IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
POCONO MOUNTAIN : Civil No. 3:15-CV-764
: (Judge Mariani)
Counterclaim Defendant : (Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff and counterclaim defendant, Pocono Mountain School District (the “School District”) initiated this action on April 20, 2015 to appeal the decision issued by a Pennsylvania Special Education Hearing Officer (“Hearing Officer”) after several hearings involving defendant and counterclaim plaintiff, S.D.L. (“Parent”), proceeding on behalf of her son, T.D. (“Student”), a minor. (Doc.[1].) At the administrative level, the Hearing Officer issued what was essentially a partially favorable ruling for all parties and found that: (1) the Student was not eligible for a free and appropriate public education (“FAPE”) under the Individuals with 2 Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; (2) the School District failed to provide FAPE under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 20 U.S.C. § 794; (3) the Student was entitled to one hour of compensatory education per school day for the School District’s denial of FAPE between May 14, 2013 and the end of that school year, a period of 26 school days; (4) the Parent was entitled to tuition reimbursement for the School District’s denial of FAPE for the 2013-14 and 2014-15 school years; and (5) the School District discriminated against the Student by acting with deliberate indifference to his disability status. (Doc. 10-2.)
Viewing this Hearing Officer decision as a glass half empty rather than a glass half full, each party has challenged aspects of this decision. After the School District filed the instant complaint, the Parent asserted counterclaims against the School District seeking reversal of certain aspects of the Hearing Officer’s decision with respect to the Student’s eligibility for FAPE under the IDEA and the award of only one hour per school day of compensatory education dating from May 14, 2013, as opposed to an award of full days dating from March of 2012. (Doc. 16.) The Parent further alleged that the Student is entitled to compensatory damages based upon Section 504, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. § 3 1682; and that the Parent is entitled to attorneys’ fees and costs.[1] (Doc. 16.)
Now pending before this court are the parties' cross-motions for judgment on the administrative record or, in the alternative, for summary judgment. (Docs. 42 and 54.) Neither party has presented new or additional evidence for this court’s consideration with respect to these motions, and therefore the parties agree that the court may review the matter based exclusively on what is contained within the underlying administrative record. (Doc. 35.) Upon consideration of the parties’ briefs and the voluminous record evidence that the parties have furnished to the court, we recommend that the parties’ cross-motions each be granted in part and denied in part, and that the Hearing Officer’s decision be affirmed.
II. STATEMENT OF FACTS
The Student is a 15 year old male who resides within the School District and was enrolled in the School District’s regular education curriculum beginning in kindergarten. (Doc. 10-2, ¶ 1; Doc. 42-2, ¶¶ 1-2; Doc. 55-1, ¶ 1.) The Student progressed normally through the first few years of school until the events that give rise to this action began during his 2011-12 (third grade) school year. (Doc. 10-2, 4 ¶¶ 2-4.) Beginning in approximately December of 2011, a female student began inappropriately touching the Student’s private parts and rear end. (Doc. 10-2, ¶ 5; Doc. 42-2, ¶ 11; Doc. 55-1, ¶ 2.) This inappropriate touching occurred approximately three times on school grounds between December of 2011 and January of 2012. (Doc. 42-2, ¶ 11; Doc. 55-1, ¶ 2.) Around this same time period, the Student began to act out in school and at home, exhibiting defiant behavior. (Doc. 10-2, ¶¶ 6-7; Doc. 55-1, ¶¶ 2-3.)
After school on January 26, 2012, the Student told an older sibling that he had been “raped” in school by another student.[2] (Doc. 10-2, ¶ 11; Doc. 55-1, ¶ 4.) The Student repeated this statement to the Parent later that day, and went on to describe the other incidents of inappropriate touching that occurred over the previous two months. (Doc. 10-2, ¶ 12; Doc. 55-1, ¶ 4.) The Parent then called and left a message for the principal at the Student’s school, Dr. D’Angelo, notifying the 5 School District of the allegations and spurring an investigation.[3] (Doc. 42-2, ¶ 4; Doc. 55-1, ¶ 4.) The following morning, the Parent accompanied the Student to school and attempted but was unable to meet with Dr. D’Angelo. (Doc. 10-2, ¶ 13; Doc. 42-2, ¶ 9; Doc. 55-1, ¶ 6.) The Parent instead met with the school’s assistant principal, who then spoke with the Student himself. (Doc. 10-2, ¶ 14; Doc. 42-2, ¶ 9; Doc. 55-1, ¶ 6.) During this meeting, the Student told the assistant principal about the nature of the touching, named the classmate who had touched him, and where and how many times it occurred, and named an alleged witness. (Doc. 10-2, ¶ 14; Doc. 42-2, ¶¶ 10-11; Doc. 55-1, ¶¶ 7-8.) That morning, the assistant principal went on to contact the Student’s teachers and guidance counselors, who met with the Student and accused classmate and then reported back to the assistant principal.[4] (Doc. 10-2, ¶¶ 15-17; Doc. 42-2, ¶¶ 10-11; Doc. 55-1, ¶¶ 9-11.) The 6 assistant principal finished his investigation by the end of the morning and informed the Parent of his findings, with the only action taken being to ensure that the Student and accused classmate were separated from each other at all times in the future. (Doc. 10-2, ¶¶ 15, 19; Doc. 42-2, ¶ 13; Doc. 55-1, ¶¶ 11-12.) Although the School District considered its investigation and decision to separate the Student from the accused to be a sufficient response to the allegations, noting that the alleged behavior was “not unusual” among children that age, the Parent viewed the investigation as inadequate and perfunctory. (Doc. 42-2, ¶¶ 6, 11; Doc. 55-1, ¶ 11.) The classmate accused of the inappropriate touching was withdrawn from the school district early the following week, although apparently for unrelated reasons. (Doc. 10-2, ¶¶ 15, 19; Doc. 42-2, ¶ 13; Doc. 55-1, ¶¶ 11-12.)
