PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11

- 1447

______

RIDLEY SCHOOL DISTRICT

v.

M.R.; J.R., PARENTS OF MINOR CHILD E.R.

v.

JANET CENNAME

M.R.; J.R. Parents of Minor Child E.R.,

Appellants

______

On Appeal fr om the United States District Court for the Eastern District of Pennsylvania ( D.C. No. 2

- 09

- cv

- 02503 ) District Judge: Honorable Mitchell S. Goldberg

______

Argued March 19, 2012

Before: RENDELL, FISHER and2 CHAGARES

, Circuit Judges

.

(Filed: May 17, 201 2 )

Alan L. Yatvin (Argued) Popper & Yatvin 230 South Broad Street, Suite 503 Philadelphia, PA 19102 Counsel for Appellants

Jennifer C. Lowman (Argued)

Leonard Rieser

Education Law Center 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 Counsel fo r Amicus Appellants, Learning Disabilities Association of Pennsylvania and Education Law Center of Pennsylvania

John F.X. Reilly (Argued) Delaware County Office of District Attorney

201 West Front Street Media, PA 19063 Counsel for Appellees

______

OPINION OF THE COURT

______3 FISHER, Circuit Judge

.

M.R. and J.R., the parents of E.R., a minor, appeal

from an order of the District Court, granting judgment on the administrative record in favor of Ridley School District. The

District Court reversed a d ecision by a Pennsylvania Due Process Hearing Officer that Ridley School District violated the Individuals with Disabilities Education Act (“IDEA”), 20

U.S.C. 1400, et seq. , and the Rehabilitation Act, 29 U.S.C. § 701, et seq. For the reasons set forth be low, we will affirm

the order of the District Court.

I. Background

E.R., who is now ten years old, attended kindergarten (2006

- 2007) and first grade (2007

- 2008) at Grace Park Elementary School (“Grace Park”) in the Ridley School District (“Ridley”). E.R. has been identified as a child with numerous learning disabilities, as well as several health

related problems, including severe food and contact allergies. During the summer between E.R.’s first and second grade years, M.R. and J.R. (collectively, “Pare nts”) determined that the programs being offered by Ridley were inadequate to address E.R.’s unique needs, and thus decided to remove her from Ridley and enroll her at the Benchmark School, a private school that specializes in instructing students with

lea rning disabilities. Parents subsequently filed a complaint with the Pennsylvania Department of Education, seeking compensatory education for violations of the IDEA and § 504 of the Rehabilitation Act, and tuition reimbursement, including transportation ex penses, for E.R.’s enrollment in the Benchmark School. A Due Process Hearing Officer4 awarded Parents compensatory education for the 2007

- 2008 school year, as well as reimbursement of tuition for the 2008

- 2009 school year, and reimbursement for transportat ion to

and from the Benchmark School. The District Court reversed, finding that Parents were entitled to neither compensatory education nor reimbursement for tuition or transportation expenses.

A. Factual Background

Before E.R. began kindergarten, Paren ts were concerned about her ability to grasp pre

- academic skills, such as letters and numbers, and took her to be evaluated at the Chester County Intermediate Unit (“CCIU”). Although the testing noted some academic difficulties, the evaluators

concluded t hat E.R. did not qualify as a child with special needs. However, in September 2006, shortly after E.R. began kindergarten, she was identified as needing extra academic support, and was placed in extended

- day kindergarten (“EDK”). Parents were notified of this placement, and were advised that it was intended to improve E.R.’s math skills and reinforce her kindergarten skills generally.

In November 2006, due to E.R.’s academic struggles and attention problems, Parents requested that Ridley perform

an educa tional evaluation. Ridley agreed, and an Initial Evaluation Report was completed on January 31, 2007. Although the report indicated that math was difficult for E.R., consistent with CCIU’s earlier determination, Ridley concluded that she did not qualify for special education services because her cognitive ability and academic achievement levels were both in the average range. Ridley5 also conducted an occupational therapy (“OT”) evaluation, which was completed on January 24, 2007. The OT findings,

which were based largely on the input of teachers, identified the following areas of concern: below grade level ability in math; lack of concentration; inconsistency in remembering numbers one through ten; problems with peer interaction; poor problem

- solving ski lls and desk posture; and difficulty keeping her place when reading.

On February 7, 2007, Ridley convened a meeting to review the Initial Evaluation Report. In response to concerns raised by Parents at the meeting, Ridley agreed to conduct

additional tes ting using The Children’s Memory Scale, Test of Auditory Processing Skills, and The Behavior Rating Inventory of Executive Functioning. The additional testing resulted in two addendums to the Initial Evaluation Report,

which stated that E.R.’s academic sk ills were generally in the average range, but that she demonstrated a relative weakness in retaining and manipulating numbers. Based on this information, the school psychologist concluded that E.R. did not have a specific learning disability. Also in Feb ruary 2007, a § 504 Service Agreement (“the § 504 Agreement”) was issued to provide OT services to E.R., and to address her severe allergies. 1

1 “§ 504” refers to § 504 of the Rehabilitation Act, which prohibits di scrimination in federally

- funded programs, including public schools

, on the basis of disability. 29 U.S.C. § 794. Under the § 504 Agreement, E.R. was to receive OT services once a week for thirty minutes and

consultative servi ces to the home and classroom on a regular6 basis. Despite her allergies, E.R. was to be included in as many activities as possible, and Parents were to be contacted before activities involving food so that appropriate alternatives could be provided for E. R.

Pursuant to a recommendation made by E.R.’s kindergarten teacher, Mary Moffatt (“Moffatt”), E.R. was enrolled in the Summer Steps program in the Summer of 2007 to reinforce her academic skills. The Summer Steps teacher reported that E.R. made some aca demic progress, but that she needed improvement in several areas and had difficulty recognizing numbers and counting.

The first six weeks of first grade were spent reviewing kindergarten materials. During this time, E.R. struggled academically and posted several failing grades. In late September 2007, J.R., E.R.’s mother, wrote to E.R.’s first grade teacher, Janet Cenname (“Cenname”), and requested a meeting to discuss E.R.’s poor grades. Cenname declined the request to meet at that time, telling J.R. t hat it would be premature to meet so early in the year, and that it would be more appropriate to give E.R. time to develop her skills. Cenname explained that she would be “happy to meet” a few weeks later, in early October, if Parents still had concerns.

Parents did not re

- contact Cenname, and instead requested a meeting with the school’s principal. During that meeting, which was held on November 1, 2007, Parents were informed that E.R. had been placed on a “reading watch list” in mid

October. Following the meeting, E.R. was placed in a reading support group, but according to Parents, she had difficulty catching up with the other students because the program had started two months earlier.7 On November 16, 2007, Parents requested a comprehensive reevalua tion of E.R. Ridley issued a Permission to Evaluate on November 27, 2007, and the reevaluation was completed on February 26, 2008. The Reevaluation Report found that E.R. had learning disabilities in the areas of reading decoding and comprehension, math computation, reasoning skills, and written language. E.R. was also found to have fine motor delays and a language disability. As part of the Reevaluation Report, Ridley’s school psychologist prepared recommendations to be considered by the Individual Edu cation Planning Team (“IEP Team”). Based on those recommendations, Ridley offered two alternative placements for E.R.: (1) the learning support room at her current school, Grace Park, or (2) a self

- contained classroom at a different elementary school. P arents observed both programs and determined that neither was appropriate

for E.R.

