A. v. UNIONVILLE-CHADDS FORD SCHOOL DISTRICT

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/14/17. 8/14/17 ENTERED AND COPIES E-MAILED.(kw, )

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

BENJAMIN A., through his parents
MICHAEL and KAREN A.,

CIVIL ACTION

v.

NO. 16-2545

UNIONVILLE-CHADDS FORD
SCHOOL DISTRICT
MEMORANDUM RE: CROSS MOTIONS FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD

Baylson, J.
I.

August 14, 2017

INTRODUCTION
This action was commenced by Michael and Karen A. (collectively, “Parent”) on behalf

of their son, B.A., against the Unionville-Chadds Ford School District (the “District”). On
March 13, 2015, Parents filed a due process complaint against the District, alleging that it failed
to provide B.A. a free, appropriate public education (“FAPE”), in violation of the Individuals
with Disabilities in Educational Improvement Act (“IDEA”). Parents also bring claims against
the District under Section 504 of the Rehabilitation Act (“Section 504”), and the Americans with
Disabilities Act (“ADA”). Parents seek compensatory education and tuition reimbursement for
that denial, as well as reimbursement for a private neuropsychological report issued in September
2014 that the Parents obtained at their own expense.
After five hearing sessions, the Administrative Hearing Officer Jake McElligott, Esquire
(the “Hearing Officer”) concluded that the District had not denied B.A. a FAPE, and B.A. was
not entitled to the relief Parents sought.

1

Presently before the Court are the parties’ cross motions for judgment on the
administrative record. Having considered the parties’ briefing and the administrative record, we
affirm the findings of the Hearing Officer and therefore grant the District’s motion, and deny the
Parents’.
II.

FACTS
In order to consider whether B.A. was, as the Parents claim, denied a FAPE, we must

consider the evidence within the Administrative Record (“AR”), including the Hearing Officer’s
Decision and Order, dated February 24, 2016 (“HO Rpt.”), the Hearing transcripts (AR, Exs. 59), and the various IEPs themselves (AR, Ex. 11, Parents’ Exhibits, “P”- 13, 15, 17, 19, 20, 24).
As such, it is necessary to set forth the evidence in some detail.
B.A. 1 was born on July 1, 2002, and at the time of the Due Process hearings in mid-2015,
B.A. was thirteen years old and in the seventh grade. At all relevant times, B.A. and his Parents
have resided within the District, and B.A. has qualified under the IDEA for specially designed
instruction/related services as a student with health impairment; specifically, a seizure disorder.
(HO Rpt. at 2).
B.A. suffered a stroke in utero that has led to epilepsy and a lifelong seizure disorder.
(HO Rpt. ¶ 2). He also has a condition known as electrical status epilepticus of sleep, an
epileptic condition resistant to medication management where the person has sub-clinical
seizures during sleep. (Id.). B.A. has also been diagnosed with attention deficit disorder
(“ADD”). (Id.; see also AR, Ex. 9, Transcript of July 29, 2015 Hearing (“7/29 Tr.”), at 145).

1

The student’s initials “B.A.,” rather than his name, are used to protect the confidentiality of the

student.
2

B.A. has attended the District since kindergarten and has had an Individualized Education
Plan (“IEP”) for all school years. (HO Rpt. ¶ 2; see also AR, P-1, 5a, 5b, 7, 8, 10, 13, 15, 17, 19,
20, 24).
In May 2010, near the end of B.A.’s first grade year, the District re-evaluated B.A., and
produced the May 2010 re-evaluation report (the “May 2010 RR”). (HO Rpt. ¶¶ 3-5). The May
2010 RR found that B.A.’s academic achievement was commensurate with a full-scale IQ of
115, and so did not identify him with any learning disability. (Id.). Based on the RR, the District
determined that B.A. did not require direct speech and language instruction, but identified B.A.
as a student with health impairment related to his seizure disorder, and speech language disorder,
and recommended modifications and specially designed instruction (“SDIs”) to support him with
social skills/pragmatic communication, direction, transitions, and gross motor skills. (HO Rpt.
¶¶ 6-8 (citing P-3 at 12-18)). Throughout the 2010-2011 and 2011-2012 school years, B.A.’s
IEPs were revised multiple times. (Id. ¶ 9 (citing P-5a, 5b, 7, 8)).
In April 2012, B.A. underwent a neuropsychological evaluation at the Children’s
Hospital of Philadelphia (“CHOP”). In June 2012, a comprehensive neuropsychological
evaluation report (the “2012 CHOP Report”) diagnosed B.A. with “Intractable Complex Partial
Epilepsy,” “Encephalopathy, not otherwise specified” and ADD. (HO Rpt. ¶ 10; P-12 at 5).
After sharing the 2012 CHOP report with the District at the outset of the 2011-2012 school year,
B.A.’s IEP was revised again. (See P-13 at 1).
Additionally, and in light of the 2012 CHOP Report, in December 2012, the District
conducted an additional evaluation of B.A., and promulgated another re-evaluation report (the
“December 2012 RR”). (HO ¶ 11; P-14; 7/29 Tr. at 159-167). The December 2012 RR found
that B.A. had cognitive/achievement strengths and weaknesses but that overall, B.A. did not

3

exhibit any deficits that would lead to an identification of any “specific learning disability.” (HO
Rpt. ¶ 13; P-14 at 22). The December 2012 RR, however, noted that B.A. is “in need of
specially designed instruction,” and “will need adaptations and accommodations to the
curriculum in order to make meaningful progress in the regular education setting.” (Id.) The
Report recommended, inter alia, support in reading comprehension skills, small group direct
instruction in writing, as well as various strategies to help with his executive functioning,
attention, and organizational difficulties. (HO Rpt. ¶ 17; P-14 at 23).
In January 2013, following the issuance of the December 2012 RR, B.A.’s IEP was
revised. 2 (HO Rpt. ¶ 18; P-15). The January 2013 IEP—which was implemented in the second
half of the 2012-2013 school year, B.A.’s fourth grade year—contained three “Measurable
Annual Goals”: (1) behavior/task initiation, (2) reading comprehension, and (3) written
expression, each of which indicated a corresponding method of measuring B.A.’s progress and
the frequency with which that progress would be tracked. (P-15 at 20-22). The January 2013
IEP also contained a chart of “Modifications and SDIs,” which were categorized to address
B.A.’s specific needs, including, inter alia, his “Writing Needs,” “Executive Functioning
Needs,” “Social Needs,” “Reading Comprehension Support,” “Language Needs,” and
“Inattention.” (P-15 at 22-27). B.A.’s out of classroom or “pull out instruction” included
“physical therapy for two 30-minute sessions a month, social skills instruction one time a week
for 20 minutes and written expression for 40 minutes a day.” (AR, Ex. 6, Transcript of

2

The January 2013 IEP was the IEP in place in March 2013, and bounds the evidentiary record
based on the Parents’ complaint in March 2015. (HO Rpt. ¶ 18). As the Hearing Officer explained, and
the Third Circuit recently held, the IDEA imposes a filing requirement of two years from the date when a
complaining party knew or should have known of the violations which form the basis of the complaint.
Here, Parents’ filed their due process complaint in March 2015, and the Hearing Officer found the scope
of the Parents’ claim for remedy would be limited to March 2013. (HO Rpt. at 4; see 7/29 Tr. at 52-57);
see G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 604 (3d Cir. 2015). Parents do not
challenge that ruling in the instant appeal.
4

