          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Downingtown Area School District, :
                          Petitioner :
                                     :
             v.                      : No. 1485 C.D. 2016
                                     : Submitted: February 10, 2017
K.D., individually and as parent and :
natural guardian of I.D.,            :
                          Respondent :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                               FILED: March 6, 2017


             Downingtown Area School District (School District) petitions for
review from the order of the Special Education Hearing Officer (Hearing Officer)
for the Pennsylvania Department of Education (Department), Office of Dispute
Resolution, finding the gifted math program and placement offered by the School
District to I.D. (Student) for the 2016-17 school year is not appropriate.


                                          I.
             The facts of this case as found by the Hearing Officer are as follows.
Student is currently enrolled in the fifth grade at Lionville Elementary (Lionville).
Student is both a “gifted student” as defined at 22 Pa. Code § 16.1, and a “child
with a disability” as defined at 20 U.S.C. § 1401(3). Student received an initial
Gifted Individualized Education Plan (GIEP)1 on June 7, 2013. During the 2013-
2014 school year, Student was enrolled in the second grade at Lionville and his
“gifted Math programming was delivered as enrichment through a combination of
one-on-one (1:1) instruction, independent worksheets, and computer-based
instruction.”       (Hearing Officer’s Finding of Fact (Finding) 9.)                 “During
independent gifted Math enrichment, [] Student would seek out peers to socialize
with,” and would “use the computer to play math games instead of advancing math
enrichment.” (Hearing Officer’s Finding 10.)


                These issues with Student’s gifted math programming as well as
Student’s overall needs prompted the School District and K.D., Student’s parent
(Parent), to revise Student’s GIEP. This was accomplished on December 5, 2014,
during Student’s third grade year. The GIEP team, including the School District
and Parent, agreed to move Student into the fourth grade math in a regular
education fourth grade math classroom at Lionville.


                At the time Student’s GIEP was revised, a special education
evaluation to determine Student’s eligibility under the Individuals with Disabilities
Education Act (IDEA)2 was pending. The School District completed its special
education evaluation of Student and provided an Evaluation Report (ER) on

       1
         “A GIEP is a written plan describing the education to be provided to a gifted student.
The initial GIEP must be based on and be responsive to the results of the evaluation and be
developed and implemented in accordance with this chapter.” 22 Pa. Code § 16.31(a).

       2
           20 U.S.C. §§ 1401-1487.




                                              2
January 23, 2015, determining that Student was a child with disabilities,
specifically attention deficit hyperactivity disorder (ADHD), occupational therapy
and speech/language impairment. The ER provided information about Student’s
giftedness as well and was used to draft an Individualized Education Program
(IEP) for Student offered on February 27, 2015.                The IEP included gifted
programming3 and called for grade-level acceleration in math in a regular
education classroom, consistent with Student’s revised GIEP.


              During the 2015-2016 school year, Student was enrolled in the fourth
grade at Lionville. Under his February 2015 IEP, he took fifth grade math in a
regular education fifth grade math classroom. Student received a new IEP on
February 22, 2016. He was doing well in fifth grade math at the time and his
gifted math programming was not changed.


              Throughout the 2015-2016 school year, Parent and the School District
participated in several conversations pertaining to Student’s potential math
programming for the following school year. Logistically, there was an issue as
Lionville only houses kindergarten through fifth grade, and Student would require
sixth grade level math. All sixth grade students within the School District attend
one school building that only houses sixth grade (Sixth Grade Center) and is
located a short drive from Lionville. On May 18, 2016, the School District offered
a Notice of Recommended Educational Placement (NOREP) proposing that for the

       3
        For students who are both gifted and eligible for special education, a single IEP is
developed and implemented to provide for students’ gifted and special education needs. 22 Pa.
Code § 16.7.




                                             3
2016-2017 year, Student receive “6th grade Math instruction with online
enrichment delivered in [Lionville] Elementary School.”           (Hearing Officer’s
Finding 17.) The computer math program the School District purchased for gifted
students is called Pearson.


             Parent rejected the NOREP and requested a due process hearing,
demanding Student receive sixth grade math provided in a regular math classroom
in the Sixth Grade Center. In the due process complaint, Parent states that the
School District should be required to transport Student from the Sixth Grade
Center back to Lionville after his math class and that Parent is willing to waive
Student’s right to instructional time missed due to travel. Parent argues that this is
a transportation issue only and that the School District is refusing to allow Student
to attend sixth grade math at the Sixth Grade Center for financial and convenience
reasons. Parent further argues that Student’s needs as outlined in his February 22,
2016 IEP cannot be met through the School District’s proposal because Student is
also a child with disabilities who learns through social interaction and does not do
well with online instruction, as evidenced during his third grade year. Further, the
Pearson computer program does not align with the School District’s sixth grade
math curriculum and does not allow for collaboration with peers and teachers.


