NICHOLAS H. et al v. NORRISTOWN AREA SCHOOL DISTRICT

Filing 20

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE J. CURTIS JOYNER ON 2/10/17. 2/13/17 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NICHOLAS H., through his Parents
JEFFREY and DENISE H. of
Jeffersonville, PA
Plaintiffs
vs.
NORRISTOWN AREA SCHOOL DISTRICT
of Norristown, PA
Defendant

:
: CIVIL ACTION
:
:
: NO. 16-CV-1154
:
:
:
:
:
:
:

MEMORANDUM AND ORDER

JOYNER, J.

February 10, 2017

This matter has been brought before the Court on crossmotions of the parties for judgment based upon the administrative
record before the Hearing Officer.

For the reasons set forth

below, the motions shall be granted in part and denied in part.
History of the Case
Nicholas H. is a 16-year-old high school sophomore who
resides with his parents in the Norristown Area School District.
Nicholas has been identified as a child with a disability within
the meaning of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §1400, et. seq. and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794.1

Specifically,

Nicholas has been diagnosed as having a variety of disabilities
and/or conditions which impair his ability to learn including:
Attention Deficit Hyperactivity Disorder, combined type (“ADHD”),
Generalized Anxiety Disorder, Developmental Coordination
Disorder, Dysgraphia (writing disorder), Developmental Arithmetic
Disorder, Congenital Cardiac Disorder, Seizure Disorder,
Executive Functioning Deficits and Cognitive Disorder, Auditory
Processing Disorder and Nonverbal Learning Disability.

Many, if

not all of these disorders are related to Nicholas’ having
suffered a perinatal brain injury called Periventricular
Leukomalacia (“PVL”).
Although he spent several years in the Norristown public
schools in the elementary and middle school grades, Nicholas’
parents unilaterally removed him from the Norristown public
school system following his fifth grade year at East Norriton

1
Although in his letter of May 5, 2015 requesting a special education
due process hearing, Plaintiffs’ counsel claimed violations of the IDEA,
Section 504 and the “corresponding regulations of the Pennsylvania Public
School Code,” the Hearing Officer’s Decision addressed only the issue whether
the Norristown Area School District had violated the IDEA. Given that “[t]he
IDEA and §504 of the Rehabilitation Act do similar statutory work” and §504
has been said to be “parallel ... in its protection of disabled students [in
that] it protects the rights of disabled children by prohibiting
discrimination against students on the basis of disability, and it has child
find, evaluation, and FAPE requirements, like the IDEA,” this Court finds no
error in the Hearing Officer’s failure to independently analyze Plaintiffs’
claims to the extent that they rely on §504 in addition to the IDEA. See
generally, P.P. ex rel. Michael P. v. West Chester Area School District, 585
F.3d 727, 735 (3d Cir. 2009). Like the Hearing Officer’s, our discussion
shall also focus on Plaintiffs’ available rights and remedies under the IDEA,
with the understanding that this discussion shall apply with equal force to
their claims under §504 and the corresponding state statutes, which state
statutes the parties themselves have not specifically addressed.

2

Middle School and placed him at the Stratford Friends School in
Newtown Square, PA because he was experiencing severe anxiety
and, in their opinion, wasn’t making any real academic progress
in the public schools.

Nicholas remained at Stratford Friends,

which has small class sizes and specializes in educating children
who are challenged by disabilities such as his and thus learn
differently, for the following three years - through grades 6, 7
and 8.
Stratford Friends School, however, only went through the 8th
grade and thus at the end of the 2013-2014 school year, Nicholas’
parents began searching for another school.

In the Spring of

2014, Nicholas’ parents independently retained Dr. Mary Lazar,
Psy.D., the Director of the Neuropsychology Assessment Center at
Widener University to undertake a comprehensive
neuropsychological evaluation of their son.

Dr. Lazar’s

evaluation took place over two days - on March 25 and April 1,
2014, during which she interviewed Nicholas and his parents,
reviewed educational records, questionnaires and rating scales
from his teachers, and administered a wide variety of
educational, psychological and behavioral tests.

Nicholas

demonstrated greater performance in the verbal domain and
weaknesses in the nonverbal/perceptual reasoning domain and with
functional communications skills.

He was found to have, inter

alia, “pronounced difficulty learning and encoding new visual

3

information as well as trouble retrieving this information from
long-term memory.”

(Joint Exhibit “J” 10, p. 8).

He was also

found to have difficulty with spatial perception and perceptual
organization, analyzing complex visual information, integrating
visual knowledge while formulating a motor response and displayed
low abilities to solve higher level problems in reading, writing
and math.
In addition, Nicholas experienced considerable problems with
inattention and impulse control during everyday functioning.

His

executive functioning skills - organizing, directing, managing,
planning, sustaining effort to task completion and learning from
experience were also weak.

Mathematics posed the area of

greatest academic weakness and Nicholas was found to have
difficulty solving multi-step problems and conceptually
understanding numerical and quantitative concepts.

