K.D. et al v. DOWNINGTOWN AREA SCHOOL DISTRICT

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 8/31/2017. 9/1/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
K.D., a minor, by and through her
parents, THERESA DUNN and
JONATHAN DUNN,
Plaintiff,
v.
DOWNINGTOWN AREA SCHOOL
DISTRICT,
Defendant.

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 16-0165

MEMORANDUM
STENGEL, C.J.
I.

August 31, 2017

INTRODUCTION
This is a case brought under the Individuals with Disabilities Education Act, 20

U.S.C. § 1400 et seq. (IDEA) by parents of a young girl with a learning disability. 1 The
parents took their daughter, K.D., out of a public school district and placed her in private
school. They then sought reimbursement from the school district for K.D.’s private
school tuition, arguing the school district denied K.D. a free and appropriate public
education. A Hearing Officer denied the parents’ requested relief. Thereafter, the parents
commenced this action.

1

The parents also bring claims under Section 504 of the Rehabilitation Act, 29
U.S.C. § 794 (RA) and the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq.
(ADA).
1

II.

BACKGROUND
In 2011, K.D., a young girl, began kindergarten at Pickering Valley Elementary

School in Chester Springs, Pennsylvania. Pickering Valley Elementary School is within
the Downingtown Area School District. (Doc. No. 1-4, Findings of Fact at 4 ¶ 4)
[hereinafter “FF”]. 2 About halfway through K.D.’s kindergarten year, the School District
began providing K.D. with an Instructional Support Team (“IS Team”). (FF at 4 ¶ 5). The
IS Team was provided to more closely monitor K.D.’s educational progress. (Id. at 4 ¶ 5).
It also gave K.D. support and instruction. (Id.).
In April of K.D.’s kindergarten year, K.D.’s parents met with K.D.’s IS Team. (Id.
at 4 ¶ 6). Both the parents and IS Team agreed that a special education evaluation was
needed for K.D. (Id.). A school psychologist recommended they wait to evaluate K.D.
until after she finished kindergarten because some of the relevant tests are not designed to
be administered to students until after kindergarten. (Id. at 4 ¶ 8). The parents agreed to
wait. (Id.).
Thereafter, the School District evaluated K.D. (Id. at 4 ¶ 1). The School District
met with K.D.’s parents and gave them an evaluation report. (Id.). This report included
remarks from a classroom observation, 3 input from K.D.’s kindergarten teachers, parental

2

Prior to this action being filed, there was a Special Education Hearing conducted
by the Downingtown Area School District regarding K.D. Both parties rely on the
Special Education Hearing Officer’s findings of fact to support their motions. As
acknowledged by the Hearing Officer and the parties, the facts are largely agreed upon.
The disagreement largely lies in the application of law to these facts.
3

This classroom evaluation occurred on April 30, 2012. (FF at 4 ¶ 2).
2

input, and a summary of K.D.’s academic performance. (Id. at 4 ¶ 2). K.D’s academic
performance was recorded as “low.” (Id.).
A School District psychologist also evaluated K.D.’s cognitive ability. (Id. at 4 ¶
3). She did this using the Wechsler Intelligence Scale for Children (“WISC-IV”). (Id.).
K.D.’s overall IQ score was in the “low average” range. (Id.). K.D. scored “average” in
verbal comprehension and working memory. (Id.). K.D.’s perceptual reasoning and
processing speed were assessed at the “borderline” range. (Id.). The psychologist
determined that K.D. met the diagnostic criteria for Attention Deficit Hyperactivity
Disorder (“ADHD”). (Id. at 4 ¶ 4).
In addition to the WISC-IV, the School District had K.D.’s parents and teachers
complete a Behavior Rating Inventory of Executive Functioning (“BRIEF”). (Id. at 4 ¶
5). The BRIEF was developed in 2000 to assess the executive functioning of children
ages 5 to 18. It is an 86-item questionnaire, usually filled out by parents and teachers
alike. K.D.’s parents’ and teachers’ responses to the BRIEF indicated K.D. had clinically
significant T-Scores on several scales. 4 (Id.).
The School District also had K.D.’s teachers complete a Behavioral Assessment
System for Children (“BASC-2”) test. (Id.). Similar to the BRIEF, the BASC-2 measures
a child emotionally and behaviorally. The results of K.D.’s BASC-2 suggested K.D. had
difficulty with impulsivity and organization. (Id.).

4

A BRIEF produces several different types of scores or summaries. One of these
types—a “T-Score”—measures a child’s individual scores relative to other children’s
scores in the relevant demographic. In other words, it looks at how the child is doing
compared to other children.
3

In addition to the BASC-2 and WISC-V, the School District psychologist also
used select subtests from the Wechsler Individual Achievement Test (“WIAT-III”). (Id.
at 5 ¶ 6). K.D. scored “average” on the oral language composite, “below average” in total
reading and basic reading, and “extremely low” in early reading skills. (Id.). With
specific regard to the Oral Reading Fluency subtest, a score could not be obtained
because K.D. was not able to read the passages presented. (Id. at 5 ¶ 7). K.D. scored
“below average” in math and written expression. (Id. at 5 ¶¶ 8–9).
Based on all the above, the School District concluded that K.D. qualified for
special education services. (Id. at 5 ¶ 10). The School District found K.D. to have a
primary disability category of Specific Learning Disability (“SLD”) and a secondary
category of Other Health Impairment (“OHI”). The following facts, which delve into the
School District’s conduct and K.D.’s progress, form the basis for the instant action.
A.

