P. et al. v. Haverford School District

IN TlIE UNITED STATES DISTRICT COURT

fOR TIlE EASTERN DISTRICT OF PENNSYLVANIA LAURA P., et a!. CIVIL ACTION

v. No. 07-5395

FILED NJV 2 4 Z008

HAVERFORD SCHOOL DISTRICT

MICHAEL E, KUNZ. Clerk

Br Dop. Cle

MEMORANDUM AND ORDER

Juan R. Sanchez, J. November 21, 2008

Vivian p" an ll-year-old child with autism, and her parents ask this Court to award five years ofcompensatory edueation l for the years they allege the IIaverforJ School District violated Vivian's right to a free and appropriate pubEe education (FAPE), and to order Vivian placed in full-time regular education. 2 The Sehool District argues Vivian received a meaningful educational benefit at the Timothy School, compensatory education is unavailable lor the year Vivian was home schooled, and a mixed placement ofregular and special education classes is appropriate for Vivian. 3 Assigning "duc weight" [0 thc administrative proceedings, and determining the IDEA amendment's two-year )"Under IDEA, a disabled student is entilled to a free appropriate public education unlil the sludenl reaches age twenty-one. An award of compensatory education allows a disabled student to continue beyond age twenty-one in order to make up for the earlier deprivation of a free appropriate public education." Ridgewood Bd. ofEduc. v. N.E. ex rei. M. E., 172 F.3d 238, 249 (3d ell". 1999)(eitations omitted). lPlaintiffs bring this action under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Al:t (ADA), 42 U.S.c. § 12131 el seq. 30n August 28, 2008, I ordered Vivian placed in the resouree learning support classroom for language arts and math, and in the regular education selling lor homeroom, lunl:h, rel:ess, spel:ial subjects, science, and social studies, in conformance with an August 26, 2008 individualized educational plan (lEP). Thc l.EP further reeommended Viviflll reeeive paraprofessional SllppOlt, itinerant learning support, and adaptations and modifications to the curriculwn in the regular education setting. 2 statute of limitations applies to claims arising after the amendment's effective date,4 I conelude Vivian was denied FAPE for the second semester of the 2004-2005 school year and from October 14,2005, through the end ofthe 2006-2007 school year. I additionally conclude part-time general education and parl-lime special education is the most appropriatc placement for Vivian. s BACKGROUND AND PROCEDURAL HISTORY

In January 1999, at the age oftwo, Vivian was diagnosed with auti::;m.~ From 2000 until she enrolled in school in September 2003, Vivian attended an early intervention program, where she received behavior skills tmining and speech and language therapy to prepare her for kindergarten. In September 2003, at the ngc of six, Vivian hegan attending the Timothy Sehoo],7

Tn September 200S, Plai ntiffs; informed the School District they wanted Vivian placed in a regular education school with an autistie support class. The rest of Vivian's individualized 4The Individuals with Disabilities Education Improvement Aet (lDELI\) amended the IDEA to require, as of July I, 2005, request of a due proeess hearing within two years of the date the parent or ageney knew or should have known about the alleged llction forming the basis of the complaint. See Pub. L. No. 108-446, I ] 8 Stat. 27] 5 (2004); § ] 4] 5(f)(3)(C). -'Plaintiffs also sought damages to remotional harm in their Complaint. 'fhey have waived this clllim, however, because they did not briefthe issue, present any evidence regarding the claim, nor address it in oral argument. ~Judy IIoITol:ks. assistant direclor at the Timothy School, testified autism is a complex disorder invl'lving the impairment of social skills, language, and behavior. Ex. 18, N.T. 620-21. 7Allhl'ugh Vivian reached the eligible age for kindergarten at age five, her parent.s decided to keep Vivian in the early intervention program an additional year. Ex. 17, NT. 864. In June 2003, six­ year-old Vivian was evaluated llnd detennined ready for school. The evaluation report further recommended "Vivian would benefit from a specialized setting with opportunities to interact with non-disabled, or 'typical,' peers for modeling and langnage opportunities" llnd Vivian needed "speech/language and occupational therapy support services." Ex. 22, P-3. Offered a choice of several schools, Plaintiffs selected the Timothy School, a private school providing speeial education services primarily to autislic children. Ex. 18, N.T. 616. 3 educational plan (rEP) team, however, rejected a regular education plal:emt'llL and Vivian remained at the Timothy School for two more years. Hrg. Dec. 4. Following disagreements regarding evaluation ofVivian,~ Plaintiffs announced at the start of the 2007-2008 school year lhey wanled Vivian placed at Lynncwood Elementary, their local school, hut until that was "sorted out." Vi\'ian wmJid remain at home. Ex. 22, P-44. for the 2007-2008 :school year, by Plaintiffs' unilateral deci:sion, Vivian received hOllle schooling.

On October 1,2007, PlaintilEi n:quesled a special education due process hearing. Following a :six-day hearing, on Janulll)' 14,2008, the Hearing Officer concluded Vivian had been denied FAPE at the Timothy School since her November 2004 IEP because Vivian' s rEPs from that time forward lacked the present levels of educalional perfonnanec, measurable aImual goals, and progress monitoring neeessllI)' for FAPE. The Hearing Officer then determined a reasonable rectification period, the amount of time a school district reasonably would have required to rectifY a deprivation of f APE,~ would have been lrom November through the end of Decemher 2004. As for the 2007­ ~Aner requesting a placement change, Vivian's parents refused to allow the School Distril:l's psychologist to reevaluate Vivian, desiring instead an independent educational evaluation funded by the School District. On May 4, 2007, the School District filed a due process hearing requcst. The School District subsequently withdrew its request for a hearing whcn Vivian's parents agreed to thc School District psychologist's reevaluation, and the School District agreed to fund an evalmltion by a psychologist of the parcnts' choosing. The Hearing Ufficer terminated the hearing as moot, hut the parenls appealed on the grounds the Hearing Otftcer's refusal to enterjudgment in the parents' favor deprived thcm of their right to obtain attorneys' fees. On September 26, 2007, the Appeals Panel affinned the Hearing Officer's decision. To the extent Plaintiffs seck a dedaration they prevailed in that action, I agree with the administrative dedsions the Sehool Dislrict's action is moot and affirm the Appeals Panel's decision. 'See Me eue!. J C l'. Cent Reg '{ Sch Dis!., 81 F.3d 389, 397 Oct eif. 1996)(holding if a school district knows or should knO\\f a child has an inappropriate IEP, but the school district fails to correcf the situation, the "child is entitled to compensator)' education for 0 period equal to the period of lkprivation, but excluding the fime reasonably required for the school district to rectify the problem"). 4 2008 ::;\:hool year, [he Hearing Offieer determined Plaintiffs were not entitled to compensatory education because they had unilaterally removed Vivian from the Timothy School, and, while administrative decisions were pending, thc School District could not change Vivian's existing placement at the Timothy School. Excluding the rectification period and the 2007-2008 school year, the Hearing Officer awarded compensatory education lor the second half of the 2004-2005 school year and for school years 2005-2006 and 2006-2007, resulting in 2 Y2 years, or 450 days. 10

On appeal, the Pcrmsylvcmia Special Education Appeals Panel accepted the Hearing Ofli\:er's factual findings in awarding \:ompens<1lory education, differing only in the application of a limitations period. Tile Appeals Panel agreed the School District had faikd to provide FAPE, but limited recovery based on its interpretalion of the amcJlded IDEA's two-ycar limitations period. I I The Appeals Pand reasoned that for due process hearing requests filed after July l, 2005, the amended IDEA imposed a statute of limitations barring claims arising more than two years prior to the request. Because Plaintiffs filed their request for a due process hearing on October 1,2007, the Appeal::; Pand concluded any claims arising prior to October 1,2005, were barred. Prom this two­ yenr period the Appeals Panel thcn excluded a three-month redili\:alion period from Octobcr 1, !OThe Hearing Officer also inlerpreted the IDEA statutc oflimitations as barring Plaintiff,,' recovery for any FAPE dc,nial occurring prior to October I, 2003. Because the Hearing Officer found Vivian's FAPE denial did not [lctually begin until November 2004, however, the I learing Ollicer's interpretation of the slntute oflimitations did not affect his findings as 10 the merits. lIThe Appeals Panel agrccd with the Hearing Officer's finding thnt the period of denial began with inappropriate JEPs in November 2004. The Appeals Panel explained: "[L]imited to the relevanl two­ year period, we agrce with the hearing officer that the District failed to provide FAPE. This failure wns clear from a review of the record as a whole, including the cumulative effect ofthc lack of appropri(1te evaluations, the ineffective lEPs. and the lack of progress the Student achieved." App. Dce. 13. 5 2005, through the end of 2005. The Appeals Panel also affimled the Hearing Officer's denial of compensatory education for the 2007-2008 school year. The resulting compensatory education award was 1 Y2 years or 270 days, for the period beginning January 2005 through the end of the 2006-2007 school year.

