T.M. v. Quakertown Community School District
T.M. v. Quakertown Community School District
Opinion of the Court
MEMORANDUM OPINION
In this action brought under the Individuals with Disabilities Education Act (IDEA), the parents of a disabled child and the school district want to provide the best educational program for the child. But, they disagree how to achieve it. The parents, who are dissatisfied with the child’s progress, complain that the school district is not doing enough. The school district contends that it has devised and implemented an individualized education program which is reasonably calculated to enable the child to make progress in light of his particular circumstances. In essence, the conflict arises from the parties’ differing perceptions of the child’s abilities and needs.
The parents contend that Quakertown Community School District failed to properly evaluate T.M.’s ability and potential, resulting in an inappropriate educational program. According to the parents, the programming did not effectively address his disability-related needs. They argue that the programming was inconsistent with the requirements for an Applied Behavior Analysis/Verbal Behavior (ABA/VB) program. As a result, they contend that T.M. has not made meaningful progress.
The district argues that the techniques it utilized to identify and evaluate T.M.’s disability-related needs were reliable. It also contends that its implementation and supervision of T.M.’s special education curriculum aligned with his unique needs and equipped him with the opportunity to achieve meaningful progress.
After reviewing the administrative record and giving due weight and deference to the administrative proceedings, we conclude that the hearing officer did not err in finding that the district appropriately identified T.M.’s intellectual potential, evaluated the development of his unique special education needs, and implemented and supervised an educational curriculum that is producing reasonable progress in light of those needs. Thus, we shall deny the parents’ motion for summary judgment and grant the district’s motion.
Background
T.M. is an eleven-year-old student diagnosed with autism, global apraxia, and an intellectual disability.
Since kindergarten, T.M. has needed specially designed instruction and has been enrolled in autistic support classes provided by the Bucks County Intermediate Unit.
In preparation for T.M.’s fourth grade, the parents met with the IEP team to develop an IEP in May 2014.
As noted in a progress report in June 2014, T.M. demonstrated improvement in several areas, including math, reading, listening, speech intelligibility, copying letters, and typing.
In January 2015, the parents’ independent evaluator, Amy McGinnis, a behavioral analyst and occupational therapist, performed two assessments to evaluate T.M.’s verbal behavior and sensory processing.
At the meeting to develop T.M.’s IEP for the 2015-2016 school year, the IEP team discussed McGinnis’s recommendations. After considering her assessments, the lEP team agreed to adopt and modify some of McGinnis’s goals, including many related to verbal behavior. The team rejected her recommendation for twenty hours of one-on-one programming per week. The IEP team agreed to reevaluate T.M.’s progress later and reconsider McGinnis’s recommendations.
The parents requested a due process hearing in September 2015, complaining that the district failed to educate T.M. in compliance with the IDEA for the 2014-2015 and 2015-2016 school years. After a four-day hearing conducted over the course of several months, the hearing officer found that for both school years, the district provided T.M. with a free appropriate public education in compliance with the IDEA, Section 504, and the ADA.
On appeal, the parents contend that the district failed to provide T.M. with appropriate instruction, specifically a “scientifically based instruction”—one based on ABA principles and curriculum.
The district counters that the administrative record, including McGinnis’s own testimony, establishes that T.M. made meaningful progress. It argues that the IEP team applied objective standards in evaluating T.M.’s progress and implementing an appropriate ABA program. The district contends that McGinnis’s recommendations amount to a subjective interpretation of those standards.
The parties agree that T.M. needs an ABA educational program which requires a significant level of repetition and practice. The dispute revolves around what is an appropriate ABA program for T.M. and how to implement it.