The First Individualized Education Program (“IEP”)

On September 14, 2012, the School District offered K.D. an Individualized
Education Program (“IEP”), which K.D.’s parents signed and approved. (FF at 5 ¶ 12). 5
The IEP was also signed by Ms. Suzanne Bargmann (K.D.’s regular education teacher)
and Ms. Lindsay Smith (K.D.’s special education teacher). (Doc. No. 13-3, Sept. 2012
IEP) [hereinafter “First IEP”]. This IEP was designed for K.D.’s first-grade school year.
The IEP contained measureable annual goals tailored toward helping K.D. in the
following areas: (1) letter naming and letter sound frequency, (2) letter writing, (3)
5

An IEP, required by federal law, is “a written statement for each child with a
disability that is developed, reviewed, and revised in accordance with” various
guidelines. 20 U.S.C. § 1414(d)(1)(A)(i).
4

rhyming, (4) reading comprehension, (5) writing, (6) starting and completing tasks, (7)
math facts, and (8) math calculation. (First IEP at 13–17). The IEP also contained
specifically designed instructions (“SDIs”). For example, the IEP provided K.D. with
extended time for quizzes and tests, audio books, a “think aloud, visual imagery”
approach for text recall, and testing in a quiet location. (Id. at 18–19). The IEP provided
K.D. with three hours per school day of learning support instruction. (FF at 5 ¶ 16).
B.

K.D.’s First-Grade School Year

With the first IEP in place, K.D. began first grade at Pickering Valley Elementary
School. She spent part of her time in class with Ms. Smith (special education) and part of
her time in class with Ms. Bargmann (regular education).
The IEP was informally modified in January 2013 by Ms. Smith. (FF at 6 ¶ 17).
Ms. Smith changed K.D.’s homework and gave her a packet of stories in an attempt to
help improve K.D.’s reading and letter-naming skills. (Id.). During K.D.’s first-grade
year, the School District determined that K.D. qualified for extended school year
services. (Id. at 6 ¶ 18). The School District offered this service hoping it would prevent
K.D. from regressing over the summer into second grade. (Id.).
In the Spring of K.D.’s first-grade year, Ms. Smith became concerned with K.D.’s
visual and motion skills. (Id. at 6 ¶ 19). Therefore, the School District requested an
Occupational Therapy screening of K.D. with a private agency. (Id.). A week later,
K.D.’s IEP team reconvened to add extended school year services to her IEP.
Specifically, the School District offered three hours of academic support, three days a
week, from July 1, 2013 to August 1, 2013. (Id. at 6 ¶ 20).
5

In June of K.D.’s first-grade year, the IEP team reconvened to develop a new IEP
for K.D.’s second-grade year.
C.

The Second IEP

To formulate a second IEP, in June 2013, the IEP team gathered updated data and
information from K.D.’s teachers. (FF at 6 ¶ 22).
Like with the first IEP, this second IEP also had measurable annual goals. (Id.).
The goal for K.D.’s letter naming and sound frequency remained the same, but her
baseline rose from 11 to 24. (Id.). K.D.’s letter writing, rhyming, starting and completing
tasks, and math goals remained the same. (Id.). K.D.’s reading comprehension goal
changed in that the reading probes were given at the first/second grade level and K.D.
was not expected to answer both literal and inferential questions. (Id.). K.D.’s writing
goal changed in that the new IEP expected K.D. to write more—going from 1 sentence to
1-3 sentences. (Id.). K.D.’s math calculation goal improved, moving from number
correspondence to addition and subtraction. (Id.). This new IEP added a new SDI: an
“evidence based multi sensory reading and writing program” for 2.5 hours in K.D.’s
Language Arts class. (Id. at 7 ¶ 23). The IEP kept in place supplemental level of learning
support and extended school year services.
In the Summer of 2013, K.D.’s parents asked Ms. Smith about testing K.D. for
dyslexia and dysgraphia. (Doc. No. 13-1 at 5 ¶ 16). 6 Ms. Smith responded that school
psychologists do not diagnose dyslexia or dysgraphia. (FF at 7 ¶¶ 27–28). Ms. Smith

6

Dyslexia is a learning disorder characterized by difficulty in learning to read or
interpret words. Dysgraphia is the inability to write coherently.
6

nonetheless offered to put K.D.’s parents in touch with the school psychologist. (Id. at 7 ¶
28). K.D.’s parents also asked Ms. Smith if the School District offered the Wilson
reading program. (Id.). The Wilson Reading System (“WRS”) is an instructional program
used to help struggling readers. Ms. Smith responded that the School District did not
offer Wilson until intermediate grades, but it did have a program with a similar approach
geared toward younger children. (Id.).
D.

K.D.’s Second-Grade School Year

In September 2013, K.D. began second grade. (FF at 7 ¶¶ 28–29).
Prior to this school year, the School District used a reading program called
Harcourt/Project Read. (Id. at 7 ¶ 30). However, beginning in 2013, the School District
changed over to Fundations, which is a Wilson reading program. (Id. at 7 ¶¶ 30–31).
Coincidentally, Wilson was the type of reading program requested by K.D.’s parents a
few months prior. (Id. at 7 ¶ 28).
K.D. took the Fundations placement test beginning her second-grade year. (Id. at 7
¶ 32). K.D. placed at Level 1. (Id.). Both parties agree that mastery of one level is
required before moving on to the next level of Fundations. (Id. at 7 ¶ 33). K.D. did not
meet the required criteria in 7 of the 11 units taught in second grade. (Id.). In addition to
Fundations, K.D. participated in the School District’s regular reading program, “Being a
Writer.” (Id. at 8 ¶ 35).
K.D. took one Fundations placement test in October and another in August. (Id. at
8 ¶ 34). In the category of naming letters, K.D. improved from a 75% to a 95%. (Id.). In
the category of sound-to-letter correspondence, K.D. improved from 80% to a Level 1 at
7

100%. (Id.). In the category of writing letters and words, K.D. improved from a 70% to a
Level 1 at 80%. (Id.). In the category of reading words, K.D. improved from “no level” to
a Level 1 at 48%. (Id.).
A month later, K.D.’s IEP was again amended to reflect her participation in the
Fundations program. (Id. at 8 ¶ 36). It was also amended to add some Occupational
Therapy services to K.D. (Id.). This included Occupational Therapy goals and evaluation.
(Id.). At the end of her second-grade year, the School District again offered K.D.
extended school year services for the summer. (Id. at 8 ¶ 37).
At the end of her second-grade year, the IEP team met to formulate an IEP for
K.D.’s third-grade year. (Id. at 8 ¶ 38).
E.