Throughout the remainder of the 2011-12 school year, TD continued to show signs of struggling behaviorally, socially, and academically. (Doc. 10-2, ¶ 22-24; Doc. 55-1, ¶¶ 14-15, 18.) For instance, TD received multiple disciplinary notices in March of 2012 and he complained to his mother that he hated going to staff who might have witnessed the most recent incident, although the Hearing Officer found that the assistant principal told the Parent that the accused classmate admitted to inappropriately touching the Student and that the assistant principal never met with the cafeteria staff. (Doc. 10-2, ¶¶ 16-18; Doc. 42-2, ¶¶ 12, 14; Doc. 55-1, ¶¶ 5, 9.) Further, it is undisputed that the assistant principal never interviewed the other student who was named as witnessing at least one of the 7 school and wished to attend private school. (Doc. 10-2, ¶¶ 22-24; Doc. 55-1, ¶¶ 14- 15, 18.) On the other hand, TD maintained strong grades, he reported feeling safe at school, he did not make an inordinate amount of visits to the school nurse, and his teachers did not notice anything problematic. (Doc. 10-2, ¶¶ 23, 48; Doc. 42-2, ¶¶ 16-19.) Nonetheless, the Parent was concerned enough to ask a guidance counselor to make daily check-ins with TD. (Doc. 10-2, ¶ 24; Doc. 55-1, ¶ 15.) TD also began seeing a sexual abuse survivor and treatment coach outside of school in February of 2012 (Doc. 10-2, ¶ 25; Doc. 55-1, ¶ 16.) The Hearing Officer further noted that TD developed vision problems during the spring of 2012, and after multiple examinations an evaluator concluded that TD “was most likely experiencing hysterical amblyopia and not malingering.” (Doc. 10-2, ¶¶ 26-28; Doc. 55-1, ¶ 17.) The Parent then shared an April of 2012 visual processing report with school officials detailing TD’s vision problems. (Doc. 10-2, ¶ 30; Doc. 55-1, ¶ 18.) Concerned that TD was continuing to struggle in and out of the classroom, the Parent contacted the School District’s Assistant Superintendent Dr. Sweeney in late April of 2012 to discuss the events of the past several months. (Doc. 10-2, ¶ 32; Doc. 55-1, ¶ 19.) This constituted the first time that the School District’s central office administrative officials heard about the incidents involving TD. incidents. (Doc. 10-2, ¶ 17; Doc. 55-1, ¶ 8.) 8 (Doc. 10-2, ¶ 32; Doc. 55-1, ¶ 19.)
The week after the Parent reached out to the School District’s administration, a meeting was convened involving the Parent, Dr. Sweeney, Dr. D’Angelo, the School District Superintendent, the assistant principal of the school, the school psychologist, the school counselor, and the independent sexual abuse consultant who TD had been seeing. (Doc. 10-2, ¶ 33; Doc. 42-2, ¶ 20; Doc. 55-1, ¶ 19.) During this meeting, the Parent learned that the building-level officials at TD’s school did not feel that the inappropriate touching ever even took place. (Doc. 10-2, ¶ 35.) The School District’s central office administrative officials assured the Parent that they would have handled the situation differently if they had known about the inappropriate touching allegations at the time they were first raised, and that the building-level officials did not follow the School District’s procedures and protocols. (Doc. 10-2, ¶ 36; Doc. 55-1, ¶¶ 19-20.) Nonetheless, the School District’s central office expressed confidence in the procedures in place to ensure TD’s safety, and the Superintendent further promised to coordinate with teachers and guidance counselors to ensure that TD would have a smooth transition to the fourth grade. (Doc. 10-2, ¶¶ 36-38; Doc. 55-1, ¶ 20.) As a result of this meeting, the School District sought and was granted permission to evaluate TD for special education services. (Doc. 10-2, ¶ 40; Doc. 55-1, ¶ 21.) The Hearing Officer 9 found that the School District’s administrators proactively attempted to address TD’s situation both at the meeting and in its immediate aftermath. (Doc. 10-2, ¶ 41.)
In July of 2012, the School District issued its evaluation report. (Doc. 10-2, ¶ 44; Doc. 55-1, ¶ 22.) The Hearing Officer deemed the evaluation report to be comprehensive, as it took into account teacher input, observations of TD in school, cognitive and achievement testing, and behavioral assessments. (Doc. 10-2, ¶ 45.) However, the evaluation report did not include input from school administrators about the inappropriate touching or address the April 2012 visual processing report that the Parent provided to the School District, and the report narrowly construed the inappropriate touching as the only allegation raised by the Parent. (Doc. 10-2, ¶ 46.) Ultimately, the evaluation report concluded that TD did not have a disability under the IDEA and was not eligible for special education. (Doc. 10-2, ¶ 47.)
