Montgomery Cnty. Intermediate Unit No. 23 v. A.F.
| Decision Date | 09 December 2020 |
| Docket Number | CIVIL ACTION NO. 20-1134 |
| Citation | 506 F.Supp.3d 293 |
| Parties | MONTGOMERY COUNTY INTERMEDIATE UNIT NO. 23 v. A.F. BY AND THROUGH his Parents D.F. and J.F., et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Timothy E. Gilsbach, Fox Rothschild, LLP, Blue Bell, PA, for Montgomery County Intermediate Unit No. 23.
Benjamin J. Hinerfeld, Law Office of Benjamin J. Hinerfeld, David J. Berney, Robin David Lipp, Berney & Sang, Philadelphia, PA, for A.F., D.F., J.F.
McHUGH, United States District Judge The Individuals with Disabilities Education Act (IDEA) establishes a right to a free and appropriate public education, commonly referred to as FAPE. A key part of that guarantee is that the process followed by school districts must ensure that parents are meaningfully involved in the decision-making process and the creation of their child's individualized education program ("IEP"). If that right of meaningful participation is denied, and the effect of such denial is to undermine the parents’ informed decision-making, it can in some instances constitute a denial of FAPE.
In this case, a state Hearing Officer determined that the manner in which the Montgomery County Intermediate Unit No. 23 ("MCIU") conducted that process significantly impeded the parents’ participation. She ordered the MCIU to provide the student's parents with tuition reimbursement for the 2018-19 school year to pay for their child's enrollment in a private school. The MCIU now appeals, alleging deficiencies in both the Hearing Officer's factual and legal analysis. The parents have cross-appealed, contending that the Hearing Officer erred by finding the program offered by the MCIU would have been substantively appropriate, had it been adequately communicated. After reviewing a voluminous record, I agree with the Hearing Officer that the MCIU significantly impeded the Defendant parents’ participation in the decision-making process regarding the development of their son's education. But I disagree with her conclusion that the program was substantively adequate. Because either violation supports the remedy awarded, I affirm the Hearing Officer's order of tuition reimbursement for the 2018-2019 school year.
As is typical in IDEA cases, the factual record must be reviewed in detail. A.F. ("child") is a five-year old disabled student who resides within the Montgomery County School District. Defs.’ Mot. for Summ. J. 1, ECF No. 17; N.T. 27, ECF No. 10; Hearing Officer ("HO") Op. 1, ECF No. 10. At all relevant times for the purposes of this litigation, he was two and three years old. N.T. 39, 211, 344. He became eligible for special education services under the IDEA by virtue of a classification of autism
. S17 at 24-25, ECF No. 10; HO Op. ¶ 1; HO Op. ¶ 28. Plaintiff, MCIU, is a Pennsylvania Intermediate Unit and holder of a mutually agreed-upon written arrangement with the Commonwealth of Pennsylvania to provide early intervention services for students with disabilities over the age of three through the age of beginners in Montgomery County pursuant to the Early Intervention Services System Act. 11 P.S. § 875-101 et seq. ; Compl. ¶ 4.
A.F. exhibited developmental delays early in life. N.T. 202-06, 215; P-3, ECF No. 10-3; S-3, ECF No. 10; HO Op. ¶ 2. His communication skills were very limited compared to same-age children. N.T. 202-06, 215; P-3; S-3; HO Op. ¶ 2. For example, approximately four months before his third birthday, he had "vocalizations but no speech." S17 at 18, ECF No. 10. To address these delays, his parents ("Parents") enrolled him in both early intervention services via an infant/toddler program and private services. N.T. 149, 203, 233, 241-43; P5; HO Op. ¶¶ 5-6. He was identified as having autism
in the fall of 2017 at the Children's Hospital of Pennsylvania ("CHOP"). HO Op. ¶ 7; N.T. 208-211. CHOP recommended that he receive programming focused in Applied Behavioral Analysis ("ABA")1 and recommended a number of private programs where A.F. could receive those services, including A Step Up Academy ("Private School"), where he ultimately enrolled for the 2018-2019 school year. N.T. 255-57; S-3; S-18, ECF No. 10; HO Op. ¶ 8.
