IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN … · 2017. 4. 23. · District contends that...

A.G. v. Lower Merion School District, Case No. 2:11-cv-5025-HB Plaintiff’s Motion for Partial Summary Judgment

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

A.G., on her own behalf )

)

Plaintiffs, ) Case No. 2:11-cv-5025-HB

)

vs. )

)

The Lower Merion School )

District, )

Defendant. )

PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION

FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff A.G.1 brings this lawsuit alleging that Defendant Lower Merion School District

(the “District”) incorrectly identified her as having a disability when she did not, leading to her

inappropriate placement in special education classes. See Complaint (“Compl.”), ECF No. The

District contends that it: (1) accurately identified A.G. as having a speech and language disorder

in third grade, (2) correctly identified her as having a Specific Learning Disability (“SLD”) in

fourth grade, and (3) correctly changed her disability category to “Other Health Impairment” in

ninth grade after determining she did not have an SLD. Plaintiff A.G., through her parents,

sought relief through an administrative hearing, which was refused. This Court, on motion of the

District, denied A.G. relief under the Individuals with Disabilities Education Act (“IDEA”) but

has allowed her to proceed under Section 504 of the Rehabilitation Act (“Section 504”) and the

1 The Court has dismissed A.G.’s claim under the Individuals with Disabilities Education

Act, and the claims of her parents, C.G. and C.G., which are preserved for purposes of this

motion. See Order, dated Dec. 21, 2011, ECF No. 8.

Case 2:11-cv-05025-HB Document 15-1 Filed 08/15/12 Page 1 of 24


Americans with Disabilities Act, both of which protect individuals who are wrongly “regarded”

as disabled. The present motion for partial summary judgment contends that discovery and

evidence from the administrative hearing below establish that: (1) A.G. was identified and placed

into special education for speech therapy services contrary to law and without a comprehensive

evaluation in third grade; (2) A.G. was incorrectly identified as having an SLD in fifth grade and

continuing to ninth grade; and (3) A.G. was wrongly identified as suffering from “Other Health

Impairment” in ninth grade. Because there are materials issues in dispute as to the inference of

intent by the District, and the impact of the District’s actions and omissions and specifically what

remedies and damages are due in this case, the matter should proceed to trial.

However, the Court should determine, prior to trial, that the District has violated Section

504 and the ADA by (1) identifying A.G. as needing speech therapy without a comprehensive

evaluation, (2) incorrectly identifying A.G. as having an SLD despite her average intelligence

and average academic skills, and (3) completely inaccurately identifying A.G. as eligible for

special education services under the label of “Other Health Impairment.” While the Court has

dismissed A.G.’s IDEA claim, the District’s defense to A.G.’s claims that she was incorrectly

regarded as disabled has been a reliance on the procedures and standards under the IDEA, and it

has raised the IEP team process as an affirmative defense. See, District’s Answer, District’s

Response to Plaintiffs’ Interrogatories. Ex. A (District’s Answer, at ¶8, ¶9, and ¶11), Ex. B

(District’s Response to Plaintiff’s Interrogatories No. 1 - 11). Since the District has asserted the

IDEA procedures as a defense, the Court can consider whether, in fact, the District complied

with the requirements of the IDEA for purposes of that defense.



II. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it could affect

the outcome of the case. Roth v. Norfalco LLC, 651 F.3d 367, 373 (3d Cir. 2011). Summary

judgment must be granted “against any party who fails to make a showing sufficient to establish

an element essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Once the moving party demonstrates that no genuine issue exists and that, as a matter of

law, it is entitled to judgment, the burden shifts to the non-moving party. The non-movant’s

burden is to “do more than simply show that there is some metaphysical doubt as to material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In meeting

its burden, the non-moving party cannot rest on the mere allegations or denials in its pleadings or

by presenting bare assertions, conclusory allegations, or suspicions. Celotex, 477 U.S. at 324. To

the contrary, the non-moving party must come forward with specific facts, supported by

admissible evidence, that contradict the facts averred by the movant and indicate that there is a

genuine issue for trial. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990).

Unless the party opposing the motion produces evidence from which a reasonable

factfinder could return a verdict in its favor, the Court must grant summary judgment. Lawrence

v. Nat’l Westminster Bank N.J., 98 F.3d 61, 65 (3d Cir. 1996). Here the undisputed facts



establish that the District had no basis whatsoever for identifying A.G. as a student with a

disability and regarding her as disabled at any relevant time.

III. FACTS

For purposes of this motion for partial summary judgment, there are no material facts in

issue. The pertinent facts are detailed in the Statement of Facts (“SOF”) and are incorporated

herein2.

