R.S. v. Lower Merion Sch. Dist.
| Decision Date | 06 March 2023 |
| Docket Number | Civil Action 22-3478 |
| Parties | R.S. and R.S., Individually and on Behalf of J.S., a minor v. LOWER MERION SCHOOL DISTRICT |
| Court | U.S. District Court — Eastern District of Pennsylvania |
In the typical action brought under the Individuals with Disabilities Education Act (“IDEA”), the parents complain that the school district does not offer enough support to provide their disabled child a free and appropriate public education. That is not the case here.
The parties disagree on what the appropriate high school placement was for J.S., a disabled child with bipolar disorder. The Lower Merion School District offered an out-of-district school providing intensive therapeutic behavioral, emotional and social supports. Disagreeing that J.S. needed that much support, the parents enrolled him in a private school providing one-on-one instruction and having no mental health professionals on staff. After a due process hearing, the hearing officer decided the school district's proffered placement was appropriate and the parents' was not.
The parents and the District cross-moved for summary judgment on the administrative record. After an independent review of the administrative record and deferring to the findings of the hearing officer, we conclude that the school district's proffered placement was appropriate at the time. Therefore we shall affirm the hearing officer's decision.
J.S was a student at Lower Merion School District (“District”) from kindergarten to the eleventh grade when his parents enrolled him in a private school. From the third grade until the eleventh grade, he engaged in oppositional and defiant behavior that disturbed and disrupted teachers and other students. He was evaluated several times throughout those years and was sometimes provided special education support.
Problems arose in the third grade when J.S. acted out, pointing at other students with his fingers mimicking a gun and throwing food at them. J.S. was evaluated to determine whether he was eligible for special education. The evaluation revealed that J.S. was a child with a disability in need of special education for an Other Health Impairment related to attention and executive functioning impairments, and an Emotional Disturbance for his oppositional and defiant behavior.
In fifth grade, an Individualized Education Program (“IEP”) team referred him for a re-evaluation after concerns of increasing anxiety, executive functioning problems, and excessive absences. The re-evaluation, which did not occur until the following year in sixth grade included information and input from teachers and the parents. Testing revealed that the parents had significantly different assessments of J.S.'s behavioral problems. So did the teachers. As to focusing and impulse control, J.S.'s mother placed him in the elevated range or very elevated range in all domains except for learning problems and conduct problems. His father saw him as normal, except for conduct.
Despite their inconsistent assessments, the parents agreed that his problems impacted his academic performance.
J.S.'s reading teacher rated him in the average range in all domains. His Social Studies teacher rated him in the very elevated range for defiance/aggression, emotional liability, and oppositional defiant disorder. J.S. rated himself as hyperactive. With respect to behaviors related to executive function, the teachers rated him as average. Again, the parents' perspectives were inconsistent. His mother rated her son's needs above average in many areas. His father saw no elevated needs.
The evaluator concluded that J.S. did not exhibit behaviors that impeded his or other students' learning. She determined that when he is in school, he performs well. The evaluator attributed J.S.'s problems to excessive absences. Accordingly, she concluded J.S. did not qualify for special education services and did not require specially designed instruction.
The District, concluding that J.S. had an attendance problem, not a behavioral or learning problem, offered the parents a referral to third-party agencies to provide at-home services to address the attendance issue. The parents rejected the offer, instead relying on private providers. They refused to allow the District to communicate with those providers.
J.S.'s attendance did not improve in the seventh grade. In three quarters, he accumulated twenty-seven missed days and sixty-four late days, resulting in various suspensions.
At the parents' request, the District re-evaluated J.S. This time the parents' ratings were farther apart, with his father rating his son average across the board and his mother rating him average in only three of ten domains. She rated her son very elevated in attention, defiance/aggression, and oppositional defiant behavior.
Two teachers rated J.S. similarly to his mother. Considering these ratings, the evaluator concluded J.S. had significant difficulty exhibiting thoughts and behaviors that can interfere with work, significant problems regulating behavior, and significant problems with working memory and organizing work materials. She further found that J.S.'s behavior was consistent with a diagnosis of oppositional defiant disorder, a form of social maladjustment, not an emotional disturbance qualifying him for special education services. Nonetheless, she concluded that although J.S. was a child with a disability, he was not in need of special education.
The parents retained a private psychologist to evaluate J.S. The private psychologist diagnosed general anxiety disorder, moderate unspecified depressive disorder, ADHD, and oppositional defiant disorder. He noted J.S. was unable to manage his emotions, lacked social skills and overreacted. Among his recommendations was school support, specifically, special education services to address J.S.'s ADHD, hyperactivity and oppositional defiant disorder.
The parents shared this report with the District, instigating a re-evaluation in the eighth grade. Testing results showed no change in prior tests. The evaluator found that J.S. was doing better in behavior and attendance, and found no evidence of anxiety and depression causing oppositional defiant disorder. Again, finding that J.S. did not qualify for special education, she recommended he remain in regular education despite the private psychologist's recommendation of special education services.
Ninth grade brought a change at the same time COVID hit. J.S.'s attendance and tardiness improved significantly, and he had no disciplinary infractions. But, teachers noticed signs of a problem. J.S. had a troubling demeanor, and appeared “down”, “sad”, and “lethargic.”[1] He demonstrated an increasing loss of interest in school. Yet, he completed the ninth-grade year in the A+ to B range and achieved honors-level academics. The District did not re-evaluate J.S.
In tenth grade, after returning to in-person school, J.S.'s attendance began falling off and his math teacher reported that he was impulsive and disrespectful. His misbehavior was escalating. In March, J.S. brought a plastic rendition of a martial arts weapon into school. The teacher also reported J.S.'s oppositional defiance and inability to understand the perspective of others, poor attendance, incomplete work and missing tests. J.S.'s grades plummeted to a D+ in English and an F in Math, while remaining in the A+ to B range in other subjects.
In October of his eleventh grade, a school counselor made a START[2] referral based upon his failing grade in Spanish, incomplete work assignments in Math, and disruptive behavior in both classes. A month later, on November 16, 2021, his History and Spanish teachers made disciplinary referrals. The History teacher wrote that “[J.S.] does this type of thing [(leaving class and not returning)] all the time.”[3] The Spanish teacher reported that [4]
The next day, the Spanish teacher made another disciplinary referral, citing the same disruptive behavior. Two days after that, both the Math and Spanish teachers filed disciplinary forms.
Over the weekend of November 19 through 22, 2021, J.S. suffered a manic episode with severe psychotic features. The District received emails and reports from eight community members through the safe-to-say reporting system. The reports documented bizarre, threatening and inappropriate behavior.[5]
J.S. sent a disturbing email to two teachers:
J.S. was hospitalized on November 22, 2021. He was admitted to the Horsham Clinic on November 24, 2021, where he received a preliminary working diagnosis of [7] J.S. was discharged from the Horsham Clinic on December 2, 2021. Upon discharge, he was prescribed 5 mg of Abilify at bedtime and directed to follow up with Dr. Robert Klein of White Marsh Psychiatry the following day.
On December 16, 2021, J.S. had a second manic episode. Four days later, in response to his parents calling 911, J.S. was taken to the Bryn Mawr Hospital Emergency Room where he was placed in restraints for one day. On December 22, 2021, J.S. entered Montgomery County Youth Center (“MCYC”) where he remained until January 19, 2022. While at MCYC, J.S. had a third manic episode.
After his first manic episode, J.S. began treating with Dr. Robert L. Klein, a clinical psychologist, and...
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