IDEA Standard of Review
The district court conducts a “modified de novo” review of the- hearing officer’s decision. D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006). The district court must give “due weight” and deference to administrative factual findings which are deemed prima facie correct. D.S., 602 F.3d at 564; P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d Cir. 2009). The court may not substitute its “own notions of sound educational policy for those of the school authorities.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. Re-1, — U.S. -, 137 S.Ct. 988, 1001, 197 L.Ed.2d 335 (2017) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The district
The court must accept the agency’s credibility determinations “unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (emphasis omitted) (quoting Carlisle Area Sch. v. Scott P. ex rel. Bess P., 62 F.3d 520, 529 (3d Cir. 1995)).
Discussion
The IDEA requires the state to provide every disabled child with a “free appropriate public education.” 20 U.S.C. § 1412(a)(1). “The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs’ through an ‘[i]ndividualized education program.’ ” Endrew F., 137 S.Ct. at 999 (emphasis omitted) (quoting 20 U.S.C. § 1401(29), (14)). The instruction must prepare the child for “further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); Ferren C. v. Sch. Dist., 612 F.3d 712, 717 (3d Cir. 2010).
Although the state is not required to “maximize the potential of every handicapped child,” it must provide an education that confers a “meaningful benefit” to each child. Ridley School Dist. v. M.R., 680 F.3d 260, 268 (3d Cir. 2012) (citing D.S., 602 F.3d at 556). The benefit must be substantial, not minimal. Endrew F., 137 S.Ct. at 1001.
To achieve a meaningful benefit, the school district must fashion a uniquely tailored individualized education program, or IEP, for the child. Endrew F., 137 S.Ct. at 991 (citing 20 U.S.C. §§ 1401(9)(D), 1412(a)(1)). The IEP is the roadmap for the child’s educational progress. It must be reasonably calculated to enable the child to make progress “appropriate in light of the child’s circumstances.” Id. at 999. It must “set out a plan for pursuing academic and functional advancement.” Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV)). The core of the IDEA is the collaborative process between the parents and the school officials to fashion the IEP. Id. at 994 (citing 20 U.S.C. § 1414). This collaboration among the parents and educators ensures careful consideration of the child’s individual circumstances. Id.
The IEP’s purpose is to establish a plan for each child’s academic and functional advancement. Id. at 999 (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV)). It is developed “only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.” Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV), (d)(3)(A)(i)-(iv)). It must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school personnel that will be provided to enable the child to attain the program’s goals. 34 C.F.R. § 300.320(a)(4). Regular progress monitoring, through periodic progress reports provided to the parents and the IEP team, is critical to a substantively appropriate IEP. 34 C.F.R. § 300.320(a)(3).
In developing the IEP, a school district is not required to provide a specific program or employ a specific methodology requested by the parent. See Rowley, 458 U.S. at 199, 102 S.Ct. 3034 (explaining that the IDEA does not require “the furnishing of every special service necessary to maximize each handicapped child’s potential”). Although a school district is required to provide a free appropriate education to a disabled child, it is not required to provide the best possible education to maximize educational benefits. Rowley, 458 U.S. at 197 n.21, 102 S.Ct. 3034; Polk v. Cent. Susquehanna
The parents contend that the IEP failed to provide T.M. with a meaningful educational benefit at the time it was developed. They claim that the district failed to properly identify and evaluate T.M.’s disability-related needs and adequately supervise the program implementation. The parents conclude that, as a result of these failures, T.M. did not make meaningful progress. They challenge the evaluation process and the implementation of the plan. We address each contention in turn.
Identification and Evaluation of Disability-Related Needs
The starting point of the IEP process is to identify the child’s “intellectual potential.” Shore Reg’l, 381 F.3d at 198 (quoting Polk, 853 F.2d at 181). This requires the school district to determine the child’s aptitude and achievement. 34 C.F.R. § 300.304(b)(3), (c)(1). It must evaluate the child using proper assessment tools that identify and monitor the development of his or her unique special education needs. 20 U.S.C. § 1414; 34 C.F.R. § 300.304.
