Millersburg Area School Dist. v. Lynda T.

• Decision Date: 04 February 1998
• Parties: 124 Ed. Law Rep. 957 MILLERSBURG AREA SCHOOL DISTRICT, Petitioner, v. LYNDA T., as Parent and Next Friend of Billy T., a minor, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 572

707 A.2d 572

124 Ed. Law Rep. 957

MILLERSBURG AREA SCHOOL DISTRICT, Petitioner, v. LYNDA T., as Parent and Next Friend of Billy T., a minor, Respondent.

Commonwealth Court of Pennsylvania.

Argued Oct. 6, 1997.

Decided Feb. 4, 1998.

Frank P. Clark, Hummelstown, for petitioner.

Judith A. Gran, Philadelphia, for respondent.

Before PELLEGRINI and KELLEY, JJ., and MIRARCHI, Jr., Senior Judge.

MIRARCHI, Jr., Senior Judge.

Millersburg Area School District (School District) appeals from an order of the Pennsylvania Special Education Appeals Panel (Appeals Panel) which (1) reversed the decision of the special education hearing officer to continue to place Billy T. (Billy) at a school for emotionally disturbed children located outside the School District, and (2) awarded Billy compensatory education based on the School District's failure to comply with the "mainstreaming" requirement of the Individuals with Disabilities Education Act (Act), 20 U.S.C. §§ 1400--1485.

The relevant facts found by the Appeals Panel are as follows. Billy is a fourteen-year old, eighth-grade student with serious emotional disturbance, living with his mother in Millersburg, Pennsylvania. Billy began experiencing emotional and behavioral problems in fourth grade, while attending a school within the School District, and received services of the institutional support team. The subsequent individualized education program (IEP) for Billy dated June 10, 1993 provided for supplemental emotional support services and speech/language services. ¹ However, the IEP did not include individualized behavior management programs. ² Billy's behavior problems included the use of vulgar language, striking other students, pushing and fighting, not being prepared for class and stealing a locker key. At the September 30, 1993 consultation with Billy's mother, the counselor at the Capital Area Intermediate Unit (Intermediate Unit) learned that Billy had sustained a head injury in 1991 after being hit by a truck.

In fifth grade, Billy received a three-day in-school suspension for his escalated disruptive behaviors. In the subsequent comprehensive evaluation report, the multidisciplinary evaluation team identified Billy's behavior problems as attention span, impulsiveness, oppositional behaviors and lack of organizational skills. On June 9, 1995, the IEP team recommended that Billy be placed in a full-time emotional support class in the neighboring school district for seventh grade. Billy's mother approved the recommended placement by signing the notice of recommended assignment. The IEP still did not contain an individualized behavior management programs for Billy.

During seventh grade, Billy's disruptive behaviors escalated in and out of the class, and he received six one-day suspensions. Subsequently, the IEP dated February 22, 1996 deleted all inclusionary provisions and recommended placement of Billy at the Northumberland Center, a specialized emotional support school operated by the Intermediate Unit and located outside the School District. Billy's mother approved the placement change.

At the Northumberland Center, Billy's disruptive behaviors continued, and by the end of seventh grade, Billy was receiving failing grades in many subjects. At the May 1, 1996 IEP team meeting, Billy's mother disapproved the continued placement of Billy at the Northumberland Center for eighth grade and requested mediation. Later, the School District and Billy's mother entered into an agreement, in which the School District agreed to provide regular reports of Billy's behavior to Billy's mother, to provide paraprofessional services to Billy, to restrain and discipline Billy carefully, and to specify Billy's exit criteria. The subsequent IEP dated October 8, 1996 included a one-on-one paraprofessional services for two weeks and provided for counseling, psychiatric services and vocational support on an "as needed" basis. However, the IEP still did not contain an individualized behavior management program. During eighth grade, Billy's behavioral problems and his academic performance further deteriorated.