An IEP Team meeting was convened on March 28, 2008 to review a draft Individualized Education Program (“IEP”) that had been developed to address E.R.’s educational

needs. At Parents’ request, Ridley agreed to make revisions to the IEP and submit the revisions to Parents for approval. At the meeting, Ridley’s Special Education Director, Kim Woods (“Woods”), suggested a program called Project Read as a possible reading aid f or E.R. Woods told Parents that she would do some research on the program and follow up with Parents and the IEP Team in a few days. Woods also provided Parents with a printout from Project Read ’s website, and a review of the program conducted by the Flo rida Center for Reading Research.8 A Notice of Recommended Educational Placement (“NOREP”) was issued on April 2, 2008, but Parents refused to sign it until all of the agreed

- upon revisions had been made. Another IEP Team meeting was held on April 30 to

a ddress Parents’ continuing concerns regarding the IEP. On May 9, a revised NOREP was issued, and Parents signed it in agreement on May 12. However, Parents remained concerned about Ridley’s proposed reading program, and requested that Ridley hire someone to provide instruction using The Wilson Reading System . Ridley did not do so.

On May 13, 2008, in accordance with the revised NOREP and addendums to the IEP, E.R. began going to Grace Park’s “resource room” every day for one hour of reading assistance i n the morning and one hour of math assistance in the afternoon. The resource room reading curriculum consisted of the following instructional programs: Read Naturally

, Reading Workshop

, Writing Workshop , and Patricia Cunningham’s Systematic Phonics . The resource room employed a program called Everyday Math for math

instruction. There were five other students in the resource room, none of whom were first graders. Aimee Hodges (“Hodges”), the resource room teacher, explained that although the students we re all provided with the same reading programs, different parts of the programs were used for different students, such that assistance was geared toward each student’s individual needs. Hodges also testified that everything done in the resource room was “ multi

- sensory,” which meant that the lessons included visual, oral, and hands

on components. E.R.’s grades in the resource room improved dramatically in a short period of time, but Parents attributed9 the improvement to improper resource room assistance, a nd claimed that E.R. was not displaying similar progress at home. By the time E.R.’s first grade year ended, she had received eighteen days of resource room assistance.

On June 9, 2008, the IEP Team met to update the IEP

for the 2008

- 2009 academic year ( second grade). The NOREP from the June IEP Team meeting recommended that E.R. continue to receive one hour per day of math instruction and one hour per day of reading instruction in the resource room. The NOREP indicated that the reading instruction

woul d include a direct reading program, as well as a direct phonemic

- based program to address E.R.’s needs in decoding vocabulary, fluency, and comprehension skills. The NOREP provided that Ridley would train its learning support staff on Project Read during the summer, and that the program would be “up and running” before the end of September 2008. Ridley also agreed to pay for a summer learni ng program at
the Benchmark School , as well as summer math tutoring three times per week.

Parents researched Project Read and determined that it was not appropriate for a student with E.R.’s needs. On August 14, 2008, Parents informed Ridley that E.R. would be enrolling at the Benchmark School for the 2008

- 2009 school year because it provided the “intensive multi

- senso ry approach to reading” that they determined E.R. required.

B. Procedural History

On December 4, 2008, Parents filed a due process complaint with the Pennsylvania Department of Education,10 alleging that Ridley violated the IDEA and § 504 of the

Rehabilita tion Act. Parents claimed that Ridley failed to timely identify E.R. as a child in need of special education services, failed to develop an appropriate IEP, and subjected E.R. to discrimination by failing to comply with the § 504 Agreement.

Hearings were held before a Due Process Hearing Officer on January 29, 200 9, February 10, 2009, and

March 10, 2009. At the hearings, the Hearing Officer reviewed documentary evidence provided by the parties and heard testimony from E.R.’s mother, Linda Heller, Parents’ special education advocate, as well as several teachers and school officials. On April 21, 2009, the Hearing Officer issued a written report, finding that: (1) Ridley had not committed any violations durin g E.R.’s kindergarten year; (2) Ridley violated the IDEA and the Rehabilitation Act in E.R.’s first grade year; and (3) the IEP s proposed for E.R.’s

first and second grade year s were inadequate and therefore denied E.R. a “free appropr iate public education” (“FAPE”) because they “lacked appropriate spec ially designed instruction in the form of a research based, peer reviewed reading program.” The Hearing Officer awarded Parents compensatory education for the 2007

- 2008 year (first grade),

reimbursement of tuition at the Benchmark School for the

2008

- 2009 year (second grade), and reimbursement of transportation expenses to and from the Benchmark School.

Ridley filed a petition for review in the Pennsylvania Commonwealth Court, and the case was subsequently

removed to the U.S. District Court for the Eastern District of Pennsylvania. Parents treated the petition as a complaint and11 filed an answer and counterclaims, in which they challenged the Hearing Officer’s conclusion that no violation occurred during E.R.’s kindergarten year, and asserted additional

cla ims against Ridley and Cenname, whom Parents added as a third party defendant. On October 9, 2009, Ridley filed a motion for judgment on the administrative record. On February 14, 2011, the District Court affirmed the Hearing Officer’s finding as to E.R. ’s kindergarten year, reversed the Hearing Officer’s findings as to E.R.’s first and second grade years, and granted Ridley’s motion for judgment on the

administrative record as to all claims. Ridley Sch. Dist. v.

M.R. , No. 09

- 2503, 2011 WL 499966, at *18 (E.D. Pa. Feb. 14, 2011). Parents filed a timely notice of appeal.

On appeal, Parents raise four arguments. First, they contend that the District Court improperly placed the burden of persuasion on them to demonstrate that Ridley violated the

IDEA. Se cond, they argue that the District Court erred in reversing the Hearing Officer’s finding that Ridley denied E.R. a FAPE during first grade by failing to timely identify her as a student in need of special education services. Third, they maintain that the District Court misinterpreted a provision of the IDEA, and improperly reversed the Hearing Officer’s finding that E.R.’s IEP was deficient in that it

lacked research

- based, peer

- reviewed specially designed reading instruction. Finally, Parents argue that the District Court erred in concluding that Ridley did not violate § 504 of

the Rehabilitation Act.12 II. Jurisdiction and Standard of Review

The District Court had jurisdiction to review the

decision of the state educa tional agency under 20 U.S.C. § 1415 (i)(2), and we have appellate jurisdiction over the order of the District Court under 28 U.S.C. § 1291. When considering a petition for review challenging a state administrative decision under the IDEA, a district court applies “a nontraditional standard of review, sometimes

referred to as ‘modified de novo’ review.” D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 564 (3d Cir. 2010) (citations omitted). Under this standard, a district court must give “due weight” to the findings of the state hearing officer. Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982). “Factual findings from the administrative proceedings are to be considered prima facie correct. ‘If a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however,

t o substitute its own notions of sound educational policy for

those of local school authorities.’” S.H. v. State

- Operated Sch. Dist. of Newark , 336 F.3d 260, 270 (3d Cir. 2003) (quoting MM v. Sch. Dist. of Greenville Cnty. , 303 F.3d 523, 531 (4th Cir. 2002 )). “Within the confines of these standards, a district court is authorized to make findings based on the preponderance of the evidence and grant the relief it deems appropriate.” D.S. , 602 F.3d at 564 (citations omitted); see also Shore Reg’l High Sch. Bd. of Educ. v. P.S. , 381 F.3d 194, 199 (3d Cir. 2004) (describing a district court’s burden as “unusual” in that it must make its own findings by a preponderance of the evidence, but nevertheless afford “due weight” to the administrative officer’s determi nations).13 We exercise plenary review over the District Court’s conclusions of law, D.S. , 602 F.3d at 564, and “with respect to the question [of] whether the District Court applied the correct legal standards under the IDEA,” Shore Reg’l , 381 F.3d at 199 ( citation omitted). We review the District Court’s findings of fact, including a determination as to the appropriateness of an IEP, under a clearly erroneous standard.