The Third IEP

In May of 2014, the IEP team met to develop a new IEP for the 2014-2015 school
year. (Id. at 8 ¶ 38).
The new IEP reflected K.D. making progress in literal and inferential
comprehension. (Id. at 8 ¶ 39). K.D. had mastered the rhyming goal from the previous
IEP at this point. (Id.). K.D. was earning an average of 87% on Fundations phonics tests
and being re-tested when she did not pass. (Id.). K.D. had mastered her letter sounds goal
but not the letter naming fluency goal. (Id.). Finally, this IEP reflected K.D.’s progress in
writing, math, and on-task behavior with the use of prompts and supports. (Id.).
The IEP team increased K.D.’s baseline from a 24 to a 34 in letter naming fluency.
(Id. at 8 ¶ 40). The team also added to the IEP a nonsense word reading fluency goal.
(Id.). K.D.’s letter writing goal was removed. (Id.). As for literal and inferential
8

comprehension, the IEP moved K.D. up from a first/second grade level to a second grade
level. (Id. at 8 ¶ 41).
The IEP increased K.D.’s writing goal. (Id. at 9 ¶ 42). Her original IEP had a goal
of 1 sentence and then was increased to 1-3 sentences in the second IEP. At this point,
K.D. could write 3 sentences with some prompting. (Id.). Her goal in the third IEP was
increased to 3-5 sentences. (Id.). As for math, the newest IEP added a baseline to reflect
K.D.’s mastery of the prior level and the goal was increased. (Id. at 9 ¶ 44).
Following her second-grade year, K.D.’s parents hired a tutor for K.D. (Id. at 9 ¶
52). K.D. also attended the School District’s extended school year services that summer.
(Id.). The newest IEP kept in place K.D.’s prior Occupational Therapy goals and SDIs.
(Id. at 9 ¶¶ 45–46). This same summer, K.D.’s parents obtained an independent
educational evaluation at their expense. (Id. at 9 ¶ 53).
F.

K.D.’s Independent Neuropsychological Evaluation Results

K.D.’s parents retained Dr. Karen Kelly, a neuropsychologist, to independently
evaluate K.D on July 21, 2014. (Doc. No. 13-1 at 10 ¶ 31).
Dr. Kelly prepared a report of her findings. (Doc. No. 13-6, Dr. Kelly Report). The
results were varied. On one hand, Dr. Kelly found K.D. to have overall intellectual
functioning in the “average” range. (Dr. Kelly Report at 9). However, in other specific
subareas, K.D.’s abilities were significantly lower. (Id.). In particular, Dr. Kelly noted
K.D. had “[s]evere reading deficits.” (Id. at 10). At the age of 8, going into 3rd grade, Dr.
Kelly surmised K.D.’s reading ability was “less than first grade” level. (Id. at 11).

9

In Dr. Kelly’s summary, she noted that K.D. was reading about 4 words per
minute. (Id. at 15). A student K.D.’s age should be reading about 89 words per minute.
(Id.). Dr. Kelly found this to be “clearly representative of [K.D.’s] inability to benefit
from the program delivered by the school and further representative of global disregard
for this level of impairment, without recommendations of more intensive or alternative
instruction, given her flattened response to the instruction.” (Id.). Dr. Kelly viewed
K.D.’s reading difficulty as a direct result of the School District’s inability to adapt
K.D.’s IEP to her needs year-to-year. (Id.).
Dr. Kelly diagnosed K.D. with developmental dyslexia, mathematics disorder,
ADHD, and a cognitive disorder. (Id. at 16). She recommended an intervention plan by
K.D’s IEP team that included: (1) “a different approach to learning how to read, which
should include multisensory, direct, sequential, and intensive remedial work”; (2) more
explicit and intensive literacy instruction; and (3) code-based instruction. (Id. at 16–18).
Dr. Kelly also recommended changes to K.D.’s math curriculum, monitoring of K.D.,
Occupational Therapy, and speech therapy. (Id. at 19–23).
G.

Kelly’s Third-Grade School Year

K.D. began her third-grade year in 2014. (FF at 10 ¶ 58).
In the beginning of this school year, K.D.’s parents met extensively with K.D.’s
teachers and administrators to revise the IEP. (Id. at 10–11). K.D.’s parents began
working with an educational advocate. (Id. at 10 ¶ 59). After several discussions, the
School District offered a one-on-one aide for K.D. (Id. at ¶ 66). K.D.’s parents rejected
this offer because they feared it would make K.D. “stand out.” (Id.).
10

The School District readministered the tests they had given K.D. when she started
school in kindergarten. Per the new WISC-IV, K.D.’s IQ score improved into the
“average” range. (Id. at 11 ¶ 68). K.D.’s perceptual reasoning and processing speed also
improved. (Id.). Her verbal comprehension and working memory remained in the
“average” range. (Id.). With the WIAT-III test, K.D. improved in some areas and did
worse in others. (Id. at 11–12).
In December of 2014, the IEP team reconvened to make changes to the IEP again.
This time, the School District substituted nonsense word fluency for letter naming. (Id. at
12 ¶ 76). K.D.’s writing goal remained at 3-5 sentences, but specific goals were added:
topic sentence, supporting details, and a concluding sentence. (Id. at 12 ¶ 78). K.D.’s
math goals were increased. (Id. at 12 ¶ 79).
Most significant, several modifications were made to K.D.’s SDIs. The IEP
offered “[d]irect, evidence based, multisensory reading instruction for 45 minutes per day
with an additional 10 minutes of 1:1 assistance for reinforcement.” (Id. at 13 ¶ 83). It also
offered “[d]irect, evidence based math instruction for 60 minutes per day.” (Id.). Lastly, it
offered “[d]irect instruction using an evidence based writing program for 45 minutes per
day.” (Id.).
H.