On December 21, 2007, PlaintilTs liled their complainl in lhis Court seeking compensalory education for five sehool years, 2003 to 2008, and an order placing Vivian in full-time general education. On April 16,2008, Plaintiffs moved for preliminary injunction to compel the School District to place Vivian, who was being home schooled at the time, in a regular education classroom with appropriate supports and services. I scheduled a hearing on the motion although it was evident a preliminary inj unction, "an extraordinary remedy, ,,12 was inappropriale because granting Plaintiffs' motion would disturb the status qllo. 13 In a conference in chamhers before the start of the hearing, the parties agreed a placement decision should he made after a careful review of the record. With counsel's understanding a denial oflhe molion would maintain the stalus quo unlil I could make a merits determination, Tstated I would deny the motion for preliminary injunction. The preliminary injunction hearing was therefore terminated before it began, but the record was kept open upon Plaintiffs' request to take the testimony of Brian Berry, Ph.D., Plaintiffs' expert witness, for the purposes of supplementing the record. Plaintiffs additionally expressed their concern a placement decision be made in time for Vivian's enrollment in the 2008-2009 school year. In response to 12See NulraSweef Co. v. Vii-Mar Enter. Inc., 176 r.3d 151, 153 (3d Cir. 1999)(quoting Maldonado v. Iloustoun, 157 r.3d 179, 184 (3d Cir. 1998). "See ACS Enterprises, Inc. v. Comcost Cablevision, 857 F. Supp. 1105, 1109 (E.D. Pa. 1994) ("Preliminary injunctive relief is an exlraordinary remedy that preserves the status quo until a trial on rhe merits may be held and should be gmnted only in limited circumstances.") (citing Frank's GMC Truck Or., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)). 6 Plaintiffs' concerns, I stated I would expedite i;l.n order deciding placement prior to the start of the school year, and the order would be based upon a consideration of the record, nny supplementation thereto, and i;l.rgument.

Subsequently, I allowed supplementation of the record upon Plaintiffs' request with the reports and testimonies of Dr. Derry and Alit:ii;l. Broderick, Ph.D.,14 <lnd Lhc curriculum-based a:sscssmenls, IEPs, and Notices of Recommended Educational Placement (NOREPs) upon the School District's request. 15 After pi;l.rtie:s :submiLLed cross motions for swnmatyjudgment, on August 27 and 28.2008, I heard the testimony of Lillian Finley, Ed.D., the School District's placement expert, and argument from counsel. Plaintiff." did not submit any expert testimony on pli;l.cement at that time.

On August 29. 2008. bi;l.sed on a review of the administrative record, the additional evidence submitted, counsel's briefs, and argument, I ordered Vivian to be placed as proposed in her August 26,2008 IEP. In that order, J permitted Plaintiffs to submit a motion tor reconsideration or my placement order <llong with the deposition testimony of their placement expert, Beverly Evans, Ph.D. In The order also stated a memorandum opinion would foltow. This is that memorandum OpInIon. 14PlaintilTs subsequently withdrew from the record the repmi and testimony of Dr. Broderiek. 15Although the IDEA provides a court "shall hear additional evidence at the request ofa party," 20 U.S.c. § 14 I5(i)(2)(C)(ii), the decision whether to admit additional evidence is within the discretion of Lhe coorl. S",>Un N. v. Wilson Sch. Disl" 70 FJd 751, 760 (3d Cir, 1995), "[A] coort most exercise particularized discretion in its rulings so that it will consider evidence relevant, non­ cumulative and useful in determining whether Congress' goal has been reached ..." Id. Testimony cnnnot be disallowed simply because it was, or could have been, introduced at the adminislralive hearing. See id at 759 (declining to construe lhe IDEA additional evidence rule as disallowing tesLimony' from all who did, or could have, testified before the administrative hearing). lbOn October 17. 200S, Plaintiffs filed their motion for reconsideration accompanied by a transcript of Dr. Evans's testimony. 7 FINDINGS OF FACT

Vivian was denied FAPE from November 3, 2004 through the end of the 2006-2007 school year because of inappropriate IEPs. The problem.<; wilh Vivian's IEPs - repetitiveness, failures to address or explain the evident lack of progress, and failures to .suggest a change in instruction in re~ponse to the lack of progress - begin with the November 2004 IEP and continue through the October 2006 IEP. For example, in functional academics, the November 2004 JEP reports Vivian was able to sequence and identify letters of the nlphabet when asked "give me," "point la," or "what leLler" llsing upper-case It:LLers l:W% of the time. Ex. 22, P-14, 2. In October 2005, Vivian's achievement level in this area inexplicahly drops to 60%, where it remained in Jnnunry 2006 and August 2006, until it rOse to 71 % in Ol:lOber 2006. 17 !1Purther examples of inadequate reporting of Vivian's progress in functional ncademics include the following: the JEPs in Novcmber 2004, October 2005, Janumy 2006, and August 2006 nll suggest Vivinn should curllinue to work on identifying 10wer-cn.~e alphabet Jelters with an RO% success rale. The October 2006 IEP omits this suggestion altogether without mention of nny progress achievcd. Vivian's ability to match word to word 60% of the lime is rcported verhatim in Novcmber 2004, OClObcr 2005, J.lnunry 2006, and August 2006, along with the suggestion she should conti nne to work on this skill to an expectcd level of80%. Whether or not Vivian progressed in this Dren is not addressed in the Oc.tuber 2006 IEP. The November 2004 through August 2006 IEPs report Vivian should use her upper-lOase letter skills to spclliamiliar words given a model and verbnl prompting, with an expecled level ofnchievement of 1::0%. The October 2006 IEP rcports some small progress, when nuting Vivinn was able to LIse letter nwnipulatives to spell fmniliar words given a model nnd verbal prompting 85% of the timc. Each rEP from November 2004 through August 2006 cites Vivian's nbilities to sequence and identity numbers one through ten 80% of (he time and to match numeral to quantity (1-5) using nwnipnlatives 80% of the time. These IEPs also suggest Vivian should continue the objeetive l)f matching numeral to quantity by working on six to 20 with an 80% expected level ofaehievement, noting she is currently at 70%. The October 200(i IEP fails tu address any progress in the area of sequencing and identifying numbers, but, without explaining the prior stagnation, suddenly reports Vivinn is able to match numeral to quantity (6-20), given verbal prompts, 85% of the time. The lEPs, with the omission of Octoher 2005, repeal, verbatim, Vivian should use her counting ski lIs to create sets of objects (1-10), given visual cucs and verhal prompts with an 80% expectcd level of achievement. The November 2004 lEP reports Vivian is very interesled in writing nnd is working on writing the letters oflhe alphabet given visual highlighting and a mode,1 with an expected levclofaehievement 01'80%. Vivian's expected level ofachievement 8

In the area of personal and sot:ial skills, all IEPs from November 2004 through August 2006 repeat, with only slighL. immaterial changes in \\'ording, the fnllowing report:

Vivian is able to take turns with a peer during preferred structured group activities

