“[T]he Supreme Court has required district courts to apply modified de novo review only in their review of IDEA claims, and we decline to extend that review to claims under the ADA and Section 504.”
How later courts described this case
- “[T]he Supreme Court has required district courts to apply modified de novo review only in their review of IDEA claims, and we decline to extend that review to claims under the ADA and Section 504.”
- “The trial court needs to . . . determine whether the School District violated its Child Find obligations under Section 504.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
A.V., by and through her father, Stephen W.,
and STEPHEN W. in his own capacity, CIVIL ACTION
Plaintiffs,
v.
WEST CHESTER AREA SCHOOL NO. 23-1306-KSM
DISTRICT,
Defendant.
MEMORANDUM
Marston, J. September 26, 2024
During the 2019–20 and 2020–21 school years, A.V., a minor child, attended Westtown-
Thornbury Elementary School within the West Chester Area School District (“the District”).
(See generally Doc. Nos. 12, 13.) A.V.’s father1 brings suit against the District for failing to
timely identify A.V. as a student in need of special education under the child find provision of
the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq, and Section
504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, and for denying A.V. a
fair and appropriate education (“FAPE”) in violation of both statutes. (Doc. No. 12.) Presently
before the Court are Plaintiffs’ and the District’s motions for judgment on the administrative
record. (Id.; Doc. No. 13.) Following oral argument and for the reasons discussed below,
1 Although A.V.’s mother filed the initial due process complaint, A.V.’s father is now the parent suing on
behalf of A.V. as he was awarded sole legal and physical custody of A.V. in January 2022. (Doc. No. 1;
Doc. No. 16 at ¶ 88.) As discussed infra, prior to January 2022, A.V.’s mother and father shared legal
custody (Doc. No. 4-11 at 4), but A.V. lived primarily with her mother and her mother’s then-partner
(Doc. No. 4-10 at 35) and had limited interaction with her father (N.T. at 113:2–6, 130:15–16).
Plaintiffs’ cross motion is denied and the District’s cross motion is granted in part and denied in
part.
I. FACTUAL BACKGROUND
A.V. is presently a ten-year-old who resides with her father in Montgomery County,
Pennsylvania attending elementary school in the Upper Merion School District where she is
eligible for special education services. (N.T. 63:8–21, 13:9–14.)
A. A.V.’s Kindergarten Registration
After A.V. turned five in July 2019, A.V.’s mother enrolled A.V. in full-day kindergarten
for the 2019 fall term at Westtown-Thornbury Elementary School. (Doc. No. 4-10 at 1–7.)
Along with the registration paperwork, A.V.’s mother also completed an Entry Questionnaire
and a Kindergarten Parent Survey. (Id. at 8, 14.)2 On the survey form, A.V.’s mother stated that
A.V. had previously attended preschool at the Warwick Child Care Center. (Id. at 8.)3 She
noted A.V.’s strengths as “outgoing, bright, playful, energetic” and her weaknesses as “can be
difficult to teach unless interested in the topic, stubborn, short sighted.” (Id.) Additionally, next
to “challenging behaviors,” A.V.’s mother stated that A.V. periodically struggled to manage her
2 A.V.’s mother completed the Entry Questionnaire on July 15, 2019 (A.V.’s mother mistakenly wrote
2018 not 2019) and the kindergarten registration paperwork on August 5, 2019. (Doc. No. 4-10 at 7, 14.)
On the Entry Questionnaire, A.V.’s mother stated that A.V. lived with her; although she provided the
name of A.V.’s father, she gave no additional contact information. (Id. at 14.) By contrast, A.V.’s
mother did not list A.V.’s father as a parent on the registration paperwork. (Id. at 3.) Instead, A.V.’s
mother included her then-partner’s contact information because although her then-partner did not
technically live in the same household, A.V.’s mother reported that he slept at their house or they slept at
his house 2 to 3 nights per week. (Id. at 4, 35.) Similarly, A.V.’s mother listed her then-partner as A.V.’s
father on A.V.’s school health record form. (Id. at 9.)
3 The survey noted the information provided would be used to determine the best placement for the child.
(Doc. No. 4-10 at 8.) A.V. was placed in Mrs. Alicia Neary’s kindergarten class. (Id. at 21.) Mrs. Neary
stated she never asked to see A.V.’s registration file and never saw any of the information provided by
A.V.’s mother on the survey form. (N.T. at 130:17–131:1, 134:16–20.)
emotions. (Id.) A.V.’s mother explained that she found firmness, consistency, and reward-based
approaches worked best in managing A.V.’s challenging behaviors. (Id.)
B. 2019–2020 School Year: Kindergarten
1. Early Kindergarten: August–December 2019
On August 26, 2019, A.V. started kindergarten in Mrs. Neary’s class4 with no record of
any developmental diagnosis or disorders. (Doc. No. 4-10 at 21; Doc. No. 16 at ¶ 9; 2019–20
Academic Calendar.) Mrs. Neary knew A.V. had just turned five years old in July and therefore
was a “young kindergartener.” (N.T. 119:6–8.) As the year began, Mrs. Neary also learned that
A.V. lived with her mother on a farm where her mother worked, that A.V. did chores and worked
in the barn, and that it appeared that A.V. had not been exposed to much socialization with
peers.5 (Id. at 107:3–108:3.)
Soon after school began, Mrs. Neary observed A.V. demonstrate some behavioral issues,
but nothing unusual for a child like A.V. who had just turned five and who did not appear to
have had a lot of structure prior to coming into kindergarten. (Id. at 75:25–76:14.) In the first
month of school, Mrs. Neary communicated with A.V.’s mother on an almost daily basis to
discuss A.V.’s adjustment to school.6 (Doc. No. 4-10 at 57; HO-2 at 51:18–25 (A.V.’s mother
4 Mrs. Neary had a teaching certificate for elementary kindergarten to 6th grade and over six years’
teaching experience in the fall of 2019. (Doc. No. 16 at ¶ 10.)
5 That fall, A.V.’s mother informed Mrs. Neary that A.V.’s father, Stephen W., who now has legal
custody, had not seen A.V. for a long time and that it was a “soft spot” for A.V. (N.T. at 113:2–6; see
also id. at 130:15–16 (Mrs. Neary testifying, “Mom did let me know that dad was not involved and that it
hurt [A.V.]”).)
6 As the year continued, Mrs. Neary noted that A.V. was very anxious about Mrs. Neary’s communication
with her mother as A.V. feared it would lead to punishment at home and the imposition of additional
chores. (N.T. 107:15–25 (Mrs. Neary testifying, “She was always very nervous about communication
with mom and what would happen as her punishment at home. Q: And what did that nervousness look
like? A: Sometimes crying, sometimes pleading don’t tell my mom”).) Later on, during virtual school in
first grade, A.V.’s teacher personally observed A.V.’s mother yelling and cursing at A.V. for failing to
complete her chores. (Id. at 194:20–195:15.)
testifying that at the beginning of the year, she and Mrs. Neary communicated at least every
other day, and communicated less frequently over time); id. at 121:9–11 (A.V.’s mother
testifying that she spoke with Mrs. Neary roughly at least once per week).)
During that time, A.V. exhibited multiple disruptive behaviors, including hitting, spitting,
making noises such as yelling, howling, barking and fake sneezing, hitting other students, licking
her body and the floors, picking her skin, and pulling out her hair and sucking on it. (Doc. No.
4-10 at 55–56.) For example, Mrs. Neary’s notes indicate that on September 5, 2019, A.V.
tapped on the sides of her chair to distract peers, made spitting noises 5 times, and faked
sneezing during group instruction. (Id. at 56.) Mrs. Neary also noted that A.V. particularly
struggled with transitioning from preferred to non-preferred tasks. (Doc. No. 16 at ¶ 18.)
But, Mrs. Neary stated that many of A.V.’s behaviors, such as hitting, spitting, disruptive
noises, sucking on hair, and licking her own blood were “extremely typical” of a young
kindergartener, who did not attend formal preschool.7 (N.T. at 75:25–85:12.) And, although she
noted that a few of A.V.’s behaviors were a little more unusual, such as fake sneezing and
howling, pulling out her own hair, and trying to pick through three layers of skin (N.T. at 83:19–
84:5, 85:17–87:12), Mrs. Neary believed with the proper interventions in place these behaviors
would become less frequent (id. at 106:13–17).
By early October, Mrs. Neary informed A.V.’s mother that she was referring A.V. for
Multi-Tiered System of Support (“MTSS”) services to help A.V. succeed in kindergarten.8 (Id.
7 Mrs. Neary admitted that A.V.’s mother referenced A.V.’s prior preschool experience once in email
correspondence on September 11, 2019. (N.T. at 143:5–25; see also Doc. No. 4-10 at 150.) But during
Mrs. Neary’s testimony she stated that in her experience attending a day care for preschool was a little
different than attending a formal preschool. (N.T. at 134:4–6, 143:11–18 (Mrs. Neary testifying that in
her experience, “you can tell who’s been in a formal preschool program when they come to you.”).)
8 In September 2019, A.V.’s mother emailed Mrs. Neary requesting an “intervention of some kind” if
A.V.’s behavior continued. (Doc. No. 4-10 at 150; HO-2 at 61:9–62:1.) A.V.’s mother also testified that
at 117:15–23.) The MTSS process is implemented by a team that includes the school
psychologist9, school counselor, reading specialist, intervention specialist in math, instructional
coach, school principal, and the regular education teacher of the student being referred. (Id. at
237:10–20.)
The MTSS process has three tiers with all students automatically receiving Tier 1 support
through whole group instruction in the regular education classroom. (Id. at 78:8–18, 242:1–18.)
The team meets and reviews data provided by the regular education teacher regarding the
student’s curriculum-based assessments, interventions that have been tried in the classroom, and
the student’s response to those interventions. (See Doc. No. 4-10 at 54–60.) The team then
helps develop either Tier 2 or Tier 3 interventions and specific goals for the student. (N.T. at
242:14–23.) Tier 2 involves interventions which include more tailored instruction to the
student’s particular needs. (Id. at 242:7–13.) And Tier 3 involves more intensive interventions
that include setting particular goals for a student, along with increased small group or one-on-one
support to assist in meeting those specific goals.10 (Id. at 242:14–23.)
she believed she had conversations with Mrs. Neary and the school principal within the first month of
school inquiring about whether A.V. needed an evaluation. (HO-2 at 52:10–54:7.) But, Mrs. Neary did
not recall any conversation about A.V. possibly having a disability. (N.T. at 124:12–15.) The hearing
officer found Mrs. Neary’s testimony more credible that A.V.’s mother. (Doc. No. 5-1 at 16.)
9 The school psychologist testified that she believed the MTSS inventions were appropriate for A.V.
(N.T. at 240:15–241:22.) The psychologist stated that the concerns regarding A.V.’s behavior did not rise
to the level that would trigger a special education evaluation because at the time, A.V. was “a very young
student coming in. She had a summer birthday so she had just turned 5, and we were seeing some
disruptive behaviors in the classroom but none to lead us to believe that she needed special education
services . . . . It was something that the teacher was very willing and able to intervene and help her make
progress and see what progress she would make with the interventions of MTSS.” (Id.)
10 Unlike an IEP, MTSS does not require formal data collection and there is no parental participation in
the process. (N.T. at 103:18–20, 282:25–283:4.)
A.V. started receiving MTSS Tier 2 supports in early October 2019, which included
alternative seating options to help A.V. focus, seating A.V. close to an instructional aide during
lunchtime, modeling and reinforcing appropriate behavior, using reward incentives, etc. (Doc.
No. 4-10 at 54–58.) When A.V.’s inappropriate behaviors continued, the MTSS team
transitioned A.V. to Tier 3 interventions, and implemented goals to address two behaviors that
interfered with her learning: (1) transitioning to a non-preferred activity, and (2) making
disruptive noises. (Doc. No. 16 at ¶ 14.) Relating to transitioning to a non-preferred activity,
A.V.’s goal was to transition away from a preferred activity with no more than one prompt, with
a baseline of requiring a minimum of three prompts to transition. (Doc. No. 4-10 at 59.)
Relating to disruptive noises, A.V.’s goal was to reduce the number of disruptive noise incidents
during whole group instruction to not more than one disruption every five minutes, with a
baseline of two disruptive noises every five minutes. (Id.) Mrs. Neary testified that one
disruption every five minutes is typical for a five-year-old. (N.T. at 90:14–91:1.) To reach these
goals, Mrs. Neary implemented multiple interventions, including ignoring A.V. when she made
disruptions, redirecting her, using verbal and non-verbal prompts, using a sand clock to count
down time remaining in an activity, and using a rewards-based behavior plan. (Doc. No. 4-10 at
59.)
Mrs. Neary testified that A.V. improved immensely with the help of the MTSS
interventions, stating that A.V. made significantly less disruptive noises and demonstrated
greater attention to tasks.11 (N.T. at 119:4–120:4 (Mrs. Neary testifying, “She transitioned very,
11 The Court finds it troubling that Mrs. Neary appears to not have realized that A.V. was actually
receiving Tier 3 supports. (See N.T. at 79:3–7 (Mrs. Neary testifying, “I haven’t been to Tier 3 with any
of my students so my knowledge – so I would assume it would be different goals for the same goal with
more strategies and interventions in place”).) When asked to look at documentation showing Tier 3
supports in place for A.V. in kindergarten, Mrs. Neary confirmed the presence of Tier 3 data, but stated,
“I don’t feel super comfortable speaking to [a Tier 3 goal] because I don’t make the goal.” (Id. at 88:11–
very well. Considering how she came in and the types of behaviors that you saw in the MTSS
report, some of those had become completely nonexistent towards the end of the school year.
She was really, really making progress. She was making friends.”); id. at 124:4–11 (“Q: Did
[A.V.’s] level of energy differ significantly from her peers in her kindergarten class? A: Maybe
in the first few weeks. But after we had things going in the right direction, no.”); id. at 110:12–
25 (Mrs. Neary testifying that the frequency of her emails to A.V.’s mother declined over time
because the behaviors declined).)
Emails from Mrs. Neary to A.V.’s mother during this period also reflect this
improvement. (See, e.g., Doc. No. 4-10 at 152 (Oct. 8, 2019 email from A.V.’s mother to Mrs.
Neary saying, “I’m just emailing to check in on [A.V]. How has she been doing the last two
weeks? No news is good news?”); id. at 153 (Oct. 10, 2019 email from Mrs. Neary to A.V.’s
mother saying, “Overall, we have all seen improvements from the start of the year – She
certainly has subsided putting her hands/feet, etc on anyone else. Having her sit in the area
directly behind the carpet helps her maintain her personal space . . . . What I’m mostly seeing
right now is inappropriate noises (fake sneezing, humming, squealing, hissing, etc) on a pretty
consistent basis. . . . so we will definitely be trying to target that specific behavior with this plan.
The other thing I’d like to try and correct is following directions the first time given . . . . Having
said all of this, we are making strides in the right direction – We have to be mindful that she did
just turn 5 and academically she is doing right where I’d hope. I hope that you know how much
I truly enjoy your daughter . . . .”); id. at 155 (Oct. 16, 2019 email from Mrs. Neary’s to A.V.’s
mother saying, “I mentioned . . . that we are collecting data . . . in regards to the disruptive noises
24.) And there is no record that the District collected any additional data on A.V.’s MTSS goals after
December 2019. (But see Doc. No. 4-10 at 156 (Nov. 12, 2019 email from Mrs. Neary to A.V.’s mother
stating “Overall she is making great progress, we are still working on her goals and tracking data for
disruptive noises and transitioning.”) (emphasis added).)
. . . . I just wanted to let you know that for whatever reason she had a very difficult morning
when it came to not shouting out with disruptive noises (more so than most days). She was also
jumping and leaping straight up and down in her spot several times”); id. at 156 (Nov. 12, 2019
email from Mrs. Neary to A.V.’s mother saying, “Overall she is making great progress, we are
still working on her goals and tracking data for disruptive noises and transitioning. As an update,
I use a 3 min timer with [A.V.] that is working really well to help her transition from a preferred
task.”).)