K.D.’s Withdrawal from Public School

Per Dr. Kelly’s recommendation, in December of 2014, the School District offered
to abandon the Wilson reading program (Fundations) it had used with K.D. (Id. at 13 ¶
85). In its place, the School District offered to add both (1) SRA/Corrective Reading, and
(2) FastForward. (Id.). SRA/Corrective Reading and FastForward are research-based
11

programs that provide instruction in the areas of phonics and reading comprehension.
(Id.).
K.D.’s parents wrote a letter stating some concerns with the newest proposed IEP.
(Id. at 13 ¶ 86). They opined that K.D.’s progress had been “miniscule” and requested
“language-based instruction across [K.D.’s] entire day.” (Id.). The School District offered
the above IEP with its modification, additions, and the proposal to change its reading
program again.
On December 24, 2014, K.D’s parents formally rejected the latest IEP. (Id. at 13 ¶
87). They wrote a letter giving the School District notice that in 10 days they intended to
withdraw K.D. from the School District. (Id.). The parents also communicated their intent
to place K.D. in private school. (Id.). Finally, they wrote that they would seek tuition
reimbursement from the School District for the cost of K.D.’s private education. (Id.). In
June of 2015, K.D. enrolled in private school. (Id. at 14 ¶ 90).
I.

Due Process Hearing for Tuition Reimbursement

Soon after K.D.’s parents placed her in private school, they sought tuition
reimbursement from the School District.
In the Fall of 2015, hearings were conducted regarding this issue. On January 4,
2016, a Hearing Officer issued a decision, finding that the parents were not entitled to
tuition reimbursement. The Hearing Officer noted that K.D. had difficulties progressing
while at the School District. He nonetheless found that the School District frequently
tried to help K.D. make progress through various approaches memorialized in K.D.’s
IEPs. The Hearing Officer found K.D.’s IEPs to be reasonably calculated to provide K.D.
12

with a meaningful educational benefit. K.D., through her parents, then commenced this
action by filing a complaint on January 14, 2016.
III.

DISCUSSION
K.D.’s parents bring this action pursuant to the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400, et seq. (IDEA), Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794 (RA), and Title II of the Americans with Disabilities Act, 42
U.S.C. § 12131 (ADA). In essence, K.D.’s parents appeal the Hearing Officer’s
determination that they are not entitled to tuition reimbursement for K.D.’s private school
education.
A.

Standard of Review – IDEA

In considering a challenge to an administrative decision on an IDEA claim, district
courts employ a “modified de novo” standard of review. S.H. v. State-Operated Sch. Dist.
of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). District courts may reach
different decisions than a hearing officer, but must accord the decision of the hearing
officer “due weight.” Carlisle Area Sch. Dist. v. Scott P. ex rel. Bess P., 62 F.3d 520, 524
(3d Cir. 1995), cert. denied, 517 U.S. 1135 (1996). This “due weight” standard means
that a hearing officer’s factual findings shall be considered prima facie correct. S.H., 336
F.3d at 269–70.
When a district court departs from the hearing officer’s decision, it must provide
some explanation for that departure. Id. at 270. District courts must accept 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.
13

ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (emphasis in original). “[C]laims for
compensatory education and tuition reimbursement are subject to plenary review as
conclusions of law. . . . [W]hether the District fulfilled its FAPE obligations—[is] subject
to clear error review as [a] question[ ] of fact.” P.P. v. West Chester Area Sch. Dist., 585
F.3d 727, 735 (3d Cir. 2009).
B.

IDEA Claim

A core tenet of the IDEA is “to ensure that all children with disabilities have
available to them a free appropriate public education” (“FAPE”). 20 U.S.C. §
1400(d)(1)(A). A FAPE includes both a “special” education and “related services.”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017)
(citing 20 U.S.C. § 1401(9)). Public schools must therefore provide a disabled child with
special education and services “in conformity with the [child’s] individualized education
program,” or IEP. Id. (citing 20 U.S.C. § 1401(9)(D)).
The individualized education program—or IEP—is “the centerpiece” of the IDEA.
Id. An IEP involves the input of a child’s teachers, parents, and school officials. Id.; 20
U.S.C. § 1414(d)(1)(B). This requires careful consideration of a child’s individual
circumstances. 20 U.S.C. § 1414. “‘An IEP consists of a specific statement of a student’s
present abilities, goals for improvement of the student’s abilities, services designed to
meet those goals, and a timetable for reaching the goals by way of the services.’” D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (quoting Holmes v. Millcreek
Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000)). In developing an IEP, a school
district is “not required to provide a specific program or employ a specific methodology
14

requested by a parent.” Parker C. ex rel. Todd v. West Chester Area Sch. Dist., Civ. A.
No. 16-4836, 2017 WL 2888573, at *7 (E.D. Pa. July 6, 2017) (citing Board of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 199 (1982)).
To comply with the IDEA, a student’s IEP must be “reasonably calculated to
enable the child to receive educational benefits.” Endrew F., 137 S. Ct. at 995–96. When
an IEP is reasonably calculated to enable a disabled child to receive educational benefits,
the child has received a FAPE. Conversely, when an IEP is not reasonably calculated
under this standard, the child has been denied a FAPE.
Until recently, the Supreme Court had “declined ‘to establish any one test for
determining the adequacy of educational benefits conferred upon all children covered by
the Act.’” Id. at 997 (quoting Rowley, 458 U.S. at 202). The Supreme Court recently
clarified this “reasonably calculated” standard in Endrew F. ex rel. Joseph F. v. Douglas
County School District RE-1, 137 S. Ct. 988 (2017). There, it held: “To meet its
substantive obligation under the IDEA, a school must offer an IEP reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.” Id.
at 999.
This last phrase—“appropriate in light of the child’s circumstances”—demands a
“fact-intensive exercise” informed by the expertise of school officials and the child’s
parents or guardians. Id. The question is ultimately whether the IEP is “reasonable,” not
whether it is “ideal.” Id. To this end, the IEP must be “appropriately ambitious,” and the
progress contemplated must be “appropriate in light of the child’s circumstances.” Id.