Finally,

Nicholas met the criteria for Generalized Anxiety Disorder in
that he very frequently worried about his health (almost to the
point of obsession), as well as his performance and how he is
perceived by others, and suffered from overall anxiety.
Based upon these findings, Dr. Lazar made a number of
general recommendations including that Nicholas consult with his
treating physician regarding the appropriateness of medication to
address his significant problems with self-regulation and
anxiety, and specific recommendations for Nicolas’ future

4

educational treatment2, the first being that Nicholas be placed
2

Dr. Lazar’s other recommendations for Nicholas’ education included:

- Teachers should clearly articulate goals of a task such that each step
required to complete an activity should be explicitly stated.
- Providing Nicholas with a list of numbered instructions that he could
have available at his desk. Asking him to independently complete the
first step and then have teacher evaluate his progress and thereafter
asking him to complete increasing amounts of steps on his own before
teacher review of progress. He should be reminded to check his list to
determine if he completed all of the steps listed prior to turning in
the work.
- Teaching Nicholas to group information into meaningful “chunks” before
attempting to learn new material.
- Presenting the most concrete material first and then incrementally
introducing more abstract concepts.
- Verbally reviewing past material and then verbally discussing
similarities, differences and connections with new material.
- Verbally discussing cause-and-effect relationships between sequential
events.
- Providing Nicholas with either notes or an outline in advance of class
so that he is able to listen while the teacher presents material or a
copy of class notes to which he can refer later and while studying for
tests.
- Frequent Class discussions
- Encouraging Nicholas to ask for help when confused or doesn’t fully
understand what is needed to complete an assignment.
- Development of a homework plan/strategy for better management of
independent work.
- Extended time (50%) to take quizzes and tests to compensate for slowed
processing speed and to offset anxiety and executive functioning
weaknesses.
- Opportunity to take tests in separate room with few distractions.
- Opportunity to take additional breaks during class time to maintain
attention.
- Math instruction that helps Nicholas to incrementally develop skills
and strategies in a stepwise, progressive manner and that will allow for
practice and repetition to permit the development of a better conceptual
understanding of procedures and applications.
- Instruction that allows Nicholas to learn how to break tasks down into
small, manageable steps and to prioritize tasks.

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in a small, highly structured classroom with a low student to
teacher ratio.

Dr. Lazar’s report was provided to the School

District prior to the start of the 2014-15 school year and in
advance of the Individualized Education Program (“IEP”) meeting
which was eventually held on September 9, 2014.
Shortly after receiving Dr. Lazar’s report, in May 2014
Nicholas’ parents applied and enrolled him in the Woodlynde
School in Strafford, PA for the following school year.

Like

Stratford Friends, Woodlynde School is dedicated to the education
of students like Nicholas who learn differently and offers
smaller class sizes and built-in structures designed to
accommodate its students’ learning needs, many of whom have been
diagnosed with the same or similar learning disabilities or
conditions as Nicholas.

Unlike Stratford Friends, Woodlynde is a

K-12 college-preparatory school.

Despite having enrolled

Nicholas at Woodlynde in May, Mr. and Mrs. H. had purchased
tuition insurance such that they could obtain a refund from
Woodlynde if they opted to return him to the public school
setting or chose another placement for their son.
After the IEP meeting in early September, the District
submitted its proposed IEP and Notice of Recommended Educational
Placement (“NOREP”) to the parents on or about September 10,

- Allowing additional time to double check work for errors.
(Joint Exhibit 10, pp. 13-16).

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2014.

The Defendant District recommended that Nicholas repeat

his 8th grade year at the East Norriton Middle School with
various accommodations in both special education and general
education classrooms.

The parents, however, rejected the IEP and

the NOREP and commencing in the fall of 2014, Nicholas repeated
his eighth grade year at the Woodlynde School.
Towards the conclusion of the 2014-15 school year, on May 7,
2015, the parents sought reimbursement for Nicholas’ Woodlynde
tuition and transportation for the preceding year by filing a Due
Process Complaint with the District on the grounds that it failed
to provide Nicholas with a Free Appropriate Public Education.
Despite the complaint or perhaps in response to it, the District
scheduled another IEP meeting for the upcoming (2015-16) school
year on July 30, 2015.

Following that meeting, the District

offered another IEP and NOREP to become effective on September 1,
2015 at Norristown Area High School.

Because the offering for

Nicholas called for his placement in large regular classrooms for
his non-academic subjects and special education classrooms for
his core, academic courses at the 1600-1700-student Norristown
High School, his parents again rejected the District’s IEP and
NOREP and Nicholas remained at Woodlynde for his 9th grade year.
They again sought Due Process and requested refund of tuition and
transportation for the 2015-16 school year.

A Special Education

Hearing Officer held two days of hearings on the case on August

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20 and October 19, 2015 and subsequently issued a Decision on
December 14, 2015 finding that the District had sufficiently
offered a FAPE in both of its proposals for the two school years
at issue and denying the parents’ request for tuition and
transportation reimbursements.

The parents then timely appealed

to this Court.
Standard of Review
In considering an appeal from a state administrative
decision under the IDEA, district courts are required to apply a
nontraditional standard of review, sometimes referred to as a
“modified de novo review.”

D.S. v. Bayonne Board of Education,

602 F.3d 553, 564 (3d Cir. 2010);

Mary T. v. School District of

Philadelphia, 575 F.3d 235, 241 (3d Cir. 2009).

Under this

standard, the District Court must make its own findings by a
preponderance of the evidence while affording “due weight” to the
ALJ’s determination.

Mary T., id,(quoting Shore Regional High

School Board of Education v. P.S., 381 F.3d 194, 199 (3d Cir.
2004)).

In so doing, the District Court “must accept the state

agency’s credibility determinations unless the non-testimonial
extrinsic evidence in the record would justify a contrary
conclusion.”

D.K. v. Abington School District, 696 F.3d 233, 243

(3d Cir. 2014).

Factual findings from the administrative

proceedings are to be considered prima facie correct and if the
Court does not adhere to those findings, it must explain why.

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Id.

The Court may not, however, substitute its own notions of

sound educational policy for those of local school authorities.
Ridley School District v. M.R., 680 F.3d 260, 268 (3d Cir. 2012).
Further, “[t]he issue of whether an IEP is appropriate is a
question of fact.”

D.S. v. Bayonne, supra, (quoting S.H. v.

State-Operated Sch. Dis. Of Newark, 336 F.3d 260, 271 (3d Cir.
2003)).

