Pocono Mountain School District v. J.W.

Filing 18

MEMORANDUM (Order to follow as separate docket entry) re 13 MOTION to Supplement filed by Pocono Mountain School District. Signed by Honorable A. Richard Caputo on 11/14/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
POCONO MOUNTAIN SCHOOL DISTRICT,
Plaintiff,

NO. 3:16 CV-00381

v.

(JUDGE CAPUTO)

J.W., by and through his Parents J.W. and
S.W. and J.W. and S.W. in their own right,
Defendants.
MEMORANDUM
Presently before me is a Motion to Supplement the Administrative Record (Doc. 13)
filed by Plaintiff Pocono Mountain School District (“School District”; “District”). The School
District commenced this action by filing a Complaint on March 2, 2016, which is in the nature
of an appeal under the Individuals with Disabilities Education Improvement Act of 2004
(“IDEA”), 20 U.S.C. §§ 1401-1482, from a final administrative decision dated December 14,
2015 (“Hearing Officer Decision”). (Compl. (Doc. 1)), seeking the reversal of the Hearing
Officer’s Decision. (Compl. ¶ 18). Defendants J.W. (“Student”) and his Parents J.W. and
S.W. (“Parents”) filed a response to the Complaint on April 18, 2016, requesting that I affirm
the Hearing Officer’s Decision in full and award them prevailing party fees under the IDEA.
(Doc. 8). The parties also submitted the administrative record created before the Hearing
Officer. (Docs. 5-7). The School District now requests permission to supplement the
administrative record with a deposition of Dr. Patricia Peek. For the foregoing reasons, the
motion will be denied.
I. Legal Standard
The IDEA seeks "to ensure that all children with disabilities have available to them a

free appropriate public education (“FAPE”) that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education,
employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). In furtherance of this goal,
the IDEA requires that state and local agencies establish certain procedural safeguards in
connection with the provision of FAPE. Id. § 1415(a). Parents also have a right to an
impartial due process hearing conducted by a state or local agency. Id. § 1415(f)(1)(A). After
exhausting state remedies, a party who is aggrieved by the result of the state due process
hearing may bring suit in federal district court for violation of the IDEA. Id. § 1415(i)(2)(A).
A district court possesses jurisdiction to hear such actions regardless of the amount in
controversy. Id.
The IDEA provides that a district court "shall hear additional evidence at the request
of a party." Id. § 1415(i)(2)(C)(ii); accord 34 C.F.R. § 300.516(c)(2). "Additional evidence"
does not refer to all evidence, but rather to evidence that properly supplements the
administrative record. See Susan N., 70 F.3d at 759 (citing Town of Burlington v. Dep't of
Educ., 736 F.2d 773, 790 (1st Cir.1984). A district court must evaluate a party's proposed
evidence and determine whether it is relevant, noncumulative, and useful with respect to
"whether Congress's goal has been reached for the child involved." Id. at 759–60. Evidence
may be excluded when it would merely "embellish" testimony provided at the administrative
hearing. Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir.1994).
Whether additional evidence should be admitted is left to the discretion of the district
court. Susan N., 70 F.3d at 760. When exercising this discretion, the court should be mindful
of the IDEA's "general framework of deference to state decision-makers." Antoine M. v.

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Chester Upland Sch. Dist., 420 F.Supp.2d 396, 402 (E.D. Pa.2006) (quoting Susan N., 70
F.3d at 758). Indeed, automatic admission of new evidence "would vitiate congressional
intent that courts defer to the educational expertise of the agency." Lebron v. N. Penn Sch.
Dist., 769 F.Supp.2d 788, 795 n. 7 (E.D. Pa.2011).
Before admitting additional evidence, "a court must determine whether the party
introducing the additional evidence has presented a sufficient justification for not proffering
the evidence at the administrative hearing." Antoine M., 420 F.Supp.2d at 403 (citing Susan
N., 70 F.3d at 760). Factors that a court may consider in deciding whether to admit additional
evidence include (1) whether a procedural bar prevented the introduction of the evidence at
the administrative hearing; (2) whether the party seeking admission of the evidence
deliberately withheld it at the hearing; (3) whether the introduction of the additional evidence
would be prejudicial to the opposing party; and (4) the potential impact of the admission of
the evidence on the administration of justice. Id.
II. Discussion
On July 14, 2015, Student, through Parents and with the assistance of counsel,
commenced an administrative due process hearing against the School District under the
IDEA, 20 U.S.C. § 1415(f). Parents and Student alleged that the District failed to provide
Student with free and appropriate public education (“FAPE”) during the 2013-14 and 2014-15
school years, and sought as a remedy compensatory education. The Office for Dispute
Resolution, Pennsylvania’s designated special education due process hearing office,
assigned the case to a Hearing Officer.
Following two hearings in late 2015, on December 14, 2015, the Hearing Officer