                                         II.
             Before the Hearing Officer, Student testified that during third grade
prior to being advanced a year in math, he was taught math through a combination
of classroom, one-on-one and independent online instruction. With respect to
independent instruction in math, Student did not like that he could not talk to his



                                          4
friends or check with them if he had a wrong answer, he was sometimes bored with
the online content, and on several occasions, he asked to join the regular classroom
group. Once he was advanced a year in math, Student made new friends and liked
being in class with other students. If he had a choice between taking sixth grade
math at the Sixth Grade Center or learning math online, Student would choose to
go to the Sixth Grade Center. Student stated that he did not know if he would get
bored doing math on the computer if it was at the appropriate level, sixth grade
math.


            Parent testified that while Student was in third grade prior to being
advanced a year in math, he was receiving two pull-out sessions every six-day
cycle to try to meet his needs. Student was also able to participate in the School
District’s online program, Study Island, to receive math enrichment.         Parent
testified that Student learns best when he is with his peers rather than through
online or one-on-one instruction, and that he has difficulty with social skills. She
also testified that in the online Study Island program, Student played games and
completed modules he had already mastered and were not at the appropriate grade
level. Parent expressed concern that Student’s needs were not being met regarding
his math program and, thereafter, Student’s GIEP was revised and he was
advanced to fourth grade math. Parent testified that Student performed well taking
advanced math in a regular education classroom – he liked being with his peers, he
was accepted by others, and he performed well, scoring between 90 and 101
percent, with extra credit. However, Parent admitted that during Student’s third
grade year, he missed science and social studies classes in order to attend fourth
grade math. Student’s teachers recorded his missed lessons and he would sit in the



                                         5
back of the classroom and watch the recorded lessons on an iPad while the rest of
the class had reading intervention. The same occurred during Student’s fourth
grade year, except he watched the missed science and social studies lessons during
fourth grade math.


              Parent testified that the School District proposed several options for
the 2016-2017 school year, Student’s fifth grade year, including Student remaining
at Lionville and taking the Pearson computer-based sixth grade math program.4
Parent disagreed with the Pearson program option because she did not want
Student online by himself and needed to be with peers. Student previously had
difficulty with Rosetta Stone, a computer program the School District utilized for
foreign language, as well as Study Island. Parent also objected because Pearson is
a pre-packaged national program made to fit every state’s needs. Parent testified
that while Pearson may meet the Commonwealth’s basic standards, Student would




       4
         The other options proposed by the School District included Student remaining in fifth
grade math and taking enrichment; switching elementary schools so that he could be in a
building next to the Sixth Grade Center and taking sixth grade math at the Sixth Grade Center;
skipping fifth grade completely; or remaining at his current elementary school and taking sixth
grade math at the Sixth Grade Center if Parent provided transportation and waived Student’s
right to missed instructional time caused by travel between the schools. Regarding
transportation, Parent testified that according to MapQuest, Student’s current elementary school
was 3.2 miles from the Sixth Grade Center. Parent disagreed with the option of Student
changing elementary schools because he has problems with transition, he had been at his
elementary school for four years, and he would have to learn the routines and rules of a new
school and make new friends.




                                               6
not be receiving the same curriculum as his peers in the general education
classroom at the Sixth Grade Center.5


               Shelda Perry, principal of Lionville (Principal), testified that Study
Island is a computer-based learning program that all Lionville students in second
through fifth grade participate in. During Student’s third grade year, there was an
issue with many students throughout the school utilizing the program’s game mode
rather than completing modules, and they immediately worked to fix this issue.


               Principal testified that Student has made progress in his peer relations.
During the 2015-2016 school year, Principal did not see Student for any peer
disagreements or any kind of conflicts, and every meeting she attended that year
regarding Student was very positive. Principal admitted there was no sixth grade
regular education math class at Lionville.


               The area of concern Principal has consistently had with Student is
how he does with transitions, stating “[w]hen we can reduce the amount of
transitions, he really does thrive.” (July 20, 2016 Hearing Transcript at 150.)
Considering the options for the 2016-2017 school year, Principal believes the best
thing for Student and the option that would reduce the amount of transitions the
most would be for Student to remain at Lionville for his whole day and take the
Pearson online sixth grade math program. Principal also believes Pearson is the

       5
          Parent also testified that according to each school’s schedule, fifth grade math class at
Lionville was allotted 75 minutes and sixth grade math class at the Sixth Grade Center was
allotted 48 minutes.