District Practices During the Relevant Time

From 1987 until 2012, administrators and psychologists at the District discussed the

overidentification of African-American students in the category of Specific Learning

Disabilities. SOF ¶1. In this climate, two District psychologists evaluated A.G. Both of them

destroyed their testing protocols, the actual tools used to evaluate a student, so those cannot be

reviewed to determine if there have been mistakes. SOF ¶2.

During the relevant timeframe, the District operated a “Title I” program for children who

needed additional work in reading or math. Although it was a remedial program, children with

skills in the average range could be referred to it; the school psychologist who would later

evaluate A.G. was not clear on the criteria that the District used to qualify children for Title I

services. SOF ¶4.

During the same timeframe, the District’s practice was to place children into speech

therapy and thus, special education and to place them on an IEP without a Comprehensive

Evaluation. SOF ¶6.

The District operated Instructional Support Lab (“ISL”) classes during the time A.G. was

in school there. Instructional Support Lab is a special education class, typically run by one

2 References to exhibits from the Administrative Record in this case are identified as

“D.Ex.1.



special education teacher and sometimes six to ten students all of whom must have an IEP to be

in the class. SOF ¶3. The District’s practice during the relevant timeframe was to substitute ISL

for science and social studies for students with IEPs during their middle school years. SOF ¶3.

A.G.’s Educational Experience.

In October 2001, as a third grader, A.G. was initially placed into special education for

speech therapy, due to a lisp. SOF ¶6. No comprehensive evaluation was completed. SOF ¶6.

During the same year, A.G. was placed into Title I. In May of 2002, the end of A.G.’s

third grade in school, the District documents reflect that A.G. was reading at the third grade level

with 99% comprehension. Despite these average reading skills, staff reported that A.G. was

assigned to a reading group in Title I, and that reading group was reading a book that was easier

than a third grade level. SOF ¶5.

After Already Being in Special Education, A.G. Is Referred for a Comprehensive

Evaluation.

In June of 2002, in the spring of her third grade year, A.G. was referred for evaluation to

District Psychologist Santa Cucinotta. A.G. was not referred to her for behavior problems,

inattention problems or impulsive problems. SOF ¶7. No medical problems were reported.

Psychologist Cucinnotta reported A.G. as being “tenacious and hard-working.” A.G.

demonstrated average to above average intelligence, and average composite scores in reading

(93), math (91), spelling (94), and written expression (117). SOF ¶7.

Psychologist Cucinotta completed the evaluation and issued her report in January 2003.

She made no finding that A.G. had ADHD. She did not do any particular testing to determine if

A.G. had ADHD, did not identify her as having six or more of the traits of inattention, and did

not identify symptoms of hyperactivity. SOF ¶8. In fact, Psychologist Cucinotta determined that

A.G. had a score of 112 (above average) on a test of freedom of distractibility, which tests focus,



attention and concentration. SOF ¶19.

Although classroom observations were a required element to determine if a student

suffered from a Specific Learning Disability, Psychologist Cucinotta failed to conduct any

classroom observations as part of her evaluation. SOF ¶9.

On January 19, 2003, Psychologist Cucinnotta attended a meeting to discuss her

evaluation with the parents of A.G. and various school staff members; she did not share with the

parents any written explanation defining Specific Learning Disability. Psychologist Cucinotta

cannot represent that the parent of A.G. knew what a Specific Learning Disability was at the time

of the meeting; she did not ask. SOF ¶10.

Psychologist Cucinotta identified A.G. as having a Specific Learning Disability on the

basis of a significant discrepancy between her verbal intelligence and her composite scores in

reading, math, and writing. SOF ¶11. Psychologist Cucinotta relied upon a computer scoring

system to determine that A.G. had a discrepancy; she was not told she had to use the

CompuScore PsychCorp program, but instead she made her own decision to use it. SOF ¶12.

Psychologist Cucinotta determined that there was a 27 point difference between A.G.’s verbal IQ

and her performance IQ (although A.G.’s overall IQ was average), and on that basis used A.G.’s

verbal IQ instead of her full scale IQ to determine that A.G. had a Specific Learning Disability-

despite having average or above average IQ and average academic skills. SOF ¶13. Psychologist

Cucinotta was unaware that apparently at least one expert, Jerome Sattler, has found that when

the verbal and performance scale differences are examined in African-American student samples,

a majority of African-American children have higher verbal scale IQs than performance scale

IQs. Psychologist Cucinotta agrees that it is possible that the difference in A.G.’s verbal IQ and

her performance IQ is simply part of how African-Americans scores on the WISC-III. She never



investigated that issue. SOF ¶14.

If Psychologist Cucinotta had used A.G.’s full scale IQ of 95, then A.G.’s intellect would

not have been discrepant from her academic skills in reading or math or writing. SOF ¶15.