8m'o of opportunities with verbal prompting. Vivian shaull.! work on using her tum

taking skills during group games with more independence. Vivian continucs to have

difficulty holding eye eon tad white altempting to focus on a task. It may he better

to separate these skills into two objectivcs having Vivian hold focus on a speaker

when being directly spoken to and maintaining focus on a task during group or I: 1

sessions, both with an 80% expected level of achievement. Vivian has made some

improvements with hcr attention to activities without self-talking and/or singing, but

continues to need some prompting to do so and has reached a 60% level of

achievement. She should continuc to work on this task. Ex. 22, P-14, 3; P-15, 4; P-16, 3; P-17, 4. The Octoher 2006 fEP, without explaining why, reports only slight improvement or no attainment of the objectives of the foregoing goals. IS

With regard to Vivian's task relakd sk.ills, all IEPs from November 2004 through August 2006 again provide the following nearly identical report:

Vivian has heen doing very well with her indepclldl~nt work syslem. She has been

able to complete her activities independently without being distractcd and/or singing

70% of opportunities. Vivian should continue to increflse consistcucy with this for this task rose to 90% in October 2005 lEP, whcrc it notes her level was then 80%. Identical language remains in subsequent IEPs until the October 2006 IEP, whcre it rcports Vivian was able to perform the t<:lsk 85% of the lime. 18S pec ifically, the October 2006 lEP reports Vivian was "bIe to takc turns with a peer during preferred structured group activities 85% of the lime with verbal prompting, Vivian was able Lo allend to task (5-6 seconds) during group or I: 1 sessions 73% of the time, and Vivian madc some improvcments wilh her attention to activities without self-talking and/or singing, hut continned to need somc prompting lo du so <:Iud h<:ld reached 63% level of achievement. The Octoher 2006 lEP also repeats Vivian should \\lork on using her turn taking skiHs Juring group games with more independence and she should continue to work on the task of improving her attention to activities without self-lalking and/or singing. 9

o~jeetive. Vivian has been doing very well with 4 work tasks during independent

work in the last few weeks and has rea~hed 70% in this objective for the quarter. She

should continue working towards 100% on this ohjective.... When focused, Vivian

does well following a two-step directive within two verbal prompts. She has rea~hcd

a 60% level of achievement and should continue working towards 80%. Ex. 22, 1'-14, 3; P-15, 4; P-16, 3-4; P-17, 4-5. There is no accompanying explanation to elueidate why the same level ofaehievement is reported over the course of almost two years. From the above perfoffitanee levels. the Octobcr 2006 IFP reports a 1% improvement in the ability to complete aetivities independently. and a 10% increase in performing four work tasks during independent work, but again provides no explanation for the slight change aiter a lengthy period of stagnation.

Vivian's progress with self-help skills is also repeated almost verbatim in each TEP from November 2004 through August 2006, with some modest progress noted in the October 2006 JEP. though again without accounting for Ihe lack of meaningful progress hetween November 2004 and October 2006. The fonowing report of Vivian's self-help skills reeurs, with negligihle differences, from November 2004 through August 2006:

Vivian does a very nice job hanging up her eoat and/or book bag and removing her

belongings with vcrbal prompts reaehing 80% of her expected level. She is enrrent]y

at a 70% sueeess rate. She should continue to work on lhis objective without verbal

prompting. Vivian shoulu also work towards pal:king up her helongings at the end

of the uay given verbal prompting and visual eues at an 80% expected level of

a~hicvement. Vivian does not consistently request the bathroom although she does

not have aeeidcnts. She currently goes to the bathroom when scheduleu, i.e., in the

morning upon arrival, at grooming time (which is at 12:30 p.m.), and is verbally

prompted lo request the hathroom using words or a pes card reaching 50%. She

shoulu ~On(jnlle to work on this objective at a 70% expected level of achievement.

Vivian has mastered the hand washing routine. In faef, she has demonstrated the

ability to go into the bathroom and complete the entire bathroom rontine

independently mosl of the time. She should eOlltinne to work towards cOlOpleting the

bathroom rolltine (go into stall. dose door, use bathroom, wipe, flush, wash hanus)

independently with emphasis on remembering to dO::ic the stall door and wipe with

an 80% expected level of achievement. Vivian also does well with her grooming

routine and should work towards compleling the grooming routine independently

foi1owing a pL~ture sehednle. 10 Ex. 22, P- [7,4. The greater part of the October 2006 IEP reveals Vivian was not reaching her selfhelp skills goals. but the IEP fails to acknowledge Ihis and provides no recommendation for a remedial course of action.l~

Regarding Vivian's safety awareness, all IEPs from November 2004 through August 2006 report Vivian has "maslered" responding to "stop" and "wait" and remaining wilh the group in the community. Each IEP also recommends Vivian should expand her community skills to include making requests in the community (i.e., food, items in a store, elc.) and waiting in the community (i.c. wailing in line, waiting for someone to find something in a store) with an 80% expected level of achievement. The October 2006 IEP states the rEP team did nut have "an opportunity to chart on these skills." Ex. 22, P-llJ. 5.

Pinally, the reporting and setting or rEP goals are also nearly identical from one IEP to the next beginning with the November 2004 IEP. The November 2004 IEP omits current baseline levels, but the IEP's goals and levels of expected achievement are repeated in substantial part in the October 2005 IEP. The October 2005 IEP goals are repealed almost entirely in every subsequent lEP until Oelober 2006. In October 2006, although a few areas rel1ect changes in expected levels of achievcmcnt, mUl:h ofthc repetition remnins in many areas of the IEP. For example. the November, l~In adJition, in packing up her belongings <It the end of the day given one verbal prompt, as or August 2006. Vivian's goal had been to reach an 80% level of achievement, but in October 2006, sbe was reported at only a 71 % sucees!'i rate. In independently compleling the entire bathroom routine with only supervision in closing the door nnd wiping. V ivian had reached only a 57% !'iueeess rate in October 2006, although her goal in the previous IEP hnd been to reaeh an 80% achievement level. As to grooming independently, Vivian was only at a 28% success rate in October 2006. Prior lEPs are lacking in a measurable bnseline levcl of achievement in this mea and fail to state an expected goal. The October 2006 IEP also fails to reporl a measurable level of progress, if any. in the area ofrequestin£ the bathroom from the previous IEP. reporting Vivian was reaching a 50~'D level. 11 20041EP lists as l1lusicallistening goals thc objectives offollowing mu~il.:;:11 dircctions independently nnd playing rhythm in:-;lruments independently during groliP activities. Without noting what level ofsul:l:e~~ in thcse tasks Vivian has attained Lo date. the IEP sets an expeeted al:hievcmcnt level of 100%. The goals arc repeated in October 2005, but thallEP notes for the first time Vivian'~ currcnt ability level is 70% ami 80% in the tasks, respectively. The goals do not appear in January 2006, but reappear in the August 2006 IEP, whieh again reports Vivian is at 70% and 80% levels in the two tasks, respectively, and the IEP states her expected achievemcnt level is 100(110 in the ta~ks. The October 2006lEP fails to address these ta::;k~ and it is impossible to know whallcvcl of proficiency Vivian has attained.

As to Vivian's eurrent educational placemcnt, Vivian's most recent IEP, datcd August 26, 2008. wa~ carefully prepared, v,"ith eomprehensive reporting of Vivian 's progress and abilities. I also find the IEP'.~ recommendations to be supported by a thorough assessment and balancing of Vivian's aptitude and needs. The IEP recommends placing Vivian the regular educaLion cllvirolUllent at Lynnewood Elementary School, Vivian's neighborhood school in Ihc Haverford School District, for homeroom, lunch, recess, special suhjects, science, and social stodies for a total ofthree hours in the 6.8-hour da/o. For language arts and math instruction, the IEP recommends placement in the resource leaming support classroom, Lynnewood Elementary School's special edueation classroom. The IEP also proposes Vivian receive occupational thcrapy, social skills service.s, and speech nnd l;,mguagc thempy. The School DisLrict delcrmined this ......as the mo.sl appropriate placement for Vivian after fully considering the possibility of accommodating Vivian full time in the general education environment. The School District noted the services available to Vivian in the general 'lliThe 6,8-hour day includes lunch, rccess, and stndy periods. 12 education setting induded supplemental supports and ~t'n'jct's such as itint'nmt learning support and paraproJessional support for both the general euucatjon setting anu transitional periods. instructional modifications, assignment of a special education teaL:ht~r who would work with Vivian's general education teachers to implement her IEP, pre-teaching of conctpLs and vocabulary, and books on tape for Vivian to listen to as she followed lhe text in the classroom. School personnel would also receive support in instructing Vivian with team meetings, paraprofessional training, and consultations with thcrnpists, hehavior management consultants, and other specialists for Vivian.