“But a court should determine the appropriateness of an

IEP as of the time it was made, and should use evidence acquired
subsequently to the creation of an IEP only to evaluate the
reasonableness of the school district’s decisions at the time
that they were made.”

Id, at 564-565 (citing Susan N. v. Wilson

School Dist., 70 F.3d 751, 762 (3d Cir. 1995)).
Discussion
The Individuals with Disabilities Education Act (IDEA), 20
U.S.C. §1400, et. seq. was designed to overcome the pattern of
disregard and neglect disabled children historically encountered
in seeking access to public education.

Schaffer ex rel. Schaffer

v. Weast, 546 U.S. 49, 63, 126 S. Ct. 528, 538, 163 L. Ed.2d 387
(2005).

Indeed, the Supreme Court has said that “Congress

enacted the IDEA to ensure that all children with disabilities
are provided a ‘free appropriate public education which
emphasizes special education and related services designed to
meet their unique needs and to assure that the rights of such
children and their parents or guardians are protected.’”

9

Forest

Grove School District v. T.A., 557 U.S. 230, 239, 129 S. Ct.
2484, 2491, 174 L. Ed.2d 168 (2009)(quoting School Committee Of
Town of Burlington, Mass. v. Department of Education Of
Massachusetts, 471 U.S. 359, 367, 105 S. Ct. 1996, 85 L. Ed.2d
385 (1985)).

A free appropriate public education (FAPE)3

“consists of educational instruction specifically designed to
meet the unique needs of the handicapped child supported by such
services as are necessary to permit the child to benefit from the
instruction.”

Ridley School District v. M.R., 680 F.3d at 268-

269 (citing Board of Education v. Rowley, 458 U.S. 176, 188-189,
102 S. Ct. 3034, 73 L. Ed.2d 690 (1982)).

In addition to having

to be specially designed to meet the unique needs of the child,
the FAPE must be provided under public supervision and direction
and at no cost to the parents.

P.P. ex rel. Michael P. v. West

Chester Area School District, 585 F.3d 727, 738 (3d Cir. 2009).
School districts provide a FAPE by designing and
administering a program of individualized instruction that is set

3

Under the statute, “[t]he term ‘free appropriate public education’
means special education and related services that (A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary
school education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 614(d) [20 U.S.C. §1414(d)].
20 U.S.C. §1401(9).

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forth in an Individualized Education Plan (“IEP”).
F.3d at 240.

Mary T., 575

The IEP has been characterized as the “centerpiece”

of the IDEA’s “education delivery system for disabled children,”
with the premise that each would be designed by parents and
schools working together.

Honig v. Doe, 484 U.S. 305, 311, 108

S. Ct. 592, 598, 98 L. Ed.2d 686 (1988); M.R. v. Ridley School
District, 744 F.3d 112, 117 (3d Cir. 2012).

“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., 602 F.3d at 557 (quoting Holmes v. Millcreek

Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000) and 20 U.S.C.
§1401(a)(20)).
Finally, “[t]he IEP must be ‘reasonably calculated’ to
enable the child to receive ‘meaningful educational benefits’ in
light of the student’s ‘intellectual potential.’” Id, (quoting
Shore Regional High School Board of Education v. P.S., 381 F.3d
194, 198 (3d Cir. 2004) and Polk v. Cent. Susquehanna
Intermediate Unit 16, 853 F.2d 171, 182-85 (3d Cir. 1988)).

A

“meaningful benefit” must entail “more than a trivial educational
benefit,” but it does not have to maximize the child’s potential.
F.C, 636 Fed. Appx. at 861 (quoting L.E. v. Ramsey Bd. Of Educ.,
435 F.3d 384, 390 (3d Cir. 2006) and D.S. v. Bayonne, 602 F.3d at
556).

Because an education is “specially designed” if the IEP is

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made “in light of the student’s intellectual potential,” whether
an education is “appropriate” depends upon the individual child’s
abilities and needs.

Id.(quoting Chambers v. Philadelphia Board

of Education, 587 F.3d 176, 182 (3d Cir.

2009)).

If parents believe that an IEP fails to provide their child
with a free and appropriate public education, they may challenge
the IEP in an administrative proceeding.
(citing 20 U.S.C. §1415(b)(6)).

D.S., 602 F.3d at 557

A parent who believes that a

school has failed to provide a FAPE may request a hearing,
commonly known as a due process hearing, to seek relief from the
school district for its failure to provide a FAPE.

Norristown

Area School District v. F.C., 636 Fed. Appx. 857, 860, 2016 U.S.
App. LEXIS 270 at *7, n.7 (3d Cir. Jan. 8, 2016); Mary T., 575
F.3d 240 (citing 34 C.F.R. §300.507).

In Pennsylvania, which now

follows a single-tier administrative process, all state-level
review is provided by hearing officers who conduct the due
process hearings.

P.P., 585 F.3d at 734, n.2; Carlisle Area Sch.

v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995).

The burden of

proof at such hearings is on the party seeking relief.

Schaffer

v. Weast, 546 U.S. 49, 62, 126 S. Ct. 528, 136 L. Ed.2d 387
(2005)).
A party to the due process hearing aggrieved by its outcome
may then bring a civil action challenging the decision in any
state court of competent jurisdiction or in a federal district

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court, without regard to the amount in controversy.
F.3d at 558; 20 U.S.C. §1415(i)2).

D.S., 602

In that event, a reviewing

“court’s inquiry under §1415(e)(2) is twofold.

First, has the

State complied with the procedures set forth in the Act?

And

second, is the individualized education program developed through
the Act’s procedures reasonably calculated to enable the child to
receive educational benefits?”

Rowley, 458 U.S. at 206-207, 102

S. Ct. at 3051.
“Parents who believe that a public school is not providing a
FAPE may unilaterally remove their disabled child from that
school, place him or her in another school, and seek tuition
reimbursement for the cost of the alternate placement.”

