Delaware County Intermediate Unit v. MARTIN K.

• Decision Date: 15 September 1993
• Docket Number: Civ. A. No. 92-3866.
• Parties: DELAWARE COUNTY INTERMEDIATE UNIT # 25, Plaintiff, v. MARTIN & Melinda K., individually and as Parents & Natural Guardians of Paul K., and Donald M. Carroll, Jr., Secretary of Education for the Commonwealth of Pennsylvania, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

831 F. Supp. 1206

DELAWARE COUNTY INTERMEDIATE UNIT # 25, Plaintiff, v. MARTIN & Melinda K., individually and as Parents & Natural Guardians of Paul K., and Donald M. Carroll, Jr., Secretary of Education for the Commonwealth of Pennsylvania, Defendants.

Civ. A. No. 92-3866.

United States District Court, E.D. Pennsylvania.

September 15, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph J. Mittleman, Asst. Dist. Atty., Michael F.X. Coll, Media, PA, for plaintiff.

Janet F. Stotland, Philadelphia, PA, E. John Wherry, Martin A. Kotler, Widener Univ. School of Law, Wilmington, DE, for defendants.

Claudia M. Tesoro, Office of Atty. Gen., Philadelphia, PA, for Donald M. Carroll, Jr.

OPINION

ROBRENO, District Judge.

This matter involves a child's right to a free appropriate public education under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. After a bench trial, and pursuant to Fed. R.Civ.P. 52, the Court makes the following findings of fact and conclusions of law.¹

I. FINDINGS OF FACT

Paul K., born on July 24, 1988, is the minor son of defendants Martin and Melinda K.² When Paul was two, he was diagnosed as suffering from "pervasive development disorder — not otherwise specified." Pervasive development disorder ("PDD") is "characterized by qualitative impairment in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity." American Psychiatric Ass'n, The Diagnostic and Statistical Manual of Mental Disorders 33 (3d ed. rev.1987). The most severe form of PDD is autism; all less severe forms are deemed "not otherwise specified." Id.

Paul was enrolled at a "special needs" center at the Ken-Crest facility ("Ken-Crest"), a private school, in August of 1990. Nine of Paul's fifteen and one-half hours per week at Ken-Crest were funded by the Delaware County Mental Health and Retardation Agency. During the summer of 1991, Paul's parents came to believe that the Ken-Crest program was not adequately meeting Paul's educational needs. Sometime that summer, Paul's parents began exploring the possibility of enrolling Paul in an educational program based upon the research of University of California at Los Angeles psychologist Dr. O. Ivar Lovaas (the "Lovaas program"). The Lovaas program is a method of educating pre-school age children with PDD that stresses behavioral modification techniques.

Paul turned three years old in July of 1991, at which point Paul's education became the responsibility of plaintiff Delaware County Intermediate Unit # 25 (the "IU"). See 20 U.S.C. § 1412(2)(B); 22 Pa.Code § 14.51. The IU is under contract with the Pennsylvania Department of Education to provide "early intervention services," i.e., education to children over age three but not yet eligible for first grade, in Delaware County, Pennsylvania. Pursuant to the procedural requirements of the IDEA, a series of meetings took place between Paul's parents, representatives of the IU, and other interested parties in September and October of 1991. The purpose of these meetings was to develop an individualized education program ("IEP") for Paul. See 20 U.S.C. § 1414(a)(5); 22 Pa. Code § 14.54.

The IU initially proposed, on an informal basis, continuation of Paul's education in the Ken-Crest program, again with nine hours of public funding per week. This proposal was not acceptable to Paul's parents. On October 4, 1991, the IU issued a Multidisciplinary Team Evaluation ("MDE") Report. See 22 Pa.Code § 14.53. The MDE, conducted by a team of professionals in cooperation with Paul's parents, is a comprehensive evaluation of Paul's educational development and needs. In mid-October of 1991, Paul's parents withdrew Paul from the Ken-Crest program and undertook to educate Paul through the Lovaas program. Supervision of Paul's education was conducted by Jacqueline Wynn, a Ph.D. candidate from UCLA who was studying under Dr. Lovaas. Ms. Wynn came to Paul's parents' home to instruct Paul's mother, and a group of college students hired by Paul's parents, in the proper methods of teaching Paul through the Lovaas method. Paul's education under the Lovaas program consisted of forty hours per week of one-to-one behavior modification therapy conducted at the K.'s home, plus a "mainstream" component. The mainstream component consisted of two and one-half hours per week of interaction with non-disabled children at the Ken-Crest facility.