When the MTSS team met in early December 2019, the team agreed that although A.V.
had not met all her MTSS goals,12 she was improving.13 (See N.T. at 243:3–19.) However, there
was discussion regarding a new problematic behavior that Mrs. Neary had observed—A.V. had
started taking the belongings of others. (See Doc. No. 4-10 at 156 (Nov. 12, 2019 email from
Mrs. Neary to A.V.’s mother saying, “I just wanted to let you know that I had to talk with [A.V.]
today about not taking things from our classroom. She admitted to taking feathers that belong in
a math center and putting them in her pocket to take home.”); id. at 157 (Dec. 3, 2019 email from
Mrs. Neary to A.V.’s mother informing her that A.V. took a ballerina ornament from her
mother’s then-partner’s home, and admitted to finding a brand new pack of pink ear buds on the
floor of the classroom and taking them, despite at first claiming they belonged to her mother’s
then-partner); id. at 159–61 (Dec. 16–17, 2019 emails from Mrs. Neary and school principal to
A.V.’s mother informing her that A.V. took a lip gloss that belonged to another student).) This
12 A.V. achieved her goal of reducing the number of prompts needed to transition from a preferred activity
on 8 of 14 days observed in the morning session, and 5 of 13 days observed in the afternoon session.
(Doc. No. 4-10 at 59.) And A.V. achieved her goal of one disruptive noise every five minutes on 9 of 16
days observed in the morning session, and 13 of 13 days observed in the afternoon session. (Id.)
13 Mrs. Neary testified that in December, A.V. was doing great and that “the disruptive noises were much
less, significantly less, and the attention to task had almost diminished.” (N.T. at 112:2–10.)
new behavior “wasn’t frequent, but it was enough to reach back out to [A.V.’s mother] to let her
know what’s happening and bring that discussion to MTSS.” (N.T. at 111:24–112:19.) Thus,
the MTSS team determined that it would be best for A.V. to continue with the Tier 3 goals and
interventions, but with the added support of weekly 30-minute sessions with the school’s mental
health specialist to help A.V. process emotions and review coping strategies to overcome
stressful situations that led to anger and frustration. (See N.T. at 243:3–19; Doc. No. 4-10 at 49,
161.)
A.V.’s report card14 for the first trimester, which ended in late November, showed that
A.V. demonstrated progress toward meeting the standard required for the grade level and that she
was developing an understanding of key concepts, processes, and skills in both Language Arts
and Mathematics. (Doc. No. 4-10 at 21–22; 2019–20 Academic Calendar.) And for Science,
Social Studies, the Special Subjects15, and six of the fourteen Learning Behaviors assessed, A.V.
was marked as “progressing.” (Doc. No. 4-10 at 22–23.) For the remaining eight Learning
Behaviors, A.V. received a “needs improvement.” (Id. at 22.) These eight Learning Behaviors
included follows written and/or oral directions, maintains attention, demonstrates organizational
skills by following classroom routines, completes work on time, listens without interrupting,
follows rules, exhibits self-control and manages emotions, and accepts responsibility for actions.
(Id.)
14 The report card used two different marking systems. First, Language Arts and Mathematics used a 1-4
rating scale, with“4” indicating advanced performance, “3” indicating proficient, “2/2+” indicating basic
and “1” indicating below basic performance. (Doc. No. 4-10 at 21–22.) Second, Science, Social Studies,
Special Subjects and Learning Behaviors used a scale with three possible ratings: “DC” = Does
Consistently; “P” = Progressing; and “NI” = Needs Improvement. (Id. at 22–23.)
15 The Special Subjects included Art, Music, Physical Education, and Library. (Doc. No. 4-10 at 23.)
A.V. received progressing marks in all special subjects except for her “ability to demonstrate appropriate
behavior” and “being prepared” in physical education and her “ability to follow basic rules and routines”
in library, where she received “needs improvement.” (Id.)
2. Mid-Year Kindergarten: January–March 2020
Unfortunately, as soon as A.V. returned to school in January 2020, Mrs. Neary again had
to alert A.V.’s mother that A.V. had been caught putting an instructional aide’s watch in her
bookbag and was sent to the principal’s office. (Id. at 163–66.) Then, about ten days later, Mrs.
Neary again emailed A.V.’s mother to explain that A.V. had stamped herself all over her face
and arms as her “make-up.” (Id. at 167.) Mrs. Neary also mentioned that that A.V. had an “off
day in general”—for the first time in a long while, A.V. made her random animal noises and was
non-compliant when given a direction. (Id.) Mrs. Neary explained A.V. was scheduled to meet
with the mental health therapist the following day and could talk about her difficult day, but that
Mrs. Neary wanted A.V.’s mother to know about her difficulties because they were “both
working hard at supporting [A.V.] and trying to figure out what’s behind some of the behaviors.”
(Id.)
Additionally, the record shows A.V. had two incidents involving violent behavior. First,
on January 24, 2020, A.V. hit another child multiple times leaving a mark while in art class.16
(Id. at 168.) Second, on March 5, A.V. was involved in a shoving altercation with another
student which led to a recess detention. (Id. at 173). In addition to these incidents, in late
February, A.V. was uncharacteristically disrespectful towards Mrs. Neary17 (id. at 170) and on
March 3, got angry when Mrs. Neary made her return a necklace given to her by another student
(id. at 171). Mrs. Neary’s March 3, 2020 email to A.V.’s mother noted that A.V. was struggling
16 Art was one of A.V.’s favorite classes and the art teacher mentioned A.V. normally does very well in
class. (Doc. No. 4-10 at 168.)
17 Mrs. Neary’s February 27, 2020 email discussing this incident was sent to both A.V.’s mother and
father. (Doc. No. 4-10 at 170.) Based on the record, this appears to be first email communication with
A.V.’s father.
early that week with following instructions. (Id. at 171.) Then on March 6, 2020, in the last
communication prior to the COVID-19 shutdown, Mrs. Neary informed A.V.’s mother that A.V.
had pretended to kiss two boys and sticked her tongue in their faces during lunch, but Mrs. Neary
added, “Aside from the incident at lunch she’s doing well this morning.” (Id. at 174.)
The winter trimester ended on March 5, 2020.18 (2019–20 Academic Calendar.) Despite
the District’s claims that the MTSS Tier 3 supports remained in place for A.V. from December
2019 through March 2020, there were no additional team meetings held to discuss A.V.’s
progress during that period. (N.T. at 111:5–16.) And importantly, the District has no record of
any additional data that was recorded.19 Rather, Mrs. Neary stated that tracking data was very
difficult for her given her class size and after the December MTSS meeting, Mrs. Neary was
more concerned about A.V.’s “transitioning home life.” (Id. at 145:4–20.) Mrs. Neary believed
A.V.’s sessions with the mental health therapist were an additional intervention that helped
support A.V. (Id.)
Even with A.V.’s continued struggles, Mrs. Neary testified that A.V.’s behaviors were
improving as A.V. was making friends, absorbing the social and emotional learning in the
classroom, and “had more tools in her toolbox to deal with her problems.” (Id. at 119:24–125:4.)
A.V.’s second trimester report card20 showed that A.V. was improving academically in both
18 Mrs. Neary testified that for parent-teacher conferences, she gave parents the option of an in person or
phone call parent teacher conference, but A.V.’s mother did not sign up for either option in the lead up to
the pandemic. (N.T. at 95:3–15.)
19 The school psychologist, a member of A.V.’s MTSS team, could not recall which team member was
responsible for collecting data for A.V.’s MTSS Tier 3 goals and stated that she does not know whether
the data exists somewhere in the District’s system. (N.T. at 268:11–17, 283:5–10.)
20 A.V.’s father did not receive any performance information, such as report cards, when A.V. was in
kindergarten. (Doc. No. 16 at ¶ 21.) A.V.’s father did not reach out to the District to inquire on A.V.’s
progress, as A.V.’s mother told him that A.V. was “where she [was] supposed to be developmentally and
academically.” (Id. at ¶ 22.)
Language Arts and Mathematics.21 In fact, many scores revealed significant progress toward
meeting grade level expectations, and other scores demonstrated that A.V. consistently exceeded
the standard required for the grade level. (Doc. No. 4-10 at 21–22.) And even though A.V.’s
second trimester report card did not show any marked improvement with Learning Behaviors22,
Mrs. Neary stated this was just because the three categories used for grading failed to capture the
nuances of A.V.’s improvement. (Id.; N.T. at 98:6–18, 125:14–126:6, 141:13–142:8.) Mrs.
Neary testified that by March 2020 she was not concerned that A.V. had a learning disability
given the academic success she had been able to achieve in kindergarten prior to the COVID-19
shutdown. (N.T. at 75:12–18, 105:1–16.) Rather, Mrs. Neary testified that “[w]e all saw a very
big positive growth in [A.V.] academically, socially and emotionally.” (Id. at 126:21–23.)
3. Remote Learning: March–May 2020
The COVID-19 pandemic forced the District to close its schools as of March 16, 2020.
(Doc. No. 16 at ¶ 23.) Shortly after the shutdown, the District moved to remote learning;
however, given the difficulties with using Zoom with kindergarten age children, the District did
not to make attendance a requirement that spring. (N.T. at 123:8–10.) Additionally, the District
did not offer any MTSS supports for students during remote learning as these interventions were
classroom-based. (Id. at 243:20–244:8, 123:11–18 (Mrs. Neary testifying that “it would be
really hard to implement any of the interventions that we were using at school not physically
21 There was one Language Art skill, “reads high frequency words,” where A.V. scored “below basic.”
(Doc. No. 4-10 at 21.) But this was a new skill, which was not assessed in the first trimester. (Id.)
22 A.V. received virtually the same marks as in the first trimester for all the Learning Behaviors, except
she improved to a “Progressing” notation for the “Accepts responsibility” behavior. (Doc. No. 4-10 at
22.) Her marks in the Special Subjects also remained consistent, although her ability to follow basic rules
and routines in physical education dropped to “needs improvement.” (Id. at 23.)
being there with [A.V.]”).) The District did not report any additional grades for the 2019–20
academic year. (Doc. No. 4-10 at 22.)
Mrs. Neary testified that A.V. did not attend Zoom lessons during the spring 2020. (N.T.
at 121:7–10, 123:8–22.) A.V.’s mother did not seek assistance for A.V. to access the virtual
instruction and the only communication in the record is one from A.V.’s mother asking whether
A.V. would be held back if she did not catch up on her school work, and Mrs. Neary responding
that the District was not retaining students due to the pandemic closure. (Id. at 122:22–123:7;
Doc. No. 4-10.)
C. 2020–2021 School Year: First Grade
1. Early First Grade: August–October 2020
As the COVID-19 pandemic continued, the District was forced to begin the 2020–21
school year virtually. (Doc. No. 16 at ¶ 29.) A.V. was placed in Nancy Wein’s first grade
class.23 (N.T. at 150:17–20.) Virtual learning remained difficult for A.V. because she lacked
support at home, since A.V.’s mother had a full-time job and was unable to sit with A.V. during
the school day. (Id. at 189:25–190:15 (Mrs. Wein testifying, “I was very concerned that [A.V.]
did not have adult supervision at home and she was not attending Zoom and that really
concerned me. She was turning off her camera or not coming back on time and not completing
activities or assignments, which is very typical of a 6-year-old who does not have any support.”);
id. at 157:13–20, 252:13–17 (school psychologist testifying that A.V. did not have adult
supervision when she was observing A.V.’s remote learning for purposes of the evaluation
report); HO-2 at 67:16–25 (A.V.’s mother testifying that she “couldn’t sit with her like most
23 Mrs. Wein has a teacher certification for elementary education and had over twenty years’ teaching
experience in the fall of 2020. (Doc. No. 16 at ¶ 28.) Mrs. Wein was on leave from mid-April 2021
through the end of the academic year. (N.T. at 183:13–184:17.)
parents could, but I was 25 yards away”); N.T. at 193:18–24 (Mrs. Wein testifying that she
believed A.V.’s mother was at the barn where she was working at the time A.V. was
participating in Zoom lessons).)24 A.V. frequently turned off her camera during remote class
sessions, was observed walking around in the background of her screen, submitted incomplete
assignments, etc. (Id. at 189:25–190:15; Doc. No. 4-10 at 177–79 (Oct. 1, 2020 email from Mrs.
Wein to A.V.’s mother saying, “[AV] has been missing a lot of the direction instruction of our
lessons. . . . This has been happening a lot lately.” “When we call on [AV], she is usually not
there. She comes in and out but usually misses the teacher instruction. . . . [She] was extremely
upset during math today . . . . I met with her, tried to calm her down with belly breathing . . . .
She kept repeating, I am in so much trouble. . . . She was hitting her face with her fist. When I
left her, she was going to her special and seem[ed] a bit calmer.”)); id. at 186–87, 193–94, 198–
99.) The school psychologist agreed that this behavior was foreseeable because a six-year-old
could not be expected to participate appropriately without adult supervision. (N.T. at 252:13–22;
cf. id. at 97:5–22 (Mrs. Neary testifying that the kindergarten Zoom classes were short because
given their age, expecting a kindergarten student to be on Zoom for any extended period of time
would be difficult).)
Mrs. Wein attempted to communicate with A.V.’s mother about A.V.’s difficulties
attending Zoom sessions in the fall of first grade.25 (Doc. No. 4-10 at 186–87, 193–94, 198–99
(emails from Mrs. Wein to A.V.’s mother informing her that A.V. was missing class and not
24 The District’s records indicate that a staff member communicated with A.V.’s mother multiple times in
October and November 2020 about assisting her in applying for childcare scholarships, but there is no
suggestion in the record that such efforts, if any, were taken receptively by A.V.’s mother. (Doc. No. 4-
10 at 27–28.)
25 Mrs. Wein also sent A.V.’s mother a daily checklist to help A.V. with her virtual learning, but A.V.’s
mother reported she was unable to print it. (Doc. No. 4-10 at 62.)
completing assignments).) A.V.’s mother was frustrated that Mrs. Wein was unable to
immediately text or email when Mrs. Wein saw A.V. was missing from virtual lessons. (Doc.
No. 4-10 at 177, 219–20 (Dec. 2, 2019 email from A.V.’s mother to Mrs. Wein and school
principal stating, “it is IMPERATIVE that during virtual learning that SOMEONE . . . informs
me that [A.V.] is not in class AT THE TIME that she is not in class. . . . [I]f I am alerted AS
SOON AS IT IS NOTICED that she is not in attendance, I can take immediate . . . action”).)
Mrs. Wein explained she was teaching a class of 25 children and could not just go and use the
telephone as A.V.’s mother requested. (Id. at 185; N.T. at 193:8–13.) Moreover, Mrs. Wein
became aware that A.V. was juggling more than just her virtual lessons as A.V. mentioned there
were times she felt like she needed to complete her household chores before her mother returned
from the barn. (N.T. at 194:20–195:15 (Mrs. Wein testifying, “there was one time where [A.V.]
had to clean the grease off the stove or fold clothes, and her excuse was she could not be on the
Zoom because her mother told her if she didn’t finish this before she got home, she was in big
trouble”).) Mrs. Wein noted that A.V. often seemed worried about what she had to do before her
mother came home and this made it harder for A.V. to stay focused on her schoolwork. (Id. at
195:4–19.)
Shortly before A.V. transitioned to hybrid learning in October 2020, Mrs. Wein
completed a form to resume MTSS supports for A.V.26 (Doc. No. 4-10 at 59–63.) On this form,
26 According to the District, A.V. only completed one formal round of MTSS interventions, as the second
round was truncated due to the pandemic. (N.T. at 255:23–256:17.) On October 22, 2020, A.V. began
her third formal round of MTSS interventions. (Id.) The school psychologist explained that when a
student does not meet their MTSS goals, “[s]ome students after one round of MTSS might move to an
evaluation. Some students may never move to an evaluation because interventions are helping. Some
students might have two rounds of MTSS intervention and then move to an evaluation. . . . It depends on
the student’s progress.” (Id.) Again, the Court notes its concern that no additional MTSS data appears to
have been recorded after the first formal round of MTSS interventions. (Id. at 271:2–19 (school
psychologist testifying there is no data in the record as to A.V.’s Tier 3 MTSS goals in first grade, and
Mrs. Wein’s behavioral notes only provide anecdotal data).)
