Colonial Sch. Dist. v. N.S.
| Decision Date | 27 March 2020 |
| Docket Number | CIVIL ACTION No. 19-1311 |
| Parties | COLONIAL SCHOOL DISTRICT, Plaintiff v. N.S., et al, Defendants |
| Court | U.S. District Court — Eastern District of Pennsylvania |
After conducting a special education due process hearing, an administrative hearing officer determined that Colonial School District failed to provide N.S., an elementary school student, a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et. seq., from March 16, 2017 to the end of the 2017-2018 school year. The hearing officer awarded N.S. compensatory education hours and her parents a reimbursement of expenses related to her eventual placement at a private school equipped to meet her needs.
As permitted under the IDEA, Colonial now challenges the hearing officer's determination. Both parties have filed cross-motions for judgment on the administrative record. For the reasons set forth in this Memorandum, the Court will grant in part and deny in part both motions and affirm in part and reverse in part the hearing officer's decision. Because the Court finds that Colonial denied N.S. a FAPE, it awards N.S. and her parents1 appropriate relief.
N.S. is a late pre-teen who resided in Colonial School District from the start of the 2015-2016 school year, her third-grade year, until August 2019, the end of her sixth-grade year. HOD at ¶ 1. N.S. attended Woodlynde, a private school, during the 2018-2019 school year. Id. Although N.S. has tried various medications for her Attention Deficit Hyperactivity Disorder (ADHD), none have been consistently effective over the long term. HOD at ¶ 2. Given N.S.'s symptoms related to her ADHD, anxiety, and other diagnoses which affect her ability to make academic progress, HOD at ¶ 3, N.S. is eligible for special education under the IDEA as a child with a "specific learning disability" and "other health impairment," HOD at ¶ 1.4
The parents moved into Colonial School District at the beginning of N.S.'s 2015-2016 third-grade year. HOD at ¶ 4. N.S.'s former school district had sought and obtained parental consent to evaluate N.S. Id. In response to N.S.'s prior school's concern over N.S.'s reading, writing, and mathematical skills and her difficulty maintaining attention and focus, Colonial obtained parental consent to evaluate N.S. in the fall of 2015. HOD at ¶ 5. N.S.'s initial evaluation was based on parental input, teacher input, academic levels, a cognitive assessment, an academic achievement assessment, rating scales, and behavior assessments. HOD at ¶¶ 6, 8-14. The evaluation report concerning N.S. was issued in October 2015. HOD at ¶ 5. It reflected, among other things, that: (1) N.S.'s previous ADHD diagnosis was not successfully managed by medication, HOD at ¶ 6; (2) N.S. could not complete homework on her own, HOD at ¶ 7; (3) in the classroom, N.S. demonstrated inappropriate peer interactions; made verbal and nonverbal noises and frequent movements; and demonstrated difficulty with paying attention, following directions, and completing tasks without supervision, HOD at ¶ 8; (4) N.S. academically struggled in reading fluency and comprehension, writing, and mathematics, HOD at ¶ 9; and (5) N.S.'s teachers were concerned about her hyperactivity; conduct, attention, and learning problems; aggression; atypicality; withdrawal; study skills; leadership; and functional communication, HOD at ¶ 13.
As a result of the findings detailed in this initial evaluation report, N.S.'s evaluator concluded that N.S. was eligible to receive special education for her "specific learning disability" and "other health impairment." HOD at ¶ 14. In November 2015, Colonial developed N.S.'s initial Individualized Education Program (IEP)5 identifying her needs for mathematics, written expression, reading fluency and comprehension, and remaining on task, which were targeted in her IEP's annual goals.6 HOD at ¶¶ 15, 16. The initial IEP proposed a supplemental level of learning support, with N.S. not participating in regular education classes for reading, writing, and mathematics. HOD at ¶ 17. The parents approved the IEP by signing a "Notice of Recommended Educational Placement" (NOREP) form.7 Id.