TD continued to attend school within the School District to begin his fourth grade year in August of 2012. (Doc. 10-2, ¶ 49.) Around this time, the School District’s multidisciplinary team met to discuss the results of the July 2012 evaluation report. (Doc. 10-2, ¶ 50.) During this meeting, the Parent approved the School District’s recommendation that TD did not have a disability and did not qualify for special education. (Doc. 10-2, ¶ 50.) The multidisciplinary team also 10 shared information about the inappropriate touching and events of the previous school year with several of TD’s fourth grade teachers. (Doc. 10-2, ¶ 50.) However, TD’s primary fourth grade teacher could not attend the multidisciplinary team meeting and was not later informed about the inappropriate touching or other events of the spring of 2012. (Doc. 10-2, ¶ 50.)
In the fall of his fourth grade year, TD continued to display behavioral, social, and academic problem signs that worried his mother. (Doc. 10-2, ¶ 51; Doc. 55-1, ¶ 25.) For instance, he frequently asked to leave class to go to the water fountain or bathroom, visited the nurse five times within the span of a month, received a detention for incomplete work, and was involved in an incident on the bus with other students. (Doc. 10-2, ¶¶ 51-52, 55.) In November of 2012, TD exhibited disrespect towards his primary teacher, which led the Parent to contact the teacher and discuss TD’s behavior. (Doc. 10-2, ¶ 53.) It was only at this time that TD’s primary teacher was informed of the inappropriate touching and events of the previous school year involving TD. (Doc. 10-2, ¶ 53.) Also in November of 2012, the School District administered a vision screening to TD in response to his Parent’s advice that TD had been diagnosed with hysterical amblyopia. (Doc. 10-2, ¶ 54; Doc. 42-2, ¶ 45.) After further testing, a follow-up exam revealed that TD had myopia and indicated that he be provided eyeglasses. (Doc. 10-2, ¶ 56; Doc. 11 42-2, ¶ 45.)
In December of 2012, the Parent met with several teachers to discuss her ongoing concerns regarding TD. (Doc. 10-2, ¶ 57.) Although the School District’s central office administrative officials did not attend this meeting, they were supportive of it taking place. (Doc. 10-2, ¶ 57.) Meanwhile, TD continued to experience health issues, as he made further visits to the nurse and complained of eye discomfort. (Doc. 10-2, ¶¶ 58-59.) In January of 2013, the Parent arranged for an independent neuropsychological evaluation to be conducted by Dr. Heather Hoover, who involved the School District in the evaluation process by providing TD’s teachers with behavioral scales and checklists. (Doc. 10-2, ¶¶ 60, 62.) Three different teachers noted at least some areas of concern with respect to TD in filling out these checklists, making note of his lack of organizational skills, tendency to get distracted, vision problems, and frequent absences from class due to not feeling well. (Doc. 10-2, ¶¶ 63-65.) As a further component of the neuropsychological evaluation, Dr. Hoover asked the Parent to request an adaptive behavior assessment from the School District. (Doc. 10-2, ¶ 69.) In response to this request, the School District convened meetings involving central office administrators, building-level administrators, a school psychologist, TD’s guidance counselor, and—for the first time—special education administrators, before ultimately 12 deciding to reject the Parent’s request for an adaptive assessment and instead offer to perform only a records review. (Doc. 10-2, ¶¶ 70-71.) The Parent then granted this counterproposal for a records review. (Doc. 10-2, ¶ 73.)
While Dr. Hoover prepared to formulate her report, TD continued to experience health and adaptive behavioral issues. For instance, during the second half of the 2012-13 school year he was teased and involved in another altercation on the bus, made several more trips to the school nurse, and continued to complain of problems with his vision while in class. (Doc. 10-2, ¶¶ 66-68, 74-78.) In addition, TD was assigned detention in March of 2013 for failing to do his schoolwork. (Doc. 10-2, ¶¶ 75-76.)
Dr. Hoover issued a comprehensive report in April of 2013, which detailed 25 separate assessments or assessment procedures, included input from the consultant on victims of sexual abuse, and generally found that the input received from the Parent and TD’s teachers was consistent. (Doc. 10-2, ¶¶ 79-80, 85.) Ultimately, Dr. Hoover diagnosed TD as having conversion disorder due to his vision problems that lacked any physical or organic etiology, as well as having anxiety disorder/not otherwise specified due to his elevated anxiety. (Doc. 10-2, ¶ 81.) However, Dr. Hoover also found that TD did not have a specific learning disability or attention-deficit hyperactivity disorders. (Doc. 10-2, ¶ 82.) The Parent 13 immediately shared the diagnosis of conversion disorder and details about the condition with the School District, but the neuropsychological report itself does not appear to have been shared with the School District until weeks later. (Doc. 10-2, ¶ 86 & n.9.)
In advance of a mid-April of 2013 meeting with the Parent to discuss the report, the School District’s special education director, superintendent, and assistant superintendent communicated with each other to coordinate their response to the report. (Doc. 10-2, ¶ 87.) Based on these communications, the Hearing Officer found that—prior to seeing the neuropsychological report—the School District pre-determined that TD would not qualify for special education services. (Doc. 10-2, ¶ 87.) Specifically, the Hearing Officer relied on an April 20, 2013 email in which the director of special education stated that “it does not appear [TD] will meet the eligibility criteria” under the IDEA and that TD’s “disorder is not substantially limiting a major life activity.” (Doc. 10-2, ¶ 87.) Nonetheless, the School District officials also determined that they would request the neuropsychological report and have the school psychologist review it. (Doc. 10-2, ¶ 87.)
In her correspondence with School District officials in April of 2013, the Parent raised the possibility of TD transferring to a different elementary school 14 within the School District for the 2013-14 school year. (Doc. 10-2, ¶ 88.) However, the School District officials appeared to resist this request. (Doc. 10-2, ¶ 88.) The Parent also registered her concerns regarding one of TD’s teachers, the state assessment exams, and TD’s upcoming transition to the fifth grade. (Doc. 10-2, ¶ 89.) Moreover, TD continued to make frequent visits to the school nurse. (Doc. 10- 2, ¶ 91.)
