UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-1680 ____________

ABIGAIL P., through her Parent, Sarah F., Appellant

v.

OLD FORGE SCHOOL DISTRICT ____________

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 ____________

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] 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 ____________ 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

2 (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

3 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,