                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-2887
                                    ____________

                       M. Z., A MINOR BY HIS PARENT AND
                         NATURAL GUARDIAN, D.Z; D.Z,

                                           v.

                     BETHLEHEM AREA SCHOOL DISTRICT,
                                           Appellant
                              ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 5-11-cv-02313)
                      District Judge: Honorable Juan R. Sánchez
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 8, 2013

              Before: RENDELL, FISHER and JORDAN, Circuit Judges.

                                (Filed: March 27, 2013 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Bethlehem Area School District appeals from the District Court’s order that the

School District fund an independent educational evaluation under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. For the reasons stated

below, we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       M.Z., a 17-year-old student in the School District, has been diagnosed with

disabilities and found eligible for special education services, including speech and

occupational therapy. He also receives gifted services and has earned high grades. Mid-

way through M.Z.’s eighth grade year, the School District reevaluated him for the

purpose of updating his Individualized Education Plan (IEP) as prescribed by the IDEA,

20 U.S.C. § 1414(a)(2); 34 C.F.R. § 300.303, and determined that M.Z. no longer

required disability services in order to receive a free and appropriate public education.

       M.Z.’s parent objected, arguing that the reevaluation did not utilize the methods

necessary to properly assess M.Z.’s needs. This objection gave the School District two

options under the IDEA: fund an independent evaluation or request a due process

hearing in order to defend the appropriateness of its evaluation. See 34 C.F.R. § 300.502.

The School District chose to proceed with a hearing, which took place in August and

September 2010.




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       The Hearing Officer ordered the School District to update the reevaluation report

to include classroom observations and input from M.Z.’s teachers and parent in order to

determine how the transition from middle to high school had impacted M.Z. The Hearing

Officer also decided that an independent evaluation at public expense was not required.

Both parties sought judgment on the administrative record from the District Court, which

concluded that the Hearing Officer had committed legal error when she declined to order

a publicly-funded independent educational evaluation despite her conclusion that the

School District’s report was inappropriate. See id. This appeal followed.

                                            II.

       The District Court had jurisdiction to review the decision of the Hearing Officer

under 20 U.S.C. § 1415(i)(2). We have jurisdiction over this appeal under 28 U.S.C.

§ 1291. “When considering an appeal from a state administrative decision under the

IDEA, district courts apply a nontraditional standard of review, sometimes referred to as

modified de novo review,” giving “due weight and deference to the findings in the

administrative proceedings.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir.

2010) (internal citations omitted) (internal quotation marks omitted). “Factual findings

from the administrative proceedings are to be considered prima facie correct, and if the

reviewing court does not adhere to those findings, it is obliged to explain why.” Id.

(citations and quotation marks omitted). “We review a district court’s findings of fact for




                                             3
clear error, but we exercise plenary review over the legal standards that a district court

applies and over its legal conclusions.” Id.

                                               III.

       School districts must reevaluate students with disabilities who are eligible for

services under the IDEA at least once every three years, unless the parent and local

education agency both conclude that reevaluation is unnecessary. 20 U.S.C.

§ 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303. If a parent disagrees with the reevaluation

report, the school district must fund an independent educational evaluation unless it files

a due process claim and successfully demonstrates that its evaluation was “appropriate.”

34 C.F.R. § 300.502. Here, the parties disagreed about whether the Hearing Officer had

actually concluded that M.Z.’s evaluation was appropriate. The District Court held that

the Hearing Officer had correctly found the evaluation inappropriate and that, as a result,

the Hearing Officer should have ordered a publicly-funded independent educational

evaluation.

                                               A.

       We consider first whether the District Court committed clear error in finding that

the Hearing Officer had correctly determined that the School District’s reevaluation of

M.Z. was inappropriate under the IDEA. Whether the evaluation was appropriate is a

question of fact. D.S., 602 F.3d at 564.




                                                4
       First, the School District argues that a finding in M.Z.’s favor would constitute an

overturning of the Hearing Officer’s factual conclusions because the Hearing Officer had

found the report to be appropriate. As the District Court explained, the Hearing Officer’s

discussion, including the statement that the “evaluation cannot be used as an appropriate

basis for determining whether [M.Z.] is currently IDEA eligible,” clearly indicates a

finding of inappropriateness.

