Rayna P. et al. v. Campus Community School

Filing 58

MEMORANDUM. Signed by Judge Gerald A. McHugh on 8/10/2018. (crb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

RAYNA P., et al.,

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Plaintiffs,
v.
CAMPUS COMMUNITY SCHOOL,
Defendant.

McHUGH, J.

CIVIL ACTION
No. 16-63

August 10, 2018
MEMORANDUM

This is an appeal under the Individuals with Disabilities Education Act from a decision
by a Delaware Special Education Due Process Hearing Panel. Plaintiff Rayna is a student with
disabilities who transferred to Defendant Campus Community School (CCS), a charter school, at
the start of fourth grade. In her three years at CCS, health issues caused Rayna to be absent
nearly half the time, yet CCS provided only a handful of hours of home instruction. Eventually,
Rayna’s parents filed a Due Process complaint, claiming that the school had failed to provide a
free and appropriate public education as required by law. Upon review of the record, I am struck
by a profound inconsistency between the Panel’s findings in favor of Rayna, and the relief it
awarded. Despite its identification of multiple, serious deficits, it limited her relief to fifth and
sixth grades, awarded no compensatory education for days she attended school, and just one hour
for each of the many days she was absent. On appeal, the family challenges the sufficiency of
the Panel’s compensatory education award, while CCS asks that the Panel’s decision be
affirmed. Because I conclude that the Panel placed an improper time limit on Rayna’s award,
and provided no explanation for its decision not to compensate her for time she was in school

1

without an appropriate Individualized Education Program (IEP), I will modify certain aspects of
the compensatory education award and affirm the remainder of the Panel’s Order.
I. Background
Plaintiff Rayna P. is a child with learning disabilities, Attention Deficit Hyperactivity
Disorder (ADHD), and several persistent health issues, who transferred from Dover’s public
school district to Defendant Campus Community Schools, a charter school, to begin fourth grade
in September 2011. Despite Rayna missing all but thirty-two days from the start of the school
year through the end of January because of documented health issues, and even though records
from the school district showed she had special needs and required special services, CCS waited
until March 2012 (spring of fourth grade) to evaluate her.
Based on that evaluation, CCS determined that she did not qualify for an IEP but did
qualify for services under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, a
federal law that requires public and charter schools, as recipients of federal funding, to provide a
free and appropriate public education for children with disabilities. Rayna’s 504 Plan called for
certain accommodations in the classroom—like preferential seating, pairing verbal instruction
with written instruction, and the use of a privacy shield during independent work time—but did
not address frequent absences caused by her health problems. A year later, despite Rayna having
missed even more days in fifth grade than in fourth, the school continued her 504 Plan, and in
fact eliminated certain accommodations.
Just as Rayna’s sixth grade year began, she contracted pertussis and could not attend
school from August 2013 through the end of January 2014. Despite doctor’s notes and a request
for instruction at home, CCS provided Rayna only 12.25 hours of homebound instruction during
this extended absence of nearly five months. Rayna continued to struggle academically when

2

she returned to school in the second part of the year, and in April 2014 her family hired, at their
own expense, a certified special education teacher to work with Rayna privately.
In May 2014, Rayna’s family requested an independent educational evaluation funded by
CCS, which the school approved. The evaluator concluded that Rayna had ADHD, short term
and working memory deficits, a Learning Disability in Reading, executive functioning deficits,
and extremely poor handwriting. Based on the evaluator’s report, CCS determined for the first
time that Rayna qualified for an IEP under the “Specific Learning Disability” and “Other Health
Impairment” classifications of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1414. The IEP Plan, finalized on May 27, 2014, just before the end of Rayna’s sixth grade
year, provided for some of the same accommodations that had been part of her 504 Plan,
determined that she did not need summer instruction through the extended school year program
(ESY), and did not include a plan to support Rayna through her frequent absences.
Instead of sending Rayna back to CCS for seventh grade, her family withdrew her from
the school in September 2014, opting to homeschool her with the help of the private tutor they
paid. On July 31, 2015, the family filed an administrative Due Process complaint against CCS
seeking full days of compensatory education [hereinafter “comp. ed.”] for CCS’s failure to
provide a free appropriate public education (FAPE) to Rayna in her three years there, in violation
of its duties under the IDEA. Pursuant to Delaware’s IDEA structure, her complaint went
directly to a three-member Due Process review panel [hereinafter “the Panel”]. Rayna’s panel,
which consisted of a special education expert, a lay person, and an attorney, heard two days of
testimony and argument. Based on that evidentiary hearing and a voluminous documentary
record, the Panel issued a forty-page decision on November 6, 2015 granting some limited
compensatory education to Rayna and requiring CCS to improve its IDEA compliance

