T.M. v. Quakertown Community School District

Citations: 251 F. Supp. 3d 792; 2017 WL 1406581; 2017 U.S. Dist. LEXIS 60187Docket: CIVIL ACTION NO. 16-3915

Court: District Court, E.D. Pennsylvania; April 19, 2017; Federal District Court

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In the case concerning T.M., a child with disabilities under the Individuals with Disabilities Education Act (IDEA), there is a dispute between his parents and the Quakertown Community School District regarding the adequacy of his educational program. The parents argue that the school district failed to properly evaluate T.M.’s abilities, leading to an inappropriate educational program that does not meet his disability-related needs, particularly in relation to an Applied Behavior Analysis/Verbal Behavior (ABA/VB) approach. They assert that T.M. has not made meaningful progress due to these shortcomings. Conversely, the school district maintains that it has developed and implemented an individualized education program (IEP) tailored to T.M.’s unique needs, allowing him to make reasonable progress. 

The court reviewed the administrative record and found that the hearing officer correctly determined that the district had appropriately assessed T.M.’s intellectual potential and needs, and that its educational curriculum was effective. Consequently, the court denied the parents' motion for summary judgment and granted the school district's motion. T.M., an eleven-year-old diagnosed with autism, global apraxia, and an intellectual disability, has been receiving special education services since kindergarten, supported by a team that includes various specialists and his parents. In May 2014, the IEP team developed a new IEP for T.M. that outlined goals and strategies based on his progress. Reports indicated T.M. made improvements in several areas, including math and speech, although subsequent evaluations showed he remained in the below-average range in various cognitive assessments. 

In January 2015, behavioral analyst Amy McGinnis assessed T.M.'s verbal behavior and sensory processing, recommending a comprehensive revision of T.M.'s IEP, which she found lacking in detail for measuring progress. She proposed twenty hours of direct, one-on-one ABA programming each week, which the IEP team discussed but ultimately rejected while incorporating some of her goals related to verbal behavior. The team decided to reevaluate T.M.'s progress later. In September 2015, the parents filed for a due process hearing, alleging the district did not comply with the IDEA for the 2014-2015 and 2015-2016 school years. The hearing officer concluded after a four-day hearing that the district provided T.M. with a free appropriate public education (FAPE) in compliance with IDEA, Section 504, and the ADA, finding the district's staff more credible than McGinnis and affirming that T.M. had opportunities for meaningful educational progress. On appeal, the parents claimed the district failed to deliver appropriate ABA instruction, citing inadequate assessment tools and supervision. The district countered that the evidence showed T.M. made meaningful progress and that McGinnis's recommendations were subjective. Both parties agreed on the necessity of an ABA program requiring extensive repetition and practice, but disagreed on its appropriateness and implementation. The district court's review of the hearing officer's decision follows a "modified de novo" standard, giving due weight to administrative findings and not substituting the court's educational policy judgments for those of the school authorities. The court must defer to the expertise of educational professionals and the credibility determinations made by the agency unless contradicted by substantial evidence.

The IDEA mandates that states provide disabled children with a "free appropriate public education," requiring instruction that is specially designed to address each child's unique needs through an Individualized Education Program (IEP). The IEP must prepare the child for further education, employment, and independent living. While the state is not obligated to maximize a child's potential, it must confer a "meaningful benefit," which should be substantial rather than minimal. A tailored IEP is essential for achieving this benefit, functioning as a roadmap for the child's educational progress, and must be calculated to enable appropriate progress based on individual circumstances.

The IEP process involves collaboration between parents and school officials, ensuring that the child's individual circumstances are carefully considered. It should be developed after evaluating the child's current achievements, disabilities, and growth potential, and must outline special education services, related services, and program modifications to help achieve the set goals. Regular monitoring of progress through reports to parents and the IEP team is crucial for maintaining the appropriateness of the IEP.

School districts are not required to provide specific programs or methodologies requested by parents, nor are they obligated to offer the best possible education or equal opportunities to disabled children compared to their non-disabled peers. The parents argue that the IEP for T.M. did not provide a meaningful educational benefit due to inadequate identification and evaluation of T.M.’s needs and insufficient implementation supervision. They challenge both the evaluation process and the execution of the IEP. Each of their contentions will be addressed individually.

Identification of a child's intellectual potential is essential in the IEP process, requiring school districts to assess aptitude and achievement through appropriate evaluation tools. The parents of T.M. argue that the district inadequately identified his skill deficits, claiming he lacked opportunities to enhance his speech, behavior, sensory awareness, and daily living skills, ultimately failing to recognize his intellectual potential. They further assert that the district's evaluations do not present a comprehensive picture of T.M.'s abilities, which hinders the development of an effective IEP.