The parents raise two arguments regarding the identification and evaluation of T.M.’s disability-related needs. First, they complain that the district failed to properly identify T.M.’s skill deficits. According to the parents, the evidence demonstrates T.M. was not provided with sufficient opportunities to practice his speech skills, improve his behavioral issues, or develop his sensory awareness and activities of daily living. They contend that as a result, the district failed to identify his intellectual potential and the needs to achieve it. Second, the parents claim that the district’s evaluations do not provide a comprehensive statement of T.M.’s abilities. Without a thorough evaluation, a meaningful plan aimed at achieving progress cannot be developed. If the parents are correct as to either claim, the entire IEP is skewed and may not provide the meaningful educational benefits to which T.M. is entitled.
Central to the parents’ claim is that the district did not use the Verbal Behavior Milestone Assessment and Placement Protocol (VB-MAPP), a widely recognized assessment for autistic children. The parents contend that the assessments administered by their evaluator, McGinnis, comprehensively measure all aspects of T.M.’s functioning, including his academic, social, and verbal abilities, as well as skills related to activities of daily living. The parents argue that without data from these assessments, the IEP team lacked information necessary to devise an effective IEP.
Contrary to the parents’ contention, the IEP team did consider the VB-MAPP assessments. The team included the results in the 2015-2016 IEP.
The district’s behavior analyst explained that the IEP team did not place great weight on the results of the VB-MAPP assessment because it is typically administered to younger children and does not adequately test for functional skills of fifth
The VB-MAPP is only one type of evaluation method. The IDEA does not obligate a school district to use a particular methodology to evaluate a student’s intellectual potential. The district used other assessment tools which the hearing officer found were objective and uniform.
T.M.’s speech and language pathologist administered the Functional Skills Assessment tool, a comprehensive evaluation for autistic individuals—which was, according to the district’s behavior analyst, more appropriate for T.M.’s age than the VB-MAPP.
The district did not rely solely on the Functional Skills Assessment. It alsó utilized additional assessments in the following areas: the Goldman Fristoe Test of Articulation 2' to measure speech articulation; the Peabody Picture Vocabulary Test 4 to measure vocabulary proficiency and pronunciation of consonant sounds in the initial, medial and final positions of words; and the Letter and Word Recognition and Reading' Comprehension subtests of the Kaufman Test of Educational Achievement, Second Edition, to measure reading skills.
The parents also contend that the district failed to address T.M.’s need for development of activities of daily , living and sensory awareness. These activities include self-care skills and fine motor coordination for effective use of tools, such as a pencil. Just as the district properly identified T.M.’s skill deficits and. abilities in verbal behavior, its identification and evaluation
The district’s occupational therapist worked on T.M.’s “ability to perform expected routines, activities and skills necessary in [his] school placement.”
The hearing officer correctly found that the district appropriately identified T.M.’s behavior and skills. The record supports the hearing officer’s conclusion that. the district’s evaluations were sufficient. The evaluation procedures were as effective as the VB-MAPP assessment in providing a comprehensive picture of T.M.’s academic potential and his special education needs. 34 C.F.R. § 300:304. The evaluations monitor his progress in improving; for example, pronunciation and articulation, making requests, communicating his-needs,-conforming handwritten pen strokes) and complying with adult directives. The IEP team possessed the information necessary to devise an effective educational plan. Therefore, the record supports the hearing officer’s findings that the district appropriately identified and evaluated all of T.M.’s disability-related needs.
Implementation of ABA Programming
Reduced to its essence, the dispute is whether the district must provide T.M. a strict ABA program or one based on ABA principles. The parents argue that the district failed to implement an educational program consistent with established ABA requirements. They contend that the failure to implement 'their evaluator’s recommendation's for data collection and one-on-one instruction deprived T.M. of a free appropriate public education.
The hearing officer agreed with the district that its implementation of’ ABA-based educational programming, not strict adherence to ABA, was appropriate. After" comparing the qualifications of the witnesses and making a credibility determination based on the testimony, he found the district’s ’ staff members more credible than the parents’ evaluator.
The .parents’ evaluator, Amy McGinnis, is an occupational therapist and board-certified ’ behavioral analyst. She has no four-year college degree. She has no regular or special education teaching degree or experience.
The district’s special education staff members, on the other hand, are well qualified and experienced in all areas. The district’s board-certified behavioral-, analyst, who has worked in public schools for more than ten years, holds a bachelor’s degree in psychology, a master’s degree in ABA, and a doctorate degree in educational leadership.
The hearing officer compared not only the relative qualifications, but also the time the staff members spent observing T.M. in the school setting. He noted that the district’s staff saw T.M. for 1,440 hours over the two-year period they worked with him.
The hearing officer discounted McGin-nis’s critique of the IEP’s academic, behavioral, and speech goals because she is not a certified teacher, psychologist, or speech therapist. As a behavioral analyst and occupational therapist, McGinnis does not possess the requisite educational background to opine on those topics.
The hearing officer concluded that the district’s special education staff members were more credible than McGinnis. There is no reason to disturb the hearing officer’s credibility determination.
Even if we were to find that McGinnis’s testimony should have been afforded equal
The parents claim that because the underlying data was unreliable and the programs were inconsistently implemented and supervised, the district incorrectly concluded that T.M. made meaningful progress. First, the parents argue that the district did not utilize sufficiently reliable measurement techniques to ensure an objective, accurate assessment of T.M.’s progress. Second, they contend that the district failed to adequately supervise the program to ensure its effective and consistent implementation. They argue that the hearing officer erroneously relied on the district’s progress reports to track T.M.’s progress.
Reliability of The District’s Measurement Techniques
The parents’ criticism of the reliability of the district’s measuring T.M.’s problematic behavior goes to the frequency of the recording of the behavior.
The parents contend that instead of recording behavior data in five-minute intervals, the district should have relied on the “gold standard” for data collection, which measures T.M.’s problematic behavior in shorter time periods. McGinnis explained that a shorter interval of five to ten seconds lowers the risk of skewed data.
McGinnis’s observations and data collection occurred over the course of only two school days. On one of those days, substitute staff members replaced T.M.’s regularly scheduled special education team.
The district’s special education staff credibly explained their decision to rely on the five-minute interval data collection method instead of McGinnis’s recom
The district need not use the “gold standard” to measure T.M.’s progress in reducing problematic behavior. Using the longer rather than the' shorter interval measurements did not affect the substantive adequacy of the IEP. The district’s evaluation methods were reliable. Without evidence that other or additional measurement techniques were necessary to ensure reliability, the hearing officer’s finding favoring the district’s measurement techniques was not erroneous.
Program Supervision and Progress Monitoring
Contrary to the parents’ contention, the district’s plan was supervised to ensure objectivity and uniformity in its implementation. To ensure consistency across environments and staff, the 2014-2015 IEP defines the behavior that impedes T.M.’s ability to learn,
The parents claim that T.M. failed to make meaningful progress in reducing the frequency of his problematic behavior because the district’s plan was ineffectively implemented and supervised. Yet, the district’s plan addresses this problem by laying out comprehensive Positive Behavior Support Plans to address T.M.’s unique needs.
The 2014-2015 IEP includes baseline frequency measurements of T.M.’s problematic behavior.
In the 2014 reevaluation report, the district’s behavioral analyst reviewed data from the most recent progress report and compared it to the data from the start of the 2014-2015 school year. The data demonstrated that T.M. “consistently maintained his behavioral success,” and tracked his progress.
In the 2015-2016 IEP, the behavioral analyst reported that T.M. had “minor increases” in his problematic behavior.
The administrative record demonstrates that in response to minor setbacks in reducing T.M.’s problematic behavior, the district modified its programming. New strategies were implemented instead of continuing to employ those in the 2014-2015 IEP. The parent’s requests were taken into account and the plan, was modified accordingly.
