N.P. v. Pleasant Valley School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

N.P., by and through his Parents,

C.P. and D. P., and C.P. and D. P.,

individually, CIVIL ACTION NO. 3:22-cv-00843

Plaintiffs,

v. (SAPORITO, M.J.)

PLEASANT VALLEY SCHOOL

DISTRICT,

Defendant.

MEMORANDUM

A special education hearing officer denied claims for compensatory

education and for prospective placement at Shrub Oak International

School made by the parents of N.P., a student with autism, intellectual

disability, other health impairment, and speech or language impairment.

The parents asserted that the defendant, Pleasant Valley School District

(the “District”), denied N.P. a free and appropriate public education

(“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. § 1400 The District contends that it provided N.P. with

FAPE by offering Individualized Education Programs (“IEP”) that were

reasonably calculated to provide meaningful education progress

considering N.P.’s particular circumstances. The hearing officer

conducted five days of virtual hearings before she issued her decision on

April 25, 2022. The parents filed a civil action for judicial review of the

hearing officer’s decision in this court on May 27, 2022. The plaintiff’s

Rule 12(c) motion for judgment on the record is before us for disposition.

For the reasons set forth herein, we will affirm the hearing officer’s

decision.

1

At the time of the filing of the complaint, N.P. was 20 years old and

was identified as one in need of specially designed instruction under the

primary disability category of Autism, secondary disability category of

Intellectual Disability, Tertiary disability category of Other Health

Impairment, and Quaternary disability category of Speech or Language

Impairment. N.P. has a full-scale IQ of 40, a general disability index score

of 44, and has significant and complex behavioral needs. N.P. engages in

physical aggression, self-injurious behaviors, destruction of property,

task refusal, difficulty with transitioning ritualistic stereotypy, eloping,

yelling, crying, and occasional incontinence.

1 The facts are taken primarily from the hearing officer’s decision.

On January 9, 2020, N.P. was enrolled in a non-residential

treatment facility associated with Behavioral Health Associates, Inc. The

facility focused on a combination of therapeutics and academics,

including a program for those dually diagnosed with Autism and

Intellectual Disabilities, and a program for students who have enhanced

behavioral needs. The facility accommodated approximately 24 students.

The facility uses TACT-II (Therapeutic Aggression Control Techniques –

2), a process primarily designed to de-escalate and then physically

manage students who have become unsafe either to themselves or to

others. The facility uses other techniques such as response, interruption,

and redirection to address students automatically reinforcing behaviors;

match stimulation; and a sensory room.

Between the time N.P. was admitted to the facility and the time of

the first hearing, the number of times N.P. needed to be restrained

increased. During this time period, N.P. needed to be physically

restrained 21 times. Because of N.P.’s size and strength, several staff

members were needed to safely restrain him, some of whom required

medical care for injuries in the attempts to restrain him.

N.P.’s IEP team held several revision meetings after he was placed

at the facility because of severe aggression and self-injurious behavior. In

late February 2020, a progress report indicated that N.P. was adjusting

to the new classroom despite some difficulties with bumping into things,

pacing, eloping, and falling asleep. However, his intense negative

behaviors had declined and positive interactions with staff were

increasing. On March 2, 2020, the IEP team met again to discuss

alternative placements for N.P., including in-state residential treatment

facilities, and the parents secured a supports broker to assist in the

search for an alternative placement. Many in-state alternatives were

considered, but N.P. was not accepted because of his age, severe

behaviors, or COVID-19 restrictions. On December 8, 2020, upon review

of recommendations from various doctors and a psychiatric evaluation,

the IEP team concluded that there was a medical necessity for N.P.’s

placement at a residential treatment facility.

Thereafter, the team sent N.P. to an intensive outpatient behavioral

program at an out-of-state institute from February 1–19, 2021, which

was ineffective and made things worse. In attempt to stabilize N.P., the

parents then placed him in an in-patient program at a special hospital in

Connecticut for six weeks, but all gains were short-lived. There, an

evaluating doctor recommended that the necessary elements of a

placement for N.P. should be 1:1 support 24 hours per day and respite for

the parents, together with medication reassessment and a return to a

treatment facility or partial hospitalization once N.P.’s behaviors were

stabilized.