Mrs. Wein reported her concerns with attendance, behavior, and attention. (Id. at 61–62.) Mrs.
Wein included the following behaviors that she had noted during virtual learning that were
causing concern: “Meltdown, crying, hitting self with fist, erases till the point of a hole in paper,
get[s] extremely upset when things do not turn out the way she intended.” (Id.) And she marked
concerns that A.V. seeks attention, calls out, makes noises, puts things in front of camera, and
turns her camera off when she doesn’t want to finish work or a conversation. (Id.) Mrs. Wein
noted the interventions she had used to date with A.V. during Zoom sessions such as small
group/individual teacher support in a virtual break room, belly breathing, counting to 10,
thinking of a happy place, verbal and non-verbal positive reinforcement, and ignoring negative
behaviors. (Id.) Finally, Mrs. Wein reported that A.V. was evaluated as a “Level A” and “Level
B” for her developmental reading assessment whereas the “grade-level expectations” were listed
as Level D and E.27 (Id. at 60.)
On October 22, 2020, A.V. transitioned to a hybrid program of two days per week in-
person, and two days per week with remote instruction. (Doc. No. 16 at ¶¶ 29, 30.) That same
day, the MTSS team met and again provided A.V. with MTSS Tier 3 supports, including the
sessions with the mental health therapist.28 (Id. at ¶ 30; N.T. at 270:19–271:4.) In-person, with
MTSS supports in place, Mrs. Wein observed certain behaviors, including:
27 Neither Mrs. Wein nor the school psychologist were overly concerned that A.V. was not meeting grade
level expectations at the beginning of first grade because of the pandemic disruptions. (N.T. at 213:11–
24; see also id. at 248:3–17 (school psychologist testifying that “I think all students to some extent . . .
were performing behind where they possibly would have performed at the particular moment in their 1st
grade careers due to the disruption to learning and being virtual for the last chunk of kindergarten as well
as the first chunk of 1st grade”).)
28 Although the record does not include a completed Tier 3 form for A.V. in first grade, the school
psychologist testified that Mrs. Wein filled out the Tier 2 form to “encapsulate what she had been doing
with [A.V.]” so far, but that this was “not a prerequisite to [A.V.] continuing in Tier 3 since she had been
mid-Tier 3 the previous year.” (N.T. at 270:4–11.)
• “[A.V.] needs constant reminders to take out materials and complete daily
work. If you try to take something away she will shove [it] in her desk and
will not give up the item. She make[s] noises, sits up on her feet, and will
not do anything. She says she knows it already or I don’t like it and don’t
feel like doing it. [A.V.] complains of being tired and hungry frequently.”
• “[A.V.] is rarely prepared for class. She does not bring her book bag or has
the book bag but does not have the materials . . . . She does not complete
any review for the test and sends it back . . . incomplete.”
• “[A.V.] lays on her desk, has a hard time transitioning and refuses to do or
complete most of her assignments. If she does begin a task, she tends not to
stay with it for long and says she done. She plays with and appears distracted
by anything that is within reach including pencils, tools, etc.”
(Doc. No. 4-10 at 46; see also N.T. at 171:11–172:7 (Mrs. Wein explaining that she observed
these behaviors from the beginning of the year through January 2021).) Mrs. Wein also stated
that A.V. appeared to have friends and gave classmates encouragements and praise, but noted
that A.V. reportedly ate dirt and grass, licked up spills on her desk, and pulled out her hair or hit
her face with her fist when in a meltdown. (Doc. No. 4-10 at 46.) Mrs. Wein testified that she
notified A.V.’s mother regarding some of these concerning behaviors, such as pulling out her
hair, but that she did not observe these incidents frequently. (N.T. at 171:11–172:6, 201:17–
202:8.)
A.V.’s first trimester report card in first grade showed A.V. scored “below basic”29 for
three Language Arts skills and one Mathematics skill.30 (Doc. No. 4-10 at 24.) As for the
fourteen Learning Behaviors assessed, A.V. received the following: four “Does Consistently”
29 See supra n.14. “Below basic” signifies that the student’s performance demonstrated limited progress
toward meeting the standard as required for the grade level; the student displayed insufficient
understanding of the key concepts, processes, and skills. (Doc. No. 4-10 at 24.)
30 A.V. received progressing for Science and Social Studies. (Doc. No. 4-10 at 25.) And for the Special
Subjects, A.V. received “basic” marks indicating her performance demonstrated progress toward meeting
the standard required for the grade level. (Id. at 24, 26.)
marks, four “Progressing” marks, and six “Needs Improvement” marks. (Id. at 25.) The six
Learning Behaviors marked as “Needs Improvement” included “follows written and/or oral
directions,” “maintains attention,” “demonstrates stamina to work independently,” “seeks help
when appropriate,” “listens without interrupting,” and “exhibits self-control and manages
emotions.” (Id.)
2. Mid-First Grade: November 2020–February 2021; The Special
Education Evaluation
In November 2020, A.V.’s mother attended a parent teacher conference with Mrs. Wein
and the new school principal. (HO-2 at 64:17–23.) A.V.’s mother addressed a number of
concerns including the fact that she wanted A.V. evaluated and that the remote learning was not
working for A.V.31 (Id. at 65:3–20.) On November 30, 2020, A.V.’s mother informed the
District that A.V. had been diagnosed with ADHD through a private evaluation, and on
December 2, 2020 she formally requested a special education evaluation.32 (Doc. No. 16 at ¶¶
34, 35.) On December 11, 2020, the District gave A.V.’s mother the consent form, which A.V.’s
mother signed and returned on December 14, 2020. (Id.at ¶ 35; Doc. No. 14-1 at ¶ 41.) Also, on
December 14, the principal notified A.V.’s mother that A.V. would be permitted to return to
school in person 4 days a week.33 (Doc. No. 16 at ¶ 31; Doc. No. 4-10 at 195–96.)
31 A.V.’s mother testified that there were “multiple, multiple discussions over a long period of time in E-
mail, via phone, conferences regarding my daughter.” (HO-2 at 125:12–15.)
32 On October 1, 2020, A.V.’s mother first told Mrs. Wein that A.V. was going to have “an assessment
shortly,” and that she would follow up with that provider’s educational recommendations. (Doc. No. 4-10
at 178.) Then, on October 14, 2020, A.V.’s mother informed the District that A.V. had appointment on
October 29 to be evaluated outside the District. (Id. at 27.)
33 A.V.’s mother testified that A.V.’s in-person education increased because she complained to the school
principal and had recently requested a special education evaluation. (HO-2 at 64:4–24, 66:10–67:4.)
During this period, the record shows that A.V. continued to submit incomplete assignments and miss
Zoom classes. (See Doc. No. 4-10 at 186–199 (six emails from Mrs. Wein to A.V.’s mother during
December 3–17, 2020 period).) Another email from Mrs. Wein to A.V.’s mother on December 22, 2020
The District evaluated A.V. as requested, and the school psychologist issued the
Evaluation Report (“ER”) on February 12, 2021.34 (Doc. No. 16 at ¶¶ 36, 38.) The ER
incorporated detailed parental input from A.V.’s mother,35 input from Mrs. Wein, a cognitive
assessment (the Wechsler Intelligence Scale for Children – Fifth Edition (“Wechsler”)),
Behavior Assessment for Children – Third Edition (“BASC-3”) rating scales completed by Mrs.
Wein and A.V.’s mother, Conners-3 rating scales completed by Mrs. Wein and A.V.’s mother,
and the school psychologist’s observations of A.V. on five separate dates including once during
remote instruction36. (Doc. No. 16 at ¶¶ 39, 42, 44–46.)
reported that A.V. had become frustrated and pulled a large lock of hair from her head. (Doc. No. 4-10 at
200.) A.V.’s mother responded in part, “That’s pretty uncharacteristic of her.” (Id.)
34 Although the school psychologist did not believe A.V. needed special education at the beginning of
kindergarten in 2019, she recommended an evaluation for A.V. in first grade in accordance with A.V.’s
mother’s request because “We intervened at the intense level that occurred with her through MTSS . . . .
And while she did make some progress, she was definitely doing better by the time we went out in March
of her kindergarten year. She was making a good amount of progress at that time. But when we came
back in 1st grade, there were more behaviors that were present, which very well was attributed to the time
that we were on distance learning and hybrid learning and relearning all of the expectations in the
classroom setting. But her behavior as time went on came to light that they were impacting her academic
functioning significantly, and that’s why we ended up concluding that she qualified for special education
in this report.” (N.T. at 259:24–261:2.)
35 A.V.’s mother’s input into the ER spanned ten full pages. (Doc. No. 16 at ¶ 39.) A.V.’s father did not
provide any input.
36 For example, among these observations, the psychologist noted that during Zoom instruction, A.V. left
the screen 30 minutes after observation began while her classmates were reading and did not return to the
screen when Mrs. Wein called her name. (Doc. No. 4-10 at 50.) The psychologist observed A.V.
walking in the background of her screen and observed her folding laundry, but that she did not return to
the screen before lunch. (Id.) Additionally, during one of the psychologist’s in-person observations of
A.V.’s writing class, she observed A.V. reading a book because she had left her iPad at home that day.
(Id. at 52.) A.V. told Mrs. Wein that she finished her book, even though it was a large book with many
stories, and Mrs. Wein told her to read another story. (Id.) A.V. looked at the book for one minute, then
started looking around the room. (Id.) After one prompt, she returned to reading, but then closed the
book and put her head down a few minutes later. (Id.) When prompted to keep reading, A.V. said she
was tired, but lifted her head and opened the book again. (Id.) Mrs. Wein gave A.V. a notebook to
prepare for transitioning to writer’s workshop, but A.V. made howling noises, and did not stop until
prompted twice. (Id.) She also did not stand as directed for an exercise break. (Id.) When Mrs. Wein
started reading a book, A.V. put her head down and started making noises again but complied with
The ER revealed that A.V. has a Full Scale IQ in the high average range (88th percentile)
and a General Ability Index score in the very high range (95th percentile). (Id. at ¶ 42.) A.V.’s
assessment of academic achievement using the Weschler test generally reflected average range
composite scores with the exception of the Oral Language Composite, which was in the above
average range.37 (Id. at ¶ 43.) For the BASC-3 rating scales, Mrs. Wein endorsed clinically
significant concerns with anxiety, depression, attention problems, atypicality, adaptability, and
study skills, as well as at-risk concerns with hyperactivity, aggression, conduct problems,
learning problems, leadership, and functional communication. (Id. at ¶ 44.) A.V.’s mother
endorsed clinically significant concerns with hyperactivity, aggression, and attention problems,
and no at-risk concerns. (Id.)
Overall, the ER identified that A.V. needed to develop coping skills, emotional
regulation, problem-solving strategies, and to improve attention and on-task behavior, and
determined that A.V. was eligible for special education under the “Other Health Impairment”
category for her ADHD and for “Emotional Disturbance.” (Id. at ¶¶ 47, 48.) The ER also found
that A.V. qualified for special education based on elevated levels of emotionality and behavior
related concerns suggesting Oppositional Defiant Disorder. (Doc. No. 4-10 at 78–79, 100–01.)
The ER recommended interventions such as small group social skills support, mental health
support, frequent checks for understanding, small group instruction for independent work in
directions to stop. (Id.) Mrs. Wein testified that these observations represented A.V.’s typical behavior.
(N.T. at 174:7–175:3.)
37 A.V.’s overall Total Reading composite score fell within the average range (68th percentile), her
mathematics composite score was average (55th percentile), and her overall oral language composite score
was in the above average range (97th percentile). (Doc. No. 4-10 at 75.)
reading and mathematics, support for attention and focus, verbal praise, organizational
assistance, movement breaks, and preferential seating. (Doc. No. 16 at ¶ 49.)
In February 2021, the District also conducted a Functional Behavior Assessment
(“FBA”). (Id. at ¶ 54; Doc. No. 4-9 at 17.) The FBA involved direct observation of A.V. in the
classroom for three hours and five minutes across two school days. (Doc. No. 16 at ¶ 67.) The
FBA identified four behaviors of concern: non-compliance, disruptive behavior, crying, and
self-injury. (Id. at ¶ 55.) Based on informal review and direct observation, the hypothesized
functions of the behaviors were determined to be as follows: (a) for noncompliance, to gain
access to preferred items or activities; (b) for both noncompliance and disruptive behavior, to
gain adult attention; (c) for crying, to delay or avoid a task; and (d) for self-injury, to access
sensory input. (Id.) The FBA provided numerous recommendations, including
proactive/preventive strategies, proposals for teaching and reinforcing replacement and desirable
behaviors, proposals for responding to challenging behaviors, and systemic recommendations.
(Id. at ¶ 56.)
Both the ER and FBA were provided to both A.V.’s mother and father. (Id. at ¶ 50; Doc.
No. 4-9 at 25.) A.V.’s father never acknowledged receipt but A.V.’s mother attended a meeting
with the school psychologist to go over the ER, and in an email dated February 17, 2021, A.V.’s
mother wrote that the District’s FBA was “fantastic and incredibly helpful.” (Doc. No. 16 at
¶ 72; Doc. No. 4-9 at 25.)
3. Late First Grade: March–May 2021; The IEP
Upon conclusion of the second trimester on March 9, 2021, A.V.’s second trimester
report card was issued. (2020–21 Academic Calendar.) Her report card showed improvement in
all but four academic skills tested, with two skills rated as “below basic.”38 (Doc. No. 4-10 at
24–25.) Specifically, A.V. received a “basic” score again for “applies grade level phonics and
word analysis skills to decode words” and for “follows the writing process with support.” (Id. at
24.) And she received the same “below basic” mark for “participates in collaborative
conversations” and for “listens and responds to comments of others.” (Id.) Science, Social
Studies, and the Special Subjects also showed improvement. (Id. at 25–26.) But the report card
also indicated a marked decline in learning related behaviors, with 11 “Needs Improvement”
notations, whereas A.V.’s first semester report card only had 6 “Needs Improvement” notations.
(Id. at 25.) Mrs. Wein stated that although A.V.’s second trimester did not demonstrate
significant movement from the six “Needs Improvement” notations A.V. received in the first
trimester for Learning Related Behaviors, A.V.’s behavioral conduct still improved throughout
the year. (N.T. at 181:14–22, 197:3–199:1 (Mrs. Wein testifying that A.V. was “still struggling
in some areas and still having some issues, and she was definitely making progress,” but that she
wasn’t able to convey that progress with only three options on the report card).) A.V.
maintained a “progressing” mark for “demonstrates initiative to produce quality work” but also
dropped from “does consistently” to “progressing” for “cooperates with others” and “follows
rules.” (Doc. No. 4-10 at 25.) In addition to regressing in these two skills, A.V. also
demonstrated behavioral decline in the following skills: “participates in classroom activities,”
“completes work on time,” and “accepts responsibility for actions” (from “progressing” to
“needs improvement”); “demonstrates organizational skills by following classroom routines” and
“uses technology responsibly” (from “does consistently” to “needs improvement”). (Id.)
38 Some academic skills were not scored in the first trimester. (Doc. No. 4-10 at 24–25.)
The District developed an IEP for A.V. and scheduled the IEP team meeting via Zoom
for March 11, 2020. (Doc. No. 16 at ¶ 72.) The following individuals were present at the IEP
meeting: A.V.’s mother, Mrs. Wein, Ms. Gaffney (the special education teacher), the principal,
the District’s local education agency representative, the school psychologist, and the gifted
education teacher.39, 40 (Doc. No. 4-10 at 92.) The IEP included the following needs:
(1) coping skills, (2) emotional regulation, (3) problem-solving strategies, and (4) improving
attention and on-task behavior. (Doc. No. 16 at ¶ 58.) Two annual goals in the IEP addressed
increasing the use of coping skills and decreasing self-injury, both in relation to baselines; two
other goals addressed non-compliance and on-task behaviors. (Id. at ¶¶ 59, 60.)