Mary T.,

575 F.3d at 242 (citing 20 U.S.C. §1412(a)(10)© and Burlington
School Committee v. Dept. of Educ., 471 U.S. 359, 374, 105 S. Ct.
1996, 85 L. Ed.2d 385 (1985)).

“A court may grant tuition

reimbursement if the School District failed to provide the
required FAPE and the parents sought an appropriate private
placement.”

Id., (citing, inter alia, Lauren W., ex rel. Jean W.

v. DeFlaminis, 480 F.3d 259, 276 (3d Cir. 2007)).

Indeed, the

Supreme Court has explicitly stated that “[p]arents ‘are entitled
to reimbursement only if a federal court concludes both that the
public placement violated IDEA and the private school placement
was proper under the Act.’” Forest Grove, 129 S. Ct. at 2496
(quoting Florence County School Dist. Four v. Carter, 510 U.S. 7,

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15, 114 S. Ct. 361, 126 L. Ed.2d 284 (1993)).

“No reimbursement

is required if the school offered a FAPE and the parents placed
the child in a private school anyway.”

P.P., 585 F.3d at 739.

And, “even where private placement is appropriate and
reimbursement is otherwise due, the IDEA permits the equitable
reduction or elimination of tuition reimbursement under certain
circumstances.”

C.H. v. Cape Henlopen School District, 606 F.3d

59, 67 (3d Cir. 2010).

Such circumstances might be found to

exist where the parents did not inform the District or the IEP
team that they were rejecting the proposed placement, did not
give the requisite 10 business days’ notice that they were
rejecting the placement prior to removal of the child from the
public school or where the parents failed to make the child
available for an evaluation.

See, e.g., 20 U.S.C.

§1410(a)(10)(C)(iii).
In determining whether a private placement is proper, a
disabled student is not required to demonstrate that he cannot be
educated in a public setting.

Ridgewood Board of Education v.

N.E. for M.E., 172 F.3d 238, 248 (3d Cir. 1999).

Nor must the

parents of a disabled student seek out the perfect private
placement in order to satisfy the IDEA.
242.

Mary T., 575 F.3d at

Indeed, a private placement is proper if it provides

significant learning, confers meaningful benefit and is
in the least restrictive educational environment.

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Id.;

provided

Ridgewood, supra.

And a private school placement may be proper

and confer meaningful benefit even despite the private school’s
failure to provide an IEP or meet state educational standards.
Mary T., supra, at 242 (citing, inter alia, Carter, 510 U.S. at
14-15 and DeFlaminis, 480 F.3d at 276).
In this case, the parents and the school district have filed
competing/cross-motions for judgment on the administrative record
such that each party contends that the record of testimony and
evidentiary materials submitted to the Hearing Officer justifies
the entry of judgment in their favor.

Stated otherwise,

Plaintiffs seek to overturn the finding of the Hearing Officer
that Norristown Area School District offered a FAPE to their son
whereas the District submits that the Hearing Officer’s decision
is amply supported by the record.

According to the Plaintiffs,

the Hearing Officer erred in finding that the IEPs for the school
years at issue addressed Nicholas’ needs as those needs were
identified in Dr. Lazar’s Independent Educational Evaluation
(“IEE”) and in updated testing from Woodlynde.

Rather,

Plaintiffs assert, the IEPs for the 2014-15 and 2015-16 school
years disregarded Dr. Lazar’s findings and recommendations for
Nicholas’ placement and accommodations4, most particularly that

4

Some 8-9 months prior to Dr. Lazar’s evaluation, Nicholas had also,
at his parents’ request, been evaluated by the District’s chosen educational
psychologist (Dr. Riehs), Speech/Language Clinician (Dina Lunsford), and
Occupational Therapist (Kelly Wagner). Noting “clinically significant
discrepancies... between Nicholas’ cognitive ability and achievement in the
... areas [of] Math Problem Solving, Sentence Composition, Essay Composition,

15

Numerical Operations, Written Expression Composite, and Mathematics
Composite,” Dr. Riehs concluded that:
Nicholas’ diagnostic profile does indicate specific learning
disabilities in the areas of Basic Math, Math reasoning, and Written
Expression. He continues to display executive functioning deficits with
regards to impulsivity, inattention, and initiation skills. Nicholas
also demonstrates difficulties with regards to visual organization and
visual sequencing. Clinical observations would concur with the presence
of an Attention Deficit/Hyperactivity Disorder, Combined Type (Code
314.01) Nicholas did not endorse any symptomology (sic) related to
anxiety and no clinical symptoms were observed. Nicholas continues to
demonstrate specific learning disabilities as his primary disability
(Math, Written Expression) category with a secondary disability category
of other health impairment,(history of ADHD, seizures, cardiac
condition). Nicholas continues to require specially designed
instruction to access the general education curriculum. This would
include a highly structured environment that takes into account his
executive functioning deficits and stresses remediation in the areas of
mathematics and written expression.
(Parties’ Joint Exhibit 3, p.6).
Based upon her evaluation, which took place in July 2013, Ms. Lunsford
found that while Nicholas did not meet criteria for itinerant speech and
language support services based upon her observations and the testing which
she administered, she nevertheless “recommended that Nicholas receive the
following accommodations to help support his social skills, peer interaction
skills, ability to follow classroom directions, and engage effectively in
classroom discussions:
- utilize natural environment teaching to support social skills and
social interactions with peers
- implement social skills instruction
- preferential seating to minimize environmental distractions
- gain and keep his attention while attempting to communicate
- limit the amount of directions given at once
- have Nicholas repeat directions before starting
- provide directions in written form as well as orally
- demonstrate the task to be done to Nicholas
- allow ‘think’ time for Nicholas before he responds to a question
- prime or give him the questions first, before a passage is read orally
(Joint Exhibit 3, pp. 10-11). Following the occupational therapy evaluation,
Nicholas was found to have “displayed functional and appropriate skills in the
areas assessed,” such that he did “not currently qualify for Occupational
Therapy service.”

