E.D. Pa.: H.G. v. Upper Dublin... | Special Education Law

IN THE UNITED STATES jl>ISTRICT COURT

FOR THE EASTERN DISTRI IJ OF PENNSYLVANIA

H.G., a minor, by and through his parent : CIVIL ACTION

and natural guardian, BARBARA DAVIS ]

Plaintiff 0. 13-1976

UPPER DUBLIN SCHOOL DISTRICT

Defendant

NITZA I. QUINONES ALEJANDRO, J. APRIL 17, 2015 MEMORANDU OPINION INTRODUCTION

H.G. is a junior high school student with a di ability who is eligible for special education

services. By and through his parent and natural gu+an, Barbara Davis ("Parent"), H.G. (along with Parent, hereinafter collectively referred to as '!'Plaintiff') filed this action pursuant to the

1 Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §1400 et seq.,

29 U.S.C. §729, commonly known as §504 of the R.ehabilitation Act of 1973 ("§504" and/or "RA"), the Americans with Disabilities Act, 42 fs.c. §12131 et seq. ("ADA''), 28 C.F.R. §35.130, and Pennsylvania Special Education regufations, 22 Pa. Code §14.145, against the Upper Dublin School District ("Defendant" or "DiJrict"), challenging the decision issued by a Pennsylvania Special Education Hearing Officer, wto found that the District (a) conducted an appropriate evaluation of H.G., (b) proposed an app ~priate change of placement, (c) would not

be required to provide the Independent Educational ;valuation ("IEE") sought by Parent, and (d)

i may immediately implement its proposed lndividuali !ed Education Program ("IEP").

1 The Individuals with Disabilities Education Act ("IDE I ") was amended and renamed to the IDEIA, effective July 1, 2005. See Pub. L. No. 108-446, 118 Stat. 2715 (2004). This Court will refer to the Act as the IDEIA throughout this Memorandum Opinion. 2

The parties filed cross-motions for judgme l on the administrative record, [ECF 24, 25],

and respective responses. [ECF 34, 36]. These moti~ns were referred to United States Magistrate

Judge Lynn A. Sitarski for a Report and Recom I endation ("R & R"), which was issued on

October 17, 2014. [ECF 37]. Thereafter, Plaintiff led Objections to the R & R, [ECF 38], and

the District filed a response to the Objections. [ECF 39]. This matter has been fully briefed and is

ripe for disposition. 2

After a careful review of the R & R, all filin s pursuant thereto, and the Hearing Officer's

decision, for the reasons set forth herein, this Court' approves and adopts the Magistrate Judge's

recommendation, overrules, in part, Plaintiffs Objections, denies Plaintiffs motion for

judgment on the administrative record, and grants Defendant's motion for judgment on the

administrative record.

BACKGROUND I I

On April 15, 2013, Plaintiff filed a complaint! against the District which seeks the reversal of the Hearing Officer's (administrative) decision id requests an order directing the District(!) to provide H.G. with a Free Appropriate Public Education ("FAPE") in the least restrictive, most integrated setting appropriate to H.G.'s needs, (2) to provide an IEE at public expense, (3)

to reconvene H.G. 's IEP team to consider alternartes to the 2012 IEP, including the use of supplementary aids and services, and (4) to pay an a; ard of reasonable attorney's fees and costs. The District filed an answer with affirmative defensJ on June 21, 2013. [ECF 4].

After discovery was completed, Plaintiff fi ed an amended motion for permission to supplement the administrative record with additionalievidence. [ECF 16]. Plaintiffs motion was

2 Because the parties have thoroughly briefed the issues ivvolved in this matter, this Court finds that oral argument is not necessary and, therefore, Plaintiffs Decerrtber 9, 2014 informal request for oral argument is denied consistent with Federal Rule of Civil Procedure ~"Rule") 78(b). 3

granted subject to a later determination on the admirbility and relevancy of additional evidence.

[ECF 22]. Thereafter, Plaintiff filed 29 additional exhibits. [ECF 26, 27, 28]. Defendant

submitted one additional expert report. Both partielli filed written objections to the supplemental

evidence the other sought to introduce. [ECF 31, 32 35].

On June 2, 2014, the District filed its moti1 for judgment on the administrative record,

contending that its reevaluation of H.G. was proc~durally and substantively sound. [ECF 24].

The District urged this Court to affirm the administrtive decision finding that the 2012 IEP was

appropriate and enforceable. The District also noted that currently, and until the instant motions

are decided, H.G. is to follow the 2009 IBP. I

On June 3, 2014, Plaintiff filed a motion flr judgment on the administrative record, as

supplemented by additional evidence, arguing that the Hearing Officer erred in that (1) the 2012

IBP denies H.G. a FAPE under the !DEJA beca4 it does not allow H.G. to be educated with non-disabled students to the maximum amount posslble and denies H.G. meaningful educational benefit; (2) the 2012 IEP violates (a) §504 of !e RA because there was no finding that placement in special education classes was necess ! to provide H.G. with educational benefit

1 and (b) Title II of the ADA because the District failed to consider the use of auxiliary services, such as Assistive Technology; and (3) the decision) uphold the 2012 IEP was replete with legal

error which (a) relied on a misguided belief that "a(student performing on a 'low level' cannot

1 benefit from being instructed in age-appropriate rade-level classes," (b) failed to consider

whether H.G. could be satisfactorily educated in ge leral education classes for reading and math, 3 As noted by the Magistrate Judge, Plaintiffs actually sJbmitted 31 additional exhibits, but the first two are the affidavits of Plaintiffs counsel and Parent. The Magistrate Judge did not consider the affidavits additional evidence. See R & R 40 n. 23. I 4 Decision ~42; see also 20 U .S.C. § 141 SU) (during the p~ndency of any proceedings conducted, the child shall remain in the then-current educational placement). 4

as required by the IDEIA, 20 U.S.C. §1412(a)(5), r:d (c) ignored evidence calling into question

the validity of the District's 2011 reevaluation. [EC • 25].

As stated, the parties' cross-motions for ju,; gment on the administrative record and the

respective responses were referred to the Magistrat I Judge on June 11, 2014, for an R & R. The

Magistrate Judge essentially recommended that th ! administrative decision be upheld. Plaintiff

filed an extensive list of Objections and the District jl iled a response to the Objections.

THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT

("IDEIA") STATUTORY FRAMEWORK

The IDEIA's predecessor statute 5 was enact din response to a congressional finding that

a majority of children with disabilities did not receile appropriate educational services. Lebron v.

North Penn Sch. Dist., 769 F.Supp.2d 788, 791 (E.ID. Pa. 2011) (citing Oberti v. Bd of Educ. of

the Borough of the Clementon Sch. Dist., 995 F.~d 1204, 1213 (3d Cir. 1993)); see also 20

U.S.C. §1400(c)(2). Today, the IDEIA authorizes :lfederal grants to states on the condition that

the states provide appropriate education to children with disabilities in accordance with the Act.

20 U.S.C. § 1411. The Act describes how states sh0uld evaluate eligible children's educational needs and develop Individualized Education ProJams or IEPs. §§1412-1414. An IEP is a written document that is tailored to a particular lchild's unique needs and is the "primary mechanism" for delivering a Free Appropriate Pub lib Education or FAPE. § 1414(d); Ridley Sch. Dist. v. MR., 680 F.3d 260, 269 (3d Cir. 2012). , e IEP describes the child's present abilities and challenges, sets measurable goals and methods tI measure the child's progress towards those goals, and prescribes services and modifications for ~he child. 34 C.F.R. §300.320(a); see also 22

Pa. Code §14.102(a)(2)(xxvii) (incorporating 34 C.F.R. §300.320 by reference).

I I

The Education of the Handicapped Act, 20 U.S.C. §§ 1401-1462 ("EHA"). 5

Although a state is neither required to maxiiize the potential of every handicapped child, nor provide an eligible child with services design Id to provide the "absolute best" education, K.C. ex rel. Her Parents v. Nazareth Area Sch. Dist 806 F.Supp.2d 806, 814 (E.D. Pa. 2011), it must supply an education that provides "signific jt learning" and "meaningful benefit." MR., 680 F.3d at 269 (citing D.S. v. Bayonne Bd of Educ, 602 F.3d 553, 556 (3d Cir. 2010)); see also Ridgewood Bd ofEduc. v. NE. ex rel. ME., 172 F. :Id 238, 247 (3d Cir. 1999); J.E. v. Boyertown Area Sch. Dist., 834 F.Supp.2d 240, 253 (E.D. Pa 2tl 1). "[T]he provision of merely more than a trivial educational benefit" is insufficient. L.E. v. I

amsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006) (internal marks and citations omitted).