Psychologist Cucinotta was fully aware at the time she determined A.G. eligible for special

education under the category of Specific Learning Disability that A.G. was average or at grade

level in reading and math. SOF ¶16, SOF ¶17.

Although Psychologist Cucinotta knew that the IDEA regulations required her to identify

the type of learning disability amongst various areas (oral expression, listening comprehension,

written expression, basic reading skills, reading fluency skills, reading comprehension,

mathematics calculations, and mathematics problem solving) she failed to do so. SOF ¶18.

Notably, Psychologist Cucinotta already regarded A.G. as disabled (based on the speech and

language disorder) when she tested her. SOF ¶20, ¶21.

A.G. Is Declassified as SLD and Re-identified as Having an Other Health Impairment.

When A.G. was in ninth grade, the District determined that A.G. no longer met criteria as

having a Specific Learning Disability. Instead, the District now identified A.G. as having a

disability causing her to be eligible for special education services in 2008 under the category of

“Other Health Impairment.” SOF ¶22.

Dr. Craig Cosden, a District psychologist, evaluated A.G. and recommended she be

identified as having a disability under “Other Health Impairment.” SOF ¶23. Prior to making the

determination that A.G. had a disability under Other Health Impairment, Dr. Cosden did not

review any medical records, but confirmed with A.G.’s mother that A.G. did not have any

medical issues, and confirmed with the school nurse that there was nothing on file that “indicated

a significant medical problem.” SOF ¶23. Although A.G. was an athlete, and her medical doctor



completed various physical examination reports for her, Cosden did not review such reports.

SOF ¶23. Dr. Epstein’s reports indicate that A.G. is not under any medical treatment, and was

not on any medications. Dr. Cosden made no effort to contact Dr. Epstein nor did he request a

release from the family for Dr. Epstein. It never came to Dr. Cosden’s attention that A.G. had

any chronic or acute health condition related to asthma, diabetes, epilepsy, heart condition,

hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, Tourette’s

syndrome. SOF ¶23.

Dr. Cosden never saw any written document from any source that identified A.G. as

having attention deficit hyperactivity disorder. Dr. Cosden testified that based on the DSM-IV

criteria for ADHD, that in making a diagnosis of ADHD, there must be some hyperactive,

impulsive or inattentive symptoms that cause impairment before age 7. There must also be

impairment in two or more settings. Cosden confirmed that he did not recommend identifying

A.G. as having ADHD. He suspected A.G. had ADHD but could not “make the diagnosis of

ADHD in her case.” SOF ¶24.

Dr. Cosden was unaware that on the first day of the administrative hearing, the LMSD’s

lawyer represented that Dr. Cosden’s testimony would be that because of A.G.’s alleged

impulsivity Cosden had found A.G. eligible as a student with “Other Health Impairment” based

on having ADHD. Cosden does not agree with that the lawyer’s statement. SOF ¶25.

Instead, Dr. Cosden defined A.G.’s “health impairment” as “difficulty with focusing

attention, controlling her impulses and controlling her emotions” which he admits are symptoms

consistent with the diagnosis of ADHD. SOF ¶26. Cosden did not specifically measure A.G.’s

impulse control in 2008, he did not specifically measure her focusing and he did not do any

specific measure of A.G.’s ability to control her emotions. SOF ¶26.



The definition of “Other Health Impairment” does not reference a problem of controlling

emotions. SOF ¶26.

A.G.’s parents were not provided with any written explanation of “Other Health

Impairment” in 2008. Instead, Cosden gave only a verbal explanation and it was his intent to tell

the evaluation team that the definition was consistent with the written definition of Other Health

Impairment. SOF ¶27.

No medical doctor was involved in evaluating A.G. in 2008. Nor was there any medical

doctor at the evaluation team meeting. SOF ¶28.

Dr. Cosden assumed A.G. had not been consistently exposed to the general education

curriculum for science and social studies in sixth, seventh and eighth grade because many special

education students in the District do not take science and/or social studies in order to fit in their

Instructional Support Lab. School records corroborate that A.G. did not have science and social

studies throughout middle school. Despite generally understanding A.G.’s lack of consistent

exposure to these two core courses of science and social studies during her three years in middle

school, Dr. Cosden did not adapt any of the testing or try to isolate any areas so that A.G. would

not be penalized for not having had science or social studies. SOF ¶29.

Notably, school records repeatedly confirm that A.G. was capable of completing work

when she tried. In eighth grade, A.G.’s IEP documents that she was not always putting forth her

full effort. At the same time, during the 2005-2006 school year, A.G. demonstrated standardized

scores at or above grade level. In May of 2006, the spring of her eighth grade year, A.G.

demonstrated reading vocabulary at grade 8.7 and comprehension at grade 7.8, with scanning

skills at the “PHS” level (“post high school”). This continued in ninth grade. A.G.’s IEP for

grade 9 explained that her grades depended on whether she tried, and explained that if she put for



the effort, she could do her writing tasks. Yet, again, in November of 2006, A.G. demonstrated

reading skills at the ninth grade level, vocabulary skills at the 9.9 grade level and scanning again

at PHS (“post high school”). SOF ¶30.