The district’s strategy for dealing with T.M.’s problematic behavior “is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers.” T.L. v. Lower Merion Sch. Dist., Civ. No. 15-0885, 2016 WL 3405453, at *15 (E.D. Pa. June 20, 2016) (internal quotation marks, omitted) (quoting A. C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172-73 (2d Cir. 2009)). The evidence supports the hearing officer’s finding that both IEPs were appropriate to address T.M.’s particular behavioral issues.
The parents also argue the district did not afford T.M. sufficient opportunities to practice his speech skills outside the individual instruction setting, resulting in a lack of meaningful progress in his speech intelligibility.
Contrary to the parents’ contentions, the record reveals that T.M.’s daily programming included elements of speech instruction tailored to his learning style. T.M. participated in daily drill exercises to reinforce continuous practice and improve his articulation skills.
The IEPs set goals to improve T.M.’s speech intelligibility and functional communication skills. The 2014-2015 IEP includes an annual goal to improve “his overall speech intelligibility and sound production skills” during articulation drills and verbal language tasks.
The 2015-2016 IEP updates this annual goal, taking into account T.M.’s specific progress and areas for improvement since the last IEP. In the context of articulation drills and verbal language tasks, the IEP states that T.M. “will improve his intelligibility by improving fluency, shaping of vowel sounds in words and appropriate speech sounds.”
With respect to T.M.’s speech skills, the district’s special education programming is reasonably calculated to enable him to receive significant educational benefits in light of his aptitude and.needs. Speech practices essential to T.M.’s learning style were incorporated into his daily programming. The IEPs track short-term and annual goals to address T.M.’s objective progress and areas for improvement. For
The record supports the hearing officer’s determination that the district’s speech-related programming provides T.M. with an opportunity for “meaningful benefit.” Ridley, 680 F.3d at 269. The daily lesson plans address his specific learning style by focusing on repetition. The IEPs employ evaluations to monitor his progress in improving pronunciation and articulation, making requests, and communicating his needs. The 2015-2016 IEP addressed the outcome of these evaluations by tailoring his specially designed instruction accordingly. For the areas in which he improved, the IEP set goals for him to continue to develop the skill. Thus, the hearing officer correctly found that T.M.’s speech-related instruction was reasonably calculated to provide him with the opportunity to make meaningful progress.
As with T.M.’s opportunities to develop his speech intelligibility, the district appropriately monitored his progress in sensory motor skills and activities of daily living. As noted, T.M. demonstrated improvements in his handwriting. The updated IEP for the 2015-2016 school year reported the results from prior testing and T.M.’s progress. For example, the report stated that T.M. “progressed when writing with boxes.”
The administrative record demonstrates that the district’s programming included sufficient opportunities for T.M. to develop his sensory motor skills and activities of daily living. The record reflects that T.M. made incremental progress in these areas.
The parents also contend that T.M. cannot benefit from interacting with his classmates, neither in his special education nor regular education curricula.
In contending that T.M. cannot benefit from socialization opportunities, the parents point out that,the district’s board-certified behavior analyst observed T.M.’s failure to interact with his peers on the playground during recess,
Incorporating twenty hours of. isolated ABA programming into T.M.’s weekly academic schedule could be accomplished in one of two ways. Either the ABA programming would replace other elements of his already established daytime curriculum, or the one-on-one lessons would take place after* school in a community or home setting.
The district’s decision not to adopt her recommendation in either a daytime or after-school setting was appropriate. If the one-on-one programming were implemented during school hours, T.M.’s specially designed instruction would require significant changes. T.M.’s school day lasts 6.5 hours, including lunch, recess and study periods. McGinnis recommended that, at least four of those 6.5 hours—sixty percent of T.M.’s school day or more—should be devoted to one-on-one ABA instruction.
' T.M.’s progress with increasing and developing socialization opportunities was tracked through the IEPs. The 2014 reevaluation report assessed T.M.’s social behavior and recognized that he consistently maintained appropriate social and physical boundaries by keeping his hands and feet to himself and respecting others’ privacy.
