D.E. v. Cent. Dauphin Sch. Dist.

• Citation: 765 F.3d 260
• Decision Date: 27 August 2014
• Docket Number: No. 13–1294.,13–1294.
• Parties: D.E., a minor, on his behalf, by his Parents; Maria English*; Ronald Sheffy v. CENTRAL DAUPHIN SCHOOL DISTRICT, Maria English* and D.E., Appellants. * Dismissed per Clerk's 03/25/2014 Order.
• Court: U.S. Court of Appeals — Third Circuit

765 F.3d 260

D.E., a minor, on his behalf, by his Parents; Maria English*; Ronald Sheffy

v.CENTRAL DAUPHIN SCHOOL DISTRICT, Maria English* and D.E., Appellants.

* Dismissed per Clerk's 03/25/2014 Order.

No. 13–1294.

United States Court of Appeals,Third Circuit.

Argued June 12, 2014.

Filed: Aug. 27, 2014.

Carolyn M. Hazard, Esq., Joel Mallord, (argued), Brian P. Savage, Esq., Dechert, Philadelphia, PA, Counsel for Appellant.

Thomas A. Specht, Esq., (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA, Counsel for Appellee.

Before: FISHER, VAN ANTWERPEN and TASHIMA,^** Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

D.E., now 23 years of age, was a minor diagnosed with a learning disability and enrolled in school in the Central Dauphin School District (“Central Dauphin”). D.E.'s parents, Maria English and Ronald Sheffy, claimed that while D.E. was enrolled in Central Dauphin he was deprived of a free appropriate public education (“FAPE”), in violation of the Individuals with Disabilities Education Act ¹ (“IDEA”), and that he was discriminated against based upon his various disabilities, in violation of the Americans with Disabilities Act ² (“ADA”) and the Rehabilitation Act of 1973 ³ (“RA”). The District Court dismissed D.E.'s IDEA claims, and later granted summary judgment in Central Dauphin's favor as to the ADA and RA claims. For the reasons set forth below, we will affirm in part and reverse in part.

I.

A.

D.E. attended school in Central Dauphin from kindergarten to the seventh grade.⁴ Prior to his entrance into the school district, D.E. was enrolled in preschool at the Capital Area Intermediate Unit (“CAIU”). There, D.E.'s parents completed an early intervention referral form for purposes of a speech/language evaluation. On that form, they indicated that D.E. had “attentional concerns.” After undergoing several evaluations, CAIU determined that D.E. was eligible for early intervention services and placed D.E. in speech and language therapy.

When D.E. began his transition into Central Dauphin in June 1995, his school file indicated that he was entering the school district with an individualized education program (“IEP”) to address his speech and language issues. In spite of that, D.E. was not placed in any specialized courses. Three months later, D.E.'s mother signed a form permitting the school district to evaluate D.E. Seven months after receiving permission, Central Dauphin conducted the evaluation. The only test conducted at that time was for speech and language therapy. The resulting comprehensive evaluation report (“CER”) and subsequent IEP thus contained only speech and language goals. The CER described D.E. as a pleasant, friendly, outgoing child who got along well with other children and appeared to have self confidence. His report card for that school year, however, indicated that he was having considerable difficulty academically. By the end of his kindergarten year, he had not acquired the skills necessary to move on to the first grade and had to repeat his kindergarten year.

Within one month of the start of D.E.'s repeat kindergarten year, in approximately September of 1996, his mother initiated a request for another evaluation. The CER was completed on December 13, 1996, and identified D.E. as having a learning disability and as in need of specially designed instruction. That CER did not include recommendations for learning support services or address the “attentional concerns” raised by D.E.'s parents or any other impairments. D.E. was then placed in a learning support resource room where he received speech and language therapy. His new IEP was completed on December 17, 1996 and contained learning support goals and objectives, as well as recommendations for speech and language services. D.E.'s parents approved of these recommendations. Despite the changes in placement and services, D.E.'s teacher indicated at the end of his repeat year in kindergarten that he was still not performing academically at grade-level.

D.E. started his first-grade year at Central Dauphin in the Fall of 1997. At that time, his IEP was modified to recommend that he be placed in a full-time learning support room, which his parents approved. Following that change, however, D.E.'s behavior became more erratic. His parents, concerned by this change in behavior, obtained both wraparound services and therapeutic support staff (“TSS”) to attend school with him. D.E.'s parents continued to have concerns and, in April 1998, had D.E. evaluated by an external medical provider, Pinnacle Health Services (“Pinnacle”). Pinnacle diagnosed D.E. as having borderline retardation, extreme difficulties with visual and motor skills, and bi-polar disorder. Pinnacle administered the Wechsler Intelligence Scale for Children (“WISC”), which measures a child's general cognitive abilities, and ultimately recommended that D.E.'s cognitive performance be closely monitored and re-evaluated by Central Dauphin within the next year.