15

Unlike in Rowley, which involved “a young girl who was progressing smoothly
through the regular curriculum,” Endrew F. presented the much more difficult question of
what qualifies as a reasonably calculated IEP for a child with disabilities. The Court
acknowledged that the IEP must aim for the progress that is appropriate given each
child’s unique makeup. Accordingly, if it is not reasonable to expect a certain child to
progress smoothly through a school’s regular curriculum, that child’s “IEP need not aim
for grade-level advancement.” Id. at 1000; see also Parker C., 2017 WL 2888573, at *7
(“An ‘IEP need not aim for grade-level advancement’ if such a goal ‘is not a reasonable
prospect for a child.’”) (quoting Endrew F., 137 S. Ct. at 1000)). Nonetheless, the IEP
must be “appropriately ambitious in light of [the child’s] circumstances, just as
advancement from grade to grade is appropriately ambitious for most children in the
regular classroom.” Endrew F., 137 S. Ct. at 1000. 7

7

The parties have differing interpretations of the import of Endrew F. on this case.
According to plaintiffs, Endrew F. suggests that the IEPs K.D. was offered were not
reasonably calculated to result in progress. According to the School District, Endrew F.
simply confirms the standard that has been used in the Third Circuit for years. The
School District also argues that, unlike in Endrew F., no improper legal standard was
applied.
I agree with the School District. In Endrew F., the Supreme Court granted
certiorari to correct an improper legal standard applied below. There, the Court rejected
an interpretation that Rowley’s “some educational benefit” means only “some” benefit or
a benefit that is “merely . . . more than de minimis.” Endrew F., 137 S. Ct. at 997. The
improper “some” benefit or “more than de minimis” standard was not applied by the
Hearing Officer in this case. See Doc. No. 1-4 at 16, 25 (applying the “meaningful
educational benefit” standard). Indeed, this standard was rejected by the Hearing Officer.
Id. at 16 (“Meaningful educational benefit is more than a trivial or de minimis educational
benefit.”). The watered-down and incorrect standard used by the lower courts in Endrew
F. has never been employed here.
16

C.

K.D. Was Not Denied a FAPE

The plaintiffs, K.D.’s parents, argue that, in ruling in favor of the School District,
the Hearing Officer committed legal error because: (1) the IEPs “repeated the same goals
from year to year with no change in instruction”; (2) the Hearing Officer erred in finding
K.D. made “appropriate progress” because she was reading below grade-level; (3) a 2014
reading score on one of K.D.’s tests decreased compared to her 2012 score; and (4) the
Hearing Officer erred in assessing the plaintiffs’ expert witness’s credibility. Each of
these arguments is considered in turn. Because they are so intertwined, I will discuss the
first (the IEPs) and second (K.D.’s progress) arguments together.
1.

K.D.’s IEPs Year-to-Year and K.D.’s Progress

K.D.’s IEPs were reasonably calculated to enable her to make meaningful progress
appropriate in light of her circumstances. Contrary to the plaintiffs’ assertions, the IEPs
were not the same year-to-year.
It is fundamental that, before an IEP is initially developed, the child’s “present
levels of achievement, disability, and potential for growth” must be considered. Endrew
F., 137 S. Ct. at 999 (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv)). In
this case, the School District did just that before fashioning K.D.’s IEPs. Based on a
myriad of tests employed and data gathered, it was revealed that K.D. had a significant
learning disability that affected her ability to read and do math.
The first IEP targeted K.D.’s areas of difficulty. Under the first IEP, K.D. received
instruction in both the regular classroom and the special education classroom. The first
IEP also offered the use of an evidence-based multisensory reading program. (First IEP at
17

13). Using this reading program, the IEP set annual measurable goals regarding letter
naming fluency, letter sound fluency, phoneme segmentation fluency, and nonsense word
fluency. (Id.). It also gave K.D. a “baseline” in these areas, ranging from 0 to 11. (Id.).
The first IEP also gave K.D. goals to strive for in the areas of writing, visual
identification and rhyming objects, verbal comprehension, spelling, phonetics, taskorientation, and math. (Id. at 13–17).
The first IEP contained various specifically designed instructions (“SDIs”): (i)
extended time for tests and quizzes; (ii) preview text and utilize prediction strategies; (iii)
opportunities for choral reading and partner reading; (iv) provide books on tape; (v)
provide a “think aloud, visual imagery” approach for text recall; (vi) preview vocabulary
in text; (vii) provide manipulatives in math; (viii) provide testing in a quiet location; (ix)
provide activities to improve sentence construction/composition; (x) positive praise and
support for on-task behaviors; (xi) provide short and clear directions and clarify
understanding; (xii) chunking assignments; and (xiii) preferential seating. (Id. at 18–19).
K.D.’s parents argue that the above IEP was repeated, year-to-year, with no real
changes being made. This argument misses the mark for two reasons. First, factually, it is
not accurate. Second, and more important, the “results-oriented” line of reasoning
plaintiffs present is an improper method of determining whether a FAPE has been denied
in this case.
a.

The IEPs Contained Meaningful Changes

The second IEP contained significant changes and modifications aimed at
providing K.D. with a meaningful educational benefit. Most notable, the second IEP
18

added a new specifically designed instruction (“SDI”) that was not in the first IEP: an
“evidence based multi sensory reading and writing program” for 2.5 hours in K.D.’s
Language Arts class. (Doc. No. 13-4, Second IEP at 18). In other words, K.D. received
direct instruction, every day, for multiple hours per day, in reading. The second IEP also
included a new SDI for math that was not in the first IEP: “Direct instruction in the area
of mathematics using an evidence based math program to include the KTAV styles of
learning.” (Second IEP at 18).
It is true that many of the annual goals in K.D.’s first IEP remained unchanged in
her second IEP. However, contrary to plaintiffs’ argument, this is not per se evidence that
the School District denied K.D. a FAPE. K.D.’s baseline levels in many areas increased,
reflecting improvement. As demonstrated by the Hearing Officer, the fact that the School
District did not raise the goals merely shows it was continuing to target K.D.’s reading
ability with repetition in core areas. Even plaintiffs’ expert recognized that for a child “as
deficitted as [K.D.] . . . just learning the code at the very low levels needs to take place
before any kind of generalization could occur.” (N.T. at 335:18–25). The School District
psychologist, Dr. Jodi Cuniffe, similarly testified that letter naming fluency and sounds
are such fundamental skills that they must be mastered before a child moves on to learn
sound-symbol relationships. (N.T. at 255:3–10).
For these reasons, this case is a perfect example of the tension between “potential”
and “progress.” Although minimal progress may sometimes be evidence of denial of a
FAPE, M.C. ex rel. J.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 392–93 (3d Cir. 1996),
a particular child’s progress must always be assessed alongside that child’s “potential,”
19