Most significantly, the 2008 re-evaluation completed by Dr. Cosden does not, in any

way, connect any of A.G.’s academic or behavioral deficiencies with either ‘focusing’ or

‘controlling of emotions,’ the two characteristics he used to deem her eligible for special

education services under the definition of “Other Health Impairment.” SOF ¶31. Dr. Cosden’s

testing of A.G. showed no more difficulties than other students to attend to lectures and avoid

distractions. SOF ¶32. A.G. did not score in the clinically significant range on any of the tests

used to assess her social and emotional functioning; in fact, A.G. specifically reported as false

the item “I have attention problems.” SOF ¶33.

A.G.’s interview with Cosden in 2008 revealed that she explained her difficulty with

grades in ninth grade to there ‘being more work than she was used to in middle school and the

work is more difficult.” She did express feeling lost in Biology where she found it difficult to

know the new vocabulary. She also reported participating in soccer, basketball and track as well

as a theatre group. SOF ¶34.

Dr. Cosden reported A.G. as qualifying for Other Health Impairment to reflect problems

with focusing and difficulty controlling her emotions. Problems with focusing attention and

controlling her emotional reactions to perceived threats to her self-image have a significant

impact on her academic performance. Alexandria’s parents may want to share the results of this

evaluation with her pediatrician to discuss treatment options for managing her inattentiveness.

Despite this assertion, there is no portion of the 2008 re-evaluation which makes an objective

finding that A.G. has difficulty with attention, or focus, or emotions. In all academic areas, Dr.



Cosden reported A.G. was as in the average range--reading and math and even “above average”

for writing. SOF ¶35.

Dr. Cosden confirmed at his deposition that he did not do any specific testing of A.G. to

confirm difficulty with ‘focusing’ or ‘emotions’ or ‘attention’. Notes from the re-evaluation

meetings in 2008 confirm that Dr. Cosden reported A.G. did not have a learning disability and

that her “academics are in line with her abilities.” Yet, at another meeting on May 29, 2008, it

was still recorded that A.G.’s disability category would change to “OHI to reflect problems in

focusing and difficulty controlling emotions. SOF ¶36, ¶37.

A.G. agrees that she had a difficult time adjusting to ninth grade year; one of her

difficulties was not having had science and social studies in middle school, there was more work

that she was used to, and there were family issues. SOF ¶34, ¶38.

IV. ARGUMENT

This case is now limited to a determination of whether the District wrongly regarded

A.G. as disabled under Section 504 and the Americans with Disabilities Act.

Section 504 requires that:

No otherwise qualified individual with a disability in the United States, as defined

in [29 U.S.C. § 705(20)], shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance . . . .

29 U.S.C. § 794(a).

The definition of “individual with a disability” includes “any person who has a disability

as defined in section 3 of the [ADA].” Id. § 705(20)(B). The cited definition of “disability”

within the ADA includes “being regarded as having [a physical or mental impairment that

substantially limits one or more major life activities].” 42 U.S.C. § 12102(1)(C). Plaintiffs’



Section 504 cause of action arises under the “regarded as” provision. See Compl. ¶¶ 28-29; see

also 34 C.F.R. § 104.3(j)(1)(iii) (Section 504 implementing regulation defining “[h]andicapped

person[]” as “any person who . . . is regarded as having such an impairment”).

The ADA includes language similar to that of Section 504: “Subject to the provisions of

this title, no qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Plaintiffs’ ADA

cause of action also arises under the “regarded as” definition of “disability.” See Am. Compl.

¶¶ 32-33. Plaintiffs’ claims involve exactly overlapping provisions of Section 504 and ADA.

See, e.g., Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009)

(“Because the same standards govern both the [plaintiffs’] RA and ADA claims, we may address

both claims in the same breath.”).

In this case, the District wrongly placed A.G. into special education without a

Comprehensive Evaluation, re-evaluated her incorrectly in 2003 as having a Specific Learning

Disability, abandoned that label in 2008, and incorrectly re-identified has as having an “Other

Health Impairment” without identifying any health condition. Under the IDEA, a “child with a

disability” was a child (1) with one of various listed disorders or “specific learning disabilities,”

(2) who “by reason thereof, needs special education and related services.” 20 U.S.C.

§ 1401(3)(A). Because the District has asserted as an affirmative defense its use of the IDEA

process, the Court can determine—as a matter of law and prior to trial—that the District did not

comply with the IDEA requirements in identifying A.G. and therefore, its affirmative defense to

erroneously regarding A.G. as disabled under Section 504 and the Americans with Disabilities

Act is not valid.