As a result of COVID-19, N.P. did not receive programming from

the middle of March 2020 until the 2021–2022 school year. As a result,

N.P. applied for and will receive a Department of Education offer of an

additional year of education, until age 22.

N.P.’s parents have requested prospective placement at Shrub Oak

International School, located in Mohegan Lake, New York, a private

residential school and day school. Shrub Oak, which is accredited by the

State of Washington, but not the State of New York, works with students

on the autism spectrum that also have co-occurring conditions including

intellectual disability, behavioral challenges, speech and language

impairments, and medical or psychiatric concerns. N.P. was accepted into

the “Founder’s Program” at Shrub Oak, which focuses on engagement

and regulation activities and integration activities. A family nurse

practitioner is on duty 24 hours every day along with a mental health

team consisting of school psychologists, clinical psychologists, mental

health clinicians, and board-certified behavioral analysts. The program

includes adapted physical education, functional communication, and

social skills.

This court has jurisdiction to review the decision of a state hearing

officer under 20 U.S.C. § 1415(i). In reviewing the administrative

decision in IDEA cases, district courts “are to give due weight to the

factual findings of the ALJ.” ,

336 F.3d 260, 269 (3d Cir. 2003). The district court is required to conduct

a “modified de novo” review of the hearing officer’s decision, considering

the ALJ’s factual findings to be prima facie correct. at 270;

, 696 F.3d 233, 243 (3d Cir. 2012) (noting that

the court “must accept the state agency’s credibility determinations

unless the non-testimonial, extrinsic evidence in the record would justify

a contrary conclusion”). At no time may the court substitute its own

notions of sound educational policy for those of the school authorities.

, 458 U.S. 176, 206 (1982).

“A FAPE is an educational instruction specially designed to meet

the unique needs of a child with a disability, coupled with any additional

related services that are required to assist a child with a disability to

benefit from that instruction.’” K.C. ex rel. Her Parents v. Nazareth Area

Sch. Dist., 806 F. Supp.2d 806, 813 (E.D. Pa. 2011) (quoting Winkelman

ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007))

(cleaned up).

An Individualized Education Program (IEP) is a written statement

serving as the primary vehicle for providing students with the required

FAPE. S.H., 336 F. 3d at 264.

An IEP is a written statement developed for each

child that must include several elements. It must

include a statement of the child's current level of

performance, and how her disability affects her

performance. It must set measurable annual goals

relating both to progress in the general curriculum

and additional educational needs arising from her

disability. The IEP must detail those special

education services and supplementary aids that

the school will provide, explain how they will

contribute toward meeting the annual goals, how

they will allow the child to progress in both the

general curriculum and participate in

extracurricular activities, and describe how the

child will interact with disabled and nondisabled

children. In measuring the child’s progress, the

IEP must explain whether standard student

assessments will be used. If not, the IEP must

explain why not and how the school will assess the

child.

Id. (citing 20 U.S.C. § 1414(d)(1)(A)) (citations omitted). The issue of

whether an IEP is appropriate is a question of fact. D.S. ex rel. D.S. v.

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

The IDEA does not require a FAPE to be a perfect or ideal

education. Congress’s purpose in enacting the IDEA was to “open the

door of public education to handicapped children on appropriate terms”

more than it was to “guarantee any particular level of education once

inside.” Rowley, 458 U.S. at 192. To satisfy its duty to provide a qualifying

student with a FAPE, a school district must develop an IEP that responds

to the student’s identified educational needs by identifying the student’s

present abilities, goals for improvement, services designed to meet those

goals, and a timetable for reaching those goals. D.S., 602 F.3d at 557.

Thus, “[t]o meet its substantive obligation under the IDEA, a school must

offer an IEP reasonably calculated to enable a child to make progress

appropriate in light of the child’s circumstances.” Endrew F. ex rel.

Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). As

Endrew F. further explained:

The “reasonably calculated” qualification reflects a

recognition that crafting an appropriate program

of education requires a prospective judgment by

school officials. The Act contemplates that this

fact-intensive exercise will be informed not only by

the expertise of school officials, but also by the

input of the child's parents or guardians. Any

review of an IEP must appreciate that the question

is whether the IEP is reasonable, not whether the

court regards it as ideal.

Id. (citations omitted).

Here, the hearing officer found that the IEPs appropriately

conformed with the FAPE requirements as the District developed IEPs

that were reasonably calculated to enable N.P. to receive meaningful

educational benefit based on his unique needs. The hearing officer noted

that there were three IEPs: December 19, 2019; December 18, 2020; and

December 17, 2021. All three IEPs were found to include present levels,

individualized measurable goals, program modifications, specially

designed instruction, transition services, and related services reasonably

calculated to meet the unique needs of N.P. as required to assist him to

benefit from that instruction. (Doc. 10-3 (Hr’g Officer Final Decision &

Order), at 16.)

The hearing officer found that several IEP revision meetings were

held in early 2020 after N.P.’s placement at the facility. On February 12,

2020, the IEP was revised to prioritize N.P.’s behavioral goals over

functional academic goals because N.P.’s largest barrier to an improved

quality of life was severe aggression and self-injurious behavior. (Id. at

6.) The academic goals were removed from the December 2020 IEP and

reinstated in the December 2021 IEP. (Id.)

In a progress report dated February 28, 2020, it was indicated that

N.P. had adjustments to a new classroom including difficulty with

bumping into things, pacing, eloping, and falling asleep. It also included

N.P.’s intense negative behaviors had declined and his positive

interactions with the staff had increased. (Id.)

In a March 2, 2020, team meeting, alternative placements for N.P.

were discussed including in-state, residential treatment facilities. N.P.

was not accepted into those facilities because of his age, severe behaviors,

or COVID-19 restrictions. (Id.)

The IEP team met again on December 8, 2020 and reviewed the

recommendations of various doctors and psychiatric evaluation. The

team concluded that there was a medical necessity for N.P.’s placement

at a residential treatment facility. (Id. at 6–7.) The team agreed to send

N.P. to an intensive outpatient behavioral program out-of-state from

February 1–19, 2021. His placement at that facility was not effective in

that problem behaviors were reinforced resulting in increased self-

injurious behaviors and aggression toward staff. (Id. at 7.) A progress

report dated February 25, 2021, by the facility noted that following N.P.’s

return from the placement at an outpatient institute, he was following a

schedule, routine, and transitions to new locations and activities when

prompted. Also, N.P. completed small tasks with staff assistance and

frequent breaks. (Id.)

From March 26 through May 7, 2021, N.P.’s parents placed him in

an in-patient program at a special hospital in Connecticut to medically

stabilize him. There is a facility progress report dated April 30, 2021,

which was limited to speech and language data due to N.P.’s placement

in the Connecticut hospital for part of the time period covered by the

report. The progress report indicated that N.P. demonstrated progress on

two of three goals related to (1) functional “how” questions by sequencing

pictures; (2) functional “when” questions; and (3) assigning adjectives to

pictures being shown. (Id. at 7–8.)

The parents requested a Connecticut doctor to conduct an

evaluation of N.P., who concluded that after N.P.’s hospitalization for six

weeks the particular goal of stabilization was not reached. He further

concluded that the hospitalization program was not an intensive enough

environment for N.P. and that it was necessary for N.P.’s medical issues

to be stabilized before looking for a long-term placement. (Id. at 8.)

The hearing officer noted that N.P.’s

current IEP dated December 17, 2021[,] includes

goals that involve Essentials for Living (i.e.,

making requests; waiting; task completion;

accepting “no;” following and tolerating directions

related to health and safety; accepting transitions;

taking turns; sharing; completing daily living

skills; and reducing problem behaviors). The

Parents reported that, following high school, [N.P.]

will likely be placed in Adult Day Services and live

in a group home. The current IEP includes

functional academic goals (e.g., grammar; writing

practice; adapted reading program; and functional

math) and goal-specific Program Modifications

and Specially Designed Instruction (SDI),

Occupational Therapy, Speech and Language

Therapy, Special Transportation, and Extended

School Year (ESY).