The School District issued a new evaluation report on May 10, 2013, which was based on its records review and also encompassed the neuropsychological report from Dr. Hoover. (Doc. 10-2, ¶ 92.) Four days after the new evaluation report was released, the Parent met with the school’s director of special education, assistant principal, psychologist, guidance counselor, and a teacher. (Doc. 10-2, ¶ 93.) While all parties at this meeting agreed that TD did not require an individualized education plan (“IEP”), the School District requested to evaluate TD’s potential eligibility under Section 504 but stood by its pre-determination that TD would not qualify for services. (Doc. 10-2, ¶¶ 93-94.) The Parent granted the School District permission to evaluate TD for Section 504 eligibility and services, and also allowed it to speak directly with TD about his feelings with regard to school programming and potential reassignment to a different school. (Doc. 10-2, ¶ 95.) However, after one such interview between TD, the director of special 15 education, and the guidance counselor discussing TD’s feelings regarding school assignment, the Parent took offense to the nature and tone of the interview. (Doc. 10-2, ¶¶ 95-96.)
While the Parent and School District officials discussed TD’s education in the spring of 2013, TD continued to struggle in school. In May of 2013, TD failed to complete multiple assignments for various classes and was issued detention. (Doc. 10-2, ¶ 98.) Later that month, TD was involved in a physical altercation with another student. (Doc. 10-2, ¶ 99.) TD also continued to make frequent visits to the school nurse’s office. (Doc. 10-2, ¶ 100.)
On June 5, 2013, the School District invited the Parent to a meeting on June 11th to discuss TD’s eligibility for services under Section 504. (Doc. 10-2, ¶ 102.) Two days later, the Parent responded that June 11th did not work for her and proposed June 19th as an alternate date for the meeting. (Doc. 10-2, ¶ 103.) Because the special education director was unable to attend on June 19th, the School District rescheduled the meeting for June 21st. (Doc. 10-2, ¶¶ 104-05.) However, the Parent could not attend the meeting set for this new date, so she informed the School District that she would reach out at a later time to reschedule the meeting. (Doc. 10-2, ¶ 105.) By the time that the Parent and School District officials finally met again, TD was no longer enrolled in the School District. 16
Prior to attempting to schedule a meeting with the Parent to discuss TD’s eligibility for services under Section 504, the School District received a request for TD’s records from a private school on June 2, 2013. (Doc. 10-2, ¶ 101.) The same private school contacted the School District a second time on June 20, 2013 to request the records again. (Doc. 10-2, ¶ 107.) On July 1, 2013, the school’s assistant principal emailed the superintendent, principal, special education director, special education supervisor, school psychologist, guidance counselor, and another unidentified individual to inform them of the private school’s request for TD’s records and that the records had been sent. (Doc. 10-2, ¶ 108.) At some point thereafter in the summer of 2013, the School District unilaterally dis-enrolled TD without notifying the Parent. (Doc. 10-2, ¶ 109.)
On August 9, 2013, the Parent emailed the assistant principal to reschedule the meeting to discuss TD’s eligibility for services under Section 504. (Doc. 10-2, ¶ 110.) The assistant principal responded on August 12, 2013 by asking whether the student was returning to the School District, given the records request from the private school. (Doc. 10-2, ¶ 110.) The Parent replied later that same day that the records request was simply due diligence and that no decision had been made as to what school TD would attend for the upcoming school year. (Doc. 10-2, ¶ 110.) After this email exchange, the assistant principal contacted the director of special 17 education to state that TD would be added back to the School District’s rolls and to ask about scheduling the Section 504 meeting. (Doc. 10-2, ¶ 111.) The director of special education replied that there was no need for the Section 504 meeting to take place until after the start of the new school year. (Doc. 10-2, ¶ 111.) Emails between the assistant principal and the director of special education from this time period further revealed that the School District maintained its pre-determined view that a Section 504 plan was not necessary for TD. (Doc. 10-2, ¶ 111.)
On August 19, 2013, the Parent informed the School District that she was withdrawing TD from the School District and placing him in private school. (Doc. 10-2, ¶ 113.) TD was once again dis-enrolled by the School District on August 21, 2013, and notice that he had been removed from the rolls was provided to the Parent. (Doc. 10-2, ¶ 113.)
TD attended private school for his fifth grade year. (Doc. 10-2, ¶ 114.) Although TD initially had some difficulties with the transition to a new school, including continued frequent visits to the school nurse, he was able to make the adjustment and those transitional issues subsided by the beginning of second half of the school year. (Doc. 10-2, ¶ 115.) While TD’s new private school does not implement IEPs and Section 504 plans, it does provide some accommodations by offering individualized instruction and support for students. (Doc. 10-2, ¶ 116.) 18
As TD adjusted to his new school in the fall of 2013, the Parent remained in contact with School District officials regarding the Section 504 process. After securing a release from the Parent, the School District shared this Section 504 information with TD’s new private school. (Doc. 10-2, ¶¶ 117-18.)