D.S. , 602 F.3d at 564.

III. Discussion

A. Statutory Framework

The IDEA requires states receiving federal education funding to provide every disabled child with a “free appropria te public education.” 20 U.S.C. § 1412(a)(1). 2

2 “The term ‘free appropriate public education’ means special education and related services that

-- A

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the stand ards of the State educational

agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and14 FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, su pported by such services as are necessary to permit the child ‘to

benefit’ from the instruction.” Rowley , 458 U.S. at 188

- 89. Although a state is not required to maximize the potential of every handicapped child, it must supply an education that provides “significant learning” and “meaningful benefit” to

the child. D.S. , 602 F.3d at 556 (citing Ridgewood Bd. of

Educ. v. N.E. , 172 F.3d 238, 247 (3d Cir. 1999)). “[T]he provision of merely more than a trivial educational benefit” is

insufficient. L.E. v. Ramsey Bd. of Educ. , 435 F.3d 384, 390 (3d Cir. 2006) (internal marks and citations omitted). When a state is unable to provide a FAPE, the state must reimburse the child’s parents for the costs of attendance at a private school that is able to provide a FAPE. D.S. , 602 F.3d at 557.

The core of the IDEA is the collaborative process that it establishes between parents and schools. Schaffer v. Weast

, 546 U.S. 49, 53 (2005). The IEP is t he “central vehicle” for this collaboration, id. , and the “primary mec hanism” for delivering a FAPE, W.B. v. Matula , 67 F.3d 484, 492 (3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City

Pub. Sch. , 486 F.3d 791 (3d Cir. 2007) (en banc) . Under the IDEA, school districts must work with parents to design an
IEP, w hich is a program of individualized instruction for each

(D) are provided in conformity with the individualized education program required und er [20 U.S.C. § 1 414(d)]

. ”

20 U.S.C. § 1401(9).15 special education student. 20 U.S.C. §§ 1412(a)(4), 1414(d).

“Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and m ust specify the nature of the special services that the school will provide.” Schaffer , 546 U.S. at 53 (citing 20 U.S.C. § 1414(d)(1)(A)). Although the IEP must provide the student with a “basic floor of opportunity,” it does not have to provide “the opt imal level of services,” or incorporate every program requested by the child’s parents.

D.S. , 602 F.3d at 557 (citations omitted); Tucker v. Bay Shore

Union Free Sch. Dist. , 873 F.2d 563, 567 (2d Cir. 1989) (explaining that the IDEA guarantees to a disabl ed child “an education that is appropriate, not one that provides everything that might be thought desirable by loving parents” (internal marks and citations omitted)). “[A]t a minimum, the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential,” Chambers v. Sch. Dist. of Phila. Bd. of

Educ. , 587 F.3d 176, 182 (3d Cir. 2009) (citation omitted), and “individual abilities,” Ridgewood Bd. of Educ. , 172 F.3d

at 248. See Bd. of Educ. v. Diamond , 808 F.2d 987, 991 (3d Cir. 1986) (stating that an IEP must “be likely to produce progress, not regression or trivial educational advancement”) (citation omitted).

If parents believe that an IEP fails to provide their

child with a FAPE, they may seek an administrative “impartial due process hearing.” 20 U.S.C. § 1415(f). A school district may also request such a hearing, if, for example, it wants to change an existing IEP and the parents refuse, or if the parents refuse to allow t heir child to be16 evaluated at all. Schaffer , 546 U.S. at 53. Although state authorities have limited discretion in determining who conducts the hearings and establishing hearing procedures, Congress has legislated the “central components” of the

administ rative hearings by providing minimal pleading standards, and affording all parties th e right to counsel, the right to present evidence , and the right to cross

- examine

witnesses. Id. at 54. “Any party aggrieved by the findings

and decision” made in the ad ministrative proceeding “shall have the right to bring a civil action” in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

A threshold issue we are asked to consider in this case is which party bears the burden of persuasion before the

district court. The IDEA does not specify which party bears the burden of persuasion at the district court level or at the administrative hearing level. Before 2005, we had always placed the burden of demonstrating compliance with the IDEA at the administrative hearing o n the school district.

L.E. , 435 F.3d at 391 (citing T.R. v. Kingwood Twp. Bd. of

Educ. , 205 F.3d 572, 579 (3d Cir. 2000); Oberti v. Bd. of

Educ. , 995 F.2d 1204, 1219 (3d Cir. 1993)). However, in 2005, in Schaffer v. Weast , 546 U.S. at 62, the Supreme Co urt held that the burden of persuasion in an administrative hearing under the IDEA lies with the party seeking relief. The Court explained that it saw no reason to depart from “the ordinary default rule that plaintiffs bear the risk of failing to prove th eir claims.” Id. at 56 (citing 2 J. Strong, McCormick on Evidence § 337, at 412 (5 th ed. 1999)) ; see L.E. , 435 F.3d at 391 (discussing the significance of Schaffer ).17 However, Schaffer did not address which party should bear the burden of persuasion when a party aggrieved by the decision of the administrative hearing officer challenges that

decision in district court. Nor have we explicitly decided this issue in articulating the district court’s standard of review. We now join our sister circuits in holdi ng that the party challenging the administrative decision bears the burden of persuasion before the district court as to each claim challenged. 3

3 Our conclusion today that the burden lies with the party challenging the administrative decision is entirely consistent with our previous cases, in which we held that the burden was properly placed on the parents before th e district court. In those cases, the parents were the losing party before the hearing officer and challenged the hearing officer’s

decision in district court. See Andrew M. v. Del. Cnty. Office of Mental Health & Mental Retardation , 490 F.3d 337, 345 (3 d Cir. 2007); L.E. v. Ramsey Bd. of Educ. , 435 F.3d 384, 392 (3d Cir. 2006). We did not specify, however, whether the parents bore the burden because they initially challenged the IEP (and the burden carried to the district court) or because they lost at the administrative hearing level. As our decision today makes clear, the relevant consideration is the outcome of the administrative proceeding, not which party requests an administrative hearing. See J.W. v. Fresno Unified Sch. Dist. , 626 F.3d 431, 438 (9th Cir. 2010); Marshall Joint Sch. Dist. No. 2 v.

C

.D. , 616 F.3d 632, 636 (7th Cir. 2010); District of Columbia

v. Doe , 611 F.3d 888, 897 (D.C. Cir. 2010). As the Supreme

Court noted in Schaffer , “[t]he burdens of pleading and proof with regard to most facts have been and should b e assigned to18 the [party] who .

. . seeks to change the present state of affairs.” 546 U.S. at 56 ( quoting McCormick on Evidence § 337, at 412). Under the IDEA, it is the party “aggrieved by the findings and decision” of the hearing officer that seeks to change the present state of affairs. See 20 U.S.C. § 1415(i)(2)(A). “Absent some reason to believe that Congress intended otherwise,” we conclude that the burden of persuasion falls where it usually does, on the party seeking

relief. See Schaffer , 546 U.S. at 57

- 58; see also S .H. , 336 F.3d at 270 (explaining that factual findings from the administrative proceeding are to be considered prima facie correct).

