Derrick F. v. Red Lion Area School Dist.

• Decision Date: 31 October 2008
• Docket Number: Civil No. 1:06-CV-1463.
• Parties: DERRICK F., a Minor, by his Parents and Natural Guardians, et al., Plaintiffs, v. RED LION AREA SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

586 F.Supp.2d 282

DERRICK F., a Minor, by his Parents and Natural Guardians, et al., Plaintiffs, v. RED LION AREA SCHOOL DISTRICT, Defendant.

Civil No. 1:06-CV-1463.

United States District Court, M.D. Pennsylvania.

October 31, 2008.

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Barry L. McCoy, Gregory T. Parks, Kathryn Potalivo, Morgan, Lewis & Bockius LLP, Philadelphia, PA, for Plaintiffs.

Brooke E.D. Say, Stephen S. Russell, James E. Chiaruttini, Stock and Leader, York, PA, for Defendant.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Scott F. and Sherry F., on behalf of their minor child Derrick F. (collectively "Plaintiff"), bring this suit against Defendant Red Lion Area School District ("the District") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12103 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794. Before the court are Defendant's motions to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction (Doc. 77), and for summary judgment (Doc. 88). Also pending is Plaintiff's motion in limine. (Doc. 97.) The parties have briefed the issues, and the motions are ripe for disposition.

I. IDEA Statutory Framework

The IDEA guarantees the right of students with disabilities to a free and appropriate public education ("FAPE"). 20 U.S.C. § 1400 et seq. To this end, the IDEA includes numerous procedural safeguards. See 20 U.S.C. § 1415. Local school districts are required to work together with parents of children with disabilities to develop an individualized education program ("IEP") for that child. An IEP is a written statement that must include, among other things, the child's present level of achievement, measurable annual goals, and the supplemental aids and services that are required to meet those goals. § 1414(d)(1)(A)(i). An IEP must be prepared by a team consisting of the parents of the child with a disability, at least one regular education teacher, at least one special education teacher, a representative of the local educational agency, and where appropriate, the child. § 1414(d)(1)(B).

If the parents are dissatisfied with any aspect of the IEP, then they may file an appeal. The IDEA requires each state to develop an appeal process. The Pennsylvania Department of Education has developed a two-step appeal process.¹ The first stage is known as a "due process hearing." See 20 U.S.C. § 1415(f) (impartial due process hearing). If either party is dissatisfied with the result of the hearing, an appeal of that decision may be taken to the state educational agency. § 1415(g). Any party dissatisfied with the outcome of the administrative procedures may bring suit in federal court to challenge the IEP placement. § 1415(i)(2)(A). During the pendency of any proceedings to challenge a child's placement, the child is to remain in his or her current educational placement. § 1415(j). The IDEA requires the exhaustion of these administrative remedies prior to bringing suit under the Constitution, the ADA, and Section 504 of the Rehabilitation Act, to the extent that a plaintiff seeks relief also available under the IDEA. § 1415(l).

Additionally, the Pennsylvania Department of Education has developed an elective process for enforcement of an IEP. See 22 Pa.Code § 14.107; see also 34 C.F.R. §§ 300.151-300.153.² A parent may file a complaint with the Division of Compliance of the Bureau of Special Education of the Pennsylvania Department of Education ("PDE"). After investigation, PDE issues a Complaint Investigation Report ("CIR"). Because this process is elective, exhaustion of this complaint investigative procedure is not required prior to filing suit to enforce an IEP.

II. Background

The facts, viewed in the light most favorable to Plaintiff, the nonmoving party, are as follows:³

Derrick F. is a twelve year old child with severe hearing and vision impairments caused by meningitis, which Derrick contracted at the age of six months. Derrick has limited sight and vision, and he communicates through a system of "total communication," including sign language, speech, pictures, and print. Derrick engages in self-stimulation, flapping his lips and arms to make noise when his communication needs are unmet. Derrick also has a history of self-injury, including hitting and biting himself, when his communication needs are unmet. (Sherry F. Dep. 22:3-18, Jan. 3, 2008.) Derrick is a qualified individual with a disability under the IDEA, Section 504, and the ADA.

Derrick lives within the Red Lion Area School District, which includes the Locust Grove Elementary School. Red Lion Area School District is served by the Lincoln Intermediate Unit ("LIU"), a regional educational service agency that provides educational support, including special education assistance, to schools in Adams, Franklin, and York counties.