September 2, 2015 Hearing, “9/2 Tr.,” at 396). Under the terms of the January 2013 IEP, B.A.
spent 85% of the day in regular education. (HO Rpt. ¶ 21; P-15 at 32).
Erika Johnson, B.A.’s regular education fourth grade teacher, testified at the Hearing
about how she implemented B.A.’s January 2013 IEP. (See AR, Ex. 7, August 21, 2015 Hearing
Transcript, “8/21 Tr.”). For instance, Ms. Johnson testified that she helped B.A. with task
completion by using, inter alia, “a timer on his desk,” “checklists,” “chunk[ing] the task,” and
“reward systems.” (8/21 Tr. at 356-60). She also worked with him on organizational skills (Id.
at 363 (“I would check his homework planner to make sure he wrote down his homework” and
“helped him organize his desk” to “try[] to teach him how to do it himself”)), as well as reading
skills (id. at 368-9 (“I would . . . chunk the test” and ask “basic comprehension questions as he
was reading to make sure he was reading and checking in.”)). Ms. Johnson testified that she
believed that B.A. made meaningful educational progress in fourth grade. (Id. at 372-3).
Jennifer Corcoran, B.A.’s fourth grade learning support teacher, also testified about how
she implemented B.A.’s January 2013 IEP, specifically with regard to the SDIs that were
outlined therein. (9/2 Tr. at 395). Ms. Corcoran’s classroom was a special education classroom,
and B.A. came to her classroom, in which there were about eight other students, for about forty
minutes per day for writing instruction. (Id. at 396-7). Ms. Corcoran also went into B.A.’s
regular education classroom “daily” to check on him, pursuant to the SDIs, and to provide
“visual support.” (Id. at 398). When asked about why there was no “direct instruction listed for
executive functioning skills” in the January 2013 IEP, Ms. Corcoran responded, “[t]he words
direct instruction for executive functioning skills aren’t used, but there are—we did incorporate a
lot more SDIs to address his executive functioning needs,” in “authentic settings.” (Id. at 488491). She explained that she did not employ “pull out [executive functioning] direct instruction”

5

with B.A. because she “thinks it’s important to teach executive functioning kind of skills while
they’re doing it” and in “real life situations.” (Id. at 491). Ms. Corcoran also explained how she
helped B.A. with organization (id. at 467) and task completion in her class, namely with
“redirection or chunking” and “scheduled breaks,” as a result of which she noticed improvement.
(Id. at 450-454). Ms. Corcoran testified that her goal for B.A. was “to get [him] to do this by
himself using the strategies that [she and Ms. Johnson] gave him.” (Id. at 472).
Ms. Corcoran also testified generally that B.A.’s “grades supported that he was in the
right place” such that he did not need to be in small classes at all times, that he “benefitted from
being with his regular education peers,” and that she was “pleased with the progress that [B.A.]
made in fourth grade[.]” (Id. at 495-6).
David Lichter, B.A.’s fifth grade regular education math teacher for the first quarter of
the 2013-2014 school year, also testified as to how he worked with B.A. to implement the
January 2013 IEP. (7/29 Tr. at 318). He acknowledged that B.A. had issues with respect to time
management, task initiation, and organization, and described his main concern with respect to
B.A. as his “inattention.” (Id. at 318-320; 334). Mr. Lichter testified that he implemented the
SDIs that were to be implemented in regular the education environments, such as instructing
B.A. to use a calendar or planner, and to organize his materials so that he could turn in his
homework assignments. (Id. at 330-333).
Mr. Lichter also testified about how he asked B.A. to go into the hallway with him
“several times,” which was a “last” resort to get B.A. to focus, (id. at 338-340; 360). When
asked, Mr. Lichter specifically noted that sending B.A. into the hallway was not “a punishment,
like going to the corner or something like that[.]” (Id.)

6

Mr. Lichter testified that he emailed B.A.’s mother to inform her that B.A. would receive
a “D” for the first quarter marking period in his math class. (Id. at 342-345). Because B.A. was
not thriving in his class, he and Mrs. Williamson determined that he should move into Mrs.
Williamson’s class after the first quarter, a decision with which Parents agreed. (Id. at 351-2).
In December 2013, B.A.’s IEP team met for its annual consideration of B.A.’s IEP,
which led to the implementation of the January 2014 IEP. (HO Rpt. ¶¶ 24; 37; see P-17). The
January 2014 IEP contained two “Measureable Annual Goals”: (1) Reading Comprehension, and
(2) Writing. (P-17 at 17-18). It also contained various “Modifications and SDI[s],” including
ones to address “Writing Needs,” “Executive Functioning Needs,” “Social Needs,” “Reading
Comprehension,” and “language needs” and “inattention.” (P-17 at 19-21). It also specified that
B.A. would “receive direct instruction in written expression and reading comprehension” in a
special education or learning support setting for 45 minutes per day, 5 days per week. His
“spelling, math, science, and social studies instruction” would occur in the “regular education
setting.” (P-17 at 24). Under the terms of the January 2014 IEP, B.A. spent 77% of the day in
regular education. (P-17 ay 26; HO Rpt. ¶ 29).
Barbara Williamson, B.A.’s regular education teacher for most subject, except writing
and math (for the first quarter of the year), testified about how she implemented B.A.’s January
2014 IEP (AR, Ex. 8, Transcript of July 31, 2015 Hearing, “7/31 Tr.” at 146-209). B.A. was in
Mrs. Williamson’s regular education class (with twenty-three students and one adult aide) for
reading, spelling, social studies and science. Mrs. Williamson testified that she implemented the
IEP using several strategies regarding task completion and organizational skills, such as teaching
B.A. how to make check lists and to write things in his planner. (Id. at 200-201). Mrs.
Williamson also testified that she “provide[d] direct instruction with organization with all of

7

[her] students. [B.A.] in particular would be instructed with the class, but then separately
because of the needs that were evident in the IEP.” (Id. at 149). She further testified that, “if
something we were doing [in class] was not enough, specifically if he needed more monitoring
or writing his assignments down, or if he needed more review of concepts being taught, that
occurred on a regular basis and changed as the year went on.” (Id. at 183; 201). Mrs.
Williamson testified that she saw improvement on this dimension throughout B.A.’s fifth grade
year. (Id.).
Mrs. Williamson explained that B.A. was switched from Mr. Lichter’s math class to her
class after the first quarter of fifth grade because “he was not making adequate progress” in Mr.
Lichter’s class. (Id. at 193). Ms. Williamson’s math class—while it had the same curriculum as
Mr. Lichter’s class—was smaller (with about fourteen or fifteen students), had two or three other
supporting adults, and moved at a slower pace. (Id. at 193-4). Ms. Williamson noted that after
the change, B.A.’s performance in math improved. (Id.).
Andrew Lefko, B.A.’s fifth grade learning support teacher, also testified about how he
helped to implement B.A.’s January 2013 and 2014 IEPs. (See 9/2 Tr. at 515-616). In fact, as
Ms. Williamson testified, Mr. Lefko personally went through B.A.’s applicable IEP with each of
B.A.’s teachers to ensure that it was being implemented. (7/31 Tr. at 197-8). Mr. Lefko testified
that he was aware of all of B.A.’s areas of need, including his “deficits with respect to executive
functioning skills,” which he considered to be highly related to his issues with organization and
“study skills.” (Id. at 518-519; 537-8). He testified that while there was no “direct pull-out
instruction,” there was executive functioning instruction in the classroom. (Id. at 602).
Mr. Lefko testified that because, pursuant to the March 2014 IEP, “learning support for
reading” was added, B.A. came to his special education classroom for written instruction for

8

about 45 minutes per day, in a classroom setting with anywhere from five to eight students. (Id.
at 521-523; 542). He also went to Mr. Lefko 45 minutes per day for reading comprehension, and
was in a small class of students who had a variety of reading related issues. (Id. at 542). He
noted that while, during that time, they worked “predominately” on reading comprehension, they
sometimes also worked on other things. (Id. at 554).
In February 2014, Mr. Lefko started an “executive functioning group,” in which B.A. and
two other students met for fifteen minutes per day. (9/2 Tr. at 551-2). Mr. Lefko believed that
executive functioning “grew as a concern to [B.A.’s mother],” but that it was not the “overriding
concern from day one.” (Id. at 558-9).
Mr. Lefko testified that he believed that B.A. benefited from spending the majority of his
time in regular classes, and that he benefitted from his time with his regular education peers. (Id.
at 611). He explained, “[t]here’s so much to be gained by being in a classroom of 23, 25 kids
from listening to their experiences, to have them listen to your experiences, and to connect[.]”
(Id. at 612). He indicated that he was pleased with B.A.’s progress during fifth grade. (Id.).
B.A.’s IEP was again revised in March 2014 (the “March 2014 IEP”). (See P-19). The
key modification in the March 2014 IEP was that B.A. would now have “pull out” time devoted
to executive functioning. Specifically, the revision to the executive functioning “Modification
and SDI” stated: “The IEP team has concerns related to [B.A.’s] executive functioning abilities:
Executive Functioning Skills Instruction: 30 min. per day/5 days per wk. for instruction in active
listening skills, memory strategies, study strategies, reasoning and organization.” (P-19 at 17;
HO Rpt. ¶ 31; 7/31 Tr. at 172-4).

