Sch. Dist. of Phila. v. Williams ex rel. C.H.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
PartiesTHE SCHOOL DISTRICT OF PHILADELPHIA Plaintiff, v. KIMBERLY WILLIAMS, Individually and on behalf of C.H., Defendant.
Docket NumberCIVIL ACTION No. 14-6238
Decision Date20 November 2015

KIMBERLY WILLIAMS, Individually and on behalf of C.H., Defendant.

CIVIL ACTION No. 14-6238


November 20, 2015


Schiller, J.

The School District of Philadelphia (the "School District" or "District") seeks judicial review of an August 3, 2014 decision by Special Education Hearing Officer Linda Valentini (the "Hearing Officer"). Kimberly Williams is the parent and guardian of C.H., a disabled student who attends public school in Philadelphia. Williams filed a due process complaint against the School District in December 2013 alleging procedural and substantive violations of the Individuals with Disabilities Education Act ("IDEA"). After a lengthy hearing, the Hearing Officer found that the School District had denied C.H. a free appropriate public education ("FAPE") during the 2013-2014 school year and ordered several remedies. The School District challenged that determination, as well as the scope of the remedies, and both parties now move for Judgment on the Administrative Record. The Court affirms the Hearing Officer's findings of denial of FAPE and orders compensatory education and other injunctive relief.

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C.H. is a student who suffers from autism and a speech and language impairment, and who is therefore eligible for special education. (Hearing Officer's Findings of Fact [HO FF] ¶ 1.) During the 2013-2014 school year, C.H. was a ninth grader at Roxborough High School. (S-45 [Mar. 2014 IEP] at 2.) He participated in a reading program at a second grade level and a math program at a second grade to third grade level. (Id. at 9.)

A. Procedural History

Prior to beginning high school in the fall of 2013, C.H. attended middle school at Feltonville School of Arts and Sciences. (S-1 [Apr. 2013 IEP] at 1.) Williams filed a due process complaint challenging C.H.'s education during the 2012-2013 school year in June 2013. (P-5 [HO McElligott Decision] at 3.) Hearing Officer Jake McElligott issued a decision on November 11, 2013, in which he determined that the School District had denied FAPE to C.H. by providing an inadequate speech and language program, failing to individualize Extended School Year programming, failing to implement certain Individualized Education Plan ("IEP") goals, and committing various procedural flaws in the IEP process. (Id. at 12-14.)

Meanwhile, the School District issued a Notice of Recommended Education Placement ("NOREP") proposing that C.H. attend high school at Roxborough, as Williams had requested. (HO FF ¶ 3; HO McElligott Decision at 6.) Williams agreed with the placement but disagreed with certain aspects of the educational program outlined in the existing IEP from April 2013. (HO FF ¶ 4.) On September 4, 2013, C.H.'s new IEP team, including Williams, held an IEP meeting to revise the IEP as necessary for C.H.'s transition to high school. (HO FF ¶ 5.) At this meeting, the team discussed transferring the iPad C.H. had used at Feltonville to Roxborough and Williams's desire for C.H. to have a 1:1 aide to help him transition to high school and allow

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him to attend regular-education art and physical education classes, among other topics. (HO FF ¶ 6; Tr. at 522-23, 529-30, 1247-48.) Representatives of the School District agreed to facilitate the transfer of the iPad, and issued a NOREP the following day indicating that they would provide a 1:1 aide and make further revisions to the IEP. (Tr. at 522-23, S-9 [Sept. 2013 NOREP].)

The team held another IEP meeting on November 18, 2013, to review test results and update the current educational levels in the IEP. (HH FF ¶ 7.) After that meeting, Williams did not receive a copy of the revised IEP, so she filed a due process complaint on December 18, 2013. (HO FF ¶ 8.) The parties held a Resolution Meeting in January 2014, after which the School District provided Williams with a copy of the IEP that had been revised after the November 2013 meeting. (HO FF ¶ 8; see S-24 [Nov. 2013 IEP].) The parties participated in several additional IEP meetings, and the School District issued a final IEP on March 21, 2014. (HO FF ¶¶ 10-12.) Williams declined to sign a Permission to Reevaluate C.H. pursuant to the School District's usual triennial reevaluation. (HO FF ¶ 11 & n.5.)

On March 28, 2014, Williams filed an amended due process complaint. (HO FF ¶ 13; Am. Due Process Compl.) The Hearing Officer held a hearing on the complaint over the course of five days in May and June 2014. (HO Valentini Decision [HO Decision] at 1.) She issued her decision on August 3, 2014. The School District filed the Complaint in this case on October 31, 2014, seeking judicial review of the Hearing Officer's decision. (Compl. ¶ 1.)

