Polk v. Central Susquehanna Intermediate Unit 16

• Decision Date: 19 August 1988
• Docket Number: No. 87-5585,87-5585
• Citation: 853 F.2d 171
• Parties: , 48 Ed. Law Rep. 336 POLK, Ronald and Polk, Cindy, parents and natural guardians of Christopher Polk, Appellants, v. CENTRAL SUSQUEHANNA INTERMEDIATE UNIT 16, Central Columbia Area School District and Bloomsburg Area School District, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 171

853 F.2d 171

57 USLW 2092, 48 Ed. Law Rep. 336

POLK, Ronald and Polk, Cindy, parents and natural guardians of Christopher Polk, Appellants, v. CENTRAL SUSQUEHANNA INTERMEDIATE UNIT 16, Central Columbia

Area School District and Bloomsburg Area School

District, Appellees.

No. 87-5585.

United States Court of Appeals, Third Circuit.

Argued Jan. 19, 1988.

Decided July 26, 1988.

Rehearing and Rehearing In Banc Denied Aug. 19, 1988.

John A. Mihalik (argued), Hummel, James & Mihalik, Bloomsburg, Pa., for appellants.

Janet F. Stotland, Educ. Law Center, Inc., Philadelphia, Pa., for amicus curiae.

Audrey L. Jacobsen (argued), Charles W. Craven, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellee, Central Susquehanna Intermediate Unit 16.

Gary E. Norton (argued), Derr, Pursel & Luschas, Bloomsburg, Pa., for appellee, Central Columbia School Dist.

Before HIGGINBOTHAM and BECKER, Circuit Judges, and HUYETT, District Judge ^*.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal requires that we examine the contours of the "free appropriate public education" requirement of the Education of the Handicapped Act, as amended, 20 U.S.C. Secs. 1401-1461, (1982) (EHA), as it touches on the delivery of physical therapy, which is a "related service" under the EHA. Ronald and Cindy Polk are parents of Christopher Polk, a child with severe mental and physical impairments. They claim that defendants, the local school district and the larger administrative Intermediate Unit (which oversees special education for students in a five-county area) violated the EHA because they failed to provide Christopher with an adequate program of special education. Specifically, plaintiffs contend that defendants' failure to provide direct "hands-on" physical therapy from a licensed physical therapist once a week has hindered Christopher's progress in meeting his educational goals.

The district court granted summary judgment in favor of defendants. The court held that because Christopher derived "some educational benefit" from his educational program, the requirements of the EHA, as interpreted by the Supreme Court in Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), have been met, see infra at page 180-81.

We will reverse the district court's grant of summary judgment for two reasons. First, we discern a genuine issue of material fact as to whether the defendants, in violation of the EHA procedural requirement for individualized educational programs, have refused, as a blanket rule, to consider providing handicapped students with direct physical therapy from a licensed physical therapist. Second, we conclude that the district court applied the wrong standard in evaluating the appropriateness of the child's education. Although the district court relied upon language from a recent Supreme Court case, it took that language out of context and applied it beyond the narrow holding of the Supreme Court's opinion. More specifically, we believe that the district court erred in evaluating this severely handicapped child's educational program by a standard under which even trivial advancement satisfied the substantive provisions of the EHA's guarantee of a free and appropriate education. There is evidence in the record that would support a finding that the program prescribed for Christopher afforded no more than trivial progress. We will therefore reverse and remand for further proceedings consistent with this opinion.

I. STATUTORY BACKGROUND

The EHA requires that Pennsylvania, as a recipient of federal assistance thereunder, ensure that each disabled student in the state receive a "free appropriate public education." 20 U.S.C. Sec. 1412(1) (1982). The EHA mandates that participating states provide such education for all children "regardless of the severity of their handicap." 20 U.S.C. Sec. 1412(2)(C) (1982). In pertinent part, the Act defines a free appropriate public education as:

special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge,.... and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. Sec. 1401(18) (1982). The term "related services" includes "physical and occupational therapy ... as may be required to assist a handicapped child to benefit from special education." 20 U.S.C. Sec. 1401(17) (1982). Such special education and related services must be tailored to the unique needs of the handicapped child by means of an Individualized Education Program (IEP). 20 U.S.C. Sec. 1401(16).

