H.D. v. Cent. Bucks Sch. Dist.

• Decision Date: 28 September 2012
• Docket Number: Civil Action No. 11–4365.
• Citation: 902 F.Supp.2d 614
• Parties: H.D., A Minor, by and through his Parents, A.S. and A.D. v. CENTRAL BUCKS SCHOOL DISTRICT.
• Court: U.S. District Court — Eastern District of Pennsylvania

902 F.Supp.2d 614

H.D., A Minor, by and through his Parents, A.S. and A.D.

v.CENTRAL BUCKS SCHOOL DISTRICT.

Civil Action No. 11–4365.

United States District Court,

E.D. Pennsylvania.

Sept. 28, 2012.

Ilene Young, Ilene Young Law Offices, Doylestown, PA, for Plaintiff.

Scott H. Wolpert, Timoney Knox LLP, Fort Washington, PA, for Defendant.

MEMORANDUM

JUAN R. SÁNCHEZ, District Judge.

Plaintiff H.D., a learning disabled student, by and through his parents, A.S. and A.D. (Parents), filed the instant action under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., to challenge the Pennsylvania Special Education Hearing Officer's determinations that (1) the individualized education program offered by Defendant Central Bucks School District (the District) was appropriate, and (2) H.D. was not entitled to a publicly funded independent educational evaluation. H.D. also asserts a discrimination claim against the District under the Rehabilitation Act, 29 U.S.C. § 794. The parties have filed cross-motions for judgment on the administrative record. For the following reasons, this Court will grant the District's motion and enter judgment in favor of the District.

STANDARD OF REVIEW

The IDEA permits a party dissatisfied with the outcome of a due process hearing to appeal the hearing officer's decision by filing suit in federal district court. 20 U.S.C. § 1415(i). The district court receives the record of the administrative proceeding, hears additional evidence at either party's request, and, using a preponderance of the evidence standard, grants such relief as the court determines is appropriate. 20 U.S.C. § 1415(i)(2)(C). Under this standard, the court is required to give “due weight” to the hearing officer's decision. Bd. of Educ. v. Rowley, 458 U.S. 176, 205–06, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The “due weight” requirement, which has been described as “modified de novo” review, means a federal district court reviewing an administrative fact-finder's conclusions is required to defer to such factual findings unless the court identifies contrary non-testimonial extrinsic evidence in the record or explains that the record read in its entirety compels a different conclusion. S.H. v. State–Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir.2003).

FACTS

H.D. was first identified as IDEA-eligible based on his Attention Deficit Hyperactivity Disorder (ADHD) in early 2009, when he was enrolled in fourth grade at Groveland Elementary School (Groveland) in the Central Bucks School District. A District evaluation found H.D. had above-average intelligence and identified his need for academic support as low, although his ADHD did impact his learning. H.D.'s behavior has always been the primary concern of both Parents and the District, particularly his disrespectful and aggressive verbal and physical conduct. The evaluationidentified H.D.'s need for behavioral, social, and/or emotional support as significant, specifically in the areas of following rules, paying attention, social skills, work habits, independent task completion, acceptance of change and transition, organization, impulsive/off-task behaviors, and dealing appropriately with anger and frustration.

The District first proposed an individualized education program (IEP) for H.D. in April 2009, which Parents accepted.¹ This IEP set forth measurable annual goals in the areas of self-awareness of behaviors and choosing and utilizing coping strategies for dealing with frustration. The IEP placed H.D. in itinerant learning support at his current school, Groveland. Itinerant support is defined in the IEP as “[s]pecial education supports and services provided by special education personnel for 20% or less of the school day.” Ex. District 6, at 18. The IEP also provided that support would be delivered through various forms of specially designed instruction (SDI), including preferential seating; non-verbal prompting to attend to instruction; verbal prompts to remain on task; weekly small group pull-out instruction in anger management, frustration tolerance, and social skills; and small group or one-on-one academic instruction in the classroom when needed. The IEP also set forth a behavior intervention plan (behavior plan), which served as a guide to H.D.'s teachers for preventing negative behavior, dealing with negative behavior through replacement strategies, and responding to H.D. when he behaved appropriately or performed behaviors of concern.