B. The Hearing Officer's Decision

The Hearing Officer's decision addresses the following issues raised by the parties in this matter: (1) whether the School District engaged in practices that impeded Williams's opportunity to participate in the decisionmaking process regarding C.H.'s education; (2) whether the District

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failed to provide C.H. with FAPE by failing to provide an iPad as specified in his IEP, failing to provide a 1:1 aide who would allow him to participate in regular education classes, failing to provide appropriate speech/language services, using inappropriate present educational levels, failing to provide meaningful transition planning, failing to individualize Extended School Year programming, and failing to address bullying; (3) whether the District discriminated against C.H. in violation of Section 504 of the Rehabilitation Act; and (4) whether the District should conduct a comprehensive evaluation of C.H. (HO Decision at 2-3.) The Hearing Officer found that the District's failure to provide the iPad, failure to provide the 1:1 aide, and failure to provide appropriate speech and language services constituted denials of FAPE, while the other alleged failures did not. (HO Decision at 15-22.) She found that the District had not committed any procedural violations, and that Williams's Section 504 claims were coextensive with her IDEA claims. (Id. at 23.) Finally, she found that the School District should conduct a triennial evaluation of C.H., even without Williams's permission. (Id. at 23, 26.) Williams does not challenge the Hearing Officer's findings in favor of the School District, so this Court need only address those issues on which the Hearing Officer found in Williams's favor.

1. Failure to provide the iPad

The Hearing Officer found that Roxborough High School staff was aware no later than September 4, 2013 that C.H. had used an iPad in 8th grade, and that they agreed at that time to transfer the iPad to the high school. (HO FF ¶¶ 15-17.) C.H.'s IEPs have consistently indicated that he requires or benefits from an iPad or other assistive technology to help develop his writing and communication skills. (Id. ¶ 26; see e.g. Apr. 2013 IEP at 8; Mar. 2014 IEP at 11.) Due to licensing and other technical difficulties, C.H. did not receive the iPad until March 2014. (HO FF ¶¶ 18, 22.) The iPad that was provided did not contain the 500-word vocabulary bank that C.H.

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had developed in 8th grade, and the staff members working with C.H. in high school testified that they did not know how to use the iPad as assistive technology. (HO FF ¶¶ 23-27.)

The Hearing Officer determined that two weeks was a reasonable time period to enact the transfer of the iPad, so the failure to deliver the device to C.H. between September 15, 2013 and March 15, 2014 constituted a denial of FAPE. (HO Decision at 17.) In order to remedy this denial and address the staff's lack of training on how best to use the iPad, she ordered the School District to contract with an expert who could provide such training to C.H., Williams, C.H.'s teachers, and his 1:1 aide at the beginning of each school year. (Id. at 18.) The Hearing Officer specified that the training should not exceed 120 hours, based on her determination of the number of hours for which C.H. had been denied FAPE, and that the cost of educational applications acquired should not exceed $1,000. (Id.)

2. Failure to provide the 1:1 aide

The School District agreed on September 4, 2013 to provide C.H. with a 1:1 aide, and issued a NOREP on September 5, 2013 confirming that assignment. (HO FF ¶¶ 28, 30; Sept. 2013 NOREP.) However, because of union rules for District paraprofessionals, the School District did not provide the aide until January 2, 2014. (HO FF ¶¶ 31, 37.) During the fall 2013 semester, a bus attendant worked with C.H. during school three days a week, but the School District could not confirm that the bus attendant had the required qualifications to serve as an instructional paraprofessional. (HO FF ¶¶ 34-35.) During that semester, C.H. did not attend the regular education classes provided for in his IEP. (HO FF ¶¶ 29, 33.) Once the aide was provided in January 2014, regular art and physical education classes were added to C.H.'s schedule. (HO FF ¶ 38.)

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The Hearing Officer found that the School District's failure to provide a 1:1 aide between September 5, 2013 and January 2, 2014 constituted a denial of FAPE and a violation of C.H.'s right to be educated in the least restrictive environment possible. (HO Decision at 18.) She determined that one month was a reasonable amount of time for the District to find an aide, and ordered compensatory education in the form of reimbursement for evening, weekend, or summer art and physical education programs not to exceed the salary of the 1:1 aide for three months. (HO Decision at 19.)

3. Failure to provide appropriate speech and language services

The Hearing Officer described C.H.'s speech/language program as including both "concentrated" and "distributed practice" models. (HO FF ¶ 40.) The concentrated model included sixty minutes per month of direct speech and language therapy in a small...

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