The recommendations are supported by the following information in the I.EP, Vivian's academic skills are at a beginning kindergarten level at best. In language a1ts skill.s, Vivian is «ble to identify upper and lowcr case letters, recite the alphabet, print her first and last name independently, printall upper and lowercase letters in sequence and according to dictation, and print one simple sentence when dicfated. In math skills. Vivian c<ln identify and count numbers one to 40, demonstrate numeral comprehension to 20, demonstrate ordinal positions first through Jifth, mite numerals in sequence to 30, write preceding and following numerals to 13, '\!Tite numl:rals as dictated to 40, and name coins and a dollar hilL Vivian's cognitive abilities arc in the borderline to low average range. Vivian continues to have teaming differences due to language, social, and adaptive deficits. Vivian's ability cffcctively to l:ornprehend and process verbal material in the classroom is significantly impacted by serioLis receptive/expressive language and auditory processing defi.cits, This negatively affects Vivian's ability to comprehend what ~he hcars (e.g., reading tcxt, understanding complex directives, understanding instruclion), produce an appropriate verbal response, and form concepts (e.g., spalial, femporal, quantity, quality/attributcs). Vivian has a history of attc:ntion and sensory defIcits, in addition to rmhlem.<; of distractibility, impulsivity, 13 maladaptive behaviors, ,md lack ofjudgment with ,,,"afety issues.

The IEP further reports Vivian has the following acadcmic, dcvelopmcntal. [md functional m:eds. Vivian needs Lo dL:velop functional academics for reading (decoding skills, sight vocabulary, and eomprehension skills) and math skills at a developmentally appropriate level. Vivi,m needs to deve]np receptive and expressive language skills, pro-socia! behaviors with peers, age-appropriate behaviors when interacting with adults flnd peers, and coping and self-regulation skills when frustrated. Vivian also needs to continue to increase attention lo lask and improve fine motor abilities to facilitate classroom work.

Nancy Bloomfield, Ph.D., a psychologist selected by Plaintiffs, prepared a psychological evaluation of Vivian on September 7, 2007, Dr. Bloomfield concluded Vivian's language and ac.ademic skills lag far behind her nondisab[ed peers. Vivian's reading and math skills werc assessed. and Dr. Bloomfield determined Vivian was able to maleh leLlers and words, but ...vas unable to read any of the words prcscntcd on the test. Vivian's scores on both the reading and malh tests werc below Ihl~ limits ofthe test. Dr. Rloomfie1d recommended Vivian be provided basic acadcmic instruction "in fl higllly structured, individualjzed setting where inlensive academic rcmcdiation C1'ln he delivered." Ex. 22, P-l, 14. Dr. Bloomfield .':ldditionally opined, "[p]art of her day can he in a special education setting and part of her day should he in the regular class," Ex. 22, P-l, 14. Olher recommendations for Vivian's edut:utional progmm included: activities designed to teach and rchcarse social strategies that foster initiation and interaction with peers; aecess to the gcncral education curriculum where possible with modification ..m d differentiated instruction; intensive speech and language therapy wilh consultation across her school environment; occupational therapy services; and collaborMion with Vivian's behavior specialist. 14

The School District's spccial cducation expert, Dr. Finley, was credihle and her testimony well-infurmed. Dr. finley testified the maximum cuntiguous amount oftimc Vivian had becn able to stay on a task was 90 set:unds, allhuugh the maximwn contiguous time on task for anondisabJcd child of Vivian's same age was t4 minutes. Dr. Finley further testified the regular education classroom had 22 students, and the leaming support c1assroom~' for math and language arts had five and seven students, rcspectively.21 The children in the learning support classroom nrc taught at thcir individual instructional levels with adaptations to the general educatiun program. Children in the classroom arc also taught in small group formats and at work stations. Or. Finley opined the language arts and math resource leaming support classrooms werc the. least restrictive placemcnts for Vivian for those subject areas.

The rcport and tcstimony ofPlainliJ1:S' expert, Dr. Evans, was not credihle. She concluded Vivian could make meaningful educational progress in a general edueatiun classroom in all subject areas, but Dr. Evans faikd to observe the general education language nrts elnssroolIl. Dr. Evans spent less than ten minutcs observing Vivian in the resource room. Dr. Evans provided no inCormationur analysis in her report regarding the language arts gencral education classroom, yet she concluded the languagc arts gcneral edm.:atiun diissroom was appropriate for Vivian. As to math, although Dr. Evans did ohserve the general education math instruction ;;J.nd described the classroom in her report, she did not demunstratc how the instruction would he suitable for Vivian. In addition, Dr. Evans provided no comparative analysis ofthc math general education classroom and the math ?\Plaintiffs state in their reply hrief there are now nille studcnts in the resource learning support classrooms for hoth math and language arts, an incrcasc since the beginning ofthe school year. This docs not change my analysis because a classroom of nine students is still significantly smaller than a classroom of 22 studenLs. 15 skills t~ught in the learning support classroom. Nevertheless, Dr. Evans opined general mllth educ-ation would be appropriate for Vivian. Finally, Dr. Evans failed to opine on, or provide any an~lysis of, how the general education instruction for either language arts or math would lit Vivi~n's needs and how Vivian would pcrform under such instruction. J lind Dr. Ev~ns's report and testimony to be ovcrreaching, without basis. and to demonstrate minimal understanding of Vivian 's educational requirements.

The Febmary 1,2007 evaluation by Suzann Steadman, Psy.D .• must also be discounted. Her conclusion Vivian would be well-supported in Lynnewood Elementary School's general education setting full-time was based solely on her observation of Vivian in the Timolhy School and at home. Dr. Steadman aeknowledged she had ncver observed any of the Haverford Township S\.:hool District's classrooms nor had she observed any other classroom at the Timothy Sehoolthal could be more appropriate for Vivian. Dr. Steadman had no knowledge ofthe general education classrooms in Vivian's school district: still, Dr. Steadman staled she "sllspcetrcd ... rhey are prepared to edu\.:ale \:hildrcn with unique educational needs," and opincd full-time inclusion in the regular education selling was the most appropriate option for Vivian. Ex. 22, P-ll, 8.

Finally, I cnnnot rely on Dr. Derry's testimony and report. Dr. Berry concluded full-lime general education at Lynnewood Elementary School was most appropriate lor Vivian. His report Wi:1S spe\.:ilically based on a comparison of thc general education language arts and homeroom clnssrooms at Lynnewood Elementary School with the intensive learning support dassroom at tbe Manoa Elementary School, the placement suggested at the time. The Manoa School's special education classroom. hO\\lever, is not currently beiug proposed for Vivian. Because Dr. Beny's opinion did not include a consideration of the Lynnewood School's learning support classroom. T 16 find his evaluation is outweighed by the other evidence in the record supporting the JEP's recommendation Vivian be placed pan-time in general education and parHimc in learning ~upport at Lynnewood Elementary School. STANDARD OF REVIEW

The IDEA imposes an affim1ative duty on states whieh accept certain federal funds to provide a rAPE [or all disabled l.:hildren. l.awrence Twp. Bd. ofEduG. v. New Jersey, 417 F..ld 16R, 370 (3d Cir. 2005) (citing 20 U.S.C. § 1412(a)(I». Section 504 is a prohibition against disability discrimination in Ccderally funded programs. 29 U.S.C. § 794(0.). "[T]hc regulations implementing § 504 adopt the IDEA language, requiring that schools which receive or bencfit from federal finam:ial assistance 'sh<lll provide a free appropriate publie education to eal'h qualified handicapped person who is in thc redpient'sjurisdietion. '" WB. v. Afatula, 67 F.3d 484, 492-93 (3d Cir. 1995) (citing 34 C.F.R. § 104.33(a)). The ADA extends the nondiscrimination rule of § 504 to serviccs provided by any public entity, reg;;trdlcss ofwhethcr that entity receives federal funds. Jeremy H ex ref. Hunter v. Mt. l.ebanon ."J'ch Dist., 95 FJd 272, 279 (3d Cir. 1996) (citing 42 U.S.c. § 12132).