3

schoolwide. Order and Op. 40, ECF No. 18 at 45 [hereinafter “Op.”].
The Panel based its decision on the following core findings:


CCS did not meet its Child Find obligations1 to timely identify and evaluate Rayna;



When CCS eventually evaluated Rayna, the evaluation report was “insufficiently
comprehensive” to identify her special education and service needs;



The 504 Plan was inadequate to meet her needs for meaningful educational progress;



CCS did not place Rayna in the Least Restrictive Environment;2



The IEP did not adequately meet Rayna’s needs for meaningful educational progress;



CCS did not provide sufficient homebound instruction during Rayna’s long pertussis
absence.

Id. at 29–30. In its Opinion, the Panel set forth detailed reasoning behind some of its findings,
but no rationale at all for others. I review the Panel’s basis for each holding in turn.
As the basis for its conclusion that CCS failed to timely evaluate Rayna, the Panel
explained that the records from Rayna’s prior school should have put CCS on notice of several
issues: that she had decreased visual motor skills, sensory processing skills, and self-care skills
sufficient to require weekly occupational therapy; that she was receiving therapy for a “sensory
integration disorder”; that she had a diagnosis of ADD and did not read well, was not persisting
with tasks, was rushing and distracted, had difficulty following rules and routines, and needed
extra explanations; that she was receiving daily intervention and extra help after school for

1
The IDEA requires states to identify and evaluate all children with disabilities “who are in need of
special education and related services” and develop and implement a “practical method” to ensure that
they receive those services. 20 U.S.C. § 1412(a)(3)(A); see 34 C.F.R. 300.111(a)(1) and 14 Del. Admin.
Code § 923(11.0) (both implementing the IDEA’s Child Find requirement).
2

Under the IDEA, states must ensure that children with disabilities receive a free and appropriate public
education in the “least restrictive environment,” meaning that they must not be unnecessarily separated
from children who are not disabled. 20 U.S.C. § 1412(a)(5)(A); 14 Del. Admin. Code § 923(14.0)
(implementing the IDEA’s LRE requirement).
4

reading, and had a reading specialist; that she had a list of health problems and had missed
fifteen days of school; and that she was “working below grade level” and in danger of not
advancing to the next grade. Id. at 32. With all of this knowledge about Rayna, the Panel
concluded, CCS should have evaluated her by late September 2011 (instead of in March 2012).
Id. The Panel explained that, based on the records alone, “it was already clear that [Rayna] had
several issues and [there was] no indication that the new environment could possibly do away
with all these issues of [sic] itself.” Id. at 32–33. CCS should have been developing a plan for
Rayna far earlier, the Panel emphasized—“especially as her issues began to show in the
classroom.” Id. at 33. Additionally, the Panel found that Rayna’s repeated, excused absences
early in her fourth grade year “should have triggered a Child Find Duty for Other Health
Impairment.” Id.
Moving chronologically through Rayna’s time at CCS, the Panel next explained why,
when CCS finally evaluated Rayna six months into fourth grade, the evaluation was inadequate.
Although it is not clear from the Opinion what aspects of the evaluation the Panel found
incomplete, the Panel specified that even the March 2012 evaluation gave CCS enough
information to determine that Rayna needed an IEP because she fell within the learning disability
and/or Other Health Impairment disability categories. Id. at 35. As a child with a learning
disability, Rayna would have satisfied both categories, but her frequent illnesses should have
made the Other Health Impairment classification “particularly obvious” to CCS. Id. at 36.
This determination by the Panel—that Rayna should have been given an IEP from the
beginning of her time at CCS—formed the basis for the Panel’s holding that the 504 Plan was
inadequate. Id. at 36–37 (“[CCS] had reason to suspect that [Rayna] might need an IEP upon
consideration of the prior District’s records . . . .”). In addition to CCS’s knowledge of Rayna’s