LEGAL STANDARD OF REVIEW OF TH ADMINISTRATIVE RECORD AND REPORT AND RECOMMENDATION

In an IDEIA action, the district court "(i) s all 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." 20 U.S.C. § 1415(i)(2)(C); Lebron, 76b F.Supp.2d at 793. District courts employ a "modified de novo" review of the administrative prLeedings, S.H v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003), and r!he administrative agency's factual findings are given "due weight." Shore Regional High Sch. 'Bd of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). A reviewing court defers to those fact~ findings unless the court "can point to contrary non-testimonial extrinsic evidence on the r~cord." S.H, 336 F.3d at 270; Carlisle Area Sch. v. Scott P. by & Through Bess P., 62 F.3d 520 (3d Cir. 1995). While this standard is not as deferential as that used to review other agency actJbns, courts are not free to "substitute their

own notions of sound education policy for those of the educational agencies they review." Susan N v. Wilson Sch. Dist., 70 F.3d 751, 757 (3d Cir. 19~5) (citing Bd ofEduc. v. Rowley, 458 U.S. 6 176, 205-06 (1982)). A hearing officer's conclu~ions of law and legal standards applied,

however, are subject to plenary review. See D.K v.jAbington Sch. Dist., 696 F.3d 233, 243 (3d

Cir. 2012) (citing P.P. ex rel. Michael P. v. W Ch ster Area Sch. Dist., 585 F.3d 727, 735 (3d

1 Cir. 2009)); D.S., 602 F.3d at 564.

Where the district court hears additional e~idence, it is "free to accept or reject the agency findings depending on whether those findinJs are supported by the new, expanded record and whether they are consistent with the requirem,ts of the Act." S.H, 336 F.3d at 270 (citing Oberti, 995 F.2d at 1220). Where the district court dres not hear additional evidence, it must find support for any factual conclusions contrary to ,~ hearing officer's in the record before it. Moreover, the court must explain why it does not accept the hearing officer's findings of fact. Id.; Susan N, 70 F.3d at 757.

The party challenging the administrative dedision bears the burden of persuasion before the district court as to each claim challenged. MRJ 680 F.3d at 270 (citations omitted). As the Supreme Court noted in Schaffer v. Weast, 546 u.t 49, 53 (2005), "[t]he burdens of pleading and proof with regard to most facts have been an, should be assigned to the [party] who . . . seeks to change the present state of affairs." Id. at 56 (quoting McCormick on Evidence §337, at 412). Under the IDEIA, it is the party "aggrieved Jy the findings and decision" of the hearing officer that seeks to change the present state of afflirs. See 20 U.S.C. § l 415(i)(2)(A). "Absent some reason to believe that Congress intended othelse," the burden of persuasion falls where it usually does, on the party seeking relief. Schaffer, 5J6 U.S. at 57-58.

Lastly, a district court judge may designate lspositive motions to a magistrate judge for proposed findings of fact (a report) and recommendtions for disposition pursuant to 28 U.S.C. §636(b)(l)(B). Within 14 days after being served ~ith the magistrate judge's report, any party

' 7

may file objections. §636(b)(l)(C). When disposing of any objections to a magistrate judge's

report and recommendation, the district court shJll make a de novo determination of those

portions of the report or recommendations to which bbjections are made. Id,· Colon ex rel. Disen-

Colon v. Colonial Intermediate Unit 20, 443 F.Sup .2d 659 (M.D. Pa. 2006) (citing Henderson

v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987)). The !istrict court may accept, reject, or modify, in

whole or in part, the findings or recommendations j ade by the magistrate judge. The court may

receive further evidence or recommit the matte to the magistrate judge with additional

instructions. 20 U.S.C. §636(b)(l)(C).

The Administrative Record

The factual findings in the administrative dlision, which are deemed to be prima facie

correct, 6• 7 complemented by the findings in the R & R, are summarized as follows:

At the time of the due process hearings, H.G. was a 14-year old resident of

the District and, undisputedly, eligible for special education services. 8 This

conclusion is based on the facts that when H.G. was 15 months of age, he was

diagnosed as suffering a genetic disorder identified as Fragile X Syndrome. 9• 10

He was later also diagnosed with Attention Deficit Hyperactivity Disorder

("ADHD"). 11 With these two diagnoses, H.0 qualifies as a child with a disability

within the meaning of the IDEIA, 20 U.S.C. j§1401(3)(A), and an individual with

a disability within the meaning of §504 of tre RA, and Title II of the ADA, 42

•

U.S.C. §1213(2). 1 I I

When H.G. transferred to the Distri~t in October 2008, he was in third

grade. H.G.'s IDEIA eligibility was based on the disabilit6 categories of "Other

Health Impairment" and "Speech/Language /Impairment." 2 The following year, 6

See S.H v. State-Operated Sch. Dist. of Newark, 336 .3d 260, 270 (3d Cir. 2003) ("Factual findings from the administrative proceedings are to be considered prima facie correct."). 7

In the Hearing Officer's decision, findings of fact ire set forth in enumerated paragraphs, while conclusions of law are not; thus, citations to the decision ~re specified as to paragraph or page number. Decision ~I. 8

Id. at ~4. 9 ° 1

Characteristics of Fragile X Syndrome include: visu~l defensiveness/difficulty processing a lot of material on a page; physical manifestations of exciteclent, such as hand flapping and inappropriate vocalizations; verbal perseveration; difficulties with visu~l motor planning; and sensory regulation issues. Decision ~5. 11

Id. at,3. 12

Id. at ,2. 8

I I

H.G. 's October 2009 IEP ("2009 IEP") pro~l~ded for the District to use grade level

curriculum when instructing him, with the rbility to pull him out of the general

education classroom for up to 1.25 hours pir day for support services. The 2009

IEP also contained modifications and supp19µiental aids and services, or Specially

Designed Instruction ("SDI") for many pru{ts of H.G. 's curriculum. The 2009

IEP was the last IEP to which Parent agreed lrd is currently being implemented.

The School District's 2111 Reevaluation

In March 2011, the District filed due process request to allow it to

proceed with a comprehensive reevaluation ]of H.G. without parental consent. In

July 2011, after multiple hearings, the then hearing officer found in favor of the

District, and allowed it to conduct cognitiv : and achievement testing, as well as

assessments of H.G.'s adaptive functioning. n October 2011, the District's school

psychologist overseeing H.G.'s reevaluation researched standardized tests

appropriate for H.G. 's disability, determinedllthat there is no particular formula for

sele.cting appropriate assessments, and sel~cted specific tests to try to be "as

comprehensive as possible" and capture "diferent theories of intelligence." 15 The

school psychologist organized the assessments in a manner thought to be most

conducive to H.G.'s success, e.g., testing in !shorter sessions over a longer period

of time, allowing fre~uent breaks, and avo~ding use of the word "test," which

made H.G. anxious. 1 The reevaluation atso included observation of H.G.'s

performance in class and social settings, as well as behavioral rating scales

submitted by H.G.'s teachers. 17 I

In December 2011, the District released its Reevaluation Report, which

described H.G. as exhibiting "significant deficits in all areas of cognitive,

academic, adaptive, [communicative] and socl ial functioning," and indicated that,

under Pennsylvania Special Education regulations, H.G. qualified as a student

with a disability. The Reevaluation R~port recommended placing H.G.

predominantly in the special education class~oom and allowing H.G. to remain in

the general education environment for electivfs and lunch. 18

The School District's PrJposed 2012 IEP

After several IEP meetings, the Distril~t

proposed in January 2012, an IEP

("2012 IEP") that provided for the follow~hg: H.G.'s participation in general

education for 56 percent of the school day 25 percent reduction from the 2009

IEP); special education placement for math, reading, and languaye arts; and

placement in co-taught, grade level science ~d social studies classes. 9 Parent did

13 See S-1. 14 Decision ~42. 15

R&R4

16 Id. at 4-5. 17 Id. at 5. 18 Id. at 6. 19 Id. at 7; see also S-33. 9

not approve of the 2012 IEP and sought Illediation. The District complied with

Parent's request, and mediation was held on l!April 10, 2012, without success. 20

While mediation was pending, Paret requested a District-funded IEE to

be conducted by two experts in Fragile XI

Syndrome located in Colorado. On

February 22, 2012, the District refused to conduct the IEE on the grounds that its

December 2011 reevaluation was completeland sufficient to plan an educational

program for H.G. 21 Parent, thereafte !, obtained a ~rivate IEE by

psychological/educational consultant, Edna /Barenbaum, Ph.D. 2 Dr. Barenbaum

observed H.G. in school for five hours on~arch 28, 2012, and administered in

her office the following evaluations in two 'd half hours: the Test of Non-Verbal

Intelligence, Fourth Edition (TONI-IV), th Peabody Picture Vocabulary Test,

Fourth Edition (PPVT-IV), and three diagno~tic achievement subtests. 23 Based on

the results of these assessments and observations, Dr. Barenbaum concluded that

H.G. was functioning in the low average r±ge of cognitive ability, and that his

academic scores were considerably high~r than the District's test results

indicated. 24 DISCUSSION

In the R & R, the Magistrate Judge specific Illy recommended that this Court (1) find in favor of the District because Plaintiff failed to m1 the burden of persuasion to show that the District's 2011 reevaluation and the resulting 2012 IEP were inappropriate, (2) dismiss the ADA

and RA claims as not administratively exhaustel (3) deny, in part, Plaintiffs motion to supplement the record on the basis that the proffe1d additional evidence is cumulative and/or irrelevan~ and (4) deny the District's supplemental ~vidence, as irrelevant. 25 Plaintiff disagreed

1 with these recommendations and filed the following (:}bjections to the R & R:

(1) the Magistrate Judge applied an incorrect ltandard of review;

(2) the Magistrate Judge improperly re4ed to review and detennine the

appropriateness of H.G.'s educational pro~rams created after the close of

administrative proceedings; 1 20

R& R 7

R&R8

22 Decision133. 23 Id. at 135. 24 Jd. at 1133, 37; see also P-11. 25 See infra 35 n. 76. 10 (3) the Magistrate Judge erred in declining td admit the Plaintiffs expert reports;

(4) the Magistrate Judge erred in refusing] to admit and consider evidence of H.G. 's progress in general education classes; I

