Abigail P., through her Parent, Sarah F. v. OLD FORGE SCHOOL DISTRICT On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1680
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ABIGAIL P., through her Parent, Sarah F.,
Appellant
v.
OLD FORGE SCHOOL DISTRICT
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-21-cv-02033)
Magistrate Judge: Honorable Karoline Mehalchick
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Argued on February 8, 2024
Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
Judges.
(Filed: June 26, 2024)
Dennis C. McAndrews
Michael J. Connolly
Jacqueline C. Lembeck [ARGUED]

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D. Daniel Woody
McAndrews Mehalick Connolly Hulse & Ryan
30 Cassatt Avenue
Berwyn, PA 19312
Counsel for Appellant
Michael D. Raffaele
Raffaele & Associates
1230 County Line Road
Bryn Mawr, PA 19010
Counsel for Amici Curiae Education Law Center of
Pennsylvania, American Civil Liberties Union of
Pennsylvania, ARC Alliance, and ARC of Pennsylvania
in Support of Appellant
Thomas A. Specht [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
This appeal requires us to decide whether a disabled
child received a free appropriate public education (FAPE)
during the COVID-19 pandemic. Through her mother, Abigail
P. filed a due process complaint against the Old Forge School
District under the Individuals with Disabilities Education Act

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(IDEA), Section 504 of the Rehabilitation Act, and
Pennsylvania state law. She claimed Old Forge denied her a
FAPE when the school district moved to remote instruction
during the pandemic. Both a hearing officer appointed by the
Pennsylvania Department of Education and the District Court
disagreed. We will affirm.
I
A
Abigail suffers from severe disabilities. Her epilepsy,
autism, global developmental delays, and other disabilities
substantially impair her ability to participate in school without
intensive, specially designed instruction and ample support
from teachers, therapists, and other staff. Though she was nine
years old during the 2020–21 school year, Abigail’s
intellectual, language, and visuospatial functioning placed her
below the 0.1 percentile of her age group—cognitively
equivalent to a typical two- or three-year-old child. Because
she is generally non-verbal and “has significant
expressive/receptive and pragmatic language delays,” App.
360, Abigail requires speech and language therapy,
occupational therapy, physical therapy, applied behavioral
analysis programming, aided language output (e.g., picture
cards to help her communicate), and a full-time autism support
program. She often engages in self-harm (e.g., head-butting
and punching herself in the chin) and physical aggression
toward others. Yet Abigail remains “capable of developing and
learning, albeit at an individualized pace in comparison to her
typical age and grade peers.” App. 371.
Before the COVID-19 pandemic, a neuropsychologist
and a speech-language pathologist evaluated Abigail and

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issued reports providing detailed recommendations for her
education. Although the neuropsychologist noted Abigail
“does well and has a preference for learning on . . . iPads,” id.,
neither specialist addressed the possibility of remote education
for Abigail. Instead, they emphasized the benefits of “[v]isual
and tactile stimuli,” App. 373, “hands-on, physical, or sensory
activities,” id., and “physical . . . circles of interaction,” App.
405. In considering Abigail’s academic programming, Old
Forge reviewed both reports and acknowledged that they
identified Abigail’s educational needs.
B
Old Forge began the 2020–21 academic year with in-
person learning. Two days before Thanksgiving, a student in
Abigail’s school tested positive for COVID-19. The next day,
consistent with guidelines issued by agencies of the
Commonwealth of Pennsylvania, Old Forge moved all of its
schools to remote instruction and continued to provide remote
instruction throughout December. On January 8, 2021, these
agencies amended their prior guidelines to permit elementary
and at-risk students to resume in-person instruction beginning
on February 1, provided it was safe to do so based on factors
such as transmission rates and building facilities. However, the
Old Forge School Board delayed the return to in-person
education for an additional two weeks because of high
positivity rates in the area. As a result, Old Forge provided
remote instruction from November 25, 2020 until February 16,
2021, plus four more days during the spring of 2021 to allow
for “a specialized cleaning” of its schools. App. 128.
Both the Old Forge School District Superintendent and
its Director of Special Education recognized that in-person
education was optimal for Abigail, as one of their most at-risk