Because McGinnis’s recommendation for one-on-one ABA programming lacked details and T.M. was making progress in socialization, the district’s decision not to implement it was appropriate. Further, the district did not categorically decline to consider McGinnis’s recommendation. Instead, the updated IEP provided that the team would reconsider implementing the recommendation into T.M.’s plan depending on his progress throughout the school .year.
Although the IEP team ultimately declined to implement twenty hours of one-on-one programming, the hearing officer emphasized that the district did not reject McGinnis’s recommendations in their entirety. The updated IEP for the 2015-2016 school year reveals that the district, after reviewing her report at the IEP meeting, adopted many of its recommended annual goals and plans for specially designed instruction.
Finally, the hearing officer properly relied on the' district’s progress re
The hearing officer correctly analyzed the appropriateness of the IEPs at the time they were issued, not “at some later date.” Carlisle, 62 F.3d at 529 (quoting Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993)). The appropriateness of the IEP is judged as of the time it was developed. D.S., 602 F.3d at 564-65. Evidence acquired after the creation of the IEP is useful only to evaluate the reasonableness of the district’s decisions at the time they were made. Id. at 565 (citation omitted). The hearing officer concluded that “[t]he record is replete with evidence, at the time the IEP was drafted,” that the district offered T.M. a free appropriate public education.
McGinnis’s conclusion that T.M. did not make meaningful progress is contradicted by the evidence. T.M.’s incremental progress is documented throughout the 2014 reevaluation report and the updated IEP for the 2015-2016 school year. In fact, McGinnis conceded that T.M. made “significant progress” and “clearly excels” in a variety of areas, including, but not limited to, physical motor skills (handwriting and typing);
The record supports the conclusion that T.M.’s ABA-based programming was appropriately implemented. Given the qualifications of the district’s staff and the amount of time they spent with T.M., the hearing officer properly accorded more weight to their testimony than that of the parents’ evaluator. The district’s chosen data collection techniques produced reliable records and provided a comprehensive picture of T.M.’s progress. The IEP programming was implemented and supervised to ensure objectivity and uniformity. Because T.M. demonstrated continuous incremental progress, the district’s IEPs were reasonably calculated to enable T.M. to make meaningful progress. This is corroborated by the school psychologist’s testimony that a comparison of the standardized achievement test results from 2015 to the previous year demonstrated that T.M. made one full year of progress.
In summary, the IEP team appropriately identified T.M.’s intellectual potential to evaluate his academic and behavioral development. The district implemented a program that was providing T.M. with a meaningful educational benefit. The hearing officer’s findings were not erroneous.
The Rehabilitation Act and The Americans with Disabilities Act
The parents assert that the district’s failure to conduct appropriate evalu
Because the district did provide T.M. with a free appropriate public education in compliance with IDEA, it did not violate Section 504 or the ADA.
Conclusion
The hearing officer’s decision is supported by the evidence. The district’s IEPs and related services were specifically designed to meet T.M.’s needs and were reasonably calculated to enable him to make progress appropriate in light of his unique circumstances. Therefore, because the district is providing T.M. a free appropriate public education, we shall grant the district’s motion and deny the parents’ motion.
. Compl. ¶ 5. Autism is a neurodevelopmental disorder marked by impaired social and communicative skills, “engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. § 300.8(c)(1)(i). Global apraxia is a type of speech impairment that affects the intelligibility of speech and all other areas of communication. Def. Br. in Supp. of Mot. Summ. J. (Doc. No. 11-3) at 2; Hr’g Officer Decision at 3 ¶ 1, Admin. R. (AR) at 01598.
. Compl. ¶ 5.
. Reevaluation Report, October 30, 2014, District Ex. S-13 (Reevaluation Report) at 2-3, AR 00261-62. Each school district in Pennsylvania is assigned to an intermediate unit, which provides the school district with education support and services, 24 Pa. Stat. §§ 9-901-A, 9-902-A.
