Through His Parent Cathy K. v. Carbondale Area Sch. Dist.

• Decision Date: 28 September 2017
• Docket Number: CIVIL ACTION NO. 3:16-0964
• Parties: SHANE T., by and through his parent CATHY K., Plaintiffs, v. CARBONDALE AREA SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

SHANE T., by and through his parent CATHY K., Plaintiffs, v. CARBONDALE AREA SCHOOL DISTRICT, Defendant.

CIVIL ACTION NO. 3:16-0964

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

September 28, 2017

(JUDGE MANNION)

MEMORANDUM

Before the court are a motion for summary judgment/judgment on the administrative record filed by the defendant Carbondale Area School District ("the District"), (Doc. 15), and a cross-motion for judgment on the administrative record filed by the plaintiffs, Shane T. (Shane) by and through his mother Cathy K. (Cathy), (Doc. 18), with Cathy also requesting relief in the form of private school tuition reimbursement. Shane is a special education student residing in the District and currently attending a private school in Scranton, Pennsylvania, Allied Services dePaul School ("Allied dePaul"). On July 1, 2015, the plaintiffs filed a due process complaint with Pennsylvania's Office for Dispute Resolution ("ODR") alleging that the District violated the Individuals with Disabilities Education Act ("IDEA"), 84 STAT. 175, as amended, 20 U.S.C. §1400 et seq. and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), as amended, 29 U.S.C. §701 et seq. because the District failed to offer Shane a free appropriate public education ("FAPE").

On February 23, 2016, after two days of hearings, an administrative Hearing Officer ordered the District to evaluate Shane, but denied the plaintiffs' request for tuition reimbursement and an independent educational evaluation ("IEE") at the District's expense. (Doc. 8-2). The plaintiffs' complaint, (Doc. 1), challenges this decision. In their current motions, the plaintiffs seek to reverse and the District seeks to uphold the Hearing Officer's determination. Based on the foregoing, the parties' motions will be GRANTED IN PART and DENIED IN PART and the case will be remanded to the Hearing Officer for further findings.

I. BACKGROUND¹

Cathy has identified her son, Shane, as having learning disabilities and speech and language impairments, specifically, Attention Deficit Hyperactivity Disorder ("ADHD"), dysgraphia, and dyslexia. (Doc. 8-6 at 82). On September 12, 2013, Cathy re-enrolled Shane in the District while he was attending Allied dePaul, a private school that serves children with learning disabilities. Following Shane's re-enrollment, the District did not perform an evaluation of Shane or propose an individualized education program ("IEP") for him. The parties dispute whether the District's failure to act violated the IDEA.

Shane was born on April 15, 2005. (Doc. 8-6 at 81). Prior to his kindergarten year, he attended a Head Start program and the District and he received early intervention services. (Doc. 8-4 at 13; Doc. 8-5 at 8, 42). On August 25, 2010, Cathy enrolled Shane in Fell Charter Elementary School ("Fell Charter"), a public charter school. (Doc. 8-5 at 8). On September 3, 2010, she formally withdrew Shane from the District so he could attend kindergarten at Fell Charter. (Doc. 8-5 at 6). According to Cathy's testimony at the administrative hearing, she withdrew Shane from the District because her "niece and nephews went to Fell Charter and they thrived there." (Doc. 8-4 at 19). At some point during his time at Fell Charter Shane was identified as having learning disabilities and an initial IEP was completed for him. According to Cathy's testimony, this initial IEP was done at her written request. (Id. at 16).

By February 24, 2011, Shane had a IEP Team in place at Fell Charter and a meeting was held to evaluate his special education needs into the following year. (Doc. 8-5 at 10-29). This initial IEP indicated that Shane had communication needs. In particular, he was identified as having difficulties with letters and numbers, consistent with his mother's testimony regarding Shane's dyslexia. (Id. at 13-15). It also indicated that he required specialized speech and language support at the charter school, in addition to program modifications incorporated into the general education learning environment. (Id. at 21). Shane attended Fell Charter for the entirety of his kindergarten year, the 2010 through 2011 school year. A reevaluation report was completedon May 4, 2011 for the following school year. (Id. at 30-51). The reevaluation again classified Shane as having a health impairment and a speech and language impairment with the need for continued services. (Id. at 46).