A. The District Wrongly Regarded A.G. as Needing Speech Therapy and Placed

Her Into Special Education Without a Comprehensive Evaluation.

The District claims that it evaluated A.G. according to the evaluation process set forth in the

IDEA, and determined her eligible under the IDEA process. Ex. A, District’s Answer and Ex. B.,

District’s Response to Plaintiffs’ Interrogatories. This process requires that school districts

identify children who have “a disability” under one of thirteen specific categories. See 34 C.F.R.

§ 300.8(c). Because of the various categories and their impact on programming for children, the

current IDEA and all of its predecessors have required that a child be comprehensively evaluated

before being placed into special education. See 20 U.S.C. § 1414(a)(1)(A) (requiring school

districts to “conduct a full and individual initital evaluation . . . before the initial provision of

special education and related services to a child with a disability . . . .”); id. at § 1414(b)-(c)

(setting forth detailed procedural and substantive requirements for evaluations). No part of the

IDEA or its predecessors permits the District to place children into speech therapy and hence

into special education without a comprehensive evaluation. Yet, that is exactly what the District

did here to A.G. According to psychologist Santa Cucinotta such was the practice in the District

at the time. That illegal identification and placement marks the point at which District staff began

regarding A.G. as disabled. SOF ¶ 6, SOF ¶ 20.

B. The District Wrongly Regarded A.G. as Having a Specific Learning Disability

Prior to July 2005, the IDEA stated that a child needed special education and related services

when the child does not “achieve commensurate with his or her age ability levels” if he or she

was provided with learning experiences appropriate for the child’s age and ability levels. 34 CFR

§300.541(a)(1)(2005). The United States Department of Education (“DOE”) had required a

severe discrepancy between the child’s academic achievement and intellectual ability as the



means to identify the child as needing special education services. 3 Notably, however, children

suspected of having specific learning disabilities have additional evaluation procedures that were

not required of other special education eligibility classifications. See, generally, 34 C.F.R.

§§300.307 – 300.311.

“Specific Learning Disability” means “a disorder in one or more of the basic

psychological processes involved in understanding or in using language, spoken or written,

which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell,

or do mathematical calculations.” 20 U.S.C. § 1401(26)(A). At the time that A.G. was evaluated

for an SLD, the IDEA regulations provided that “[a] team may determine that a child has a

Specific Learning Disability if . . . (1) The child does not achieve commensurate with his or her

age and ability levels in one or more of the areas listed . . . if provided with learning experiences

appropriate for the child’s age and ability levels; and (2) The team finds that a child has a severe

discrepancy between achievement and intellectual ability in one or more of” seven listed areas.

34 C.F.R. § 300.541(a) (1999). The listed areas consisted of the following: oral expression,

listening comprehension, written expression, basic reading skill, reading comprehension,

mathematics calculation, mathematics reasoning. Id. § 300.541(a)(2) (1999). The regulations

further required that “at least one team member other than the child’s regular teacher shall

observe the child’s academic performance in the regular classroom setting.” Id. § 300.542(a)

(1999).

To determine whether A.G. had an SLD, Psychologist Cucinotta was required to observe

A.G. and to determine whether there was a severe discrepancy between her intellectual ability

3 The statutory and regulatory requirements changed to current requirements with the

IDEA’s reauthorization in 2004. See, Daniel P. et al v. Downington Area School District, 57

IDELR 224 (E.D. Pa 2011) at 3.



(which was solidly average, a 95) and the various areas of a Specific Learning Disability (oral

expression, listening comprehension, written expression, basic reading skills, reading fluency

skills, reading comprehension, mathematics calculations, and mathematics problem solving).

Psychologist Cucinotta recommended A.G. be identified as having a Specific Learning Disability

in math and reading, without complying with the evaluation requirements

First, Psychologist Cucinotta failed to conduct the required observation of A.G. in a

classroom setting. SOF ¶9.

Second, Psychologist Cucinotta did not determine as she was supposed to which – if any –

areas A.G. demonstrated a severe discrepancy between her ability and her academic achievement

skills. Instead, her report simply indicates that A.G. has a reading and math learning disability.

She did not indicate a severe discrepancy in basic reading or a severe discrepancy in math

reasoning, or any of the other areas as required. SOF ¶17, ¶18. She also used the composite

testing scores – all of which were in the average range and to reach a discrepancy, she had to

totally disregard A.G.’s full scale IQ which was also solidly average. SOF ¶17, ¶18.