. See generally Hr'g Officer Decision at 13 ¶¶ 96-101, AR 01608.
. Pl. Stmt. of Undisputed Facts (SUF) (Doc. No. 12-1) ¶ 16; Def. Counter-Stmt. to Pl. Stmt. of Undisputed Facts (Counter-SUF) (Doc. No. 14-1) ¶ 16; IEP, May 22, 2014, District Ex. S-10 (2014-2015 IEP) at 1, AR 00196.
. 2014-2015 IEP at 8-18, AR 00203-213.
. See Hr’g Officer Decision at 5-6, ¶¶ 25-28, AR 01600-01. The Progress Report dated June 18, 2014, District Exhibit S-12, was not included within the administrative record.
. Reevaluation Report at 28-30, AR 00287-89.
. Id. at 12-14, AR 00271-73.
. Hr'g Officer Decision at 7-8, ¶¶ 38-51, AR 01602-03 (citing Independent ABA Evaluation Report by Amy McGinnis, January 29, 2015, Parent Ex. P-11 (McGinnis Report P-11), at 1-11, AR 01192-99).
. McGinnis Report P-11 at 61, AR 01252.
. IEP, March 31, 2015, District Ex. S-17 (2015-2016 IEP) at 14, AR 00311.
. Hr’g Officer Decision at 1, 27, AR 01596, 01622.
. ABA is the science of studying behavior using data-driven approaches to increase or decrease meaningful behaviors. Hr’g Tr. Vol. III at 301, AR 01461.
. Pl. Mem. in Supp. of Mot. for Summ. J. (Doc. No. 12) at 9; McGinnis Report P-11 at 38, AR 01229.
. 2015-2016 IEP at 14, AR 00311.
. Def. Resp. in Opp’n to Mot. for Summ. J. (Doc. No. 14) at 4 (citing Hr’g Tr. Vol. III at 464-65, AR 01501-02).
. Def. Br, in Supp. of Mot. for Summ. J. at 9 (citing Hr'g Tr. Vol, III at 249-50, AR 01448).
. SUF ¶ 96.
. Hr’g Tr. Vol. III at 465, AR 01502.
. Def. Resp. at 3 (citing Reevaluation. Report at 24, AR 00283).
. Id. (citing Reevaluation Report at 25, AR 00284).
. Reevaluation Report at 10, 12, 25, 28-29, AR 00269, 00271, 00284, 00287-88.
. Def. Resp. at 3-4 (citing Reevaluation Report at 9-14, 25, 28-29, AR 00268-73, 00284, 00287-88).
. Reevaluation Report at 24, AR 00283.
. 2014-2015 IEP at 12, AR 00207.
. Id. at 14-15, AR 00209-10.
. Id. at 14, AR 00209.
. Id. at 15, AR 00210.
. Reevaluation Report at 22, AR 00281.
. Hr’g Tr. Vol. III at 242-43, AR 01446. She has supervised the implementation of a child’s ABA program “dozens” of times and
. Hr’g Officer Decision at 15, AR 01610.
. Hr’g Tr. Vol. III at 386-88, AR 01482.
. Hr’g Tr. Vol. IV at 532-33, AR 01519-20.
. Id. at 475, AR 01505.
. Hr’g Tr. Vol. II at 196-98, AR 01433-34.
. Id. at 9-12, AR 01386-87.
. See, e.g., Hr’g Officer Decision at 15, AR 01610.
. Hr’g Tr. Vol. III at 325-26, AR 01467.
. Id.
. Examples of such behavior that impede T.M.’s learning include teeth-grinding, yelling, throwing objects, displaying aggression, grunting, whining, flapping his arms or running away.
. 2014-2015 IEP at 53, AR 00248.
. Def. Resp. at 5.
. McGinnis Report P-11 at 25, AR 01226.