(Id. at 9 (citations omitted).)

N.P.’s parents rely upon New Milford Board of Education v. C.R. ex

rel. T.R., 431 Fed App’x 157 (3d Cir. 2011), in support of their position

that the hearing officer’s decision should be reversed. In New Milford, a

student and his parents sought reimbursement for after-school

instruction that had been excluded from the student’s IEP. The testimony

at an administrative hearing indicated that the student exhibited

aggressive behaviors, such as shoving and making inappropriate noises.

Id. at 159. The student’s parents contended that he became aggressive

when frustrated with an academic task or when he had trouble

communicating, and that he would often act out in this manner to avoid

tasks set for him at school. Id. Both parties agreed that these behaviors

interfered with his ability to participate in the established IEPs but

disagreed to what extent they interfered. Id. Ultimately, the ALJ in New

Milford found the reports and observations by the student’s witnesses to

be credible and the testimony of the board’s primary witnesses not

credible, leading the ALJ to find that an after-school program was

required to provide the student with a FAPE. Id. The district court and

the Third Circuit each affirmed the ALJ’s decision in turn. Id. at 159,

161.

The posture of the case before us is distinctly different from that

presented in New Milford. Here, the hearing officer found “[e]ach of the

witnesses to be candid, credible[,] and convincing,” and that each

“testif[ied] to the best of their ability and recollection concerning the facts

necessary to resolve the issues presented.” (Doc. 10-3, at 13.) Based on

this testimony, the hearing officer specifically found that “the parties

have worked tirelessly to provide the best education and support services

to meet this Student’s unique and substantial needs.” (Id. at 17–18.) She

further found that “[a]ll of the parties have worked relentlessly to find an

ideal placement for the Student during unusual times. Even during

normal times, the Student’s age and problematic behaviors would make

it difficult to identify a residential placement that would admit the

Student.” (Id. at 18.) Ultimately, the hearing officer in this case, based

on the evidence and testimony presented, found that “[a]t all times, the

District has provided IEPs that were reasonably calculated to meet the

unique and substantial needs of the Student required to assist them in

benefitting from their instruction,” and thus “the Parents have not

demonstrated by a preponderance of the evidence that the District denied

a FAPE to the Student.” (Id.)2

As noted above, we are required to give due weight to the hearing

2 We note that the hearing officer also recognized the parents’ dedication,

love, and attention to him; that they built a strong support system for him;

that they have been willing to try the IEP team’s suggestions; and that they

have done their best to find an appropriate placement and services to stabilize

N.P. to improve his capacity to benefit educationally. (Doc. 10-3, at 17.)

officer’s factual findings. S.H., 336 F.3d at 269. We must accept the

hearing officer’s credibility determinations based on live testimony

unless non-testimonial extrinsic evidence in the record justifies a

contrary conclusion. D.K., 696 F.3d at 243. We are required to consider

the hearing officer’s factual findings as prima facie correct. D.S., 602 F.3d

at 564.

The plaintiffs have failed to cite any non-testimonial evidence to

justify rejecting the hearing officer’s credibility determinations or her

finding that the District offered IEPs that were reasonably calculated to

provide meaningful education progress considering N.P.’s particular

circumstances. Viewing the administrative record and the hearing

officer’s finding with the appropriate deference, we find that, during the

relevant time period, the District consistently monitored, documented,

and responded to his individual educational needs, and that the IEPs

offered by the District, as modified, were reasonably calculated to enable

N.P. to make appropriate progress considering his circumstances.

Accordingly, we find the District did not deny a FAPE to N.P.

In the absence of a substantive denial of a FAPE to N.P., the

remedies of a compensatory education or prospective placement are

unwarranted. See D.K., 696 F.3d at 252.

Accordingly, the hearing officer’s decision will be affirmed.

An appropriate order follows.

Dated: September 30, 2023 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge