585 F.3d 727 (3rd Cir. 2009), 08-2874, P.P. v. West Chester Area School District

Docket Nº:08-2874, 08-2940
Citation:585 F.3d 727
Opinion Judge:RENDELL, Circuit Judge.
Party Name:P.P., A Minor by and through his Parents, Michael P. and Rita P.; MICHAEL P.; RITA P., Adults Individually and on their own behalf, Appellants in 08-2874 v. WEST CHESTER AREA SCHOOL DISTRICT, Appellant in 08-2940
Attorney:Dennis C. McAndrews, Esq. [ARGUED], Gabrielle C. Sereni, Esq., McAndrews Law Offices, Berwyn, PA, Counsel for Appellants/Cross-Appellees. Jennifer Donaldson, Esq. [ARGUED], Sweet, Stevens, Katz & Williams, New Britain, PA, Counsel for Appellee/Cross-Appellant.
Judge Panel:Before: RENDELL FUENTES and ROTH, Circuit Judges.
Case Date:November 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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585 F.3d 727 (3rd Cir. 2009)

P.P., A Minor by and through his Parents, Michael P. and Rita P.; MICHAEL P.; RITA P., Adults Individually and on their own behalf, Appellants in 08-2874



Nos. 08-2874, 08-2940

United States Court of Appeals, Third Circuit

November 2, 2009

Argued: July 14, 2009.

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Appeals from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 06-cv-04338). District Judge: Honorable James T. Giles.

Dennis C. McAndrews, Esq. [ARGUED], Gabrielle C. Sereni, Esq., McAndrews Law Offices, Berwyn, PA, Counsel for Appellants/Cross-Appellees.

Jennifer Donaldson, Esq. [ARGUED], Sweet, Stevens, Katz & Williams, New Britain, PA, Counsel for Appellee/Cross-Appellant.

Before: RENDELL FUENTES and ROTH, Circuit Judges.


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RENDELL, Circuit Judge.

The plaintiffs in this special education case, Patrick P., a minor child, and his parents, Rita and Michael P., appeal the District Court's grant of summary judgment to the defendant, the West Chester Area School District (" District" ). The plaintiffs made claims under the Individuals with Disabilities in Education Act (" IDEA" ), § 504 of the Rehabilitation Act of 1973, and 42 U.S.C. § 1983, alleging that the District denied Patrick a free and appropriate public education (" FAPE" ) and violated the IDEA's child-find obligations. The District Court granted summary judgment to the District and applied the IDEA's two-year statute of limitations, which took effect on July 1, 2005, to the IDEA claims. It applied Pennsylvania's two-year personal injury statute of limitations to the § 504 claims. The District cross-appeals, arguing that the IDEA's statute of limitations should apply to the § 504 claims. We will affirm the District Court's grant of summary judgment to the District, but will not reach the IDEA statute of limitations issue. We disagree with the District Court's application of Pennsylvania's personal injury statute of limitations to the plaintiffs' § 504 claims, and hold that the federal IDEA statute of limitations applies to those claims.

I. Background

A. The IDEA and the Rehabilitation Act

The IDEA requires that institutions receiving federal education funding provide a free and appropriate public education (" FAPE" ) to disabled children. 20 U.S.C. § 1412(a)(1). A school district provides a FAPE by designing and implementing an individualized instructional program set forth in an Individualized Education Plan (" IEP" ), which " must be reasonably

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calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential." Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (citations and internal quotation marks omitted). The school district must conduct an evaluation of the student's needs, assessing all areas of suspected disability, before providing special education and related services to the child. 20 U.S.C. § 1414(b).

The IDEA also requires that a state have a system in place to identify, locate, and evaluate all children in the state who have disabilities and need special education and related services. 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a). Pennsylvania codifies its " child find" duties at 22 Pa. Code. § § 14.121-14.125.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination on the basis of disability by programs that receive federal funds. Under § 504, recipients of federal funds must " provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." 34 C.F.R. § 104.33(a). The claims in this case made under § 504 are parallel to the IDEA claims.

