November 2023:
The MLO Minute: “MLO Obtains Significant Win in Federal Court”
By Michael Connolly, Esq., Supervising Partner of The Special Education Department, and Jacqueline Lembeck, Esq., Lead Wyomissing, Pa Special Education Attorney —
On July 27, 2023, McAndrews, Mehalick, Connolly, Hulse and Ryan P.C. (MLO) obtained a significant federal court victory on behalf of a client in Upper Darby School District v. K.W. The case involved a student with autism, who had a history of social-emotional, behavioral, and academic needs. During the 2019–2020 school year, the District placed K.W., through the IEP process, in an Approved Private School (“APS”), where throughout the year he engaged in significant and frequent behaviors. An Independent Educational Evaluation (“IEE”) was obtained that school year as well, and recommended, among a multitude of other behavioral and academic supports, the completion of a Functional Behavioral Assessment (“FBA”), and the development of an individualized Positive Behavior Support Plan (“PBSP”), neither of which were completed by the District or private school.
The following 2020-2021 school year, K.W.’s placement was changed, again through the IEP process, to another private school. The new private placements failed to consider the recently obtained IEE, did not conduct an FBA or develop a PBSP, removed all behavior goals from K.W.’s IEP, and failed to include appropriate, individualized behavior supports. Instead, the private school relied upon a classroom-wide behavior plan. Although formal behavior data taken by the private school that year is limited due to the failure to include behavioral goals, the evidence presented at hearing showed that K.W. continued to engage in significant and frequent behaviors.
A second IEE was completed at the beginning of the following 2021-2022 school year, which again, among a variety of other behavioral and academic supports, recommended the completion of an FBA and development of a PBSP. Despite the parent providing the District and private school with a copy of the IEE, it was not considered by either the District or private school and K.W.’s behaviors intensified. The private school then removed K.W. from its program outside of the IEP process with little notice. The District initially recommended yet another private school identified without any parent involvement, which the family disputed. The District and family ultimately reached an interim agreement to explore other placement options and to provide K.W. with in-home instruction from a private autism provider program pending a new placement. However, these services were inconsistent and only lasted a short time. The parents filed for a due process hearing, which resulted in a decision that the district provided FAPE to K.W. for the two years at issue except for the months after the cessation of the private tutoring services. The hearing officer ordered compensatory education for that period.
On appeal, the court reversed the Hearing Officer to the extent she denied relief to the student and awarded full days of compensatory education for the full two years. Not only is the decision helpful in how it addresses the importance of conducting FBAs and developing individualized PBSPs, the court also rejected many arguments often made by school districts. Specifically, the court squarely reversed the Hearing Officer on holding the lack of behavior data against the family, acknowledging that it was the District’s responsibility to take the data in the first place. The court also put emphasis on the conclusions from independent evaluators and did not use the usual rhetoric that the District need only consider the IEE results, and did not credit the School District’s arguments relating to the parent’s behavior.
While we note that the School District has appealed the decision to the Third Circuit Court of Appeals, we will vigorously defend the decision, as we believe that the lower court’s well-reasoned and comprehensive decision is grounded in established law and should be affirmed.