Pursuant to this revision, B.A. would spend 69% of his day in

a regular education classroom. (Id. at 24; HO Rpt. ¶ 32).

9

The District held another IEP meeting on May 13, 2014, the purpose of which was to
discuss B.A.’s transition from elementary school to middle school, and promulgate B.A.’s May
2014 IEP. (P-20; HO Rpt. ¶ 33). The SDI related to executive functioning remained the same as
stated, as did the percentage of time that B.A. would be in regular education classes. (P-20 at 24,
30). However, in the section explaining the portion of time B.A. would not spend in regular
education, the May 2014 IEP stated as follows:
5th Grade:
Reading: 45 min. day/5 days per week
Written Expression: 45 min. day/ 5 days per week
Executive Functioning Skills Instruction: 30 min. per day/ 5 days per week
6th Grade:
Literacy: 45 min. day/ 5 days per week
English: 45 min. day/ 5 days per week
Executive Functioning Skills Instruction: 40 min. per day/ ? days per week

(P-20 at 27). Carol Stern testified that, notwithstanding the “?” in the IEP, it was determined that
B.A. would receive 40 minutes of instruction 4 out of 6 days in a school cycle, which would
result in either 3 or 4 days of 40-minute instruction per week. (7/31 Tr. at 186-7).
In the summer of 2014, B.A.’s Parents enrolled him in a private school summer program
at the Centreville School. (7/29 Tr. at 201; SOF ¶ 9; HO Rpt. ¶ 36). Several teachers, including
Ms. Johnson, Ms. Corcoran and Mr. Lefko, testified that B.A. never showed any signs of
“regressions” over schools breaks that would have suggested that he needed ESY. (8/21 Tr. at
370-371; 7/31 Tr. at 203; 9/2 Tr. at 610). Significantly, there was testimony in the record that
B.A.’s family took vacations at the end of B.A.’s fourth and fifth grade years that caused him to
miss the last three weeks of school. (9/2 Tr. at 610-613). While B.A. was given assignments to
complete during that time, they were not completed. (Id.).
10

Also in the summer of 2014, B.A. underwent a private neuropsychological evaluation, at
Parents’ expense, conducted by Dr. Kara Schmidt (the “Schmidt Report”). (HO Rpt. ¶ 35; P-23
at 22-28; P-31 at 56). The Schmidt Report was thorough and comprehensive, and concluded that
while “[B.A.] is performing remarkably well given the nature and severity of his neurological
history”—specifically, his “left thalamic stroke and intractable epilepsy”—his weakness “with
regard to executive functioning, impact[s] all aspects of his academic day and home life as well
as his coping skills and ability to develop typical social relationships with his same age peers.”
(P-23 at 22). The Schmidt Report incorporates a number of recommendations to accommodate
his academic and social needs. For instance:
•

B.A. “requires direct specially designed instruction and academic support,” but
“will benefit from grade appropriate curriculum exposure across all classes;
however inclusion and/or co-taught settings should be employed based on his
needs”;

•

B.A. “will do best in a small classroom environment with a low student-toteacher ratio.”

•

B.A. should receive “direct instruction” with regard to “organization and
execution of multistep projects”;

•

B.A. should receive “research based instruction” from a “learning support
teacher” in the areas of reading and writing;

•

B.A. should receive “assistance with social functioning and general social
coping skills in a group context.

(P-23 at 22-26). The Schmidt Report also provided a list of “additional accommodations” to help
B.A. with his “difficulties with distractibility, impulsivity, attention, working memory and
sustained mental effort within the classroom setting.” (Id. at 26).
Dr. Schmidt reiterated some of the results of her Report in her testimony, where she
explained, “many of the struggles that [B.A.] has with regard to academics in terms of reading
comprehension and in terms of his written language are due to his executive function, his
11

inattention, and the social weaknesses that he has[.]” Asked how significant, in her opinion,
B.A.’s executive functioning deficits were, she said, “I think that he has significant executive
functioning deficits, but I think it’s [] important to think about it in a broader way, that he has
significant disattention and inconsistency in general.” (8/21 Tr. at 247-48).
Dr. Schmidt testified that B.A. would do best in a “small setting” such as Hill Top as
opposed to a public school in general (8/21 Tr. at 277-8). Dr. Schmidt recognized that at Hill
Top, “[B.A.] does not have exposure to and does not go to school with regular ed peers[.]” (Id.
at 289).
Dr. Schmidt admitted, on cross examination, that she “did not see [B.A.] when he was a
student at [the District],” nor did she specifically recall ever conducting observations at B.A.’s
school. (Id. at 285-6). Dr. Schmidt further admitted that she “did not know for the program that
was proposed for [B.A.] how many students would have been in any of his classes at the middle
school.” (Id. at 287; 302). Dr. Schmidt did not see B.A.’s IEP except in anticipation for her
Hearing Testimony, which was after she completed the Schmidt Report. (Id.).
In August 2014, Parents informed the District that they intended to place B.A. in a
unilateral private placement at Hill Top, at public expense. (HO Rpt. ¶ 37). B.A.’s mother
testified that Parents made the decision to send B.A. to Hill Top based on the Schmidt Report.
(7/29 Tr. at 205).
B.A. was enrolled at Hill Top in September 2014, where he completed both the 20142015 and 2015-2016 school years (sixth and seventh grades). (Id.). At Hill Top, B.A. did not
have an IEP, but rather a so-called personal education plan (“PEP”). (7/29 Tr. at 255). The PEP
did not contain “goals” in the way that his IEP did, but rather included “skills” to be improved
upon, which were based largely on the Schmidt Report. (Id. at 255).

12

Parents provided Dr. Schmidt’s report to the District on October 8, 2014. (7/29 Tr. at
253)
On November 10, 2014, in light of the Schmidt Report, B.A.’s IEP team met to revise the
IEP (the “November 2014 IEP”) to further expand the support provided to B.A. at the District.
(See P-24; 9/2 Tr. at 680-1 (“Q: And as a result of this letter did you determine that the School
District should hold an IEP meeting for [B.A.]? A: Yes.”)). The District heavily utilized the
Schmidt Report in revising B.A.’s November 2014 IEP. (See 7/31 Tr. at 41-48 (Carol Stern
discussing in detail the incorporation of the Schmidt Report into the November 2014 IEP)).
A close review of the “Accommodations and SDI” portion of the November 2014 IEP
reveals that virtually all of Dr. Schmidt’s recommendations were incorporated into this IEP.
(SOF ¶ 156; 7/29 Tr. at 46-60). For instance, the November 2014 IEP (1) added a measurable
goal of “Listening Skills” (P-24 at 21); (2) placed B.A. in a small classroom environment for
reading, written expression, executive functioning and social skill (P-24 at 30); (3) called for inclass support in the areas of both speech/language and math (id.; 7/31 Tr. at 49); and (4) listed a
number of classroom accommodations “to address focus and attention.” (P-24 at 28). With all of
these accommodations, pursuant to the November 2014 IEP, B.A. would still spend 69% of the
day in regular education at the District. (P-24 at 36; HO Rpt. ¶ 40).
Carol Stern, a sixth grade learning support teacher at the District who was involved in the
drafting of the November 2014 IEP, testified that she “felt extremely positive about [the]
[November] IEP meeting” and that B.A. “would really do well at the middle school.” (7/31 Tr.
at 38). After going through the November 2014 IEP alongside the Schmidt Report, Ms. Stern
outlined the ways in which each of the recommendations in the Schmidt Report were

13

incorporated into the November 2014 IEP, and would have been implemented had B.A. stayed at
the District for sixth grade as opposed to transferring to Hill Top. (7/31 Tr. at 10-38; 56-58).
Finally, the Administrative Record reflects that Hill Top provided B.A. with
individualized education programming, and that B.A. has made progress while at Hill Top. (HO
Rpt. ¶ 47; 7/31 Tr. at 76-142).
III.

