UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM D., A MINOR, BY AND

THROUGH HIS PARENTS, DENNIS

AND LUCY D., et al.

Plaintiffs

v.

 MANHEIM TOWNSHIP SCHOOL

DISTRICT

Defendant

CIVIL ACTION

No. 04-4535

MEMORANDUM

September __, 2005

In this case, plaintiffs William D. (“Billy”), a minor child with learning

disabilities, and his parents, Dennis and Lucy D., have brought suit against the defendant

Manheim Township (Pa.) School District (“District”), seeking to establish that Billy was

wrongfully denied Extended School Year (“ESY”) services for the summer of 2004 and

to recover monetary damages accordingly. 

ESY services are available under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq., where they are necessary to provide disabled students

with a free and appropriate public education. 34 C.F.R. § 300.309; see 22 Pa. Code §

14.132; Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980). In accord with Pennsylvania

regulations, prior to plaintiffs’ initiation of this action, Billy’s eligibility for ESY services

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was reviewed by two levels of administrative officers. 22 Pa. Code § 14.162. Billy was

found ineligible for ESY services by a Pennsylvania Special Education Hearing Officer

(“Hearing Officer”), and this determination was affirmed by a Pennsylvania Special

Education Due Process Appeals Panel (“Appeals Panel”). Plaintiffs, on September 27,

2004, then commenced this action.

On January 10, 2005, plaintiffs filed a motion to introduce additional evidence.

Specifically, plaintiffs request permission to introduce a private expert evaluation 

of Billy’s skills regression, which was conducted during the summer of 2004, after the

administrative proceedings were completed. In response, the defendant District filed a

memorandum in opposition to plaintiffs’ motion. The District principally opposes the

admission of plaintiffs’ regression analysis, but argues, alternatively, that if this court

grants plaintiffs’ motion, the District should also be allowed to supplement the record on

this issue. 

Based on the parties’ submissions, and the administrative record, plaintiffs’ motion

will be granted. The Third Circuit has held that such after-acquired evidence may be

considered with respect to the reasonableness of the school district’s decision at the time

the decision was made. Susan N. v. Wilson Sch. Dist., 70 F.3d 751 (3d Cir. 1995).

Defendant’s request to supplement the record will be granted in part.

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 This factual and procedural summary is drawn largely from the administrative decisions. 

3

I. Background

Billy is a student with mild-range autism and speech-language impairment.1

During the 2002-2003 school year, Billy was enrolled in the District’s half-day

kindergarten and was provided with an array of special education services. He performed

well in kindergarten, meeting the expectations for nondisabled students. 

During the summer of 2003 he received ESY services––the District supported his

attendance at a day camp with a one-on-one aide and continued his in-home educational

program, known as the Lovaas program, for one hundred hours.

In 2003-2004 Billy completed the first grade; he continued to attend his

neighborhood public school and to receive various special education services. He was

found to function within the average range of ability and performed above average in

some areas . Overall, he was considered “on track” to achieve his individualized

education plan (“IEP”) goals. 

For the summer of 2004, Billy’s IEP team determined that he was not eligible for

ESY services. His parents disagreed with this determination and sought an expedited due

process hearing. In particular, Billy’s parents objected that the District had made its

determination without regression/recoupment data; they argued that the lack of such data

resulted in an inappropriate finding. 

Hearings were held in March and April 2004. On April 16, 2004, the Hearing

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2The PDE Guide is described in detail in the Hearing Officer’s decision and is included as

an exhibit in the record. It includes the text of the regulatory requirements for ESY, a summary of

judicial authority for ESY services in Pennsylvania, and technical assistance documents such as

the ESY Checklist.

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Officer found that Billy was ineligible for ESY services. In reaching this decision, the

Hearing Officer rejected the plaintiffs’ claim that the District’s lack of

regression/recoupment data rendered the District’s determination of Billy’s ESY

eligibility improper. The Hearing Officer found that there had been no opportunity to

collect such data because, at the parents’ request and due to their efforts, there had been

no break in Billy’s educational programming in 2002-2003 or 2003-2004 (prior to the

hearing). Nonetheless, the Hearing Officer found that there was “sufficient information . .

. in the record regarding regression/recoupment . . . to support the ESY IEP team’s

conclusion.” The Hearing Officer noted that the District had followed the ESY Checklist

contained in the 2003 Pennsylvania Department of Education (“PDE”) Guidelines2in

coming to its ESY determination for Billy for the summer of 2004. The Hearing Officer

concluded that “[b]ased upon the totality of the record, the district’s decision regarding

Billy’s program without ESY [was] reasonably calculated to yield meaningful educational

benefit.”