Shane began the following school year, 2011 through 2012, at Fell Charter. According to Cathy's testimony, Fell Charter wanted Shane to repeat his kindergarten year. (Doc. 8-4 at 14). He only attended Fell Charter a couple of months out of the 2011 through 2012 school year, apparently completing the first trimester. (Id.; see also Doc. 8-5 at 52 (special education progress report completed by Fell Charter on November 3, 2011 )). As of November 3, 2011, Shane was showing progress in some, but not all of his IEP goals. (Doc. 8-5 at 53-57). Ultimately, Cathy withdrew Shane from Fell Charter and placed him in Allied dePaul to complete his first grade year. (Doc. 8-4 at 14). Cathy made the decision to send Shane to Allied dePaul was based upon a doctor's recommendation to her. (Id. at 19). The placement into Allied dePaul was supported by and paid for by Fell Charter. (Id.). Shane attended Allied dePaul for the remainder of his first grade year and second grade year, both paid for by Fell Charter. (Id. at 19; see also Doc. 8-6 at 97).

According to Cathy's testimony at the administrative hearing, around the time of the transition from Fell Charter to Allied dePaul, December of 2011, Cathy spoke to the former director of special education services for the District, Mary Ann Boyle, and had a few conversations with her about Shane. (Doc. 8-4 at 14-15). She testified that she called looking for information about possibleservices for her son. (Id.). She also called other entities in an effort to get services for her son. (Id. at 14).² The record does not indicate exactly how many times Cathy contacted Mary Ann Boyle to discuss Shane during the 2011-2012 school year. By May of 2012, however, Mary Ann Boyle was replaced by a new special education director, Angela Geyer. (Doc. 8-4 at 7). Mrs. Geyer did not become aware of Shane until the 2013-2014 school year and Cathy did not speak to Mrs. Geyer before that time. (Id.; Doc. 8-4 at 22).

There is no evidence that the District offered a placement to Shane during his transition from Fell Charter to Allied dePaul. By November 30, 2011, however, an equitable participation/service plan was created for Shane by the Northeastern Educational Intermediate Unit 19 ("NEIU").³ (Doc. 8-6 at 31). Thus, Shane did have a Service Plan Team in place at that time. Shane's November 30, 2011 service plan indicated that he was attending Allied dePaul and that his "District/School" was "Carbondale/Fell Charter." (Id.). Dr. Clarence Lamanna, the director of the NEIU, was designated as Shane's Local Education Agency ("LEA") Representative. (Id.; Doc. 8-4 at 11). The service plan indicated that Shane would require speech and language support and thatthe intervention would take place at Allied dePaul until an anticipated end date of November 29, 2012. (Doc. 8-6 at 40). The service plan made clear that it was not an IEP. (Id. at 31).

Shane completed his first grade year at Allied dePaul without incident. He also attended Allied dePaul for his second grade year, 2012-2013, without incident. The NEIU updated Shane's service plan on May 9, 2013 for the 2013-2014 school year, his third grade year. (Doc. 8-6 at 64). His updated plan remained unchanged and indicated that Shane would continue to receive speech and language support at Allied dePaul through an anticipated end date of May 8, 2014. (Id. at 73).

On September 12, 2013, the beginning of Shane's third grade year, Cathy came to the District and completed a Student Registration Form, thereby re-enrolling Shane in the District while he was still attending Allied dePaul. (Doc. 8-4 at 15; Doc. 8-6 at 79-84). Cathy indicated on the form that Shane was a special education student. (Doc. 8-6 at 82). According to her testimony, she also provided whatever records she had available for Shane. (Doc. 8-4 at 15).

The only evidence in the record detailing what took place during the Shane's registration and re-enrollment was Cathy's testimony at the administrative hearing. Cathy described her registration with the District as follows:

Q. Do you remember that day when you went to register Shane?

A. Yes.

Q. What happened?

A. So I filled out the forms. I handed them to someone and I was told, am I enrolling Shane in Carbondale. I asked - - I had said, right now I'm looking for to see where the best placement for Shane is.

And I was treated very nasty. She said, well, are you enrolling him here; because if not, you're going to be arrested for truancy because he's not actually going here.

And I said, well, can you please take the records. I was like, I want to - - at this point I'm not sure where he's going right now. He's in school so I'm not going to get truancy charges.

She's like, well, if you enroll him here and he doesn't come here, then there's going to be a truant officer coming to you and you could possibly get arrested.

She was not forthcoming. She was not very, once again, warm. I tried to give her the forms. And she's like, well, we're not going to take them if he's not coming here.

And I said, you need to take these. What you do with them after I leave is fine but you need to take these. I'm giving these to the school to try to weigh out my options for my son.

I got - - like I said, she was not very nice about it. I asked her if she could actually time stamp and give me something stating that she received them. She told me that she has no stampers here or nothing and that she would not write anything down to prove that she had given me them.

With that, I had asked her name. I had wrote it on the folder, the time and the

...