PROCEDURAL HISTORY
Parents initiated this matter on March 13, 2015, by filing a special education due process

complaint against the District, in which they alleged that the District denied B.A. a FAPE. After
five days of evidentiary hearings occurring on July 29, 2015, July 31, 2015, August 21, 2015,
September 2, 2015, and November 20, 2015, the Hearing Officer found in favor of the District
on all claim. Specifically, the Hearing Officer concluded:
•

The District, through its evaluation processes and reports, identified B.A.’s
“consistent” needs in the areas of executive functioning, reading/writing, and
social skills;

•

The District, through the design of B.A.’s programming, proposed IEPs that were
reasonably calculated to yield meaningful education benefit; and

•

The District, through the implementation of those IEPs, facilitated B.A.’s learning
and progress to a significant degree.

(HO Rpt. at 19).
Parents filed the instant complaint on May 24, 2016. (ECF 1). On November 22, 2016,
the District filed a motion for judgment on the administrative record (ECF 12, “District Mot.”),
and accompanying statement of undisputed facts (ECF 13, “SOF”). That same day, Parents filed
a cross motion for judgment on the administrative record (ECF 14, “Parent Mot.”). On February
3, 2017, Parents filed an opposition to the District’s motion (ECF 18, “Parent Opp’n”), to which
the District filed a reply brief that same day (ECF 17, “District Reply”).

14

IV.

LEGAL FRAMEWORK
A. IDEA Framework
Under the IDEA, states receiving federal education funding must provide every disabled

child with a “free appropriate public education,” referred to as a FAPE. 20 U.S.C. § 1412(a)(1). 3
The Supreme Court has described a FAPE as consisting of “educational instruction specially
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.” Bd. of Educ. of Hendrick
Hudson Ctrl. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 188-89 (1982). Central to
the provision of a FAPE is the IEP, the “program of individualized instruction for each special
education student” that is developed via collaboration between parents and schools. Ridley Sch.
Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012). “Each IEP must include an assessment of the
child’s current educational performance, must articulate measurable educational goals, and must
specify the nature of the special services that the school will provide.” Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 53 (2005).
As the Supreme Court recently clarified, “[t]o meet its substantive obligation under the
IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances. Endrew F. ex rel. Joseph F. v. Douglas Cty.
Sch. Dist. RE-1, 137 S. Ct. 988, 999, 197 L. Ed. 2d 335 (2017). An IEP need not “provide ‘the
3

A FAPE consists of “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 1414(d)
of this title.” 20 U.S.C. § 1401(9).
15

optimal level of services,’ or incorporate every program requested by the child’s parents” but
rather need only, at a minimum, “be reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s intellectual potential.” Ridley, 680 F.3d
at 269 (quoting D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010)) (internal
quotations omitted).
If parents believe that their child’s right to a FAPE has been violated, the IDEA provides
recourse in the form of an administrative due process hearing. 20 U.S.C. § 1415(f). Should
either party be “aggrieved by the findings and decision” reached after such hearing, the IDEA
further allows that party to file a civil suit in state or federal court. Id. § (i)(2)(A).
“The party challenging the administrative decision bears the burden of persuasion before
the district court as to each claim challenged.” Ridley, 680 F.3d at 270. In evaluating the
arguments of the party challenging the Hearing Officer’s findings, the district court must base its
decision on the preponderance of the evidence. Id. § 1415(i)(2)(C)(iii).
B. Standard of Review
The Supreme Court has cautioned that the IDEA’s provision of judicial review is not an
“invitation to the courts to substitute their own notions of sound educational policy for those of
the school authorities which they review.” Rowley, 458 U.S. at 206. To that end, the Court set
forth a unique standard of review for district courts to use when reviewing the decisions of
Hearing Officers in cases arising under the IDEA: “due weight” must be afforded to such
decisions. Id. (“The fact that [20 U.S.C.] § 1415(e) requires that the reviewing court ‘receive the
records of the [state] administrative proceedings’ carries with it the implied requirement that due
weight shall be given to these proceedings.”). In this Circuit, the “due weight” standard entails a
“modified de novo” review in which “[f]actual findings from the administrative proceedings are

16

to be considered prima facie correct,” and the court must explain any rejection of them. Shore
Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (quoting S.H.
v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)).
A district court is to respect the credibility determination of the witnesses made by the
administrative hearing officer unless “nontestimonial evidence” requires a contrary conclusion.
Shore, 381 F.3d at 200. The district court is therefore to give “requisite deference” when the
hearing officer affords more or less weight to the testimony of various experts based upon the
nature of their expertise or the amount of time spent with the child. Id.; see also T.M. ex rel.
T.M. v. Quakertown Cmty. Sch. Dist., No. 16-3915, 2017 WL 1406581, at *13 (E.D. Pa. Apr.
19, 2017).
The Hearing Officer’s legal conclusions are reviewed de novo. S.H., 336 F.3d at 270.
V.

DISCUSSION
A. Parties’ Arguments
(1) District’s Motion (ECF 12)
The District argues that the Hearing Officer’s decision should be upheld because Parents’

contentions amount to no more than a “disagree[ment]” with the District as to the best
educational setting for B.A., and they are unable to demonstrate that the District failed to provide
B.A. with a FAPE. (District Mot. at 1). As for the period between March 2013 and June 2014,
for which Parents seek compensatory education, the District argues that the administrative record
reflects that B.A. made meaningful progress on executive functioning and other skills in fourth
and fifth grades, over the course of which his IEP was repeatedly revised to address his needs.
(Id. at 10-13). As for the 2014-2015 and 2015-2016 school years, for which Parents seek tuition
reimbursement, the District argues that B.A.’s May 2014 IEP (the operative IEP at the time that

17

Parents decided to put B.A. in private placement) appropriately addressed B.A.’s needs in a way
that also allowed him to receive a meaningful education. (Id. at 19).
The District argues that it should not be penalized for waiting to finalize the November
2014 IEP until after receiving that it from Parents, as the revisions made to it appropriately
incorporated all of the recommendations contained in the Schmidt Report. (Id.).
While recognizing that the tuition reimbursement analysis ends if B.A. was provided a
FAPE, the District additionally argues, arguendo, that (1) Hill Top was not an appropriate
placement for B.A., as it’s only meaningful accommodation that differs from what was offered
by the District is small class sizes (which is not even necessarily beneficial for B.A.); and (2)
equitable considerations favor the District because Parents did not provide the District with
sufficient notice of their decision to privately place B.A, or an opportunity to correct any
perceived deficiencies in his educational programming. (Id. at 21-22).
(2) Parents’ Opposition to District’s Motion (ECF 18)
Parents argue in response that the District failed to provide B.A. with a FAPE in two key
ways. First, that it failed to provide any systematic, direct instruction in the area of executive
functioning until near the end of his fifth grade year, which prevented B.A. from making
meaningful progress in that area during that time. (Parent Opp’n at 4-8). Second, the District
failed to provide B.A. with the small, structured, regular education environment he required in
order to make meaningful educational progress. (Id. at 12- 15). Instead, they argue, B.A. was in
classes (of around twenty-three students) that were either “rather large” and “overwhelming,” or
in classes so small that he was deprived of the benefit of his regular education peers. (Id.).

18

(3) Parents’ Motion (ECF 14)
In their motion seeking judgment on the administrative record, Parents argue that they are
entitled to compensatory education for the period between March 2013 and June 2014 because:
•

While B.A.’s IEPs included certain accommodations for executive functioning, they
did not provide for any “direct instruction” in executive functioning or include any
specific goals in executive functioning until March 2014. As a result, the District was
unable to monitor B.A.’s progress (Parent Mot. at 21-24, 27);

•

When B.A. was struggling in fifth grade math class, he was inappropriately
disciplined and ultimately switched into a “slower paced, lower level, inappropriate
math class” instead of being offered the support he required in his current math class
(Parent Mot. at 25);

•

The Hearing Officer placed undue reliance on B.A.’s satisfactory grades in
determining that the District had provided him with a FAPE.