During the September-October, 1991 meetings, the IU had promised that an IEP for Paul would be forthcoming on or before November 1, 1991. On January 25, 1992, having failed to receive an IEP, Paul's parents requested a due process hearing. See 20 U.S.C. § 1415(b)(2); 22 Pa.Code § 14.64. The IU issued an IEP on January 31, 1992. The IEP was accompanied by two Notices of Recommended Assignment (the "NORA"). See 22 Pa.Code § 14.61(a)(3). The first NORA proposed to place Paul in the Ken-Crest program for fifteen hours per week, plus weekly speech, group language, and occupational therapy. Although it is not specifically stated in the NORA, the parties agree that this placement was to run only through mid- to late-February of 1992. Thereafter, Paul was to be placed, pursuant to the second NORA, in a new program, scheduled to be implemented by the IU during that mid-to late-February period, at the IU's Ridley School facility. The new program was to be based on the principles espoused by Division TEACCH, a program developed at the University of North Carolina for educating children with PDD. The TEACCH program, as opposed to Lovaas, stresses a cognitive rather than a behavioral approach. The proposed TEACCH program at Ridley consisted of ten hours of instruction per week (four days at two and one-half hours per day), plus a modified form of the therapy described above. Paul's parents rejected these proposed placements on February 5, 1992, in part because they felt that the TEACCH methods were similar to those used unsuccessfully in the Ken-Crest program, and again requested a due process hearing.

The due process hearing was held on March 10, 1992. On March 29th, the Hearing Officer ruled, inter alia, that the TEACCH program offered by the IU was appropriate, but that Paul's parents were entitled to some degree of compensatory education because the IU had implemented it too late. Both sides appealed to the Special Education Due Process Appeals Panel (the "Panel"). See 20 U.S.C. § 1415(c); 22 Pa. Code 14.64(m). On June 2, 1992, the Panel overturned the Hearing Officer's decision. The Panel ruled that the TEACCH program proposed by the IU in the January 31, 1992 IEP was not appropriate, that the Lovaas program was appropriate, and that Paul's parents were entitled to reimbursement for costs incurred in educating Paul pursuant to the Lovaas method. The Panel also issued prospective relief requiring the IU to develop an IEP that implemented the Lovaas program within thirty days of the Panel decision.

The IU initiated this action on July 2, 1992, pursuant to 20 U.S.C. § 1415(e)(2). In September of 1992, the parties, after a conference with the Court, agreed to submit their dispute to mediation. Sometime during that same month, the IU expanded its Ridley program from ten hours per week to fourteen hours per week. On October 16, 1992, the parties reported that mediation proved unsuccessful, and discovery commenced. In January of 1993, the Ridley program expanded from fourteen hours per week to twenty-three hours per week. The bench trial in this matter was held during the week of April 26, 1993.

II. DISCUSSION

A. Statutory Background

The IDEA's purpose is to "assure that all handicapped children have available to them ... a free appropriate public education..." 20 U.S.C. § 1400(c).³ Toward that end, the IDEA allows states to receive federal funding to educate disabled students provided their educational programs comply with the requirements of the IDEA. See id. § 1412. Among these requirements is the rule that participating states must have in effect "a policy that assures all children with disabilities the right to a free appropriate public education." Id. § 1412(1).

Under the IDEA, a "free appropriate public education" is one that is "provided in conformity with the individualized education program required under section 1414(a)(5) of this title." Id. § 1401(a)(18)(D). The IEP is the "modus operandi" of the IDEA, School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 368, 105 S.Ct. 1996, 2001, 85 L.Ed.2d 385 (1985), in that it is the "centerpiece of the statute's education delivery system for disabled children," Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988). An IEP sets forth an individualized educational plan for a particular disabled student. The IEP must include, inter alia, a statement of the services to be provided to the child, an assessment of the child's current educational levels, and the annual goals set for that child. See 20 U.S.C. § 1401(a)(20). The IEP is developed jointly by parents and school officials. See id.

The IDEA provides disabled children with rights that are both procedural and substantive. In Board of Education v. Rowley, the Supreme Court's seminal IDEA case, the Supreme Court held that in actions brought pursuant to the IDEA, "a court's inquiry ... is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?" 458 U.S. 176, 207-08, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). The Supreme Court found that the IDEA's procedural requirements were of primary concern to Congress. See id. at 206, 102 S.Ct. at 3050 (stating that "adequate compliance with the procedures prescribed would in most cases assure much if not...