5

ADD diagnosis, the school also knew of her increasingly frequent absences, which the 504 Plan
did nothing to address. Id. Relatedly, the Panel seems to have found Rayna’s 504 Plan
inadequate on another basis: CCS did not place Rayna in the least restrictive environment.
Specifically, the Panel explained that Rayna’s “frequent illnesses and absences should have
shown [CCS] that some combination of the regular classroom and at home instruction were
appropriate” for Rayna, and that the appropriate placement “would necessarily involve one on
one instruction” at home. Id. at 37.
The Panel found similar inadequacies in Rayna’s IEP, created at the end of her sixth
grade year. First, the Panel explained that there were “gaps” in Rayna’s education dating back to
second grade and including the time she spent at CCS—gaps that the school was not aware of
and which the IEP made no attempt to fill. Id. Because the IEP did not include a plan to get
Rayna “up to grade level,” the Panel determined that she was unlikely to benefit from it, even
had she stayed at CCS for seventh grade and the IEP had been fully implemented. Id. The IEP
“contained little that was new” from the 504 Plan, other than a plan for small group instruction.
But the IEP did not provide for home instruction or any other plan to deal with her frequent
absences, and the Panel pointed out that Rayna could not “benefit from small group instruction
any more than regular classroom instruction when she is not in school.” Id. That the IEP was so
similar to the (inadequate) 504 Plan, under which Rayna had “developed gaps in her education,”
did “not augur well for the IEP,” the Panel concluded. Id. at 38.
In addition to the Panel’s broad finding that CCS had failed to provide home instruction
sufficient to meet her special educational needs, it specifically found that the limited homebound
instruction Rayna received during her long pertussis absence was inadequate. She received only
12.25 hours over the five-week period, whereas the Panel concluded that she should have

6

received forty hours—one hour per day she was absent. Id. at 38–39 (presumably relying on
Delaware regulations, 14 Del. Admin. Code 930(3.0), which mandate that sixth grade students
eligible for homebound instruction receive at least five hours for each week they are absent).
Based on these factual and legal findings in Rayna’s favor, the Panel awarded her one
hour of compensatory education, at a rate of $75 an hour, for each of the 233 days she was
absent from school and required CCS to improve its IDEA compliance—the Panel awarded no
comp. ed. for days she attended school. Id. at 40. The Panel purported to limit its relief to May
27, 2012, two years before May 27, 2014, the date the Panel identified as when Rayna’s family
knew or should have known of Rayna’s educational rights.3 Id. Rayna’s family filed a Request
for Clarification of the Panel’s Order, asserting that the Panel had misapplied recent Third
Circuit law when it put a two-year cap on Rayna’s relief. ECF No. 18-1 at 337–345. The Panel
summarily denied the request. Order, ECF No. 18-1 at 332.
The family then filed this timely appeal, challenging only the compensatory education
aspect of the Panel’s Order. The family argues that Rayna is entitled to full days of
compensatory education for each day she was enrolled at CCS—for her entire fourth, fifth, and
sixth grade years, when she was in school and absent—and an additional twenty hours per week
for the three summers when they argue Rayna should have been enrolled in the eight-week