They further argue that they are entitled to tuition reimbursement for the 2014-2015 and
2015-2016 school years because:
•

The May 2014 IEP, which was the IEP in place at the time Parents made the
decision to place B.A. in Hill Top, was deficient because it lacked “actual
executive functioning goals” and direct instruction in social skills. (Parent Mot. at
25);

•

While the May 2014 IEP contained goals for reading comprehension and written
expression, they were not implemented in a way that would allow B.A. to make
meaningful progress because, inter alia, his classes were either too large and
“overwhelming” or too small and full of only special education students, which
was a violation of the requirement that B.A. be educated in the Least Restrictive
Environment (“LRE”) (id. at 37);

•

The November 2014 IEP—which Parents were not required to consider when
deciding whether or not to place B.A. at Hill Top—was also inappropriate
because it, inter alia, did not include executive functioning goals, required B.A. to
forego electives in order to receive an executive functioning instruction, otherwise
failed to provide appropriate “research based” reading and writing instruction, and
required B.A. to either function in an “overwhelming” regular education
environment or non-LRE compliant special education environment. (Id. at 3840).

19

Parents also repeatedly argue that the Hearing Officer failed to engage with the details of
Parents’ complaints regarding the adequacy of B.A.’s IEPs, and that the Hearing Officer’s
decision was made “in an entirely generic and conclusory fashion.” (Parent Mot. at 26).
B. Analysis
i. Did the Hearing Officer err as a matter of law in denying Parents’
request for compensatory education between March 2013 and June
2014?
The IDEA grants district courts broad discretion in fashioning a remedy for a denial of a
FAPE. See 20 U.S.C. § 1415(i)(2)(C)(iii) (stating that the court “shall grant such relief as the
court determines is appropriate”). Determining what relief is warranted is a case by case analysis
under which the “court will evaluate the specific type of relief that is appropriate to ensure that a
student is fully compensated for a school district’s past violations of his or her rights under the
IDEA and develop an appropriate equitable award.” Ferren C. v. Sch. Dist. of Phila., 612 F.3d
712, 720 (3d Cir. 2010). Compensatory education, or the “replacement of educational services
the child should have received in the first place,” is one possible remedy available for the
deprivation of the right to a FAPE. Ferren C. v. Sch. Dist. of Phila., 595 F. Supp. 2d 566, 577
(E.D. Pa. 2009) (quoting Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)); Lester
H. v. Gilhool, 916 F.2d 865, 872-73 (3d Cir. 1990).
“‘A disabled student’s right to compensatory education accrues when the school knows
or should know that the student is receiving an inappropriate education.’” Lauren W. v.
DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007) (quoting Ridgewood Bd. Of Educ v. N.E. ex rel.
M.E., 172 F.3d 238, 250 (3d Cir. 1999)). The right to compensatory education arises not from
the denial of an appropriate IEP, but from the denial of appropriate education. Id. That is,
“compensatory education is not an appropriate remedy for a purely procedural violation of the

20

IDEA.” Me. Sch. Admin. Dist., 321 F.3d at 19; see P.P. ex rel. Michael P. v. W. Chester Area
Sch. Dist., 585 F.3d 727, 739 (3d Cir. 2009). Where compensatory education is warranted, the
student “is entitled to [it] for a period equal to the period of deprivation, excluding the time
reasonably required for the school district to rectify the problem.” Id.
1. Appropriateness of Operative IEPs
a. Procedural Compliance
Parents’ principal argument as to why B.A. was denied a FAPE is that the operative IEPs
did not specifically provide for “direct instruction” or contain “Annual Measurable Goals” in the
area of executive functioning. They argue that, in light of the 2010 CHOP Report, the District
should have known that B.A. required that kind of instruction in order to receive a FAPE.
(Parent Opp’n at 9). Parents belittle any instruction the District did provide in the area of
executive functioning, calling it “ad hoc and unsystematic,” and amounting to no more than
“basic accommodations” that were not measurable because they were not specifically designated
as goals in the IEP. (Parent Opp’n at 4; Parent Mot. at 22-26).
As stated above, Parents are only entitled to compensatory education if this Court finds
that B.A. was denied a FAPE during the alleged time period. A violation of one of the IDEA’s
procedural safeguards, such as an inappropriate IEP, is only a denial of a FAPE “if such violation
caused substantive harm to the child or his parents.” Alloway Twp. Bd. Of Educ. V. C.Q., No.
12-6812, 2014 WL 1050754, at *5 (D.N.J. Mar 14, 2014) (citing C.H. v. Cape Henlopen Sch.
Dist., 606 F.3d 59, 66 (3d Cir. 2010)). Substantive harm, in turn, occurs only if the procedural
violation “results in a loss of educational opportunity for the student, seriously deprives parents
of their participation rights, or causes a deprivation of educational benefits.” D.S. v. Bayonne
Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010).

21

Here, as the Administrative Record reflects, B.A. received a FAPE between March 2013
and June 2014 because he received substantial instruction in the area of executive functioning
throughout his fourth and fifth grade years. The fact that this instruction was not specifically
referred to as an “Annual Measurable Goal” or “direct instruction” in the IEPs was neither a
procedural nor substantive violation of the IDEA.
Preliminarily, it is worth noting that executive functioning is a particularly broad
category of need. One witness, a behavioral specialist, for instance, defined executive
functioning as:
[A] higher level of thinking. It’s the ability to self-regulate. It is
the ability to have time management and to read social cues and to
navigate tasks; the ability to switch tasks; the ability to have
forward thinking of things one might need ahead of time; social
cues, form relationships, organization.
(7/29 Tr. at 146). Similarly, as Ms. Williamson testified, the term “executive functioning” is a
broad one, and encompasses many other important skills—organization, time management,
planning, task initiation, study skills—many of which were, in fact, directly addressed in the
“Annual Measurable Goals” portion of the IEPs. (see 9/2 Tr. at 437-38; 9/2 Tr. at 419-20).
Parents themselves admit that executive functioning is a “global” category, and “includes
organizational skills, attention and focus, planning, listening skills, memory strategies, and time
management.” (Parent Opp’n at 5 n.3).
Therefore, it is entirely reasonable for the District to address, in B.A.’s IEP, its concerns
related to his executive functioning skills in other, more specific categories of the IEP. See
Parker C. through Todd v. W. Chester Area Sch. Dist., No. CV 16-4836, 2017 WL 2888573, at
*9 (E.D. Pa. July 6, 2017) (recognizing that “[e]xecutive functioning is an expansive concept,
involving cognitive functions that control and direct all behavior” and holding that district was

22

“not required to employ direct instruction to address [the student’s] executive [functioning]
needs” where those needs were addressed in other aspects of the IEP.). Examples of this type of
overlap abound in the Administrative Record. For instance, the December 2012 IEP included a
goal related to task initiation and addressing B.A.’s “avoidance behavior,” (P-15 at 21), and the
December 2013 IEP’s goals for writing and reading comprehension were intended in part to
address B.A.’s issues with organizing his thoughts and executing his assignments. (P-17 at 1922).
Similarly, the Administrative Record reflects that one reason the IEP may not have
included “direct instruction” for executive functioning skills was because “direct instruction”
tends to refer to individualized, out-of-classroom instruction (9/2 Tr. at 489), but executive
functioning skills are preferably taught in the classroom, “while they’re doing it.” (9/2 Tr. at
491). As Ms. Corcoran testified, “I teach my students how to use executive functioning skills,
like, in authentic settings. . . It’s not a pull-out direct instruction, but it’s, like, teaching as in real
life situations.” (9/2 Tr. at 490-91).
Moreover, B.A.’s IEP was frequently revised to include support in the area of executive
functioning. While Parents argue that these frequent IEP revisions indicate that former iterations
of the IEP were not appropriate (see Parent Opp’n at 8), the revisions only support the Hearing
Officer’s conclusion that “when the District was confronted with new information, and/or saw
needs developing in school, and/or worked on [P]arents’ concerns for [B.A.’s] programming or
progress, it revised [his] IEPs or adjusted [his] programming.” (HO Rpt. at 20).
Indeed, the District’s IEP team was required to review B.A.’s IEP at least annually to
determine whether he had reached his stated goals, and to address “lack of progress, necessary
changes arising from reevaluation of the child, and parental input, among other things.” S.H.,

