Tereance D. v. School Dist. of Philadelphia

• Decision Date: 13 February 2008
• Docket Number: Civil Action No. 07-4166.
• Citation: 548 F.Supp.2d 162
• Parties: TEREANCE D., through his Guardian and next friend, WANDA D., and Wanda D. in her own right, Plaintiffs, v. SCHOOL DISTRICT OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

548 F.Supp.2d 162

TEREANCE D., through his Guardian and next friend, WANDA D., and Wanda D. in her own right, Plaintiffs, v. SCHOOL DISTRICT OF PHILADELPHIA, Defendant.

Civil Action No. 07-4166.

United States District Court, E.D. Pennsylvania.

February 13, 2008.

COPYRIGHT MATERIAL OMITTED

Lorrie McKinley, McKinley & Ryan LLC, West Chester, PA, for Plaintiffs.

Miles H. Shore, School District of Phila, Office of General Counsel, Philadelphia, PA, for Defendant.

Memorandum and Order

YOHN, District Judge.

Plaintiffs Tereance D. and Wanda D. bring this five-count action against the School District of Philadelphia (the "District") for failing to provide Tereance with a free appropriate public education ("FAPE") and for discriminating against Tereance. The court presently considers the District's motion to dismiss Counts III and IV under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted and its motion to dismiss Wanda as a plaintiff in her own right.

I. Factual and Procedural History¹

Tereance has autistic spectrum disorders and related disabilities. (Compl. ¶ 2.) Autistic spectrum disorders are neurological impairments that impact a student's ability to acquire language skills, such as articulate speech, and relate to others. (Id. at ¶ 44.) During early intervention schooling, which is unrelated to the District's services, Dr. Susan Huntington, a District psychologist, evaluated Tereance but failed to comprehensively assess whether Tereance was autistic, instead erroneously concluding that Tereance was mentally retarded. (Id. at ¶¶ 42-46.) Although Dr. Huntington misclassified Tereance's condition, she expressly stated that he required learning support in order to receive a FAPE. (Id. at ¶ 49.) Tereance transitioned from early intervention to kindergarten in the District at the start of the 2000-2001 school year. (Id. at ¶ 2.)

A. Tereance's Schooling

1. School-Year Support

Every disabled student who requires individualized instruction is eligible to receive a FAPE. See 34 C.F.R. § 300.26(b)(3). It is incumbent on the district to evaluate the student's disability and need for a FAPE. See 34 C.F.R. §§ 104.35, 300.125, 300.532(b). When Tereance entered kindergarten in 2000, his readiness skills were at the level of a two-and-a-half year old child, with delays of twenty-five percent or greater in speech and language, cognitive, social and emotional, fine and gross motor, and self-help skills. (Id. at ¶ 41.) The District, however, placed him in a regular kindergarten program without supplemental supports. (Id. at ¶ 47.)

From kindergarten through fifth grade, the District conduct a series of flawed evaluations of Tereance and at times failed to conduct evaluations at all. (E.g., id. at ¶¶ 56, 62-63, 66, 91-93, 115-116, 128.) In an attempt to deal with the behavioral manifestations of Tereance's autistic spectrum disorders, the District provided varying levels of support, such as emotional and full-time learning support, self-contained learning support classrooms, once-a-week speech and language services, therapeutic support services, removal from instructional areas, and placement in a contractor-run mental health services program,² all of which were premised on the misdiagnosis of Tereance's condition as an emotional problem, not autistic spectrum disorders. (Id. at ¶¶ 52-55, 73, 92, 96-98, 107, 109).³ None of these efforts helped Tereance's educational development. (Id. at ¶¶ 75, 83-86, 99, 104-106, 108, 113, 114, 117, 126.) Each year, from first through fifth grade, Tereance entered school significantly behind his peers in language, social, behavioral, and other skills. (Id. at ¶¶ 58-59, 82-83, 95, 112-113.)

As early as November 2001, the District suspected that Tereance was autistic. At that time, Dr. Huntington performed an evaluation, although she was not competent to conduct an evaluation on an autistic child. (Id. at ¶ 62-63.) Her evaluation concluded that Tereance had autistic spectrum disorders and recommended an additional occupational therapy ("OT") evaluation. (Id. at 68.) Nonetheless, the District did not properly assess his pragmatic speech development or behavioral issues, and the resulting evaluation report erroneously stated that he had receptive language skills and could use well-informed speech. (Id.) The District did not inform Wanda that the evaluation was not comprehensive enough to satisfy statutory requirements and misinformed Wanda that it was not possible to fully test Tereance because he refused contact with the evaluator. (Id. at ¶¶ 66-67). Furthermore, the District did not follow up on the evaluation's recommendation that Tereance have an OT evaluation and did not refer Tereance for a neuro-psychological evaluation. (Id. at ¶ 70.) Instead, without informing Wanda that the District was responsible for identifying Tereance's educational needs, it told her to seek a private psychiatric evaluation to better determine his educational needs. (Id. at ¶¶ 71-72.) Again, at this time, and on numerous occasions in the following years, the District did not consider whether Tereance needed autistic support services and did not inform Wanda of Tereance's need for and the availability of autistic support services. (Id. at ¶¶ 74, 79, 93.)