3
The Panel’s Order is confusing on this point. The Panel wrote that it would award one hour of comp.
ed. for every day Rayna was absent between May 27, 2012 (two years before the “knew or should have
known” date in the spring of Rayna’s fourth grade year) and April 1, 2014, plus an additional 37 hours for
the days she was absent with pertussis, less the 12.25 hours of homebound instruction she already
received—all at a rate of $75 per hour. Op. 40. First, this calculation seems to count Rayna’s pertussis
absences twice, awarding two comp. ed. hours for those days and one hour for all the other absences, with
no explanation. More confounding, though, is that the Panel went on to award one hour for every day of
absence (double counting for the pertussis absences) for Rayna’s entire tenure at CCS—her full fourth,
fifth, and sixth grade years. Thus, although the Panel purported to limit Rayna’s relief to two years before
the “knew or should have known” date, it in fact awarded comp. ed. back to 2011—including a school
year of comp. ed. outside the two year cap. CCS acknowledges this dissonance, noting that the Panel “did
not actually restrict the award to that [two-year] time frame,” and has made no argument to so limit the
award. See Def.’s Mot. 11 n.2.
7

extended school year program (ESY). Pls.’ Mot. J. Admin. R. 39, ECF No. 49 [hereinafter “Pls.’
Mot.”]. CCS filed its own motion to affirm the Panel’s Opinion and Order in full. Def.’s Mot.
Aff. Decision, ECF No. 50 [hereinafter “Def.’s Mot.”]. For the reasons set forth below, both
motions will be granted in part and denied in part.
II. Standard
In an IDEA appeal from a Due Process administrative proceeding, the reviewing court
must base its decision on the preponderance of the evidence and may “grant such relief as the
court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii); 34 C.F.R. § 300.516(c)(3).
Unlike judicial review of most other agency actions, in which district courts apply a “highly
deferential standard of review,” courts reviewing IDEA appeals “must decide independently
whether the requirements of the IDEA are met.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 757
(3d Cir. 1995). The Supreme Court has described the IDEA’s legislative history as an
“unusually clear indication that Congress intended courts to undertake substantive review instead
of relying on the conclusions of the state agency.” Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 217 (1982) (citing S. Rep. No. 94-455, at 50 (1975) (Conf. Rep.)).
But the Supreme Court has also cautioned that the IDEA’s preponderance of the evidence
standard is not an “invitation to the courts to substitute their own notions of sound educational
policy for those of the school authorities they review.” Id. at 206. Focusing on the IDEA’s
requirement that the reviewing court receive the administrative record from the state proceeding,
§ 1415(i)(2)(C)(i), the Supreme Court in Rowley held that district courts are bound by an
“implied requirement that due weight shall be given to these proceedings.” Id. Rowley’s “due
weight” pronouncement left lower courts to determine “how much weight is ‘due.’” Susan N., 70
F.3d at 757. In the decades since, the Third Circuit has fleshed out what it means to “give due

8

weight and deference” to the findings of a hearing officer or panel, dubbing it a “modified de
novo” review:
[W]e must accept the state agency’s credibility determinations unless the nontestimonial, extrinsic evidence in the record would justify a contrary conclusion.
The statute of limitations claims and Plaintiffs’ claims for compensatory
education [] are subject to plenary review as conclusions of law. But . . . whether
the School District fulfilled its FAPE obligations [is] subject to clear error review
as [a] question[] of fact. Such factual findings from the administrative
proceedings are to be considered prima facie correct, and if we do not adhere to
those findings, we must explain why.
D.K. v. Abington Sch. Dist., 696 F.3d 233, 243 (3d Cir. 2012) (citations and original brackets
omitted); accord Susan N., 70 F.3d at 758 (holding that a reviewing district court may not ignore
the administrative agency’s findings, but must instead consider them “carefully and endeavor to
respond” and, “after such consideration, the court is free to accept or reject the findings in part or
in whole”). Where a hearing decision lacks “reasoned and specific findings,” there is less for
district courts to consider and the administrative decision therefore deserves “little deference.”
Reid ex rel. Reid v. D.C., 401 F.3d 516, 521 (D.C. Cir. 2005).
III. Analysis
Plaintiffs’ appeal raises three core challenges to the Panel’s decision, all relating to the
amount of compensatory education Rayna should receive. First, they contend that the Panel
made an error of law when it purported to cap Rayna’s relief at two years before the date on
which, according to the Panel, her family knew or should have known of her educational rights.4
Pl.’s Mot. 32–35. Second, they argue that the award—one hour of comp. ed. for each day Rayna
was absent—was insufficient in light of the Panel’s determination that CCS failed to comply
with the IDEA throughout Rayna’s three years there. Id. at 36–38. Finally, the family claims that