On June 4, 2004, the Appeals Panel upheld the Hearing Officer’s decision. The

majority maintained that “the record fully supports the District’s recommendation that the

student does not need specific ESY programming over the summer.” The Appeals Panel

found the Hearing Officer’s opinion to be “well-reasoned and supported by the record.”

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3Plaintiffs state that they conducted this study “[a]s a result of the Special Education

Appeals Panel’s dissenting opinion.” The District asserts that it did not have the option to

schedule testing for the spring break or summer of 2004 on its own, as the dissenting opinion

suggested would have been appropriate, because the District was required by Pennsylvania’s

Department of Education to make its ESY determination by February 28.

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One member of the Appeals Panel dissented, stating that he would instead have ordered

that a study be conducted during the first week of summer and that the IEP team then be

reconvened to make a decision.

During the summer of 2004, plaintiffs privately arranged for a

regression/recoupment analysis of Billy’s skills during a short break in his educational

programming.3 The study was conducted by the Lovaas Institute for Early Intervention

eover a twelve-day period, during which Billy’s formal one-to-one instruction was

stopped. His skills were tested and observed at the beginning of the period (the baseline

measurement) and again at the end (the post-assessment measurement). The “percentage

[point] difference” in Billy’s performances was measured to quantify his regression. The

report also asserts that, as of July 20, 2004, Billy had not recouped skills; no data are

provided to support this claim. 

Plaintiffs argue that the record before the Appeals Panel was “incomplete” because

it lacked evidence from a study of this kind; they maintain that the results are now

relevant to this court’s review as they “demonstrate[] Billy’s need for Extended School

Year services.” 

The District acknowledges that a student’s potential difficulties with regression

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22 Pa. Code § 14.132(2) lists seven sub-items and states that no single factor is

determinative––the first two sub-items provide definitions for regression and recoupment, and

several other sub-items relate to the same concerns. For example, the third factor reads: “whether

the student’s difficulties with regression and recoupment make it unlikely that the student will

maintain the skills and behaviors relevant to IEP goals and objectives.” § 14.132(2)(iii).

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and recoupment are two of the factors that must be considered by an IEP team when

determining a student’s eligibility for ESY services.4 However, the District argues that

data from a formalized study of regression/recoupment during an interruption in

educational programming is not specifically required, since a child’s entitlement to ESY

services can be demonstrated even without such data. 

Finally, the District maintains that the specific evidence now proffered by the

plaintiffs is neither relevant nor appropriate. In particular, the District argues that the

study “would not add to the court’s understanding of the [regression and recoupment]

issues” because it does not include any data on recoupment. The District also asserts that

any failure to collect data prior to the spring 2004 hearings was due to plaintiffs’ refusal

to allow a break in educational services. 

II. Analysis

The IDEA § 1415 (e)(2) provides, in relevant part, that courts “shall hear

additional evidence at the request of a party” in actions for judicial review brought under

the statute. In Susan N. v. Wilson Sch. Dist., 70 F.3d 751 (3d Cir. 1995), the Third Circuit

elaborated upon this, holding that “the question of what additional evidence to admit in an

IDEA judicial review proceeding . . . should be left to the discretion of the trial court.” Id.

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at 759.

The court noted in Susan N. that even a “restrictive approach” to the admission of

evidence might allow “evidence concerning relevant events occurring subsequent to the

administrative hearing,” 70 F.3d at 759 (internal quotations omitted). The Susan N. court

made it clear, however, that any evidence acquired after the district’s decision may be

considered only with respect to the reasonableness of the district’s decision when it was

made. Id. at 762. In a footnote, the court also cautioned that greater care may be

warranted in deciding to admit after-acquired evidence in actions for damages

(particularly if punitive damages are sought), than in cases where only remedial education

is sought and thus “a more liberal approach” is appropriate. Id. at 761 n.10. In this case, the

plaintiffs seek non-punitive monetary damages. 

