Opinion
Civil Action No. 05-1113.
November 29, 2005
MEMORANDUM
Plaintiffs D.H. and D.H., as parents and nearest friends of J.H., appeal the decision of the Pennsylvania Special Education Due Process Appeals Review Panel ("Appeals Panel") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Before the court are cross-motions for judgment on the administrative record.
The hearing officer ordered the Manheim Township School District ("District") to: (1) provide 1.5 hours of compensatory education for every day of the 2003-2004 school year from October 1, 2003 until the last day of school that academic year; (2) reimburse plaintiffs for tuition of J.H. at the Janus School during the 2004-2005 school year; and (3) reimburse plaintiffs for his transportation expenses for the 2004-2005 school year. The hearing officer denied the parents' request for reimbursement for an Independent Educational Evaluation ("IEE") administered in December, 2003. In an opinion and order dated February 8, 2005 the Appeals Panel reversed the hearing officer's determination that the parents were entitled to tuition and transportation reimbursement for the 2004-2005 school year. The Appeals Panel affirmed the hearing officer's order for compensatory education. We heard oral argument and now affirm in part and reverse in part the decision of the Appeals Panel.
I.
States receiving federal education funding under the IDEA must provide every disabled student within their jurisdictions with a "free appropriate public education" ("FAPE") gauged to the needs of the student in the least restrictive educational environment. 20 U.S.C. §§ 1412(a)(1) and 1412(5). Under the IDEA, "[t]he core of this entitlement is provided by the IEP, the package of special educational and related services designed to meet the unique needs of the disabled child." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995) (citation omitted). An Individual Education Plan ("IEP") is a written statement which must include:
1) a statement of the child's present levels of educational performance; 2) a statement of measurable annual goals, including benchmarks or short term objectives; 3) a statement of the special education and related services to be provided to the child; 4) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class; 5) a statement of how the child's progress toward the annual goals will be measured.Kristi H. v. Tri-Valley Sch. Dist., 107 F. Supp. 2d 628, 630 n. 2 (M.D. Pa. 2000); see also 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.347. Moreover, the benefit must be "meaningful" and the IEP must be "reasonably calculated" to enable the child to receive "meaningful educational benefits" in light of the child's "intellectual potential." Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999); Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184-85 (3d Cir. 1988); see also Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). A child's IEP is continually assessed by an IEP team comprised of the child's parents, special education teachers, and other members of the school district familiar with the student. 34 C.F.R. §§ 300.344, 300.346.
The IDEA regulations use the term "public entity" to describe the local state institutions that provide educational services to students. In the Commonwealth of Pennsylvania, those functions are performed by "school districts," the term we use in this opinion.
In order for a student to be eligible to receive a FAPE under the IDEA, he or she must have a specific learning disability ("SLD"). A school district must give the student a "full and individual" evaluation to determine whether he or she has an SLD. 20 U.S.C. § 1414(a)(1)(A). Parents, of course, may request the school district to conduct an evaluation. Id. § 1414(a)(1)(B). When not initiated by the parents, the school district must obtain the consent of a parent for its initial evaluation and for all its subsequent reevaluations. Id. §§ 1414(a)(1)(D)(i)(I), (c)(3); 30 C.F.R. § 300.505.
A "specific learning disability" is defined in the regulations as a "disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations." 34 C.F.R. § 300.7(10)(i); see also 20 U.S.C. 1401(3)(A). The term specifically excludes "learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage." 34 C.F.R. § 300.7(10)(ii). An IEP Team may find that a student has an SLD if the child both "does not achieve commensurate with his or her age and ability levels in one or more of the areas [identified in the regulations], if provided with learning experiences appropriate for the child's age and ability levels" and "has a severe discrepancy between achievement and intellectual ability . . . in math calculation." 34 C.F.R. § 300.541(a).