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students. But despite a specific request by Abigail’s mother,
Old Forge prevented Abigail and the four other disabled
students in her class from attending class in person, citing
public health concerns. During this period, the school district
permitted in-person varsity basketball practices to resume
beginning on January 4, 2021, so the teams would remain
eligible for the district and state playoffs.
C
Throughout Old Forge’s period of remote instruction,
an individualized education plan (IEP) was in place for
Abigail. The IEP included annual goals and detailed metrics on
how progress was to be measured, in addition to specially
designed instruction and program modifications. It specified
that Abigail would receive related services, including three
half-hour sessions each week for both speech/language therapy
and occupational therapy as well as one half-hour session each
week for both physical therapy and adaptive physical
education.
After the IEP team1 implemented revisions in December
to reflect the shift to remote instruction, the IEP stated that
1 Under the IDEA, an IEP team is responsible for “meet[ing]
and writ[ing] the IEP considering the strengths of the child, the
concerns of the parent, and the most recent evaluation of the
child.” S.H. v. State-Operated Sch. Dist. of City of Newark, 336
F.3d 260, 264 (3d Cir. 2003) (citing 20 U.S.C. § 1414(d)(3)).
At a minimum, the team must include “the child’s parents, at
least one special education teacher of the child, a specialist in
developing curriculum from the local district, and at the
request of the parent or the school district, anyone with special

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Abigail would have Zoom sessions five days per week, with
optional Google classroom assignments four days per week.
Two days per week, Abigail’s mother opted to have Abigail
participate in circle (i.e., group) time instead of occupational
therapy because of a scheduling conflict. One behavioral goal
related to following schedules was “placed on hold” because it
could not “be monitored appropriately in a virtual setting.”
App. 503. For similar reasons, the monitoring of Abigail’s
completion of instructional tasks throughout the day was
slightly reduced. Abigail’s mother agreed to each of these
revisions. See App. 258, 467.
D
When she attended school in person, Abigail was in an
autism support classroom from 8:25 a.m. to 2:30 p.m. There,
she participated in group activities with social and emotional
components and received individualized instruction in reading
and math. Abigail also received “support services and adapted
gym.” App. 225.
After Old Forge moved to remote instruction, Abigail
generally continued to receive these services, see App. 226,
244–45, including the full amount of physical therapy and
speech therapy, see App. 251–54. “Boom cards2 were still
provided,” and “[m]atching Velcro activities were sent home.”
App. 287. Abigail also received “a dry erase[] marker and
letters and numbers,” so she could practice writing every day.
knowledge or expertise related to the child’s education.” Id.
(citing 20 U.S.C. § 1414(d)(1)(B)).
2 Boom cards are interactive activities that can be accessed via
a computer app.

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Id. And circle time increased slightly to between 30 and 40
minutes each day. Id.
As compared to normal school, however, Abigail
received less one-on-one instruction—only about 15 minutes
each of math and reading per day. On some of the days, an aide
provided the instruction instead of a certified special education
teacher. Abigail struggled to engage with remote instruction,
even with the in-person support of a behavioral health
technician and a nurse, and her physical therapy sessions
focused on using the stairs at home, which were very familiar
to her and thus did not present a challenge. She also no longer
received the benefit of spending time with non-disabled
students. And although she made some progress toward her
academic goals, she also experienced some regression,
especially behaviorally. Abigail’s inappropriate behavior
decreased to its prior levels only several months after Old
Forge returned to in-person instruction.
At the end of the school year, Old Forge offered Abigail
compensatory education for at least some of her related
services. Abigail’s mother declined that offer because she had
already made plans for Abigail to attend a summer camp
designed to address any educational deficits that arose because
of remote instruction.
E
On March 4, 2021, Abigail filed an administrative
complaint with the Pennsylvania Department of Education and
requested a special education due process hearing. She claimed
she had been denied a FAPE under the IDEA and that Old
Forge had violated Section 504 of the Rehabilitation Act and