23

336 F.3d at 265 (citing 20 U.S.C. § 1414(d)(1)(A)(4)). Far from proving the inappropriateness
of the former iterations, the District’s revisions demonstrate its diligent compliance with the
provisions of the IDEA. See H.D. ex rel. A.S. v. Cent. Bucks Sch. Dist., 902 F. Supp. 2d 614,
624–25 (E.D. Pa. 2012) (finding that the administrative record “amply confirms” that the student
was offered a FAPE because, inter alia, “revisions to his IEP were made to reflect the
observations and data showing which interventions were and were not succeeding, with
unsuccessful interventions and supports removed and successful ones retained.”).
Periodic IEP revisions were particularly appropriate in B.A.’s case because (1) as the
Record reflects, all fourth and fifth grade children need some instruction in the area of executive
functioning (see 9/2 Tr. at 473; 491), and B.A.’s more pronounced needs become apparent over
the course of those critical school years; and (2) B.A.’s epilepsy and ADHD medications were
changing throughout his fourth and fifth grade years, and B.A.’s parents admit that these
medications could have affected his academic and social progress. (7/29 Tr. at 246).
Accordingly, because of both the nature of B.A.’s observed weaknesses and the District’s
appropriate effort to address them, the Court agrees with the Hearing Officer that there was no
procedural violation of the IDEA.
b. Substantive Compliance
All of the foregoing supports the conclusion that B.A.’s operative IEPs during the time
between March 2013 and June 2014, as written, were sufficient to provide B.A. a FAPE.
However, even assuming, arguendo, the District’s failure to include executive functioning as an
“Annual Measurable Goal” or area requiring “direct instruction” did amount to a procedural
violation of the IDEA, that omission did not amount to a denial of a FAPE, such that Parents
would be entitled to compensatory education. See, e.g., Rodrigues v. Fort Lee Bd. of Educ., 458

24

Fed. App’x 124, 127 (3d Cir. 2011) (not precedential) (finding that a lack of measurable goals in
an IEP was a procedural error but did not affect a student’s substantive rights or deny
a FAPE where student was mainstreamed and progress was measured by grades and state
proficiency assessments); N.M. ex rel. M.M. v. Sch. Dist. of Philadelphia, 394 Fed. App’x 920,
923 (3d Cir. 2010) (not precedential) (finding that IEP lacking annual goals relating to some of a
student's needs stemming from his disability was not a procedural flaw rising to a substantive
harm because the IEP still provided a FAPE). This conclusion is consistent with the IDEA’s
policy of limiting parents’ ability to pursue claims based on procedural violations because the
compliance of school districts with the IDEA’s procedural requirements, “rather than being a
goal in itself,” is “primarily . . . significant because of the requirements’ impact on students’ and
parents’ substantive rights.” D.S., 602 F.3d at 565.
In its Reply, the District relies heavily on L.M., ex rel. M.M. v. Downingtown Area Sch.
Dist., No. 12-CV-5547, 2015 WL 1725091, at *1 (E.D. Pa. Apr. 15, 2015), to support its
contention that “a lack of goals (or “direct instruction”) in executive functioning skills [does not]
lead[] to a denial of FAPE.” (District Reply at 3-5). In L.M., the court explained,
it would [] be inconsistent with the longstanding interpretation of
the IDEA to find that providing a FAPE requires designing specific
monitoring goals for every single recognized need of a disabled
student. . . [A] FAPE is a threshold guarantee of services that
provide a meaningful educational benefit, not a perfect education.
While a lack of goals or progress monitoring for particular areas of
need may render an IEP procedurally defective, plaintiffs have not
provided evidence that any procedural defects rose to the level of
substantial harm necessary to award the compensatory education or
tuition reimbursement sought.
Id. (quoting Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 572-3, aff’d in part, 581 F.
App’x 141 (3d Cir. 2014). In L.M., the parents had not made that showing simply because the
student’s IEP did not contain goals in the area of “written expression.” Id.
25

The Court also finds L.M. persuasive. Here, the Administrative Record is replete with
examples of how B.A. was provided with daily personal attention and assistance commensurate
with his needs in the area of executive functioning, notwithstanding any lack of specific goals in
his IEPs. (See, e.g., 7/31 Tr. at 198-99 (Q: When [B.A.] was in your class, how did he do with
task completion? A: Unsupported, not well. But with support he was able to complete tasks. . .
Q: Over the years did you see improvement with that with [B.A.]? A: Yes.”); 9/2 Tr. at 397-8
(“Q: Did you [Ms. Corcoran] provide any push-in services for [B.A.] in his regular education
classes? A: I’m always around in the classrooms, like going into social studies, science, checking
in on them throughout the day . . . you know, by the IEP I wasn’t mandated to be in the room . . .
[b]ut I just naturally am”).
Accordingly, we agree with the Hearing Officer that “the record taken as a whole shows
that [B.A.] made progress in [his] areas of need, as well as academically overall[, and] the
District met its obligations to the student under the [IDEA].” (HO Rpt. at 20-21). B.A. received
instruction and attention in all aspects of his education—and in the area of executive functioning
in particular—such that he was afforded “a meaningful educational benefit,” which is all the
IDEA protects. D.S., 602 F.3d at 557 (“Though the IEP must provide the student with a basic
floor of opportunity, it need not necessarily provide the optimal level of services that parents
might desire for their child.”) (internal citations omitted).
2. Class Size
Parents’ other main argument as to how the District denied B.A. a FAPE between March
2013 and June 2014 is that the District consistently placed B.A. in classes that were the wrong
size. That is, Parents argue that B.A. was both improperly placed in large classes (of about
twenty-four students) because they were “overwhelming,” and improperly placed in smaller,

26

learning support classes because that denied him of his right to be educated in the Least
Restrictive Environment (“LRE”), pursuant to the “mainstreaming” requirements of the IDEA. 4
Parents argue that the only way to have appropriately accommodated for B.A.’s needs at the
District would have been to place him in small, but regular education classes. (Parent Opp’n at
13).
As to the class size being too large to provide B.A. a FAPE, the District is correct that
there is virtually no evidence in the Administrative Record to suggest that B.A. was
overwhelmed by the size of his regular education classes. To the contrary, there is evidence in
the record that B.A. benefitted from being in large classes, where he was exposed to and
connected with his regular education peers. (See 9/2 Tr. at 611-12).
Next, while the Hearing Officer did not explicitly analyze the District’s compliance with
IDEA’s mainstreaming requirement—which Parents did not raise—he evidently did not find any
violation in that regard because the Hearing Officer concluded that B.A. was not denied a FAPE,
and noted the precise percentages of the school day he spent in regular education classes
pursuant to each operative IEP. (See HO Rpt. at ¶¶ 29, 32, 42).
For the sake of completeness, the Court will apply the Third Circuit’s two-part test for
determining whether a school is in compliance with the IDEA’s mainstreaming requirement,
articulated in Oberti v. Board of Education of Borough of Clementon School District, 995 F.2d

4

The “mainstreaming” provision of the IDEA provides, in pertinent part,
“[t]o the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care facilities,
are educated with children who are not disabled, and special classes,
separate schooling, or other removal of children with disabilities from
the regular educational environment occurs 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.A. § 1412(a)(5)(A).
27

1204 (3d Cir. 1992). First, the Court must ascertain “whether education in the regular classroom,
with the use of supplementary aids and services, can be achieved satisfactorily.” Id. (quoting
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989)) (internal quotations
omitted). Second, if the Court finds that for the child to benefit educationally he must be placed
outside the regular classroom, “the court must decide ‘whether the school has mainstreamed the
child to the maximum extent appropriate.’” Id. (quoting Daniel R.R., 874 F.2d at 1048).
Various factors inform the court’s decision under the first prong, including (1) the extent to
which the school endeavored to accommodate the child in a regular classroom, including with
supplemental aids and services, (2) a comparison of the likely educational benefits to the child
from the regular program as opposed to those from a special education program, and (3) the
possible detriment to other students of the child’s inclusion in a regular classroom. See id. at
1216-1217. Where a school district “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 Act’s mainstreaming
directive.” Id. at 1216.
As to the first Oberti factor, the record is clear that the District seriously considered and
took steps to include B.A. in a regular classroom. For one, as Mr. Lefko testified, the District
was aware of the ways in which B.A. benefitted from his regular education classes, and sought to
keep him in regular education classes for as much of the day as possible. (9/2 Tr. at 611-12). As
discussed in detail supra, II, the District devoted a lot of resources to providing B.A. with
supplemental aids and services in his regular education classes by way of personal in-classroom
attention and instruction.