The school district shall reevaluate the student if requested to do so by the parent or teacher or where the school district determines the child's needs warrant reassessment. Id. § 1414(a)(2)(A). The IDEA requires the state to reevaluate each student with a disability at least once every three years but must obtain parental permission to do so. Id. § 1414(a)(2)(B). If, in the process of this reevaluation, it is determined that additional data is not needed to ascertain whether the child still has an SLD, the school district must inform the parents of the decision and provide them with supporting documentation.Id. § 1414(c)(4); 34 C.F.R. § 300.533(d). At this point the school district need not conduct additional assessments unless requested to do so by the parents. 20 U.S.C. § 1414(c)(4)(B); 34 C.F.R. § 300.533(d)(2). The IDEA gives parents the right to an IEE at public expense under certain circumstances. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(b).
Parents who are dissatisfied with their child's IEP are entitled to an "impartial due process hearing." 20 U.S.C. § 1415(f) (IDEA). At that hearing, the parents have the burden of persuasion to show that a school district's IEP is not legally sufficient. See Schaffer v. Weast, ___ U.S. ___, 126 S. Ct. 528 (2005). In Pennsylvania, a hearing officer conducts an initial hearing. The party aggrieved by the decision of the hearing officer may appeal to a state educational agency, in this case the Appeals Panel. Id. § 1415(g). The Appeals Panel "conduct[s] an impartial review . . . [and] make[s] an independent decision upon completion of such review." Id. A dissatisfied party may appeal the final judgment of the Appeals Panel by filing a civil action "in a district court of the United States." Id. § 1415(i)(2)(A).
When reviewing the decision of the Appeals Panel, the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id. § 1415(i)(2)(C). "This has been described as a `modified de novo review,' or as `involved oversight'" by the district court. Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3d Cir. 1995) (quoting Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)). Under this standard, we are not "free to substitute [our] own notions of sound educational policy for those of the educational agencies [we] review." Id. at 757; see Rowley, 458 U.S. at 206. Rather, we must give "due weight" to the state administrative proceedings. Susan N., 70 F.3d at 757. We may make our own findings by a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B)(iii); Shore, 381 F.3d at 199. Generally, however, "factual findings from administrative proceedings are to be considered prima facie correct". Shore, 381 F.3d at 199 (citingS.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003)). If we as the reviewing court "fail to adhere" to these findings, we are "obliged to explain why." Id. We are not bound to follow the Appeals Panel's conclusions of law.
Where, as here, the decisions of the local hearing officer and Appeals Panel differ, our Court of Appeals has instructed that affording "due weight" to the administrative proceedings generally requires deference to the Appeals Panel and not the hearing officer. Scott P., 62 F.3d at 529. The only exception arises where the Appeals Panel reverses a credibility-based finding of the hearing officer and the panel's decision to reverse is unsupported by non-testimonial, extrinsic evidence or by the record read in its entirety. Id. at 528-29. In such a situation, the Court of Appeals has suggested that a district court "should accord somewhat less consideration" to the panel's ruling. Id. at 529 n. 4.
The Third Circuit has explained that the district court is to "give `due weight' to the appeals panel's decision when it reverses the hearing officer's conclusions of law, inferences from proven facts, and factual findings based on credibility judgments where non-testimonial, extrinsic evidence justified the appeals panel's contrary decision." Scott P., 62 F.3d at 529.
II.
J.H. was born on January 17, 1988 and entered first grade in the District in the fall of 1994. In May, 1996, after his second grade year, J.H.'s physician diagnosed him as suffering from a mild form of Attention Deficit Disorder and prescribed medication. The same summer, J.H.'s parents obtained an IEE that showed J.H. had difficulties with "language processing." In response to the IEE, the District evaluated J.H. during the fall but found he did not have any SLD that would qualify him for benefits under the IDEA.