An IEP is "more than a mere exercise in public relations," Georgia Ass'n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1570 (11th Cir.1983), vacated in part on other grounds, 468 U.S. 1213, 104 S.Ct. 3581, 82 L.Ed.2d 880 (1983), reinstated in relevant part, 740 F.2d 902 (1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 365 (1985); indeed, it is the "centerpiece of the statute's education delivery system for disabled children." Honig v. Doe, --- U.S. ----, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1988). The IEP consists of a detailed written statement arrived at by a multi-disciplinary team summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive. 20 U.S.C. Secs. 1401(19) (defining IEP), Sec. 1414(a)(5) (requiring an IEP). In practice the multi-disciplinary team will, as appropriate, consist of a teacher, psychologist, physician, physical and/or vocational therapist and administrator. Input is also sought from parents.

Additionally, the EHA imposes extensive procedural due process requirements upon the participating states. Complaints brought by parents or guardians must be resolved at "an impartial due process hearing." 20 U.S.C. Sec. 1415(b)(2). Any party dissatisfied with the state administrative hearing may bring a civil action in state or federal court. 20 U.S.C. Sec. 1415(e). In such action, the district court must conduct an independent review based on the preponderance of the evidence but in doing so "due weight shall be given to [state administrative] proceedings." Rowley, 458 U.S. at 206, 102 S.Ct. at 3051.

II. FACTS & PROCEDURAL HISTORY

Christopher Polk is severely developmentally disabled. At the age of seven months he contracted encephalopathy, a disease of the brain similar to cerebral palsy. He is also mentally retarded. Although Christopher is fourteen years old, he has the functional and mental capacity of a toddler. All parties agree that he requires "related services" in order to learn. He receives special education from defendants, the Central Susquehanna Intermediate Unit # 16 (the IU) and Central Columbia Area School District (the school district). Placed in a class for the mentally handicapped, Christopher has a full-time personal classroom aide. His education consists of learning basic life skills such as feeding himself, dressing himself, and using the toilet. He has mastered sitting and kneeling, is learning to stand independently, and is showing some potential for ambulation. Christopher is working on basic concepts such as "behind," "in," "on," and "under," and the identification of shapes, coins, and colors. Although he is cooperative, Christopher finds such learning difficult because he has a short attention span.

Although the record is not clear on this point, until 1980, the defendants apparently provided Christopher with direct physical therapy from a licensed physical therapist. Since that time, however, under a newer, so-called consultative model, ¹ Christopher no longer receives direct physical therapy from a physical therapist. Instead, a physical therapist (one of two hired by the IU) comes once a month to train Christopher's teacher in how to integrate physical therapy with Christopher's education. ² Although the therapist may lay hands on Christopher in demonstrating to the teacher the correct approach, he or she does not provide any therapy to Christopher directly, but uses such interaction to teach the teacher. Plaintiffs do not object to the consultative method per se, but argue that, to meet Christopher's individual needs, the consultative method must be supplemented by direct ("hands on") physical therapy. ³

In support of this position, plaintiffs adduced evidence that direct physical therapy from a licensed physical therapist has significantly expanded Christopher's physical capacities. In the summer of 1985, Christopher received two weeks of intensive physical therapy from a licensed physical therapist at Shriner's Hospital in Philadelphia. According to Christopher's parents, this brief treatment produced dramatic improvements in Christopher's physical capabilities. ⁴ A doctor at Shriner's prescribed that Christopher receive at least one hour a week of direct physical therapy. Because the defendants were unwilling to provide direct physical therapy as part of Christopher's special education program, the Polks hired a licensed physical therapist, Nancy Brown, to work with Christopher at home. At the time of the hearing, she was seeing Christopher twice a week.

Plaintiffs acknowledge that the school program has benefited Christopher to some degree, but argue that his educational program is not appropriate because it is not individually tailored to his specific needs, as the EHA requires. Moreover, throughout all of the administrative and judicial proceedings that we now describe, plaintiffs have maintained that to comply with the EHA the defendants must provide, as part of Christopher's "free appropriate public education," one session a week with a licensed physical therapist.

Plaintiffs first challenged Christopher's IEP before a Commonwealth of Pennsylvania Department of Education Hearing Officer. At that hearing and in later depositions, the administrator of the...