Parties dissatisfied with the education provided under the IDEA arc entitled to;;tn impartial due ph)eeSS hearing. Carlisle Area Sell. v. Scott P. ex rei. Bess P., 62 F.3d 520, 527 (3d Cir. 1995) (quo ling 20 U.S.c. § H 15(b)). Under Pennsylvania's two-tier :system, partics arc first heard allhe loc,J! educational ;;tgency level by a Hearing Officer, followcd by a review of that hearing;;tl thc state educational agcncy level by the Appeal.s Panel. Jd. (citing 20 U.S.c. 1415(c)). Parties aggrieved by a tinal order of the Appeals Panel may appeal to federal court. Id.

On appeal from an Appeals PUllel dt:l.:ision, the IDEA provides lhc district court shall reeeive the records ofthe administr;;ttivc proceedings, shaH hear additional evidence at the rcquest ofa party, 17 anti, basing its decision 011 the preponderance of the evidence, shall grant such relief as the court determines is appropriate. § 1415(i)(2)(C). Under lhis standard, the court is required to give "due weight" to the administrative prol:eedings. Ed. olEduc. ~'. Rowley, 458 U.S. 176,205-06 (1982). The "due weight" requircment has been described as "modified de novo" review, and is the appropriate standard of review of ndministrative hearlng decisions in IDEA cases. S.H. v. StClle­ OpcroJed Sch. Disr, 336 FJd 260, 270 (1d Cir. 2003). A federal district court reviewing the administrative fact finder's conclusions is required to defer to the f:::lctU:::ll findings unless it can point to contrary non-testimonial cxtrinsil.: evidence in the record. [d. '{"hc court mw,l explain why it does not accept "findings of fact to avoid the impression that it is substituting its own notions of sound educational policy for lhose of the agency it reviews'" Jd. Where the conclusions of the Appents Panel and the Henring Officer di!1er, the district court should givt: "due weight" to the Appeals Panel decision unless the Panel's del:ision to reverse was unsupported by non-testimonial, extrinsic evideuec in thl: record. Scott P., 62 F.3d nt 529. DISCUSSION

Regarding thc denial of FAPE and compensatory education, Plaintiffs appent from the Appeals Panel's decision awarding 1 y~ years, contending they me entitled lo l:ompensatory education for live years of FA PE deninl. Plaintiffs argue the Scht)ol District denied Vivian FAPE during her entire time allhe Timothy School heeause of inappropriate IEPs, as well as during the 2007-2008 school year because the School District refused to place Vivian in a regular education setting during that time. Th~ School District argues Vivian's IEPs were appropriate because they were reasonably cakulated to allow Vivian to make mcaningi'ul educational progress, as required by the IDEA, and Plaintiffs hm'e no righl Lo l:ompensatory education for 2007-2008. 18

To meet the requirements of the IDEA. § 504, and the ADA, a school district must provide a free and appropriate public education. A FAPE "consists of educational instmction speci fically designed to meet tbe unique needs of the handicapped child, supported by such services as are necessary to permiL the child to 'bcneflt' from the instructiOtL" ld at 491. An Individual Education Plan (IF.P) is the primary vehicle for implementing a FAPE. S.H, 336 F.3d ot 264. An rEP "consists ora detailed wriuen statement arrived at by a multi-disciplinary [IEP] team swnmarizing the child's abilities, outlining the goals for the child's education and specifying thc services the child will receive." Id The IEP tcam is required to meet at least annually to determine whether [he child is reaching her IEP goals and to revise the YEP to address any laek of progress or necessary changes. Id. at 265 (citing 20 U.S.c. § 1412(a)(S)(A)).

A child is denied FAPE when her IEP fails to confer some, or more than a de minimis, cducational benefit. M.e., 8 I F.3d at 396. Ifa school district knows or should know a child has all inappropriate IEP, or is not recei ving morc than a de minimis educational benefit, but fails to correcl the situation, a disabled ehi1d is entitled to compensatory education fur a periud equal to thc period of deprivation, excluding the time reasonably required for the gchool district to rcctify the problem. Id. at 397.

The Hearing Officer found beginning in November 2004, Vivian's JEPs were "repetitive without indication ofeiLher progrcss or a chnnge in instruetiun" and "lacked tbe systematic present levels of educational pcrformance. measurable annual goals, and appropriate progress monitoring ... necessary to constitute FAPF." ITrg. Dec. 14. These lindings arc supported by the record, Vivian's June 2003 and February 2004 lEPs, though not tlawless, carefully address whether prcviously established goals were reached, by documenting current pt'rll1rmancc levels retlecting 19 advancement from prior IEPs, and establish new goals based upon this assessmenL Subsequcnt rEPs, however, omit baseline skill levels, inexplicably report identical achievement levels from one IEP to the next while declaring "great" progrcss in "all" oreas ofthe IEP, fail to respond Lo Vivian's apparcnt stagnation in development, do noL providc a measure for progress reported, and goals sct in each IEP do not correspond to Vivian's aetual performance in attaining goals establishcd in prior IEPs.

The inadequ<1cics bcgin with the November 2004 IEP and bccomc more evident when the LEPs are considered consecutively. The Novcmber 2004, October 2005, January 2006, and August 2006 IEPs all report nearly verbatim that Vivian made great progress in all areas of her IEP, but each IEP then unaccountably lists substantially the same goals as listcd in the previous TEP. The October 20061EP is somewhat less positive. announcing Vivian made progress in many areas of her IEP. The progress reported in each IEP from November 2004 through AugusL 2006, however, is nearly identical without explnfiation. Though the October 2006 IEP language changes slightly, it still omits explanations for the laek of meaningful progress.

In light of the repetitiveness and lack of meaningful progress reporting in her TEPs, I must conclude Vivian was denied FAPE for Lhal period, The IEPs failed to report accurately Vivian's abilities and outline the goals of her education, resulting in erroneous specifications for the services recommended for Vivian. The wholesale usc ofnearly identieaI parographs from one IEP to the next demonstrates Vivian's actual progress was not bcing tracked properly. The slight changes in progress and goal tracking that did appear were isolated, with little referem:e to prior IEPs, and were unresponsive Lo the troubling lack of meaningful change in Vivian's IEPs. The Hearing Officer's factual findings are well supported by the record, and there is no contrary, non-testimonial extrinsic 20 evidence that prohibits my deference to the administrative findings. I therefore agree wiLh Lhe Hearing Officer's conclusion the mps from November 2004 through Oetober 2006 were inappropriate amI resulted in a denial ofFAPE from November 3,2004, lhrough the end ofthe 2006­ 2007 school year, the entire period cowred by the inappropriate lEPs.

Having ucLennined Vivian was denied FAPE., I mllst ncxt address Lo what cxtent the IDEA's statute oflimitations circumscribes Plaintiffs' rewvery. My review of this legal issue is plenary. See SCOff P., 62 F.3d at 528. In December 2004, Congress amended the IDEA to add a two-year statute oflimitations for iniLialing state-level due process hearings. Lawrence l'.... p., 417 F.3d at 370. The amendment went into effect on July 1,2005, and required a parent to request a due process hearing wiLhin lwo years ofthe date tbe parent knew or should have known about the alleged action forming the basis of the eomp(aint. 20 V.S.C. § 14 t 5(f)(3)(C). Previollsly, there was no limitations period for initiating state-level due process proceedings seeking compensator)' education in the Third Circuit. Tereallce D. v. Sch. Disf. olPhi/a., 570 F. Supp. 2d 739. 743-45 (E.D. Pa. 2008) (citing Ridgewood v. A'. F.. 172 F.3d 238, 250 (3d Cir. 1999)). In this case, Plaintiffs filed their due process hearing n::quesL on October 1,2007, claiming denial of fAPE trom 2003 forward.