In June 2009, the IEP team met to revise H.D.'s IEP.² While H.D. was meeting some of his goals at that time, he was not showing improvement in the number of disrespectful and physically aggressive behaviors exhibited. The District proposed a new IEP that revised the SD I, goals, and behavior plan, and changed H.D.'s placement from itinerant learning support services at Groveland to full-time emotional support services at Linden Elementary (Linden), a school in the District with an emotional support program for grades 3 through 6, which Groveland does not have. Parents opposed the change in placement and filed an administrative due process complaint, which Parents and the District resolved in favor of keeping H.D. in itinerant learning support at Groveland for the next school year.

H.D.'s IEP was revised again in August 2009, placing H.D. in itinerant learning support at Groveland, as agreed upon by Parents and the District. The revised IEP included all of the same goals and SDI from the April 2009 version. It also added new goals to address H.D.'s negative verbal and physical conduct toward peers and adults, and additional SDI, including extra writing support; checklists to aid organization; and two 30–minute sessions per week of small group or one-on-one instruction in the learning support classroom in goal setting, goal redirection and feedback, support with organization, and the writing process. The August 2009 IEP also prescribed brief, daily counseling sessions each morning with the school psychologist to specifically address H.D.'s negative behaviors. The behavior plan was left virtually unchanged from the April 2009 IEP.

In October 2009, the IEP team met again, in part to address Parents' recent partial hospitalization of H.D. due to extreme behavioral problems at home. ³ The IEP team proposed a revised IEP which maintained the August 2009 IEP's goals, behavior plan, and SDI, and added several new SDI to be implemented in the regular education classroom to assist H.D.'s organization, writing, assignment completion, and test taking. The District and Parents also agreed to a reevaluation of H.D.'s support needs in the form of a Functional Behavioral Assessment (FBA) by a board certified associate behavior analyst (BCABA) under contract with the Intermediate Unit for Bucks County. Parents agreed to the revised IEP, provided that the program also included daily, 30–minute meetings with the special education teacher and that the IEP team meet again by mid-December to review H.D.'s progress and the progress of any new behavior plan incorporating the findings of the FBA.

To complete the FBA, the BCABA reviewed H.D.'s educational records, prior IEPs, behavioral assessments, and behavioral plans. The BCABA also interviewed Parents and H.D.'s educational team and observed H.D. in his various school settings over a three-day period. The FBA identified four targeted behaviors for which the BCABA collected data: (1) on-task behavior; (2) noncompletion of requested tasks; (3) inappropriate verbal behavior; and (4) inappropriate physical contact. It also identified a number of immediate triggers of these targeted behaviors and a number of consequences of the behaviors that reinforce, punish, or have no effect on each behavior. The FBA further identified H.D. as having skill deficits in self-awareness, self-control, communicating wants and needs appropriately, social skills (i.e., initiating and reciprocating appropriate social interactions), performance accuracy, and remaining on task. It proposed that these deficits be addressed by adopting a behavior plan directed at increasing H.D.'s ability to appropriately interact with adults and peers, monitor his own behavior, remain on task, and complete work accurately.

Meanwhile, in November 2009, the IEP was revised only to reduce the number of assignments H.D. had to complete each day to one, with that number to increase as H.D. became capable of handling more assignments.

The IEP team met again in December 2009 to incorporate the findings in the FBA into a new IEP. This IEP revised H.D.'s goals to address noncompletion of requested tasks, inappropriate verbal behavior, and inappropriate physical contact. The SDI from the previous IEP were maintained except for the use of a study and assignment log and the twice weekly 30–minute small group or one-on-one instruction in the learning support classroom on goal setting, organization, and writing, both of which were removed. The 30–minute daily one-one-one session with the special education teacher on organization, completion of tasks, and studying, which had been specifically requested by Parents, remained. The behavior plan was also revised to incorporate the findings in the FBA. The new behavior plan identified the four target behaviors central to the FBA and provided strategies to prevent trigger events, strategies to help H.D. develop replacement behaviors, and instructions on how H.D.'s teachers should respond when he performed replacement behaviors or exhibited negative behaviors, all with great detail. A key strategy for dealing with negative behaviors was redirecting H.D.'s attention and allowing him to de-escalate. A “crisis plan” was also proposed for when H.D. “place[d] him[self] or others at risk ( [e.g.], aggression, throwing objects, etc.) or create[d] a significant disruption to the classroom ( [e.g.], not able to regain control of his behavior).” Ex. District 17, at 30. The crisis plan called...