16

he be placed in a small, highly-structured classroom with a low
student-to-teacher ratio.
At the outset, we observe that the District complied with
all of the requisite procedures set forth in the applicable
statutes and thus we find no procedural grounds to reverse the
Hearing Officer’s decision.

Next, in examining the IEPs offered

by the District for the 2014-15 and 2015-16 school years, we find
that both referenced Nicholas’ history of congenital heart defect
and perinatal brain injury which “manifests itself as a complex
neurobehavioral disorder that includes seizures, attention
problems, mood dysregulation, impulsivity and numerous cognitive
and academic disabilities,” and that he had diagnosed conditions
including: Attention Deficit Hyperactivity Disorder, Central
Auditory Processing Disorder, Developmental Coordination Disorder
and generalized Anxiety Disorder.

The IEPs further noted that he

had specific learning disabilities in the areas of math (problem
solving and numerical operations) and written expression, and
referenced Dr. Lazar’s neuropsychological evaluation discussing a
pattern of impairment in visual-spatial skills, motor
coordination and executive function.

Also included in both IEPs

was a review of Nicholas’ various educational tests’ scores
(which ranged from borderline to average), performance on state
and local assessments (which were all below basic), his grades at

(Joint Exhibit 3, p. 13)

17

the private schools, reports from his teachers, and the reported
observations of two District representatives, Mrs. Helen Morein,
the Acting Special Education Supervisor and Ms. Kate Jacovin, the
Program Support Specialist from the Middle School.

Thus we find

that the two IEPs included all of the necessary information
called for by law.
The 2014-15 IEP contemplating Nicholas’ return to the East
Norriton Middle School for 8th grade included a number of
accommodations for standardized state and local testing (e.g.,
PSSA, Keystone exams) such as having the directions read and reread to him, extended testing time, preferential seating, and
testing in a separate room or small group and several measurable
annual goals5 to be measured through weekly probes, checklists or
observational data with progress toward those goals being
reported to the parents through the trimester report cards.
5
The measurable annual goals are described as follows: (1) “when
given informational texts and a graphic organizer to organize new information
on Nicholas’ instructional level of 6 th grade, Nicholas will identify and
explain stated or implied main ideas with relevant supporting details with a
minimum of 80% on 5 consecutive curriculum based assessments”; (2) “when given
a writing probe, writing checklist and a graphic organizer, Nicholas will
compose a three paragraph essay using appropriate transition within sentences
and between paragraphs, establish a topic and purpose in the introduction, and
reiterate the topic and purpose in the conclusion to score a 80% in 2 out of 3
consecutive writing probes across content areas”; (3) ”when given a word
problem that involves time and money, and presented with a learned strategy
for solving word problems, Nicholas will set up and solve a one-step equation
with 75% accuracy over 4 consecutive probes”; (4) “using a self-determination
assessment and provided instruction on self-determination, Nicholas will
increase his baseline score by 10 points by the end of the IEP year”; and (5)
“in response to verbal prompts and modeling faded to the elimination, Nicholas
will use a given graphic organizer to break down long-term assignments into
single steps, estimate the time required to complete each step, and self
monitor the step-by-step completion of the assignment within the time allotted
in 4 out of 5 consecutive probes at each prompt level”. (Parties’ Joint
Exhibit [“J”} 14, pp. 33-36).

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Presumably to achieve these annual goals, the following
modifications and specially designed instruction (“SDI”) for the
classroom were offered in the 2014-15 IEP:
1. “Direct instruction in assisting Nicholas with breaking
down studying by night to develop study skills and assist
with organization.” This was to take place in the special
education classroom “as per testing situation.”
2. “Provide Nicholas with a list of numbered instruction
and/or tasks to complete an assignment. The list must be
explicit. Nicholas will be reminded to check off each item
on the list and reviewed frequently by the teacher to ensure
accuracy and completeness of task prior to submission.”
This was to take place in both special and general education
classrooms “as per assignment.”
3. “Systematic strategy instruction in the area of math for
completion required work problems - using a math frame.”
This was to take place in the general education classroom
“as per assignment.”
4. Allow Nicholas to listen to class lectures and highlight
keywords during note-taking activities. Nicholas is a
verbal learner and taking notes would detract from his
ability to process new material.” This was also to take
place in the special and general education classrooms “as
per assignment.”
5. “Systematic strategy for written expression. Using
graphic organizer to assist with organization in writing to
support the use of transition words and idea development
between paragraphs.” This was to take place in both the
special and general education classrooms “as per
assignment.”
6. “Provide student with skeletal outlines, highlighting
critical features and essential vocabulary for all content
areas.” Likewise, this was to occur in both the special and
general education classroom on an “on-going” basis.
7. “Study guides will be provided for content area subjects
at least 5 days prior to unit or chapter test. Nicholas
will use the study calendar to support him in preparation
for test.” This was also to occur in both the special and
general education classroom “as per testing situation.”
19

8. “Preferential seating” in the general education
classroom “as needed.”
9. “All teachers will allow ‘wait time’ so Nicholas can
organize his thoughts and respond to the question.” This
was to occur in the general education classroom on an “ongoing” basis.
10. “Nicholas’ teachers will make certain that he
understands the assignment by asking him to repeat
directions.” This was to take place in the general
education classroom “as per assignment.”
11. “A sample for solving problems will be provided in math
class.” This too was to occur in the general education
classroom “as per assignment.”
12. “The teacher will read word problems in math when
needed” in the general education classroom on an “as needed”
basis.
13. “Extended time for tests and/or quizzes not to exceed
100% of allotted time.” This was to be given in the special
and general education classrooms “as per testing situation.”
(Joint Exhibit J-14, pp. 36-38).