4
The Panel referred to this as the “KOSHK date” and I will call it the “reasonable discovery date,”
borrowing the Third Circuit’s language. See G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 604
n.2 (3d Cir. 2015).
9

Rayna should have received ESY services while at CCS, and is therefore entitled to comp. ed.
for the three summers of missed ESY. Id. at 38–39. As explained below, Plaintiffs are correct
that the Panel imposed an improper time limit on the award, and, although I will not grant the
full extent of the relief Plaintiffs seek, I agree that certain aspects Rayna’s comp. ed. award, as
one of the Panel’s legal conclusions, should be modified to harmonize it with the administrative
record and the Panel’s own, well-reasoned factual findings.
A. Permissible Time Frame for Relief
The Panel identified May 27, 2014 as the date on which Rayna’s family knew or should
have known of her education rights—the reasonable discovery date—and concluded that her
relief should be capped at two years before that date (May 27, 2012).5 Plaintiffs do not challenge
the Panel’s designation of May 27, 2014 as the reasonable discovery date, a factual finding.
They object only to the Panel’s legal conclusion that her relief can extend back only two years
beyond that date, effectively depriving her of relief for her fourth grade year. As this argument
turns on a purely legal question my review is plenary and, because of clear Third Circuit
precedent, I easily conclude that Plaintiff’s relief should not have been capped.
Until recently, it was unsettled in this circuit whether the IDEA placed a retrospective
time cap on relief. Some courts construed two provisions of the statute as creating a “2+2”
remedy cap,6 which not only required plaintiffs to lodge their due process complaint within two

5
As mentioned above, the Panel stated that it would cap the award at this date, but went on to award
comp. ed., in the form of one hour for each missed day, going back three full school years. I am aware of
this internal inconsistency in the Panel’s Opinion but nevertheless address the remedy cap, since it is a
legal issue that remains relevant as I consider whether to affirm or modify the award.
6

Those provisions are § 1415(b)(6)(B) (“The procedures required by this section shall include . . . [a]n
opportunity for any party to present a complaint . . . which sets forth an alleged violation that occurred not
more than 2 years before the date the parent or public agency knew or should have known about the
alleged action that forms the basis of the complaint . . . .”) and § 1415(f)(3)(C) (“A parent or agency shall
10

years after the reasonable discovery date, but also limited their potential relief to two years
before that date—thereby bookending the potential relief available to plaintiffs at a maximum of
four years. See Ligonier Valley, 802 F.3d at 607 (3d Cir. 2015) (listing cases that adopted this
view, including Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d 584, 596
(M.D. Pa. 2014)). Recognizing the uncertainty in this area, and that the issue was an “important,
controlling, and recurring” one in IDEA cases, the Third Circuit addressed the question in
Ligonier Valley. Id.
In that case, the Third Circuit made clear that there is no retrospective limit on relief
under the IDEA. Id. at 625–26. After a careful analysis of the statute and its legislative history,
the Ligonier Valley Court concluded that the two provisions in question merely “reflect the same
two-year filing deadline” for Due Process complaints and that neither provision “in any respect
alters the courts’ broad power under the IDEA to provide a complete remedy for the violation of
a child’s right to a free appropriate public education.” Id. at 604–05. The Court emphasized the
breadth of relief under the IDEA:
The statute of limitations goes only to the filing of the complaint, not the
crafting of remedy. This is important because it is only fair that if a school
district repeatedly failed to provide services to a child, they should be required to
provide compensatory services to rectify this problem and help the child achieve
despite the school’s failings.
Therefore, compensatory education must cover the entire period and
must belatedly provide all education and related services previously denied
and needed to make the child whole.
Id. at 324 (emphasis in original) (citing portions of Senator Harkin’s remarks prior to the
final passage of the current statute of limitations language, 150 Cong. Rec. S11851 (daily