The goal for non-compliance stated that A.V. will increase compliance with staff requests
by following directions and typical classroom routines for 60% of her school periods per day
over four consecutive school weeks. (Id. at ¶ 62.) The baseline for the non-compliance goal was
derived from the FBA report that A.V. was non-compliant with 40% of requests. (Id. at ¶¶ 63,
66.) Likewise, the goal for on-task behaviors stated that A.V. will increase on-task behavior
without displaying disruptive behaviors for 60% of her school periods per day over four
consecutive school weeks, and her baseline was that she was off-task 24% of the 30-second
intervals observed. (Id. at ¶¶ 64, 65.) The third goal was for A.V. to use a taught coping strategy
in 70% of opportunities during perceived times of stress over three consecutive school weeks or
three consecutive semesters, with a baseline of using a coping strategy in 40% of opportunities
39 The gifted education teacher was included in the IEP meeting because although A.V. was found to have
a disability, she also presented as a gifted student with extremely high verbal reasoning skills (id. at 79),
and the goal was to incorporate a gifted IEP for her as well (id. at 98). However, A.V.’s final IEP does
not include any specific gifted support services. (Id. at 125.) A.V.’s mother approved the final IEP and
did not include any concerns regarding the lack of gifted support services. (Doc. No. 16 at ¶ 74.)
40 Although A.V.’s father was an invited IEP team member (Doc. No. 4-10 at 86), he did not attend the
IEP meeting (id. at 92).
observed. (Doc. No. 4-10 at 115.) A.V.’s last goal in the IEP was to reduce her self-injurious
behaviors to an average of zero incidents per day over eight consecutive school weeks. (Id. at
116.) A.V. did not exhibit any self-injurious behaviors during the FBA observation period (Doc.
No. 4-9 at 19), but this goal was included because staff in the past had observed her pulling her
own hair (three times since the beginning of the school year) and putting wood chips in her
mouth (at least twice) (Doc. No. 4-10 at 116).
The IEP also included a Positive Behavior Support Plan (“PBSP”), which involved use of
a self-match/reward system. (Doc. No. 4-10 at 89, 103.) To address A.V.’s non-compliance
with directions and disruptive behaviors, a positive reward chart was to be implemented where
A.V. would review expected behaviors with staff at the beginning of the day and report at the
end of every period whether she demonstrated the expected behavior. (Id.) If A.V. and a teacher
agreed that she demonstrated an expected behavior, she would earn extra points; if they agreed
that A.V. did not demonstrate the expected behavior, A.V. would earn fewer points; and if they
disagreed on whether A.V. demonstrated the expected behavior, A.V. would not earn any points.
(Id.) For crying behaviors, staff would attempt to calm A.V. down using “belly breaths” or
counting to ten. (Id. at 103.) Additionally, the IEP provided for weekly individual mental health
services and emotional and learning support at an itinerant level, with A.V. in general education
for 88% of the day, and social skills and independent math and reading work in a separate
classroom with a smaller group. (Doc. No. 16 at ¶¶ 69, 70; Doc. No. 4-10 at 120–23, 129; HO-3
at 185:17–187:18, 196:17–197:13.) Last, the IEP included a number of program modifications
and Specially Designed Instruction (“SDI”) for the PBSP, including prevention strategies,41
41 For example, these strategies included providing A.V. with a 2-minute and 1-minute warning when
transitioning tasks, breaking up larger assignments into more manageable sections, and scheduling
movement breaks throughout the day. (Doc. No. 4-10 at 117.)
teaching model behavior, reinforcement strategies for when A.V. performed the model
behavior42, and consequences for when A.V. performed concerning behaviors43. (Doc. No. 4-10
at 117–19; see also id. at 88–89 (listing program modifications and SDI).) Last, the IEP
included a recommendation for Extended-School Year services for social skills. (Id. at 125,
132.)
Following the IEP meeting, the finalized copy of the IEP and a Notice of Recommended
Educational Placement (“NOREP”) was issued to both parents on March 18, 2021. (Doc. No. 4-
9 at 2.) On March 28, 2021, A.V.’s mother returned the signed NOREP approving the IEP and
did not indicate any concerns with the IEP other than that A.V. would miss one week of the
Extended-School Year.44 (Id. at ¶ 74.)
The IEP was immediately implemented.45 (HO-3 at 194:17–22.) As part of her program,
A.V. met with the learning support teacher, Ms. Gaffney, three times each day for about 10
minutes to review expected behaviors during the general education classroom, receive rewards
for demonstrating appropriate behavior, practice with role-modeling, and learn coping skill
strategies. (Doc. No. 16 at ¶¶ 75–77; HO-3 at 197:1–16.) Ms. Gaffney talked to Mrs. Wein
about A.V. and understood that Mrs. Wein believed A.V.’s behaviors were interfering with
A.V.’s ability to access her education. (HO-3 at 236:15–23.) Ms. Gaffney testified that she did
42 This includes the self-match/reward system described above. (Doc. No. 4-10 at 118.)
43 For example, “When [A.V.] displays disruptive behaviors by playing with materials, redirect once with
a non-verbal prompt. If she continues, calmly remove items from [A.V.]’s area and redirect her back to
the task at hand by reminding her of the points she can earn on her reward sheet. If behaviors continue,
use non-verbal prompts.” (Doc. No. 4-10 at 119.)
44 A.V.’s father did not return the NOREP. (Doc. No. 16 at ¶ 73.)
45 Shortly after, Mrs. Wein went out on leave; she did not testify regarding A.V.’s circumstances from that
point forward. (N.T. 183:13–184:8.)
not collect data on A.V.’s behavior following the IEP implementation because she typically
spends time with new students to get to know them prior to collecting official data. (Id. at
195:21–196:7; Doc. No. 16 at ¶¶ 79, 80.) However, she did collect informal data using a daily
behavior chart (the PBSP), which she took a photo of each day and sent to A.V.’s mother. (HO-
3 at 202:3–11, 217:3–6; see also Doc. No. 4-9 at 27–55, 57–64 (example photographs of daily
behavior chart sent to A.V.’s mother in April 2021).)
Before Ms. Gaffney could collect the required data, A.V.’s mother removed A.V. from
the District on May 10, 2021.46 (Doc. No. 16 at ¶ 78.) A.V. then transitioned to homeschooling
by her mother, (Doc. No. 4-10 at 136), before starting attendance at Franklin Elementary School
in Pottstown, PA in early 2022 (HO-2 at 41:20–42:1).
D. The Due Process Complaint
On January 13, 2022, A.V.’s mother filed a due process complaint with the Office of
Dispute Resolution alleging violation of the IDEA, Section 504, and corresponding Pennsylvania
Public School Code regulations. (Doc. No. 4-18.) She alleged the District should have initiated
the special education evaluation process for A.V. “early on in kindergarten.” (Id. at 5.) She also
alleged that the IEP developed by the District was inadequate because it contained inadequate
present education levels, and inappropriate goals which failed to address all of A.V.’s needs or
provide a sufficient and objective means of monitoring progress. (Id.) She alleged that the IEP
had inadequate SDI, insufficient behavior plans, and that the District’s ER failed to fully assess
A.V. in all areas of suspected disability, and therefore lacked critical information to determine
A.V.’s needs. (Id. at 5–6.)
46 At this point, there were still four consecutive weeks left in the school year, and the parties agree that if
A.V. had remained in the District, Ms. Gaffney would have had enough time to collect data in accordance
with the IEP goals. (Doc. No. 16 at ¶ 85.)
The matter proceeded to a due process hearing which convened on March 16 and April 4,
2022, with additional sessions scheduled for May 2022. (Doc. No. 4-15 at 1.) On May 11, 2022,
counsel for A.V.’s mother advised the District’s counsel and the administrative hearing officer
that the mother no longer had physical custody of A.V.47 (Id.) The officer granted a joint
request for a brief continuance of the due process hearing sessions. (Id.) On May 26, 2022,
A.V.’s mother’s counsel requested an additional continuance in expectation of a family court
ruling. (Id. at 2.) The District responded with a motion to dismiss for lack of standing because
A.V.’s father, who had full custody of A.V., had been given the opportunity to intervene in the
case, and effectively decided not to do so. (Id.; see also Doc. No. 4-7 at 9.) The hearing officer
granted additional continuances, but because the mother had no additional information as of July
1, 2022, the officer granted the District’s motion to dismiss. (Doc. No. 4-15 at 4.)
A.V.’s father subsequently filed a new due process complaint on August 26, 2022
seeking compensatory education for the 2019–20 and 2020–21 school years up until A.V. ceased
attendance in the District, in addition to reasonable attorney’s fees and costs. (Doc. No. 4-11.)
He included substantially similar allegations as A.V.’s mother’s initial complaint. (Id.)
The hearing officer held one additional hearing in this matter on November 15, 2022 and
incorporated the prior two hearing sessions as Hearing Officer exhibits. (N.T. at 290:19–
291:11.) On January 5, 2023, the hearing officer issued her decision denying the parent’s claims
that the District violated its child find obligations, holding that the IEP was procedurally and
substantively inappropriate in certain limited respects but otherwise appropriate, and granting
thirty minutes per day of compensatory education for each day that school was in session from
March 28, 2021 through May 10, 2021. (Doc. No. 4-3 at 28.)
47 A.V.’s mother lost custody of A.V. in January 2022, and A.V.’s father obtained full legal and physical
custody. (Doc. No. 16 at ¶ 88.)
E. Procedural History
On April 5, 2023, Stephen W., A.V.’s father, filed a complaint in federal court
challenging the hearing officer’s determinations that the District fulfilled its child find duties and
alleging that the District violated the IDEA, Section 504, the ADA, and Pennsylvania law. (Doc.
No. 1.) The District filed a counterclaim on June 9, 2023 challenging the hearing officer’s
determination that the IEP was deficient. (Doc. No. 6.) The parties agreed that “no further
discovery is necessary” and that this matter could be decided on a motion for judgment on the
administrative record. (Joint Rule 26(f) Report, received July 5, 2023, at 4.) On October 6,
2023, the parties filed cross-motions for judgment on the administrative record. (Doc. Nos. 12,
13.) The Court held oral argument on the motions on May 29, 2024 (Doc. No. 20), and
following the Third Circuit’s precedential opinions in Le Pape v. Lower Merion School District,
103 F.4th 966, 983 (3d Cir. 2024) and B.S.M. v. Upper Darby School District, 103 F.4th 956 (3d
Cir. 2024), ordered supplemental briefing on the motions (Doc. No. 23), which the parties filed
in June and July 2024 (Doc. Nos. 24–27).
II. LEGAL STANDARD
A. Statutory Framework
1. IDEA
The IDEA offers federal funds to states to assist in educating children with special needs.
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390 (2017). In
exchange, the IDEA “places two significant responsibilities on school districts with respect to
children with disabilities: the child-find obligation and the duty to provide a free appropriate
public education, commonly referred to as a ‘FAPE,’ to children with disabilities.” J.M. v.
Summit City Bd. of Educ., 39 F.4th 126, 137 (3d Cir. 2022) (citing D.K. v. Abington Sch. Dist.,
696 F.3d 233, 244 (3d Cir. 2012)). A FAPE includes “special education” and “related
services.” Endrew F., 580 U.S. at 390; see also 20 U.S.C. § 1401(9). “Special education” is
“specially designed instruction . . . to meet the unique needs of a child with a disability,” and
“related services” are the services “required to assist a child . . . to benefit from” their special
education. 20 U.S.C. § 1412(a)(1).
The child find obligation requires schools “to identify and evaluate all students who are
reasonably suspected of having a disability.” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 271 (3d
Cir. 2012) (citing P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009)); 20
U.S.C. § 1412(a)(3) (explaining that states must “identif[y], locate[], and evaluate[]” all children
with disabilities who are in need of special education, and must develop “a practical method . . .
to determine which children with disabilities are currently receiving needed special education
and related services”). Child find extends to children “who are suspected of [having] . . . a
disability . . . and in need of special education, even though they are advancing from grade to
grade.” D.K., 696 F.3d at 249 (citing 34 C.F.R. § 300.111(c)(1)). “Once a school district has
such a reasonable suspicion that a child has a disability, it has a reasonable time to evaluate ‘the
specific problems a potentially disabled student is having.’” J.M., 39 F.4th at 137 (citing D.K.,
696 F.3d at 250).
Upon identifying and determining that a child has a disability, the IEP is “the centerpiece
of the [IDEA’s] education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305,
311 (1988). An IEP is a comprehensive plan prepared by the child’s parents, teachers, and
school officials detailing how the school will provide the child with the special education and
related services that he or she needs. Endrew F., 580 U.S. at 391 (citing 20 U.S.C. § 1414(d)).
An IEP must propose an “educational program reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Id.
The IDEA sets forth detailed procedures for the preparation of IEPs:
The IDEA requires that every IEP include “a statement of the
child’s present levels of academic achievement and functional
performance,” describe “how the child’s disability affects the
child’s involvement and progress in the general education
curriculum,” and set out “measurable annual goals, including
academic and functional goals,” along with a “description of how
the child’s progress toward meeting” those goals will be gauged.
§§ 1414(d)(1)(A)(i)(I)–(III). The IEP must also describe the
“special education and related services . . . that will be provided” so
that the child may “advance appropriately toward attaining the
annual goals” and when possible, “be involved in and make progress
in the general educational curriculum.” § 1414(d)(1)(A)(i)(IV).
Id.
“The IDEA creates a cause of action against a school district that fails to provide a FAPE
to a child who has a disability and needs special education and related services.” J.M., 39 F.4th
at 138 (citing 20 U.S.C. § 1412(a)(1)(A); id. § 1415(f)(3)(E)(i)–(ii), (i)(2)). As the Third Circuit
explained in J.M., “a denial-of-FAPE claim may be premised on a child-find violation.” Id.
Such a claim has three elements: (1) “the child must have a disability for which he or she needs
special education and related services”; (2) “the school district must breach its child-find duty”;
and (3) “the school district’s child-find breach must impede the child’s right to a FAPE, or,
alternatively, the child-find breach must either significantly impede parental participation rights
or cause a deprivation of educational benefits.” Id. (internal citations omitted) (cleaned up).
If a child’s parents believe the education their child is receiving from his or her public
school violates the IDEA, they must first file an administrative grievance, known as a “due
process complaint,” against the school district, and then may request an impartial due process
hearing to resolve the complaint. J.M., 39 F.4th at 138; 20 U.S.C. § 1415(f)(1)(A). The IDEA’s
administrative process is conducted in compliance with state regulations. Id. In Pennsylvania,
hearings are conducted by “hearing officers,” outside contractors hired by the Pennsylvania
Secretary of Education. See 22 Pa. Code § 14.162(p)(1). As the party seeking relief, Plaintiffs
had the burden of persuasion to prove the elements of their claims before the hearing officer.
Schaffer v. Weast, 546 U.S. 49, 57–58 (2005). After exhausting their administrative remedies,
parties dissatisfied with the hearing officer’s decision may seek judicial review in federal or state
court. 20 U.S.C. § 1415(i)(2)(A); see also Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d
266, 272 (3d Cir. 2014). On appeal to the district court, the burden of persuasion falls on the
party challenging the hearing officer’s decision. See Ridley, 680 F.3d at 270.
2. Section 504
The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination” under any program that receives federal
funds. 29 U.S.C. § 794(a). This prohibition was extended to public school systems through
Section 504. Id. § 794(b)(2)(B). To establish a violation of Section 504, a plaintiff must prove
that (1) the child was disabled; (2) the child was “otherwise qualified” to participate in school
activities; (3) the school received federal financial assistance; and (4) the child was excluded
from participation in, denied the benefits of, or subject to discrimination at the school. Ridley,
680 F.3d at 280 (citing Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999)).
Thus, the IDEA and Section 504 are similar because they both apply to public schools
that receive federal funds and both protect persons with disabilities. J.M., 39 F.4th at 146
(citations omitted). However, the IDEA and Section 504 differ because while the Rehabilitation
Act defines “disability” as something that substantially limits a major life activity, the IDEA
defines “child with disability” as a child “with intellectual disabilities, hearing impairments . . . ,
speech or language impairments, visual impairments. . . . , serious emotional disturbance . . . ,
orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific
learning disabilities. Id. (citations omitted); 20 U.S.C. § 1401(3); see also Batchelor, 759 F.3d at
269 n.4 (“Section 504 defines disability more broadly than the IDEA, and thus, some students
covered by Section 504 are not covered under the IDEA.”); B.C. v. Mount Vernon Sch. Dist., 836
F.3d 152, 161 (2d Cir. 2016) (explaining that Section 504 seeks to curb discrimination against
and protect the rights of disabled individuals to fully participate in major areas of public life,
such as education, whereas the IDEA “asks only whether a child ‘needs’ special education . . .
because of a particular impairment”)). And, while the IDEA imposes affirmative child-find and
FAPE duties on the school district, Section 504 has a “negative prohibition” on discrimination
against a disabled person solely by reason of her disability. J.M., 39 F.4th at 146 (citations
omitted). Courts have interpreted this prohibition as encompassing child find duties, which exist
independently from IDEA child find obligations. See D.K., 696 F.3d at 249 (“School districts
have a continuing obligation under the IDEA and § 504—called ‘Child Find’—to identify and
evaluate all students who are reasonably suspected of having a disability under the statutes.”)