The IEP further explained the

extent to which Nicholas would not participate with students
without disabilities in regular education classes and in the
general education curriculum by stating that he would participate
with his non-disabled peers in the general education curriculum
for all academic and related arts area (Physical Education, Art,
Music and Computers).

He was to receive learning support on an

itinerant basis for 20% or less of the school day.

(Joint

Exhibit J-14, pp. 40–42).
The 2015-16 offered IEP also included a discussion regarding
the “transition” goals of Nicholas and his parents at the
conclusion of his high school years.
20

It appears that the intent

of that section of the IEP was to evaluate and address Nicholas’
areas of interest and strength so as to assist in planning for
his post-high school education and eventual career.

Both

Nicholas and his parents indicated that he is a very creative
young man who enjoys acting, singing, rock climbing and has
strengths in acting, singing, music and art and who expects to
continue to live at home after high school graduation and perhaps
attend a community college or university, although at this point,
Nicholas does not know what career he would like to pursue.

Both

Nicolas and his parents have concerns about his ability to plan,
manage money, communicate with others, organize and live
independently and Nicholas stated that he believe he has needs in
the areas of math, reading, organization, staying on task,
understanding what he is reading and understanding what is
expected of him.

The 2015-16 IEP offered all of the same

accommodations for standardized testing as the preceding years’
IEP, but added the use of a calculator for mathematics
standardized testing, reading test items at the student’s
request, cuing Nicholas to stay on task, monitoring test
responses to ensure that he was correctly placing his responses
on answer sheets, use of a reading guide and highlighter, and
allowing him to read aloud to himself and write answers in test
booklets.
The measurable annual goals set forth in the 2015-16 IEP

21

were identical to those established in the 2014-2015 IEP and were
to be measured through the same means and with the same
frequency.

His program modifications and specially designed

instruction, however, were different and more specific and under
this proposed program, Nicholas was to have special education
supports and services provided by special education personnel for
more than 20% but less than 80% of the school day.

The

modifications and SDI offered to commence in the Fall of 2015
were to be provided at Norristown Area High School6 on a daily
basis and were as follows:
1.

Access to laptop for assignment completion.

2. Special Education staff will provide support for math,
social studies and/or science instruction/tests when
student’s reading or writing needs impact on his/her ability
to be successful.
3. Provide student with skeletal outlines, highlighting
critical features and essential vocabulary for all content
areas.
4. Student’s teachers will use Multi-Modality Instruction
including modeling, explicit instruction, repetition,
rephrasing, visual cues, graphic organizer, study guides,
chunking of material, wait time and memory strategies in all
Regular and Special Education classes
5. Oral directions should be accompanied by written
directions.
6.

Larger tasks broken down into smaller tasks.

7.

Allowance for short answers rather than writing long

6
Norristown Area High School was described in the Due Process Hearing
as a school with between 1600 and 1700 students in grades 9 - 12. Of these,
there are approximately 365 students receiving special education services at
the high school. (Joint Exhibit 5, pp. 427-428).

22

essays.
8. Extra copy of textbook provided for the student to keep
at home (unless online text book is available and student
has internet access).
9. Up to 1.5 times the normal test taking period.
of taking tests in a small group environment.

Option

10. Use of a calculator for basic math calculations, unless
that is the focus of the assessment.
11.

Prompts to complete assignments.

12. The student will be provided with opportunities and
guidance to self-evaluate target skills.
In explaining the extent, if any to which Nicholas would not
participate with students without disabilities in the regular
education class and in the general education curriculum, the IEP
stated: “Nicholas will not participate with his non-disabled
peers for math, science, social studies and English.

He will

participate with his non-disabled peers in the general education
class for electives and lunch.

Nicholas will receive instruction

in math, science, social studies and English in a learning
support classroom,” and “Nicholas will participate with his nondisabled peers in the general education curriculum.”
(Joint Exhibit 24, pp. 35-40).
Although we note that the IEP offered for the 2014-15
academic year clearly did incorporate some of the recommendations
made in both the IEE and the report of the District’s own
evaluating psychologist and speech/language clinician, it did not
appear to address this student’s compelling need for a highly23

structured classroom environment, preferably with a low studentto-teacher ratio, nor did it articulate what supports or how the
District intended to implement its specially designed
instructions.7

No mention at all is made as to the articulation

by teachers of goals and steps to be taken to accomplish those
goals, “chunking” of information, verbal review of past
information and discussion of its similarity to the new material
being presented, allowing testing in a small room with frequent
breaks in non-standardized testing situations, what mathematics
program would be used to teach Nicholas or whether there would be
any accommodations offered to him should he become overwhelmed by
anxiety.

Indeed, the IEP speaks only in very broad and general

terms as to what classroom accommodations and supports Nicholas
could expect to receive upon his re-enrollment in the East
Norriton Middle School for his 8th grade year.

Although the

testimony elicited from a number of the District’s witnesses at
the Due Process Hearings provided some additional details as, for
example, Karen Fairclough and Corrie Eisenhart testified that the
District intended to use a co-teaching method in Nicholas’
general education classrooms thereby somewhat reducing the

7

For example, it is unclear to this Court how the District proposed
to teach Nicholas how to break down “studying by night to develop study skills
and assist with organization,” or how often he would receive such
instruction(s). The only detail provided is that such instruction would be
given in a special education classroom.