In this case, Parents argue that the District Court committed reversible error by placing the burden of persuasion on them as to all claims. We disagree. Although the District Court did, in fact, err by placing the burden on Parents with respect to the findings of the Hearing Officer that were challenged by Ridley, the error was harmless. 4

4 We note that Parents filed counterclaims, in which they challenged the Hearing Officer’s conclusion that Ridley did not violate the IDEA or the Rehabilitation Act during E.R.’s kindergarten year. Parents appropriately bore the burden of persuasion as to those claims because they were the party aggrieved by the Hearing Officer’s decision. We

will deem an error to be harmle ss if it is “highly probable”

that it did not affect the outcome of the case. Forrest v. Beloit Corp. , 424 F.3d 344, 349 (3d Cir. 2005) (citation omitted). In

a non

- criminal case, an error regarding the placement of the burden of persuasion will frequent ly be harmless. Schaffer

,19 546 U.S. at 56, 58. As the Supreme Court has explained, in a

non

- criminal case, the burden of persuasion only comes into play where the evidence is “closely balanced,” id. at 56, i.e.

, in cases “in evidentiary equipoise,” id. at 58. In this case, as we explain below, no factual issues are so “closely balanced” that the burden of persuasion would have affected the

outcome of the case. See id. at 56. Although some of the disputed issues involve questions of fact, the Hearing

Off icer’s errors stemmed largely from mistakes or omissions regarding the application of law to those facts. Questions of law, of course, are unaffected by the burden of persuasion. El v. Se. Pa. Transp. Auth. (SEPTA) , 479 F.3d 232, 238 (3d Cir. 2007) (stat ing that the burden of persuasion is the burden “to persuade the factfinder that one’s propositions of fact are indeed true” (citing Black’s Law Dictionary 190 (7th ed. 1999))). Thus, we hold that it is “highly probable” that the

District Court’s error re garding the placement of the burden of persuasion did not affect the outcome. Forrest , 424 F.3d at

349.

B. “Child Find” Requirement

Parents contend that the District Court erred in reversing the Hearing Officer’s determination that Ridley’s

failure to id entify E.R. as a child in need of special education services in the beginning of first grade denied her a FAPE. We disagree. “School districts have a continuing obligation under the IDEA . . . to identify and evaluate all students who are reasonably susp ected of having a disability.” P.P. v. West

Chester Area Sch. Dist. , 585 F.3d 727, 738 (3d Cir. 2009) (citation omitted); see 20 U.S.C. § 1412(a)(3) (explaining that states must “identif[y], locate[], and evaluate[]” all children20 with disabilities who are in need of special education, and must develop “a practical method . . . to determine which children with disabilities are currently receiving needed special education and related services”). This is referred to as the IDEA’s “child find” requirement. M atula , 67 F.3d at 492. Each state must establish procedures to fulfill this statutory directive. 34 C.F.R. § 300.111. Pennsylvania’s “child find” procedures are set forth in 22 Pa. Code. §§ 14.121 through

14.125.

Neither the IDEA, its implementing regul ations, nor the applicable Pennsylvania regulations establish a deadline by which children who are suspected of having a qualifying disability must be identified and evaluated. Accordingly, we have previously “infer[red] a requirement that this be done

wi thin a reasonable time after school officials are on notice of behavior that is likely to indicate a disability.” Matula , 67

F.3d at 501. 5

5 In W.B. v. Matula , 67 F.3d 484 (3d Cir. 1995), we were dealing with a challenge to a school district’s compliance with child find obligations under the IDEA and New Jersey law. However, because nothing in the Pennsylvania re gulations establishes a specified timeline for identifying and evaluating students, we will apply the “reasonable time” standard to school districts in Pennsylvania

as well. See id. at 501 (inferring the “reasonable time” requirement because neither the I DEA nor the applicable New Jersey regulations established such a deadline). In adopting the “reasonable time” standard, we noted the budgetary constraints and staffing pressures facing

school officials, and emphasized that we were not21 establishing any “bright

- line rule” as to what constitutes a

reasonable time. Id. Rather, we employ a case

- by

- case approach and assess whether the school district’s response was reasonable “in light of the info rmation and resources possessed” by the district at a given point in time. Id.

Here, in finding that Ridley denied E.R. a FAPE by failing to identify her as a student in need of special education services at the outset of first grade, the Hearing Officer never acknowledged that Ridley must be given a reasonable time to identify students as disabled. Rather, the Hearing Officer simply stated that Ridley had provided a number of intervention programs to E.R. during kindergarten, and

because E.R. continued t o struggle academically in first grade, Ridley should have known that further evaluation was required at the very start of the next school year . The Hearing Officer was particularly critical of E.R.’s first grade teacher, Janet Cenname, explaining that Ce nname was “extremely nervous and uptight” when testifying, she had to refer to notes, and she frequently tried to explain her actions in a

“non

- sensical way.” The Hearing Officer concluded that, based on E.R.’s struggles during the first month of first gr ade, much of which was spent reviewing kindergarten materials,

Cenname should have identified E.R. as a student in need of special education services at the very beginning of the year

, and thus should have recommended to Ridley that it conduct

another eval uation. Accordingly, the Hearing Officer determined that Ridley denied E.R. a FAPE “from the beginning of first grade to the time that the evaluation was completed” in February 2008.22 As the District Court observed, the Hearing Officer’s finding that Ridle y violated the IDEA by failing to identify E.R. as a child in need of special education services at the outset of first grade is difficult to reconcile with the Hearing Officer’s finding that Ridley complied with the IDEA during E.R.’s kindergarten year. E.R. was evaluated during kindergarten, and although areas of weakness were found, E.R.’s academic skills were generally considered to be in the average range. The Hearing Officer concluded that the kindergarten evaluation was “substantively appropriate,” and noted that “just because a child has an area of weakness, it doesn’t necessarily mean that [she has] a disability.” The Hearing Officer also noted that Ridley “appeared to be invested in addressing [E.R.’s] needs and providing appropriate instruction and interventions before rushing to special education identification.” As a result, the Hearing

Officer properly determined that Parents’ claim that Ridley violated the IDEA’s “child find” requirements during E.R.’s kindergarten year “lack[ed] any basis in the testimony or

documents.” 6

In light of the fact that E.R.’s kindergarten evaluations were appropriate, and she did not qualify as a student in need of special education services in June 2007 (the end of kindergarten), we cannot agree with the Hearing Officer that Ridley violated the IDEA and denied E.R. a FAPE by failing to immediately reevalua te her in September 2007. When a

6 Parents do not appeal the District Court’s decision affirming the Hearing Officer’s finding regarding E.R.’s kindergarten year.23 school district has conducted a comprehensive evaluation and concluded that a student does not qualify as disabled under

the I DEA, the school district must be afforded a reasonable time to monitor the student’s progress before exploring whether further evaluation is required. See Matula , 67 F.3d at

501. We assess whether a school district identified and evaluated a student susp ected of having a qualifying disability within a reasonable time “in light of the information and resources possessed” by the district. Id. Here, although E.R. struggled during the beginning of first grade, all prior

evaluations showed that she did not r equire special education services. Moreover, as Cenname testified, first grade was the “first time that the children ever ha[d] a chance to be in a test taking situation” and “[t]here were other children that also had difficulty . . . taking a test.” It was reasonable for Cenname to assess E.R.’s progress throughout the first marking period of first grade before recommending that E.R. again be evaluated to determine if she had a learning disability. The IDEA does not require a reevaluation every

time a s tudent posts a poor grade. Accordingly, we hold that Ridley complied with its “child find” obligations, and E.R.