It is undisputed Plaintiffs' claims lhat accrued after the amendment's effective uak an: subject to the amendment's statute of limitations, whieh begins to run when a parent knew or should have known he had a claim for denial ofFAPE. 1 find each inappropriate IEP consLituled a separate occasion on which Plaintiffs knew or should have known Vivian was denied FAPE. Therefore, the amendment's statute of limitations applies to each of Plaintiffs' claims arising from inappropriate IF.PS issued after the amenument's effective date.

Plaintiffs requested a due process hearing on October 1,2007. Within the limitations period, 21 the October 14,2005 IEP was thc first occasion On \','hich PlainlilTs kncw or should have known Vivian was denicd FAPE. Plaintiffs mav recover compensatory educntion fOT the denial offAPE from October J 4, 2005, through the end ofth~ 2006-2007 school year. Plaintiffs may not, howev~T, recovcr compensatory education for th~ period bdwccn the amendment's effectiv~ date, July I, 2005, and th~ b~ginning ofthc limitations pcriod.

The parties dispute wh~th~r Plaintiffs can recover for denial ofFAPE occurring prior to the amcmJnH:nL's e1Tectivc date. Plaintiffs argue th~ IDEA amendment has no application to th~s~ claims. The School District argues bccause PI~intiffs' due process hearing r~4uest was filed after the amenJcd IDEA's effective date, Plaintiffs' right to compensatory cdueation for any denial of FAPi::: occurring befoTe October 1, 2005, is precluded by the statute of limitations. The patties essentially di."agree as to which law Jetcrmines the applicability ofthe statute uflimitations: the law in place on the date ofthc event::. giving rise to the claims or the law in place on the datc thc state­ level due process heming request was filed. 1agree with Plaintiffs. The law in place at the lime ur the events underlying their claims governs, and the IDEA's statute uflimitations does not preclude claims arising from IFPs issued prior to July 1,2005, the amendment's effective date.

The question is ~ssenlially one of retroactivity. A determinatiun lhat the Inw in place atthe lime of the undcrlying events govems is in dIed a determination the amendment applie.s prospeclively. The eonverse determination, thallhe law in place on the date the due process hearing request was filcd governs, results in a retroactive application because prior accruing claim.s wuuld be precluded. I3ecause there is no authority governing this issue, I will fLlllow thc Supreme Court's guidance for detennining a statute's retroadivity.

The Supreme Court has provided a two~step approach. Thc first step "is (0 ascertain whether 22 Congress has uircctcd with the requisite clarity that the law he applied retrospectively." INS v. St. Cyr, 533 U.S. 289. 31 (, (2001) (citing Marlin v. Hadix, 527 U.S. 343, 352 (1999). In order to lind an express Congressional uireclive, a u~manding standard must be satisfied. INS'. 513 U.S. at 316. "fClascs where this Court has found truly 'retroactive' effect adequately authorized by statute have involved statutory language that was so clear that it could sustain only one interpretation." ld. at 316-17 (quoting Lindh v. Murphy, 521 U.S. 320. 328 n.4 (l997)). "A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier uate." Londgrq/: 511 U.S. at 257.

If there is no express Cungressional command, the second step 1S to look lor an "impermissible retroactive effe<.:t," hi. (citing Landgrafv. USl Film Prod., 511 U.S. 244, 265 (1994)), "i.e., whether [a finding of retroactivity I would impair rights a pm1y possessed when he acted, inerease a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf; 511 U.S. at 280. The inquiry into the second step "demands a <.:ommonsense, functional judgment about 'whether the new pnwision attaches new legal consequences to events completed before its ena<.:lmenL ", Marlin, 527 U.S. at 357-58 (quoting Landgraf, 511 U.S. a(270). If there is no clear Congressional intent of retroactivity, and the statute has an impermissible retroactive effect, it is presumed the statute does not govern retroactively.ll Landgraf: 511 U.S. at 280.

In this <.:ase, the IDEA amendment contains no c1enr Congressionnl intent of retwactivity. There is 110 language in the amendment "so clear that it could sustnin only one interpretation." INS, 22The date of filing of litigation has no relevance in a retroaeti vity analysis. The LandwafCourt considered the liming of lbt~ underlying events giving rise tl) a claim, not the date a legal action was initiateu in deciding a statute's retroactivity. 23 533lJ.S. al 316-17. As to the ::;econd step of the retroactivity analysis. precluding PlainliiTs' claims for denial::; ofF APE occurring prior to the amendmenl's dTective dale would have the impermissible effect of impairing rights Plaintiffs possessed prior to the amendment. Thc new provision would attach new legal consequences to events completed hefore the amendment's effective date. Prom November 3. 2004, through the remainder of the 2004-2005 school ycar, Vivian's education was based on the inappropriate November 2004 IEP. re::;ulting in a denial offAPE for that period oftime. During that period ofPAPE denial, the amended IDEA was not yet in effect. If the amendment's statute oflirnitations wcre to apply retroactively, Plaintiffs would lo::;e their right to recover for their FAPE denial. Under the.<;e circumstances, it must be presumed the IDEA amendmcnt does not govern claims accruing prior to the amendment's effectivc datc. 2J See Landgraf; 511 U.S. at 265 21See also Lawrence Twp. Ed. 0/ Educ. v. NJ, 417 F.3d 368, 370 (3d Cir. 2005). In Lawrence Township, the only Third Circuit opinion touching on the issue of the rDBA amendment's applicntion to prior claims. the Court noted, "amendments to the IDEA have prospective application ani)'." Lawrence Twp., 417 P.3d 368, 370 (citing Tucker v. Cullo>my Cty. Bd. o.lEduc., 136 F.3d 495,501 (6th Cir. 1998); Heather S. v. Wisconsin, 125 F.3d 1045, 1062 (7th Clr. 1997)); see alw IYarnll G. v. Cumberland Cty. Sch. Dis!., 190 F.3d 80 (ld Cir. 1999) (declining to apply retroacti vely the TDBA's 1997 amendment regarding tuition reimbursement because the events in the case occurred prior to the amendment's eilective dale).

The Lawrence Township Court went on to state, '"rtlherefore, th~ provisions in effect at the time the complaint was filed in 2003 will be applied here." Lawrence Twp., 417 F.3d at 370. Tn that case, however, the due process rcquest and the relevant events both oceun'ed prior to the amendment's c1Teetivc tIatc. The Court was not faced with a sitnation where, as here, the due process request was filed after the amendment's effective date, but some of the events giving rise to Plaintiffs' claim oeellfred bt'fore the effective date. The Court therefore was not called upon to determine which point in time \\lUS relevant in order to conclude the amendment had prospective application only.

Looking to the datc of the filing o1'liligation, or, as herc, the filing of a due process hearing request, to dctcrmine whar law governs would have an impennissihle retroactive effect on claims accruing prior to the new law's effective date. In Tereance D. v. School District o/Phi/adelphi'!. 570 P. Supp. 2d 739 (E.D. Pa. 2008), the courl wa~ also Laced with the question ofwhcthcr the amended IDEA's two-year statute ofIimitations pcriod applied to claims aeeming prior to July 1,1005, hut \\lhieh plaintiffs pursued after the amendment's effective date. The question was also which version of the JDEA applied - the version in effect at the time of the due process request filing, or the 24 (noting thc "principle that the legal effect ofconducL should ordinarily be assessed under the law that existed whcn the l.:onducttook place has timeless and universal appeal") (quoting Kaiser Aluminum & Chem. Corp. v. Bonjofl1o, 494 U.S. &27,855 (l990»). It is thus the version ofthc IDEA at the time oUhc events giving rise to Plaintiff's' claims that governs, and Plaintiffs' claims accruing prior to July 1, 2005 are not precluded the amended IDEA's statute of limtitations.