(quotation omitted); B.S.M. v. Upper Darby Sch. Dist., 103 F.4th 956, 965 (3d Cir. 2024) (“The
trial court needs to . . . determine whether the School District violated its Child Find obligations
under Section 504.”).
3. Statute of Limitations
The IDEA statute of limitations “requires a parent to request a due process hearing within
two years of ‘the date the parent . . . knew or should have known about the alleged action that
forms the basis of the complaint.’”48 D.K., 696 F.3d at 244 (citing 20 U.S.C. § 1415(f)(3)(C); 34
C.F.R. § 300.511(e)). “Parents have the same two years to file an administrative complaint
alleging a violation of the IDEA or § 504 of the Rehabilitation Act.” Id. (citing 20 U.S.C.
§ 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(2)). “[T]he IDEA statute of limitations applies to § 504
claims premised on IDEA obligations, such as those invoking Child Find and FAPE duties.” Id.
(citation omitted).
B. Standard of Review
1. IDEA
In IDEA cases, district courts are to conduct a “modified de novo review” of a hearing
officer’s decision. S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 269–70 (3d Cir.
2003). The court exercises plenary review over the hearing officer’s legal conclusions, Colonial
Sch. Dist. v. G.K. ex rel. A.K., CIVIL ACTION NO. 17-3377, 2018 WL 2010915, at *2 (E.D. Pa.
Apr. 30, 2018), aff’d, 764 F. App’x 192 (3d Cir. 2019), but must give “due weight” to the
hearing officer’s factual findings, S.H., 336 F.3d at 269. “Factual findings from the
administrative proceedings are considered to be prima facie correct.”49 S.H., 336 F.3d at 270.
Although the hearing officer’s factual findings are considered prima facie correct, the court may
depart from those findings if it explains why and supports its explanation with citations to the
administrative record. Id. The court may not, however, “substitute its own notions of sound
educational policy for those of local school authorities.” Id. (quoting MM v. Sch. Dist. of
Greenville Cnty., 303 F. 3d 523, 530–31 (4th Cir. 2002)). Additionally, the Court must accept
48 The IDEA statute of limitations also permits parents to request a hearing “in such time as the State law
allows;” Pennsylvania has adopted the IDEA statute of limitations regulations in their entirety. D.K., 696
F.3d at 244 n.4; 20 U.S.C. § 1415(f)(3)(C); 22 Pa. Code § 14.102(a)(2)(xxix)–(xxx).
49 Still, the Court is permitted to make additional fact findings based on the administrative record and the
preponderance of the evidence as a whole. See I.K. v. Manheim Twp. Sch. Dist., No. 22-1347, 2023 U.S.
App. LEXIS 11901, at *7 n.7 (3d Cir. May 15, 2023).
the hearing officer’s credibility determinations “unless the non-testimonial extrinsic evidence in
the record would justify a contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381
F.3d 194, 199 (3d Cir. 2004) (emphasis and quotation omitted).
2. Section 504
The Third Circuit recently clarified that Section 504 claims are subject to a de novo
standard of review, as opposed to the IDEA modified de novo standard. Le Pape v. Lower
Merion Sch. Dist., 103 F.4th 966, 983 (3d Cir. 2024) (“[T]he Supreme Court has required district
courts to apply modified de novo review only in their review of IDEA claims, and we decline to
extend that review to claims under the ADA and Section 504.”) (citation omitted). The District
argues that this Court should continue to apply the modified de novo standard to Plaintiffs’
Section 504 claim, asserting that the Third Circuit’s Le Pape opinion “left unresolved” the
standard of review which should apply to non-IDEA claims that only assert a denial-of-FAPE.
(Doc. No. 24 at 3.)
In Le Pape, the plaintiffs appealed the district court’s decision granting the defendant’s
summary judgment motion as to the plaintiffs’ intentional discrimination claims under Section
504 and the ADA. 103 F.4th at 970–71. The Third Circuit reversed and held that applying
modified de novo review to those claims curtailed the plaintiffs’ rights and remedies under non-
IDEA federal law. Id. at 983–84. Although the District correctly notes that Plaintiffs here have
not asserted a similar intentional discrimination claim under the ADA or Section 504, the Court
nevertheless finds that a de novo standard of review applies based on review of another recent
Third Circuit opinion, B.S.M. v. Upper Darby School District, 103 F.4th 956 (3d Cir. 2024).
B.S.M. resembles the case before us, in that the plaintiffs there asserted claims under the IDEA
and Section 504 for violation of child find duties and under Section 504 for the denial of FAPE.
Id. at 959. The Third Circuit held that the district court erroneously failed to analyze whether the
school district violated it child find obligations under Section 504. Id. at 964–65. In a footnote,
the Court stated, “[t]o the extent the District Court . . . will need to make factual determinations
based on the administrative record, . . . ‘we decline to extend [modified de novo] review to
claims under the ADA and Section 504.’” Id. at 965 n.6 (quoting Le Pape, 103 F.4th at 983).
Based on the Third Circuit’s statements in B.S.M., the Court finds that the Third Circuit does not
intend to extend modified de novo review to Section 504 claims, including Section 504 claims
that assert only a denial of FAPE. Thus, the Court will apply a de novo standard of review to
Plaintiffs’ claim under Section 504.
III. ANALYSIS
As discussed above, the Due Process complaints against the District alleged that the
District violated its child find obligation under both the IDEA and Section 504 by failing to
identify A.V. by early kindergarten as a student in need of special education. The complaint also
alleged that the District failed to provide a FAPE as required by both statutes because it
implemented an inadequate IEP which did not capture A.V.’s present education levels and
lacked goals that appropriately addressed all of A.V.’s needs. (Doc. No. 4-11.) The hearing
officer, following three days of hearings which included testimony from six witnesses,
determined: (1) the District did not violate its child find obligation; (2) the District’s IEP was
appropriate except for two goals the officer found substantively inappropriate; and (3) A.V. was
entitled to limited compensatory education. (Doc. No. 5-1 at 28.) Specifically, the hearing
officer determined that although the IEP addressed annual goals, two of those goals were
puzzling because the expectation for A.V. was no higher than her baseline, and there was no data
taken for progress monitoring to assess if her behavior skills for those two goals were improving.
(Id. at 26.) The hearing officer found the testimony of Mrs. Neary and Mrs. Wein to be “quite
compelling in light of their experience with early elementary school students, and their
familiarity with [A.V.]” (Id. at 16.) She also found that the school psychologist provided
similar, persuasive testimony. (Id.) Conversely, she found that “testimony of [A.V.’s] mother
was rather equivocal as it related to the issues, and lacked persuasive value.”50 (Id.)
Here, Plaintiffs argue that the District failed to timely evaluate A.V. by December 2019
of her kindergarten year based on the evidence regarding A.V.’s behavior, and that the hearing
officer erred in “suppl[ying] explanations for [A.V.’s] behavior” when determining whether A.V.
had demonstrated behavioral needs suggesting a disability in kindergarten. (Doc. No. 12-1 at 5–
14.) Plaintiffs also argue that the hearing officer should have conducted an independent Section
504 analysis, but failed to do so. (Id. at 14–17.) Last, Plaintiffs argue that A.V. is entitled to full
days of compensatory education as a result of the District’s denial of FAPE. (Id. at 17–21.)
Plaintiffs do not argue in their motion for judgment on the administrative record that the IEP was
procedurally or substantively deficient. (See generally id.)
The District, in turn, argues that Plaintiffs’ claims prior to the filing of the father’s due
process complaint on August 26, 2022 are barred by the two-year statute of limitations, that the
District’s IEP was procedurally and substantively appropriate, and that the hearing officer erred
in finding that two of the IEP goals did not expect any growth and lacked progress monitoring.
(Doc. No. 13-2.)
50 The hearing officer continued, “For example, [A.V.’s mother] admitted to lack of recall on many
events, repeatedly stating that she asked for an evaluation of [A.V.] for special education services, but
then conceding that she did not actually recall mentioning such an evaluation before December 2020 or
even understanding what such a request meant before that time. The mother’s testimony was therefore of
very limited value.” (Doc. No. 5-1 at 16) (citation omitted).
The Court first addresses whether the hearing officer erred by allegedly substituting its
own explanations for A.V.’s behavior at the start of kindergarten. Next, the Court turns to
Plaintiffs’ arguments that the District violated its child find obligations under the IDEA and
under Section 504. Last, the Court turns to the District’s assertion that the IEP properly provided
a FAPE. Because the Court finds that the District did not violate its child find obligations under
the IDEA and under Section 504, the Court need not address whether Plaintiffs’ claims are time-
barred under the statute of limitations.51
A. Explanations for A.V.’s Behavior
Plaintiffs repeatedly emphasize that the hearing officer erroneously “supplied
explanations” for A.V.’s behavior at the start of kindergarten. (Doc. No. 12-1 at 5, 9.) There is
no basis for this contention. The record demonstrates that it was A.V.’s teachers and school
administrators who believed that A.V.’s behavior at the beginning of kindergarten was the result
of her young age, lack of formal preschool experience, and lack of prior structured routine and
socialization with her peers. (N.T. at 76:9–80:12, 80:2–81:1 (Mrs. Neary explaining that many
of A.V.’s behaviors were “[t]ypical given her age and her experience coming into school from
what [she] knew from [A.V.’s mother]52” and stating “I have seen [behaviors such as picking her
skin, hitting her face, and pulling out hair] with fresh 5-year-old students that are just coming in
[to kindergarten] and are not ready”); id. at 119:6–18 (Mrs. Neary testifying “[A.V.] has a July
birthday and we start school in August. That’s a fresh 5-year-old. . . so we have to give children
51 Although we hold that the District did deny a FAPE to A.V. based on the inadequate IEP, infra, the 2-
year statute of limitations does not bar these claims because the IEP was implemented on March 28, 2021
(HO-3 at 194:17–22) and A.V.’s father filed his due process claim on August 26, 2022 (Doc. No. 4-11).
52 Although Mrs. Neary acknowledged in her testimony that A.V.’s mother reported in mid-September
2019 that A.V. had previously attended preschool, she testified that “in my experience and even more
now, you can tell who’s been in a formal preschool program when they come to you” and stating she had
never heard of the Warwick Child Care Center. (N.T. at 143:11–25.)
the ability to adjust to a new environment. It’s a big change for kids”); id. at 240:15–241:22
(school psychologist testifying that it was only fall kindergarten year, and “[A.V.] had a summer
birthday so she had just turned 5, and we were seeing some disruptive behaviors in the
classroom, but none to lead us to believe that she needed special education services . . . . It was
something that the teacher was very willing and able to intervene and help her make progress”);
id. at 105:1–16 (Mrs. Neary testifying that she did not suspect A.V. needed special education).)
See Ja.B. v. Wilson Cnty. Bd. of Educ., 61 F.4th 494, 503 (6th Cir. 2023) (“It is true that a
response-to-intervention framework cannot be used to delay or deny the provision of a full and
individual evaluation . . . to a child suspected of having a disability. But when the section 504
process began, WCS teachers did not suspect that Ja.B.’s behaviors were a result of a disability
that required special education services. . . . Additionally, we previously have acknowledged that
a school did not violate its child-find responsibilities by first attempting other interventions.”)
(citations omitted).
B. Child Find Obligations under the IDEA
Although Plaintiffs only assert that the District should have conducted an evaluation by
December 2019 (Doc. No. 12-1), the Court also reviews the remainder of the record through
December 2020—when A.V.’s mother formally asked for an evaluation—to determine whether
an alternative date exists in the record when the District should have reasonably suspected that
A.V. had a disability and needed special education.
1. August–December 2019: Kindergarten In-Person Education
First, Plaintiffs argue that the District violated its child find duties because it failed to
evaluate A.V. by December 2019 of her kindergarten year. Plaintiffs argue the combination of
(1) A.V.’s mother putting the District on notice of behaviors, including being “difficult to teach,”
“stubborn,” and “short-sighted” on the survey form, (2) A.V.’s kindergarten teacher, Mrs. Neary,
observing many unusual behaviors, such as A.V. hitting, spitting, making random animal noises,
licking her body and the floors, picking her skin, hitting her own face, and pulling out her hair
and sucking on it, and (3) A.V. failing to demonstrate improvement or meet her goals with the
MTSS Tier 3 interventions, should have led the District to evaluate A.V. by December 2019.
(Doc. No. 12-1 at 8–10.) The Court disagrees.
“Neither the IDEA, its implementing regulations, nor the applicable Pennsylvania
regulations establish a deadline by which children who are suspected of having a qualifying
disability must be identified and evaluated.” Ridley, 680 F.3d at 271. School districts need only
act within a “reasonable time” to evaluate a student for special education upon notice of a
student’s behavior indicating a disability, and “need not rush to judgment or immediately
evaluate every student exhibiting below-average capabilities, especially at a time when young
children are developing at different speeds and acclimating to the school environment.” D.K.,
696 F.3d at 250. Additionally, “[r]esponding to a student’s needs, even without providing
special education services mitigates a Child Find violation.” Mason G. v. W. Wayne Sch. Dist.,
No. 3:22-CV-00004, 2024 U.S. Dist. LEXIS 160079, at *28 (M.D. Pa. Sept. 6, 2024) (citing
D.K., 696 F.3d at 252).
The Third Circuit’s decision in D.K. has a similar fact pattern and illustrates that the
preponderance of evidence in the record supports the hearing officer’s conclusion that the
District did not violate its child find obligations during kindergarten or first grade prior to the
issuance of the permission to evaluate in December 2020. In D.K., the child started in a half-day
kindergarten class where he struggled with reading and misbehaved regularly, including failing
to follow oral directions and complete classwork in the time allotted, and exhibiting a lack of
self-control. 696 F.3d at 240. The school psychologist explained that while some kindergarten
students have difficulty following directions, it does not necessarily indicate a disorder, and the
kindergarten teacher stated that D.K. had exhibited “much growth.” Id. But, given D.K.’s
variable marks in reading skills, the school recommended that he repeat kindergarten. Id.
During his second year of kindergarten, D.K. enrolled in a full-day program, but “showed
little maturation,” and his teacher expressed concern about his behavior, tendency to rush
through classwork and difficulty controlling himself, especially when upset, and documented 43
“defiant” and “extremely argumentative” temper tantrums in a 70-day period. Id. Yet, the
school did not conduct an evaluation, and instead implemented behavior plans, including a
sticker chart and a system using popsicle sticks. Id. By the end of his second kindergarten year,
D.K was reportedly doing very well academically and playing well with others, though he still
was not making much behavioral progress. Id. at 240–41. Again, the school did not conduct an
evaluation and instead promoted D.K. to first grade where he continued to have behavioral
challenges.
D.K.’s first grade teacher explained that she was providing “as many supports as she
could,” but felt it was still too early to discuss an evaluation. Id. at 241 (alterations accepted). In
January 2006 of first grade, the school placed D.K. in a special social skills group due to his poor
social skills, and his parents requested an evaluation that same month. Id. The school evaluated
D.K. in April 2006, finding that D.K. was not eligible for special education because his BASC
ratings were not in the “at risk” or “clinically significant” range and he demonstrated proficiency
in math and reading; the school promoted D.K. to second grade.53 Id. One year later, in July
2007, before D.K. began third grade, D.K.’s parents requested a second evaluation, and
53 The plaintiffs also claimed that the school’s April 2006 evaluation was not conducted appropriately, but
the Third Circuit rejected this challenge. Id. at 251.
independently sought an evaluation of D.K. in September 2007. Id. Their independent
evaluation diagnosed D.K. with ADHD. Id. at 242. Two months later, the school’s own second
round of testing also determined that D.K. was eligible for special education services. Id.