In November, 1999, the fall of J.H.'s sixth grade year, J.H.'s parents turned to Margaret Kay, Ed.D., for another IEE. Dr. Kay diagnosed J.H. with an SLD in written expression. The District again evaluated J.H. and confirmed his SLD in written expression. The District developed an IEP that took effect on January 3, 2000 and that provided various accommodations, strategies for success, and one period each day of "learning support" in a "resource classroom" and one period of "learning support" in the subject of English. Over the course of the next three years, J.H.'s parents provided him with private tutoring with assistance in math. J.H.'s seventh and eighth grade IEPs were very similar to his initial one. Each stressed the development of organizational strategies, skills and, to a lesser extent, self-advocacy. During his middle school years J.H. continued to test poorly in writing mechanics and in math.
In the fall of 2002, J.H. entered ninth grade. When it came time for his triennial reevaluation in December, the District determined that no additional information or other data was necessary. The resulting January 10, 2003 IEP affirmed an SLD in written expression but focused on J.H.'s self-advocacy skills and organization rather than tangible ways to improve his writing. J.H.'s parents repeatedly voiced their concern that J.H. was not being taught in a manner that helped him compensate for his learning disability. On his ninth grade Pennsylvania System of Schools Assessment Test ("PSSA"), J.H. scored well below basic in writing. His final grades in mathematics and science were also substandard.
In the fall of 2003, the District and J.H.'s parents took separate measures to address his continuing struggles in math, writing, spelling and vocabulary. Frustrated with what they perceived as a lack of response from the District, the parents again turned to Dr. Kay, in December, 2003, for another IEE. At about the same time, the District sought permission from J.H.'s parents to reevaluate him. The parents refused permission pending the results of Dr. Kay's IEE. The District's proposed reevaluation never occurred. In early January, 2004, the parents forwarded to the District the results of Dr. Kay's IEE. Dr. Kay administered a plethora of tests that resulted in low scores in the areas of math calculation and written expression. In her report, Dr. Kay recommends, among other things, an extensive half-day program of academic remediation. The District implemented a new IEP in February, 2004 that remained in place throughout the spring semester. During the summer of 2004, however, the District sought to rework J.H.'s IEP for the following school year when J.H. would be in his eleventh grade year.
Though the District considered Dr. Kay's IEE when drafting the August, 2004 IEP, the final draft did not include her most comprehensive recommendations. For example, the District declined to provide one-half day of intensive remediation each day. The District did accept and include in the IEP several of the results from tests administered by Dr. Kay in December, 2003. The August, 2004 IEP considerably improved on its predecessors. For the first time, the IEP included goals and objectives actually tailored to J.H.'s disability in written expression. It also contained an extensive list of program accommodations and services designed to help J.H. with his disability in written expression. Nevertheless, the parents informed the District that if it would not adopt all of Dr. Kay's recommendations, they would send their son to the Janus School and file suit for reimbursement. The District refused.
Unsatisfied with the IEP and with what they perceived as the District's lack of response to their son's disabilities, J.H.'s parents enrolled him at the Janus School for the 2004-2005 school year and sought a due process hearing. The hearing officer heard four days of testimony and argument before issuing a decision and report. Both sides filed exceptions. The Appeals Panel affirmed in part and reversed in part the decision of the hearing officer. The parents' appeal to this court followed.
III.
In this appeal the parents contend they are entitled to reimbursement for Dr. Kay's 2003 IEE, reimbursement for tuition and transportation expenses at the Janus School for the 2004-2005 school year and more than 1.5 hours per day of compensatory education award for the 2003-2004 school year. We address each in turn.
Dr. Margaret Kay's Independent Educational Evaluation
The hearing officer did not award J.H.'s parents reimbursement for Dr. Kay's IEE because the parents effectively preempted the District's reevaluation process by refusing to consent to its request to evaluate J.H. in lieu of seeking their own evaluation. The Appeals Panel affirmed this decision but rested its determination on different reasoning. In the Panel's view, Dr. Kay's IEE did not meet agency criteria because it included a long list of "rote" recommendations not tailored to J.H., over-diagnosed learning disabilities, and excessively relied on what is known as discrepancy analysis. The Appeals Panel also criticized Dr. Kay for administering all the IEE's tests to J.H. in one day, especially in light of his apparent tendency to tire, and making diagnoses that conflicted with her previous testing and current findings. We affirm the decision, though not the reasoning, of the Appeals Panel.