During N.S.'s fourth-grade year, she experienced anxiety over attending school, resulting in missing a number of school days, as well as anxiety about her relationships with peers and staff. HOD at ¶ 20. She also consistently struggled with finishing homework and exhibited difficulty remaining attentive. HOD at ¶ 20, 22, 23. Colonial prepared another IEP for N.S. in November 2016, which noted that N.S. exhibited behaviors that impeded her own learning or that of others.8 HOD at ¶ 24. The November 2016 IEP again proposed a supplemental level of learning support without N.S. participating in regular education reading and math classes. HOD at ¶ 27. Annual goals identified in this IEP targeted reading, writing, mathematics, and remaining focused on tasks. HOD at ¶ 25. The November 2016 IEP also included program modifications and items of specially designed instruction, including multisensory phonics instruction, use of checklists and graphic organizers for writing tasks, frequency reminders, preferential seating, and fidget items. HOD at ¶ 26. Although the IEP included a "motivational behavior plan," Colonial did not develop a positive behavior support plan.9 Id. The parents signed a NOREP form to approve the November 2016 IEP. HOD at ¶ 27.
During fourth grade, N.S. was placed in "co-taught" science and writing classes; provided writing support in small groups, as needed; attended mathematics class in a learning support classroom with a special education teacher and instructional aide; and had a 90-minute period of small group and shared reading instruction with a special education teacher in the learning support classroom. HOD at ¶ 29. Although N.S. did not perform well when placed in full classes, she performed "much better" in small groups or one-on-one. HOD at ¶ 31. N.S. particularly struggled with math and reading fluency and comprehension, in part because of her many absences. HOD at ¶¶ 32, 33. Approximately halfway through the school year, N.S. began an additional period of reading support in the learning support classroom. HOD at ¶ 37.
Beginning in late fall 2016, N.S. began participating in a weekly "lunch bunch" social skills group and another small social skills group, both of which were comprised of regular and special education students. HOD at ¶ 35. N.S. also individually met with a school counselor when she became upset or felt as though she needed to talk something through. Id. The informal "motivational behavior plan" developed during N.S.'s fourth-grade year consisted of a chart drawn on a dry-erase board that set forth expectations for N.S. to remain focused and on-task, keep her hands and feet to herself, and to tell the truth. HOD at ¶ 41; N.T. at 289:4-9. N.S. earned "points" for appropriate behavior. Id. Although the "points" were tallied daily, N.S.'s fourth-grade teacher erased the points without recording a physical catalog to monitor efficacy. HOD at ¶ 41; N.T. at 291:9-16.
By the middle of her fourth-grade year, N.S. exhibited difficulty with peer relationships and social skills, particularly in unstructured settings, and engaged in inappropriate behaviors toward other students. HOD at ¶ 36. She exhibited aggression, lied, stole others' belongings, and behaved in a sexually-suggestive manner. Id. N.S. was also unable to properly interpret the words and actions of others. Id. In March 2017, Colonial's behavioral health advisor met with the parents to discuss available community-based behavioral health services and the parents' potential signing of a release form to permit Colonial to communicate with community-based providers about N.S. HOD at ¶ 38. At this meeting, Colonial's school counselor also requested a reevaluation of N.S. given concerns that N.S. had been "struggling behaviorally and emotionally with coming to school[.]" HOD at ¶ 38; S-24 at 1. On March 16, 2017, Colonial requested parental consent to conduct a reevaluation consisting of "achievement testing, parent and teacher input forms, behavior rating scales and classroom observations." S-24 at 2. Colonial did not request parental consent to complete a functional behavioral assessment, as is required in order to develop a positive behavior support plan. Id.
The parents expressed concerns to the health advisor about how much personal private information they would have to share. HOD at ¶ 39. They also communicated their mistaken understanding that they would have to consent to release information to private providers in order for N.S. to be reevaluated. Id. Accordingly, the parents decided not to consent to the reevaluation. HOD at ¶ 40.10 N.S.'s progress monitoring for the 2016-2017 school year reflected overall inconsistency across most of her IEP annual goals. HOD at ¶ 44. Pertinent here, the data on N.S.'s goal for remaining on task varied, but ultimately demonstrated that N.S. performed at approximately the same level on her end-of-school-year evaluations as she did on her baseline evaluations. Id. N.S. ended the 2016-2017 school year with a total of 47 absences. HOD at ¶ 45. N.S.'s grades were primarily within the "partially proficient" range with a few skills falling within the "proficient" or "not proficient" range. Id.
During her fifth-grade year, N.S. continued to demonstrate difficulty staying focused and engaging in physically aggressive behavior toward her peers. HOD at ¶ 48. At the beginning of her fifth-grade year, N.S. was suspended for several days because of her problematic behavior on the school bus. HOD at ¶ 46. In early November 2017, N.S. wrote on a white board in the learning...
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