28

One apt example of the District recognizing B.A.’s weaknesses, yet still making every
effort to mainstream him, was its decision to switch B.A.’s fifth-grade math class from a large
class, where he was not excelling, to a smaller and slower-moving class, while still keeping him
in a regular education classroom that offered the same curriculum. (7/31 Tr. at 193; HO Rpt. at
20).
Ultimately, the District concluded that B.A. could not benefit from being educated
entirely in a general education environment, even with supplementary aides and services.
However, the District also satisfied the second prong of the Oberti test, in that it took steps to
mainstream B.A. as much as possible, and narrowly tailored the time B.A. spent in learning
support classrooms to the areas of concern—namely writing and reading—identified in his IEPs.
(See P-20 at 27). As a result, B.A. spent more than 2/3 of his day in regular education classes at
all relevant times. See H.G. ex rel. Davis v. Upper Dublin Sch. Dist., No. CIV. A. 13-1976,
2015 WL 1808538, at *16 (E.D. Pa. Apr. 17, 2015) (applying Oberti, and finding that the
hearing officers “properly concluded that [the student] cannot benefit from being educated
entirely in a general education environment,” and an IEP in which the student spent 56% of the
school day in regular classroom satisfied the requirement that the student be “mainstreamed . . .
to the maximum extent possible.”).
For all of the foregoing reasons, we find that the Hearing Officer properly found that
B.A. was not denied a FAPE for the period between March 2013 and June 2014, and Parents are
not entitled to compensatory education for that period.

29

ii. Did the Hearing Officer err as a matter of law in denying Parents’
request for tuition reimbursement for the 2014-2015 and 2015-2016
school years?
Parents additionally seek tuition reimbursement for the 2014-2015 and 2015-2016 school
years during which they placed B.A. at Hill Top.
IDEA empowers a court “to order school authorities to reimburse parents for their
expenditures on private special education for a child if the court ultimately determines that such
placement, rather than a proposed IEP, is proper under the Act.” Sch. Comm. Of the Town of
Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985). Courts apply a three-step analysis to
determine whether tuition reimbursement is appropriate, known as the Burlington-Carter test.
Under the test, the party seeking relief must show: (1) the public school did not provide a FAPE;
(2) placement in a private school was proper; and (3) the equities weigh in favor of
reimbursement. See Florence Cnty. Sch. Dist. v. Carter ex rel. Carter, 510 U.S. 7, 12-16 (1993);
Burlington, 471 U.S. at 369-70, 373-74.
1. Provision of a FAPE
Pursuant to the IDEA, “a school district provides a FAPE by designing and implementing
an [IEP], which ‘must be reasonably calculated to enable the child to receive meaningful
educational benefits in light of the student’s intellectual potential.’” P.P. ex rel. Michael P. v.
West Chester Area School Dist., 585 F.3d 727, 729-30 (quoting Shore Reg’l High Sch. Bd. Of
Educ. V. P.S., 381 F.3d 194, 198 (3d Cir. 2004)). Here, as the Hearing Officer correctly found,
“the programming which controlled the student’s education when the student was unilaterally
enrolled by parents in August 2014 was the IEP of May 2014,” because it was “the last-offered
IEP which parents had in hand before they made their private placement enrollment decisions[.]”
(HO Rpt. at 21-22); see Coleman, 983 F. Supp. 2d 543, 563 (“evaluation of the adequacy of an

30

IEP can only be determined ‘as of the time it was offered to the student, and not at some later
date.’” (quoting Fuhrmann v. East Hannover Bd. Of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993)
(internal citations omitted)). Accordingly, the relevant question is whether the May 2014 IEP
was developed and implemented in a way that provided B.A. with a FAPE.
a. Appropriateness of the May 2014 IEP
Parents argue that “although the May 2014 IEP finally, and very belatedly, included some
direct instruction in executive functioning skills,” the May 2014 IEP was still inappropriate
because (1) “actual executive functioning Goals . . . were still conspicuously missing[,]” (2) the
amount of daily instruction B.A. received in executive functioning decreased, and (3) B.A.’s
reading comprehension and written expression goals were not implemented in a way that
allowed B.A. to make meaningful progress because it “does not include the kind of researchbased instruction in reading comprehension or written expression recommended in [the Schmidt
Report].” (Parent Opp’n at 35-36).
The Administrative Record reflects that the May 2014 IEP was very similar to the March
2014 IEP, in that the “Measureable Annual Goals” included (1) reading comprehension; (2) selfmonitoring his active listening; and (3) writing. Also like the March 2014 IEP, the May 2014
IEP contained a list of specific strategies to be implemented related to executive functioning,
including teacher “push-ins” to ensure B.A. understood directions and assignments, as well as a
“Modification and SDI” “to address inattention,” which specified that “teachers should monitor
attention and prompt to complete the task.” (P-20 at 18-20). Pursuant to the May 2014 IEP, in
each of fifth and sixth grade, B.A. would receive 45 minutes per day, 5 days per week in each of
reading and written expression. He would participate with students without disabilities in the
general education curriculum for spelling, math, science, and social studies. Additionally,

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pursuant to both the March 2014 IEP and May 2014 IEP, B.A. would spend 69% of his day in
regular education classes.
As Parents point out, one minor change between the March 2014 and May 2014 IEPs was
that, pursuant to the March 2014 IEP, B.A. would receive executive functioning instruction 40
minutes per day, 4 times per 6 day cycle (whereas pursuant to the March 2014 IEP, he would
receive that instruction 30 minutes per day, 5 days per week). This amounted to somewhere
between 2 hour and 2 hours, 40 minutes of instruction per week. This change amounted to a de
minimus reduction in time devoted to executive functioning instruction for B.A., and did not
amount to the denial of a FAPE. This is particularly true given, as Mr. Lefko testified, B.A.’s
small class instruction was “predominately” focused on reading comprehension, but sometimes
included working on other skills related to executive functioning. (9/2 Tr. at 554).
For the reasons stated above, and supra, II, we find that the Hearing Officer correctly
found that the May 2014 IEP was sufficient on its face and as implemented, to provide B.A. with
a FAPE.
b. Least Restrictive Environment
Parents’ argument that B.A. was not sufficiently “mainstreamed” at the District is
inconsistent—and therefore even less persuasive—in the context of tuition reimbursement for the
2014-2015 and 2015-2016 school years. “The “IDEA requires that disabled students be educated
in the least restrictive appropriate educational environment.” Ridgewood, 172 F.3d at 249
(emphasis added). “If the educational environment is not appropriate, then there is no need to
consider whether it is the least restrictive.” S.H., 336 F.3d at 265. Applied here, Parents cannot
simultaneously argue that the District environment is not appropriate and that it is not the LRE,