The IDEA simply grants a parent a right to obtain an IEE without any elaboration. 20 U.S.C. § 1415(b)(1). The regulations provide that an IEE may be provided at public expense under the following circumstances:
(b)(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either —
(i) Initiate a hearing under § 300.507 to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under § 300.507 that the evaluation obtained by the parent did not meet agency criteria.34 C.F.R. §§ 300.502(b)(1)-(2). In subsection (b)(1), the regulation states that an IEE, essentially a "second opinion" on whether a student has an SLD, will not be provided at public expense unless the parents disagree with an evaluation performed by the school district. Our Court of Appeals has suggested that some form of parental disagreement with either a school district's evaluation procedure or a particular evaluation of a student is required before a parent may receive reimbursement for an IEE. See Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 591 (3d Cir. 2000) (citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 157 (3d Cir. 1994)). In the fall of 2003, the District sought permission to reevaluate J.H. The parents refused consent and sought their own evaluation. In doing so, they attempted to circumvent the District's evaluation process. J.H.'s parents may not obtain their "second opinion" free of charge where they prevented the District from performing its evaluation. Consequently, they are not entitled to reimbursement.
The Appeals Panel enunciated a different rationale for denying J.H.'s parents an IEE at public expense. It ruled that Dr. Kay's IEE did not meet agency criteria. This was error. Subsection (b)(2) permits the District to demonstrate an IEE does not meet agency criteria if "without unnecessary delay" it so demonstrates at a due process hearing. See 34 C.F.R. § 300.502(b)(2). The District received Dr. Kay's IEE by January 8, 2005. It did not object to the report or initiate a due process hearing to prove the IEE "did not meet agency criteria." Id. § 300.502(b)(2)(ii). Instead, the District implicitly accepted some of Dr. Kay's test results when it incorporated them into two IEPs. The District did not object to the appropriateness of the IEE until J.H.'s parents initiated a due process hearing on September 24, 2005, more than eight months after the District received Dr. Kay's IEE. Because the District failed to act "without unnecessary delay" to initiate a due process hearing and object to Dr. Kay's IEE, it is not now entitled, nor should it have been entitled at the due process hearing, to argue that the IEE did not meet "agency criteria."
Nevertheless, because the parents are not entitled to compensation for Dr. Kay's IEE for the reasons articulated by the hearing officer, we affirm the Appeals Panel's decision denying reimbursement.
Hearing Officer's Compensatory Education Award
The hearing officer concluded that the District's 2003-2004 IEP was inadequate. The District does not dispute this finding. The hearing officer awarded the parents 1.5 hours of compensatory education each day for the period between October 1, 2003 and the end of the school year. Unfortunately, the hearing officer did not make any effort to explain how she arrived at that figure. The Appeals Panel, in affirming the award, noted that 1.5 hours roughly equates to two school periods each day. In this court the parents seek an enlargement of this award. The District asks us to affirm the hearing officer's award without modification.
The parents argue that the award was not adequate to address J.H.'s needs. While J.H.'s 2003-2004 IEP certainly does not address all his needs as identified by his parents, an IEP is not designed to solve all problems a student may have. Under the IDEA, an IEP is designed to provide a "meaningful" educational benefit to meet the student's needs that "result from" the student's identified SLD. 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.347(a)(2). Where an IEP fails to provide such a benefit and a compensatory education award is appropriate, that remedy must be measured in light of only those needs of the students that directly flow from his diagnosed SLD.
After a thorough review of the administrative record, we find that the award of 1.5 hours each day for all school days between October 1, 2003 and the last day of school in that academic year was an appropriate remedy for J.H.'s education needs stemming from his SLD in written expression. The hearing officer's award and the Appeals Panel's affirmance are fully supported by the facts found in her ruling and the record read in its entirety. The parents have simply not met their burden of proof to establish that 1.5 hours each day for the 2003-2004 school years is insufficient. See Schaffer, 126 S. Ct. at ___.