Central to their arguments is the assertion that the district did not utilize the Verbal Behavior Milestone Assessment and Placement Protocol (VB-MAPP), an assessment deemed suitable for autistic children. The parents believe that the assessments performed by their evaluator, McGinnis, holistically measure T.M.'s academic, social, verbal abilities, and daily living skills, which are crucial for creating an effective IEP. 

In addressing these claims, the IEP team did consider the VB-MAPP assessments for the 2015-2016 IEP but did not fully adopt them due to the assessment’s focus on younger children and its limited applicability to fifth graders' functional skills. The district’s behavior analyst noted that the VB-MAPP is intended for assessing verbal behavior skills typical of children from birth to four years. The parents counter that T.M.'s skill level aligns more closely with that of a younger child, making the VB-MAPP relevant. 

However, the IDEA does not mandate the use of specific evaluation methods, allowing the district to employ alternative assessment tools. The hearing officer found the assessments used by the district to be objective and appropriate. Notably, the Functional Skills Assessment, administered by T.M.’s speech and language pathologist, was determined to be more suitable for his age and evaluated various aspects of his verbal communication skills, such as social language usage and expression of needs and emotions.

The evaluation of T.M. included assessments of his ability to describe objects, communicate safety information, follow complex directions, and apologize for mistakes, among other skills. The district employed various tools beyond the Functional Skills Assessment, including the Goldman Fristoe Test of Articulation 2 for speech articulation, the Peabody Picture Vocabulary Test 4 for vocabulary and pronunciation, and the Kaufman Test of Educational Achievement for reading skills. These assessments were chosen to address intellectual potential areas identified in T.M.’s Individualized Education Program (IEP).

The district also reviewed T.M.’s IEP goals, gathered input from his special education teacher and parents, and considered the school psychologist’s observations. The hearing officer found the district's approach, which utilized multiple measurement tools, to be proper in evaluating T.M.’s academic and verbal abilities. 

Concerns raised by T.M.'s parents regarding the lack of focus on activities of daily living and sensory awareness were addressed, as the district’s occupational therapist worked with T.M. on essential routines and skills. The 2014-2015 IEP highlighted T.M.’s need for support in handwriting and compliance with directives, recommending biweekly occupational therapy sessions to improve fine motor skills.

A subsequent School Function Assessment (SFA) identified cognitive and behavioral areas needing more assistance. The hearing officer concluded that the district's evaluations were sufficient and comprehensive, effectively capturing T.M.’s academic potential and special education needs. 

Regarding the dispute over the implementation of ABA programming, the parents argued for a strict ABA approach, claiming the district's educational program lacked adherence to established ABA principles, which they believed deprived T.M. of a free appropriate public education. However, the hearing officer sided with the district, affirming that their ABA-based educational programming was appropriate without needing strict compliance.

The hearing officer determined that the district's staff members were more credible than the parents' evaluator, Amy McGinnis, an occupational therapist and board-certified behavioral analyst without a four-year college degree or teaching experience in regular or special education. Although McGinnis was recognized as an expert in Applied Behavior Analysis (ABA) programming, her recommendations regarding T.M.'s reading, math, speech, and language were deemed outside her specialty due to her lack of experience with public school curricula. 

In contrast, the district's special education staff possessed extensive qualifications and experience. Their board-certified behavioral analyst had over ten years in public schools and advanced degrees in psychology, ABA, and educational leadership. The district psychologist had a decade of experience assessing children with disabilities, while the former and current Supervisors of Special Education held multiple degrees in relevant fields. Additionally, the program coordinator had been with the Bucks County Intermediate Unit since 2004 and was well-qualified in education and special education.

The hearing officer also noted the significant difference in observation time: the district staff observed T.M. for 1,440 hours over two years, while McGinnis only observed him for 16 hours on two days, during one of which substitutes taught. This limited exposure led the hearing officer to discount her critiques of the IEP's goals, as she lacked the necessary educational qualifications for such assessments.

Ultimately, the hearing officer found the district's special education staff more credible, and even if McGinnis’s testimony were given equal weight, the record supported the conclusion that T.M.'s ABA programming was implemented appropriately, facilitating meaningful educational progress. The IEP and reevaluation documentation indicated incremental progress in T.M.'s unique needs. The parents' claims regarding unreliable data and inconsistent program implementation were addressed, with the hearing officer asserting that the district's progress reports were valid indicators of T.M.'s development.