In November of 2013, the Parent contacted an independent school psychologist for the purpose of conducting a private psychoeducational consultation. (Doc. 10-2, ¶ 119.) Rather than performing an evaluation, the independent school psychologist conducted a records review and collected input from the Parent and TD’s new private school teachers but did not speak with any School District officials. (Doc. 10-2, ¶ 120.) At the time of the independent school psychologist’s consultation and as reflected in the consultation, TD was still experiencing social, emotional, and academic difficulties as he adjusted to private school. (Doc. 10-2, ¶ 121.) The consultation report concluded that TD appeared to be a student who qualified for services under the IDEA as a student with an emotional disturbance and who required special education and/or related services to meet his needs. (Doc. 10-2, ¶ 122.) However, the independent school psychologist expressly disclaimed that his report was not based on a consultative evaluation and that his findings were limited in scope. (Doc. 10-2, ¶ 122.) As a final matter, the independent school psychologist recommended that a further 19 comprehensive evaluation take place. (Doc. 10-2, ¶ 122.)
The Parent immediately provided the School District with the independent school psychologist’s consultation report, and the School District responded by again seeking and receiving permission to evaluate TD. (Doc. 10-2, ¶ 123.) Further, in December of 2013 the School District issued an addendum to its May 2013 evaluation report that incorporated the findings and conclusions made by the independent school psychologist. (Doc. 10-2, ¶ 124.) The School District’s psychologist also agreed with the independent school psychologist that a new comprehensive evaluation of TD should be undertaken. (Doc. 10-2, ¶ 124.) Moreover, on December 6, 2013, the School District resumed its Section 504 process that had been initiated in May of 2013, but the Section 504 team ultimately determined, once again, that TD did not qualify for supports, services, or accommodations under Section 504. (Doc. 10-2, ¶ 126.) Finally, the School District also agreed to provide an independent educational evaluation (“IEE”) at School District expense. (Doc. 10-2, ¶ 127.)
An independent evaluator issued a comprehensive IEE in early May of 2014. (Doc. 10-2, ¶ 128.) The IEE was based on records review of prior evaluations made while TD was in public and private school, various assessments, parental input, input from TD’s private school teachers, and classroom observations. (Doc. 20 10-2, ¶ 129.) The independent evaluator concluded that TD did not qualify as an eligible student under the IDEA, but did find that he had a disability—namely, conversion disorder and anxiety disorder/not otherwise specified—and that he qualified for a Section 504 accommodation plan. (Doc. 10-2, ¶ 129.) The independent evaluator also recommended follow-up speech and language and central auditory processing evaluations, and further opined that the Parent and School District should consider leaving TD in private school because his socioeconomic and academic needs appeared to be met after the initial transition difficulties. (Doc. 10-2, ¶¶ 131-32.) Based on this IEE, the School District issued another evaluation report on June 12, 2014, which found that TD had a disability but did not require special education. (Doc. 10-2, ¶ 136.) The June 2014 evaluation report also recommended that TD be provided with a Section 504 plan. (Doc. 10-2, ¶ 136.) Although the Parent and School District initially scheduled a meeting for June 18, 2014 to discuss a Section 504 plan, the Parent could not attend that meeting because her own mother passed away two days before the meeting’s scheduled date. (Doc. 10-2, ¶¶ 139-40.) Nonetheless, the School District proceeded with the meeting to devise a Section 504 plan for TD without the Parent’s input. (Doc. 10-2, ¶¶ 141-42.)
TD continued to attend private school at the time of filing the instant 21 complaint, where he has made academic, social, and behavioral progress. (Doc. 10- 2, ¶ 137.)
On June 3, 2014, after the independent evaluator issued the IEE but before the School District issued its new evaluation report, the Parent filed a special education complaint alleging that TD was eligible for special education services under the IDEA and Section 504, and that TD should receive compensatory education from the School District. (Doc. 10-2, ¶ 138; Doc. 15-3.) The Hearing Officer conducted a total of eight sessions of due process hearings between October and November of 2014. (Doc. 10-2, at 1; Doc. 42-2, ¶ 73; Doc. 55-1, ¶ 39.) On January 20, 2015, the Hearing Officer issued a decision finding that: (1) TD was not eligible for FAPE under the IDEA; (2) the School District failed to provide FAPE under Section 504; (3) TD was entitled to one hour of compensatory education per school day for the School District’s denial of FAPE between May 14, 2013 and the end of that school year, a period of 26 school days; (4) the Parent was entitled to tuition reimbursement for the School District’s denial of FAPE for the 2013-14 and 2014-15 school years; and (5) the School District discriminated against TD by acting with deliberate indifference to his disability status. (Doc. 10- 2.)
On April 20, 2015, the School District filed the instant complaint in this 22 court seeking to reverse the Hearing Officer’s January 20, 2015 decision. (Doc.[1].) The very same day, the Parent also filed suit in this court seeking to overturn certain aspects of the Hearing Officer’s decision to the extent that it found that TD was ineligible for FAPE under the IDEA and awarded only one hour per school day of compensatory education under Section 504 dating from May 14, 2013, as opposed to an award of full days dating from March of 2012. (Civ. A. No. 3:15- CV-776.) These appeals have been consolidated in the above-captioned action. (Docs. 16 and 17.)
Now pending before this court are the parties' cross-motions for judgment on the administrative record or, in the alternative, for summary judgment. (Docs. 42 and 54.) Both motions have been fully briefed and oral argument was held before the District Court on September 2, 2016. (Docs. 4[3]; 53; 55; 57; 60; 65 and 67.) Accordingly, these motions are now ripe for decision.
Neither party has presented new or additional evidence for this court’s consideration with respect to these motions, and therefore the parties agree that the court may review the matter based exclusively on what is contained within the underlying administrative record. (Doc. 35.) 23
III. STANDARD OF REVIEW
Federal courts have jurisdiction to review the decisions of state hearing officers in educational matters pursuant to 20 U.S.C. § 1415(i)(2). The procedure for reviewing a hearing officer’s decision in an IDEA case is distinct from the typical standard of review that applies in summary judgment proceedings. In an IDEA case, courts apply a “modified de novo” standard of review. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006).
Under this standard, in accordance with Section 1415(i)(2)(C) of the IDEA, when presented with an appeal of a hearing officer’s decision, a federal court receives and reviews the record of the administrative proceedings and the hearing officer’s decision. See 20 U.S.C. § 1415(i)(2)(C)(i). Following this review, a court shall base its decision on the preponderance of the evidence, and grant relief that it determines is appropriate. See 20 U.S.C. § 1415(i)(2)(C)(i)-(iii). In rendering its decision, a court exercises plenary review over the legal conclusions of a hearing officer but must give “due weight” to the hearing officer’s factual findings. Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528 n.[3] (3d Cir. 1995). This deferential standard of review is not “an invitation to the courts to substitute their own notions of sound educational policy for those of 24 the school authorities which they review.” Rowley, 458 U.S. at 206. Thus, although a court has the discretion to determine how much deference is due a particular decision based on the record, Scott P., 62 F.3d at 527, the factual findings made during the administrative proceedings are to be considered “prima facie correct,” and if the court departs from those findings, it is required to explain its basis for doing so. S.H. v. State-Operated School District of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003).
Additionally, where the hearing officer has considered competing testimony and evidence, the hearing officer’s decision is entitled to “special weight,” and in order to overturn or depart from that determination, the Court must have the same level of “justification” that a federal appellate court would need in order to overturn the factual findings of a federal district court. Shore Reg’l High School Bd. of Educ., 381 F.3d at 199. Accordingly, if a court does not follow the agency’s ruling and is relying purely on the evidence presented in the administrative record, it must explain why its decision differs by pointing to “contrary nontestimonial extrinsic evidence” from the administrative record. S.H., 336 F.3d at 270; see also Scott P., 62 F.3d at 527. Because of the expertise of the administrative agency in special education cases, the Court must “consider the [administrative] findings carefully and endeavor to respond to the [agency’s] resolution of each material 25 issue.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3d Cir. 1995) (quoting Town of Burlington v. Dept. of Educ., 736 F.2d 773, 791-92 (1st Cir. 1984)).
The party challenging an unfavorable decision by a hearing officer “bears the burden of persuasion before the district court as to each claim challenged.” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir. 2012). Here, both the School District and the Parent challenge portions of the Hearing Officer’s decision. Accordingly, each party will bear the burden of persuasion with regard to their corresponding claims or counterclaims challenging certain aspects of the Hearing Officer’s decision.
IV. DISCUSSION
In initiating administrative proceedings before the Hearing Officer, the Parent claimed that TD was deprived of free and appropriate public education (FAPE) under both the IDEA and Section 504. (Doc. 15-3.) The IDEA requires states receiving certain public education funds to provide FAPE to all students with disabilities. See 20 U.S.C. § 1412(a)(1)(A). In contrast, Section 504 prohibits federally-funded institutions from discriminating against “otherwise qualified” students on the basis of disability. See 29 U.S.C. § 794(a). While any analysis involving the two statutes contains significant overlap, in general Section 504’s negative prohibition against discrimination is somewhat broader than the IDEA’s 26 affirmative duty to provide FAPE and a conclusion as to the applicability of one statute is not dispositive as to the other, partly because the two statutes define a “disability” differently. See Centennial Sch. Dist. v. Phil L. ex rel. Matthew L., 799 F. Supp. 2d 473, 481 & n.[4] (E.D. Pa. 2011) (citing Brendan K. ex rel. Lisa K. v. Easton Area Sch. Dist., No. 05–4179, 2007 WL 1160377, at *12 (E.D. Pa. Apr. 16, 2007)). See generally Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 349 (3d Cir. 2007) (holding that violation of the IDEA is not a per se violation of Section 504).
In this action, the School District challenges the Hearing Officer’s April 20, 2015 decision as to his finding that TD was denied FAPE under Section 504 and the subsequent award of compensatory education and tuition reimbursement. (Doc.[1].) Additionally, the Parent appeals the Hearing Officer’s decision to the extent that it found that TD was ineligible for FAPE under the IDEA, and also challenges the award of only one hour per school day of compensatory education dating from May 14, 2013, as opposed to an award of full days dating from March of 2012. (Doc. 16.) We first consider the School District’s challenge to the Hearing Officer’s finding that TD was denied FAPE under Section 504, before turning to the Parent’s contention that the Hearing Officer also should have found that TD was eligible for FAPE under the IDEA. As a final matter, we will assess the 27 Hearing Officer’s award of compensatory education and tuition reimbursement.
This court deems the factual findings and credibility determinations made by the Hearing Officer to be thorough and well-reasoned, and therefore we adopt them in this Report and Recommendation. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (“[W]hen, as here, a[ ] [hearing officer] has heard live testimony and determined that one witness is more credible than another witness, her determination is due special weight.”).
A. The Hearing Officer Did Not Err in Finding that the School
District Discriminated Against TD in Violation of Section 504 by
Failing to Provide Him FAPE Beginning in May of 2013.