We will affirm the decision of the Appeals Panel regarding the compensatory education award.
Tuition and Transportation Reimbursement
Relying on Dr. Kay's report, the hearing officer found the August, 2004 IEP was inadequate to meet J.H.'s needs and awarded reimbursement for tuition and transportation expenses to the Janus School for the 2004-2005 school year. Having held the IEE did not meet "agency standards," the Appeals Panel reversed the decision of the hearing officer. In its view, the IEP, though not perfect, was sufficient to satisfy the relevant legal standard. Though we agree with the Appeals Panel that the hearing officer erred in concluding J.H. has an SLD in oral expression, for the reasons that follow we think the record strongly supports the hearing officer's determination that J.H. has a specific learning disability in math calculation. The District did not adequately address that disability in its August, 2004 IEP.
The District argues the hearing officer did not explicitly state that J.H. has an SLD in math calculation. We disagree. The hearing officer found the August, 2004 IEP inadequate for failing to address J.H.'s needs in math calculation and adopted Dr. Kay's recommendation for intensive remediation based on the latter's determination J.H. had an SLD in math calculation. Also, an IEP is designed to address a student's needs resulting from an SLD recognized by the IDEA. In stating the August, 2004 IEP was inadequate and adhering to Dr. Kay's recommendation, the hearing officer necessarily found J.H. had an SLD in math calculation.
We find, after a careful review of the record, that J.H.'s grades and standardized test scores evidence an SLD in math calculation, one of the specific learning disability areas recognized in the regulations under the IDEA. In the area of math calculation, J.H. clearly does not "achieve commensurate with his . . . age and ability levels" and "has a severe discrepancy between achievement and intellectual ability." 34 C.F.R. § 300.541(a). The standardized test results included in the August, 2004 IEP (taken when J.H. was nearly sixteen years old) exemplify J.H.'s shortcomings in math calculation and confirm the hearing officer's finding that J.H. has an SLD in this respect. On the Woodcock-Johnson Psycho-Educational Battery III test where the average score is 100, J.H.'s math composite score was a 76. This score is comprised of a 65 in numerical operations in contrast to a 95 in the area of math reasoning, a different category of learning disability from math calculation. Compare Id. § 300.541(a)(2)(vii) with id. § 300.541(a)(2)(vi). On the written language composite covering the field, he scored a 66. This included a 69 in spelling and a 71 in written expression. J.H. scores lower in math calculation than he does in written expression, his recognized area of disability. While his math composite score placed him in the "poor" category (his written language composite placed in the "very poor" group), the math result would have been even worse were it not for his near-average score of 95 on math reasoning, which is a separate learning category under the regulations and thus not to be considered when analyzing whether he has an SLD in math calculation. This is entirely consistent with school reports that note J.H.'s struggle with math calculations but comparatively stronger performance in math reasoning.
The written language composite is exceptionally low because the test evaluates spelling, an area in which J.H. has considerable difficulty. The parties dispute whether the law recognizes an SLD in spelling. The Appeals Panel was correct to observe that spelling is not recognized as a separated specific learning disability. See 34 C.F.R. § 300.541(a)(2). Spelling is, however, acknowledged as evidence of one of the listed SLDs.See id. § 300.7(10)(i). Therefore, while the Appeals Panel correctly notes Dr. Kay's error in diagnosing J.H. with an SLD in spelling, serious difficulty with spelling can reveal the presence of a legally recognized SLD such as written expression.