The parents criticized the reliability of the district's measurement techniques for T.M.’s problematic behavior, specifically regarding the frequency of behavior recording. A functional behavior assessment indicated T.M. exhibited problematic behavior to avoid tasks or due to feeling unwell, with observations conducted throughout the school day. The special education staff recorded behavior within five-minute intervals rather than at the exact occurrence time. The district contended that T.M. met his behavior goal, demonstrating problematic behavior only one percent of the time recorded. The parents argued for the use of shorter intervals, citing McGinnis's view that shorter measurements reduce skewed data risk. McGinnis noted a significant level of problematic behavior but conducted her observations over just two days, one of which involved substitute staff, which she admitted could have influenced T.M.'s behavior.

The district's special education staff justified their five-minute interval method, explaining that smaller intervals might exaggerate the targeted behavior and that their approach aligns with prevalent practices in the field. Implementing McGinnis's method would necessitate hiring an additional staff member solely for data collection, a practice typically limited to clinical settings, not public schools. The district's use of longer intervals did not undermine the Individualized Education Program (IEP)'s substantive adequacy, and their evaluation methods were deemed reliable. The hearing officer found no error in favoring the district's techniques, given the lack of evidence for the necessity of alternative methods.

In terms of program supervision and progress monitoring, the district's plan was established to maintain objectivity and uniformity. The 2014-2015 IEP detailed the behavior affecting T.M.’s learning, objective measurement forms for progress monitoring, and regular reporting to both special education staff and parents. These strategies were consistently applied into the 2015-2016 school year, with annual goals reflecting updated performance levels and continued progress monitoring protocols.

T.M.’s educational progress under the district’s plans was effectively supervised and aimed at reducing problematic behaviors while enhancing speech intelligibility, sensory motor skills, and daily living activities. The parents assert that T.M. did not make meaningful progress due to ineffective implementation of the district’s plan. However, the district developed Positive Behavior Support Plans tailored to T.M.’s specific needs, which included baseline frequency measurements of his problematic behavior and annual goals for coping mechanisms. One objective involved T.M. using a visual strategy card to select coping strategies when upset. The IEP outlined data collection at five-minute intervals and quarterly reports to the parents, as well as positive reinforcement strategies for when T.M. exhibited problematic behavior.

A 2014 reevaluation by the district’s behavioral analyst showed T.M. maintained success in behavior management. In the 2015-2016 IEP, despite reported minor increases in problematic behavior, additional proactive strategies were added. The parents requested the removal of the goal monitoring coping mechanisms, which led to a new focus on T.M. remaining calm when denied certain objects. Data was collected daily, and progress was reported quarterly.

The district modified its approach in response to minor setbacks, implementing new strategies rather than sticking to the previous IEP. The IDEA emphasizes deference to administrative expertise in handling such cases, and evidence supports that both IEPs were appropriate for T.M.’s behavioral challenges. The parents also contended that T.M. did not have enough opportunities to practice speech skills outside individual instruction, leading to difficulties in communication with unfamiliar listeners and a lack of progress in articulation.

In the 2015-2016 Individualized Education Program (IEP) for T.M., his parents express concerns about a regression in his speech abilities, specifically that he can no longer articulate the word "bathroom" as he could the previous year. They attribute this decline to changes in special education staff and reduced focus on speech practice. However, records indicate that T.M. was receiving targeted speech instruction as part of his daily programming, which included daily drills to enhance his articulation. He participated in speech sessions four times a week, with monthly consultations between his speech therapist and special education teacher. 

The IEPs included specific goals aimed at improving T.M.'s speech intelligibility and functional communication skills, with the 2014-2015 IEP establishing a goal for overall speech improvement through articulation drills, including baseline measurements and quarterly progress reports. T.M.'s short-term objective was to articulate self-advocacy statements in full sentences of at least ten words, measured against a baseline of one to four-word utterances.

The updated 2015-2016 IEP built on previous progress, emphasizing improvements in fluency and vowel sound production. It maintained the structure of baseline measurements, data collection, and progress reports, setting specific short-term objectives such as producing correct vowel sounds and using self-advocacy statements in 4-6 word sentences. The district’s special education programming is deemed reasonably calculated to provide significant educational benefits, with daily lesson plans tailored to T.M.'s learning style through repetition. Evaluations were employed to track progress in pronunciation and articulation, leading to adjustments in instruction based on his performance. The evidence supports the conclusion that the district's speech programming offers T.M. a meaningful educational benefit.

The hearing officer determined that T.M.'s speech-related instruction was effectively designed to facilitate meaningful progress. The school district monitored T.M.'s development in sensory motor skills and daily living activities, noting improvements in his handwriting. The 2015-2016 IEP highlighted T.M.’s advancements, such as better writing with boxes, and incorporated various strategies to further enhance his handwriting skills. Although using a weighted pencil was ineffective due to excessive pressure, the IEP included interventions like providing small objects during therapy to help manage his grip, recommending a mechanical pencil for improved pressure control, and utilizing a physical barrier for character shaping during occupational therapy sessions. The updated IEP also set modified annual goals for daily living skills, including promoting T.M.'s independence in handwashing. Evidence indicated the district's programming gave T.M. ample opportunities to improve his sensory motor skills, with incremental progress noted. 