Endrew F., 137 S. Ct. at 999. In K.D.’s case, her progress must necessarily be considered
in light of the fact that she suffers from a severe learning disability and ADHD.
Of course, this does not mean that the School District can repeat its same approach
to instruction if its approach proved unsuccessful. But that is not what the School District
did here. Instead, it tried three separate reading programs with K.D. First, it used the
Harcourt/Project Read system, then it switched over to Wilson’s Fundations program,
and then it offered the SRA/Corrective Reading and FastForward research-based
programs. The School District also offered K.D.’s parents a one-on-one aide, but they
rejected this offer out of a fear that this would make K.D. stand out. 8
b.

In Light of Her Circumstances, K.D. Made Appropriate and
Meaningful Progress

The evidence of record shows that K.D. did progress. Of course, a child’s
educational progress is on a continuum, which is shown by K.D.’s continued difficulty in
some areas.
Ms. Smith, K.D.’s regular classroom teacher, testified to the Hearing Officer that
by the end of her second-grade year, K.D. had made “amazing” progress in using
decoding and blending skills for reading, spelling, writing, constructing responses, and
using phonics. (N.T. at 118:19–119:9). During her third-grade year, K.D.’s special
education teacher worked one-on-one with K.D. K.D.’s reading level increased a full
grade level, her IEP goals increased, and she met previous goals set by her IEP. (N.T. at

8

K.D.’s parents’ fear is perfectly understandable. Yet I must consider this offer as
it reflects the steps the School District took, and services offered in the IEPs, in an effort
to help K.D. make progress.
20

137:22–138:1, 147:21–148:2, 149:15–25, 161:19–162:2, 163:9–15, 164:5–13, 175:16–
24). In 2014, K.D.’s phonological processing was tested via the Comprehensive Test of
Phonological Processing (“CTOPP”). According to Dr. Cuniffe, the School District
psychologist, K.D.’s results on the CTOPP showed clear growth and progress. (N.T. at
280:11–21, 286:25–287:6).
Plaintiffs point to some goals that did not increase in K.D.’s IEP year-to-year.
While this is true, it does not establish that the IEPs were not reasonably calculated to
confer to K.D. a meaningful educational benefit. In K.C. v. Nazareth Area School
District, the district court rejected a similar argument. 806 F. Supp. 2d 806, 819 n.2. (E.D.
Pa. 2011). It reasoned that “[a]lthough the goals are the same between 2007 and 2008,”
this did not mean that the child did not progress from 2007 to 2008. K.C., 806 F. Supp.
2d at 819 n.2. The statutory text of the IDEA also does not support plaintiffs’ same-goals
argument. It is true the IDEA requires schools to periodically review a child’s IEP “to
determine whether the annual goals for the child are being achieved.” 20 U.S.C. §
1414(d)(4)(A). But the IDEA does not say that, if goals are not being achieved, the
school must increase the goals. Indeed, that would not make sense or be fair—if a child
were not reaching a goal as quickly as expected—to increase the goal. The IEP must be
revised to address a lack of progress, but revision of an IEP does not necessarily require
increase of annual goals. Id. § 1414(d)(4)(A)(ii). 9

9

The plaintiffs argue that the Court in Endrew F. “soundly rejected the reasoning
that IEPs containing the same annual goals but slightly modified objectives were
reasonably calculated to result in educational benefit.” (Doc. No. 18 at 3). However, the
Court’s discussion in Endrew F. did not address such a fine-tuned issue related
21

K.D.’s results on a Fundations placement test also reflect progress. She took the
placement test in the beginning of her second-grade year and then again at the end of her
second-grade year. In the category of naming letters, K.D. improved from a 75% to a
95%. In the category of sound-to-letter correspondence, K.D. improved from 80% to a
Level 1 at 100%. In the category of writing letters and words, K.D. improved from a 70%
to a Level 1 at 80%. In the category of reading words, K.D. improved from “no level” to
a Level 1 at 48%. While this progress does not reflect grade-level increases, relative to
K.D.’s circumstances, this evinces conferral of a meaningful educational benefit. See
Endrew F., 137 S. Ct. at 1000–01 (explaining that “appropriate” progress depends upon
“the unique circumstances of the child for whom it was created” and that “grade-level
advancement” is not always a reasonable expectation of children with disabilities).
With these principles in mind, namely, that “appropriate progress” depends upon
the “unique circumstances of the child” and “grade-level advancement” is not always a
reasonable expectation of a child with a learning disability, id., Dr. Kelly’s emphasis on

specifically to IEP goals. It simply clarified that the standard applied in IDEA cases
cannot be the lower “de minimis” or “some” benefit standard.
In support of their argument, plaintiffs claim Endrew F. states: “The IEP must
enable the child to make progress.” (Doc. No. 18 at 3) (emphasis added). The actual
passage is notably different: “The IEP must aim to enable the child to make progress.”
Endrew F., 137 S. Ct. at 999 (emphasis added). This difference in wording is not merely
semantic. In a way, it illustrates the core issue in this case. At times, the plaintiffs seem to
argue that if a disabled child is not making progress at the same rate as his or her nondisabled peers, this means that a FAPE was denied. However, the actual analysis of
whether a FAPE has been denied asks a more nuanced question: Was the IEP reasonably
calculated to enable a child to make progress in light of the child’s circumstances? While
a disabled child’s progress is certainly relevant, it is not the end-all-be-all and certainly
not a simple inquiry. See id. at 999 (emphasizing that “what ‘appropriate progress’ looks
like” will differ for each child depending on each child’s “unique circumstances”).
22

K.D.’s AIMSweb Benchmark testing is not very persuasive. AIMsweb testing is a
standardized test that compares K.D. to the rest of her peers (the overwhelming majority
of whom do not suffer from a learning disability or dyslexia). As explained by Ms. Smith
at the hearing, the AIMsweb benchmark testing is given to an entire grade and revealed
that K.D. was “not on grade level for reading fluency.” (N.T. at 84:15–21). The
AIMsweb is therefore not really a test of how K.D. is responding to her IEP but rather a
test of how she measures up compared to her peers. But in K.D.’s case, grade-level
advancement in reading may not have been “appropriate” or reasonable to expect.
Endrew F., 137 S. Ct. at 1000–01. That is why the School District’s IEPs targeted more
fundamental reading skills for K.D., offered K.D. tutoring, changed K.D.’s reading
program, and offered SDIs and extended school year services to K.D.
K.D. took the WISC-IV again as a third-grader and her IQ score improved into the
“average” range. (Id. at 11 ¶ 68). K.D.’s perceptual reasoning and processing speed also
improved. (Id.). Her verbal comprehension and working memory remained in the
“average” range. (Id.). Per the new WIAT-III test, K.D. improved in some areas and did
worse in others. (Id. at 11–12). This is after K.D.’s IEP was amended to add several
different SDIs targeting reading and math, as well as Occupational Therapy services and
extended school year services.
All the above shows that the School District provided IEPs that were reasonably
calculated to provide K.D. with a meaningful education benefit in light of K.D.’s
individual circumstances.

23

2.

K.D.’s Subset Score on a Standardized Test

As noted above, K.D. took numerous different kinds of standardized tests.
Throughout her time at the School District, she took the WISC-IV, WIAT-III, a
Fundations placement test, and the CTOPP.
One of the above tests—the WIAT-III—was taken twice by K.D. The WIAT-III
consists of sixteen (16) different subtests. These yield eight (8) different composite
scores: (1) oral language, (2) total reading, (3) basic reading, (4) reading comprehension
and fluency, (5) written expression, (6) math, (7) math fluency, and (8) total achievement.
(Doc. No. 13-2, K.D.’s Evaluation Report at 10). The second time K.D. took this test, her
score in one of the above eight categories (total reading) decreased. K.D.’s parents take
this to mean that K.D. regressed completely and made no meaningful progress at the
School District.
As recognized by the Hearing Officer, the plaintiffs’ argument is a
mischaracterization. Although K.D. scored lower the second time around on 1 of 8
composites, she also scored significantly higher in other areas. In early reading skills,
K.D.’s score jumped 24 points. In pseudoword decoding, K.D.’s score jumped 9 points.
K.D.’s score in basic reading modestly improved as well. K.D.’s teachers also noted her
progress. That K.D. scored lower on 1 of 8 subsets on one standardized test (out of a
handful of standardized tests she took) does not automatically lead to a conclusion that
she was denied a FAPE. This is especially so in light of her “individual circumstances.”
Endrew F., 137 S. Ct. at 994 (citing 20 U.S.C. § 1414).

24

The Third Circuit has recognized that a court’s job is to decide whether an IEP
was reasonably calculated to confer a meaningful educational benefit. Especially in the
context of disabled children, this analysis should be careful not to overly focus on
“progress versus regression” in deciding whether this benefit was conferred: “The
educational progress of a handicapped child (whether in life skills or in a more
sophisticated program) can be understood as a continuum where the point of regression
versus progress is less relevant than the conferral of benefit.” Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988). Of course, this
does not mean that a child’s progress is not relevant. It is. Nor does it mean that schools
should not strive to enable a child to progress just because that child has a disability.
They certainly should and, by law, must. Yet, viewed as a whole, the evidence in this
case shows that the School District’s IEPs and services were reasonably calculated to
confer a meaningful benefit to K.D. based upon her individual circumstances. The
progress K.D. made was meaningful in light of her abilities.
The focus on a child’s “progress” has led to confusion in our precedent. As
clarified recently by the Supreme Court, and earlier by the Third Circuit, this confusion
boils down to a distinction between two types of students: (1) a child who is progressing
smoothly, grade-to-grade, through school; and (2) a child with a learning disability or
cognitive limitation who is not progressing grade-to-grade through school. With the
former student, it makes sense to view academic progress, grades, and test scores as
evidence that an IEP is reasonably calculated to confer a meaningful educational benefit.
But that is specifically because, with a child not afflicted with a learning disability, that is
25

what should be expected. With the latter student, however, our precedent has warned
against engaging in a retrospective analysis of academic achievement in determining the
appropriateness of an IEP. This is specifically because, unfortunately, it cannot always be
reasonably expected that progress will occur in such a lock-step manner when a child is
suffering from a learning disability. See Endrew F., 137 S. Ct. at 1000 (explaining that
“the goals may differ” for a child with a disability); D.S., 602 F.3d at 567–68 (clarifying
that academic achievement and grades are less relevant in the context of intellectually
disabled children when assessing the reasonableness of an IEP).
The IDEA “requires that school districts prepare the IEPs based on the student’s
needs; so long as the IEP responds to the needs, its ultimate success or failure cannot
retroactively render it inappropriate.” Carlisle, 62 F.3d at 534. This, as already stated,
does not mean that a school can aim for no progress simply because a child is disabled.
The IEP must be reasonably calculated to confer a meaningful educational benefit to the
child based on that child’s individual and unique characteristics. I find no error in the
Hearing Officer’s determination that the School District’s IEPs were reasonably
calculated to confer to K.D. a meaningful educational benefit in light of K.D.’s individual
circumstances.
In K.D.’s case, her progress in reading was slow compared to her peers.
Sometimes she would take a few steps forward, and then one step back. In light of K.D.’s
severe learning disability in the areas of comprehension, reading, and writing, this kind of
fragmented progress could reasonably be expected. I am certainly mindful of the
frustration this must produce for K.D.’s parents, but I cannot say that the School District
26

did not provide K.D. with IEPs reasonably calculated to confer to her a meaningful
educational benefit in light of her circumstances. Her progress in the fundamental areas
of reading and writing was certainly meaningful in aiding her to continue to progress in
some of the areas she continues to struggle in.
3.