was not denied a FAPE at the beginning of first grade. 7

7 Parents contend that the Distric t Court did not acc ord the proper deference to the Hearing Officer’s factual findings, particularly her finding that Cenname was not a credible witness. Where a hearing officer “has heard live testimony

and determined that one witness is more credible than another

witnes s, [the hearing officer’s] determination is due special weight.” D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 564 (3d24 Cir. 2010) (citation omitted). A district court must accept the hearing officer’s credibility determinations “unless the non

testimonial extrinsic evidence in the record would justify a contrary conclusion.” Id. (citations omitted). Here, central to the Hearing Officer’s conclusion that E.R. was denied a FAPE during the beginning of first grade was that Cenname “put off” meeting with E.R. ’s mother when E.R.’s mother expressed concern that her daughter had failed a math test.
However, Cenname responded to E.R.’s mother’s request for a meeting by sending back the following note:

Dear Mrs. [R],

I appreciate your concern about [E.R.’s] te st, but it is very early in the year. We need to give her

some time. Continue to work with her at home and reinforce what we are doing in class. I will probably

be out from Oct. 2

– Oct. 15. If you still have concerns at that time, I will be happy to m eet.25 C. E.R.’s IEP

Parents next contend that the District Court erred in reversing the He aring Officer’s finding that E.R.’s IEP was inadequate. For the reasons set forth below, we disagree. First, to the extent Ridley violated the IDEA’s procedural requirements by failing to include the requisite statement of specially designed instruction in the IEP, the violation was not actionable because it did not have any impact on the substantive rights of E.R. or Parents. Second, contrary to the Hearing Officer’s findings, E.R.’s educational plan included a

peer

- reviewed reading program, which, in c onjunction with the other services that E.R. was scheduled to receive, was sufficient to provide a FAPE. We will discuss these points in

turn.

1.

An IEP must consist of a detailed written statement arrived at by a multi

- disciplinary team specifying the

Thus, contrary to Parents’ suggestions, Cenname did not refuse to meet or indicate that a meeting was unnecessary. She expressed a clear willingness to meet, and simply told Parents that E.R. should be given some time to get her bearings. Parents n ever responded to this note and never met with Cenname to discuss E.R.’s academic struggles. Therefore, as the District Court found, non

- testimonial evidence in the record demonstrates that Cenname’s response to Parents’ request for a meeting was entirely reasonable, and that it in no way resulted in the denial of a FAPE. See D.S.

, 602 F.3d at 564.26 s ervices, including specially designed instruction, that the

child will receive. Polk v. Cent. Susquehanna Intermediate

Unit 16 , 853 F.2d 171, 173 (3d Cir. 1988). Parents contend that they are entitled to compensatory education because the IEP developed b y Ridley failed to set forth in sufficient detail

the specially designed instruction that would be provided to E.R. Parents acknowledge that subseq uent NOREPs issued by Ridley include d the required specially designed instruction, but they nevertheless arg ue that the IDEA requires that such information be included in the body of the

initial IEP. 8

Parents’ argument presents a challenge to Ridley’s compliance with the IDEA’s procedural requirements. Although we have held that “[t]he content of an IEP . . . d oes not implicate the IDEA’s procedural requirements for content is concerned with the IEP’s substance,” D.S. , 602 F.3d at 565, Parents’ argument here does not relate to the substance of the IEP. Rather, Parents’ argument is essentially that Ridley

violat ed the IDEA by including a description of specially designed instruction in the wrong document. We have made clear that although it is important that a school district comply with the IDEA’s procedural requirements, compliance is not a goal in itself; rat her, compliance with such procedural requirements is important because of the “requirements’ impact on students’ and parents’ substantive rights.” Id.

8 Although the District Court did not address this issue, Parents raised it in their brief before the District Court, and thus preserved it for review. See Ch ambers v. Sch. Dist. of Phila. Bd. of Educ. , 587 F.3d 176, 183

- 84 (3d Cir. 2009).27 Accordingly, “[a] procedural violation is actionable under the IDEA only if it results in a loss of edu cational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of educational benefits.” Id. (citing Winkelman v. Parma City Sch. Dist. , 550 U.S. 516,

525

- 26 (200 7)) (second citation omitted).

Here, to the extent that the absence of specially designed instruction in the IEP constituted a procedural violation, it did not affect the substantive rights of E.R. or Parents, and thus does not entitle Parents to an award of compensatory education. See id. Although Parents correctly

not e that the initial IEP did not specify all of the special

education services that E.R. would receive, subsequent

NOREPs contained that information. A NOREP issued on May 9, 2008

, provided that the educational plac ement

recom mended for E.R. was “[r]esource room learning support for math and reading in which a direct reading program will be done as well as a direct phonemic based program to address [E.R.’s] needs in decoding vocabulary, flue ncy and comprehension skills.” The M ay NOREP further stated that E.R. would receive “at least 60 minutes per day instruction for reading and at least 60 minutes per day math at Grace

Park Eleme ntary School until June 2008.” The NOREP

indicated that a n IEP Team meeting would be convened in

J une to review E.R.’s progress and discuss the implementation of Project Read for the 2008

- 2009 school year. Parents signed and approved the May NOREP. On June 9, 2008, Ridley issued a second NOREP, which explained that Ridley would provide training to it s staff on Project Read during the summer and the program would be28 up and running bef ore the end of September 2008. Until Project Read could be implemented, Ridley would continue to use the other resource room reading programs. The June

NOREP was never s igned by Parents due to their objection to Project Read

.

Because detailed specially designed instruction was set forth in the NOREPs, it is properly considered part of E.R.’s overall educational plan. Ridley’s admitted “mistake” in failing to include suc h information in the IEP itself did not deny E.R. any educational opportunity, nor did it deprive her of any educational benefits. See D.S. , 602 F.3d at 565. Moreover, Parents were intimately involved in the process of crafting E.R.’s IEP and do not cont end that they were unaware of the services E.R. was scheduled to receive. Thus, they were not denied their participation rights. See id. Accordingly, any deficiency in Ridley’s compliance with the procedural requirements of the IDEA is not a basis for

g ranting relief to Parents. Whether the specially designed instruction set forth in the IEP and the NOREPs was adequate to provide a FAPE is a separate question, which we will

address next.

2.

Parents’ next argument presents an issue of first impression in this circuit. The Hearing Officer found that E.R.’s IEP was inadequate, both for the end of the 2007

- 2008 school year (first grade), and all of the 2008

- 2009 school year (second grade) primarily because it “fail[ed] to provide a scientifically research

- b ased, peer reviewed reading program, which [E.R.] needed in order to make meaningful progress.”29 The Hearing Officer stated that although Project Read , the reading program chosen for E.R., “was designed to be research based,” there were “flaws in the resea rch supporting

it.” These statements were made in conclusory fashion, without elaboration, in a footnote of the Hearing Officer’s 20

-
pa ge opinion. They were not well

- explained or well

supported.