This placement at the Private School was not a foregone conclusion. Parents explored a number of options, including the program offered by the MCIU. N.T. 216, 218, 255-60; HO Op. ¶¶ 18-44. At Parents’ request, MCIU conducted an initial evaluation in February 2018, which included a Functional Behavior Assessment ("FBA"); S-14, ECF No. 10; S-17; N.T. 146, 218-21; HO Op. ¶¶ 18, 26. The results of the evaluation reflected, among other things, significant delay in the areas of attention and memory, as well as in perception and concepts, and mild delay in the areas of reasoning and academic skills. S17 at 10; HO Op. ¶ 21. It also reflected significant delay in language skills. S17 at 11. It further reflected child's needs with regard to "pre-requisite learning skills" like imitation and visual attention. S17 at 16-17; HO Op. ¶¶ 3, 25, 27. The evaluation incorporated Parents’ priority of addressing child's communication deficits. N.T. 215; S-17 at 5-6, 12; HO Op. ¶ 20.2
The MCIU next developed a draft IEP in April 2018. HO Op. ¶ 29-33. The IEP addressed a number of areas, including the child's needs and related goals, the services to be performed to achieve those goals, and placement. S20, ECF No. 10, 10-1; HO Op. ¶¶ 31-33. Services included Physical, Occupational, and Speech/language Therapy (for thirty to forty-five minutes each week), Specialized Instruction (for forty-five minutes each week), and notably, Behavior Support (for ninety minutes each week).3 S20 at 33; HO Op. ¶ 33.
The placement would be at an educational site location outside of the home as opposed to a classroom.4 S-20 at 35; S-21 at 2; HO Op. ¶ 33. The IEP specifically proposed the involvement of a Behavioral Specialist Consultant ("BSC") who, in tandem with a Special Education Teacher, would assist the child with achieving goals related to "eye contact and joint attention," as well as with "imitation5 and turn taking."6 S20 at 23-24. The BSC, working in tandem with a special instructor, would also assist A.F. with attending to and completing "adult chosen" activities by measuring his progress and documenting the amount of time that he stayed on each activity. S20 at 28.
An IEP meeting occurred by telephone in April 2018. N.T. 222-224; HO Op. ¶ 34. On the call were Parents and representatives from the MCIU. Id. Although a behavioral specialist and related service providers were invited to attend, Parents signed a form provided by the MCIU excusing them from the meeting. N.T. 223; S-19 at 3-4, ECF No. 10; HO Op. ¶ 34. Subsequently, Parents did not approve MCIU's Notice of Recommended Educational Placement ("NOREP"),7 stating that A.F. S21 at 3, ECF No. 10-1; HO Op. ¶ 35.
In response, the MCIU revised the IEP in May 2018. HO Op. ¶ 36. On its face it appeared to provide far less support from the standpoint of behavioral services. S23. Under the revised IEP, the child would attend an autism
support classroom at Thomas Fitzwater Elementary School for roughly twelve hours per week, with stepped up levels of speech and occupational therapy relative to the initial April IEP proposal. N.T. 123-24, 515, 554, 622; S-23; HO Op. ¶ 36. Significantly, explicit reference to dedicated Behavior Support, which had previously been dosed at 90 minutes/week, was removed entirely. HO Op. ¶¶ 33, 36. Of equal importance, the new IEP omitted the previous reference to the involvement of a behavioral specialist. S23, ECF No. 10-1.8 For example, the BSC who had been tasked with helping A.F. reach his goals in "eye contact and joint attention," "imitation and turntaking," and participation in "adult chosen" activities no longer appeared. S23 at 23-24, 28.9 As noted below, behavioral services were of grave concern to A.F.’s Parents.
A.F.’s mother visited the proposed classroom in early May 2018. N.T. 236, 265-66; S-43 at 16, ECF No. 10-2; HO Op. ¶ 39. After the tour, she emailed the classroom's special education teacher, Pamela Nemitz, to inquire about the degrees and certifications of the professionals in the room. P1-1; N.T. 817-18. She specifically asked about the presence of staff with master's degrees and training in ABA. The only faculty members with ABA training that Ms. Nemitz mentioned were personal care assistants ("PCAs"). P1 at 1, ECF No. 10-3. She did not mention the involvement or oversight of a single BSC or BCBA, despite the fact that "there's ... a BCBA on the [MCIU] team and then there's always at least one other consultant" whose "minimum qualifications would be that they completed their masters [sic] and ABA coursework and that they're licensed in the State of Pennsylvania." N.T. 822; Id. ; HO Op. ¶ 36.10
A.F.’s Parents disapproved the NOREP in mid-May 2018. HO Op. ¶ 40; S24, ECF No. 10-1. Their written disapproval of May 2018 explained that they wanted to discuss an alternative placement, which provided services that the MCIU classroom did not provide, including a structured environment, an increase in overall hours, more individual related and intensive ABA services and opportunities for inclusion. S24 at 3; HO Op. ¶ 40. They requested another meeting with the MCIU. S24 at 3.
That meeting occurred by way of a May 30, 2018 teleconference, in which the behavior specialist and other related specialists were, once again, absent.11 N.T. 163; HO Op. ¶ 38. Although A.F.’s mother recalls MCIU staff "mention[ing] ABA classroom"—N.T. 231; HO...
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