A. 2002-05 School Years

From June 2002 until September of 2004, Derrick attended the Perkins School for the Deaf in Massachusetts. (Sherry F. Dep. 15:25-16:05.) The District agreed with Derrick's placement at the school, which was included in Derrick's IEP at that time. (Id. 16:06-11.) Derrick was asked to leave the school in September 2004 after a biting incident. Thereafter, Derrick's parents contacted District officials about placing Derrick in his local school, Locust Grove Elementary. In November 2004, an IEP meeting was convened, and Derrick's parents were informed that the school district was recommending a placement at the Maryland School for the Blind. (Id. 50:6-11.) This placement was rejected by Derrick's parents, who felt that it violated the least restrictive environment mandate of the IDEA. (Id. 51:11-17.) Instead, during the 2004-2005 school year, Derrick was educated at home. (Id. 49:19-21.)

Derrick's parents and the District ultimately settled all IDEA claims arising out of the 2004-05 school year. Derrick's parents hired Dr. Julie Jones to provide consulting, and Susan Prowell to act as an "intervener" for Derrick. Although Derrick's parents were dissatisfied with Prowell's sign language skills, Derrick experienced language growth during this period. (Id. 40:11-19.) Derrick's mother attributes this progress to the constant training and feedback provided to Prowell by Dr. Jones. (Id.)

B. 2005-06 School Year

In fall 2005, Derrick's parents initiated a due process hearing to challenge the provision of Derrick's IEP placing him at the Maryland School for the Blind. The hearing officer agreed with Derrick's parents that the Maryland School for the Blind was not the least restrictive environment. On October 31, 2005, the hearing officer ordered the District to place Derrick in the school he would attend if he were not a student with a disability, and awarded compensatory education. (Doc. 69, Ex. A.) Both the parents and the District appealed the decision. In a decision issued on December 16, 2005, the intermediate appeals panel affirmed the placement, but reversed the award of compensatory education. (Doc. 69, Ex. B.) Neither party brought suit in court to challenge the placement or any other aspect of the appeals panel decision. Accordingly, the District had thirty days to implement the order.

In early 2006, District and LIU employees visited Derrick at his home to evaluate him. (Sherry F. Dep. 83:3-24.) After observing him on two occasions, a hearing teacher and a vision teacher at the District prepared a report. (Id. 83:3-24.) In March 2006, Derrick also visited the school twice for evaluations. (Id. 84:8-17.) However, Derrick's IEP team did not meet, no IEP was created, and Derrick did not attend school. Nevertheless, on February 8, 2006, the District superintendent signed an Assurance of Implementation of the Appeals Panel decision, and submitted it to the Pennsylvania Department of Education. In that letter, the superintendent assured PDE that "we have implemented the Hearing Officer's award by assigning Derrick F. to the Locust Grove Elementary School and are in the process of transitioning Derrick F. to a program in the building."

On March 1, 2006, the Education Law Center wrote to the PDE on behalf of Derrick, claiming that the District had failed to implement the hearing officer's order. (Doc. 69, Ex. D.) In the letter, Derrick sought immediate placement in a regular education classroom with appropriate supplemental services, as ordered by the hearing officer, and compensatory education for the time Derrick was not provided with those services. (Id.) On March 21, 2006, the agency responded with a letter directing the District to immediately place Derrick in a regular education classroom with supplementary aids and services. The agency further directed that Derrick's IEP team must convene no later than March 31, 2006 to finish developing Derrick's IEP. (Doc. 96, Ex. 10.)

Pursuant to the PDE's letter, Derrick's IEP team was convened and an IEP meeting was held on March 31, 2006. After an eight hour meeting, an IEP was preliminarily agreed to, including a transition plan for Derrick to attend school. The pertinent aspects of the IEP for purposes of this litigation are as follows:

Classroom Placement—Derrick is to receive 70% of his instruction in a regular classroom with supplementary aids and services. (March 31, 2008 IEP at 49.)

Deafblind Coordinator Training—"Professional with experience and training in working with children with deafblindness to provide training to regular education teacher, special education teacher, and therapists." Training is to be provided at school. As for the frequency of the training: "Initial training within the first month of Derrick's program, with additional training sessions over the first 6 months of Derrick's program. Same training to be provided to new regular education teacher in 3d grade." (March...