United States District Court, D. Delaware
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.
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") of September 17, 2014 and the
District's subsequent denial of Plaintiffs' request
for an IEE in November 2015. (Id. at 9).
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
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).
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. § 9126.96.36.199.1 and 34 C.F.R. §
300.502(b)(2)(i). (D.I. 18 at 328-33).
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).
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).
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).
INDEPENDENT EDUCATIONAL EVALUATION
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).
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).
STANDARD OF REVIEW
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.
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