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Pennsylvania state law.3 In her view, Old Forge had “offered
only minimal virtual instruction, which Abigail was not able to
appropriately access.” App. 620. Following a one-day hearing,
the Administrative Hearing Officer denied all requested relief
after concluding that Old Forge had not denied Abigail a
FAPE.
Following an appeal under 20 U.S.C. § 1415(i)(2), the
District Court affirmed the Hearing Officer’s decision. See
Abigail, P. ex rel. Sarah F. v. Old Forge Sch. Dist., 2023 WL
2505011, *7–18 (M.D. Pa. Mar. 14, 2023). Abigail filed this
timely appeal.4
II5
“We require a district court to apply a nontraditional
standard of review when considering an appeal from a state
administrative decision under [the] IDEA.” Mary T. v. Sch.
Dist. of Phila., 575 F.3d 235, 241 (3d Cir. 2009). “Although
3 Abigail’s mother also asserted a disability discrimination
claim under Section 504 of the Rehabilitation Act. She
abandoned that claim in the District Court.
4 On appeal, Abigail does not argue that Old Forge violated
Pennsylvania law. And as the District Court correctly
recognized, Abigail, P., 2023 WL 2505011, at *16–17,
concluding that Abigail is not denied a FAPE “is equally
dispositive of [her] [Section] 504 claim,” D.K. v. Abington Sch.
Dist., 696 F.3d 233, 253 n.8 (3d Cir. 2012). For these reasons,
we resolve this case under the IDEA.
5 The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291.

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the District Court must make its own findings by a
preponderance of the evidence, the District Court must also
afford due weight to the [administrative law judge’s]
determination.” Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex
rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (cleaned up).
“Factual findings from the administrative proceedings are to be
considered prima facie correct,” and if a district court “fails to
adhere to them, it is obliged to explain why.” S.H. v. State-
Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d
Cir. 2003) (citations omitted).
Within the confines of this “modified de novo” review,
id., we exercise plenary review over the District Court’s
conclusions of law, Warren G. ex rel. Tom G. v. Cumberland
Cnty. Sch. Dist., 190 F.3d 80, 83 (3d Cir. 1999). We review
factual findings for clear error, including the Court’s
determination of whether an IEP is appropriate. See D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010). And
we must accept the Hearing Officer’s credibility
determinations “unless the nontestimonial, extrinsic evidence
in the record . . . justif[ies] a contrary conclusion.” D.K. v.
Abington Sch. Dist., 696 F.3d 233, 243 (3d Cir. 2012) (citation
omitted).
On appeal, Abigail argues the District Court erred in
concluding that the Hearing Officer: (1) properly applied the
FAPE standard; and (2) correctly determined that Old Forge
provided a FAPE to Abigail during remote instruction. We
consider each argument in turn.
III
Abigail first claims “[t]he District Court failed to apply
plenary review to determine whether the Hearing Officer

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applied the correct standard of FAPE to [her] individualized
education.” Abigail P. Br. 19. She describes “[t]he Hearing
Officer’s decision [as] replete with allowances and excuses for
[Old Forge’s] virtual programming based solely on the
pandemic and ignoring [Abigail’s] overwhelming needs.”
Abigail P. Br. 21. The record belies this characterization.
Citing Endrew F. ex rel. Joseph F. v. Douglas County
School District RE-1, 580 U.S. 386 (2017), the Hearing Officer
accurately stated the FAPE standard at the outset of his
analysis: “the parent can prove that a student’s individualized
education plan is not appropriate by showing that it was not
reasonably calculated to confer meaningful educational benefit
in light of the student’s unique individual circumstances at the
time that it was written.” App. 78–79. Based on this standard,
he proceeded to evaluate the reasonableness of the IEP in this
way:
At the time that they were written, the student’s
IEPs were clearly designed to meet the student’s
needs. The student’s IEPs adopted many of the
recommendations contained in the independent
educational evaluation of the student. The IEPs
included academic goals and goals to address the
student’s behavioral and social/emotional needs.
The IEPs included appropriate specially
designed instruction and modifications. The
IEPs provided the related services of
speech/language, physical therapy, occupational
therapy and adaptive physical education.