K.D.’s Expert Witness

K.D.’s parents attack the Hearing Officer’s treatment of their expert witness. The
Hearing Officer found the expert’s credibility, and bases for her opinions, questionable.
I must accept the Hearing Officer’s credibility determinations “unless the nontestimonial extrinsic evidence in the record would justify a contrary conclusion.” Shore
Reg’l, 381 F.3d at 199 (emphasis in original). The plaintiffs have not pointed to nontestimonial extrinsic evidence sufficient for me to depart from the Hearing Officer’s
credibility determination of the plaintiffs’ expert.
K.D.’s expert witness, Dr. Kelly, opined that the School District made no changes
to K.D.’s IEP during her entire time at the School District. As previously discussed, this
is not true. The IEPs contained various changes, not only year-to-year, but sometimes
month-to-month. These changes included changes to baseline scores, goals, additional
and intensive SDIs, changes to the reading program (from Harcourt to Wilson’s
Fundations), addition of extended school year services, and the addition of Occupational
Therapy services for K.D.
Dr. Kelly never spoke to Ms. Smith—K.D.’s special education teacher in first and
second grade. (N.T. at 113:23–114:3). She also never spoke with Ms. Gleason—K.D.’s
special education teacher in third grade. (N.T. at 143:25–144:2, 174:11–13, 343:1–2). Dr.
27

Kelly was not necessarily required to speak with these school officials. However, in an
area of the law that defers to “the exercise of judgment by school authorities,” Endrew F.,
137 S. Ct. at 1001–02, it would have helped Dr. Kelly’s credibility to do so since she
claims that K.D.’s reading instructions did not change “for years.” (N.T. at 311:13–17). 10
In reality, K.D.’s reading instruction changed in many ways. For one, the School District
switched from Harcourt/Project Read to Wilson’s Fundations program. In addition, the
School District added multiple SDIs to change the way K.D. was instructed in reading.
Had Dr. Kelly consulted with or questioned K.D.’s special education teachers, she would
have learned this information. What’s more, “[w]here a hearing officer ‘has heard live
testimony and determined that one witness is more credible than another witness, [the
hearing officer’s] determination is due special weight.’” D.S., 602 F.3d at 564.
Plaintiffs’ insistence that K.D. made absolutely no progress whatsoever, under
either a norm-based or criterion-based metric, is rebutted by Dr. Kelly’s own report.
According to Dr. Kelly’s report, K.D. scored in the middle of the pack (48th percentile) in
“sound blending” on the Woodcock-Johnson III Tests of Cognitive Ability. (Kelly Report
at 24). She was in the 86th percentile in “concept formation,” the 68th percentile in “verbal
comprehension,” and 59th percentile in “spatial relations.” (Id.). On the WoodcockJohnson III Tests of Achievement, as a third-grader K.D. scored in the 6th grade level in
“picture vocabulary” and at the 5th grade level in “oral comprehension.” (Id.). Of course,
10

I do not join in the School District’s criticism of the fact that Dr. Kelly did not
recommend changes to the School District regarding K.D.’s IEP. That is not Dr. Kelly’s
job. Nevertheless, I do not find reason to disturb the Hearing Officer’s findings that Dr.
Kelly willfully resisted communicating with the School District in formulating her
opinions that the School District’s instructions and services were insufficient.
28

K.D. did worse in other areas. But the bigger picture, and the evidence of the entire
record, does not confirm the plaintiffs’ argument that K.D. made de minimis progress.
In sum, I find that the Hearing Officer thoroughly considered the evidence in
determining that K.D. was not denied a FAPE. I also find that, although her progress was
not that of a student without a learning disability, in light of her circumstances, K.D.’s
IEPs were reasonably calculated to provide her a meaningful educational benefit.
Accordingly, the Hearing Officer did not err in finding that K.D.’s parents were not
entitled to tuition reimbursement for K.D.’s subsequent private school placement.
D.

Rehabilitation Act and ADA Claims

K.D.’s parents argue that the School District’s above conduct violated Section 504
of the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA).
Under the RA, “[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” receiving federal
funding. 29 U.S.C. § 794(a). “The ADA contains nearly identical language, and the Third
Circuit has held that the same standards govern claims arising under both statutes.”
School Dist. of Phila. v. Post, Civ. A. No. 15–4501, 2017 WL 2879684, at *13 (E.D. Pa.
July 5, 2017) (citing Ridley Sch. Dist. v. M.R., 680 F.3d 260, 282–83 (3d Cir. 2012)).
To make out a claim under either the ADA or RA, the plaintiff must show: (1) a
disability; (2) plaintiff was otherwise qualified to participate in a school program; and (3)
plaintiff was denied the benefits of the program or was otherwise subject to
discrimination because of his or her disability. Chambers v. School Dist. of Phila., 587
29

F.3d 176, 189 (3d Cir. 2009). There is no dispute that K.D. has a disability and is
qualified to participate in a school program.
However, plaintiffs have presented no evidence that K.D. “was excluded from
participation in, denied the benefits of, or subject to discrimination” in the School
District. W.H. v. Schuykill Valley Sch. Dist., 954 F. Supp. 2d 315, 331 (E.D. Pa. 2013).
There is no evidence the School District relegated K.D. to lesser services, activities,
programs, or other opportunities. Furthermore, the IDEA, Section 504 of the RA, and the
ADA are nearly identical. I have already determined there was no IDEA violation, so no
further remedy or relief is warranted under the RA or ADA.
IV.

CONCLUSION
For the reasons stated above, I will grant the School District’s Motion for

Judgment on the Administrative Record and deny the Plaintiffs’ Motion for Judgment on
the Administrative Record. The decision of the hearing officer will be affirmed.

30