On September 27, 2002, the District acted on Dr. Huntington's earlier recommendation that Tereance have an OT evaluation. (Id. at ¶ 90.) The District's occupational therapist performed a cursory evaluation and failed to assess Tereance's needs in the sensory area, concluding that he was functioning adequately without the need for OT services. (Id. at ¶ 9 1.) However, in November 2004, a subsequent District evaluation correctly identified that Tereance's behavioral problems were "internally driven by his PDD condition," which is an autistic spectrum disorder. (Id. at ¶ 129-30)

Despite this conclusion, the District failed to address Tereance's OT and autistic needs through May 2005. (Id. at ¶ 28.) In December 2004, after Wanda had Tereance independently evaluated by the Center for Autistic Children, Wanda requested that the District provide Tereance with autistic support services. (Id. at ¶ 132.) For the next five months, the District refused to provide Tereance with these services, declaring him ineligible and falsely telling Wanda that the District did not have an autistic support classroom and did not have to create one for him. (Id. at ¶ 133.) The District further claimed that it would be illegal to place him in a restrictive classroom required for autistic support services. (Id. at ¶ 135.)

In April 2005, Wanda, now acting with legal representation, requested a prehearing conference to address the District's failure to provide Tereance with autistic support services. (Id. at ¶ 137.) At the prehearing conference on May 9, 2005, the District agreed to provide autistic support services to Tereance beginning in September 2005 at the Nebinger Elementary School. (Id. at 138). Nebinger Elementary School had provided autistic support services to District students for seventeen years. (Id. at ¶ 139.) As part of Tereance's autistic spectrum disorders individual education program ("IEP"), the District also agreed to provide OT services for handwriting and sensory integration and direct instruction in pragmatic language. (Id. at ¶ 140.)

2 Extended School Year Services

Extended school year services ("ESY") are special education and related services operated by the District beyond the normal school year if necessary to provide a student with a FAPE. See 34 C.F.R. § 300.309(a)(2). Whether a child qualifies for ESY must be raised at every IEP team meeting. See 22 Pa. Cons.Stat. § 711.44(6). From kindergarten through fifth grade, the District held numerous periodic IEP meetings regarding Tereance without providing Wanda with notice that ESY would be considered and without considering the required eligibility factors when denying Tereance ESY eligibility. (Id. at ¶¶ 50-51, 54-55, 60, 65, 88-89, 100-02.) Tereance did not receive ESY between the end of kindergarten in 2001 and the beginning of fourth grade in 2004. (Id. at ¶¶ 57, 81, 111.)⁴

On December 1, 2005, the District held an IEP meeting and determined that Tereance was eligible for ESY. (Id. at ¶ 147.) However, in Spring 2006, Tereance's teacher, who was not qualified to make such determinations, informed Wanda that the available ESY services were inappropriate for Tereance. (Id. at ¶ 148.) Relying on that information, Wanda waived Tereance's ESY, which she would not have otherwise done. (Id. at ¶¶ 148-151.) Additionally, the District's policies and procedures regarding ESY services did not comport with state or federal law and were designed to mislead parents as to their ESY rights. (Id. at ¶ 150.)

B. Administrative Proceedings

On December 13, 2006, Wanda filed a due process complaint pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq., and section 504 of the Rehabilitation Act of 1973 ("section 504"), 29 U.S.C. § 794 et seq. A hearing officer reviewed the case over six sessions before issuing an order on June 8, 2007 granting compensatory education for the period between December 13, 2004 and May 9, 2005 and compensatory ESY for the summers of 2002, 2003, 2004, and 2006. The hearing officer denied compensatory education for the school years of 2001-2002, 2002-2003, and 2003-2004, concluding that the statute of limitations had expired on those claims. The hearing officer also denied compensatory education for September through December 2004 and compensatory ESY for the summer of 2005. On July 17, 2007, the Special Education Appeals Panel's (the "panel") affirmed the hearing officer's order.

C. Procedural History

On October 15, 2007, Tereance and Wanda filed this five-count Complaint against the District. Count I seeks enforcement of the hearing officer's award of compensatory education and ESY...