request an impartial due process hearing within 2 years of the date the parent or agency knew or should
have known about the alleged action that forms the basis of the complaint . . . .”).
11

ed. Nov. 24, 2004)).7 In so holding, the court explicitly rejected the “2+2” remedy cap
interpretation adopted in Jana K. as a “problematic reading” of the law. Id. at 614–15.
The Panel issued its Opinion and Order in Rayna’s case on November 6, 2015—less than
two months after the Third Circuit published Ligonier Valley—and the Panel likely began
drafting the forty-page Opinion well before that. In limiting Rayna’s relief to two years before
the reasonable discovery date, the Panel relied exclusively on Jana K., with no citation to
Ligonier Valley. This suggests that the Panel was unaware of Ligonier Valley, or at least
unaware of its import in this case.8 Whatever its reason, the Panel did not apply the Third
Circuit’s clear rule, and as a result, improperly limited Rayna’s relief. I accordingly reverse the
Panel’s legal conclusion on this point, and hold that Rayna’s relief is not limited by any
retrospective remedy cap, but is instead available for the duration of CCS’s denial of a FAPE.
B. Compensatory Education over Three Years of IDEA Non-Compliance
Plaintiffs next challenge the Panel’s decision to award compensatory education of only
one hour for every day Rayna was absent, and ask that I modify the Panel’s award by granting
full days of comp. ed. for every day Rayna was enrolled at CCS (regardless of whether she was
present or absent) and an additional twenty hours per week for three summers of the eight-week
ESY program. Although I will not grant the full relief Rayna’s family seek, I agree that the
administrative record and the Panel’s own, detailed factual findings show that she was denied a
FAPE during her fourth, fifth, and sixth grade years at CCS. Accordingly, I will amend the

7
Senator Harkin’s remarks are also documented at 150 Cong. Rec. S11547 (daily ed. Nov. 19, 2004).
8
This is so despite Plaintiffs’ prompt efforts to inform the Panel of the Ligonier Valley holding, and its
relevance to Rayna’s case, in both their closing argument and post-hearing request for clarification. See
Pls.’ Mot. Clarification 1, 3, 8, ECF No. 18-1 at 337–345 (“[T]he family seeks clarification on the scope
of the remedies outlined in the Order in light of . . . the very significant [Ligonier Valley] ruling, which
made clear that a party who timely files an IDEA complaint is entitled to remedies for the entire violation
period. This Hearing Panel’s clarification is important not only for this case, but for all families in
Delaware who seek to enforce their child’s civil rights under the IDEA and pursue remedies extending
beyond 2 years, which is no longer the cap.”).
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comp. ed. award, without overturning any of the Panel’s factual findings, so that Rayna is made
whole through compensation for days she attended CCS, and for her frequent absences, all
without a plan in place to ensure appropriate progress.
The Panel’s comp. ed. award is a conclusion of law subject to plenary review on appeal.
See D.K., 696 F.3d at 243. The Supreme Court and the Third Circuit have long held that the
IDEA “should be interpreted expansively to provide a comprehensive remedy for children
deprived of a FAPE,” and that those children have a right to comp. ed. as one form of relief.
Ligonier Valley, 802 F.3d at 618–19; see also Perry Zirkel, The Two Competing Approaches for
Calculating Compensatory Education Under the IDEA, 339 Ed. Law Rep. 10 (2017) (calling
compensatory education the “primary remedy” under the IDEA for parents who prove that their
children have been denied a FAPE). There are different approaches to calculating comp. ed.
across the circuits, and the Third Circuit has been described as the “primary locus” of the onefor-one approach, also called the quantitative approach. See Zirkel, Two Competing Approaches,
supra, at 11; see also Reid, 401 F.3d at 522 (listing the circuits, including the Third, that embrace
this approach). In this circuit, children deprived of a FAPE are entitled to compensatory
education “for a period equal to the period of deprivation, but excluding the time reasonably
required for the school district to rectify the problem.” Ligonier Valley, 802 F.3d at 618–19. As
explained above, this approach seeks to fulfill Congress’s goal that children deprived of a FAPE
be made “whole” through a compensatory education award that “provide[s] all education and
related services previously denied and needed.” Id. at 624.
To decide the appropriate comp. ed. award in Rayna’s case, then, I must first determine
whether and for how long she was denied a FAPE. Last year, the Supreme Court clarified that
states satisfy their obligation to provide a FAPE to a disabled child only when the child’s IEP—