Third, and consistent with the District’s struggle to properly identify African American

students who actually did have disabilities, SOF ¶1, Psychologist Cucinotta was not aware that it

is possible for an African American student to simply have a high verbal IQ versus a

performance IQ test. SOF ¶14. Psychologist Cucinotta did not keep her protocols so there is no

way of knowing whether human error or incorrect interpretation impacted the results. Minimally,

it is questionable that Cucinotta should have relied upon a formula-driven numerical assessment

to determine whether A.G. had a Specific Learning Disability. M.B. v. South Orange/Maplewood

Bd. of Educ., No. 09-cv-5294, 2010 U.S. Dist. LEXIS 78163, at *23 (D.N.J. Aug. 3, 2010)



(“[T]he law is clear that determining whether a child is disabled under the IDEA must be based

on more than a formula-driven numerical assessment of a child.”).

Since the records that survive show that Psychologist Cucinotta determined that A.G. had

average to above average skills in all academic areas, there was no classroom observation to

corroborate the determination of a disability, and no specific area of learning disability was

actually identified, the Specific Learning Disability designation was simply incorrect. The

District cannot rely upon the IDEA’s eligibility determination of SLD to refute A.G.’s contention

that she was wrongly regarded as disabled. The Court should find, as a matter of law, that the

District did not comply with the additional evaluation procedures for children suspected of

having specific learning disabilities, due to its failure to conduct an observation and its failure to

identify which of the areas A.G. showed a severe discrepancy within, particularly given A.G.’s

average scores.

C. The District Wrongly Regarded A.G. as “Other Health Impaired”

In 2008, the District determined A.G. did not have a Specific Learning Disability. SOF

¶22, ¶23. Instead, the District concluded, A.G. was a child with a disability under the category of

“Other Health Impairment”. The definition of “OHI” in 2008 and forward reads:

Other health impairment means having limited strength, vitality, or

alertness, including a heightened alertness to environmental stimuli, that results in

limited alertness with respect to the educational environment, that

(i) Is due to chronic or acute health problems such as asthma,

attention deficit disorder or attention deficit hyperactivity disorder, diabetes,

epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis,

rheumatic fever, sickle cell anemia, and Tourette’s syndrome; and

(ii) Adversely affects a child’s educational performance.

34 C.F.R. § 300.8(c)(9).



Thus, absent the existence first of a “chronic or acute health problem,” a child cannot be

classified as having an “Other Health Impairment.” And, of course, the chronic or acute health

problem must adversely affect a child’s educational performance. The District has never

identified A.G. as having any medical condition, including ADD4, and neither has anyone else.

Absent a medical diagnosis, the District could not and should not have identified A.G. as having

a disability under “Other Health Impairment.” Moreover, it is also undisputed that at the time

that the District identified A.G. as having a disability under “Other Health Impairment” her

potential and her academic skills were commensurate.

1. The Regulatory History of “Other Health Impairment”

The definition of Other Health Impairment has been amended by regulation on three

occasions. In 1992, the United States Department of Education amended the definition to address

whether children with ADD/ADHD (including children with Attention Deficit Disorder or

Attention Deficit Hyperactivity Disorder) could be classified under Other Health Impairment.

Ex. Q, 58 Fed. Red. 51998 (Oct. 6, 1998). In doing so, DOE explained that the essential features

of ADD are “developmentally inappropriate degrees of inattention, impulsiveness and

hyperactivity.” Id. It then explained that to identify a student with ADD/ADHD as a student with

a disability for special education purposes required a three-step process.

First, the U.S. Department of Education noted that a “diagnosis of ADD may be made

only after the child is evaluated by appropriate medical personnel” as well as the evaluation

procedures of the special education process. Id. (emphasis added). Second, it noted that a

diagnosis of ADD, in and of itself, does not mean that a child requires special education, for “it

is possible that a child diagnosed with ADD as the only finding can have his or her educational

4 According to the Department of Education, ADD can be used to reference both ADD

and ADHD. Ex. Q.



needs met within the regular education setting. Id. at [2]. Finally, the U.S. Department of

Education explained, for a child with ADD to be eligible for special education, the case study

committee, “with assistance from the medical personnel conducting the evaluation,” must then

make a determination that the ADD is a chronic or acute health problem that results in limited

alertness, which adversely affects educational performance. Id. at [3]. In such an instance a child

with ADD who is eligible for special education and medically related services will qualify for

services under OHI. Id.; see also Letter to Williams, 21 IDELR 73 (OSEP Mar. 14, 1994).

Clearly, there must be a medically identified condition which is notably absent here; the District

did not follow the three step process.