The District Court reversed the Hearing Officer’s

decision that the IEP was inappropriate, reasoning that the lack of a peer

- reviewed instructional program was not automatically fatal to an IEP, and even if it was, Project Read

was research

- based and peer

- reviewed. On appeal, we need

not decide whether the lack o f a peer

- reviewed reading program alone may result in the denial of a FAPE because we agree with the District Court that Project Read was based on

peer

- reviewed research. We will, however, consider Parents ’

contention s that Ridley denied E.R. a FAPE becau se the available research regarding Project Read was flawed and did not adequately demonstrate that Project Read would be effective for a student with E.R.’s learning disabilities. As we explain below, Parents’ arguments are unavailing ; the peer

reviewed specially designed reading instruction in E.R.’s IEP was “reasonably calculated to enable [her] to receive meaningful educational benefits in light of [her] intellectual potential.” Chambers , 587 F.3d at 182 (citation omitted). Ridley was not required to choose the reading program based

on the optimal level of peer

- reviewed research, or to implement the specific program requested by Parents.

We begin our analysis by reviewing the statutory provision at issue. In 2004, Congress added the following30 provisi on to the IDEA: “[t]he term ‘individualized education program’ or ‘IEP’ means a written statement for each child with a disability . . . that includes . . . a statement of the special education and related services and supplementary aids and services, bas ed on peer

- reviewed research to the extent practicable , to be provi ded to the child.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV) (emphasis added). This provision was incorporated into the revised IDEA regulations in 2006,

which state that an IEP “must include . . . [a] statement of the special education and related services and supplementary aids and services, based on peer

- reviewed research to the extent practicable, to be provi ded to the child.” 34 C.F.R. § 300.320(a)(4)

. Congress amended the IDEA in 1997 and

2 004, in part, to respond to concerns that the statute “ha[d] been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.” 20 U.S.C. § 1400(c)(4). T he IDEA’s statement of congressional findings explains that “[a]lmost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by” training teachers on “the use of scientifically based instructional practices, to the maximum extent possible,” and providing incentives for “scientifically based early reading programs.”

Id. § 1400(c)(5)(E) and (F).

Unfortunately, n either the text of the IDEA nor the IDEA regulations provide much guidance as to the eff ect of § 1414(d)(1)(A)(i)(IV)’s peer

- reviewed research provision in this case. Therefore, we will look to other instructive regulatory materials. See Auer v. Robbins , 519 U.S. 452, 46231 (1997) (explaining that when interpreting a statute and its implementing regulations, we may look to the agency’s interpretation of its own regulations); United States v. Occidental Chem. Corp. , 200 F.3d 143, 151

- 52 (3d Cir. 1999) (stating that we must defer not only to interpretations supported by notice

- and

- c omment rulemaking, but also “informal interpretations”); Cleary v. Waldman , 167 F.3d 801, 808 (3d Cir. 1999) (“[I]f an agency has been granted administrative authority by Congress for a statute, its interpretation

— despite arising in an informal context

— wil l be given deference as long as it is consistent with other agency pronouncements and furthers the purposes of the Act.”). In conjunction with its promulgation of the 2006 IDEA regulations, the U.S. Department of Education (“DOE”) issued an Analysis of Co mments and Changes to the 2006 IDEA Regulations (“Analysis of IDEA Regulations”), 71 Fed. Reg. 46,540 (2006). In response to a comment requesting “clear guidance on the responsibilities of States, school districts, and school personnel to provide special education and related services . . . that are based on peer

reviewed research,” the DOE stated that “States, school districts, and school personnel must . . . select and use methods that research has shown to be effective, to the extent

that methods based on peer

- reviewed research are available.” 71 Fed. Reg. at 46,665. The agency made clear, however, that a student’s IEP team retains flexibility in devising an appropriate program. The Analysis of IDEA Regulations explained that the changes implemented b y the 2004 IDEA amendments and the 2006 updated regulations32 “do[] not mean that the service with the greatest body of research is the service necessarily required for a child to receive FAPE. Likewise, there is nothing in the Act to suggest that the

failu re of a public agency to provide services based on peer

- reviewed research would automatically result in a denial of FAPE. The final decision about the special education and related services . . . that are to be provided to a child must be made by the chil d’s IEP Team

based on the child’s individual needs.”

Id.

In response to a comment requesting that the DOE require programs provided to a disabled child to be research

based with demonstrated e ffectiveness in addressing the particular needs of a child, the Analysis of IDEA Regulations stated, “[w]hile the Act clearly places an emphasis on practices that are based on scientific research, there is nothing in the Act that requires all programs provided to children with

disabilities to be research

- based with dem onstrated effectiveness in addressing the particular needs of a child where not practicable.” Id. The DOE declined to adopt the

recommend ed change because “ultimately, it is the child’s IEP Team that determines the special education and related

services that are needed by the child in order for the child to

receive FAPE.” Id. The DOE also rejected as “overly burdensome” a requirement that all IEP team meetings

include a focused discussion of research

- based methods and a proposed regulation that would fo rce schools to provide33 written notice when an IEP team does not provide

documentation of research

- based methods. Id. 9

We can discern two key principles from these administrative materials and our prior decisions interpreting the IDEA. First, although sch ools should strive to base a student’s specially designed instruction on peer

- reviewed research to the maximum extent possible, the student’s IEP team retains flexibility to devise an appropriate program, in light of the available research. See D.S. , 602 F.3d at 557; 71 Fed. Reg. at 46,665. Second, under the IDEA , courts must
accord significant deference to the choices made by school officials as to what constitutes an appropriate program for

each student. See D.S. , 602 F.3d at 556

- 57; Ridgewood Bd. of

E

duc. , 172 F.3d at 247; 71 Fed. Reg. at 46,664

- 65.

With these principles in mind, we will consider the two objections that Parents raise to the portion of E.R.’s IEP that addresses her reading and language disabilities. First, echoing the findings of the H earing Officer, Parents argue

that “there were flaws in the research [regarding the

9 Commenters also requested a more explicit definition of “peer

- reviewed research.” The DOE stated that “‘ [ p ] eer reviewed research’ generally refers to research that is

revi ewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published.” 71 F ed. Reg. 46,540, 46,664 (2006). However, the agency made clear that there was no single defi nition of “peer

- reviewed research” and it declined to include a specific definition for purposes of the

IDEA. Id.34 effectiveness of Project Read ] which made it impossible to attribute the reading growth the students experienced [in the studies] to Project Read alone.” Second, they cont end that none of the studies regarding Project Read demonstrated that the program was effective for students with E.R.’s specific disabilities. Both arguments miss the mark. Given that the IDEA does not require an IEP to provide the “optimal level of

ser vices,” D.S. , 602 F.3d at 557 (citations omitted), we likewise hold that the IDEA does not require a school district to choose the program supported by the optimal level of peer

reviewed research. Rather, the peer

- reviewed specially designed instruction i n an IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” Chambers

, 587 F.3d at 182 (citation omitted).

According to a 2007 review of Project Read published by the Florida Center for Reading Research (“FCRR”):

“ Project Read is a comprehensive language arts program designed to provide explicit instruction in a structured reading curriculum. The goal of the program is to help all students become thoughtful, purpo seful, and independent

readers. Project Read Curriculum may be implemented in the regular classroom, special education classes, and Title I classes. It may also be used as an intervention reading program for first through sixth graders or with

adolescent s and adults who struggle with reading or language learning. Whole or small group instruction is delivered by a classroom35 teacher, a special education teacher, or a reading teacher. Lessons are intended to occur daily within an extended block of time dev oted to reading instruction. Emphasis is placed on systematic, direct instruction of concepts and skills supported and enhanced by a teaching approach that includes visual, kinesthetic, auditory and tactile strategies (VAKT), and the use of body language. ”

After discussing several studies on the effectiveness of Project Read

, and citing relevant articles, at least one of which was published in a peer

- reviewed journal, the FCRR

revie w concluded that the research “ [was] promising and the

instructional strate gies of Project Read [we] re aligned with current research. Future studies with sound experimental designs including control groups and random assignment may contribute more definitive information about the efficacy of Project Read .” The FCRR review then listed numerous strengths of the Project Read program, and found no

weaknesses in Project Read ’s curriculum.

