Travis G. v. New Hope-Solebury School Dist.

• Decision Date: 13 March 2008
• Docket Number: Civil Action No. 06-CV-5134.
• Citation: 544 F.Supp.2d 435
• Parties: TRAVIS G., a child with a disability, by his Parents, Joseph G. and Stella G., and Joseph G. and Stella G. on their own behalf v. The NEW HOPE-SOLEBURY SCHOOL DISTRICT, Barbara Burke Stevenson, individually and in her official capacity as Superintendent of the New Hope Solebury School District, Dr. Demaris Foote, individually and in her official capacity as Director of Pupil Services, Kenneth M. Silver, individually and in his official capacity as Principal of the New Hope-Solebury Elementary School.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 435

544 F.Supp.2d 435

TRAVIS G., a child with a disability, by his Parents, Joseph G. and Stella G., and Joseph G. and Stella G. on their own behalf v. The NEW HOPE-SOLEBURY SCHOOL DISTRICT, Barbara Burke Stevenson, individually and in her official capacity as Superintendent of the New Hope Solebury School District, Dr. Demaris Foote, individually and in her official capacity as Director of Pupil Services, Kenneth M. Silver, individually and in his official capacity as Principal of the New Hope-Solebury Elementary School.

Civil Action No. 06-CV-5134.

United States District Court, E.D. Pennsylvania.

March 13, 2008.

Frederick M. Stanczak, Law Offices of Frederick M. Stanczak, Doylestown, PA, for Plaintiffs.

Ellis H. Katz, Jennifer Nicole Donaldson, Jonathan P. Riba, Sweet Stevens

Tucker & Katz LLP, New Britain, PA, for Defendants.

MEMORANDUM AND ORDER

JOYNER, District Judge.

This case is before the Court for disposition of the parties' cross-motions for summary judgment on the administrative record. For the reasons which follow, we shall grant the defendants' motion and deny that of the plaintiffs.

Factual Background

Travis G. is a now-eight-year-old student attending the New Hope-Solebury Elementary School in the New Hope-Solebury (Bucks County) School District. When he was between 12 and 18 months of age, concerns arose with respect to Travis's development in that his language was not developing and he was easily upset, at which times he would go into corners and/or take to his bed and sleep for long periods of time. He was ultimately seen by a developmental specialist at Bryn Mawr Hospital and diagnosed with autism.¹ Travis began receiving early intervention therapies and services for his autism through the Bucks County Intermediate Unit ("IU") commencing in December, 2002. Under an Individualized Education Program ("IEP") that was developed at or around that same time, Travis was attending a regular pre-school for several hours three days a week with a one-on-one aide and receiving applied behavior analysis ("ABA") and verbal behavior ("VB")instruction services at home in the mornings on a one-to-one basis, as well as occupational and physical therapy. Under this early intervention IEP, he was receiving some 30 hours per week of ABA/VB therapy and the parties appear to agree that Travis progressed well under this program.

Travis was eligible to enter kindergarten in the fall of 2005. In the summer before the beginning of the school year, the defendants² proposed an IEP under which Travis would receive ABA and VB services in an autistic support class operated by the IU known as the Disney Program, to be followed by participation in a regular kindergarten class in his home elementary school. The District also proposed reducing the occupational therapy ("TO") services from one hour to one-half hour per week. After discussing the autistic support class with the teacher and learning that most of the students were not functioning at the same level as Travis, his parents, Plaintiffs Joseph and Stella G., rejected this proposal requesting instead that the ABA services be provided in his neighborhood elementary school, followed by attendance in the regular kindergarten class accompanied by a 1:1 aide. The G.'s also objected to the reduction in the TO services and sought due process. A meeting to resolve these issues was eventually held between the G.'s, and Defendants Drs. Burke-Stevenson and Foote in mid-October, 2005 with the result that an interim IEP was agreed to which provided that Travis would receive two hours per school day of one-to-one ABA/VB services in his home³ and would attend a regular kindergarten class accompanied by a 1:1 aide in the afternoon at his neighborhood school, New Hope-Solebury Elementary. Because this interim program was not agreed to until after the start of the regular school year, Travis did not start attending kindergarten until October 18, 2005 and he did not receive the required amount of ABA/VB services between September 6 and October 18, 2005. However, despite the language of the interim IEP, he did thereafter receive three hours per day of ABA/VB therapy.