2. The Caselaw Supports the Finding of a Medical Condition First for OHI Classification

The case law is replete with decisions indicating that there must first be a medical

diagnosis before a child is identified under the category of Other Health Impairment, because it

is understood within the educational community that the “chronic or acute health impairment” is

the causing factor for the limited alertness. In West Chester Area School District, 35 IDELR 235

(Pennsylvania State Educational Agency, 2001), the State Appeals Panel interpreted the Other

Health Impairment provision. It explained in doing so that it was an “easy matter to determine

that ADD qualifies as a chronic or acute health impairment, which is an essential element of the

definition of OHI.” Id. at 3. See,also, e.g., Hansen v. Republic R-III, 632 F.3d 1024 (8th Cir.

2011) (finding that where child’s private physician (and two school experts) had identified the

child as having ADHD, the child was properly qualified as a student with a disability under OHI

because his “hyperactive, impulsive and inattentive behavior severely impacted his ability to

learn,” including his failure of state standards testing) (emphasis added); Forest Hills, 59 IDELR

28 (Michigan State Educational Agency, Jan. 27, 2012) (finding that child with documented head



injury and a plethora of medical conditions, including chronic fatigue, fibromyalgia, and

psychosocial problems arising from the various chronic or acute medical conditions was

qualified as a student under Other Health Impairment).

Indeed, even where a student has been identified as having a medical condition, a child

may still not qualify under the category of Other Health Impairment. Mowery v. Bd. of Educ. of

the Sch. Dist. of Springfield R-12, No. 08-cv-3042, 2011 U.S. Dist. LEXIS 28088 (W.D. Mo.

Mar. 18, 2011) (finding child not eligible as a student with a disability despite being on

medication, various school absences, behavior problems and some class difficulties); Manheim

Twp. Sch. Dist., ODR 7330/06-07 (Pennsylvania State Educational Agency, 2007) (although

student had health impairment of Tourette’s Syndrome, child did not qualify as a child with a

disability because his grades were average and he was able to perform consistent with his

abilities).

A particularly instructive case is Mrs. H. v. Montgomery County Board of Education, No.

10-cv-247, 2011 U.S. Dist. LEXIS 14594 (M.D. Ala. Feb. 14, 2011). In Mrs. H., the child in

question was identified as having ADHD in second grade. Later, she was identified as having

two additional health conditions—both a heart condition and a urinary condition which caused

her to have difficulty with school attendance. Despite all three of these “chronic or acute”

conditions, the Court concluded the child did not have a disability under the category of “Other

Health Impairment.” The Court specifically considered, as factors, that the child had a

“disinterested attitude” in school, and that certain outside activities were interfering with school

and that these factors accounted for her poor grades, not a disability. In Mrs. H., the child

reportedly put her head down in school, refused to participate in class, reported being



“overwhelmed” by schoolwork and would not complete test work. The Court quoted the hearing

officer as finding:

While Petitioner experienced physical ailments, she was able to engage in athletic

events and a normal social life. Although it was unclear why her grades fell as

they did in the tenth grade, it could be that the decline must be attributed at least

in part to Petitioner’s deteriorating attitude, her disinterest in her classes, her

conflicts with her parents and her participation in outside activities. For example,

Petitioner’s biology teacher said the child often would either not answer test

questions or would not complete them. On occasion the child would simply lay

her head on the table where she sat and refuse to participate in class. The child

was also upset that her mother did not approve of her friends…Any of those

circumstances could explain Petitioner’s failing grades.

Id. at *49. The same could be said for A.G., and more!

First, there is no medically determined diagnosis. In A.G.’s case, no medical professional

ever identified her as having ADD/ADHD, and no medical condition is reported. SOF ¶28. Dr.

Cosden did not specifically identify A.G. as having ADD/ADHD. SOF ¶23. A.G. was a multiple

sport athlete while a student in the District whose personal doctor, Dr. Epstein, cleared her for

participation in such sports indicating no medical problems. SOF ¶23.

Second, Dr. Cosden’s determination that A.G. had an “Other Health Impairment” was based

on “focusing attention” and ‘controlling emotions,’ to which he later added ‘controlling

impulses.’ SOF ¶26. But in 2008, Dr. Cosden did not specifically measure focusing or ability to

control emotions. SOF ¶26. And, Psychologist Cucinotta had already found, that A.G.’s freedom

from distractibility was above average. SOF ¶ 19.

Without the identification of A.G. as having ADD/ADHD, the District illegally identified

A.G. as having a “chronic or acute health problem.” That is, without a diagnosis of ADD/ADHD

that results in limited alertness,” there was simply no basis upon which to identify A.G. as



having a disability under the Other Health Impairment category.5 In West Chester Area School

District, 35 IDELR 235 (Pennsylvania State Educational Agency, 2001), the state interpreted the

Other Health Impairment provision. It explained in doing so that it was an “easy matter to

determine that ADD qualifies as a chronic or acute health impairment, which is an essential

element of the definition of OHI.” Id. at 3. In this case, the District cannot show a medically

identified chronic or acute health impairment which is as the category implies, “an essential

element.”