We understand Parents’ concern that the available

studies did not test Project Read ’s effectiveness for students with E.R.’s unique combina tion of disabilities. However, the

research discussed in the FCRR review involved children of E.R.’s age who struggled with reading, and indicated that Project Read was helpful in improving the re ading skills of such students. Additionally, Hodges, Grace Park’s resource room teacher, and Woods, Ridley’s director of special education, both of whom have expertise in the field of special education, testified that Project Read was an appropriate36 reading program for E.R. 10

Parents argue that, in contrast to Project Read , the program they requested, The Wilson Reading System , has

been sho wn to be effective for teaching students with learning disabilities similar to those of E.R. However, Ridley did not

have to choose the specific program requested by Parents.

See D.S. , 602 F.3d at 557. Nor did it have to choose the program supported by the optimal level of peer

- reviewed

research. See id. ; 71 Fed. Reg. at 46,665 (explaining that a school does not have to choose the program supported by the “greatest body of research”). “The IDEA accords educators

discretion to select from various method s for meeting the individualized needs of a student, provided those practices are reasonably calculated to provide h[er] with educational

benefit.” R.P. v. Prescott Unified Sch. Dist. , 631 F.3d 1117, Woods explained that, “ Project

Read is a mult i

- sensory program that is based on Orton Gillingham’s principles that support learning disabled students. The research from Florida was very promising in terms of these students doing quite well.” Woods further testified that “[t]he program . . . had a l ot of components that learning disabled students learn by [including] what we called VAKT program, visual, auditory, kinesthetic, and touch. And most learning disabled students do very well when you bring all of the senses into the learning process.” Hod ges also

testified that Project Read was a research

- based program and similar to other reading programs, such as The Wilson Reading System

.

10 The Hearing Officer did not discuss the assessments

of Project Read provided by Hodges and Woods.37 1122 (9th Cir. 2011) (citations omitted); see Rowley , 4 58 U.S. at 207 (explaining that school districts have “[t]he primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs”). In selecting special

educat ion programs, a school district must be able to take into account not only the needs of the disabled student, but also

the financial and administrative resources that different programs will require, and the needs of the school’s other

non

- disabled student s. See J.D. v. Pawlet Sch. Dist. , 224 F.3d 60, 70 (2d Cir. 2000) (explaining that, in the context of the Rehabilitation Act, courts must be aware of the “need to strike a balance” between the rights of the disabled student

and fiscal and administrative co ncerns); 71 Fed. Reg. at 46,665 (rejecting a proposed requirement on an IEP team as “overly burdensome”).

We will not set forth any bright

- line rule as to what constitutes an adequately peer

- reviewed special education program; hearing officers and reviewin g courts must continue to assess the appropriateness of an IEP on a case

- by

- case basis, taking into account the available research. We recognize that there may be cases in which the specially designed instruction proposed by a school district is so at

odd s with current research that it constitutes a denial of a

FAPE. See

, e.g. , Waukee Cmty. Sch. Dist. v. D.L. , No. 07

- 00278, 51 IDELR 15 (LRP) (S.D. Iowa Aug. 7, 2008) (explaining that a student was denied a FAPE, in part, because the school district frequen tly employed strategies

which contradicted the relevant research and were even

inconsistent with the school’s own assessment of the38 appropriate program for the student). 11

11 T he IDEA’s peer

- reviewed research requi rement is

not set forth in isolation; it is part of a broader section discussing the content of the IEP, which requires “a statement of the special education and related services . . . that will be provided for the child” to meet certain specified objectiv es, namely “to advance appropriately toward attaining the annual goals[,]” “to be involved in and make progress in the general education curriculum . . . and to participate in extracurricular and other nonacademic activities[,]” and “to be educated and pa rticipate with other children with

disabilities and nondisabled children in” educational activities. 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Additionally, if it is practicable for a school district to implement a program base d

upon peer

- reviewed research, and the school fails to do so, that will weigh heavily against a finding that the school provided a FAPE. However, that is not the case here. Ridley relied on available peer

- reviewed research in crafting the IEP for E.R., a nd proposed a program with specially designed instruction that was “reasonably calculated” to enable her to achieve meaningful educational benefits in light of her intellectual potential and individual abilities. See Rowley

, 458 U.S. at 207. Thus, we con clude that the District Court39 properly reversed the Hearing Officer’s finding that the IEP was inadequate to provide a FAPE. 12

12 The Heari ng Officer also awarded Parents compensatory education for the end of the 2007

- 2008 school year, despite the fact that Project Read was not yet implemented, and Ridley was continuing to use its existing “resource room” reading program. The Hearing Officer did not explain this conclusion, and based on the record, we

cannot agree . Pursuant to E.R.’s IEP and the M ay NOREP

, both of which Parents agreed to, for the last eighteen days of first grade, E.R. received one hour of reading instruction in

the resource room. The resource room reading curriculum

consisted of Reading Naturally

, Reading Workshop

, Writing

Worksh op , and Patricia Cunningham’s Systematic Phonics

. Hodges testified that although the same programs were used for all students in the resource room, she tailored the programs to each student’s individual needs. Moreover,

E.R.’s evaluations all indicated t hat she would benefit from

multi

- sensory learning, and Hodges explained that all

activities done in the resource room wer e multi

- sensory. She also explained that “all of the research points to a balanced literacy program which is hammering away at phonemi c awareness, phonics, comprehension, fluency, and vocabulary. And with the repertoire that we were using throughout the week, I think we hit all those schools.” We can find no evidence in the record that rebuts this testimony. In light of

the fact that reviewing courts must be mindful not to substitute their views of what constitute preferable educational methods for those of school officials, who have40 D. Section 504 of the Rehabilitation Act

Parents next contend that the District Court erred in reversing the Hearing Officer’s de termination that Ridley violated § 504 of the Rehabilitation Act during E.R.’s first grade year. We disagree. The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disabili ty, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination” under any program that receives federal funds. 29 U.S.C. § 794(a). This prohibition was extended to public school systems through § 504. Id. § 794(b )(2)(B). To establish a violation of § 504 of the Rehabilitation Act, Parents were required to prove that (1) E.R. was disabled; (2) she was “otherwise qualified” to participate in school activities; (3) Ridley received federal financial assistance; and ( 4) E.R. was excluded from participation in, denied the benefits of, or subject to

expertise in the area, D.S. , 602 F.3d at 564, we agree with the District Court that the Hearing Officer erred in determining that Ridley denied E.R. a FAPE during the end of first grade.

Because we hold that the resource room instruction provided during the end of the 2007

- 2008 school year was sufficient to provide a FAPE, we likewise hold that the Hearing Officer erred in finding that the IEP was inadequate for September 2008 (the first month of second grade). The same programs that were used during the end of first grade were scheduled to be used in September, until Project Read was ready to be implement ed.41 discrimination at Ridley. Ridgewood Bd. of Educ. , 172 F.3d at 253. Here, the parties dispute only the fourth element.

As we have explained, § 504’s “negative prohibition” is similar to the IDEA’s “affirmative duty” and also requires schools that receive federal financial assistance to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction.”

