *21 (E.D. Pa. Dec. 29,

2021).

265 Melissa S., 183 F. App’x at 187.

266 L.J., 927 F.3d at 1214 (citation omitted).

267 Id.

268 ECF No. 11-6 at 86-87.

269 Id. at 5, 30.

270 Id. at 10, 35.

271 Id. at 12.

272 Id. at 36.

273 ECF No. 19-1 at 6.

274

275 ECF No. 11-3 at 11-12.

276 Id. at 18.

277 ECF No. 11-6 at 68.

278 ECF No. 11-9 at 88, 124 (emphasis added).

279 Id. at 163, 195.

280 ECF No. 11-10 at 54.

281 Id. at 50-55.

282 Id. at 59.

283 Id. at 55.

284 Id. at 58.

285 Id. at 52.

286 Melissa S., 183 F. App’x at 186.

287 Id. at 187.

288 Id.

289 Id. at 187-88.

290 Fisher v. Stafford Twp. Bd. of Educ., 289 F. App’x 520 (3d Cir. 2008).

291 Id.

292 Id. at 523-24.

293 J.C. v. Upper Darby Sch. Dist., No. 20-5030, 2022 WL 17324587 (E.D. Pa. Nov. 29, 2022).

While the District relies on this decision in support of its argument, it appears the District did not

read the decision closely. Contrary to the District’s characterization, the student in J.C. v. Upper

Darby School District did not have autism. The mother’s concern centered around the fact the

District placed her son in an autism support classroom when he did not have a diagnosis of autism.

294 Id. at *3.

295 Id.

296 Id. at *8.

297 ECF No. 11-6 at 35.

298 Id. at 9.

299 642 F.3d 478 (4th Cir. 2011).

300 Id. at 481.

301 Id. at 483.

302 Sumter Cty. Sch. Dist. 17, 642 F.3d at 485.

303 Id. at 485-86.

304 Id.

305 ECF No. 11-6 at 15, 35, 45.

306 Id. at 35, 38-39.

307 ECF No. 11-7 at 16.

308 Parents argue the District failed to provide S.C. with a one-to-one classroom aide. This is true,

but S.C.’s kindergarten IEPs did not provide him a one-to-one aide; rather, they provided S.C. a

personal care assistant for five-and-a-half hours per day. As Autism Coach Frederick explained, a

personal care assistant is not the same as a one-to-one aide. ECF No. 11-6 at 76. Because a one-

to-one aide is not listed as a service in S.C.’s IEP, we need not

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