The Third Circuit held that the school did not violate its child find duties prior to the
initial evaluation in winter of first grade because “hyperactivity, difficulty following instructions,
and tantrums are not atypical during early primary school years,” and the student’s report cards
“indicated intermittent progress and even academic success.” Id. at 251. And the Third Circuit
held that the school did not violate its child find obligations after the initial evaluation because
D.K. “exhibited improvement after his April 2006 evaluation” and the school took “proactive
steps” to afford the student with extra assistance to maximize his potential for improvement. Id.
at 252. The Third Circuit held, “It would be wrong to conclude that the School District failed to
identify D.K. as a challenged student when it offered him substantial accommodations, special
instructions, additional time to complete assignments, and one-on-one and specialist attention en
route to eventually finding a disability.” Id.
Given the holding in D.K., courts have held that “‘addressing [a student’s] needs and
providing appropriate instruction and interventions before rushing to special education
identification’ satisfie[s] Child Find obligations.” Mason, 2024 U.S. Dist. LEXIS 160079, at
*24–29 (quoting Ridley, 680 F.3d at 272). See also Ridley, 680 F.3d at 271 (holding that the
school did not violate its child find obligations where the student struggled academically with
several failing grades and the teacher declined the parents’ request to hold a meeting regarding
the grades because the teacher testified that first grade was the first time that the children would
ever be in a test taking situation, and that it was reasonable to assess the student’s progress for
the first term of first grade before recommending that the student be re-evaluated for a learning
disability); JKG v. Wissahickon Sch. Dist., No. 2:19-cv-05276-JMG, 2021 U.S. Dist. LEXIS
55235, at *16–22 (E.D. Pa. Mar. 24, 2021) (holding no child find violation where the student
was having trouble staying organized and needed reminders to stay on task and follow directions
at the start of school because the school consistently sought to address the student’s needs in
response to his ongoing diagnostic and behavioral developments); Mason, 2024 U.S. Dist.
LEXIS 160079, at *24–29 (holding that the school satisfied its child find obligation because the
“Title I reading services, a reading intervention specialist, several evaluations over several years,
and placement in a co-taught classroom demonstrate that the District provided such appropriate
supports before rushing to a disability identification”).
Here, similarly, Mrs. Neary testified that some—though not all—of A.V.’s behaviors
were typical of a young five-year-old beginning kindergarten; the District took proactive steps to
provide extra assistance to maximize A.V.’s potential improvement, including providing MTSS
supports and weekly sessions with the mental health specialist; and as discussed in further detail
below, A.V.’s behavioral and academic performance both improved over the course of the
kindergarten year. (N.T. at 75:25–76:14, 79:23–80:12, 83:4–84:5, 85:2–87:12 (Mrs. Neary
testifying that A.V.’s behaviors such as hitting, spitting, disruptive noises, sucking on hair, and
licking her own blood were typical of a young kindergartener who had just turned five years old,
although others such as fake sneezing and howling, pulling out her own hair, and trying to pick
through three layers of skin were not typical); Doc. No. 4-10 at 55–58 (District implementing
MTSS Tier 2 supports, including alternative seating options to help A.V. focus, seating A.V.
close to an instructional aide during lunchtime, modeling and reinforcing appropriate behavior,
using reward incentives, etc.); id. at 59 (District implementing Tier 3 supports, which involved a
support team consisting of Mrs. Neary, the school psychologist, the school counselor, a reading
specialist, an intervention specialist in math, an instructional coach, and the school principal (see
N.T. at 102:18–103:20), developing two goals designed to address A.V.’s areas of need, and
implementing many interventions, including ignoring A.V. when she made disruptions,
redirecting her, using verbal and non-verbal prompts, using a sand clock to count down time
remaining in an activity, using a rewards-based behavior plan, and tracking data).)
Plaintiffs attempt to distinguish D.K. and argue that D.K. was performing “very well
academically,” and his needs were not as “extreme” as A.V.’s behaviors. (Doc. No. 18 at 7.)
The Court is not persuaded. First, A.V.’s first trimester report card shows academic
improvement across virtually every skill tested. (Doc. No. 4-10 at 21–22; see also N.T. at
75:10–18 (Mrs. Neary testifying that she did not have any academic concerns with A.V.); id. at
126:21–23 (Mrs. Neary testifying, “We all saw a very big positive growth in [A.V.]
academically, socially and emotionally”).) Second, D.K. exhibited many similar behaviors prior
to his first evaluation as A.V. here, including failing to follow directions, rushing through
classwork, having difficulty controlling himself, especially when upset, and displaying forty-
three “defiant” and “extremely argumentative” temper tantrums in a 70-day period. D.K., 696
F.3d at 240–41. And the Court finds that A.V. actually showed some improvement after
intervention by the District, see infra, unlike D.K., who reportedly made “little behavioral
progress” by the end of his second kindergarten year and still displayed behavioral challenges in
first grade despite his teacher providing “as many supports as she could.” Id. at 241. Based on
the facts presented in D.K., the Court finds the Third Circuit’s analysis to be directly applicable
to this case and suggests the hearing officer correctly found there was no child find violation.
Plaintiffs also argue that additional facts in the record, which were not present in D.K.,
show that the District was on notice of A.V.’s need for an evaluation and thus, violated its child
find obligation. Notably, they argue that A.V.’s mother put in A.V.’s kindergarten registration
form that she can be “difficult to teach,” “stubborn,” and “short-sighted,” and that A.V. “clearly
did not make behavioral progress” because she demonstrated no improvement with the MTSS
interventions and failed to meet her MTSS goals.54 (Doc. No. 12-1 at 8–10.) However, the
kindergarten registration notes did not provide any formal diagnosis, or even a suggestion of a
disability. See JKG v. Wissahickon Sch. Dist., No. 2:19-cv-05276-JMG, 2021 U.S. Dist. LEXIS
55235, at *16–22 (E.D. Pa. Mar. 24, 2021) (holding no child find violation where the student’s
parents included comments in his school registration paperwork that the student had been
diagnosed with Generalized Anxiety Disorder and had a rule-out55 for autism, ADD and ADHD,
and the student was having trouble staying organized and needed reminders to stay on task and
follow directions at the start of school, because the student’s only formal medical diagnosis was
for Generalized Anxiety Disorder and there was no indication on his school registration that this
affected his education).
Additionally, Plaintiffs fail to take into account Mrs. Neary’s testimony, which is
uncontroverted in the record and supported by extrinsic evidence, specifically emails, that A.V.
did demonstrate improvement behaviorally from the time the District implemented MTSS Tier 3
interventions. (N.T. at 112:2–8 (Mrs. Neary testifying, “In December [2019] she was doing
great. . . . The disruptive noises were much less, significantly less, and the attention to task had
almost diminished”); id. at 119:4–120:4 (Mrs. Neary testifying, “She transitioned very, very
54 Plaintiffs also suggest that A.V.’s MTSS goal of only making one disruptive noise every five minutes
“establish[ed] that the School District was on notice of [A.V.]’s extreme behavioral needs” (Doc. No. 18
at 4), but there is no evidence that contradicts Mrs. Neary’s credible testimony that this goal was
representative of a typical kindergartener’s behavior (N.T. at 90:14–91:1).
55 A “rule-out” “refers to the outstanding need for a health professional to determine through further
testing whether an individual suffers from certain health conditions.” Id. at *5 n.3.
well. Considering how she came in and the types of behaviors that you saw in the MTSS report,
some of those had become completely nonexistent towards the end of the school year. She was
really, really making progress. She was making friends.”); id. at 124:4–11 (“Q: Did [A.V.’s]
level of energy differ significantly from her peers in her kindergarten class? A: Maybe in the
first few weeks. But after we had things going in the right direction, no.”); id. at 126:17–21
(Mrs. Neary testifying, “I saw a lot of progress with [A.V.] through what we were doing at
MTSS, especially given the circumstances that she was through with [her biological father] being
back in her life and seeing [the mental health therapist]”); id. at 110:12–25 (Mrs. Neary
testifying that the frequency of her emails to A.V.’s mother declined over time because the
behaviors declined); Doc. No. 4-10 at 153 (Oct. 10, 2019 email from Mrs. Neary to A.V.’s
mother stating, “Overall, we have all seen improvements from the start of the year – She
certainly has subsided putting her hands/feet, etc on anyone else. Having her sit in the area
directly behind the carpet helps her maintain her personal space . . . . What I’m mostly seeing
right now is inappropriate noises (fake sneezing, humming, squealing, hissing, etc) on a pretty
consistent basis. . . . so we will definitely be trying to target that specific behavior with this plan.
The other thing I’d like to try and correct is following directions the first time given . . . . Having
said all of this, we are making strides in the right direction – We have to be mindful that she did
just turn 5 and academically she is doing right where I’d hope. I hope that you know how much
I truly enjoy your daughter . . . .”); id. at 156 (Nov. 12, 2019 email from Mrs. Neary to A.V.’s
mother stating, “Overall she is making great progress, we are still working on her goals and
tracking data for disruptive noises and transitioning. As an update, I use a 3 min timer with
[A.V.] that is working really well to help her transition from a preferred task.”); id. at 167 (Jan.
13, 2020 email from Mrs. Neary to A.V.’s mother stating, “[A.V.] did have a little bit of an off
day in general. She was extremely excited this entire morning and had a pretty hard time
calming herself down and following directions. It’s been a long time since I’ve seen her making
random animal noises and non-compliance when given a direction (to sit down) but she did both
today”) (emphasis added).)56
Because Plaintiffs fail to point to extrinsic evidence that refutes Mrs. Neary’s credible57
testimony, and child find obligations can be satisfied by proactively responding to a student’s
needs without rushing to judgment, the Court cannot find that the District violated its IDEA child
find obligations before March 2020. Compare Ja.B., 61 F.4th at 501–04 (holding no child find
violation where student’s parents frequently communicated with school regarding his home
behavior and seeking intervention, where student’s behavior at school resulted in repeated
suspensions and hospital visits for mental health, and where student was arrested following a
56 Contrary to Plaintiffs’ assertion that A.V. failed to meet her MTSS goals, the record shows that as to
A.V.’s goal of reducing disruptive noises, she achieved her goal of one disruptive noise every five
minutes on 9 of 16 days observed in the morning session, and achieved her goal on all 13 days observed
in the afternoon session. (Doc. No. 4-10 at 59.) Additionally, as to her goal of reducing the number of
prompts needed to transition from a preferred activity, A.V. met her goal in the morning session on 8 of
14 days observed, and met her goal on 5 of 13 days observed in the afternoon session. (Id.) Regardless,
the Third Circuit’s analysis in D.K. further shows that the District did not need to rush to evaluate A.V. in
December 2019 even if she had failed to consistently meet her Tier 3 MTSS goals. 697 F.3d at 251–52.
57 Plaintiffs urge the Court to disregard Mrs. Neary’s testimony because in her nine years as a
kindergarten teacher, teaching about 24-25 students per year, Mrs. Neary testified that she has only
referred one student for special education services. (Doc. No. 12-1 at 13; N.T. at 74:9–13, 91:2–20.)
Plaintiffs point to data from the Pennsylvania Department of Education suggesting that this is statistically
anomalous and ask that the Court to disregard her testimony. (Doc. No. 12-1 at 13.) However, the parties
in this matter specifically agreed to rest on the administrative record in moving for judgment on the
administrative record. (Joint Rule 26(f) Report, received July 5, 2023 at 4.) Additionally, as the District
argues, the data cited by Plaintiffs only suggests that 17.8% of all students in Pennsylvania are enrolled in
special education, and does not include any further data analysis as to kindergarten students in particular.
See Special Education in Pennsylvania 2019-2020, Pennsylvania State Data Center, April. 2021,
https://penndata.hbg.psu.edu/Portals/66/documents/SpecialEducationSummary/2019-
2020_Special_Education_Data_Book_4-12-2021.pdf. Thus, since the interpretation of this data is
disputed and since the parties agreed to rest on the administrative record, the Court will not consider it.
See Delgadillo v. Kijakazi, No. 20-56211, 2022 U.S. App. LEXIS 2866, at *2 (9th Cir. Feb. 1, 2022) (“A
party cannot circumvent the rules governing administrative record supplementation by asking for judicial
notice.”).
series of behavioral escalations at school, because student’s records from previous school
reflected that he was meeting academic and behavioral expectations, student’s teachers did not
suspect that the behaviors were the result of a disability requiring special education, and the
school’s teaching team discussed possible supports and began the § 504 process which provided
for additional interventions. The court emphasized that a school does not violate its child find
responsibilities “by first attempting other interventions for a student instead of immediately
referring for an evaluation”), with Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781, 793–
95 (5th Cir. 2020) (holding that it was not reasonable to try intermediate measures to determine
whether special education testing was appropriate because the student was not exhibiting
behaviors “typical” of boys his age—the student’s behavior was severe, including drawing
violent pictures depicting murder, using “incredibly vulgar language” and making lewd gestures
in class, disrupting class by yelling obscenities, and hurling racial slurs at the principal, teacher
and students—and because the district had already previously attempted to provide positive and
negative reinforcements, frequent redirections and consequences for the student’s behavior, but
with no effect).
2. December 2019–March 2020: Kindergarten In-Person Education
The Court also rejects any suggestion that the District erred when it failed to evaluate
A.V. in March 2020 after her second trimester report card showed that she still had seven “Needs
Improvement” notations for learning related behaviors, as opposed to eight such notations in the
first trimester. (Doc. No. 4-10 at 22.)
On this issue, the hearing officer found Mrs. Neary credible when she explained that the
grade notations for the report card were not specific enough to show the nuanced improvements
that she believed A.V. demonstrated, and Plaintiffs have failed to provide extrinsic, non-
testimonial evidence to refute Mrs. Neary’s credible testimony. (N.T. at 98:6–18, 125:14–126:6,
141:13–142:8); Shore, 381 F.3d at 199. And, although the Court is troubled that the MTSS data
from October 2019 through March 2020 is absent from the record, the Court cannot adversely
infer from the absence of MTSS data that A.V.’s behavior worsened after October 2019,
especially in light of the emails which suggest improvement consistent with Mrs. Neary’s
testimony, discussed supra.
The Court recognizes that despite the improvement noted for A.V., there was a shift
during December 2019 and early 2020 when A.V. started taking the belongings of others and
hitting and shoving other students. (Doc. No. 4-10 at 156, 157, 159–61, 163–66, 168, 173.) But
it cannot be overlooked that the District continued to proactively respond and quickly added the
support of the mental health therapist for weekly sessions to help A.V. process daily emotions
and access coping strategies. (Id. at 101.) See D.K., 697 F.3d at 251–52.
Last, the Court observes that there is no evidence in the record that A.V.’s academic
performance was impacted by her behaviors, as Mrs. Neary testified that she did not have any
concerns regarding A.V.’s academic performance and her report card demonstrates progress in
every single academic skill from the first to the second trimester. (Doc. No. 4-10 at 21–22; N.T.
at 75:10–18, 126:21–23 (Mrs. Neary testifying, “We all saw a very big positive growth in [A.V.]
academically, socially and emotionally”).) See Northfield City Bd. of Educ. v. K.S., No. 19-9582
(RBK/KMW), 2020 U.S. Dist. LEXIS 97184, at *25 (D.N.J. June 3, 2020) (“In cases involving
mental health disabilities, courts typically only find violations where the school district ignored a
marked increase in concerning behavior by the student that was accompanied by a marked
decline in academic performance.”); JKG, 2021 U.S. Dist. LEXIS 55235, at *16–22 (holding
that the school did not violate its child find obligations where the student’s teacher was not
concerned that his behaviors were impacting his classroom performance); see also B.C. v. Mount
Vernon Sch. Dist., 837 F.3d at 161 (“The IDEA asks only whether a child ‘needs’ special
education and related services of a particular impairment . . . . [and] thus advances the
ameliorative statutory aim of ‘improving educational results for children with disabilities.’”)
(citations and alterations omitted).
Thus, the Court cannot find that the District violated its IDEA child find obligations
before March 2020.
3. March–October 2020: Covid-19 Remote Education
The District was still required to provide a FAPE to students with disabilities even during
the pandemic. Abigail P. v. Old Forge Sch. Dist., 3:21-CV-02033, 2023 U.S. Dist. LEXIS
42949, at *27 (M.D. Pa. Mar. 14, 2023), aff’d 105 F.4th 57 (3d Cir. 2024).
a. March–May 2020 (Kindergarten)
The record is sparse as to A.V.’s behavior and academic performance in kindergarten
after the school shut down in response to the pandemic. For the period from March–May 2020,
the record merely indicates that A.V. did not receive any MTSS interventions during the period
because they were classroom-based interventions, and that A.V. did not attend Zoom sessions
and failed to complete most assignments. (See Doc. No. 4-10 at 175; N.T. at 121:7–10, 123:8–
22.) Yet, the District did not require attendance for kindergarteners and agreed all students
would move on to first grade. (N.T. at 123:11–18, 243:20–244:8; Doc. No. 4-10 at 175 (May 27,
2020 email from A.V.’s mother to Mrs. Neary asking if A.V. would be held back if she didn’t
catch up on her assignments and Mrs. Neary responding, “The district is not retaining students
due to this closure, . . . they are prepared to assess students at the start of the new year and
support in accordance with needs”).) Without the benefit of any evidence in the record, and
given that Plaintiffs bear the burden of challenging the hearing officer’s conclusions, Ridley, 680
F.3d at 270, the Court cannot determine that the District should have been aware of some
particular behavior during this period that indicated a disability necessitating a special education.
b. August–October 2020 (First Grade)
In first grade, Mrs. Wein made a number of observations during remote education, which
was in place from August through October 2020, such as that A.V. was frequently missing
instruction, not completing assignments, calling out, putting things in front of the computer
camera, turning the camera off when she didn’t want to finish work or a conversation, having
meltdowns, making noises, and getting very upset when things did not turn out as intended.
(Doc. No. 4-10 at 186–87, 193–94, 198–99 (six emails from Mrs. Wein to A.V.’s mother
informing her that A.V. was missing class and not completing assignments); id. at 61–62.)
However, she also testified to a number of observations about A.V.’s home life including that
A.V. lacked adult supervision and had a strained relationship with her mother and biological
father.58 (N.T. at 189:25–190:15 (Mrs. Wein testifying, “I was very concerned that [A.V.] did
not have adult supervision at home and she was not attending Zoom and that really concerned
me. She was turning off her camera or not coming back on time and not completing activities or
assignments, which is very typical of a 6-year-old who does not have any support.”); id. at
58 (See N.T. at 194:20–195:15 (Mrs. Wein testifying, “[A.V.] sometimes would get upset and said that
mom . . . – there was one time where she had to clean the grease off the stove or fold clothes, and her
excuse was she could not be on the Zoom because her mother told her if she didn’t finish this before she
got home, she was in big trouble. Q: And how was that communicated to you? A: By [A.V.]. But then
mom has come in the house when they were on Zoom and I’ve heard her yell at her and curse, which
[A.V.] became very upset. So it was hard for her to focus on schoolwork when she was more worried
about what she had to do before mom came home. . . . Q: Any idea how often you observed that?
A: Several times.”); id. at 212:15–22 (“Q: Did [A.V.’s father ever express any concerns to you? A: No.
But one day on the Zoom, [A.V.] came on and [her father] was present at [A.V.’s] home, and he told me
that he was going to support [A.V.], but that was only the one day and I hadn’t seen him after that.”); see
also id. at 107:15–17 (Mrs. Neary testifying, “She was always very nervous about communication with
mom and what would happen as her punishment at home.”).)
157:13–20, 252:13–17 (school psychologist testifying that A.V. did not have adult supervision
when she observed A.V.’s remote learning for purposes of the ER); HO-2 at 67:16–25 (A.V.’s
mother testifying that she “couldn’t sit with her like most parents could, but [she] was 25 yards
away”); Doc. No. 4-10 at 177–79 (Oct. 1, 2020 email from Mrs. Wein to A.V.’s mother stating,
“[A.V.] has been missing a lot of the direction instruction of our lessons. . . . This has been
happening a lot lately.” “When we call on [A.V.], she is usually not there. She comes in and out
but usually misses the teacher instruction. . . . [She] was extremely upset during math today . . . .
I met with her, tried to calm her down with belly breathing . . . . She kept repeating, I am in so
much trouble. . . . She was hitting her face with her fist. When I left her, she was going to her
special and seem[ed] a bit calmer.”).) Although the record shows District representatives
communicated with A.V.’s mother multiple times in October and November 2020 about assisting
her in applying for childcare scholarships, there is no suggestion in the record that A.V.’s mother
followed up with these applications. (Doc. No. 4-10 at 27–28.)
Given the uncontroverted testimony from the school psychologist that 6-year-olds require
adult supervision in order to meaningfully participate in remote education (N.T. at 252:13–22),
and the evidence that A.V. was left to attempt to participate in virtual education without such
support and at the same time complete a number of household chores in order to avoid
punishment, the Court finds that the District could have appropriately attributed A.V.’s difficulty
with remote education to her lack of parental supervision and home life, rather than a disability
requiring special education.
4. October–December 2020: First Grade In-Person Education
By October 22, 2020, the District transitioned to hybrid learning and A.V. began
attending school in person two days a week. (Doc. No. 16 at ¶¶ 29–31.) At that time, the
District resumed MTSS interventions for students whose interventions had been truncated by the
pandemic. (Id. at ¶ 34; N.T. at 269:12–17 (school psychologist testifying that “[f]or all students
who were mid-[MTSS] process when we went out due to building closures, we circled back with
them once we had beginning-of-the-year data the following school year to determine what
supports they needed to move forward”).) On November 30, 2020, A.V.’s mother submitted
A.V.’s formal ADHD diagnosis to the District and requested an evaluation on December 2, 2020.
(Doc. No. 16 at ¶¶ 34, 35.) The District quickly responded with a request for permission to
evaluate. (Id. at ¶ 35.) A.V. had only had 12 in-person school days with Mrs. Wein before
A.V.’s mother submitted the formal diagnosis and evaluation request.59 (See 2020–21 Academic
Calendar.) The Court finds that this short period of time, after A.V. had not been in-person for
nearly eight months, was not long enough for the District to meaningfully implement renewed
interventions to determine if A.V. might make the same improvements that Mrs. Neary observed
in kindergarten, and thus the District did not violate its IDEA child find obligation.60 If the facts
had been different, such as if A.V.’s mother did not submit a formal diagnosis for several more
months, or if the District refused to evaluate A.V. when requested, the Court may have found
differently, but based on these facts the Court cannot find that the District violated its IDEA
child find obligation.
59 Similarly, it wasn’t until late November 2020 when A.V.’s mother had a parent teacher conference with
Mrs. Wein and the principal expressing her concerns regarding A.V.’s behavior and progress with remote
learning. (HO-2 at 64:17–23.)
60 Although A.V. was not testing academically where Mrs. Wein would have expected in first grade pre-
COVID, both Mrs. Wein and the school psychologist testified that none of the students were performing
academically where they would have expected due to the COVID-19 disruption. (N.T. at 213:11–24;
248:3–17.) Furthermore, given that A.V. frequently failed to complete assignments and attend virtual
instruction (Doc. No. 4-10 at 186–87, 193–94, 198–99), Mrs. Wein testified that she did not have
academic concerns with A.V. during this time aside from her attendance (N.T. at 156:20–157:2). Finally,
Mrs. Wein also testified that A.V. was demonstrating progress in her academic skills. (Id. at 182:2–4.)
* * *
For the foregoing reasons, the Court finds based on a thorough review of the record that
the District did not violate its child find obligations under the IDEA. The school consistently
sought to respond to A.V.’s ongoing behavioral developments. The District has a reasonable
time to evaluate a student for special education upon notice of a student’s behavior indicating a
disability and need not rush to judgment in conducting such evaluations at a time when young
children are developing at different speeds. D.K., 696 F.3d at 250.
C. Child Find Obligation under Section 504
Next, Plaintiffs also contend that the hearing officer erred in not conducting a separate
Section 504 analysis, arguing that it is possible for a child to be eligible for special education
under Section 504, even if they are not eligible under the IDEA. (Doc. No. 12-1 at 14–17.) As
noted above, the Third Circuit has cautioned that Section 504 claims should be analyzed
separately from IDEA claims, although Plaintiffs’ claims under both statutes appear to base child
find allegations on the same evidence. See B.S.M., 103 F.4th at 964–65; see also A.W. v.
Middletown Area Sch. Dist., No. 1:13-CV-2379, 2015 U.S. Dist. LEXIS 9774, at *51–52 (M.D.
Pa. Jan. 28, 2015) (separately analyzing Section 504 and IDEA claims because “a qualifying
disability under the IDEA does not necessarily imply a qualifying disability under Section 504”).
For the reasons stated supra, the Court reviews Plaintiffs’ Section 504 claim de novo.
The hearing officer did not explicitly analyze Plaintiffs’ Section 504 claim, although her
decision does reference Section 504 principles and states that her Section 504 and IDEA analyses
“shall be addressed together where they overlap.” (Doc. No. 5-1 at 22.) Because the hearing
officer did not analyze the Section 504 claim using the elements of the relevant statute, the Court
finds that the hearing officer erred as a matter of law. See B.S.M., 103 F.4th at 964–65.
However, upon an independent and thorough Section 504 analysis, the Court holds that based on
the preponderance of the evidence in the administrative record, the District did not violate its
child find duty under Section 504.
Reiterating the elements of Section 504, a plaintiff must prove that (1) the child was
disabled; (2) the child was “otherwise qualified” to participate in school activities; (3) the school
received federal financial assistance; and (4) the child was excluded from participation in, denied
the benefits of, or subject to discrimination at the school. Ridley, 680 F.3d at 280 (citation
omitted). A “disability” within the meaning of Section 504 means something that substantially
limits a major life activity. 34 C.F.R. § 104.3(j)(1). Here, there is no dispute that A.V.’s ADHD
is a qualifying disability under Section 504, that she was otherwise qualified to participate in
school activities, and that the school received federal financial assistance.
In addition to the elements discussed above, Plaintiffs must also prove that the District
knew or should reasonably have been expected to know of the disability, under Section 504’s
child find requirement. Ridgewood, 172 F.3d at 253. The Third Circuit has stated there are “few
differences, if any, between IDEA’s affirmative [child find] duty and § 504’s negative
prohibition.” Id. Here, based on a de novo review, which often overlaps with the above IDEA
child find analysis, supra, the Court holds the District did not violate its Section 504 child find
obligation.
1. August 2019–May 2020: Kindergarten
In kindergarten, the District need not have rushed to judgment, “especially at a time when
young children are developing at different speeds and acclimating to the school environment,”
D.K., 696 F.3d at 250, since many of A.V.’s behaviors were typical for young kindergarteners.61
61 Even under the de novo review standard, the Court agrees with the hearing officer’s credibility findings
as to A.V.’s teachers, the school psychologist, and A.V.’s mother. (See Doc. No. 5-1 at 16.) In particular,
(See N.T. at 76:9–80:12, 80:2–81:1 (Mrs. Neary explaining that many of A.V.’s behavior were
“[t]ypical given her age and her experience coming into school from what [she] knew from
[A.V.’s mother]” and stating “I have seen [behaviors such as picking her skin, hitting her face,
and pulling out hair] with fresh 5-year-old students that are just coming in [to kindergarten] and
are not ready”); id. at 119:6–18 (Mrs. Neary testifying, “[A.V.] has a July birthday and we start
school in August. That’s a fresh 5-year-old. . . so we have to give children the ability to adjust to
a new environment. It’s a big change for kids”).) The school was permitted to implement MTSS
interventions rather than immediately evaluate A.V. because they did not suspect that her
behaviors were a result of a disability. Ja.B., 61 F.4th at 503; (N.T. at 240:15–241:22 (school
psychologist testifying that it was only fall kindergarten year, and “[A.V.] had a summer
birthday so she had just turned 5, and we were seeing some disruptive behaviors in the
classroom, but none to lead us to believe that she needed special education services.”).)
And A.V. was improving with the help of those proactively implemented MTSS
interventions. The District’s MTSS program included many interventions, such as providing
alternative seating options to help A.V. focus, seating A.V. close to an instructional aide during
lunchtime, modeling and reinforcing appropriate behavior, using reward incentives, using a sand
clock to count down time remaining in an activity, coordinating a multi-person team to monitor
A.V.’s progress, establishing goals to help target areas of need, and tracking behavior-related
data.62 (Doc. No. 4-10 at 55–59.) The Court is particularly struck by Mrs. Neary’s multiple
after review of the record, the Court also finds that the mother’s testimony lacked persuasive value due to
the evasive and combative nature of her testimony on cross-examination by the District. (See generally
HO-2.)
62 The Court acknowledges that the record is missing MTSS data from late October 2019 through March
2020. This is problematic because the District has represented that it was collecting data all along (N.T.
at 268:6–14), yet has nothing to show for it. Still, because the data is simply absent from the record, and
there is no evidence in the record to contradict Mrs. Neary’s testimony that A.V. was improving
emails to A.V.’s mother, which depict a contemporaneous story of improvement in A.V.’s
behavior.63 (See Doc. No. 4-10 at 153 (Oct. 10, 2019 email from Mrs. Neary to A.V.’s mother
stating, “Overall, we have all seen improvements from the start of the year – She certainly has
subsided putting her hands/feet, etc on anyone else. Having her sit in the area directly behind the
carpet helps her maintain her personal space . . . . What I’m mostly seeing right now is
inappropriate noises (fake sneezing, humming, squealing, hissing, etc) on a pretty consistent
basis. . . . so we will definitely be trying to target that specific behavior with this plan. The other
thing I’d like to try and correct is following directions the first time given . . . . Having said all of
this, we are making strides in the right direction – We have to be mindful that she did just turn 5
and academically she is doing right where I’d hope. I hope that you know how much I truly
enjoy your daughter . . . .”); id. at 156 (Nov. 12, 2019 email from Mrs. Neary to A.V.’s mother
stating, “Overall she is making great progress, we are still working on her goals and tracking data
for disruptive noises and transitioning. As an update, I use a 3 min timer with [A.V.] that is
working really well to help her transition from a preferred task.”); id. at 167 (Jan. 13, 2020 email
from Mrs. Neary to A.V.’s mother stating, “[A.V.] did have a little bit of an off day in general.
She was extremely excited this entire morning and had a pretty hard time calming herself down
and following directions. It’s been a long time since I’ve seen her making random animal noises
throughout the year, which in fact is supported by extrinsic emails, the Court accepts these
representations.
63 A.V.’s report card only showed marginal improvement in learning related behaviors from the first to
second trimester. (Doc. No. 4-10 at 21–22.) However, Mrs. Neary testified that these marks weren’t
representative of A.V.’s overall improvement because the three possible report card grades do not provide
a broad enough scale to depict everything that’s happening in the classroom; “there is still a lot of
progress that happens from an NI to an NI, but it is not broad enough to see on paper.” (N.T. at 98:6–18,
125:14–126:6, 141:13–142:8.) She emphasized the exponential growth she saw in A.V. over the year.
(Id. at 126:14–23.) Since this evidence is also uncontroverted in the record, the Court accepts these
representations.
and non-compliance when given a direction (to sit down) but she did both today”) (emphasis
added); see also N.T. at 112:2–8 (Mrs. Neary testifying “In December [2019] she was doing
great. . . . The disruptive noises were much less, significantly less, and the attention to task had
almost diminished”); id. at 119:4–120:4 (Mrs. Neary testifying, “She transitioned very, very
well. Considering how she came in and the types of behaviors that you saw in the MTSS report,
some of those had become completely nonexistent towards the end of the school year [prior to
the COVID-19 pandemic]. She was really, really making progress. She was making friends.”).)