Concluding the IDEA's statule oflimitations does not apply to Plaintiffs' claims priorto July 1, 2005, thc nl.::xL question is whether allY staLute of limitations applics. Prior to the IDEA amendment made effective in 2005, the IDEA did not providc a limitations period for bringing a version in effect at the time of the complaincd-orevents. The court concluded lhe IDEA's new limitations period did not apply to claims accruing prior to the effcctive date, rcasoning that applying the IDEA amendment to claims accruing prior to the amendment's effective date "would atlach new legal consequences to that conduct. resulting in nn impermissible retroactive effect working a maniiest injustice." Id. at 748; but see P.P- ex rei. Michael P. v. West Chester Area Sch. Dis/., 557 F. Supp. 2d 64R (LD. Pa. 2008); Evtm H. ex reI. Kosta H v. Unionville-Chadds FnrdSch Di.~·t., No. 07-4990,2008 WL 479 [634 (E.D. Va. Nov. 4, 2008). Despite the Courts' thoughtful decisions in P.P. and A'van H, I agree with the Tereance D. holding.

In P.P, the court looked to the following language of the IDEA amendment: "a parent or agem.:y shall rcquest an impartial due process hearing within 2 years of the date the parent or agency knew Or should have known about the alleged action that fonns the basis ofthe complaint." Jd. at 660 (quoting 20 U.S.C. § 14 I5(f)(3)(C» (emphasis omitted). Rased on this language, the court concluded the factor thal detennines the amendmcnt's application is the date plaintiffs request their due process hearing. My reading ofthe amendment. however, leads me to conclude thc relevant date is the dalc a parent knew or should have known he had an fDEA claim.

In A'van H, the court distinguished Tereance D. by noting the cases on which the Tereance D. Court relied, specifically, Landgrafand Chenault v. United Stales Posfal Service. 37 rJd 515 (9th ell'. 1994), "dealt specifically with the question of whether a changed statute of limitations period should apply retroactively to a case currently pending, rather than to an acLion, such as this, brought after the change in lhe statute of limitations and under the amended law." Evan H., 2008 WL 4791634, at "'4 (emphasis in original). Although thc facts in Landgrafinvolved a pending case, rhe Court did not limit its holding to such cases. Indeed, in rcaching its conclusion, the Landgraf Court relied on Bowen v. Georgetown Univ, Hasp., 488 U.S. 204 (1988), a case that did 110tlnvolve a pending mattcr. The Tereance D. Court also relied on Bowell in concluding the IDEA's statute of limitations does not have retroactive effect. 25 state-level dut' process hearing request. The Third Circuit helu in Ridgewood v. N. F", 172 F.3d 238, 250 (3d Cir. 1999), "failure to object to [n student's educational] placement does not deprivc him of the right to an appropriate education." Although the Third Cin:uit did not deny the existence of an applicable stntute of limitations fur initiating due process proceedings, it allowed the student in Ridgewuod tu proceed with his compensatory education claim for the years 1988-1996 oftel' the student suught a due process hearing in 1996, rejecting the school district's argument the dclay in bringing the claim constituted waiver. Ridgewood, 172 F.3d at 245. Federal decisions since Ridgewood, and before the IDEA amendment made effective in 2005, have all "greed no limitations period applies to compensatory education. See Tereance D., 570 F. Supp. 2d at 744 (collecting cases). Plaintiffs' rel;Overy for the denial ofF APE prior to July I, 2005, is therefore not precluded.

As to the 2007-2008 sehool year, Plaintiffs are not entitled to compensatory education because tbere is no allegation, nor any evidcnc~., Vivian did not receive a meaningful education<ll benefit, resnlting in a denial of FAPE. during the 2007-2008 school year. A disabled student is entitled to compensatory education only if the studenl received an inappropriate edllcation. Lauren 1V ex rd. Jean W. v. Defhrminis, 480 F.3d 259,272 (3d Cir. 2007). "[A] student is receiving [In inappropriate education if the program i::; not providing 'significant learning' and conferring a 'meaningful benefit.'" Id. (quoting Ridgewood, 172 F.3d<lt247, 250). Plaintiffs do not DJlCg~~ Vivi<ln received an inappropriate education for the 2007-2008 school year and therefore have no right to campensntory education for that pt:riad. Plaintiffs' claim for 20U7-2008 is denied.

Accordingly, I grant partial judgment for Plaintiffs and award full days of compensatory 26 edw.;alion al five hours 24 per day for each school day during the period of time from the beginning of the second semester or the 2004-2005 school year through the end of the 2004-2005 s(.;hool year and from October 14,2005, through the end ofthc 2006-2007 school year.2~

Plaintills aLso contend the School District inappropriately placed Vivian in a learning support classroom for Innguagc arts and math, and in the regular education environmcnt tor the rest of the school day, ins lead of placing her in regular edllCl'ltion for thc full day. The Schou I District nrgues Vivian's placement according to the August 26, 2008 fEP's recOllllnendation salislies the IDEA's mainslreaming component, which requires a disabled child to be placed in the least restrictive enviromncnt that will provide the child with a meaningful educational bene1it. I agree with the School District that Plaintiffs havc not satisli.ed their burden of proof"6 See LE., 435 F.3d at 392 :'41n their summary judgment motion, Plaintiffs rcqucsted live years of compensatory education at six hours per day. I\t oral argument. however, Plaintiffs argued the award should he hased on seven hours per school day. The School District argues five hours is lln appropriatc estimate of the amount of time of direct instruction, including time for math, language arts, seience, social studies, and special subjects, but exeluding time for lunch. recess, transitions, homeroom, and study hall.

Parsing out the exact nllLllber of hours Vivian was not benefited hy FAPE during the time period "would place an arduous and near impossible Illsk upon the administrative bodies." Keystone Cenl Sch. D;sl v. EE <x rei. HE, 438 F. Supp. 2d 519, 526 (M.D. Pa. 2006). The parties, however,llsk this Court to llward compensatory education in terms of hours, not days. There is no authority requiring thi:'i Court to assign a certain number of hours per school dlly when a,\'arding compensaloryeducation. I will therefore base the award on the hours of direct educlltion Vivian should havc reed vcd eal..·h day, five hours for ellch dlly awarded. "SThe IDEA provides II court "shall grant such relief as the court determines is llppropriate." 20 U.S.c. § 1415(i)(C)(iii); see also W B. v. Malula, 67 F.3d 484. 485 (3d Cir. 1995)(cautioning that in detemlining a remedy, "a district cout1 mllY wish to order educational services, s\lch as compensalory education rather than cOmpen:'illtory damages tor generalized pain and suffering").

I agree with the Hearing Officer's finding that a reasonable period lor rectification would have been from November 3, 2004, through the end of the first semester of the 2004-2005 school year. I therefore exclude that period from PlaintilTs' compensatory education award. "61 do not defer to the lldministrative findings of fal:l regarding Vivian's educationlll placement hecause [he record has been supplemented with additional evidence, induding the August 26, 2008 27 (holding the party challenging an IEP has the burden of proof).

The IDEA includes a mainstreaming component in its description of J-APE, requiring education ill the least restrictive environment that will provide the student with a meaningful educational henefit. SH, 336 F.3d at 265 (citing 20 U.S.C. *1412(a)(5)(A); TR. v. Kingwood Twp. Bd. ojEduc., 205 r.3d 572, 57S (3d eir. 2000)). "The least restrictive environment is the one that. to the greatest extent possible, sati:;[actorily educates disabled children Logether with children who arc not di:;abled, in the same school the disabled child would attend if the child were not disabled." S.H., 336 F.3d at 265 (quoting Scott P., 62 F.3d at 535).

The Third Circuit Court of Appeals in Ob(!rli v. Ed. ofEduc. a/Borough a/Clementon Sch. Dist., 995 F.2d 1204, established a two-part test for determining whether a school is in campi ianee with the IDEA's mainsLrcaming requirement. "First, the court must determine 'whether education in lhe regular classroom. with the use of supplementary oids and services, can be achieved satisfactorily. '" Oberli, 995 P.2d at 1215 (quoting Daniel R.R., 874 f.2d at 1048). "Second, if the COlirt finds that placement outside of a regular classroom is necessary for the child to bendit educationally, then the wurt must decide 'whether the school has mainstreamed the child Lo the maximum extent appropriate,' i.e.. whether the school has made efforts to include the child in school programs with nondisahled children whenever possible." ld. (quoting Danie! R.R., 874 r.2d at IU48).