13

the “centerpiece of the statute’s education delivery system”—is “appropriately ambitious in light
of [the child’s] circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct.
988, 1000 (2017). The Supreme Court rejected the older “more than de minimis” standard,
saying: “The IDEA demands more. It requires an educational program reasonably calculated to
enable a child to make progress appropriate in light of the child’s circumstances.”9 Id. at 1000–
01.
In an appeal like this, the related issues of FAPE denial and whether an IEP is appropriate
are both questions of fact that are considered prima facie correct. D.K., 696 F.3d at 243; D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010). The Panel’s finding that a FAPE10 was
denied is well supported: CCS should have evaluated Rayna for an IEP by late September 2011;
when CCS finally evaluated her six months later, the evaluation was insufficient to identify her
needs; despite the inadequate evaluation, the school still should have known that she needed an
IEP based on her health problems and learning disabilities; the 504 Plan was not calculated to
ensure “meaningful educational progress”; Rayna was inappropriately placed, needed one-onone instruction and more home instruction, and was not in the least restrictive environment; and
finally, the IEP the school finally created late in her sixth grade year was, like the 504 Plan, not
calculated to ensure meaningful progress. I find each of these factual findings well-reasoned and
supported by the administrative record, and agree that Rayna was denied a FAPE starting in late
September of her first year at CCS—specifically, September 23, 2011, the date the Panel
determined a meeting about Rayna should have taken place.

9
I note that the Panel decided Rayna’s case before Endrew, and applied the lower, “more than de
minimis” standard for the adequacy of an IEP. See Op. 29. It nonetheless concluded that her IEP was
inadequate. Id. at 37.
10

The Panel did not explicitly use the term FAPE, but its findings as to lack of “meaningful progress”
applies the controlling standard in Delaware, and the Panel’s remedy depends upon the denial of a FAPE.
14

Because the Panel’s factual findings demonstrate a FAPE denial of almost three full
school years, I can see no basis for the Panel’s ultimate decision to deny Rayna compensatory
education for days she attended school.11 Based on the record and the Panel’s factual findings
showing that Rayna had gaps in her education dating back to second grade, had a specific
learning disability in reading, ADHD, and memory deficits, and needed a small group
instructional setting with frequent one-on-one help, I conclude that she was denied a FAPE on
days she attended CCS, not just on those days she was absent. The paltry home instruction she
received—just twelve hours over 233 days of absences in three years—surely exacerbated her
need for appropriate supports in school. Missing nearly half of all school days over three years
would keep any child from progressing. But the record suggests that adequate home instruction
alone would not have cured Rayna’s problems; her learning disability, memory problems, and
other issues would still have required a carefully tailored IEP to ensure appropriate progress. I
will therefore award full days of comp. ed. for every day Rayna attended school between
October 23, 2011, and her last day at CCS.12
As to the days that Rayna was absent, the Panel did not explain the reason for its award
of one hour per day. The regulatory minimum under Delaware law is one hour per day missed
for sixth graders, and lower still for fourth graders. See 14 Del. Admin. Code 930(3.1.1.1). It
might be that the Panel had this benchmark in mind. But given the large number of absences,
and the vanishingly small level of tutoring Rayna received, one hour per day hardly