                                                7
appropriate option for Student because he will be able to move at his own pace,
will not have to compromise in any other parts of his educational day, and will not
have to make up lessons in other subjects.


             Deborah Alberici (Ms. Alberici), the gifted support teacher at
Lionville, testified that during third grade before he was accelerated in math,
Student was in her classroom for gifted enrichment activities with other students
that built on the skills they previously learned in the regular education classroom.
Student also had one-on-one instruction with Ms. Alberici, independent
assignments, and enrichment materials he would sometimes complete in his regular
third grade math classroom. Ms. Alberici testified that Student did well when he
was accelerated into both fourth and fifth grade math, and he did not have any
social problems or problems with other students while in her classroom. When
asked if anything had changed with Student that would make her think being in
sixth grade math in a regular education classroom for the 2016-2017 school year
would not be appropriate, Ms. Alberici testified:

             Between knowing [Student] from a 3rd grader to a 4th
             grader, yes, he’s made some great strides in all aspects,
             academically, emotionally, and socially. The support
             system that we have in place for him at Lionville
             Elementary seems to be a great fit for him, and having
             his math instruction delivered online would allow us to
             continue [Student] with successful behavior within our
             building. He has a lot of services that are currently being
             offered to him, and without disrupting those services, we
             should be able to keep him at our school as an
             appropriate fit for math.


(July 20, 2016 Hearing Transcript at 172-73.)

                                         8
             Carrie Dickmann (Ms. Dickmann), Supervisor of Special Education,
testified that the School District was recently placed into corrective action by the
Department for several deficiencies, including placing students in a program rather
than providing individualized gifted services. Because of this, Ms. Dickmann was
working on moving the School District away from just accelerating students
beyond their building and instead providing services that meet students’ individual
needs in the least restrictive way.


             Ms. Dickmann testified that the School District looked at providing an
online option for gifted services because they could bring instruction to students
where they already were, cutting down on transitions and lost instructional time for
students. Pearson was selected as the online provider because of the depth and
breadth of its offerings and the School District had seen the results it expected and
wanted. The School District did not recommend the option of Student taking sixth
grade math at the Sixth Grade Center with Parent transporting because of the loss
of instructional time this would entail for Student.


             Ms. Dickmann testified that Parent was not happy with any of the
options the School District proposed for the 2016-2017 school year. Instead,
Parent wanted to bring Student to the Sixth Grade Center every morning and have
the School District transport him back to Lionville after his math class. Again, the
School District was not comfortable with this option due to the loss of instructional
time it would entail. Ms. Dickmann testified that the entire team, except Parent,
agreed that Pearson was the best option for Student and would meet his gifted
needs best. Nothing in the Pearson program would inhibit his success as the



                                          9
program was individualized, self-pacing, and Student would be able to take
sensory breaks when needed. Through Pearson, Student would be provided with
his individually necessary sixth grade gap filling and then could advance to the
accelerated Pre-Algebra course. As such, Pearson delivered the same curriculum
provided to students in the Sixth Grade Center’s accelerated sixth grade math class,
just through a different methodology – online versus in a brick-and-mortar facility.
Ms. Dickmann also testified that the Pearson program would have some
collaboration among students through Skype as well as through group projects.
There would also be a teacher in the room with Student while he was on the
computer.6


               The Hearing Officer7 determined that Parent met her burden of
proving that the School District’s proposed gifted math program was inappropriate.
Since the third grade, Student has received accelerated math in a regular education
classroom, meaning that he received fourth grade math in third grade and fifth


       6
         The parties stipulated that Student completed fifth grade math and that he requires math
at a higher level than fifth grade for the 2016-2017 school year.

       7
          During the hearing and in her closing brief, Parent argued that because Student is a
twice exceptional child in that he is gifted with disabilities, Student’s special education needs are
a factor in this case and that analysis should proceed under the IDEA and Chapter 14 of Title 22
of the Pennsylvania Code dealing with Special Education Services and Programs, 22 Pa. Code §§
14.101-14.163. The Hearing Officer determined that Parent’s due process complaint only
presents issues arising under Chapter 16 regarding the provision of gifted services to Student.
There is no claim that the proposed program or the location in which the program will be
delivered infringes upon Student’s rights under the IDEA or its implementing regulations.
Therefore, the Hearing Officer decided the appropriateness of the School District’s proposed
gifted math program pursuant to Chapter 16 and not the IDEA or Chapter 14. This issue has not
been challenged on appeal.