Matula , 67 F.3d a t 492

- 93 (quoting 34 C.F.R. § 104.33(a)). To offer an “appropriate” education under the Rehabilitation Act, a school district must reasonably accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access

to educational benefits. See J.D. , 224 F.3d at 70 (citing

Alexander v. Choate , 469 U.S. 287, 300 n.20 (1985)); D.S.

, 602 F.3d at 556 (explaining that under the IDEA, a state must supply an education that provides “significant learni ng” and “meaningful benefit”) (citation omitted); Ridgewood Bd. of

Educ. , 172 F.3d at 253. 13

13 The regulations implementing § 504 of the

Rehabilitation Act state: “the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet

individual educational needs of handicapped persons as adequately as the nee ds of nonhandicapped persons are met.

. . . ” 34 C.F.R. § 104.33(b)(1). However, § 504 does not mandate “substantial” changes to the school’s programs, Se. Cmty.

Coll. v. Davis , 442 U.S. 397, 405 (1979), and courts “should

be mindful o f the need to strike a balance between the rights of the student and h[er] parents and the legitimate financial42 and administrative concerns of the [s]chool [d]istrict,” J.D.

, 224 F.3d at 70

- 71 (internal marks and citation omitted). But “[t]he fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different

services.” Helen L. v. DiDario , 46 F.3d 325, 338 (3d Cir. 1995) (quoting H.R. Rep. No . 485, reprinted in 1990 U.S.C.C.A.N. at 473).

In June 2006, prior to E.R.’s kindergarten year, Ridley prepared an Allergy Treatment Plan, which alerted school staff to E.R.’s allergies and the signs of an allergic reaction, and explained how school offic ials should react if E.R. were to have an allergic reaction. In February 2007, a § 504 Service Agreement was implemented to further address E.R.’s health issues. The Service Agreement reflected Parents’ request that E.R. be included in as many activities as possible, and provided that because E.R. was “only to eat foods provided by parents,” Parents were to be contacted before activities involving shared food so that appropriate alternatives could be provided. The Service Agreement also required all stud ents in the classroom to wash their hands before and after meals, required E.R. to wash her hands after touching physical education or OT equipment, mandated that E.R. wear gloves provided by Parents when handling glue, and provided that E.R. would only us e supplies and utensils provided by Parents.

Parents allege that Cenname “stubbornly and persistently” refused to implement the Service Agreement, which led to E.R. being “singled out, isolated and denied full participation with her classroom peers.” The Hearing Officer43 cited the following incidents as evidence of Ridley’s discrimination against E.R. First, as part of a “Clifford the Dog” celebration, E.R.’s classmates were given brownies with red icing and red juice, but because E.R.’s allergies
prevente d her from eating that food, she was given a cupcake from the nurse’s freezer that had been provided by her mother. Second, a program on nutrition was offered, along with a specific snack. Although Parents were notified of the program in advance, they we re not told what the snack would be, and therefore, E.R. ended up having to eat a snack from home. Third, according to E.R.’s mother, Cenname cancelled an Earth Day project rather than desig n an alternative snack

for E.R. E.R.’s mother testified that Cen name commented that she did not understand why the other students in class should have to accommodate one child when E.R.’s parents could provide separate food. Fourth, due to her allergies, E.R. was required to wear loose cotton clothes. E.R.’s mother

t estified that she often had difficulty locating reasonably priced clothing that complied with Ridley’s dress code: green shirts, khaki pants, and a white sweater. Despite this difficulty, on two occasions, Cenname remarked to E.R. that

her clothes were n ot in compliance with the dress code, which according to Parents, caused E.R. to “feel[] humiliated.” Fifth, students in E.R.’s first grade class participated in an activity in which they worked with partners to sift sand, pebbles, and gravel, and compare the various shapes and sizes. Due to her severe allergies, E.R. was not permitted to touch dirt without using gloves. Cenname testified that she had forgotten about the sand activity when preparing her update to E.R.’s mother, and thus, was unsure wheth er E.R. could touch any of the materials. “To be safe,” Cenname44 instructed E.R. to let her partner handle the materials, but E.R. was allowed to participate in the project in every other way. Finally, E.R. was given several poor grades on penmanship test s. Parents blame this on Cenname’s failure to

notice that E.R.’s chair did not allow her to brace herself for writing tasks.

We agree with the District Court that although each of these incidents “may illustrate how E.R.’s daily school

routine necessaril y had to be different than her classmates,” they do not constitute § 504 violations. Ridley , 2011 WL 499966, at *17. There is no evidence in the record that E.R. was excluded from participation in educational activities, denied educational benefits, or o therwise subjected to

discrimination. See Ridgewood Bd. of Educ. , 172 F.3d at 253. E.R. was not denied meaningful participation in the food

related activities; she simply had to eat something slightly different than the food eaten by her classmates. Par ents argue that Cenname could have complied with the Rehabilitation Act by allowing E.R.’s mother to prepare snacks for the entire class that were suitable to E.R.’s dietary needs. The statute simply does not require that. See Davis , 442 U.S. at 410 (exp laining that the Rehabilitation Act distinguishes “between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps”). Similarly, E.R. was not denied the educational

benefit of the sand, pebbles, and gravel lesson, even though she was not allowed to touch the materials. Contrary to Parents’ suggestions, this case does not involve a situation in which a school district attempted to provide separate

- but

equal services to a disabled st udent. See Helen L. , 46 F.3d at45 338. Ridley took reasonable steps to accommodate E.R.’s disabilities and include her in all class activities; it was not required to grant the specific accommodations requested by

Parents or otherwise make substantial modi fications to the programs that were used for all other students. J.D. , 224 F.3d at 70. Additionally, although Cenname may have exercised poor judgment in commenting on E.R.’s clothes, in the

absence of evidence that E.R. was excluded from participation i n educational activities or denied educational benefits, two isolated comments do not rise to the level of a §

504 violation. See Ridgewood Bd. of Educ. , 172 F.3d at 253. Nor does Cenname’s alleged failure to identify the position of

E.R.’s chair as the source of her struggles on penmanship

tests.

E. Other Claims

Finally, Parents argue that the District Court erred in dismissing their claim for damages under the Rehabilitation Act, their claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. , and a state law claim against Cenname for “outrageous conduct causing severe

emotional distress.” Parents contend that these claims were not the subject of Ridley’s motion for judgment on the administrative record, and thus were not befor e the District Court. Accordingly, Parents ask us to remand to the District Court to consider their remaining claims. We decline to do so; although the District Court did not address the claims, we can affirm based on any grounds supported by the record.46 Chambers , 587 F.3d at 183

- 84. 14

IV. Conclusion First, because Parents’ Rehabilitation Act claim fails, they are not entitled to damages. Second, the substantive standards for determining liability under the Rehabilitation Act and the ADA are the

same, McDonald v. Pa. Dep’t of Pub. Welfare , 62 F.3d 92,

94

- 95 (3d Cir. 1995), and thus the District Court did not err in disposing of Parents’ claim under the ADA. Finally, because no federal claims remained, dismissal of Parents’ state law claim was proper under 28 U.S.C. § 1367(c)(3).

For the foregoing reasons, we will affirm the order of

the District Court.

14 Although the principle that an appellate court may affirm on any grounds supported by the record has p reviously

been articulated in the summary judgment context, it is based on considerations of judicial efficiency, and we see no reason not to apply the same principle to a district court’s grant of judgment on the administrative record.