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A.H. v. Colonial School District

United States District Court, D. Delaware

July 5, 2018

A.H., by and through her Parent, K.P., Plaintiffs,


         Pursuant to the Individuals with Disabilities Education Act ("IDEA"), Plaintiffs, K.P., on behalf of her daughter, A.H., appeal from the decision of the Delaware Due Process Hearing Panel ("Panel"), which found Defendant's educational evaluations appropriate and denied Plaintiffs request for an Independent Educational Evaluation ("IEE") at public expense. Presently before the Court is Plaintiffs' Motion for Judgment on the Administrative Record. (D.I. 29). The issues have been fully briefed. (D.I. 30, 32, 33). For the reasons set forth below, Plaintiffs' Motion is DENIED.

         I. BACKGROUND

         A.H. is an eleven-year-old girl with multiple disabilities and is eligible to receive special education and related services pursuant to the IDEA and state law. (D.I. 30 at 5). Prior to this action, A.H. was a student within Defendant Colonial School District (the "District"). (Id. at 7-8). This dispute arises out of Plaintiffs' disagreement with the District's Evaluation Summary Report ("ESR")[1] of September 17, 2014 and the District's subsequent denial of Plaintiffs' request for an IEE in November 2015. (Id. at 9).

         The ESR evaluated A.H."s eligibility for special education services. (D.I. 18 at 41). As part of the ESR, Dr. Kristin Chickadel completed an Occupational Therapy Evaluation, which included testing of visual perception, assessment of handwriting skills, clinical and classroom observations, and consultation with teachers and other professionals. (D.I. 17 at 7). Dr. Chickadel did not complete a fine motor skills assessment as part of the Occupational Therapy Evaluation in the ESR. Dr. Chickadel had conducted an Occupational Therapy Initial Evaluation in 2013, which did assess A.H.'s fine motor skills with the Bruininks-Oseretsky Test of Motor Proficiency ("BOT-2"). (D.I. 18 at 71). The record also shows that occupational re-evaluations are typically only conducted every three years and an updated evaluation was not necessary at the time of the 2014 ESR. (D.I. 17 at 355).

         The evaluation also included psychoeducational testing completed by Emily Klein, a certified school psychologist. (Id. at 7; D.I. 18 at 46). Ms. Klein conducted numerous standardized tests including the Stanford-Binet Intelligence Scales ("SBI"), Kaufman Test of Educational Achievement 2nd Edition ("KTEA-II"), Behavior Assessment Scale for Children -2nd Edition ("BASC-2"), and Gilliam Asperger's Disorder Scale ("GADS"). (D.I. 18 at 46). In addition, Ms. Klein conducted student, parent, and teacher interviews, and engaged in behavioral observation and record review. (Id. at 46). Finally, the District conducted a Functional Behavioral Assessment ("FBA") on September 24, 2014, in anticipation of developing a Behavior Intervention Plan ("BIP") to address A.H.'s problem behaviors. (Id. at 61-69). The FBA was conducted using the Prevent-Teach-Reinforce School-Based Checklist adopted by the Delaware Department of Education. (D.I. 17 at 275).

         Plaintiffs, believing the multiple evaluations were inadequate, requested an IEE in November 2015. (Id. at 6). The District denied Plaintiffs' request for a publicly-funded IEE and requested a due process hearing in accordance with 14 Del. Admin. C. § 926. and 34 C.F.R. § 300.502(b)(2)(i). (D.I. 18 at 328-33).

         Three panelists were appointed to the administrative due process panel. (Id. at 325). The Panel heard testimony from six witnesses. Dr. Kara S. Schmidt testified as an expert witness for Plaintiffs. (D.I. 17 at 73). Dr. Schmidt provided her criticisms of Defendant's testing, the tests she would have performed if she evaluated A.H., and why. (Id.). The District presented testimony from Ms. Klein, Dr. Chickadel, A.H.'s teacher (Stephanie Alexander), the District's Director of Student Services (John Cooper), and KP. (D.I. 17 at 53, 229, 351, 398, 422).

         On May 23, 2016, the Panel found that Defendant's evaluations met the requirements listed by the IDEA. (D.I. 17 at 10). Specifically, the Panel found that due to Ms. Klein's and Dr. Chickadel's evaluations, A.H. was eligible for both occupational therapy services and special education services under the Emotional Disturbance Classification. (Id. at 7). The Panel considered whether A.H. might be eligible under the Autism Classification as well, but, in light of A.H.'s history of sexual abuse and trauma, the Panel concluded that the District could not reasonably rule out A.H.'s Emotional Disturbance Classification, meaning that A.H. could not be said to meet the Autism Classification. (Id.) Thus, the Panel found the evaluations appropriate and that the District was not required to fund the requested IEE. (Id. at 10).

         On August 19, 2016, Plaintiffs filed a complaint seeking to reverse the Panel's decision. (D.I. 1). Plaintiffs later moved for Judgment on the Administrative Record. (D.I. 29).



         An IEE is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. § 300.502(a)(3)(i). A parent has the right to an IEE at public expense if the parent disagrees with the public agency's evaluation, subject to the following exception. Id. § 300.502(b)(1). After a parent requests an IEE, the public agency may file a due process complaint to request a hearing to show that its evaluation is appropriate. Id. § 300.502(b)(2)(i). If it is determined that the agency's evaluation is appropriate, the parent still has the right to an IEE, but not at public expense. Id. § 300.502(b)(3).

         The IDEA imposes requirements on public agencies in conducting educational evaluations. 20 U.S.C. § 1414. These requirements are considered in determining the appropriateness of the agency's evaluation. Accordingly, in conducting an evaluation, the agency must (1) "use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information," (2) "not use any single measure or assessment as the sole criterion for determining ... an appropriate educational program," (3) "use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors." Id. § 1414(b)(2)(A)-(C). Additionally, the agency must, among other things, ensure that assessments are conducted "by trained and knowledgeable personnel," that "the child is assessed in all areas of suspected disability," and that "assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided." Id. § 1414(b)(3)(A)-(C).


         In IDEA cases, the court applies a "modified de novo" standard of review. S.H. v. State-Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir. 2003). The court may make its own findings by a preponderance of the evidence, but also must give "due weight" to the underlying administrative proceedings. Id. The administrative panel's factual findings are "prima facie correct" and when a reviewing court fails to adhere to those findings, it is required to explain why. Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). Additionally, the administrative panel's credibility determinations are afforded "special weight" and the court must accept the determinations "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion." Id. (emphasis omitted). When reviewing an IDEA case, the reviewing court may not "substitute its own notions of sound educational policy for those of local school authorities." S.H., 336 F.3d at 270.


         Plaintiffs challenge the Panel's decision finding that A.H. was not entitled to an IEE at public expense. (D.I. 29). After reviewing the extensive administrative record (D.I. 17 & 18), I find the evaluations complied with the requirements under the IDEA. Thus, I agree with the Panel's findings and determination, and conclude that A.H. is not entitled to an ...

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