(5) the Magistrate Judge erred in refusing t ! admit H.G.'s progress reports from seventh grade; I (6) the Magistrate Judge erred in finding t~el 2012 IEP appropriate even though

1 the goals in the IEP were too basic for H.G.;

(7) the Magistrate Judge erred in concluid"ng that the District's obligation to develop appropriate goals for H.G. in the !012 IEP was merely a "procedural" and not a substantive obligation; I

(8) the Magistrate Judge erred in conclud~ng that the District's obligation to consider the supplementary aids and service$' that could be provided to H.G. as an alternative to removal from regular class .Jas merely a "procedural" and not a substantive obligation; (9) the Magistrate Judge erred in holding that the District took adequate steps to accommodate H.G. in general education cl~sses during the development of the

(10) the Magistrate Judge erred in refusing ~o consider the District's continuing failure to consider the full range of suppler,entary aids and services and make reasonable efforts to support H.G. in regular elasses;

1 (11) the Magistrate Judge erred in finding thJ District's evaluation appropriate; (12) the Magistrate Judge improperly invokjd IDEA's exhaustion requirement as a reason not to consider evidence of the lpistrict's failure to implement the Specially Designed Instruction in H.G. 's IEP~ (13) the Magistrate Judge improperly ignore II the evidence of the District's failure to implement the Specially Designed Instruct on in H.G.'s IEP during sixth grade;

(14) the Magistrate Judge improperly ignore I·the evidence of the District's failure to implement the Specially Designed Instruction in H.G.'s IEP during seventh and eighth grades;

( 15) the Magistrate Judge improperly useb evidence of Specially Designed Instruction in H.G.'s 2009 IEP as evidence! that the District considered, at the 2012 IEP meeting, whether H.G. could sv.ccessfully be educated in general education classes with supplementary aids anCl services; 11

(16) the Magistrate Judge erred by endorsillig the Hearing Officer's conclusion,

without analysis, that H.G. cannot benefil:t from being educated in general

education classes; and

(17) the Magistrate Judge erred in refusing to admit other additional evidence

offered by the Plaintiff. -/j

Undisputedly, a court may decline a de nov, review if a party's objections to an R & R merely reiterate issues already presented to the mlgistrate judge. See Batchelor v. Rose Tree Media Sch. Dist., 2013 WL 1776076, at *4 (E.D. Pa. Mar. 28, 2013), aff'd, 759 F.3d 266 (3d Cir.

2014); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 19841) (noting de novo review of objections is not appropriate when such review would undermine efd~iency of the magistrate system); Morgan v. Astrue, 2009 ~L 354100 I, at • 3 (E.D. Pa Oct. 30, i009) (explainin~ an ob'.ecting party must do more than "simply rehash [ ] arguments already ra!ised to the magistrate Judge" to warrant de novo review); Nghiem v. Kerestes, 2009 WL 960046l at *1 n.l (E.D. Pa. Apr. 3, 2009) (declining to engage in a duplicative review of objections wJich rehash arguments previously addressed and dismissed by the magistrate judge). Further, it it inappropriate for a district court to address objections previously raised before a magistrate juoge; to do so would "defeat any benefit of judicial efficiency gained by the report and recoJendation process." Palmer v. Astrue, 2010 WL 1254266, at *2 (E.D. Pa. Mar. 31, 2010) (quotin1Morgan, 2009 WL 3541001, at *4).

Here, the Magistrate Judge submitted a colprehensive and thorough 57-page R & R,

carefully examining the Hearing Officer's 30-page 1ecision, the voluminous IDEIA record, and both parties' motions for judgment on the admini,ive record. A review of Plaintiff's 59 pages of Objections reveals that these objections essentially rehash the arguments made in Plaintiffs 48-page motion for judgment on the administrati1e record. Since the Magistrate Judge has addressed these concerns, this Court need not condlJ!.ct a de novo review. Notwithstanding, this Court will briefly review Plaintiffs Objections, thJ~gh not necessarily in the order presented, 12

and will consolidate and categorize the Objecti ts, whenever possible, into the following

arguments: (1) the standard of review, (2) the Di!~trict's 2011 reevaluation, (3) the District's proposed 2012 IEP, (4) the RA and ADA claims, la (5) the submission of post-administrative hearing evidence.

Standard ofReview ~Objection 1)

Because the Magistrate Judge recommended! that at least some of the proffered additional evidence be admitted and considered, Plaintiff contf~nds that the Magistrate Judge employed the wrong standard of review, and that a "more expansi e, less deferential standard of review" of the

Hearing Officer's decision was required.

In support of this contention, Plaintiff cites te established standard that a district court is "free to accept or reject the agency findings depen,ing on whether those findings are supported by the new, expanded record and whether they are ~onsistent with the requirements of the Act." S.H, 336 F.3d at 270. Plaintiff misinterprets this j~andard as necessitating the use of a "more

expansive, less deferential" level of review. To the ,contrary, what is required is an independent

review of the administrative record; a review that gives appropriate deference to the Hearing Officer's factual findings, provides reasons for any disagreement with any of the findings, and conducts a plenary review of the Hearing Officer's! conclusions of law. It is further noted that "the amount of deference to be afforded the admiilistrative proceedings 'is an issue left to the discretion of the district court,"' Susan N, 70F.3da1758 (quoting Oberti, 995 F.2d at 1219), but

that an appellate court's review of a district courtl:s legal analysis is plenary and "conducted within the general framework of deference to state decision-makers" that is dictated by the IDEIA and by the Supreme Court's direction in lowley. Id. (citing Fuhrmann on Behalf of 13 Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 031, 1032 (3d Cir. 1993) (citation omitted)) (emphasis provided).

Unlike the district court in Susan N., whicl ruled on the merits of the appellants' case without evaluating or accepting the proffered additional evidence (which required the Third Circuit to vacate the district court's order and remtd for further proceedings), here, this Court provisionally admitted the proffered additional evi,bce for the Magistrate Judge to thoroughly consider and recommend its inclusion or exclusior, based upon its relevance to the Hearing Officer's decision and the administrative record, w+h she did.

In further analyzing the standard of revi1i' it is noted that Plaintiff, as the party challenging the District's 2011 reevaluation and ,oposed 2012 IBP, is not released from the burden of proving, by a preponderance of the eviden~, that the Hearing Officer's detenninations were incorrect. See MR., 680 F.3d 270 (a party challenging the administrative decision bears the burden of persuasion before the district court on eath claim challenged) (citations omitted); see also Leighty v. Laurel Sch. Dist., 457 F.Supp.2d 54,, 553 (W.D. Pa. 2006) ("In light of Schaffer, however, it is clear that Oberti is no longer the apricable law to the extent that it placed the burden of proof on the school district."). Here, the Magistrate Judge indicated that she conducted a "modified de novo" review of the administratJe record and that, pursuant to the above standards, the issues of whether the District fulfil 11 its IDEIA obligations when performing the 2011. reeval~ation and providi~g H.G. a FAPE in lihe 2012 IEP, are questions of fa~t which reqmre modified de novo review. See D.S., 602 ~.3d at 564 ("Whether the evaluation was

11 appropriate is a question of fact."); J.E., 834 F.Supp.f d at 244 ("Whether an IEP is appropriate is a question of fact."); see also, L.E., 435 F.3d at 389 ("'When deciding an IDEIA case, the District Court applies a modified version of de novo eview and is required to give due weight to

the factual findings made during the course of th ; administrative proceedings."). As will be

discussed, and as concluded by the Magistrate Judgt Plaintiff has not met the required level of

persuasion to show that the Hearing Officer's dete,inations were incorrect and/or not supported by the record. Since Plaintiff has not proven that Plaintiffs Objection 1 is overruled. II

incorrect standard of review was applied,

The School District's 2011 Ree1aluation (Objection 11)

Plaintiff objects to the Magistrate Judge's +ding that the Hearing Officer's conclusion that the 2011 reevaluation was appropriate. (Plainti~ had made a similar argument regarding the Hearing Officer's conclusion in the motion for juclient on the administrative record.) Plaintiff relies on the testimonies of Dr. Barenbaum and M,i Walters to argue that H.G.'s demonstrated skill and true capabilities are not reflected in the results obtained by the District and, therefore, the District's reevaluation was not sufficiently complehensive or accurate to provide an adequate foundation for development of an appropriate IEP for H.G. Plaintiff has also asserted that the District's testing was "excessive" and a "self-servin1 effort to show that H. G. [was] intellectually disabled, by giving so many tests with the same seres that there would be no way to challenge the District's diagnosis." 26 Plaintiffs Objection is without merit.

Acknowledging that a substantive portion oJI testimony in the administrative due process hearings was devoted to the reliability and suitabi~ity of the District's testing, the Magistrate Judge (as did the Hearing Officer) noted that the District's school psychologist researched how best to test students with Fragile X Syndrome, seleoled reliable measures based on the research,

and administered these measures in a manner conducive to H.G. 's success. 27 Specifically, the school psychologist conducted nine testing sessionsl each averaging one hour or less, including 26

R & R 17-18; see also id. at 18 n. 16. 27

R & R 19; Decision ,,10-11. 15 breaks, over a period of two months. These tests were administered to measure cognitive abilities, 28 visual-motor and perceptual skills, 29 aJbemic achievements, 30 speech and language capabilities, 31 and included physical therapy and ocjupational therapy assessments. 32 In addition, the classroom observations were made by the schof1 psychologist, teachers, and related service providers to assess H.G.'s behavioral, social, emotiohal, and adaptive functioning. 33

Further, in response to Parent identifying tlree individuals who provided instruction to H.G. in community activity settings and knew H.J. well, the school psychologist sent each of these individuals a Teacher/Specialist Narrative FoL, asking for a description of H.G.'s work habits, attention/concentration, needs, strengths.I behavior and skills in the areas of communication, organization, and social/peer reltionships. Not one of them returned the completed forms, despite follow-up inquiries frJm the school psychologist. Parent also

34 requested that the school psychologist send several tdardized rating scales forms to a friend of Parent, Alison Walters, who had privately tutored H.G. in reading and math since June 2010, which the school psychologist did. Ms. Walters alJ did not return the forms. 35 Based upon the

tests and assessment results showing significant deficits in all areas of cognitive, academic, and adaptive functioning, the school psychologist cJncluded that H.G. meets the criteria in 28

Wechsler Intelligence Scale for Children-Fourth ~ition (WISC-IV Integrated); Kautinan Brief Intelligence Test-Second (KABC-11); and Comprehensive Test of Non-Verbal Intelligence-Second Edition (CTONI-11). Decision if14. I 29

Beery-Butenica Developmental Test of Visual-Motor Integration-Fifth Edition (Beery VMI, Fifth Edition); Bender Gestalt II and two subtests of the Dbvelopmental Neuropsychological Assessment, Second Edition (NEPSY-11). Decision ifl6. 30 Wechsler Individual Achievement Test-Third Edition ~WIAT-III); Critical Reading Inventory (CRI); and Yopp-Singer Test of Phonological Awareness. Decisi<,m if l 8. 31

Clinical Evaluation of Language Fundamentals-Fo~rth Edition (CELF-4); and Peabody Picture Vocabulary Test, Fourth Edition (PPVT-IV). Decision if2~. 32

Decision if24. II 33

Behavior Assessment System for Children-Second Editfon (BASC-2); Behavior Inventory of Executive Functions (BRIEF); Vineland-II Adaptive Behavior Seal s; and Student Interview/Self Report. Decision if26. I 34 D . .

ec1s1on .i-30

•

, 35

Id. at if31. 16

Pennsylvania and federal Special Education Regultions for identification in the intellectually

disabled category, functioning in the moderate rangjl of mental retardation. 36

In the interim, Parent obtained the private ejaluation from Dr. Barenbaum, who assessed

H.G. in her office with Parent present, using the PP,T-IV, the TONI-IV, and three of 11 subtests

of the Diagnostic Achievement Battery-3, an achitvement test that Dr. Barenbaum helped to

develop and standardize. 37 This testing in her offif took approximately two and a half hours;

and she further observed H.G. for approximately fiT hours at school. Based on her findings, Dr. Barenbaum concluded that H.G. functioned in the lo average range of cognitive ability, that the results of the achievement tests she administered ] ere considerably higher than the District's results, and that H.G. 's functioning in reading and 1math placed H.G. at a higher level than the District's evaluation results indicated. 38

The requirements for a school district's elaluation of a student with a disability are codified at 34 C.F.R. §300.304. Specifically, a school district must "[u]se a variety of assessment

tools and strategies to gather relevant functional, :developmental, and academic information

39 about the child," and utilize "technically sound instruments that may assess the relative

contribution of cognitive and behavioral factors, •in addition to physical or developmental factors." 40 Tests are to be administered by "trained and knowledgeable personnel"41 in a form "most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally." 42 Results shoul~ "accurately reflect the child's aptitude or 36 Id. at 132. 37 Id. at 135. 38 Id. at 1137, 40. 39 34 C.F.R. §300.304(b)(l). 40 §300.304(b)(3). 41 §300.304(c)(l)(iv). 42 17

achievement level or whatever other factors the test urports to measure, " 43 as well as "assess the

I I

child in all areas related to the suspected disability."4 4

Plaintiff contends that the District's testing only sought to highlight H.G. 's disabilities,

and did not focus on H.G. 's capabilities. In support,/ Plaintiff relies on Dr. Barenbaum's opinion

testimony that the standardized cognitive and acjevement tests selected by the District are

designed to test disabilities, rather than tease out alDilities that may be masked by disabilities. 45 Plaintiff's reliance, however, is misplaced. Dr. B1~nbaum's opinion underscores the IDEIA's requirements and supports the District's 2011 reevaration. As provided by regulation, testing is done to "assess the child in all areas related to the sJspected disability." This is exactly what the District did, taking into account H.G.'s disability Ld evaluating H.G.'s academic, cognitive, functional, and behavioral performances in a reguI1 education classroom. Contrary to Plaintiff's

1 assertion, the record does not support a finding that the District violated the IDEIA when conducting the 2011 reevaluation of H.G. The Di1ict's 2011 reevaluation was comprehensive and appropriately completed over a span of two I months. Additionally, consistent with the Magistrate Judge's finding, the record does not conlt· in any contrary or non-testimonial evidence

t to justify a departure from the Hearing Office rs determination that the District's 2011 reevaluation did not violate the IDEIA. This Court cognizant that it is not the job of the court to dictate educational methods to special education experts. See Rowley, 458 U.S. at 208 ("[O]nce a court determines that the requirement1 of the Act have been met, questions of methodology are for resolution by the States.") (citations and footnotes omitted); L.R. v.

Manheim Twp. Sch. Dist., 540 F.Supp.2d 603, 618 (E.D. Pa. 2008) ("The Court is not properly equipped to follow Plaintiff into the thicket of metJ~dological debate ... [t]herefore, the Court

i 43 §300.304(c)(3). 44 §300.304(c)(4). 45 See Decision 18; N.T. 1851, 1873. 18

will not independently review the methodology o the testing underlying [plaintiffs] IEP.").

Here, Plaintiff has not shown that the District's 201 reevaluation was inappropriate. Therefore,

Plaintiff's Objection 11 is overruled. I

The School District's Proposed 2012 IEP

In his Objections, Plaintiff contends that /he District's proposed 2012 IEP does not provide H.G. meaningful educational benefits or a FAPE in the Least Restrictive Environment ("LRE"). To address these issues and whether the :istrict's proposed 2012 IEP was appropriate

1 and did not violate the !DEJA, a brief review of the 1009 IEP is necessary.

The 2009 IEP provided that H.G. be instruc~.[d entirely in grade level curriculum and that he spend 81 percent of the day in the regul [ education classroom. Modifications and

supplemental aides and services were described in B7 items of SDI, which included, inter alia, alternate assessments with questions presented ij a particular manner, choice of order for completing academic tasks, study guides for tests! at least four days in advance of the test,

requiring only as many questions as needed to de' onstrate mastery, presentation of a starter

sound to engage memory, not requiring H.G. to an ~wer certain types of questions, and limiting the number of items presented on a page. 46

The District's proposed 2012 IEP, based ufon the 2011 reevaluation results, generally includes reading goals for decoding, identifying co/ncepts of print and deriving meaning from text (comprehension) and for identifying narrative~l.:lements, as well as an additional language arts goal for writing sentences using weekly sp mng words; 47 math goals, which include

demonstrating a basic understanding of the relatiohship between numbers and quantities and 46

Decision ,42; S-1 20, 21, 30-34. 47

Decision ,43; S-33 22-25. 19

telling time on analog and digital clocks to the ho~ and half hour; and behavior goals which

include those for self-advocacy and remaining on +skin the classroom with a reduced level of re-direction prompts, as well as a positive behavior support plan, speech/language and

occupational therapy goals. 49 The 2012 IEP also c~anged the level of H.G.'s learning support services from itinerant 50 to supplemental 51 and proJlded for the replacement of reading/language

arts and math instruction in a special education sett~f g, with inclusion in grade level science and social studies classes. It reduces, by 25 percent, H.d.'s time in the regular education setting from 81 percent of the school day to 56 percent. 52

a. Meaningful Educational . enefit (Objection 6)

In IDEIA matters, an IEP need not maximize the potential of a disabled student but, rather, must provide "meaningful" access to eduction and, after consideration of the child's potential, confer "some educational benefit" upon ~he child for whom it is designed. N.E., 172 F.3d at 247 (citing Rowley, 458 U.S. at 200, 202) (flejecting a bright-line rule on the amount of benefit required of an appropriate IEP in favor of an approach requiring a student-by-student analysis that carefully considers the student's individual abilities)). The IDEIA "calls for more than a trivial educational benefit." Polk v. Cent. sLquehanna Intermediate Unit 16, 853 F.2d I 71, 182 (3d Cir. 1988). When students display c1nsiderable intellectual potential, the IDEIA requires "a great deal more than a negligible [benefit ". Id. 53 48 Decision ,44; S-33 26, 27. 49 Decision ,45; S-33 28-34, 46-50. 50 Special education supports and services provided by s 'ecial education personnel for 20 percent or less of the school day. S-33 40. 51 Special education supports and services provided by special education personnel for more than 20 r:ercent of the school day but less than 80 percent of the school day. S-33 40. 2 Decision ,46; S-33 40, 41. I 53 The Court in Polk referred to the IDEIA's predecessor, the EHA. 20

Plaintiff objects to the Magistrate Judge's mding and the Hearing Officer's conclusion

that the 2012 IEP provided H.G. with a FAPE. Prtiff contends that the proposed 2012 IEP

contains certain goals that H.G. had already maJered, thus, depriving H.G. of meaningful

educational benefit (Objection 6). However, Plainti] f provides no legal authority, nor could this

Court find any, to support the contention that an IE does not confer any meaningful educational

1 benefit if some of its goals are overly basic. Nevertreless, as noted by the Magistrate Judge, the Hearing Officer had ample evidence upon which to find the proposed 2012 IEP was not too basic and did, in fact, afford H.G. a meaningful educatitnal benefit. This conclusion was based, in part, on H.G. 's demonstrated potential reflected in t~e 2011 reevaluation results, which revealed that H.G.'s intellectual potential would be best serv] d by the District's proposed 2012 IEP. The

reevaluation included reports from H.G.'s teachers lwho reinforced that H.G. has a low level of basic academic skill in reading and mathematics, limited ability to apply acquired skills consistently, and a significant need for direct, systeLatic instruction at a modified pace; reading test results which revealed that H.G. Jacked "basit.i decoding, sight word and comprehension strategies, and [became] frustrated at the pre-pri1er level;" and a report from H.G.'s math specialist that concluded that H.G. tested at apprximately the first or second grade level. Additionally, despite H.G. exhibiting relative strengths in vocabulary, the District's speech

pathologist reported that H.G. had difficulty applying vocabulary skills. Prior to the 2011 reevaluation, H.G.'s teachers had requested curriculL materials at the pre-kindergarten or first grade level. 54 I

To refute some of the reevaluation results, ,1aintiff references the testimonies of Parent and Dr. Barenbaum, who opined that several enumeited goals in the 2012 IEP are too easy and, therefore, deprive H.G. of meaningful educational be, efits. However, this argument is faulty as it 54

R & R 23-24

is contradicted, in part, by one of Plaintiffs own wi nesses, Ms. Walters, who testified that H.G.

comprehends texts that they read together at a third ,lrade level, that H.G.'s decoding skills are at

a second g~ade level, 55 and that H.G.'s progress doe not comport with the goals in the 2009 IEP

(H.G.'s fourth grade). Although Parent might believ f that H.G. already mastered certain goals, as

suggested by Ms. Waters, this may not be the case. I

The appropriateness of an IBP is a question ,rfact. D.S., 602 F.3d at 564. Based upon the totality of the administrative record, this Court finds that the District's proposed IEP was reasonably calculated to provide significant learninJ and to confer a meaningful, and more than

just a de minimis, educational benefit. See, e.g., NE., 172 F.3d at 247 (citing Polk, 853 F.2d at 182, 184, for the holding that the IDEIA "requirel a satisfactory IEP to provide 'significant learning' and confer 'meaningful benefit."'); see alL Rowley, 458 U.S. at 206-07 (finding that (1) if the state has complied with the procedures set forth in the act and (2) if the IEP is reasonably calculated to enable the child to receive educational benefits, the state has complied with the IDEIA and the courts can require no moreD. Therefore, the objection to the Magistrate Judge's determination and the Hearing Officer's fiJding that the District has complied with the obligations imposed by the IDEIA in proposing ~e 2012 IEP, is without merit. Plaintiffs Objection 6 is, thus, overruled.

b. Least Restrictive Environment ("LRE") Requirement (Objections 9, 15, 16)

Next, Plaintiff objects to the District not proLding H.G. a FAPE in the Least Restrictive Environment ("LRE"), or for not "mainstreaming" k.G. 56 Specifically, Plaintiff claims that the 55 Decision 'i[40; N.T. 1492. 56 To discourage educational segregation of children with disabilities from their nondisabled peers, the IDEIA's mainstreaming requirement provides, more spe9ifically: "(t]o the maximum extent appropriate, children with disabilities ... are educated with children wpo are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs 22 District did not accommodate H.G. in the general edration environment during the development of the 2012 IEP (Objection 9); improperly consider~d SDI in H.G.'s 2009 IEP (Objection 15);

' and concluded that H.G. cannot benefit from regular classroom education (Objection 16).

The concept of LRE is "one that, to the grteltest extent possible, satisfactorily educates disabled children together with children who are n 't disabled, in the same school the disabled child would attend if the child were not disabled." ~.H, 336 F.3d at 265 (quoting Scott P., 62 F.3d at 535). Undoubtedly, a central goal of the rnf IA is that every child receives a FAPE. 20 U.S.C. §1400(d)(l)(A); Lebron, 769 F.Supp.2d at 7, 7. Thus, courts measure whether the FAPE

1 requirement is met by assessing whether a child's IEP is "reasonably calculated to enable the child to receive 'meaningful educational benefi /s' in light of the student's 'intellectual potential.'" P.S., 381 F.3d at 198 (quoting Polk, 85~ F.2d at 181); see also Rowley, 458 U.S. at 189. As discussed, to be satisfactory, an "IEP mult provide 'significant learning' and confer 'meaningful benefit."' T.R. v. Kingwood Twp. Bd bt Educ., 205 F.3d 572, 577 (3d Cir. 2000) (q~oting Polk, ~.2d

853. at 182, 84) .. Addition~lly, r. expl~ation

IEP must provide an when a child does not participate with nondisabled children: m the regular classroom settmg. 20 U.S.C.

' § 1414(d)(l)(A)(i)(V).

The statutory presumption that children should be taught with their nondisabled peers can seem at odds with the IDEIA's goal of providing L appropriate program for a child's unique needs. Lebron, 769 F.Supp.2d at 799; Oberti, 995 ~.2d at 1214. The Court in Oberti observed that the "key to resolving this tension appears to li1: in the school's proper use of 'supplemental aids and services' ... which may enable the scho,bl to educate a child with disabilities for a only when the nature or severity of the disability of a c~bd is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(S)(A). 23 majority of the time within a regular classroom, IJile at the same time addressing that child's unique educational needs." Oberti, 995 F.2d at 121~.

Acknowledging that the IDEIA leaves ed)ational policy decisions to the state, Oberti adopted a two-part test to assess compliance with t le statutory LRE requirement. First, the court supplementary aids and services taking into accoj t several factors: (1) whether the school district has ~a<le reasonable efforts to accommodlte the child in a regular classroom; (2) the educational benefits available to the child in a regut class, with appropriate supplementary aids and services, as compared to the benefits providt in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of other students in the class. Hannah L. v. Downingtown Area Sch. Dist., bo14 WL 3709980, at *4, slip op. (E.D. Pa. Jul. 25, 2014) (citing Oberti, 995 F.2d at 1217J8). Second, if the court determines that a segregated classroom setting is appropriate for the disabled child, and "placement outside of a regular education is necessary for the child's educational benefit," the court must also determine whether the school is mainstreaming the child to th, maximum extent possible. Oberti, 995 F.2d

i! at l 215 (citing Daniel R.R. v. State Bd ofEduc., 87 F .2d 103 6, 1048 (5th Cir. 1989)).

The IDEIA's mainstreaming requirement, halever, does not demand that a child remain in a regular education classroom if doing so would ~eopardize the student's ability to achieve a meaningful educational benefit. Greenwood v. Wisshhickon Sch. Dist., 571 F.Supp.2d 654, 663 (E.D. Pa. 2008). Thus, inclusion with non-disabled ltudents is not appropriate when, even with the use of supplementary aids and services, it pr1ludes a disabled child from obtaining an educational benefit. See 20 U.S.C. §1412(a)(5)(A). ,urther, when a school has "given no serious consideration to including the child in a regular clas with such supplementary aids and services

1 24

and to modifying the regular curriculum to acco modate the child, then it has most likely

violated the IDEIA's mainstreaming directive." lberti, 995 F.2d at 1216. However, before

applying the Oberti two-prong analysis, it must.firs~ be determined whether the proposed IEP is

satisfactory, i.e., provides access to meaning:rJl educational benefit, which cannot be

"bootstrapped" with the LRE requirement. See S.~, 336 F.3d at 272 ("The School District cannot bootstrap the meaningful educational ben1rt with the LRE requirement."); see also Ridgewood, 172 F.3d at 249 ("The 'IDEA requires tpat disabled students be educated in the least restrictive appropriate environment."') (emphasis i lrriginal). Here, as previously discussed, this Court has found that the District's proposed 2012 I Ii is appropriate and provides H.G. access to meaningful educational benefits.

Consistent with the first prong of the Oberti analysis, this Court must determine whether the District made reasonable efforts to accommoda e H.G. with the use of supplementary aids and services. The modifications and supplemental kids and services used in the 2009 IEP are

described in the 37 items of the SDI. According tot ~e author of the 2012 IEP, the team discussed the modifications and supplemental aids and servic,es offered in the 2009 IEP, which of these were effective, and which of the modifications anA supplemental aids and services should be

removed in the proposed 2012 IEP. 57 Clearly, consideration of the effectiveness of the SDI in the 2009 IEP, an IEP that had been determined to be ap ropriate and with which Parent agreed, was

I I

proper in deciding which SDI to include in the prop :sed 2012 IEP. While the discussion resulted

1 in a reduced number of SDI interventions, the 12012 IEP maintained many of the same interventions from the 2009 IEP, e.g., cloze sentence questions, curriculum modifications, rephrasing, visual clues, graphic organizers, study '. uides, and "chunking" of materials to help 57

N.T. 865:3-15

H.G. understand content. 58 Additionally, the Feb ary 12, 2012 notes of the IEP team meeting

reveal that accommodations were provided, albeit, tey were not successful; for example: H.G.'s

math teacher attempted to use strategies provided by Parent, without success, but noted H.G.'s

strengths with manipulatives;" and H.G.'s lang~age arts teacher noted some success with

spelling but even with the use of scribing and ins~·.I ction with the reading specialist and one-toone aide, H.G. experienced difficulties writing and leading in the general classroom. 60 Based on

the totality of relevant evidence, the Magistrate Jud ·e correctly found that the District considered and undertook adequate steps to mainstream H.G. in the general education classes during the

development of the 2012 IEP. Therefore, Plaintiffs bjections 15 and 9 are overruled.

Plaintiff objects to the Magistrate Judge 's endorsement of the Hearing Officer's conclusion that H.G. cannot benefit from being edLated in the general education environment (Objection 16). Under the second factor in the fut prong of the Oberti analysis, a court must determine the educational benefits available to t~e child in a general education class, with appropriate supplementary aids and services, as coLpared to the benefits provided in a special

education class. Oberti, 995 F.2d at 1216. Such a determination requires heavy reliance on the testimony of educational experts and special attentit to the unique benefits the child may obtain from integration in a regular classroom which cann9t be achieved in a segregated environment, i.e., the development of social and communication stlls from interaction with nondisabled peers.

! Id.

The Hearing Officer determined that H.G. las not benefitted from regular education as far as H.G.'s potential in math and language arts. I This determination was based, in part, on H.G.'s standardized test scores, H.G.'s heightened anxiety in academic performance, and 58 See S-11 35. 59

S-39 6-7

60 Id. at 8-9. 26

comments from H.G.'s instructors that H.G. requir~s direct, modified instruction; to wit: H.G.'s

math teacher reported that H.G. continued to struggle with the most basic concepts in math class

I I

and H.G. would frequently become frustrated and nr' ed to leave the room; and H.G.'s language

arts teacher noted that H.G. would hold his books upside down and take scribbled notes to feel

like a part of the class but failed to make acad,ic or social gains in the regular education classroom. 62 Even Plaintiff's own witnesses unders1ore how H.G. would benefit in a segregated setting - Dr. Barenbaum testified that H.G. wout do better in a smaller, more supportive classroom environment than in a general educaticm classroom, 63 and Ms. Walters described

64 H.G. 's ability to succeed in academic tasks with indridualized, one-to-one instruction.

The third factor in the first prong of the Oberti analysis requires consideration of the possible negative effects of mainstreaming H.G. 011 the other students in the regular classroom. Id. at 1217. As examples of the possible negative eiffects, H. G.' s language arts teacher reported H.G. as being loud and disruptive with escalating blhaviors, such as calling out and flapping his

hands, which also caused H.G. to suffer socially.'1 The social studies teacher noted that H.G. would repeatedly call out for attention when excited, with "little understanding that others are

either asking questions or waiting for responses."') Moreover, while it was reported that H.G. appears to enjoy being around non-disabled peers and attempts to model behavior after them, 67 H.G.'s behavior in the academic setting demonstraJes that a "small structured environment," as suggested by Dr. Barenbaum, would be conducivj, to H.G. as well as to H.G.'s non-disabled

peers. In fact, Dr. Barenbaum suggested that "[a] 11 ger classroom or a regular classroom with 61

S-45 44

62 Id. 63

Decision ~39. 64

Id. at ~41. 65

S-45 43

66 Id. at 44. 67 Id. 27

special education support (inclusion) is not !commended as an appropriate learning

environment . . . because it places unnecessary de!J1ands on an already compromised learning

system." 68 As a final comment, this Court notJ that the only people present during Dr.

Barenbaum's evaluation of H.G. were Dr. Barentum and Parent. The fact that H.G. scored higher academically outside of a regular classroom lnvironment does not correlate with Parent's desire, or the realistic possibility, of mainstreaming r.G. the extent Parent suggests.

The second prong of the Oberti analysis rjbuires consideration of whether the District has mainstreamed H.G. to the maximum extent pJsible in the proposed 2012 IEP. Id. at 1218. Here, in the proposed 2012 IEP, the District det~rmined that H.G. could obtain meaningful educational benefit by being mainstreamed in soci~l studies and science (with the provision of supplementary aids and services), lunch, electivt, and recess. H.G. would be in special education for language arts and math. Thus, whilJ the 2012 IEP reduced the amount of time spent in the general education classroom, it did lot completely eliminate it; rather, the IEP provides for 56 percent of the school day in the regjlar classroom. 69 As supported by the record,

11 the Hearing Officer's decision, recommended by tf e Magistrate Judge to be upheld, properly

1 concluded that H.G. cannot benefit from being educated entirely in a general education environment. The District's determination of thel amount of mainstreaming for H.G. was appropriately made with sound judgment, with dir~ct input from H.G.'s instructors, and based upon the results of its appropriate reevaluation of HJIG. This Court finds that the factors outlined

in Oberti were aptly considered by the District and, t erefore, overrules Plaintiffs Objection 16.

P-11 16-17

S-33 40, 41

Plaintiff's Rehabilitatio~

Act ("RA") and

Americans with Disabilities Act ("ADA") Claims (Objections 12, 13)

Plaintiff claims that the Magistrate Judge iLproperly invoked the IDEIA's exhaustion requirement when refusing to consider evidence of le District's failure to implement SDI in the

2009 IEP and in H.G.'s sixth grade (2011-2012), /an alleged failure that underlies Plaintiffs ADA and RA claims (Objections 12, 13). Specitally, Plaintiff asserts that the District (I) violated §504 of the RA in attempting to exclude rG. from certain general education classes due to H.G. 's disability, denying H.G. the benefit1 of those programs and activities, and (2) violated the ADA when it failed to provide H.G. wJh effective supplementary aids and services, such as Assistive Technology and, thus, depriver H.G. of an equal opportunity to public education. In essence, Plaintiff disagrees with the Magistrate Judge's determination that Plaintiff raised the RA and ADA claims for the first time oA appeal and objects to the recommendation that this Court dismiss the RA and ADA claims for lack of subject matter jurisdiction, as unexhausted claims, not presented at the administrative level.

Generally, exhaustion is necessary for an IJEIA claim. See 20 U.S.C. §1415(f); Colon, 443 F.Supp.2d at 668. Courts have further held tJat to the extent a party seeks relief that is available under the IDEIA, the Act's administriive remedies must be exhausted. R.R v. Manheim Twp. Sch. Dist., 412 F.App'x 544, f-50 (3d Cir. 2011) ("[F]or an ADA or Rehabilitation Act damages claim to survive the exl:Iaustion doctrine, it must be based on a set of circumstances for which IDEIA does not provide JI

contemplate a remedy."); Hesling v. Havon Grove Sch. Dist., 2010 WL 2649909, at *2 (E.D: Pa. Jun. 30 2010) (finding exhaustion of

administrative remedies required for ADA and §50i claims where relief is "available under the IDEIA") (internal citation omitted). Exhaustion, however, may be excused where recourse to the administrative proceedings would be futile or inadlquate, the issue presented is purely a legal 29 question, or the administrative agency cannot gr , t the requested relief. Komninos v. Upper

Saddle River Bd of Educ., 13 F.3d 775, 778 (3d Cir. 1994). None of the exceptions to the exhaustion requirement apply here.

To support the contention that exhaustion is/ not required, Plaintiff cites to Derrick F v.

Red Lion Area Sch. Dist., 586 F.Supp.2d 282, (M. 11. Pa. 2008), which holds that exhaustion of administrative remedies would be futile where a st /dent with disabilities does not challenge the substance of his IEP but rather its implementatio1 by the school district. Id. at 294-295. As discussed, however, the central issues before the H~aring Officer involved the appropriateness,

! not the implementation, of the proposed 2012 IEP. Thus, Derrick F. is distinguishable, and its holding inapplicable.

The question of whether the IDEIA's administrative process must be exhausted before bringing claims in federal court depends on whethf r the parties could have asserted the claims under the IDEIA. Intertwined with this inquiry is wfether the claim could have been remedied by the IDEIA's administrative process. Batchelor, 7f>9 F.3d at 273 (quotation marks omitted). Under §504 of the RA, the IDEIA administrative ~rocess offers relief for a denial of a FAPE because it relates to the educational impact ofl: the alleged discrimination. See MM v. Tredyffrin/Easttown Sch. Dist., 2006 WL 2561242, at *8 (E.D. Pa. Sept. 1, 2006) ("Plaintiffs' Section 504 claim is within the ambit of the IDEk administrative process because Plaintiffs

'~handicap, interfered with his education and assert that Defendants' discrimination, based on M. led to the denial of a FAPE."). Similarly, under ~e ADA, relief can be obtained through the IDEIA's administrative proceedings when a plaintiJ seeks general injunctive relief ordering the

. aux1·1·iary a1'ds and services.

. . to cons1'der appropriate schoo1 distnct 1 . see swope v. Cent. York Sch.

Dist., 796 F.Supp.2d 592, 600 (M.D. Pa. 2011) ("1fhe case law is clear that various forms of

30 equitable relief, including the issuance of a declaratory judgment, can be obtained through the IDEIA's administrative proceedings").

Therefore, because the relief requested byl way of Plaintiffs ADA and RA claims is available through the IDEIA's administrative proc ss, and because the issue before the Hearing Officer was the substance, i.e., the appropriateness/ and not the implementation of H.G.'s 2012 IEP, this Court agrees with the Magistrate Judge'sl conclusion that Plaintiff should have raised the ADA and RA claims at the administrative levJ Having failed to do so, Plaintiffs RA and ADA claims are not exhausted. Thus, Plaintiffjl Objection 12 is overruled. As previously

addressed (see "Least Restrictive Environment . equirement," supra at 21, 24), SDI was considered and provided to H.G. in the sixth grade ~der the 2012 IBP. No further discussion is needed. Plaintiffs Objection 13 is overruled.

c. Procedural Versus Substantive Violations (Objections 7, 8)

Plaintiff objects to the Magistrate Judge's clnclusion that the District's obligations to (1) develop appropriate goals for H.G. in the 2012 IEP :and (2) consider the supplementary aids and

services that could be provided to H.G. as an altem~tive to removal from the regular classroom, were procedural, not substantive, considerations uJder the IDEIA and, thus, did not invalidate the 2012 IBP (Objections 7 and 8). A procedural vitiation is actionable under the !DEJA only if it results in a loss of educational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of educJional benefits. MR., 680 F.3d at 274 (citing D.S., 602 F.3d at 565); Winkelman v. Parma Ci(Y Set- Dist., 550 U.S. 516, 525-26 (2007).

Under the implementing regulations, substantive harm occurs only if the preponderance of the evidence indicates that: j·

[T]he procedural inadequacies (i)[i]mpede • the child's right to a FAPE; (ii)

significantly impeded the parent's opportubity to participate in the decision- 31

making process regarding the provision off FAPE to the parent's child; or (iii)

caused a deprivation of the educational beneft. 34 C.F.R. §300.513(a)(2); C.H v. Cape Henlopen ,ch. Dist., 606 F.3d 59, 67 (3d Cir. 2010). In concluding that the IEP's failure to articulate adequle goals is a procedural defect not actionable

in this case, the Magistrate Judge cites to Coale v. State Dept. of Educ., 162 F.Supp.2d 316 (D. Del. 2001) ("Before an IEP is set aside, there just be some rational basis to believe that procedural inadequacies compromised the pupil's ri, ht to an appropriate education ... or caused a deprivation of educational benefits.") (quoting R !land M v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990) (citations omitted)). This Court remarks that the "procedural flaws" referenced in Coale, however, did not involve the content of an IEP but, rather, involved the

! court's inability to ascertain the date of the IEP in guestion and additional information that was not required, such as documentation of the state's plans for the disabled student's teachers to adapt concepts from the prior year's IEP to the current IEP, or a description of how the student was to use Assistive Technology to achieve his goJis. See Coale, 162 F.Supp.2d at 334. Hence, this Court opines that the Magistrate Judge's relianf on the holding in Coale is misplaced, for it is established that a challenge to the content of an rnP, in this instance H.G.'s goals, implicates the IDEIA's substantive requirements, not the proledural requirements. D.S., 602 F.3d at 565 (emphasis provided). Therefore, the Magistrate JudJf 's finding that the IEP's failure to articulate goals is a procedural defect was incorrect, and for t~l'·lis reason only, this Court sustains Plaintiffs Objection 7. This Court has concluded that the ;roposed 2012 IEP does provide access to

meaningful educational benefits to H.G. and was nroperly derived from the 2011 reevaluation results. Thus, the Magistrate Judge's error is harmlJs and does not alter this Court's findings.

Likewise, Plaintiff argues that the 2012 IEP rls because the District neglected to discuss Assistive Technology as a means of accommodating H.G. in the regular classroom and, 32

therefore, objects to the Magistrate Judge's conclrion that the District's obligation here was

merely procedural and not substantive (Objection,~. As stated, a challenge to the content of an

IEP, which includes a challenge to whether a stude '.t needs Assistive Technology devices and/or

services, implicates the IDEIA's substantive, not ] rocedural, requirements. D.S., 602 F.3d at

565. Based on the same reasoning that this Co I sustains Plaintiffs Objection 7, Plaintiffs

Objection 8 is also sustained.

Notwithstanding, although the District misrkenly believed that it was not required to

perform an Assistive Technology assessment fo~ H.G., the District did complete such an

assessment in January and February 2013. This as'essment resulted in an Assistive Technology

Team Action Plan that identified several interventions and the individuals who would implement them, applied as of March 2013 n Even though th~ District incorrectly categorized its failure to consider Assistive Technology a procedural rather lhan substantive obligation, this confusion is of no consequence and does not affect this Court's :fl,nding.

Additional Evidence (Objectiols 2, 3, 4, 5, 10, 14, 17)

The remaining objections pertain to the coJtention that the Magistrate Judge refused to admit the entirety of Plaintiffs supplemental evidjnce offered after the close of administrative

1 proceedings, purportedly to enable the court to dete ine whether H.G. is presently receiving an appropriate education.

As stated, the IDEIA allows for "additional evidence at the request of a party." 20 U.S.C.

§ 1415(i)(2)(c)(ii). However, the admissibility of additional evidence in an IDEIA judicial review proceeding is left to the discretion of the trial co,l LK. ex rel. B.K. v. Sch. Dist. of Haverford Twp., 961 F.Supp.2d 674, 692 (E.D. Pa. 2013) (quot~ng D.K., 696 F.3d at 253; Susan N., 70 F.3d

I I

! 70

Decision (Order) 29. 71

R & R 29 n. 22. 33

at 760). A court must consider the party's reqrest to admit additional evidence and not

summarily reject it, Susan N, 70 F.3d at 760, and i~.should not automatically disallow testimony

from all who did, or could have, testified at the ad]ljinistrative hearing. Id. at 759-60. Further, in

rejecting an automatic rule that would disallow s bplemental testimony from all who already

testified at an administrative hearing, the Third CiLuit encourages unfettered truth-seeking by

erring on the side of evidentiary inclusion. lK, 96': F.Supp.2d at 693 (citing Myers v. Cnty. of

Orange, 157 F.3d 66, 75 (2d Cir. 1998)).

Conversely, a court may not grant carte bl,rhe to a party to introduce evidence that was not offered at the administrative hearing and, thus, 11ender the administrative proceedings a mere formality, which would thwart the notion of coopJative federalism enshrined by the IDEIA. 72 Instead, the Third Circuit has charged courts witJ evaluating whether the proffered evidence would assist the court and is relevant, non-cumllative, and useful in determining whether Congress' goal has been reached for the c~l~ involfd. Antoine M v. Chester Upland Sch Dist., 420 F.Supp.2d 396, 402 (E.D. Pa. 2006) (c1tmg Susan N, 70 F.3d at 760); see, e.g., Robert B. v.

West Chester Area Sch. Dist., 2005 WL 2396968, at *9-10 (E.D. Pa. 2005) (disallowing proffered testimony that would repeat earlier testi I ony and would offer no additional insight

1 into the "reasonableness of the school district's orig nal decision") (quoting Susan N, 70 F.3d at

762); Alex K v. Wissahickon Sch. Dist., 2004 WL ,86871, at *7 (E.D. Pa. Feb. 12, 2014) (two witnesses were excluded because they would repeat administrative hearing testimony, three new

! 72 The resolution of disputes under the IDEIA, among 'other things, involves levels of both state and federal review. 20 U.S.C. §1415; Antoine M v. Chester Upland Sch. Dist., 420 F.Supp.2d 396, 402 n. 9 (E.D. Pa. 2006). 34 witnesses excluded because testimony would not a sist court in determining whether the school

73 district met its legal obligations). '

Further, the court should ensure that the aamission of the additional evidence will be consistent with the "general framework of deferencr to state decision-makers that is dictated by the IDEIA." Susan N., 70 F.3d at 758. In doing so, a court must look at the evidence or testimony proffered in the context of the case. Each analyJl should be individualized to the particular circumstances before the court. Antoine M, 420 F.sllJpp.2d at 402. The appropriateness of an IEP

should be assessed as of the time it was made, anr after-acquired evidence about how a child actually fared subsequent to a school district's act~on "may be considered only with respect to the reasonableness of the district's decision at th~ time it was made." D.S., 602 F.3d at 565 (quoting Susan N., 70 F.3d at 762 (emphasis in orig~nal)).

Additionally, the court must assess the larty's justification for not proffering the

evidence at the administrative hearing, Susan N., 70 F.3d at 760, and ensure that the party is not attempting to "leapfrog the agency proceedings." ~ntoine M, 420 F.Supp.2d at 403 (citation omitted). A non-exhaustive list of factors that a cor may take into account when making this determination includes: (1) the existence of a proceiural bar which prevented the introduction of the proffered evidence below, such as a limitations period or a restriction on the number of

witnesses; 74 whether the evidence was deliberately withheld at the administrative level for

Notably, under Section 505 of the Administrative ~gency Law, 2 Pa. C.S. §505, administrative 73 agencies are not bound by the technical rules of evi ence, and all relevant evidence of reasonably probative value may be received. Where the record rev~als the evidence sought to be introduced is not reasonably probative; the evidence may be excluded. D.t·. v. Bethlehem Area Sch. Dist., 2 A.3d 742, 750

1 (Pa. Cmwlth. 2010) (citing News-Chronicle Co. v. Pa. Human Relations Comm 'n, 672 A.2d 500 (Pa. Cmwlth. 1996)). 74 See Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 901-02 (7th Cir. 1996) (because party presented no evidence of procedural infirmities at the ~dministrative level, district court did not abuse discretion in prohibiting the introduction of additional evidence). 35 strategic reasons; 75 whether the introduction of the dditional evidence at the district court level

would be prejudicial to the other party, i.e., if the dditional evidence would interfere with the adverse party's ability to rebut it; and the potential impact on the administration of justice, i.e.,

whether the party seeks to introduce a new theory der which it will be entitled to relief.

Guided by the above standards, this Court elaluates Plaintiff's Objection to the propriety of the Magistrate Judge's recommendations with!/ spect to the Plaintiffs proffered additional evidence. 76 In the R & R, the Magistrate Judge acce /ted the post-administrative hearing evidence

1 that was considered relevant if it shed light on the r asonableness of the District's decision at the time it recommended the proposed 2012 IEP, not thether the placement presently suits H.G. 77 Thus, the Magistrate Judge recommended that Jfs Court admit and consider the following exhibits, and concluded that these exhibits were relrant and provided additional insight into the District's thought process regarding H.G. 's needs and capabilities over time, and were minimally probative as to the reasonableness of the District's Jroposed 2012 placement: 78

• Exhibit 5, in part (October 25, 2012 email iroduced by the District; those portions only

pertaining to the Assistive Technology Ass:essment conducted in January and February

2013 and the resulting March 2013 Assi~tive Technology Plan, consistent with the

Hearing Officer's decision).

• Exhibit 9 (notes from the March 13, 2013 IEP meeting, ordered by the Hearing Officer).

• Exhibit 10 (the resulting March 13, 2013 IEP for H.G.'s seventh grade school year

(2012-2013)).

• Exhibit 19 (February 19, 2014 draft IEP). 75 See Roland M v. Concord Sch Comm., 910 F.2d 983, 1998 (1st Cir. 1990) (district court should exclude evidence that party purposely chose not to present at the ~dministrative level).

The Magistrate Judge recommended that this Cour~] reject the District's proffered expert report by 76 Catherine A. Fiorello, Ph.D., N.C.S.P., A.B.P.P., w~ich purports to review the correctness of the District's 2011 reevaluation and 2012 IEP without justircation as to its submission beyond the close of the administrative proceedings. The District issued no objection to the Magistrate Judge's recommendation; therefore, this Court will not address Jhether an error was committed in its exclusion. 77 R & R 41n.24. 78 Id. at 43. 36

• Exhibit 22 (March 25, 2014 Notice if Recommended Educational Placement

("NOREP")). j

The Magistrate Judge further recommendeq that the remaining exhibits be excluded as

either irrelevant or cumulative of the IDEIA rec rd. This Court agrees with the Magistrate

Judge's recommendations (1) since appropriateness of the 2012 IEP is a central issue and (2) the excluded evidence was irrelevant and cumulative. iNo evidentiary error was committed by the

Magistrate Judge, as discussed below.

Plaintiff also seeks to admit evidence of H.11 's progress in general education classes with supplementary aids and services; in particular, ~tursework from H.G.'s seventh and eighth grades (2012-2013, 2013-2014, respectively) whichri urport to show that with SDI, H.G. receives meaningful educational benefit in general educatio classes. Plaintiff objects to the Magistrate

j Judge's recommendation to exclude this evidence cbbjections 4, 14), as well as evidence of the District's continual failure to consider the full rjge of supplementary aids and services and make reasonable efforts to support H.G. in regular Jasses (Objection 10).

The Magistrate Judge found that H.G.'s coJfl ework produced under the 2009 IEP, which includes coursework done contemporaneously with lthe 2009 IBP and completed six years later under the same 2009 IEP, is inadmissible and not llevant to show whether the proposed 2012 IEP is appropriate and in compliance with the ID Ell Even if admissible, the evidence does not favor Plaintiff since portions of the administrative rel· ord reveal that, even with accommodations, H.G. continues to perform poorly in the general ed :cation classroom. 79 This Court agrees with

1 the Magistrate Judge's legally sound reasoning and finds that the recommendation to exclude this evidence is appropriate. Therefore, Plaintiffs oJjections 4 and 14 are overruled. 79

R & R 47 n. 2; see also supra at 24. 37

In addition, Plaintiffs contention that the. Magistrate Judge refused to address the

District's continuing failure to consider the full ran je of supplementary aids and services and to

make reasonable efforts to support H.G. in regular ,/lasses (Objection 10), is also without merit.

A central issue on appeal is whether the proposed 21'2 IBP is appropriate; thus, consideration of the District's purported continuing failure to considJ accommodations for H.G. beyond the 2012 IEP, especially when H. G. 's current educational pr j gram is being implemented under the 2009

IEP, is immaterial. Therefore, Plaintiffs Objection lb is overruled.

Plaintiff next argues that evidence of H.G.Js progress reports from the seventh grade (2012-2013) are relevant to show that H.G. benefits rm being in general education classes, and objects to the exclusion of the evidence which incl .des daily progress logs and an IEP progress report, as irrelevant and cumulative (Objection s) The District argues that the IEP Progress Report for 2013, in particular, is irrelevant because ft refers to H.G. 's goals under the 2009 IBP. In addition to finding that the record supports the fact that H.G. could not benefit from being in general education classes for the entire school day, /the Magistrate Judge further concluded that

evidence of H.G.'s progress is relevant only to shol educational benefit gained in an alternative placement; whereas here, H.G. has remained in the same school district pursuant to the 2009 IBP. See Susan N., 70 F.3d at 762 ("Evidence oft child's progress - or lack thereof - in an alternative placement may be relevant to the courtl's determination whether a school district's IEP was appropriate at the time it was drafted.") (e phasis provided). Plaintiffs Objection 5 is overruled. I

Plaintiff also objects to the Magistrate Ju ge's refusal to admit the additional expert report of Julie Causton, Ph.D. (Objection 3). 80 Dr. dauston submitted a report on April 25, 2014,

80 Plaintiff objects to the Magistrate Judge declining to admit additional expert reports, but Plaintiff addresses only Dr. Causton's report in support of the objJction. 38

based on her one-day general education classroom o servation ofH.G. In her report, Dr. Causton

concluded that there was no justifiable reason tb move H.G. from the general education

81 D c II

environment • •

to a more restnct1ve •

settmg. r. aµston had not testl"fi1ed at t he admm1stratlve

. . .

proceedings and Plaintiff provides no justification Jo offer this untimely expert report. Instead,

Plaintiff argues that the Antoine M factors compel Jhis Court to admit Dr. Causton's report and

that the District could have requested a hearing to ross-examine her testimony and offset any

prejudice. Notwithstanding, the Magistrate Judge po!inted out that Dr. Causton's conclusions and

1 recommendations, having been made in 2014, do lt properly reflect consideration of whether

1 the District's 2012 IEP is appropriate and, thus, deer:ed the report irrelevant. This Court agrees, and overrules Plaintiffs Objection 3. i

Lastly, Plaintiff objects to the exclusion of other additional evidence offered (Objection 17): Exhibits 1, 2, 4, 7, 13, and 19. As toExh~bit 19, the admission of this exhibit was recommended. As to Exhibits 1 and 2, these are ~ffidavits of Plaintiffs counsel and Parent, respectively, the former not being viewed as suppletental evidence by the Magistrate Judge, and the latter only supporting Plaintiffs views on wliy other proffered evidence is relevant and

admissible. Exhibit 4 was deemed irrelevant by the Magistrate Judge because a summary of SDI

f~ in the 2009 IEP does not shed light on the District'l decisions with regard to H.G.'s educational placement in the proposed 2012 IEP. Exhibits 7 Walters, offered to show that H.G. 's reading level

d 13 are reading summary reports by Ms.

far beyond the low level of the goals in the District's proposed IEP. The Magistrate Judge found, however, that this issue was already before the Hearing Officer by way of Ms. Walters' Januaryl;2012 reading report and her November 2012 testimony in the due process hearings and was, theJfore, cumulative. This Court agrees with the evidentiary evaluation and reasons offered and, t /erefore, overrules Plaintiffs Objection 17.

See Exhibit 20. [ECF 27-5]. 39

Further, based upon this Court's agreement, with the Magistrate Judge's evidentiary

recommendations, Plaintiff's Objection 2is overru~ed.

Finally, this Court is mindful that H.G. is clrrently subject to the 2009 IEP (implemented

during H.G.'s fourth grade), 82 in accordance 1th 20 U.S.C. §1415GJ, which, during the

pendency of these proceedings requires H.G. to remain in the 2009 IEP. It is now the year 2015

and H.G. is in ninth grade. Possibly, the particular l~ervices H.G. requires today may not be what were appropriately identified in the 2012 IBP. Thetfore, in addition to upholding the findings of the Hearing Officer and consistent with this Mtmorandwn Opinion, this Court directs the immediate implementation of the 2012 IEP, and rrther directs the parties to convene an IEP team meeting as soon as possible to review the 2112 IEP goals and SDI, including appropriate Assistive Technology, and taking into consideration H.G. 's present levels of educational and functional performance and needs, to establish apprtpriate goals in an updated IEP. CONCLUSION

For the reasons set forth herein, this Court finds that Plaintiff has not shown, by a preponderance of the evidence, that the District's 2b11 reevaluation and proposed 2012 IEP are inappropriate or violate the IDEIA. Consequently, :Plaintiff's Objections are overruled, in part, consistent with this Memorandum Opinion, ! d the Magistrate Judge's Report and Recommendation, including the recommendation m de as to the ancillary issue of the admission

I I

of additional evidence, is approved and adopted. Ac' ordingly, Plaintiff's motion for judgment on the administrative record is denied, and Defendant' motion for judgment on the administrative record is granted. An appropriate Order follows. NITZA I. QUINONES ALEJANDRO, U.S.D.C. J. 82

Decision ~42. 40

H.G. v. Upper Dublin School District