In February, 2006, the District proposed an IEP for the balance of the school year and for the summer which apparently called for a reduction in Travis' ABA/VB therapy and for a six-week Extended School Year ("ESY") program at the Newtown Elementary School run by the Intermediate Unit at which Travis would be provided with speech and occupational therapies on a one-to-one and "push-in" setting by both a one-to-one special education teacher and occupational therapist. Mr. and Mrs. G. rejected the proposed IEP and sought due process because they believed that Travis required at least 3 hours of ABA/VB therapy per day and because they believed that the ESY program was not the least restricted environment ("LRE") for their son given that the classroom to which he would be assigned would have no typical students present. Rather, the G.'s sought to have the district send Travis to a six-week art camp program run by Ravens Run offering a variety of art, acting and dance activities with typical peers, at which the director had assured them that Travis could receive the three hours of daily ABA'and occupational therapies to be provided by trained personnel from the District.

Following four days of due process hearings on May 5, May 24, June 2 and June 8, 2006, the Special Education Hearing Officer issued his decision on July 5, 2006. At that time, the Hearing Officer found that the proposed February, 2006 IEP was appropriate and should be implemented. The decision further ordered:

1. That the School District should compensate Travis' parents for the $300 cost of their independent occupational therapy examination.

2. That ESY services should not have a break longer than two weeks after school ends in the Spring and two weeks before the fall semester begins and that the ESY program should include 30 minutes of direct occupational therapy and 30 minutes of consultation, 30 minutes of consultation and 30 minutes of direct speech and language therapy and 1.5 hours of ABA daily. A special education teacher with ABA and autistic support experiences was to be provided for the ESY classroom and if the ESY classroom experiences end before the 2 week period before school resumes, ABA time was to be extended to three hours per day for that interim period.

3. The parents' request for compensatory education (for that period of time between September 6 and October 18, 2005) was denied.

4. The parents' request for attendance at the Ravens Run Art Camp at the district's expense was denied.

5. Travis' parents were to have the same visitation rights to the classroom as all other parents and were to be permitted to be accompanied by their consultants at IEP meetings.

The Plaintiffs filed exceptions to the following four findings by the Hearing Officer in their appeal of his decision to the Commonwealth of Pennsylvania, Special Education Appeal Panel: (1) that the February 2006 proposed IEP was appropriate and should be implemented; (2) that the proposed placement for the delivery of ESY services (i.e., the ESY program at Newtown Elementary instead of the Ravens Run Camp) was appropriate; (3) that the student was not entitled to compensatory education; and (4) that the level of ABA and OT services provided in the proposed IEP is adequate. On August 23, 2006, the Appeals Panel affirmed the Hearing Officer's decision in all respects. Plaintiffs thereafter filed a complaint in this Court appealing that decision on November 21, 2006 and seeking relief under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et. seq., ("IDEA"), the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1983. Agreeing that no further discovery was necessary and that this case may be decided on the basis of the administrative record, the parties filed their motions for summary judgment in September, 2007.

Standards Governing Summary Judgment Motions

Summary judgment is appropriate where, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Michaels v. New Jersey, 222 F.3d 118, 121 (3d Cir.2000); Jones v. School District of Philadelphia, 198 F.3d 403, 409 (3d Cir.1999). Indeed, the standards to be applied by district courts in ruling on motions for summary judgment are clearly set forth in Fed.R.Civ.P. 56(c), which states, in pertinent part:

".... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

Under this rule, a court is compelled to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988); Aries Realty, Inc. v. AGS Columbia Associates, 751 F.Supp. 444 (S.D.N.Y.1990). In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 126 (3rd Cir.1994); Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd Cir.1989); U.S. v. Kensington...