11
Although compensatory education award is a question of law on which I need not defer to the Panel’s
decision, I note that it is impossible in this case even to consider the Panel’s reasoning behind the award,
because it provided none. Unlike the Panel’s factual findings, which it supported with great detail from
hearing testimony and the record, the Panel announced its comp. ed. award in a single paragraph and with
no explanation.
12

Ligonier Valley requires that any comp. ed. award exclude “the time reasonably required for the
[school] . . . to rectify the problem,” once the student’s need is identified. I have therefore credited
Defendant with thirty days’ response time. See 802 F.3d at 619.
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compensates. On the other hand, the seven hours per day her counsel requests is excessive. The
record shows that Rayna was very unwell on many of the days she was absent, suggesting that
she simply would not have been able to work with a home instructor for long periods. Her
mother testified that Rayna was “in bed” for three months when she had pertussis, had to take
frequent trips to the doctor or hospital, and that even minor illnesses like the common cold
affected five of Rayna’s pre-existing diagnoses. Op. 18, 21 (explaining that respiratory illnesses
makes Rayna wheeze so that she needs inhalers and sometimes oxygen; and that “[c]oughing
causes vomiting, which in turn slows down eating”). Given that reality, on many days tutoring
would have been fruitless. Furthermore, an award of seven hours per day—equivalent to
attendance in school, overlooks the fact that intensive, focused, one-on-one tutoring provides
concentrated educational value more efficiently than a classroom. Although there is no formula
established by precedent, I conclude that 2.5 hours of compensatory education for each day
Rayna was absent represents an average that strikes the appropriate balance between necessity
and utility.
C. Extended School Year
As to Plaintiff’s claim for comp. ed. for three summers of extended school year (ESY),
colloquially known as summer school, I see no basis to reverse the Panel’s decision. ESY is
required where failure to do so would deprive a student of a FAPE, meaning that it is required
when a student cannot make meaningful progress on IEP goals without it. 34 C.F.R.
§ 300.106(a)(2); 14 Del. Admin. Code 923(6.0). The Panel found that Rayna’s IEP was
inadequate for several reasons, including its failure to plan for her frequent illnesses and to
ensure that her services and supports closed the gaps in her education—but it did not identify
failure to provide for ESY as a deficit. Presumably, had Rayna’s regular school year been
guided by a proper IEP that provided her with the FAPE to which she was entitled, an extended
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school year would have been unnecessary. Given that I am awarding a full seven hours for days
she was in school and 2.5 hours for days she was absent, it would be duplicative to order further
comp. ed. now for what would have constituted remedial education at the time.
IV. Modified Compensatory Education Award
Rayna’s compensatory education award will be modified as follows: as compensation for
nearly three years of FAPE denial, she is entitled to one full day of comp. ed. for every day she
was present in school, and 2.5 hours for each day she was absent,13 from October 23, 2011
through her withdrawal from CCS in 2014. As originally ordered by the Panel, this award is at
the rate of $75 per hour, and “CCS is ordered to pay it within 30 days.” Op. 40. I will also grant
the family’s request and direct CCS to place all compensatory education funding into a thirdparty trust for Rayna, to be spent on her education. See D.F. v. Collingswood Borough Bd. of
Educ., 694 F.3d 488, 498 (3d Cir. 2012). All other aspects of the Panel’s Order remain in place.

/s/ Gerald Austin McHugh
United States District Judge

13
I will not reduce the number of homebound comp. ed. by 12.25 hours, as the Panel did, because those
hours were provided without an appropriate IEP in place.
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