On December 6, 1996, Billy was severely injured in an altercation with another student on the school bus. On December 9, 1996, Billy's mother requested a due process hearing pursuant to 22 Pa.Code § 14.64, seeking an inclusionary placement of Billy in the neighborhood school. After hearings, the hearing officer determined that Billy should stay at the Northumberland Center. The hearing officer, however, ordered the School District to add services of an institutional aide to Billy's October 8, 1996 IEP.

The Appeals Panel subsequently granted exceptions filed by Billy's parent and reversed the hearing officer's decision, concluding that the School District failed to comply with of the Act. ³ The Appeals Panel also awarded Billy compensatory education, directing the School District to promptly develop and implement a one-year IEP for Billy, which should include an individualized behavior management plan; services of a behavior specialist for at least three hours a day; services of a full-time paraprofessional; an initial placement of Billy in regular classes and non-academic activities for at least half of the school day, to be increased or decreased as determined by the behavior specialist; special training of the regular classroom teachers by the behavior specialist; one-on-one counseling and behavior therapies for at least one hour a day; and an opportunity for weekly parent counseling and training. The Appeals Panel further directed the School District to promptly conduct a neurological evaluation of Billy to determine a possible effect of Billy's 1991 head injury on his emotional problems. The School District's appeal to this Court followed. ⁴

In order to qualify for federal assistance, a state must have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1). ⁵ To meet this requirement, the state must establish, inter alia:

(B) procedures to assure that, to the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(5)(B).

The requirement set forth in Section 1412(5)(B) of the Act is known as "mainstreaming." See Board of Education v. Holland, 786 F.Supp. 874 (E.D.Cal.1992), aff'd, 14 F.3d 1398 (9th Cir.1994), cert. denied, 512 U.S. 1207, 114 S.Ct. 2679, 129 L.Ed.2d 813 (1994). Under this mainstreaming preference of the Act, the participating states are required to "educate disabled children with nondisabled children whenever possible." Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). ⁶ In a proceeding challenging the school district's placement of a disabled child, the school district has the burden of proving that the segregated placement of the disabled child complies with the mainstreaming requirement of the Act. Oberti v. Board of Education, 995 F.2d 1204 (3rd Cir.1993).

In Oberti, the United States Court of Appeals for the Third Circuit adopted the two-part test for determining whether a school district satisfied the mainstreaming requirement of the Act: (1) whether the disabled child can be educated satisfactorily in a regular classroom with supplementary aids and services; and, (2) if removal of the child from the regular classroom is justified, whether the school district has included the child in school programs with nondisabled children to the maximum extent appropriate.

In determining whether the first part of the test is met, several factors, including the following three factors, must be considered:

(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. ⁷

Oberti, 995 F.2d at 1217-18.

The School District contends that in determining the proper location of Billy's education, only the current IEP is relevant and that therefore, the Appeals Panel's sua sponte consideration of Billy's past IEPs and the past educational services provided by the School District was improper.

Contrary to the School District's contention, our review of the record shows that at the hearings and in the exceptions to the hearing officer's decision, Billy's parent raised the issues of the appropriateness of the past IEPs, lack of behavior management programs and the School District's failure to consider a full range of supplementary aids and services, before it removed Billy to the segregated classes. See N.T., pp. 24, 515-16; Exceptions to Hearing Officer's Decision Nos. 1-2, 3-6.

Moreover, the School District does not dispute the applicability of Oberti in this matter. Under the Oberti test, the issue of the School District's compliance with the mainstreaming requirement of the Act cannot be resolved without examining the past IEPs and educational services provided to Billy while he was in the regular classes with nondisabled children. At the hearings, the School District itself presented voluminous exhibits, including the past IEPs, and the testimony regarding the educational services provided to Billy in fourth through eighth grade. Therefore, we reject the School District's contention that the Appeals Panel improperly considered sua sponte Billy's past educational history.

To implement the procedures set forth...