24

student-to teacher ratio8, that intention and those details are
not reflected in the proposed IEP and thus as written, we cannot
find that the proposed educational program provides anything
other than a trivial educational benefit, much less a
“meaningful” one to this student.
While the Hearing Officer here indicated that he was “not
insensitive to the parent’s arguments” “that the IEPs are vague
and insufficient,” and agreed that “the proper lens through which
to view the IEPs” was the comparison of the April 2014 IEE with
the IEPs proposed for the two school years in question, he
nevertheless found that both were sufficient to provide FAPE.

We

respectfully disagree and in so doing, acknowledge that we are
required to give a certain amount of deference to the Hearing
Officer’s credibility determinations and factual findings.
Indeed, we are well aware that the factual findings from the
administrative proceedings are to be considered prima facie
correct and that if we fail to adhere to those findings, we must
explain why.

D.K. v. Abington, 696 F.3d at 243.

We do so now by first observing that in our holding today,

8

According to Karen Fairclough, the District’s Supervisor of Special
Education for the middle school level, in the middle school, a co-taught
classroom would have an average of 15-20 students in it and a general
education classroom upwards of 25 students. (Joint Exhibit 6, pp. 201-203).
Brigid Brady, the Special Education Supervisor for Norristown High School
stated that there are approximately 15 students in each self-contained or
special education classroom with one special education teacher and sometimes a
paraprofessional. For regular education classrooms, there are approximately
25 students in each with one teacher. (Joint Exhibit 5, pp. 435-436).

25

we do not disturb the Findings of Fact made by the Hearing
Officer in his December 14, 2015 Decision.

However, given that

“a court should determine the appropriateness of an IEP as of the
time it was made, and should use evidence acquired subsequently
to the creation of an IEP only to evaluate the reasonableness of
the school district’s decisions at the time that they were made”
[D.S. v. Bayonne, supra, at 564-565 (citing Susan N. v. Wilson
School Dist., 70 F.3d 751, 762 (3d Cir. 1995))], in looking at
the IEP as offered to Nicholas and his parents for the 2014-15
school year, we take issue with the Hearing Officer’s application
of the relevant law to his factual findings and find this IEP to
be insufficient to provide FAPE to Nicholas for that year for the
reasons outlined above.
Turning to the IEP for the 2015-16 school year, we agree
with the Hearing Officer’s assessment that “[t]he SDIs and
modifications in the July 2015 IEP are broken down and phrased
somewhat differently than in the April 2014 IEP,” and that the
two IEPs are similar in that “[t]he July 2015 SDIs and
modifications still call for notes and study guides and still
emphasize the Student’s verbal learning style,” and “the numbered
instructions called for in the April 2014 IEE are also carried
over.”

(Exhibit 2, p. 7).

We find, however, that in re-phrasing

a number of the SDIs and proposed modifications, the District
provided much needed clarity for purposes of parental evaluation

26

of the sufficiency and appropriateness of the proposed supports
prior to the Due Process Hearing.

And, in proposing a

significant increase in the level of learning support in a
smaller, more supportive and intensive classroom situation, we
believe the District addressed Nicholas’ social anxiety and his
need for a highly structured learning environment with a lower
student-to-teacher ratio.

Thus, in so altering the IEP for the

2015-16 school year, we find that the District did offer a FAPE
to Nicholas.9

9
We have considered the parents’ assertion, as raised in their
briefing before this Court, that by placing Nicholas in a special education
classroom for his core academic subjects, the District has violated its
obligation to educate him in the “least restricted environment.” In H.L. v.
Downingtown Area School District, Nos. 14-3678, 14-3727, 624 Fed. Appx. 64,
68, 2015 U.S. App. LEXIS 9472, *8- *10 (3d Cir. June 11, 2015), the Third
Circuit cogently explained the general principles underlying this principle:

The IDEA’s LRE mandate provides that “[t]o the maximum extent
appropriate,” a child with disabilities is to be educated with nondisabled children, and “special classes, separate schooling, or other
removal of the child from the regular education environment” should
“occur only when the nature or severity of the disability of a child is
such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.” 20 U.S.C.
§1412(a)(5)(A). In short, a student with disabilities must be placed “in
the least restrictive environment that will provide the child with a
meaningful educational benefit.” (quoting D.S., 602 F.3d at 556-557).
Whether a school district complied with the LRE requirement depends
first on “whether education in the regular classroom, with the use of
supplementary aids and services, can be achieved satisfactorily.”
Oberti v. Bd. of Educ. Of Borough of Clementon Sch. Dist., 995 F.2d
1204, 1215 (3d Cir. 1993). This, in turn, is assessed by “the steps the
school district has taken to accommodate the child in a regular
classroom; (2) the child’s ability to receive an educational benefit
from regular education; and (3) the effect the disabled child’s presence
has on the regular classroom. L.E. v. Ramsey Bd. Of Educ., 435 F.3d 384,
390 (3d Cir. 2006). If education in the regular classroom cannot be
achieved satisfactorily, we ask “whether the school has included the
child in school programs with nondisabled children to the maximum extent
appropriate.”
Oberti, 995 F.2d at 1218.
School districts must make available a “continuum of placements” to meet
disabled children’s needs, and, in seeking to accommodate the child in

27

As a consequence of our findings, we consider now whether
Plaintiffs are entitled to tuition and transportation
reimbursement for the 2014-15 school year.

To reiterate, under

Supreme Court precedent, parents are entitled to reimbursement
only if a federal court concludes both that the public placement
violated IDEA and that the private school placement was proper
under the Act.

Forest Grove, 129 S. Ct. at 2496 (quoting

Florence County School Dist. Four v. Carter, 510 U.S. 7, 15, 114
S. Ct. 361, 126 L. Ed.2d 284 (1993)).

