due processThe parents of a 14-year-old special needs student brought an action against a local school district, claiming it failed to provide a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA). The parents claimed that the District refused to place the student (JN) in an educational program recommended by an independent educational evaluation (IEE). The parents moved to supplement the administrative record of the parents’ due process hearings with an expert witness’s supplemental report.

JN resided in the school district but was homeschooled until sixth grade. The State Psychiatric Institute evaluated JN and diagnosed him with attention deficit hyperactivity disorder, dysgraphia, and specific learning disabilities in reading, mathematics, and written expression.

In an IEE in July 2012, the parents’ education expert confirmed these learning disabilities and recommended a specific reading program to improve his reading skills. As far as his placement, the expert opined that JN required a “small, structured school setting” designed to assist students with nonverbal or right-hemispheric learning disorders. He recommended a specific school.

JN attended sixth grade at an intermediate school in the district. His parents and the district attended an Individualized Education Program (“IEP”) meeting at which the District offered JN reading instruction in a program other than what the expert recommended. The parties disputed the extent to which JN made meaningful progress in reading and other subjects during that academic year. The parents’ education expert conducted another IEE of JN and noted that his standard scores and growth scale values (“GSVs”) decreased in reading comprehension and related areas over the course of the prior school year. The Plaintiff’s education expert reiterated her earlier recommendations.

The parents objected to the district’s new proposed program and requested that it place JN in the expert’s recommended school at its expense. They subsequently filed a due process complaint. The District drafted a revised IEP with a new program for JN, but his parents again requested that the District comply with the expert’s recommendations. The District denied this request. The parents enrolled JN at the school and paid the tuition themselves.

At the due process hearing, the Hearing Officer concluded that the District’s proposal met JN’s needs and that its last IEP offered JN a free and appropriate public education (“FAPE”). The Hearing Officer also excluded the expert’s supplemental report.

United States District Court, M.D. Pennsylvania, Chief Judge Christopher C. Conner wrote in his opinion that parents have a right to an impartial due process hearing conducted by a government agency. After exhausting state remedies, a party who is aggrieved by the result of the state due process hearing may bring suit in federal district court for violation of the IDEA. The Act says that a district court “shall hear additional evidence at the request of a party.” The term “[a]dditional evidence” does not refer to all evidence, the judge explained, but instead only to evidence that properly supplements the administrative record. A district court must evaluate a party’s proposed evidence and determine whether it is relevant, noncumulative, and useful with respect to “whether Congress’s goal has been reached for the child involved.” Evidence may be excluded when it would merely “embellish” testimony provided at the administrative hearing.

Citing cases from the eastern District of Pennsylvania, Judge Conner wrote that whether additional evidence should be admitted is left to the discretion of the district court. Before admitting additional evidence, the judge must determine whether the party introducing the additional evidence presented sufficient justification for not proffering the evidence at the administrative hearing. Here the parents moved to supplement the administrative record with five exhibits and a supplemental report by the education expert that clarified and expounded on her testimony at the due process hearing.

The parents asserted that the Hearing Officer violated their due process rights by precluding their education expert from testifying about the content of her expert reports on direct during the hearing. In the report, the parents contended that their expert was not allowed to finish her testimony on JN’s progress in reading and other evaluative metrics, as well as whether the District offered him FAPE.

Judge Conner held that the plaintiff’s education expert’s first proffered clarification was wholly subsumed by her analysis in the earlier IEE, which was part of the administrative record. The IEE provided a detailed comparison of JN’s results, and concluded using language nearly identical to the supplemental report. In addition, there was no evidence to suggest that the education expert was barred from providing her full views on whether the District offered JN FAPE. Plaintiffs failed to present sufficient justification for failing to elicit this additional testimony at the hearing. In any event, the judge held that the expert’s positions on FAPE were well-documented on the existing record.

The judge concluded that the expert’s supplemental report was cumulative of the administrative record and merely embellished her prior reports and testimony. Accordingly, the request was denied.