J.H.'s final grade reports from grades six through ten further confirm an SLD in math calculation. In sixth grade, J.H. received a final grade of C in math, which along with a C in English were his lowest that year. The next year, J.H.'s final mark in Math fell to a C- (compared to C+ in English). He improved this grade to a C the following year (compared to a C+ in English). In high school, J.H.'s struggles with math continued. In ninth grade, J.H. lowest marks (73) came in math and science. Finally, in tenth grade, though he earned a 70 in English, he received a 62 in Asian history and a 58 in Applied Algebra 1B. We think the fact that J.H.'s marks in math are consistently the same or below his grades in the subject embracing his recognized area of disability and that in recent years the gap has grown considerably corroborates our view that J.H. has an SLD in math calculation. While we agree with the District that below average grades alone do not suggest a student has a learning disability, grades are appropriate evidence of a disability absent other contravailing factors.
J.H.'s low scores on the standardized tests incorporated into the August, 2004 IEP by the District do not stem from J.H.'s lack of diligence or effort. Despite earning poor marks, teachers consistently noted that J.H. put forth considerable effort. For example, his tenth grade math instructor observed that J.H. exhibited "commendable" effort and attitude. His eighth grade math teacher noted J.H. was a "pleasure to have in class." Likewise, J.H.'s seventh grade teacher commented that J.H.'s effort and attitude were commendable and that he was "working up to his ability." J.H.'s teachers in other subjects also wrote positive comments regarding attitude and effort. Though the District points out that J.H. often failed to take the initiative to seek assistance when he needed it, it is undisputed that the administrative record establishes that J.H.'s significantly substandard standardized test scores and low grades are not attributable to a lack of effort. Contrary to the unsubstantiated conclusion of the Appeals Panel, the record clearly establishes that J.H. has an SLD in math calculation.
The District, while acknowledging J.H.'s considerable difficulties in math calculation, argues that the test results administered by Dr. Kay are anomalous. The record demonstrates the opposite to be true. As we observed above, beginning in sixth grade, each year J.H. took a math class that emphasized math calculation as opposed to a more reasoning-based class such as geometry. Math was his lowest mark. At oral argument, the District cited the "PSSA Screener" it administered to J.H. in the spring of 2004, J.H.'s tenth grade year, to bolster its position that J.H. has no disability in math calculation. This test, for which J.H. had the use of a calculator, confirms the results reported by Dr. Kay and shown year after year by J.H.'s grades in school. J.H. scored "below basic" in math. His worst performance came in "Algebra and Functions" as well as "Measurement and Estimation." They were the very areas involving math calculation where his grades and Dr. Kay's test show he has an SLD. In the sub-category of "Algebra and Functions," J.H. scored a woefully poor 3 out of a possible 20. In stark contrast, the state average is 11.7. In "Measurement and Estimation," J.H. achieved only 1 out of 12. The state average is 5.7. Most importantly, in the area of "Mathematical Problem Solving," J.H. received merely 2 points out of a possible 15, nearly five points below the state average of 6.9.
We take judicial notice that the Pennsylvania System of School Assessment ("PSSA") is described by the Pennsylvania Department of Education on its website as a standards based criterion-referenced assessment used to measure a student's attainment of the Commonwealth's adopted academic standards for reading, writing, speaking and listening and mathematics. The test also is designed to help determine the degree to which school programs enable students to attain proficiency of the standards. Every Pennsylvania student in third, fifth, eighth and eleventh grade is assessed in reading and math. Every Pennsylvania student in fifth, eighth and eleventh grade is assessed in writing. The PSSA tests are different from what the parties call a "PSSA Screener." The District has used questions or portions from previous PSSA tests to "screen" their students to determine progress in specific areas. The parties pointed to the PSSA score report sheet that was used to screen J.H. in the spring of his tenth grade year. See Pl.'s Ex. 1, p. 6.
The record is not clear whether J.H. used a calculator on this test. However, at oral argument the parties agreed J.H. did use a calculator.
Both parties also cite to tests administered by the Janus School and other evidence after the IEP was drafted. An IEP must be evaluated by evidence available at the time it was prepared. Consequently, we will not consider any evaluations performed or reported after August, 2004.