                                                10
grade math in fourth grade.      Both parties agree that these placements were
appropriate for Student and that he performed well. Moreover, both parties agree
that these placements were a beneficial change from the less effective one-on-one
instruction and independent work that was provided to Student at the beginning of
the third grade.


             The Hearing Officer also found the School District’s proposal that
Student participate in the online Pearson math program represents a significant
departure from the type of program that everyone agrees has been appropriate, and
there is no evidence that the change is necessary to meet Student’s individual
gifted needs. The Hearing Officer stated, “[w]hen gifted education is working, a
school may not substantively alter a student’s GIEP (or the gifted portions of an
IEP) without first evaluating the Student’s needs in conformity with Chapter 16.”
(July 20, 2016 Decision at 12.) Therefore, the Hearing Officer held that the School
District’s proposed gifted program was not appropriate and that appropriate gifted
math programming for Student must include placement above grade level in a
regular education classroom for that grade level.


             However, the Hearing Officer also found that Parent has not proven
that the only way to place Student in sixth grade math in a regular education sixth
grade math classroom is to transport him to and from the Sixth Grade Center. The
Hearing Officer ordered that the “[School] District may exercise its discretion
regarding the physical location of the 6th grade math classroom that the Student




                                         11
will attend during the 2016-2017 school year in accordance with this Order.” (Id.
at 13.) This appeal by School District followed.8


                                             III.
                                              A.
              The School District first contends that a portion of Finding 17 is not
supported by the administrative record. Finding 17 states that in the NOREP, the
School District proposed Student receive “6th grade Math instruction with online
enrichment delivered in the [Lionville] Elementary School” for the 2016-2017
school year. (Hearing Officer’s Finding 17.) However, what the NOREP, in fact,
proposes is that Student:

              receive 6th grade advanced math instruction in a blended
              learning environment at Lionville Elementary School
              utilizing the online platform of Pearson’s Gifted and
              Talented Math grade 6 (Pre-Algebra) A&B, along with
              compacted 6th grade math instruction provided by a
              Lionville Elementary teacher. Enrichment of the online
              material will be provided by the gifted support teacher
              when [Student] demonstrates a need to work beyond the
              curriculum.


(July 20, 2016 Hearing, School District Exhibit S-11 at 2.) The School District’s
NOREP and witness testimony makes clear that Student will receive sixth grade
advanced math instruction during his upcoming fifth grade year, and that these

       8
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether a legal error has been committed, or whether necessary findings of fact are
supported by substantial evidence. Abington School District v. B.G., 6 A.3d 624, 630 n.5 (Pa.
Cmwlth. 2010).




                                              12
services would be delivered through the Pearson online program and in-person
instruction from a teacher. Finding 17 then is inaccurate to the extent that it does
not recognize that Student would receive in-person instruction from a teacher or
that he would receive accelerated math in addition to enrichment. However, the
incompleteness of Finding 17 does not undercut the Hearing Officer’s finding that
Student would be better served receiving math instruction in a regular sixth grade
classroom.


                                         B.
             The School District also contends that the Hearing Officer erred in
finding that there was a change in placement necessitating a reevaluation. It argues
that Student’s placement remains the same as it has always been – accelerated
math class one grade level above, to provide instruction at Student’s ability level –
and the only thing that changed is the modality of instruction. The School District
argues that a reevaluation is not necessary and that the Hearing Officer erred in
finding that its NOREP was inappropriate.


             First, we agree with the Hearing Officer’s determination that the
School District’s proposed math placement outlined in the NOREP constitutes a
change in placement because under the pertinent regulations, a change in
placement occurs when a gifted student’s instructional environment, methods and
manner of instruction changes. The regulation provides:

             Revisions to GIEPs, changes in educational placement, or
             continuation of educational placement for a student
             determined to be a gifted student shall be made by the
             GIEP team based upon a review of the student’s GIEP


                                         13
             and instructional activities, present levels of educational
             performance, as well as on information in the most recent
             evaluation.


22 Pa. Code §16.32(a). In addition:

             (a) Gifted students shall be reevaluated before a change
             in educational placement is recommended for the student.
             In addition, gifted students may be reevaluated at any
             time under recommendation by the GIEP team.

                                         ...

             (c) Reevaluations must include a review of the student’s
             GIEP, a determination of which instructional activities
             have been successful, and recommendations for the
             revision of the GIEP.


22 Pa. Code § 16.23.


             In this case, Student was required to be reevaluated before the School
District recommended a change in his gifted math educational placement for the
2016-2017 school year because a change from classroom-based instruction to
primarily computer-based instruction is a change in instructional activities.