A private placement will

be deemed proper if it provides significant learning, confers
meaningful benefit and is

provided in the least restrictive

the regular classroom, they must “consider the whole range of
supplemental aids and services, including resource rooms and itinerant
instruction.” Id., at 1216 (citations omitted); see also, 34 C.F.R.
§300.115(a). As we noted in Oberti, if a school “has given no serious
consideration to including the child in a regular class with such
supplementary aids and services and to modifying the regular curriculum
to accommodate the child, then it has most likely violated” the LRE
requirement.
In this case, it appears that in offering Nicholas the general curriculum
delivered in four supplemental learning support classes in Math, Science,
Social Studies and English with between 12 and 16 students, together with READ
180, a direct-instruction reading class, the District considered Nicholas’
current levels of functioning and his deficits in Reading and Math and his
need for a smaller and more self-contained classroom. Under the District’s
proposal for the 2015-16 school year, Nicholas would be moving from classroom
to classroom along with the general population of the school just as other
students, but would be rotating for his core subjects from one supplemental
learning classroom to another. For his electives and lunch, he would
participate in general education classrooms. In this way, the District
believed it could alleviate any stigma which might be attached to
participating in a special education setting and address Nicholas’ social
anxiety. (Exhibit J5, pp. 390-405). It is noteworthy that the “IDEA requires
that disabled students be educated in the least restrictive appropriate
environment.” Ridgewood v. N.E., supra, 172 F.3d at 249(emphasis in
original). Hence, while the District’s offer admittedly may not be perfect,
we find that it was indeed reasonably calculated to enable Nicholas to receive
meaningful educational benefits in the least restrictive setting possible in
the high school.

28

educational environment.

Mary T., supra, 575 F.3d at 242.

And a

private school placement may also be proper and confer meaningful
benefit even despite the private school’s failure to provide an
IEP or meet state educational standards.

Id. (citing, inter

alia, Carter, 510 U.S. at 14-15 and DeFlaminis, 480 F.3d at 276).
In both the 2014-15 and the 2015-16 school years, Nicholas
attended the Woodlynde School, located in Strafford,
Pennsylvania.

As testified to by the Head of School at the Due

Process Hearing, Woodlynde is a kindergarten through 12th grade
independent school for students who learn differently, meaning
that the school is focused on educating students with diagnosed
learning disabilities, primarily dyslexia, dyscalculia,
dysgraphia, auditory processing disorders, executive function
disorders, ADD, and ADHD as well as a smaller number of students
with high-functioning autism.

(Joint Exhibit 5, pp. 462-463).

Woodlynde is accredited by the Pennsylvania Association of
Independent Schools and licensed to operate as such; all teachers
are required to be certified in the subject area in which they
teach and many are dual certified in special education.

There

are a total of 273 students enrolled at Woodlynde, it is a
college-preparatory school which admits students with IQs in the
average to above-average range.

The average class size is 9

students; Nicholas has classes which range from a low of 6 to a
high of 14.

(J-5, pp. 464-465).

29

Woodlynde students have an 8-period day on a 6-day rotation.
The school day begins with a brief full-school assembly which is
followed by each student meeting for approximately 8 minutes with
their advisor.

The students then proceed through the eight-

period day with lunch in the middle.

Classes which meet daily

are math, English, social studies, science, and world language.
Every other day, the students also have a writing class and metacognition, which is a class geared toward learning study skills,
organization and chunking skills, as well as mindfulness and
social skills.

Additional elective classes include studio art,

performance, and music. Class periods vary slightly but are
generally 43 minutes long.

Following the 8th period at the end

of the day, there is a 40-minute strategic planning period where
the students again check in and work one-on-one with their
advisors to make sure that they have correctly copied down their
homework assignments, understand what they need to do in
preparation for the next day, have the proper resources to do the
homework, etc.

At that point in the day, if the students missed

or didn’t understand a concept or something important during
class or didn’t write down or record an assignment, they go find
that teacher and can receive extra help or guidance.

(J-5, pp.

477-482).
Although Nicholas does not have an IEP at Woodlynde, the
school develops a learning profile for each student, which though

30

abbreviated, is similar to an IEP in that it includes a summary
of the information from the psycho-educational reports, notates
student strengths and weaknesses, and includes accommodations
that have been found to be effective for each student.
484-485).

(J-5, pp.

The classroom and testing accommodations for each

student are determined by a school team, which includes the Head
of School, with the testing accommodations being provided
regardless of whether the student or the individual teacher feel
they are needed.

Classroom accommodations, on the other hand,

are left up to the discretion of the classroom teacher to
implement when necessary.

(J-5, pp. 517-519).

In reviewing

Nicholas’ report cards for his 8th grade year at Woodlynde, it
appears that he made steady improvement in both his grades and in
his classroom organization, participation, time management and
study skills as well as with his social anxiety.
J-5, pp. 490-493; J-6, pp. 50-52; J-23).

(Joint Exhibits

From this evidence, we

easily find that the Woodlynde School has provided significant
learning and confers a meaningful and beneficial education to
Nicholas in the least restrictive educational environment.
Woodlynde is therefore a proper placement for Nicholas and his
parents are entitled to the reimbursement of their tuition and
transportation costs for their son for the 2014-15 academic year.
Conclusion
For all of the reasons set forth above, we shall grant in

31

part the Plaintiffs’ Motion for Judgment on the Administrative
Record in part and direct the Defendant School District to
reimburse them for the tuition and transportation costs incurred
in sending Nicholas to the Woodlynde School for the 2014-15
school year.

Plaintiffs’ Motion is denied with regard to the

2015-16 school year.

Likewise, we shall partially grant the

Defendant’s Motion for Judgment on the Administrative Record with
regard to the 2015-16 school year.
2014-15 school year is concerned.
An Order follows.

32

It is denied insofar as the