The decision of the Appeals Panel that Dr. Kay's report did not meet agency criteria, at least in its entirety, is simply not supported by the record. The hearing officer heard testimony from Christina Ravert, the District's school psychologist, who suggested tiring as a possible explanation of J.H.'s low scores on Dr. Kay's IEE. Ms. Ravert, of course, did not observe J.H. as he was being tested and there is no evidence she had ever met him. The hearing officer also heard testimony from Dr. Kay, who responded to the suggestion that J.H.'s IEE performance was affected by fatigue. She explained:
I can tell you right now, [J.H.] didn't have trouble in the WIAT-2 because he was tired and I had tested him brutally for 24 hours and he had no let-up. The WIAT test was the first test I gave to him when he came in my office. He was attentive. He concentrated hard. He worked well for me. We took breaks as he needed them. I can't tell you the exact length of every test but I can tell you, you know, many of these tests are [of] fairly short duration. And what I normally do with students is block off a lot of time. If I have a problem with attention, concentration, fatigue, we reschedule, we set up other times. We didn't have to do that in this case and the amount of time we spent in testing was a whole lot less than a school day.
Transcript of Hearings at 365 (Nov. 23, 2004). The hearing officer found the testimony of Dr. Kay, not Christina Ravert, to be credible. Because the hearing officer's determination finds ample support in the record, we defer to it. See Scott P., 62 F.3d at 529. Aside from Ms. Ravert's unsupported conclusion, there is no evidence that supports the suggestion that J.H. actually experienced tiring.
The Appeals Panel also declared the IEE to be inappropriate for diagnosing additional SLDs Dr. Kay did not recognize in her prior IEE of J.H. several years previously. We reject the notion that an IEE can be declared inadequate simply because it diagnoses an SLD that had not been recognized in an IEE performed several years earlier.
Having found that J.H. has an SLD in math calculation, the question whether reimbursement for tuition and transportation expenses is warranted depends on whether, in light of the IEP's deficiencies, the District provided a FAPE to J.H. We must consider whether the August, 2004 IEP was legally sufficient in light of our findings that J.H. has an SLD in math calculation. The hearing officer determined that the District's August, 2004 IEP was deficient as a matter of law. The Appeals Panel reversed.
We agree with the Appeals Panel that the August, 2004 IEP was far better than its predecessors because it added "academic support" periods and sufficient goals and objectives regarding written expression that were gaged to provide meaningful education benefits in light of J.H.'s abilities and potential. We also applaud the District for including math-related services in the IEP even though they clearly do not address problems resulting from an SLD in written expression. Our conclusion that J.H. has an SLD in math calculation is not based on the references to math in the IEP but on his grades, various test scores, and teacher comments viewed in the context of the administrative record as a whole.
As we observed above, an IEP must contain a statement of "measurable" annual goals and objectives "related to . . . meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum . . . and meeting each of the child's other educational needs that result from the child's disability." Id. § 1414(d)(1)(A)(i)(II). In addition, the IEP must list the services, aids, and program modifications to be provided so the child will "advance toward attaining the annual goals . . ."Id. § 1414(d)(1)(A)(i)(IV). The August, 2004 IEP does not adequately address J.H.'s SLD in math calculation and any related needs resulting therefrom. It contains no goals or objectives involving math calculation. While the District did provide some educational services in math, it did not provide the "meaningful educational benefit" required by the IDEA. Accordingly, the IEP is inadequate as matter of law. See id. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.347(a)(2). We agree with the hearing officer insofar as she found the August, 2004 IEP to be legally deficient for failing to address sufficiently J.H.'s SLD in math calculation. We find that the contrary decision of the Appeals Panel, which is made without any analysis, is unsupported by the record.