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App. 79. Although the Hearing Officer recognized that the
remote instruction “took place during a deadly public health
crisis,” App. 82, he never excused Old Forge from providing
Abigail with a FAPE. So the District Court did not err in
concluding that the Hearing Officer correctly applied the
FAPE standard in his decision.
IV
We turn next to the claim that Old Forge did not provide
a FAPE to Abigail during remote instruction, either because it:
(1) created an IEP that was not reasonably calculated to yield
meaningful educational progress; or (2) failed to fully
implement the IEP.
A
The IDEA requires States to “make available a free and
appropriate public education to all children with disabilities
residing within their borders.” D.S., 602 F.3d at 556. The
statutory definition of a FAPE includes both “special
education,” “specially designed instruction . . . to meet the
unique needs of a child with a disability”; and “related
services,” which are “required to assist a child . . . to benefit
from” special education. 20 U.S.C. § 1401(9), (26)(A), (29).
“The IEP is the centerpiece of the [IDEA’s] education
delivery system for disabled children” and “the means by
which special education and related services are tailored to the
unique needs of a particular child.” Endrew F., 580 U.S. at 391
(cleaned up). To be sufficient under the IDEA, an IEP must be
“reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Id. at 399
(emphasis added). “Though the IEP must provide the student

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with a basic floor of opportunity, it need not necessarily
provide the optimal level of services that parents might desire
for their child.” D.S., 602 F.3d at 557 (cleaned up).
B
Because the District Court had to regard the Hearing
Officer’s factual findings as prima facie correct, see S.H., 336
F.3d at 270, we first identify the relevant factual findings.
The [independent neuropsychological] report
makes a number of recommendations, many of
which were implemented by the school district in
[Abigail’s] IEPs. . . . [Abigail’s] IEP includes
goals for number and letter matching, a
social/emotional goal and two behavioral goals.
In addition, the IEP provides for a number of
modifications and specially designed instruction.
The IEP also provides for the related services of
speech/language therapy, occupational therapy,
physical therapy and adaptive physical
education. . . . In addition to time with the
teacher and paraprofessionals, the student
received related services during virtual
instruction. The student’s . . . speech therapy
went very well during this period of time. The
student also received . . . occupational therapy
and physical therapy during virtual instruction.
App. 71–73 (citations omitted).
Abigail argues that these findings relied on “minimal,
unsupported and equivocal testimony in the record.” Abigail P.
Br. 24. We disagree. In the absence of non-testimonial

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evidence in the record contradicting this testimony, we must
credit the Hearing Officer’s credibility determinations,
including his conclusion that the testimony of Old Forge staff
was more credible and persuasive than that of Abigail’s
mother. See P.S., 381 F.3d at 199. This is especially true
because Abigail’s mother repeatedly claimed, contrary to
documentary evidence later submitted by Old Forge, that she
paid for the nurse who was present with Abigail during remote
instruction.
The IDEA requires us to consider “the appropriateness
of an IEP as of the time it was made,” D.S., 602 F.3d at 564
(emphasis added) (citation omitted), while leaving the manner
in which a student is educated to the discretion of school
administrators, see Ridley Sch. Dist. v. M.R., 680 F.3d 260,
278–79 (3d Cir. 2012). At the time it was written, and agreed
to by her mother, Abigail’s IEP was designed to provide her
with the capacity for “meaningful educational benefits.” P.S.,
381 F.3d at 182. It adopted many of the recommendations
contained in the independent educational evaluations,
incorporated suitable academic and behavioral goals, and
provided for appropriate related services. In light of the
Hearing Officer’s factual findings, the District Court did not
clearly err in concluding Abigail’s IEPs were “reasonably
calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Endrew F., 580 U.S. at 399.
C
In addition to her critique of the IEP’s content, Abigail
claims it was not implemented properly. When a party
challenges the implementation of an IEP, “the heart of [the]
issue [i]s . . . whether any deviation whatsoever from an IEP
necessarily violates the IDEA, and—if not—how far is too