. Pl. Mot. for Summ. J. at 17.
. Hr’g Tr. Vol. III at 325-26, AR 01467.
. Id.
. Def. Resp. at 5 (citing Hr’g Tr. Vol. III at 390-91, AR 01483).
. Id.
. Id. (citing Hr’g Tr. Vol. II at 113, AR 01412).
. 2014-2015 IEP at 52, AR 00247.
. Id. at 53, AR 00248.
. See, e.g., id. at 35, AR 00230,
. 2015-2016 IEP at 27-51, AR 00324-48.
. 2014-2015 IEP at 12, AR 00207.
. See id. at 35, AR 00230.
. Id. at 56, AR 00251.
. Id. at 53-54, AR 00248-49.
. Reevaluation Report at 13, AR 00272.
. 2015-2016 IEP at 11, AR 00308.
.Id.
. Id.
. Id. at 49, AR 00346.
. Id.
. Pl. Mot. for Summ. J. at 15, 24; Pl. Resp. (Doc. No. 15) at 6-7.
. Pl. Mot. for Summ. J. at 24.
. 2015-2016 IEP at 15, AR 00312.
. Id.
. Id. at 60-64, AR 00357-61; 2014-2015 IEP at 38-42, AR 00233-37; Hr’g Tr. Vol. I at 206-09, 218-19, AR 01371, 01374.
. Hr’g Tr. Vol. I at 218-19, AR 01374.
. See, e.g., 2015-2016 IEP at 65, AR 00362.
. 2014-2015 IEP at 33, AR 00228.
. Id. at 34, AR 00229.
. 2015-2016 IEP at 36, AR 00333.
. Id. at 37, AR 00334.
. Reevaluation Report at 11, AR 00270.
. 2015-2016 IEP at 12, AR 00309.
. Id.
. Id. at 51, AR 00348.
. Pl. Resp. at 8-9.
.The IDEA requires that each state .establish;
procedures to ensure that ,,. to the maximum extent' appropriate, children with disabilities, including children: in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(5); Rowley, 458 U.S. at 202-03 & n.24, 102 S.Ct. 3034.
. Pl. Resp. at 7.
. McGinnis testified that the programming "could be classroom time. It could be provided across environments as well. I didn't make a specific recommendation for where it had to be provided.” Hr'g Tr. Vol. III at 349-50, 358, 376, AR 01473, 01475, 01479.
. Id. at 351, AR 01473.
. Id. at 293, AR 01459.
. Id. at 354-55, AR 01474.
. Hr’g Officer Decision at 23, AR 01618.
. Hr’g Tr. Vol. II at 165-66, AR 01425-26; 2014-2015 IEP at 47, 56, AR 00242, 00250; 2015-2016 IEP at 69, AR 00366.
. Hr’g Tr. Vol. II at 166-67, AR 01425-26.
. Reevaluation Report at 24-25, AR 00283-84.
. Id.
. 2015-2016 IEP at 63, AR 00360.
. Hr’g Tr. Vol. II at 167, AR 01426.
. Independent ABA Evaluation Report by Amy McGinnis, February 22, 2016, Parent Ex. P-13 (McGinnis Report P-13) at 36, AR 01290.
. 2015-2016 IEP at 14, AR 00311.
. Id.
. Hr’g Officer Decision at 25, AR 01620.
. McGinnis Report P-13 at 33, AR 01287.
. Id.
. Id. at 36, AR 01290.
. Id. at 37, AR 01291.
. Hr’g Officer Decision at 26, AR 01621; Hr’g Tr. Vol. IV at 560-61, 591-99, AR 01526-27, 01534-36.
Reference
- Full Case Name
- T.M., a Minor with a Disability, T.M., C.M., his Parents, on their own behalf and ON BEHALF OF T.M. v. The QUAKERTOWN COMMUNITY SCHOOL DISTRICT
- Cited By
- 11 cases
- Status
- Published