The parents argued that T.M. does not benefit from peer interactions in either special or regular education, questioning the effectiveness of mainstreaming. Under the IDEA, school districts must educate children with disabilities alongside non-disabled peers to the maximum extent appropriate. This requires determining if the school has adequately mainstreamed the child, as mainstreaming aims to foster social and communication skills. The parents cited observations from the district’s behavior analyst regarding T.M.’s lack of peer interaction during recess, asserting that the district should have increased his time in isolated programming. They specifically requested the adoption of a recommendation for twenty hours per week of one-on-one ABA programming led by a personal care assistant.

The district's decision not to adopt the recommendation for one-on-one Applied Behavior Analysis (ABA) programming during T.M.'s school day was appropriate. Implementing such a program would necessitate significant changes to T.M.'s existing curriculum, which already includes opportunities for one-on-one instruction. McGinnis recommended that 60% of T.M.'s 6.5-hour school day be dedicated to ABA instruction but did not specify which elements of the current curriculum should be altered or eliminated. 

Despite the parents' suggestion to replace socialization opportunities, evidence showed T.M. was benefiting from regular interactions with both disabled and non-disabled peers, participating in daily social skills lessons, and making progress in social communication. His progress was documented in IEPs and reaffirmed by a 2014 reevaluation report, which noted improvements in his social behavior and skills such as initiating conversation and respecting boundaries.

The district did not categorically dismiss McGinnis’s recommendations; instead, the IEP team indicated a willingness to reconsider the implementation of one-on-one programming based on T.M.'s progress throughout the school year. Ultimately, the decision to not implement the full twenty hours of one-on-one ABA programming was justified given the lack of detail in McGinnis’s recommendation and T.M.'s ongoing progress in socialization.

The updated Individualized Education Program (IEP) for T.M. for the 2015-2016 school year incorporated many recommendations from a recent report, including annual goals and specially designed instruction. As T.M. progresses, the IEP team will consider further instructional needs. The hearing officer relied on the district's progress reports and evaluations, finding them reliable and indicative of T.M.'s meaningful incremental progress. The appropriateness of the IEPs was assessed based on the evidence available at the time they were developed, not retrospectively. The officer concluded that the district provided T.M. with a free appropriate public education, contradicting claims from McGinnis that T.M. did not make meaningful progress. Evidence, including McGinnis's own admissions of T.M.'s significant improvements in various skills, supported the officer's findings. The hearing officer favored the district's staff testimony over the parents' evaluator, noting that the district's data collection methods were reliable and comprehensive. T.M. demonstrated consistent progress, affirming that the IEPs were designed to facilitate meaningful educational benefits. The parents' claims of unlawful denial of a free appropriate public education under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are treated similarly, as both laws share analogous remedies and rights.

The district provided T.M. with a free appropriate public education (FAPE) in compliance with the Individuals with Disabilities Education Act (IDEA), thereby not violating Section 504 or the Americans with Disabilities Act (ADA). The hearing officer's decision is substantiated by evidence indicating that the Individualized Education Programs (IEPs) and related services were tailored to T.M.'s needs and facilitated appropriate progress. Consequently, the district's motion is granted, and the parents' motion is denied. 

T.M. has autism, characterized by challenges in social interaction, communication, and repetitive behaviors, while also experiencing global apraxia, affecting speech intelligibility. Each Pennsylvania school district is linked to an intermediate unit for educational support services. Various documents, including reevaluation reports and IEPs from 2014 to 2016, were referenced to assess the appropriateness of the educational provisions. Additionally, it was noted that ABA (Applied Behavior Analysis) methodologies were applied in T.M.’s education, although the consultant involved had limited public school experience. The hearing officer's decision and the evidence presented reinforce the conclusion that the district's educational approach was effective for T.M.'s unique circumstances.

Behavioral issues that impede T.M.'s learning include teeth-grinding, yelling, throwing objects, aggression, grunting, whining, flapping arms, and running away, as noted in various hearing transcripts and Individualized Education Programs (IEPs). The IDEA mandates that children with disabilities be educated alongside their non-disabled peers to the maximum extent possible, with separation only occurring when necessary due to the severity of the disability. Testimony from McGinnis indicated that programming could take place in various environments, without a specific location mandated. The hearings and reports referenced support the necessity for appropriate educational interventions tailored to T.M.'s needs. Multiple IEPs and reevaluation reports, including those from the 2014-2015 and 2015-2016 school years, outline the educational strategies and supports required. The hearings also emphasized the importance of considering the educational environment and the need for supplementary aids.