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far.” L.J. ex rel. N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d
1203, 1211 (11th Cir. 2019). Several of our sister courts have
held that “a party challenging the implementation of an IEP
must show more than a de minimis failure to implement all
elements of that IEP, and, instead, must demonstrate that the
school board or other authorities failed to implement
substantial or significant provisions of the IEP.” Houston
Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)
(second emphasis added); see, e.g., Van Duyn ex rel. Van Duyn
v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007);
Sumter Cnty. Sch. Dist. 17 v. Heffernan ex rel. TH, 642 F.3d
478, 484 (4th Cir. 2011); L.J., 927 F.3d at 1211. We agree and
hold as much here.
The text of the IDEA “counsels against making minor
implementation failures actionable given that ‘special
education and related services’ need only be provided ‘in
conformity with’ the IEP.” Van Duyn, 502 F.3d at 821 (quoting
20 U.S.C. § 1401(9)). “The phrase ‘in conformity with’
suggests that general agreement or congruence, not perfect
adherence, is the standard.” L.J., 927 F.3d at 1212 (citations
omitted). Indeed, a requirement of perfect adherence “would
ignore the realities and the challenges that the IDEA was built
to accommodate.” Id. at 1213. A materiality standard “affords
local agencies some flexibility” while still “hold[ing] those
agencies accountable for material failures and for providing the
disabled child a meaningful educational benefit.” Bobby R.,
200 F.3d at 349.
Abigail asserts that Old Forge implemented “drastic
changes to the frequency and duration of [her] special
education and related services.” Abigail P. Br. 25. At oral
argument, counsel claimed Old Forge: (1) eliminated all of
Abigail’s specially designed behavioral instruction during

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online learning, Oral Arg. 10:02–10:10; (2) failed to deliver the
full amount of related services, id. at 10:52–11:00; and
(3) reduced Abigail’s daily instructional time from more than
six hours to just over one hour, id. at 10:36–52. These
contentions lack sufficient support in the record to overcome
clear-error review.
Although Abigail’s teacher explained she was not
implementing “anything that was behavioral,” App. 300,
Abigail did receive—in accordance with her IEP—behavior
tech and Board Certified Behavior Analyst services from
Beyond Behavioral Consulting. App. 243, 412, 472. Abigail
also received the full amount of physical therapy and speech
therapy during remote instruction. And when she missed
occupational therapy sessions, it was because her mother chose
to have Abigail attend circle time instead. App. 251–54.
Finally, Abigail received only a “slight decrease” in her
daily instructional time during remote instruction, where she
worked with her teacher on the computer for an hour and 10
minutes each day. Abigail, P., 2023 WL 2505011, at *2–3.
Abigail disputes this, emphasizing that her in-person school
day lasted from 8:25 a.m. to 2:30 p.m. But not all of that in-
person time consisted of individualized instruction with her
teacher: it included breakfast and lunch as well as related
services and “independent activities” to “practice what [she]
had been working on during the one-on-one session[s].” App.
285. Abigail received most of her related services during
remote instruction, and Old Forge provided her with boom
cards, matching Velcro activities, and a dry erase marker with
letters and numbers, so she could continue to do independent
activities during the school day.

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None of this suggests that Abigail’s remote learning
program was ideal; it was inferior to in-person instruction. But
Abigail has failed to identify a failure by Old Forge to
implement substantial or significant provisions of her IEP. So
her challenge to the implementation thereof must fail.
V
We conclude by addressing the assertion made by amici
curiae in support of Abigail that the District Court’s decision
“suggests the perverse result” that a school district may provide
remote instruction under “any circumstance[s].” Amici Br. 14.
We disagree, and nothing in our opinion today should be
construed to support this extreme claim.
Remote instruction is not a per se violation of the IDEA.
See Bouabid v. Charlotte-Mecklenburg Schs. Bd. of Educ., 62
F.4th 851, 860 (4th Cir. 2023) (describing the IDEA as setting
forth “a practical standard which must be applied in the day-
to-day vortex of an up-and-down school year”). But as we have
emphasized already, a school district is never relieved of its
legal obligations under the IDEA. Our holding today does not
give school districts carte blanche to reduce a disabled
student’s school day “for any reason . . . or no reason at all.”
Amici Br. 14. Rather, school districts may do so only if they
continue to offer an educational program reasonably calculated
to confer meaningful educational benefits in light of the child’s
individual circumstances. As counsel acknowledged at oral
argument, such circumstances can surely be affected by a
global pandemic. See Oral Arg. 30:00–30:20.
Our opinion and judgment address only Old Forge’s
legal obligations. Whether its system-wide decisions are sound

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as a matter of educational policy is beyond our purview. See
S.H., 336 F.3d at 270 (citation omitted).
* * *
For the reasons stated, the District Court correctly
concluded that the Hearing Officer did not misapply or relax
the FAPE standard due to the COVID-19 pandemic. Nor did it
clearly err in affirming the Hearing Officer’s conclusion that
Old Forge provided a FAPE to Abigail throughout the period
of remote instruction. We will affirm.

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