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issued a written Decision and Order. The Officer found that the School District denied
Student FAPE during the 2013-14 and 2014-15 school years, and awarded as a remedy six
(6) hours of compensatory education per school day from the first day of school in the
2013-14 school year until and including February 28, 2015, and two (2) hours of
compensatory education per school day from March 1, 2015, until the last day of the
2014-2015 school year. The Hearing Officer found that the School District “failed to identify
Student with a specific learning disability in reading, writing, and mathematics, despite it’s
knowledge of Student’s severely below-grade academic performance in previous testing.”
(Doc. 1-2, at 13). The Officer also found that the School District “failed to provide the
intensity of supports that would have been reasonably calculated to address these needs
appropriately” and “failed to address appropriately Student’s serious organizational and
behavioral struggles during this time, despite its longstanding knowledge of Student’s needs
in these areas.” Id.
In reaching this conclusion, the Hearing Officer relied on the School District’s own
evaluation reports of Student, which the Officer found to be deficient. Specifically, ”the
District’s 2011 reevaluation provided no cognitive or achievement testing; it was a functional
behavioral analysis only.” (Id. at 14). Additionally, according to the Hearing Officer,
[the] District’s March 2014 reevaluation report provided no cognitive scores,
and its achievement testing, conducted by the special education teacher,
was inconsistent with significant criterion-based measures and benchmarks
and Parent’s reports of homework struggles. Yet the District’s re-evaluation
report did not attempt to reconcile these inconsistent results by more specific
testing, nor did it explain these inconsistencies.
Id.
In the instant motion, the School District ask permission to supplement the
administrative record because, according to them, “[w]hile the 2011 Re-Evaluation Report
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itself was presented into evidence, there was no allegation in the Due Process Complaint
that it was inappropriate and there was no evidence presented during the course of the Due
Process Hearing regarding said Re-Evaluation Report or the process used to conduct the
same.” (Doc. 14, at 2). Similarly, the School District argues that “there was . . . no
suggestion in the Hearing that the [2014 Re-Evaluation Report] was inappropriate and the
Hearing Officer’s critique of the same was not addressed by any witness as it was not even
raised at Hearing.” (Doc. 14, at 2). In other words, the School District argues that the
Officer’s findings as to the reports were not based upon the testimony of any witness, and
that the District lacked notice that the appropriateness of the reports would be called into
question at the Hearing. (Doc. 14, at 2, 4). Thus, the School District would like to supplement
the record with such testimony.
Defendants argue that the School District’s claim that the Hearing Officer’s disposition
of the case was based solely on the allegedly deficient evaluation reports is flawed.
The reports were faulted for being deficient. However, the Hearing Officer’s
reasons for that conclusion are contained in a detailed analysis of all of the
evidence in the record. The evidence was substantial that the Student had
significant academic and organizational deficits that the [School District] failed
to address either with services or with further assessment.
...
The evidence presented by the Defendants’ clearly established the [School
District’s] failures with regard to the provision of a FAPE to Student. This
evidence was contained in special education documents, parent testimony
and teacher testimony.
(Doc. 15, at 5). Defendants also argue that the School District could have presented
additional testimony during the Hearing because “[t]he very issue of the [District’s] failure to
identify Student with a Specific Learning Disability until the May 2015 Reevaluation Report
was raised in the Defendants’ due process hearing complaint.” I agree.
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The proposed supplemental record would include testimony by Dr. Patricia Peek
addressing the Hearing Officer's criticisms of the 2011 and 2014 Re-Evaluation Reports.
Such testimony, however, would constitute nothing more than "only a commentary, prepared
with the benefit of hindsight, regarding the evidence and testimony already presented to the
state agency." D.K. v. Abington Sch. Dist., 696 F.3d 233, 253 (3d Cir. 2012).
Secondly, although the 2011 and 2014 Re-evaluation Reports informed the Officer’s
decision, they were not its focus, nor do they appear dispositive of the issue of whether or
not Student received, and the school offered, FAPE. Rather, as Defendants point out, the
decision was based on a holistic review of the entirety of the record. Moreover, as the
hearing transcripts indicate, the Reports were mentioned frequently throughout the
proceedings (See, e.g., Doc. 5-6, at 5, 6, 7, 29, 28) and nothing barred the School District
from introducing a witness to buttress its claims regarding the Reports. In fact, the witness
the School District is now seeking to depose did testify at the hearing before the Officer; at
the time, there were no limitations to the scope of Dr. Peek’s testimony and no reason for
the School District’s failure at the hearing to present the specific testimony it now seeks to
offer.
Despite being aware of Defendants’ claim that the School District failed to adequately
address Student’s academic needs, the District chose not to present any testimony indicating
their reasons for not providing a comprehensive assessment of Student prior to May 2015.
Defendants due process complaint encompassed any and all of the School District’s efforts,
or lack of thereof, to provide Student with FAPE. The School District was therefore on notice
that those efforts could be challenged and questioned. As such, I will follow the guidance of
other courts which curb parties' inclinations in the IDEA actions to redo the administrative
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hearing. See e.g., D.K. v. Abington Sch. Dist., 696 F.3d 233, 253 (3d Cir. 2012).; J.N. v. S.
W. Sch. Dist., 55 F. Supp. 3d 589, 597 (M.D. Pa. 2014).
Accordingly, the School District’s motion will be denied.
III. Conclusion
For the foregoing reasons, I will deny the School District’s motion to supplement
the administrative record (Doc. 13). An appropriate order follows.

November 14, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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