             Second, we also agree with the Hearing Officer that the School
District’s NOREP, under which Student would receive his instruction through a
computer-based program and some in-person instruction, was not appropriate.
Gifted education is defined as specially-designed instruction that is, inter alia,
“[i]ndividualized to meet the educational needs of the [gifted] student” and
“[r]easonably calculated to yield meaningful educational benefit and student

                                         14
progress.” 22 Pa. Code § 16.1. The term “specially-designed instruction” is
further defined as “[a]daptations or modifications to the general curriculum,
instruction, instructional environments, methods, materials or a specialized
curriculum for students who are gifted.” Id. (emphasis added). A gifted student’s
educational placement must:

             (1) Enable the provision of appropriate specially
             designed instruction based on the student’s need and
             ability.

             (2) Ensure that the student is able to benefit meaningfully
             from the rate, level and manner of instruction.

             (3) Provide opportunities to participate in acceleration or
             enrichment, or both, as appropriate for the student’s
             needs. These opportunities must go beyond the program
             that the student would receive as part of a general
             education.


22 Pa. Code § 16.41 (emphasis added).


             These regulations require a placement be tailored to a student’s
individual gifted needs, including the instructional environment, methods and
manner of instruction, see 22 Pa. Code §§ 16.1, 16.41, not just that the student
receive special instruction in any form. In carrying out this mandate, a school
district is required to provide an education sufficient to confer an educational
benefit upon the student and it must be “tailored to the child's unique needs. . . .”
Daniel G. v. Delaware Valley School District, 813 A.2d 36, 42 (Pa. Cmwlth.
2002).




                                         15
               In this case, the Hearing Officer found the School District’s NOREP
proposal that Student’s instruction be in a classroom apart from the Sixth Grade
Center, apart from regular education students, and conducted via the Pearson
computer program as well as some in-person instruction from a teacher, was not
tailored to Student’s needs. This conclusion was based on the Hearing Officer’s
finding that Student experienced difficulty with the computer programs he
previously used in math (Study Island) and foreign language (Rosetta Stone).
Student, Parent and Ms. Alberici all testified that during independent work and
computer-based instruction in third grade, Student sought out other peers, played
games, and on several occasions, asked to be part of the regular education
classroom.9 Witnesses also testified that because Student’s gifted needs were not
being met through the services he was receiving at that time, including one-on-one
instruction, independent work and the computer program Study Island, Student
was placed in fourth grade math in the regular education classroom. All of the
witnesses agreed that Student performed well once he was accelerated into fourth
grade math in a regular education fourth grade classroom, and that his success
continued following a similar accelerated placement for fifth grade math. All of



       9
         The School District argues that there is not substantial evidence in the record to support
the Hearing Officer’s Finding 10, which states, “During independent gifted Math enrichment, the
Student would seek out peers to socialize with. Student would also use the computer to play
math games instead of advancing math enrichment. This problem, and the Student’s overall
needs, prompted both the Parent and District to review the Student’s GIEP.” (Hearing Officer
Finding 10.) However, the School District does not dispute the fact that Student sought out peers
to socialize with or that he played games on the Study Island computer program rather than
advancing his math skills. Instead, the School District argues that these behaviors occurred in
the regular education classroom. Moreover, the record does not support the School District’s
contention as to when and where Student’s uncontroverted behavior occurred.



                                                16
this supports the Hearing Officer’s conclusion that to meet Student’s unique needs,
he needs to receive instruction in a regular classroom.


              Finally, the School District contends that the proposed math
placement outlined in the NOREP satisfies the Hearing Officer’s determination
that instruction occur in a regular education sixth grade classroom. However,
Principal testified Student would not receive math lessons in a classroom with his
peers but in a separate classroom through a computer program, and she also
admitted that there was no sixth grade regular education math class at Lionville.
Receiving math lessons in a separate room via one-on-one, independent and
computer-based learning can hardly be said to qualify as a “regular education
classroom.”


              Accordingly, for the foregoing reasons, the decision of the Hearing
Officer is affirmed.




                                              DAN PELLEGRINI, Senior Judge




                                         17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Downingtown Area School District, :
                          Petitioner :
                                     :
             v.                      : No. 1485 C.D. 2016
                                     :
K.D., individually and as parent and :
natural guardian of I.D.,            :
                          Respondent :




                                   ORDER


            AND NOW, this 6th day of March, 2017, the decision of the Special
Education Hearing Officer in the above-captioned matter is affirmed.




                                            DAN PELLEGRINI, Senior Judge