Central Dauphin did not reevaluate D.E. for cognitive ability, as Pinnacle had recommended, but did administer an additional Wechsler Independent Achievement Test (“WIAT”), which provides a comprehensive measure of a student's basic scholastic skills. That evaluation report included results from the WIAT scale and Pinnacle's WISC results. During that evaluation, Central Dauphin also determined that D.E. needed emotional support services.

D.E. entered the second grade in 1998 in a full-time learning and emotional support program. During the school year, D.E.'s second grade teacher expressed concern about whether D.E.'s TSS was necessary. The TSS was later discontinued. At some point during his second grade year, D.E. began regressing behaviorally. As a result, D.E.'s mother requested an additional evaluation. The re-evaluation was completed by D.E.'s teacher, who expressed concerns about D.E.'s academic goals and placement. D.E.'s behavioral issues increased and he was eventually diagnosed with depression. Central Dauphin did not provide D.E. with a behavior support program or conduct an additional assessment.

D.E.'s IEP was modified again in third grade to read “seriously emotionally disturbed,” a classification usually associated with mental retardation. As a result, D.E. was placed in a Life Skills Support program, which focused on providing additional support geared towards children with a diagnosis of mental retardation. He was later mistakenly identified as having mental retardation. No adaptive behavior assessment was completed. D.E. remained in the Life Skills Support Program throughout the third and fourth grades. When D.E.'s mother realized D.E. was identified as mentally retarded, she filed a complaint and withdrew D.E. from the program. In response, Central Dauphin apologized to D.E.'s parents, found the designation error, fixed it, and advised D.E.'s mother of the change. Later that year, D.E. was also inaccurately found to be ineligible for other extended school year services.

In 2001, D.E.'s IEP was changed to recommend that he participate in regular education courses for his fifth-grade year, with an emphasis on his specific learning disability. The very next year, however, D.E.'s goals and the specially designed instruction regarding his behavior and social issues were dropped from the IEP without explanation. To further compound that error, D.E. was again found ineligible for extended school year services.

D.E.'s seventh grade IEP goal was to increase his math skills to a fourth-grade level. However, D.E.'s seventh-grade teacher was not trained in any research-based math instruction and she did not maintain any records demonstrating D.E.'s progress on the IEP goal. During that same year, the team responsible for overseeing D.E.'s IEP delayed the process while awaiting a new evaluation report. That delay resulted in D.E. working under an expired IEP for three months. The new CER, once received, failed to assess in detail D.E.'s emotional and behavioral needs. In addition, although the new CER identified issues with D.E.'s social skills, the resulting IEP never addressed that area, and Central Dauphin never conducted any follow-up in the form of classroom observations or curriculum-based assessments.

Beginning in eighth grade, Central Dauphin convened a meeting with D.E.'s parents where they reviewed the previous IEP and an evaluation report. D.E. moved from Central Dauphin shortly thereafter. Following the move, D.E.'s parents requested a due process hearing with Central Dauphin to determine whether D.E. had been provided a FAPE during his time in Central Dauphin.

B.

The administrative hearing was held in January and February of 2006 before an impartial hearing officer. At the conclusion of that hearing, the hearing officer found that Central Dauphin had violated both the IDEA and the RA during D.E.'s time with the school district. The hearing officer further concluded that D.E. had been denied a FAPE for all eight years while at Central Dauphin and that Central Dauphin knew D.E. had more needs than those answered by speech and language therapy upon his entry into the school district for his first year of kindergarten.

In an order dated March 23, 2006, the hearing officer awarded D.E. compensatory education in the amount of “one hour for each hour of each school day for each year he attended [Central Dauphin and] ... fifteen hours for each of six weeks for missed summer programs for the years from 2000 to 2004.” App. at 171. The award went on to note that D.E.'s parents “may decide how the hours should be spent,” with some limitations, and that reimbursement for the services would be “at the rate that the parent is obligated to pay, [and] not [at] a district determined rate.” Id. Finally, the award noted that “[s]hould the parties agree, [Central Dauphin] may set up a fund with a set dollar amount that the parent may draw upon for educational services and...