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since the LRE analysis is only applicable in the event that the student’s environment is deemed
appropriate.
Additionally, Parents’ argument with respect to mainstreaming is undermined by the fact
that Parents chose to place B.A. at Hill Top, a disabled-only school. While Parents cite Rose v.
Chester Cty. Intermediate Unit, No. CIV. A. 95-239, 1996 WL 238699, at *9 (E.D. Pa. May 7,
1996), for the proposition that the mainstreaming “requirement does not make sense in the
context of parental placement,” that court said only that the mainstreaming requirement does not
apply to parents. Parents’ argument that B.A.—who would spend 69% of his day in regular
education classes—was denied a FAPE because he was not adequately mainstreamed is
nonetheless undermined by the fact that Parents subsequently placed B.A. at Hill Top, where any
amount of mainstreaming was not even an option. (Parent Opp’n at 15 n.9).
As the Hearing Officer correctly concluded, the District believed that B.A. would benefit
from being primarily in regular education classes, and appropriately balanced that against his
need for more personalized attention in certain subjects. This is also reflected by the fact that the
time that B.A. spent out of the regular education classroom slowly, and minimally, decreased
over time, as his specific needs in the areas of executive functioning, organization and social
skills became more pronounced (and different in kind from the normal supports in these areas
needed by fourth and fifth graders). (See HO Rpt. at 20-21; 9/2 Tr. at 491)
Additionally, while the Schmidt Report, like the District, recognized that B.A. would
benefit from small classes with low student-to-teacher ratios, the Schmidt Report did not
recommend the specific accommodations for which Parents advocated, i.e., small classes in a
strictly regular education environment. Indeed, Parents admit that their decision to send B.A. to
Hill Top was explicitly based on the Schmidt Report, and Hill Top has only special education

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students. (P-23; 8/21 Tr. at 289). Moreover, Dr. Schmidt admits that she never observed B.A. at
the District, so could not opine on whether the District had struck the right balance between
placing B.A. in larger, regular education classes and smaller, learning support classes. (8/21 Tr.
at 300-302).
Accordingly, for the reasons stated above, the Court agrees with the Hearing Officer that
the May 2014 IEP, if implemented, would have provided B.A. with a FAPE. While Parents were
entitled to reject the May 2014 IEP, they are not entitled to tuition compensation for that decision
because the first prong of the Burlington-Carter test is not satisfied. The Court need not reach at
this time whether Hill Top was an appropriate environment for B.A., or which party the balance
of equities favors. (HO Rpt. at 24).
iii. Did the Hearing Officer err as a matter of law in denying Parents’
request for reimbursement for the Independent Educational
Evaluation by Dr. Schmidt?
In their Complaint, Parents state that they are entitled to reimbursement for the
Independent Educational Evaluation (“IEE”) conducted by Dr. Kara Schmidt, though make no
substantive argument in support of the request. (ECF 1 at 36). The District, however, argues
that Parents are not entitled the compensation for the IEE because (1) they never asked the
District to pay for it (7/28 Tr. at 252); (2) Parents did not collaborate with the District as to who
would conduct the IEE, and it was “more likely sought in an effort to support Parents’ position
that [B.A.] should be placed at Hill Top”; (3) Parents never expressed disagreement with the
2012 Reevaluation Report 5; and (4) the 2012 Reevaluation Report was “more than sufficient.”
(District Mot. at 32-33).

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The Third Circuit has rejected this argument, and applies the tuition reimbursement regulation
broadly to permit reimbursement not only when plaintiffs expressly disagree with an evaluation but also
when “the parents[ ] fail[ ] to express disagreement with the District’s evaluations prior to obtaining their
own” evaluation, because unless the regulation is so applied “the regulation [would be] pointless because
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An IEE is “an evaluation conducted by a qualified examiner who is not employed by the
public agency responsible for the education of the child in question.” 34 C.F.R. §
300.502(a)(3)(i). If a parent disagrees with the reevaluation by the public agency, the parent has
a right to an IEE, and unless the public agency files a due process complaint and establishes its
evaluation was appropriate, the public agency must pay for the IEE. Id. at § 300.502(b). If it is
determined an “agency’s evaluation is appropriate,” through a due process complaint, however,
as here, a parent “still has the right to an IEE, but not at public expense.” 34 C.F.R. §
300.502(b)(3).
The Hearing officer denied Parents’ request for reimbursement for the Schmidt Report,
on the basis that it:
did not present information that was entirely new for an
understanding of [B.A.’s] needs or potential programming in
school. While it may [] deepen understanding of [B.A.’s] needs, or
help to flesh out further details related to programming, [the
Schmidt Report] did not place the parties in a position where the
trajectory of understanding [B.A.’s] needs was changed; and the
programming in the November 2014 IEP, largely the same as in
the appropriate May 2014 IEP, bears this out.”
(HO Rpt. at 27). The Court agrees with the District and Hearing Officer.
The Court further finds that Parents are not entitled to reimbursement for the IEE because
they sought Dr. Schmidt’s evaluation outside the collaborative process, and only sought
reimbursement after unilaterally contacting Dr. Schmidt. This was presumably because it was
intended to provide “additional evidence that [the District’s] proposed services were inadequate,
thereby supporting [Parents’] contention that private placement at public expense was

the object of parents’ obtaining their own evaluation is to determine whether grounds exist to challenge
the District’s.” Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 87 (3d Cir. 1999).
Consequently, the Third Circuit has held reimbursement may be warranted where a parent does not take a
position with respect to the district’s evaluation or otherwise “fails to express disagreement.” Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 274-75 (3d Cir. 2007).
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necessary.” L.M., 2015 WL 1725091, at *25 (holding parents not entitled to reimbursement
where the “record demonstrates the evaluation was not obtained by plaintiffs in consultation with
the District or with the intention [the student] would consider defendant’s proposed placement.”).
Parents are not entitled to reimbursement for an IEE obtained under these circumstances.
iv. Claims under Section 504 of the Rehabilitation Act
Plaintiffs argue the District violated Section 504 of the Rehabilitation Act by denying
B.A. a FAPE. The District asserts Plaintiffs failed to provide any evidence of discrimination
against B.A. so as to create liability under Section 504.
IDEA and Section 504 are similar causes of action. While IDEA imposes an affirmative
duty on public schools that accept certain federal funds, Section 504 is a prohibition against
disability discrimination in federally funded programs. See 29 U.S.C. § 794(a) (“No otherwise
qualified individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”). A FAPE violation is not a per
se violation of Section 504; a plaintiff must still prove all elements of a Section 504 case.
Andrew M. v. Del. County Office of Mental Health and Mental Retardation, 490 F.3d 337, 350
(3d Cir. 2007). When a district court finds a child was provided with appropriate IDEA services,
however, the court need not reach the Section 504 claim. See Christen G. v. Lower Merion Sch.
Dist., 919 F. Supp. 793, 821 (E.D. Pa.1996).
As the Hearing Officer concluded, Parents adduced no evidence of discrimination on the
basis of disability, and did not argue that the evidence established a separate and distinct claim
under § 504 in addition to the District’s alleged denial of FAPE. “When parents assert identical
claims under IDEA and Section 504, the findings in favor of a district or the remedies assessed

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against a district are satisfied under the IDEA . . . To the extent that Parents intended to pursue a
§ 504 claim, it is deemed abandoned or waived based upon lack of evidence/argument.” L.M.,
2015 WL 1725091, at *26. Here, because B.A. was provided with a FAPE under the IDEA, and
because Parents have provided no evidence of B.A. being subjected to discrimination, Parents
have provided no basis on which this court could find a Section 504 violation. As such, we
dismiss the claim.
v. Claims under the Americans with Disabilities Act
Parents also request relief under the ADA (ECF 1 at 1), but fail to develop an argument in
support of this claim. Failure to develop said argument is a sufficient ground for deeming such
claims waived. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a
passing reference to an issue . . . will not suffice to bring that issue before this court”).
vi. Attorneys’ Fees and Costs
A court may award attorney’s fees to a “prevailing party” who brought suit under IDEA.
20 U.S.C. § 1415(i)(3)(B)(i)(I). Because Parents did not “prevail” in this challenge, we decline
to award attorneys’ fees. See, e.g., Hannah L. v. Downingtown Area Sch. Dist., 2014 WL
3709980, at *8 (E.D. Pa. July 25, 2014).
VI.

Conclusion
For the reasons explained above, Parents’ Motion for Judgment on the Administrative

Record is denied, and the District’s Motion for Judgment on the Administrative Record is
granted.

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