In December of 2004, Congress passed amendments to the IDEA, which had an effective date of July 1, 2005. The previous version of the IDEA did not have a statute of limitations. The amendments, which we will refer to as " IDEA-2004," included an explicit two-year statute of limitations:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

20 U.S.C. § 1415(f)(3)(C). Pennsylvania does not have a separate explicit time limitation for these types of claims. Prior to IDEA-2004, we had held that there was no federal statute of limitations for compensatory education claims, in Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238 (3d Cir. 1999). In Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 (3d Cir. 1994), we held that there was a one- to two-year statute of limitations for tuition reimbursement claims.

IDEA-2004 includes two exceptions to the statute of limitations period. The two-year period does not apply when the parent was prevented from requesting a due process hearing because of either:

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent.

20 U.S.C. § 1415(f)(3)(D).

B. Facts

The plaintiffs-Rita and Michael P. and their son Patrick, who was 11 years old at the time the complaint was filed--live within the boundaries of the District, but Patrick has never attended public school. During the 2001-2005 school years, when he was in kindergarten through third grade, Patrick went to a parochial school, St. Maximillian Kolbe (" St. Max" ). During the summer of 2005, and in the 2005-2006 school year, when he was in fourth grade, he attended the Benchmark School (" Benchmark" ), a private school for children with disabilities.

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The District is obligated under the IDEA to identify and locate children who need special education services. It puts annual notices in the general circulation newspaper that inform parents about the availability of evaluations and the procedures for making an evaluation request, including that requests must be in writing, that there must be written consent to evaluate, and that there are timelines for requesting due process. The District provides the same information on its website and over public access television, and puts posters and pamphlets with this information in both District school buildings and in private schools within the District. Homeowners receive this information in their property tax bills. The District also trains principals and staff at private schools about the referral processes and child find issues. During the time relevant to the plaintiff's case, the Pennsylvania Department of Education found that the District was 100% compliant with its child find obligations.

According to the plaintiffs, Rita P. first requested that Patrick be evaluated for special education services in January of 2003, after he had shown problems with reading in kindergarten. Based on his kindergarten teacher's recommendation, Patrick received Title I reading services from the Chester County Intermediate Unit during his first grade year, in 2002 and 2003. Title I is designed to help students reach state academic achievement levels; private school students are guaranteed these services under 20 U.S.C. § 6301.

Rita P. claims that in early 2003 she contacted Carol Gaspar, the St. Max guidance counselor, and Michele McCann, then the District Supervisor of Special Education, seeking evaluation for Patrick. The plaintiffs contend that Ms. Gaspar contacted District Psychologist Virginia Sutton about Patrick, and personally delivered referral documents to the District in April of 2003. As noted below, these individuals have denied that these contacts occurred. Carol Gaspar, the guidance counselor assigned to St. Max, testified that she had no recollection of any 2003 letter from the plaintiffs requesting evaluation, and no copy of the letter. Rita P. could not produce a copy of the letter, either. Virginia Sutton, the school psychologist who facilitated non-public school referrals in the relevant part of the District, had no record of any conversation with any of the plaintiffs or any documentation regarding Patrick, despite what the Appeals Panel called her " extraordinarily thorough and meticulous record-keeping system." (App. 665.) As we will discuss further below, we agree with the Hearing Officer, the Appeals Panel, and the District Court that the District did not receive notice of Patrick's need to be evaluated in early 2003.

The plaintiffs privately retained a psychologist, Dr. Tracy Burke, who evaluated Patrick in April of 2003 and found that he had difficulties with reading, reading comprehension, written expression, and visual-motor integration. In June of 2003, a vision evaluator determined that Patrick needed vision therapy. He received vision therapy and Title I reading services through his second-grade year.

On November 22, 2004, during Patrick's third-grade year, the plaintiffs wrote directly to the District requesting an evaluation of Patrick and informing the District that a private evaluator, Dr. Lisi Levisohn, was expected to evaluate Patrick's eligibility for special education services on December 14, 2004. Susan Amsterdam, a District psychologist, interpreted the letter to be a request for eligibility evaluation, and on November 29, 2004, the District sent two forms to the parents: a Release of

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Records form and a Parent Input form....

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