       Alternatively, the School District argues that, if the Hearing Officer did in fact

find the reevaluation inappropriate, that finding was incorrect and should not have been

affirmed by the District Court, even under the highly deferential standard of review it was

obligated to apply. The School District contends that M.Z.’s evaluation was appropriate

because it complied with applicable state and federal laws. The evaluation, according to

the School District, was completed within the required time period and was based on the

necessary variety of diagnostic tools. See 20 U.S.C. § 1414(a)(2); 34 C.F.R. §§ 300.303,

300.304, 300.305.

       The record makes clear that the evaluation’s chosen tools and strategies were not

“sufficiently comprehensive” and did not satisfy the requirement to “provide relevant

information that directly assists persons in determining the educational needs of the child

are provided.” 34 C.F.R. § 300.304. The Hearing Officer found that the most important

factor in determining M.Z.’s progress in acquiring pragmatic language skills was how

well he was able to apply those skills in peer settings on a daily basis. The Hearing


                                              5
Officer also found that the data collected on this factor was “anecdotal” and “not

specifically directed toward reporting on Student’s IEP goals” – evidence that the

methods used were inadequate to properly assess M.Z.’s progress. Furthermore, as the

Hearing Officer determined, the assessment tools used did not provide relevant

information needed to make a prospective determination of future eligibility for services

in light of M.Z.’s transition to a new setting, given that M.Z.’s ability to apply pragmatic

language skills had been shown to vary based on differences in the classroom

environment.1 The District Court did not, therefore, commit clear error in affirming the

Hearing Officer’s finding that the reevaluation was not appropriate.

                                             B.

       Once the Hearing Officer determined that the reevaluation was inappropriate,

M.Z. was entitled to an independent educational evaluation at public expense as a matter

of law. See 34 C.F.R. § 300.502. The Hearing Officer attempted to fashion other relief,

opining that the inappropriateness of the report could be rectified by supplemental

       1
        The School District argues that it could not possibly have provided this kind of
assessment at the time of its evaluation because the relevant transition had not yet
occurred, and it could not wait until fall 2010 to employ additional tools because the
School District was “legally mandated to issue a new [reevaluation report] in March
2010.” Although federal regulations apply the 60-day timeline only to initial evaluations,
Pennsylvania regulations extend this deadline to reevaluations. See 22 Pa. Code
§ 14.124. As we will explain, the Hearing Officer lacked the authority to require
amendments to the evaluation to be conducted during the following school year.
Nonetheless, we conclude that the School District failed to employ assessment strategies
during the mandated time period that would have provided needed relevant information
about M.Z.’s educational needs.


                                              6
information. Because § 300.502 provides mandatory relief, the District Court properly

reversed the Hearing Officer and ordered a publicly financed independent evaluation.2

                                              C.

       The School District argues that the District Court abused its discretion when it

declined to admit additional evidence in the form of an updated report created in

accordance with the Hearing Officer’s determination. A district court may, at its

discretion, exclude new evidence that is not “relevant, non-cumulative and useful.”

Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). As discussed in Part

III.B, the Hearing Officer had no authority to order additional information gathering as a

remedy. See 34 C.F.R. § 300.502. The District Court did not, therefore, abuse its

discretion in concluding that reports created in response to that order were irrelevant to

the question of whether the Hearing Officer should have, upon finding the reevaluation

inappropriate, ordered an independent educational evaluation at public expense.

                                             IV.

       For the foregoing reasons, we will affirm the order of the District Court.



       2
          The School District also contends, without citation to authority, that the District
Court’s order worked “manifest injustice” because M.Z. was academically successful
during his ninth grade year. This argument is illogical, given that his success may be in
part attributed to the services he received, and legally insignificant. The IDEA requires
services to be “reasonably calculated” to help students obtain “meaningful educational
benefits” in light of their “intellectual potential” – even when that potential is great. See
Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004).


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