Cf. S.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 U.S. Dist. LEXIS 164057, at *47
(S.D.N.Y. Sept. 12, 2022) (granting judgment as a matter of law because “Defendant may have
had any number of lawful reasons for its decision to not evaluate K.B. for a Section 504 plan,
including its belief that K.B. did not need one given her academic results and teacher reviews, or
that ad hoc interventions such as AIS math tutoring in sixth grade had been effective.”)
(emphasis added).
The record from December through March of kindergarten likewise shows far fewer
incidents of random disruptions and non-compliance. It shows a couple one-off incidents of
strange behavior, such as A.V. stamping her face and arms (Doc. No. 4-10 at 167), and sticking
her tongue in boys’ faces (id. at 174), but neither A.V.’s teachers nor the hearing officer attribute
these incidents to any disability (N.T. at 75:12–18), and the Court agrees.
It is true that there was a shift and A.V. began engaging in a new, problematic behavior
of stealing others’ belongings in November 2019, and appeared to become more violent with her
classmates at the start of 2020. (See Doc. No. 4-10 at 156–57, 159–61, 163–66, 168, 173.)
However, Mrs. Neary testified that the stealing behavior wasn’t frequent (N.T. at 111:24–
112:19), and the record also shows that in response to these developments, the school
implemented additional support for A.V. in the form of weekly mental health counseling to help
A.V. develop coping strategies to overcome stressful situations, and to help A.V. process
emotions (see N.T. at 243:3–19; Doc. No. 4-10 at 49, 161). Even with A.V.’s continued
struggles, Mrs. Neary testified that A.V.’s behaviors were improving and observed A.V. was
making friends, absorbing the social and emotional learning in the classroom, and “had more
tools in her toolbox to deal with her problems.” (N.T. at 119:24–125:4.)
Given A.V.’s improvements following the MTSS interventions, the Court finds no
evidence of a disability limiting a major life activity, and that the school reasonably could not
have been expected to know these new behaviors were indications of a disability prior to the
COVID-19 pandemic. Likewise, as stated above, there is minimal evidence in the record
regarding A.V.’s behavior during the start of the pandemic in kindergarten aside from A.V.’s
lack of attendance and failure to complete assignments (see Doc. No. 4-10 at 175; N.T. at 121:7–
10; 123:8–22), and the Court cannot discern any particular incidents which could have triggered
the District to suspect any disability limiting a major life activity.
2. August–December 2020: First Grade
At the start of first grade, during virtual learning, A.V.’s absence from class instruction is
conspicuous. Mrs. Wein sent multiple emails to A.V.’s mother notifying her that A.V. was
frequently absent from classes and submitting incomplete work. (Doc. No. 4-10 at 186–87, 193–
94, 198–99.) Mrs. Wein observed that A.V. was shutting off her camera when she didn’t want to
finish an assignment or a conversation, and was calling out, waving things in front of the camera,
and crying or hitting herself with her fist. (Id. at 61–62.) However, the Court also considers the
context for this behavior as observed by Mrs. Wein: A.V. was attempting to access virtual
education, unsupervised, at the mere age of six, and appeared to have a strained homelife, in that
she would become nervous or upset at her mother’s potential reaction if she didn’t complete
household chores by the time her mother returned home. (N.T. at 157:13–20, 189:25–190:15,
193:18–24, 194:20–195:19, 252:13–22.) Against this backdrop, and considering that no one
objects to the school psychologist’s testimony that children as young as A.V. was at the time
required adult supervision in order to participate in virtual learning (id. at 252:13–22), the Court
cannot find that the District should have suspected a disability caused A.V.’s behaviors.
The Court reaches the same conclusion when considering the facts after A.V. began
hybrid in-person education two days per week on October 22, 2020. (Doc. No. 16 at ¶¶ 29, 30.)
The District resumed A.V.’s Tier 3 MTSS interventions when she restarted in-person,
with the understanding that A.V. had demonstrably improved with the help of MTSS in
kindergarten. (Doc. No. 16 at ¶ 34; N.T. at 269:12–17.) By this point, A.V. had been without
the benefit of any MTSS interventions for the greater part of eight months; and, A.V.’s renewed
MTSS interventions were only in place for 12 in person learning days before her mother
submitted A.V.’s diagnosis and requested an evaluation shortly thereafter. (See 2019–20, 2020–
21 Academic Calendars; Doc. No. 16 at ¶¶ 34, 35.) When considering the behaviors A.V.
exhibited during virtual learning, combined with the behaviors A.V. exhibited during the 12 in
person days before the District received notice of the ADHD diagnosis, the Court cannot find
that the District should have known or suspected that A.V. had a disability that substantially
limited a major life activity.
* * *
For the reasons stated above, the Court finds that the District did not violate its child find
obligation to identify A.V. as a student in need of a Section 504 plan based on a disability that
substantially impacted a major life activity.
D. Adequacy of A.V.’s IEP
Last, the District argues that the hearing officer erred in determining that two of the IEP’s
goals were inadequate. (Doc. No. 13-2 at 19–24.) The first sought for A.V. to increase
compliance with directions and classroom routines to 60% of school periods per day over four
consecutive school weeks; her baseline for this goal, derived from the FBA, stated that A.V. was
non-compliant with 40% of requests. (Doc. No. 16 at ¶¶ 62, 63.) The second IEP goal sought
for A.V. to demonstrate on-task behavior without disruptions for 60% of her school periods per
day over four consecutive school weeks, and A.V.’s baseline was that she was off-task 24% of
the 30-second intervals observed. (Id. at ¶¶ 64, 65.)
The hearing officer found that these two goals were “somewhat puzzling in that the
expectation was no higher than the baseline, suggesting that they were not at all ambitious. . . .
[T]hese two goals did not expect any growth to achieve mastery and are therefore inappropriate.”
(Doc. No. 5-1 at 26.) The District argues that neither the hearing officer nor Plaintiffs cite to any
evidence that this alleged defect caused a “substantial harm” necessary to award compensatory
education, and that the hearing officer’s decision is unsupported by the record because
“[r]equiring [A.V.] to demonstrate consistent behavior every school day for 4 consecutive school
weeks is plainly more demanding than what she can do in a few hours of observation.” (Doc.
No. 13-2 at 20–21.) Conversely, Plaintiffs respond that these goals—which constitute two of the
four IEP goals—denied A.V. a FAPE because they “are unambitious and do no confer significant
learning and meaningful benefit to [A.V.].64” (Doc. No. 15 at 15.)
64 Plaintiffs also argue in their response to Defendant’s motion for judgment on the administrative record
that the IEP is deficient because it failed to address other behavioral concerns identified in A.V.’s ER, it
only included an “itinerant” level of emotional support, and it did not provide for “direct instruction”
from Ms. Gaffney, the special education teacher. (Doc. No. 15 at 15.) However, Plaintiffs did not raise
such arguments in their opening brief for their motion for judgment on the administrative record, and
raise only cursory references to these claims in response to the District’s argument regarding the two
Under both the IDEA and Section 50465, an IEP must be substantively66 appropriate. See
D.S. 602 F.3d at 564–65. To be substantively adequate, an IEP educational program must “be
appropriately ambitious in light of [the student’s] circumstances, just as advancement from grade
to grade is appropriately ambitious for most children in the regular classroom. The goal may
differ, but every child should have the chance to meet challenging objectives.” Endrew F., 580
U.S. at 402; see also H.L. v. Tri-Valley Sch. Dist., 3:20-CV01125, 2023 U.S. Dist. LEXIS 43169,
at *44 (E.D. Pa. Mar. 14, 2023) (citing K.D. v. Downingtown Area Sch. Dist., 904 F.3d 248, 254
(3d Cir. 2018)) (“[An IEP must] be reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s intellectual potential and individual
specific IEP goals. As such, these arguments were improperly raised, and the Court need not address
them. See L.M. v. Downingtown Area Sch. Dist., No. 12-CV-5547, 2015 U.S. Dist. LEXIS 49336, at *78
(E.D. Pa. Apr. 15, 2015) (citing Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994)) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a passing
reference to an issue . . . will not suffice to bring that issue before this court.”) (internal quotation marks
omitted); Benjamin A. v. Unionville-Chadds Ford Sch. Dist., No. 16-2545, 2017 U.S. Dist. LEXIS
128552, at *55 (E.D. Pa. Aug. 14, 2017) (same); Luciotti v. Borough of Haddonfield, No. 1:20-cv-3539,
2023 U.S. Dist. LEXIS 175165, at *9 n.3 (D.N.J. Sept. 29, 2023) (holding that the court would not
address the defendant’s arguments relating to three of the plaintiff’s claims which were included in the
defendants’ response brief to the plaintiff’s cross-motion for summary judgment, but not in the
defendants’ own motion for summary judgment); cf. Arrowood Indem. Co. v. Metallo Gasket Co., No. 09-
4914 (AET), 2011 U.S. Dist. LEXIS 128780, at *11–12 (D.N.J. Nov. 4, 2011) (holding that the
defendant’s affirmative defenses raised in opposition to the plaintiff’s motion for summary judgment
were improper because the defendant did not file a cross motion seeking affirmative relief in response to
the plaintiff’s motion).
65 Like the IDEA, Section 504 also has a separate FAPE requirement. 34 C.F.R. § 104.33(a). “The
obligation to provide a FAPE is substantively the same under Section 504 and the IDEA.” Upper Darby
Sch. Dist. v. K.W., Civil Action Nos. 22-cv-04343, -04347, 2023 U.S. Dist. LEXIS 129803, at *15 (E.D.
Pa. July 27, 2023) (citing Ridgewood, 172 F.3d at 253). “Adopting a valid IDEA IEP is sufficient but not
necessary to satisfy the § 504 FAPE requirements.” McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 912
(9th Cir. 2020) (quotation omitted); see also 34 C.F.R. 104.33(b)(2) (“Implementation of an
Individualized Education Program . . . is one means of meeting the [FAPE] standard.”).
66 A challenge to the content of an IEP’s goals is a substantive challenge, rather than a procedural one.
See H.G. ex rel. Davis v. Upper Dublin Sch. Dist., No. 13-cv-1976, 2015 U.S. Dist. LEXIS 51009, at *49
(E.D. Pa. Apr. 17, 2015).
abilities.”). “It follows that an IEP ‘must address any behavioral issues that prevent a child from
obtaining any meaningful benefit from the education provided.’” Id. at *45 (citation omitted).
Here, the Court agrees with the hearing officer’s conclusion and holds that the IEP denied
a FAPE to A.V. because the goals were not appropriately formulated to enable A.V.’s
meaningful educational benefits. Although the District argues that the IEP team determined that
demonstrating a skill consistently over a period significantly longer than the approximately
three-hour observation period was ambitious enough to enable A.V. to receive meaningful
education benefits (Doc. No. 13-2 at 21), it does not provide any record proposition for this
assertion, and the Court discerns no testimony from school teachers or administrators supporting
this rationalization for the formulation of IEP goals.67 The Court understands that A.V.’s
baselines were based on multiple hours of observation during the FBA (Doc. No. 16 at ¶ 67), but
fails to perceive any other purpose of the “baseline” if not to demonstrate A.V.’s overall
demeanor—in other words, the purpose of the FBA observation was to report a representative
sample of A.V.’s behaviors and to develop hypotheses and proposals to respond to the behaviors
(Doc. No. 4-9 at 21–24).
The hearing officer correctly noted that “an absence of a way to determine any progress
on [the goals] is more than a minor procedural flaw, and amounts to a substantive denial of
FAPE.” (Doc. No. 5-1 at 27.) Although the District argues that this conclusion is contrary to the
record because the school could measure progress through direct observation (Doc. No. 13-2 at
23), that supposed measurement of progress is misguided because the analysis would involve
67 Although the District argues that the hearing officer erred in not deferring to the IEP team’s
professional judgment (Doc. No. 13-1 at 22), the Court finds that the hearing officer appropriately
determined that the baseline data clearly does not support a finding that the IEP goals were ambitious in
any regard.
inconsistent units of measurement: only about three hours observation for the initial baseline,
but four weeks for the follow-up observation. For the District’s argument to hold water, A.V.
should have been observed for a consecutive four-week period for the initial observation. In
other words, comparing A.V.’s performance over a consecutive four-week period versus over a
three-hour period is essentially analogous to comparing the proverbial “apples and oranges.” As
such, the Court agrees that the District did not have an appropriate way to determine any
progress on A.V.’s goals.
The hearing officer correctly noted, “these two specific behaviors [without appropriate
goals] almost certainly impacted Student’s performance each and every school day to some
extent.” (Doc. No. 5-1 at 27.) Thus, because the District has the burden of challenging the
hearing officer’s conclusions, Ridley, 680 F.3d at 270, and because the relevant IEP goals
inherently were not ambitious, the Court finds the IEP could not have been “reasonably
calculated to enable the child to receive meaningful educational benefits in light of the student’s
intellectual potential and individual abilities,” finds a substantive denial of FAPE, and affirms
the hearing officer’s conclusion. H.L., 2023 U.S. Dist. LEXIS 43169, at *44. See also Matthew
B. v. Pleasant Valley Sch. Dist., 3:17-CV-2380, 2019 U.S. Dist. LEXIS 190226, at *33–35 (M.D.
Pa. Oct. 31, 2019) (holding the second IEP was substantively inadequate because the second IEP
repeated numerous goals from the previous IEP “despite the fact that Matthew had already nearly
mastered them” and thus was not “appropriately ambitious” enough to confer meaningful
educational benefits).68
68 Additionally, although evidence demonstrating the student’s improvement can demonstrate the
appropriateness of the IEP (Zachary J. v. Colonial Sch. Dist., No. 22-1509, 2024 U.S. App. LEXIS 2187,
at *13 (3d Cir. Jan. 31, 2024)), there is no formal data in the record from A.V.’s special education teacher
following implementation of A.V.’s IEP (HO-3 at 195:21–196:7), and the informal daily behavior charts
show variable behavior in April 2021 (Doc. No. 4-9 at 27–55, 57–64).
E. Compensatory Remedy
“The relief granted by courts under [the IDEA] is primarily compensatory education.”
Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 717 (3d Cir. 2010). “Compensatory education is
an appropriate remedy where a school district knows, or should know, that a child’s educational
program is not appropriate or that she is receiving only a de minimis benefit and fails to correct
the situation.” Tyler W. v. Upper Perkiomen Sch. Dist., 963 F. Supp. 2d 427, 438–39 (E.D. Pa.
Aug. 6, 2013) (citation omitted). “The amount of compensatory education is calculated by
finding the period of deprivation of special education services and excluding the time reasonably
required for the school district to rectify the problem.” Id. (citation omitted).
Here, the hearing officer awarded 30 minutes of compensatory education for each day
that the school was in session from March 28, 2021 through May 10, 2021 (A.V.’s last day
before her mother withdrew her from first grade), finding that “[b]ecause these two specific
behaviors [with inappropriate goals] almost certainly impacted Student’s performance each and
every school day to some extent, but balancing the flaw with the short time period that Student
attended school after IEP implementation without an opportunity for review and potential
rectification, the award must be modest.” (Doc. No. 5-1 at 27.) The Court finds no fault with the
hearing officer’s logic, and affirms the hearing officer’s grant of compensatory education
because the IEP was only deficient as to two of the four goals, see supra, and A.V. was
scheduled to join special education programming for 45 minutes per day (Doc. No. 4-10 at 129).
Thus, the Court finds that an award of 30 minutes of compensatory education per day from the
date of the IEP’s implementation to the day A.V. was removed from the District is appropriate.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for judgment on the administrative record is
denied, and the District’s motion is granted to the extent they seek to affirm the hearing officer’s
conclusions as to child find, but denied as to the hearing officer’s IEP conclusions. The hearing
officer’s decision is affirmed as to her determination that the District did not violate its child find
obligations, that the IEP was deficient in limited respects, and that Plaintiffs are entitled to 30
minutes of limited compensatory education for each day that school was in session from March
28, 2021 through May 21, 2021 to remedy the denial of FAPE. An appropriate Order follows.