Regardless of when evidence is acquired, the central concern remains that the

district court “must exercise particularized discretion in its rulings so that it will consider

evidence relevant, non-cumulative, and useful in determining whether Congress’ goal has

been reached for the child involved.” Susan N., 70 F.3d at 760. And, Congress’ goal––as

the courts have understood it––is that the child’s IEP (which may include ESY services)

be reasonably calculated to conf er a meaningful educational benefit. See, e.g., Bd. of

Educ. of Hendrick v. Rowley, 458 U.S. 176, 206 (1982); S.H. v. State-Operated Sch. Dist.

of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). Thus, the critical question for

this court is whether plaintiffs’ proffered evidence is “relevant, non-cumulative, and

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5This court does not find that the absence of a formalized study of the type plaintiffs have

commissioned renders the record incomplete in this case. Pennsylvania regulations do not require

such a study; rather, the regulations offer a non-exhaustive list of reliable sources of information

regarding a student’s “educational needs, propensity to progress, recoupment potential, and yearto-year progress.” 22 Pa. Code § 14.132(3); Polk v. Central Susquehanna Intermediate Unit 16,

853 F.2d 171, 184 (3d Cir. 1988).

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useful” in evaluating the reasonableness of the District’s determination in February 2004

that Billy was ineligible for ESY services.

Plaintiffs assert that their evidence is not only relevant and useful, but essential to

this court’s decision-making because the administrative record is otherwise “incomplete.”

While this court does not concur with this assessment,5 it remains within this court’s

discretion to admit the plaintiff’s evidence for its potentially probative value.

The District argues convincingly that the evidence plaintiffs seek to introduce

suffers a number of shortcomings. Chief among these is the fact that plaintiffs’ study

assesses only Billy’s regression over a twelve-day period; it does not provide data on his

recoupment after resuming his educational program. This deficiency would appear to

substantially limit the probative value of plaintiffs’ evidence. Cf. Armstrong v. Kline II,

513 F.Supp. 425 (E.D.Pa. 1980) (on remand); cf. also Alamo Heights Indep. Sch. Dist. v.

State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986). Furthermore, it would seem

sensible to assess the study’s quantifications of Billy’s regression with considerable

caution given the small sample sizes on which they are based and the lack of reference

points or other guidance as to how Billy’s scores compare with those of a typical student.

Plaintiffs’ evidence could be barred in its entirety. The Third Circuit has noted that

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after-acquired evidence that was potentially available to a plaintiff when the school

district made its decision is excludable. See Susan N., 70 F.3d at 762. In the case at bar,

plaintiffs’ motion does not refute the finding by the Hearing Officer and the Appeals

Panel that there was no break in the calendar during which a regression/recoupment

analysis could have been conducted because the plaintiffs refused to interrupt Billy’s inhome educational services––in essence, a finding that the evidence would have been

available to the plaintiffs had they allowed it. 

Nonetheless, the study proferred by the plaintiffs is clearly relevant to the issue of

regression, which remains one of the factors that must be considered in making a ESY

services determination. 22 Pa. Code § 14.132(2). Moreover, the study is neither

cumulative nor duplicative of other data in the record. Finally, the study may prove useful

in determining whether the District’s decision was reasonable when arrived at; once

again, this court notes that, under Susan N., reliance on after-acquired evidence is only

legitimate insofar as it bears on the reasonableness of a District’s decision at the time it

was made. 70 F.3d at 762. In light of all this, plaintiffs’ motion will be granted. 

Defendant’s responsive request to supplement the record will be granted in one

respect: The District will be given permission to supplement the record with an analysis

of the methodology used in plaintiffs’ study and of the qualifications of those involved in

preparing it. The District’s request to introduce reports from school professionals who

worked with Billy at the end of the 2003-2004 school year and the beginning of the 2004-

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2005 school year will be denied as insufficiently relevant, non-cumulative, and useful.

Finally, the District’s request to provide additional reports regarding Billy’s performance

before and after the 2004/2005 winter break will be denied as insufficiently relevant to

the District’s determination of Billy’s eligibility for ESY services in the summer of 2004.

The foregoing rulings are encompassed in the accompanying order. 

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 WILLIAM D., A MINOR, BY AND

THROUGH HIS PARENTS, DENNIS

AND LUCY D., et al.

Plaintiffs

v.

 MANHEIM TOWNSHIP SCHOOL

DISTRICT

Defendant

CIVIL ACTION

No. 04-4535

ORDER

September __, 2005

For the reasons stated in the foregoing memorandum opinion, it is hereby

ORDERED as follows: 

(1) Plaintiffs’ Motion to Introduce Additional Evidence (Docket #9) is

GRANTED.

(2) Defendant’s Motion to Introduce Additional Evidence (Docket #11) is

GRANTED in part, as to Defendant’s request to analyze the methodology used in

plaintiffs’ study and the qualifications of those involved, and DENIED in part, as to

Defendant’s request to introduce additional reports. 

 

Pollak, J.

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