In determining the first prong, the court should consider several factors, including:

(1) whether the school district has made reasonable efforts to accommodate the child in a

regular classroom;

(2) the educational benelits available to the ehild in a regular class. with appropriate IEl'. that was not before the administrative fact finders. 28

supplementary aids and services, as compared 10 the benefits provided in a special education

class; and

(3) the pussible negative effects of the inclusion of the child on the education of the other

students in the dass. ld. at 1217-18. In considering the first factur, "a court must determine whether the school district provides 'a continuum ofaltemalive placements ... to meellhe need:; ofhandieapped children.''' I.E. v. Ramsey Ed. aJEd"c., 435 F.3d 3R4, 390 Od Cir. 2006) (quoting 34 C.F.R. ~ 300.551(a)). This continuum must iucludc 'the whule range ufsupplemental aids and services.''' Id. (quoting Oherli, 995 F.2d at 1216). The second factor includes a consideration of the "unique benefits lhaL will accrue to the ehild in a mainstream classroom." 1£1.

If "the court detennines the school district was justified in removing the child from the regular elassroom and providing edm;ation in a segregated, special education clnss, the COllrt mllst consider the second prong oflhc mainstrcnming tcsl- whether the :;chuu1 ha:; included the child in :;ehool program:; with nondisabled children to the maximum extent appropriare." Oberti, 995 F.2d at 1217-18 (citing Daniel R.R.. 874 F.2d at 1048, 1050). "The regulations nnder IDEA require schools to provide a 'continuum ofaltemating placements.'" Id. (quoting 34 C.F.R. § 300.551 (a)).

r-I'lhe school must take inlermeJiate :;Lep:; wherever appropriate, such as placing the

child in regular education for some <!I.:ademil.: classes and in special education for

others. mainstreaming the child for nonacademic da:;:;e:; unly, or providing

interaction with nonhandicapped children during lunch and recess. The appropriate

mix will vary from child to child and, it may he hoped, from school year tu schuol

year as the child develups.... Thus, even if a child with disahilities cannot be

educated sfltisfuctorily in a regular cla:;sruom, lhat child must still be included in

school programs wit nondisahled students whenever pussible. Id. (quoting Daniel R. R., 874 F.2d at 1050). "In sum, a court determines, through a cumparison of educational oppurtunilies supported by expert testimony, whether the ehild can be satisfactorily cducated in a regular elassroom with supplemental :;ervice:i. If [not], the eourt must consider 29 whether the school allempted to mainstream the child to the maximum extent possible." {,. E., 435 F.3d at 391.

In deciding whether placement in full-time general education was appropriate for Vivian, lhe School District noted the following accommodations were aVi;l.ilablc: supplementnl supports and services, .e;uch as itinerant learning supporli;l.nd paraprofessional ~upport; instructional modilications; a special education teacher; books on tape: and support and training for scbool personnel. With these accommodations in mind, the School District detern1ined Vivian could be included in the regular educalion selling with the aid of paraprofessional support iiI1d itinerant learning support, along with adaptations and modificatiomi La the curriculum only for homeroom. lunch, recess, .:;pecial subjects, science. and .e;ocial studies. As for math and language arts, the School District concluded Vivi::ln could not make meaningful educational progress toward her bi;l..:;ic mi;l.th and language an.e; goals in the gcneral educi;l.lion environment, even with th<: available accommodi;l.tions. I am satisfied the School District considered a "continuum ofaltemative placements," including "thc whole range of supplemcntal aid.:; and services," and made: reasonable etTorts to accommodate Vivian in the regulnr education classroom. See I.E. v. Ramsey Bd vfEduc., 435 f.3d at 390.

As to the .:;econd factor of the first Oberti prong, I condude the benefits of the learning support classroom for math and language arts outweigh the benefits Vivian would receive in the general educntion closs for tho.:;e .:;ubject areas. Vivian hns significont language, allcntion, and sensory needs, requiring intensive, systematic, and direct instruction. with multiple opportunities for guided practice and repetiti(Jn in a low student-to-teacher ratio, structured lei;l.rning environment. Vivian also continne.e; to have learning difference.:;, and language, sociaL und adaptive deficjts. Dr. Bloomfield assl;:sscd Vivian and concluded Vivian would benefit from parlor her day spent in 30 general educatiun and part spent in the regular classroom. Dr. Bloomfield also rel:ommended Vivian would best be served in a highly structured, individualized setting, a recommendation the August 26,2008 TEP also included. Dr. Finley, whm;e testimony I found to be well-informed, also opined Vivian would he most flppropriately placed in the leaming support classroom for math and language arts, and in [he gt:neral education setting for the remainder ofthe school day. Dr. Finley's testimony regarding classroom size and instruction for general edlleation and for learning support was also consistent with Dr. Bloomfield's evaluation of Vivian. Based on the evidl~uee of Vivian's abilities, needs, and the accommodations availahle in dIe rcsoun::e learning support classroom as compared to the instruction offered by the gt:llcral education classroom, Tconclude that for math and language arts instruction, the benefits of the specil11 education dass to Vivian outweigh tbe benefits of the regular education setting.

As Lo the third factor. although the School District in its brief raises [he possibility of Vivian's negative impacl on the education of the other children, during oral argument the Sl::hool District conceded Vivian's inclusion in general education would not have negative effccts on other studenls in the general education clelssroom. There is no evidence in the reeonI Vivian's behavior \vould negatively impact the olher students in the class.

Afterconsidering the three factors, placing Vivian in the resource lenrning supporl classroom for math and language arts satisfies the first prong of Oberri. There is no evidence Vivian would negatively impact the other students in the general education classroom. The evidence shows the educational benefits Vivian will receive in the rc~ouree leaming support classroom are greater than the benefits of the general education classroom for language arts and melth, Lastly, lhe School DislrLl.:t has made reasonable efforts to accommodate Vivian in a regular classroom. 31

Next, I must consider whether Vivian has been mainstreamed to the maximum extent appropriatc, or whether the School District has made efforts to include Vivian in school programs with nondisahled children wheneverpossihle. The IEP places Vivian in the general education setting for nearly half the school day, for all classes and programs other than math and language arts. She is in general education with nondisab1cd peers for homeroom, lunch, recess, study hall, spceial suhjects, science, and social studies. During this time, Vivian will have ample opportunity to engage in modeling behavior, inlerad with nondisabled peers, and learn social skills. I am satisfied the School District has included Vivian in school programs with her nondisahled peers whenever possible. This plat:ement salisfies the Oberli factors. CONCLUSION

I award Vivian full days of compensatory education at five hours per day for each school day during the period of time from the beginning of lhe second semester of the 2004-2005 school year through the end oftlle 2004-2005 school year, and from October 14, 2005 through the end of the 2006-2007 school year. I further ordcr, wnsistent with the August 28, 2008 order, Vivian continue in the educational setting proposed by the August 26, 2008 IEP. Vivian shall be placed in the resource leaming support elassroom for language arts and math and in the general education setting for homeroom, lunch, recess, special subjects, science, and social studies.

An appropriate order follows. 32

IN THE UNITED STATES DISTRlCT COURT

FOR THE EASTERN DISTRlCT OF PENNSYLVANIA

LAURA P., el al. CIVIL ACTION

v. No. 07-5395 IJAVERFORD SCHOOL DISTRlCT

ORDER

AND NO\V, this 2 pI day of November, 2008, the parties' l:JOSS motlolls for summary judgment based on the administrative record (Documents 38 and 44) arc both GRANTED in part and DENTED in parl. Plaintiffs are awarded full days of compensatory education at five hours per day for the second semester of the 2004-2005 school year, nnd from October 14, 2005, through the end of the 2006·2007 school year. Plaintiffs' request for emotional harm damages is DENIED.

It is further ORDERED Plaintiffs' mution for reconsideration afmy August 28,2008 Order (Doeument 72) is DENIED. It is ORDERED and DIRECTED thal Vivian remain in the plaeernent recommended by her August 26, 2008 IEP, consistent with the August 28, 200& order entered in this ea,<;e.

Plaintiffs' motion for leave to file a reply brief(Document 81) i,<; GRANTED.

The Clerk of Court is directed to mark this case CLOSED for statistical purposes.

33

BY THE COURT: