A. H. v. Colonial School District ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2698
_____________
A. H., by and through her Parent, K. P.,
Appellants
v.
COLONIAL SCHOOL DISTRICT
_____________
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-16-cv-00726
District Judge: The Honorable Richard G. Andrews
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 24, 2019
Before: SMITH, Chief Judge, CHAGARES, and GREENAWAY, JR.,
Circuit Judges
(Filed: July 10, 2019)
_____________________
OPINION*
_____________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.
A.H., a minor student (Student), by and through K.P, her parent (Parent),
initiated this civil action pursuant to the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400 et seq. Parent challenged the refusal of the Colonial
School District (Colonial) to provide, at public expense, an Independent Educational
Evaluation (IEE). After the District Court ruled in favor of Colonial, this timely
appeal followed.1 For the reasons set forth below, we will affirm the judgment of
the District Court.
I.
Student started kindergarten in 2011 at Colonial. By the fall of 2014, Student
was repeating second grade. In mid-September, an Evaluation Summary Report
(ESR) was prepared to determine whether Student had a disability under the IDEA
and if so, her educational needs. The ESR set out:
1. information from Parent regarding Student’s family life;
2. classroom behavior and performance;
3. teacher observations;
4. an occupational therapy assessment addressing Student’s visual perceptual
skills, fine motor skills, visual motor skills, and educational needs related to
school-based occupational therapy; and
1
The District Court had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C.
§ 1415(i)(2). We have final order jurisdiction under 28 U.S.C. § 1291.
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5. the assessment by school psychologist, Emily Klein, based on not only
interviews with Student, Parent, teacher, and her own observation, but also a
review of Student’s record and several assessment tests.2
Ms. Klein’s report acknowledged that Student’s cognitive ability and academic skills
were a concern and that her emotional/behavioral needs, which included disruptive
and atypical behaviors, affected her classroom functioning. The ESR team
concluded that Student had an Emotional Disturbance, which qualified as a
disability. The ESR discussed the focus on Student’s emotional and behavioral
difficulties, and acknowledged that although Student displayed some aspects
consistent with an Autism Spectrum Disorder, the team believed that classifying
Student with an Emotional Disturbance was the most appropriate determination at
that time given her history of trauma and abuse. After completing the ESR, the team
prepared an Individualized Education Program (IEP).
Student advanced to third grade in the fall of 2015. Documentation on
October 1, 2015, noted that Student’s behavior was problematic with outbursts and
conduct that created safety concerns for Student and others present. Two weeks
later, Student’s behavior was again disruptive and she used a threatening gesture that
was accompanied by an oral statement of her intent to kill those present. Student
2
The tests included the Stanford-Binet Intelligence Scales, 5th Edition (SB-V); the
Kaufman Test of Educational Achievement, 2nd edition (KTEA-II); the Behavior
Assessment Scale for Children – 2nd Edition (BASC-2); and the Gilliam Asperger’s
Disorder Scale (GADS).
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was admitted to the Terry Children’s Psychiatric Center and diagnosed with a mood
disorder and attention deficit hyperactivity disorder; psychiatric medication was
prescribed. After a week, Student was discharged. Arrangements were made for
homebound instruction. Student’s placement later changed to Southern Elementary
School Intensive Learning Center.
Thereafter, Parent advised Colonial that she disagreed with the September
2014 ESR and requested that the school pay for an IEE assessing Student in the
following areas: neuropsychological assessment, occupational therapy, psychiatric
assessment, and a functional behavior assessment. Colonial denied the request. In
early February 2016, Colonial requested a due process hearing before a Delaware
Due Process Hearing Panel. Colonial continued to update its evaluations and
assessment of Student’s abilities.
At the April 2016 Due Process Hearing, several witnesses appeared for
Colonial and Psychologist Kara Schmidt testified on behalf of Parent. Dr. Schmidt
opined that the September 2014 ESR was “incomplete” and that additional testing
should have been performed. On May 23, 2016, the Hearing Panel concluded that
Colonial’s evaluation was appropriate and that the IEE testing requested by Parent
at the public’s expense was not required.
Parent then initiated this civil action in the District Court, seeking payment by
Colonial of the expense of an IEE. A few months later, Dr. Schmidt performed a
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neuropsychological evaluation and made multiple recommendations. Although
Parent sought to supplement the administrative record with Dr. Schmidt’s
neuropsychological evaluation, the District Court denied the request. Thereafter, the
District Court denied Parent’s Motion for Judgment on the Administrative Record
and affirmed the Hearing Panel’s order denying the request for payment of the IEE.
Even though the Administrative Record had not been supplemented with
Dr. Schmidt’s report, the District Court referred to Dr. Schmidt’s report in its
analysis, noting that consideration of the report would not have affected its ruling.
Parent appealed, presenting two issues for review. First, she contends that the
District Court erred by denying the motion to supplement the record with Dr.
Schmidt’s report. Second, she asserts that District Court erred in upholding the
Hearing Panel’s decision.
II.
We review a district court’s order denying a motion to supplement the
Administrative Record for abuse of discretion. Susan N. v. Wilson Sch. Dist., 70
F.3d 751, 760 (3d Cir. 1995). In deciding whether to allow supplementation, a
district court “must 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 for the child involved.” Id.
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We conclude that the District Court did not abuse its discretion in denying the
request to supplement the Administrative Record with Dr. Schmidt’s report. The
Court acknowledged that the report had some relevance even though it had been
conducted more than two years after the September 2014 ESR. Yet the report was
cumulative of Dr. Schmidt’s testimony before the Hearing Panel and would bolster
that testimony by elaborating upon it. As a result, the District Court reasoned that
the admission of Dr. Schmidt’s report would be prejudicial because Colonial would
not be able to rebut its substance. The District Court’s reasoning is sound, and we
conclude that the District Court did not abuse its discretion by denying
supplementation.
III.
We also reject Parent’s contention that the District Court erred in upholding
the Hearing Panel’s decision not to require Colonial to pay for the requested IEE. In
the IDEA context, “[w]e review a district court’s findings of fact for clear error, but
we exercise plenary review over the legal standards that a district court applies and
over its legal conclusions.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d
Cir. 2010).
Under the IDEA, states are required to provide children with disabilities a
“free appropriate public education,” which meets the needs of each individual
student. 20 U.S.C. § 1412(a); Id. § 1400(d)(1)(A). To that end, school districts must
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conduct an evaluation of a child with a disability and determine that child’s
educational needs by developing an IEP. See id. § 1414(a)(1)(A), (d)(2)(A); Holmes
v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000). The objective is “to
confer some educational benefit upon the handicapped child.” Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982).
Parents of a disabled child are entitled to participate in the process used to
develop the plan for the child. 20 U.S.C. § 1415(b)(1). If a parent disagrees with an
evaluation completed by the school, “[a] parent has the right to an IEE at public
expense.” P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 740
(3d Cir. 2009). But where a parent requests an IEE at public expense, a school
district can, as Colonial did in this instance, request a due process “hearing to show
that its evaluation is appropriate.” 34 C.F.R. § 300.502(b)(2)(i). If the school district
successfully proves that its own evaluation was appropriate, a parent is not entitled
to an IEE at public expense. 34 C.F.R. § 300.502(b)(3); see also Holmes, 205 F.3d
at 590–91. Whether Colonial’s evaluation was “appropriate is a question of fact.”
D.S., 602 F.3d at 564.
In this case, the District Court refused to set aside the Hearing Panel’s decision
that Colonial’s evaluation of Student was appropriate and that Colonial did not have
to bear the expense of the IEE. It considered the IDEA’s requirements for
conducting educational evaluations and concluded that Colonial’s September 2014
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ESR complied with those requirements. The Court noted that a variety of tools and
strategies had been employed in evaluating Student, which were “technically sound
instruments.” 20 U.S.C. § 1414(b)(2)(A), (C). In the Court’s view, although the
Hearing Panel had improperly relied upon Student’s educational progress and the
absence of a timely request for the IEE, Colonial had appropriately considered all of
Student’s assessments and did not rest its decision on a single criterion. See id.
§ 1414(b)(2)(B). The District Court carefully discussed the record evidence
regarding the four areas of the IEE requested and explained why the Hearing Panel
permissibly concluded that additional testing was not necessary.
Parent contends the District Court erred because, despite refusing to
supplement the record with Dr. Schmidt’s report, the Court relied upon it in reaching
its conclusion. The District Court cited to the report in a footnote, noting only that
even if the Court had admitted the report, its contents would not have changed the
Court’s determination as to the appropriateness of Colonial’s ESR and whether
Student was entitled to an IEE at public expense. Although Parent asserts this was
unfair, we are not persuaded. Mindful of the significance of its decision, the Court
took the extra step of reconsidering whether Dr. Schmidt’s report would have made
a difference had it been admitted as a supplement to the record. This thoughtful
analysis provided information to Parent regarding the merits of the dispute in the
event the order denying supplementation was later overturned on appeal.
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Parent also argues that the District Court erred in upholding the Hearing
Panel’s credibility finding as to Dr. Schmidt’s testimony. A credibility
determination by a Hearing Panel is “due special weight” unless there is “non-
testimonial, extrinsic evidence in the record [that] would justify a contrary
conclusion.” D.S., 602 F.3d at 564 (quoting Shore Reg’l High Sch. Bd. of Educ. v.
P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). The Hearing Panel accorded
due weight to Colonial’s ESR, which was based on multiple assessments, as well as
observations of Student and interviews with her Parent and teachers. The Panel
highlighted the decision to classify Student with an Emotional Disturbance, which
entitled her to special education services to address her behaviors. The Hearing
Panel was well aware that additional testing could have been completed, see 5A; its
focus, however, was on whether the ESR was appropriate for Student given both the
behavior she was exhibiting and her Emotional Disturbance classification, which
includes some behaviors consistent with an autism diagnosis. The focus was not,
nor should it have been, on whether the ESR explored all facets of Student’s
disabilities.
Consistent with this focus, the Hearing Panel discounted Dr. Schmidt’s
testimony regarding the additional testing she believed was warranted, pointing out
that she had neither met nor observed Student, was not aware of Student’s programs
in her current placement, and was not familiar with the most recent data collected
9
for Student. We conclude these were legitimate grounds for finding Dr. Schmidt’s
testimony not fully credible.
Parent further argues that Dr. Schmidt’s testimony was presented to address
the inadequacy of Colonial’s ESR, not Student’s status. As such, Parent submits
that Dr. Schmidt’s acquaintance with Student and familiarity with her programming
was an improper basis for discrediting Dr. Schmidt’s opinion that additional testing
should be conducted. The Hearing Panel’s focus on Student’s ESR and its
responsiveness to Student’s demonstrated behaviors—and Colonial’s superior
knowledge of that demonstrated behavior—was a permissible basis for discounting
Dr. Schmidt’s testimony that additional testing was warranted. See Holmes, 205
F.3d at 592 (“In addition, we find persuasive the School District’s argument that
their staff in some ways was better-qualified than the WPSD’s staff to evaluate
Rebecca. For instance, the School District’s staff were familiar with the curriculum
at Belle Valley and with Rebecca and the progress she was making.”).
Finally, Parent contends the District Court improperly accepted Colonial’s
explanation that it did not obtain a psychiatric evaluation because one had been done
by the Terry Children’s Psychiatric Center. Parent asserts there is no support in the
record that any psychiatric evaluation was actually performed. We disagree. The
Intake Services Higher Level of Care Referral form dated October 19, 2015 indicates
that Student was being treated on an inpatient basis at Terry Children’s Psychiatric
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Center and had been treated at some point around 2013-2014 by a psychiatrist. And
Parent consented to the release by the Center to Colonial of the admission and
discharge summaries, as well as the psychological and psychiatric evaluations. The
Terry Children’s Psychiatric Center Discharge Summary documented that a
psychiatric evaluation had been completed and a Transfer Instruction Sheet set out
Student’s diagnoses and psychiatric medications.
IV.
For the reasons set forth above, we will affirm the judgment of the District
Court. We grant the motion to seal Volume III of the Appendix.
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