The School District initiated this action to contest the Hearing Officer’s finding that the School District violated Section 504 by discriminating against TD in that it failed to provide him FAPE. (Docs.[1] and 42.) As noted above, Section 504 bars programs that receive federal funding from discriminating against “otherwise qualified individual[s] with a disability” on the basis of that disability. 29 U.S.C. § 794(a). “Programs” subject to Section 504 include local government agencies and school systems. 29 U.S.C. § 794(b)(1), (3). To prevail on a Section 504 claim, a plaintiff must establish that: “(1) he is ‘disabled’ as defined by the Act; (2) he is ‘otherwise qualified’ to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was 28 excluded from participation in, denied the benefits of, or subject to discrimination at, the school.” Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999).
In the case at bar, the School District contests the first and fourth elements of TD’s Section 504 claim. (Doc. 4[3].) Thus, this court must determine whether the administrative record supports the Hearing Officer’s findings that TD was disabled under Section 504 and that TD was excluded from participating in, denied the benefits of, or subject to discrimination at school. Moreover, we also must evaluate the Parent’s assertion that the Hearing Officer erred by failing to find that the School District’s denial of FAPE began well before May of 2013.
1. The Hearing Officer Did Not Err in Finding TD “Disabled”
Under Section 504.
The School District first argues that TD was not “disabled” within the meaning of Section 504 while he was enrolled in the School District. (Doc. 4[3], at 15-17.) An individual is defined as having a “disability” if he or she has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1); see Centennial Sch. Dist. v. Phil L. ex rel. Matthew L., 799 F. Supp. 2d 473, 483 (E.D. Pa. 2011) 29 (noting that Section 504 uses the same definition of “disability” as the ADA). In considering whether an individual has a disability under this definition, “a court should consider the nature, severity, duration, and permanent or long-term impact of the impairment in assessing whether it substantially limits plaintiff in a major life activity.” Centennial Sch. Dist., 799 F. Supp. 2d at 483. In the absence of evidence establishing that an impairment is substantially limiting, “[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008). However, “while substantial limitations should be considerable, they also should not be equated with ‘utter inabilities.’” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999).
Here, the School District contends that the Hearing Officer inappropriately found the TD was disabled based on TD’s diagnoses of conversion disorder and anxiety disorder, without making sufficient findings as to the limiting effects of these impairments. (Doc. 4[3], at 16.) The Parent, on the other hand, maintains that the Hearing Officer had ample evidentiary support for his finding that TD had a disability. Furthermore, the Parent noted that learning, thinking, and interpersonal 30 communication are all considered “major life activities.” (Doc. 55, at 16.) The School District and Parent both agree that the Hearing Officer cited TD’s education as a major life activity that was substantially limited by his impairments. (Doc. 4[3], at 16-17; Doc. 55, at 21-22.) However, the parties disagree as to whether there was any evidence that TD’s impairments actually harmed his education.
The School District argues that there was no evidence that TD’s education was adversely affected by his conversion disorder, or in the alternative, that the evidence was equivocal at best. (Doc. 4[3], at 16-17.) For instance, the School District notes that the neuropsychological report from Dr. Hoover did not make any determinations with respect to TD’s eligibility under Section 504, and that the School District’s own educational team met multiple times and determined that TD was not eligible under either IDEA or Section 504. (Doc. 4[3], at 16-17.) Moreover, the School District claims that TD continued to achieve strong grades throughout his enrollment in the School District. (Doc. 4[3], at 17.)
The Parent counters that TD’s altercation on the school bus, anxiety, struggles to complete his schoolwork, difficulty socializing, and frequent visits to the school nurse combined to show that TD’s educational and learning abilities were substantially limited due to his impairments. (Doc. 55, at 20.) Further, the Parent makes clear that she personally communicated with School District officials 31 as well as TD’s counselors and teachers, thus putting them on notice of her son’s struggles in school. (Doc. 55, at 20-21.)
The court finds that there is sufficient evidence in the record to support the Hearing Officer’s conclusion that TD was disabled and thus eligible for services under Section 504. (Doc. 10-2, at 40.) First, the Hearing Officer noted that the School District accepted Dr. Hoover’s April of 2013 neuropsychological report, which diagnosed TD with conversion disorder and anxiety disorder. (Doc. 10-2, at 40.) Having established that there is no dispute that TD had mental impairments, the Hearing Officer then turned to whether the effects of those impairments were substantially limiting. In weighing the effects of TD’s impairments, the Hearing Officer noted that TD struggled educationally during the year and a half that elapsed between the inappropriate touching incidents and the Parent’s placement of TD in private school. (Doc. 10-2, at 40.) Specifically, the Hearing Officer found that TD exhibited “patterns of assignment incompletion, nursing visits, school resistance, and disciplinary incidents, [which combined to make] clear that [TD’s] education was being impacted by the conversion disorder and anxiety disorder.” (Doc. 10-2, at 42.) Given the prolonged negative effects that TD’s conversion disorder and anxiety disorder had on his education, this court concludes that the Hearing Officer did not err in finding that TD’s impairments substantially limited 32 his educational abilities. Although TD maintained relatively consistent grades throughout this year-and-a-half period, TD’s ability to obtain passing grades is not dispositive of whether his conversion disorder and anxiety disorder substantially limited his education. See generally Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203 n.25 (1982) (“We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a “free appropriate public education.”); Kruelle v. New Castle Cty. Sch. Dist., 642 F.2d 687, 694 (3d Cir. 1981) (noting that interconnected social, emotional, medical, and educational needs are each “an essential prerequisite for learning”). In light of the evidence in the record and cognizant of the United States Court of Appeals for the Third Circuit’s admonition that a hearing officer’s decision made after considering competing testimony and evidence is entitled to “special weight,” Shore Reg’l High School Bd. of Educ., 381 F.3d at 199, we find that the Hearing Officer did not err in concluding that TD was “disabled” as defined under Section 504.