And, in A.G.’s own words—there was a clear explanation of why she was having difficulty

in ninth grade. First, she was not used to having biology and history because she did not

consistently have science and social studies in middle school. SOF ¶38. She was placed in

classes with students who had disabilities which were slow paced and delayed by disruptions

SOF ¶39. A.G. described some emotional turmoil she was going through, stemming from her

brother’s enlistment in the Marines and related family issues that were occurring at the time.

SOF ¶38. Any one of these or some combination could be the reason for A.G.’s difficulties in

school. But clearly, there was no evidence that her difficulties in school were the result of any

medically identified chronic or acute health condition..

3. “Other Health Impairment” Requires an Adverse Impact on Academics

Another faulty aspect of the District’s determination that A.G. was a student with a disability

under the Other Health Impairment category is that A.G. maintained academic skills consistent

with her abilities. While it is undisputed that A.G. had a difficult transition to ninth grade and

exhibited some behavioral problems, Dr. Cosden specifically stated that A.G. did not show

deficiencies in her academic skills. SOF ¶30. When she put forth effort, she could develop

5 It is undisputed that A.G. does not have any other chronic or acute health conditions.



sentences, she demonstrated reading skills at grade level and beyond. SOF ¶30. When she tried,

she could do her writing tasks. SOF ¶30. Dr. Cosden completed a motivation checklist which

showed that A.G.’s had no more difficulty than most students to attend and to avoid distractions.

SOF ¶32. Whatever the difficulties, they were not having a serious adverse impact on her

educational experience. Despite her difficulties, A.G. continued to be academically eligible for

sports teams – without restrictions- and successfully completed her ninth grade year. Ex. P.

When a student can perform at grade level, -- despite a disability - the child does not have a

disability for eligibility purposes under the IDEA. J.P. v. Anchorage Sch. Dist., 260 P.3d 285

(Alaska 2011) (finding that student with dyslexia was not eligible for special education services

because he could perform grade level work). Springer v. Fairfax Cnty. Sch. Bd., 134 F.3d 659

(4th Cir. 1998) (finding that student who skipped school, sneaked out of his house, and used

drugs might be socially maladjusted but was not emotionally disturbed for purposes of

identification as a student with a disability under the IDEA); Daniel P. v. Downingtown Area

School District, 57 IDELR 224 (E.D. Pa, 2011) (child who was progressing through first and

second grade was not eligible for special education under Specific Learning Disability or Other

Health Impairment); West Chester Area School District, 35 IDELR 235 (Pennsylvania State

Educational Agency, October 30, 2011) (Appellate Officer Zirkel) (finding that student did not

require special education under either Other Health Impairment or Specific Learning Disability

category as child scored at or above grade level on standardized testing). Moreover, while A.G.

was perhaps not putting forth all of the skills she had at her disposal, the fact that a child is not

doing so, or even is failing a class is insufficient to show that the child ipso facto has a disability.

See, e.g., Mrs. H., supra.



D. A.G.’s Parents Lacked Information to Give Informed Consent

The District has asserted as an affirmative defense that each identification of A.G. was

through the IEP team process and included the involvement of her parents and their consent. Ex.

A, District’s Answer; Ex. B, District’s Response to Plaintiffs Interrogatories. But to rely upon

team process presumes that the family understood and knew what the various identifications

were. The parents didn’t, neither Psychologist Cucinnota or Dr. Cosden gave any written

explanation to A.G.’s parents of the categories of Specific Learning Disability or Other Health

Impairment. SOF ¶10, SOF ¶27. A.G. herself never saw an IEP SOF ¶39.In fact, the family was

so ill-informed of the definition of Other Health Impairment that after a meeting in 2010, they

referred to it as “Other Help Impairment.” (emphasis added) Ex. N. The District’s defense that it

used the IDEA procedures and met with the family cannot prevail, where, as here, it is clear the

parents could not have agreed to definitions they did not understand and A.G. herself

uninformed.

CONCLUSION

Based on the undisputed evidence, the Court must find as a matter of law that the District

improperly identified A.G. as a student needing speech therapy, a student with a Specific

Learning Disability and a student suffering from an Other Health Impairment. The impact of

these three misidentifications, whether the misidentifications were intentional and the result of an

inference of deliberate indifference and appropriate remedies must remain for trial.



Dated this 15th

day of August, 2012. /s/ Sonja D. Kerr

Sonja D. Kerr, Pa. Bar No. 95137

Benjamin D. Geffen, Pa. Bar No. 310134

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway, 2nd Floor

Philadelphia, PA 19103

Ph: 215-627-7100, Ext. 229, 238

Fax: 215-627-3183

Email: [email protected]

[email protected]

Counsel for Plaintiff A.G.


mailto:[email protected]

mailto:[email protected]

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