The District contends that even if we find an SLD in math calculation, the August, 2004 IEP is sufficient because J.H. was slated to take geometry during the 2004-2005 school year. Because geometry involves mathematical reasoning as opposed to calculation, the District argues, the accommodations and services provided were sufficient. Based on his grades and test scores, it is apparent that the years of algebra-related classes in the District have not equipped J.H. with the skills in math calculation that the Commonwealth of Pennsylvania expects its children to possess. We do not think that dropping classes in which a student's disabilities are evident is an appropriate way to satisfy the school's obligations under the IDEA. The IDEA demands that schools confront a student's disabilities with services or accommodations designed either to overcome or cope with an SLD, not to evade a student's SLD by switching courses.
In short, the August, 2004 IEP failed to include goals and objectives tailored to meet J.H.'s needs resulting from his disabilities in math calculation so as to provide him meaningful educational benefit. The District failed to provide sufficient goals, objectives, and services to address J.H.'s needs resulting from his SLD in math calculation. In so finding, we are mindful of the fact that an IEP need not be perfect or even ideal. The goals and accommodations must, however, provide a meaningful benefit. The District included no math-related goals and objectives in the August, 2004 IEP. The services it did provide were not enough to provide a meaningful educational benefit to J.H.
Tuition reimbursement for unilateral placement is available only where (1) a proposed IEP is inadequate, because it fails to offer a child the required free and appropriate public education, and (2) the parents' unilaterally-chosen placement is an appropriate placement for the child. See 20 U.S.C. § 1412(a)(10)(C); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985); 34 C.F.R. § 300.403(c). We have already found that the August, 2004 IEP is inadequate and that the District failed to provide FAPE. The only remaining question is whether the Janus School is an appropriate place for J.H. Both parties admit that it is. Thus, J.H.'s parents are entitled to reimbursement for tuition at the Janus School and reasonable transportation expenses as determined by the hearing officer.
In reaching our decision we are mindful that under our unique standard of "modified de novo review," we are to give "due weight" to the administrative proceedings. Susan N., 70 F.3d at 757, 758. We have accepted the correctness of the vast majority of the factual findings below and explained our few deviations from them. 20 U.S.C. § 1415(i)(2)(B)(iii); Shore, 381 F.3d at 199. Despite this deference to the administrative proceedings, we are not a "rubber stamp." We have made our own findings by a preponderance of the evidence as permitted by the IDEA. Id. The Appeals Panel's decision regarding tuition reimbursement lacked adequate explanation and factual support. The parents have met their burden of proof and demonstrated J.H. does have an SLD in math calculation. See Schaffer, 126 S. Ct. at ___. After a careful review of the record, despite substantial agreement with the decision of the hearing officer and the Appeals Panel, for the foregoing reasons we think that the latter's decision to deny tuition reimbursement lacks a factual and legal basis and, therefore, must be reversed.
Accordingly, we affirm the decision of the Appeals Panel disallowing reimbursement for Dr. Kay's IEE. We also affirm its compensatory education award and its determination that the hearing officer erred in finding J.H. has an SLD in oral expression. We reverse the Appeals Panel's ruling that J.H. has no SLD in math calculation and that J.H.'s parents are not entitled to reimbursement for tuition and transportation expenses for the academic year 2004-2005.
ORDER
AND NOW, this 29th day of November, 2005, for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs D.H. and D.H. as parents and nearest friends of J.H. for judgment on the administrative record is GRANTED in part and DENIED in part;
(2) judgment is entered in favor of the plaintiffs D.H. and D.H. as parents and nearest friends of J.H. and against defendant Manheim Township School District for tuition reimbursement for the Janus School for J.H. for the academic year 2004-2005 and for related transportation expenses for that academic year;
(3) the motion of defendant Manheim Township School District for judgment on the administrative record is GRANTED in part and DENIED in part; and
(4) judgment is entered in favor of the defendant Manheim Township School District and against the plaintiffs D.H. and D.H. as parents and nearest friends of J.H. on plaintiffs' claim for more than 1.5 hours of compensatory education for every day of the 2003-2004 school year after and including October 1, 2003 and on plaintiffs' claim for reimbursement for the Independent Educational Evaluation performed by Dr. Kay in December, 2003.