2. The Hearing Officer Did Not Err in Finding that TD Was
Denied the Benefits of FAPE.
Having concluded that TD satisfies the first three elements of a Section 504 claim, the court must finally evaluate whether TD was excluded from participating 33 in, denied the benefits of, or subject to discrimination at school. Section 504’s implementing regulations explicitly adopt the IDEA’s requirement that a qualified handicapped person be provided FAPE. Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007) (citing 34 C.F.R. § 104.3(l)). Thus, a school district likely violates Section 504 where it fails to provide a disabled student with FAPE because it denies the student an education on the basis of disability. Andrew M., 490 F.3d at 350. The Third Circuit has further noted that school districts have an obligation under Section 504 “to identify and evaluate all students who are reasonably suspected of having a disability under the statutes.” P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009). This “child find” obligation requires school districts to identify a potentially disabled child “within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability.” W.B. v. Matula, 67 F.3d 484, 501 (3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d Cir. 2007). If a school district determines that a student has a disability and is eligible for services, the student is deemed to receive FAPE under Section 504 where the services are designed to meet the student’s needs as adequately as the needs of nonhandicapped persons. 34 C.F.R. § 104.33(b)(1).
In his decision, the Hearing Officer found that the School District 34 discriminated against TD in violation of Section 504 by failing to provide him the benefits of FAPE. (Doc. 10-2, at 40, 47.) Although the School District eventually proposed a Section 504 plan for TD in June of 2014, the Hearing Officer determined that the School District did not recognize the need to provide TD accommodations until “after a litany of careless mis-steps in and, more decisively deliberate mis-service of, the student’s educational programming needs.” (Doc. 10- 2, at 47.) Specifically, the Hearing Officer concluded that the School District had sufficient information about TD’s impairments to know that it was obligated to provide a Section 504 plan by May of 2013 at the latest, by which time the School District had an opportunity to review Dr. Hoover’s report. (Doc. 10-2, at 44.) As evidence of the School District’s alleged deliberate indifference in failing to produce a timely Section 504 plan, the Hearing Officer noted that: the School District did not follow its own established procedures during the initial investigation of the inappropriate touching incidents in January of 2012; the School District did not cooperate with Dr. Hoover’s request for an adaptive behavior assessment in February of 2013, instead opting to only perform a records review; the School District’s apparent pre-determination in the spring and summer of 2013 that TD did not qualify for support under Section 504 after receiving Dr. Hoover’s report; and that the School District decision to unilaterally dis-enroll TD in the 35 summer of 2013 while the Parent had not yet decided whether to enroll TD in private school. (Doc. 10-2, at 47-48.)
The School District argues that it met its “child find” obligations and acted reasonably in determining that TD did not qualify for services under Section 504. (Doc. 4[3], at 15-19.) The School District contends that the “child find” obligation is met as long as a student is evaluated to determine whether the student is eligible for services, rather than being contingent on the outcome of that evaluation. (Doc. 4[3], at 15-16.) Moreover, the School District points out that Dr. Hoover’s report deferred to the School District for a determination as to whether TD was eligible for FAPE under Section 504. (Doc. 4[3], at 16.) The School District argues that its educational team then made an appropriate determination by meeting multiple times and evaluating TD before determining that he was not eligible for services. (Doc. 4[3], at 16-17.) According to the School District, this determination was reasonable in light of TD’s academic, social, and behavioral performance. (Doc. 4[3], at 17.) In particular, the School District contends that the Hearing Officer inappropriately found that the School District failed to provide TD with FAPE at the end of the 2012-13 school year because none of the evidence relied on by the Hearing Officer came from that time period. (Doc. 4[3], at 17.) Furthermore, to the extent that the Hearing Officer believed that the School District was negligent in its 36 evaluation of TD, the School District argues that mere negligence falls far short of the deliberate indifference standard under Section 504. (Doc. 4[3], at 19.)
After reviewing the evidence that was presented before the Hearing Officer, and in light of the applicable standard of review, this court finds that the Hearing Officer did not err in reaching factual findings that led to the conclusion that the School District failed to provide TD with FAPE. See P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009) (“[W]hether the District fulfilled its FAPE obligations [is] subject to clear error review as [a] question[ ] of fact.”). Although the School District argues that it met its “child find” obligations merely by virtue of the fact that it evaluated TD at all, we agree with the Parent that there is no such all-encompassing safe harbor provision and that it would be against public policy to allow all school districts to immunize themselves from liability by finding students ineligible for Section 504 accommodations after performing only cursory evaluations. (Doc. 4[3], at 15-16; Doc. 55, at 23.) To be clear, a school district does not per se violate its “child find” obligation wherever an initial evaluation finding that a student does not qualify for services is later contradicted by a subsequent evaluation finding the student to be disabled. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 251 (3d Cir. 2012) (“The mere fact that a subsequent evaluation of [the student] yielded a different result—i.e. he was 37 found disabled with an “other health impairment” in November 2007 but did not qualify in April 2006—does not necessarily render the earlier testing inadequate.”) However, a school district may deny a student FAPE under Section 504 where it finds the student ineligible for services after performing an inadequate evaluation. See, e.g., Lauren G. ex rel. Scott G. v. W. Chester Area Sch. Dist., 906 F. Supp. 2d 375, 389 (E.D. Pa. 2012) (awarding tuition reimbursement where school district wrongfully found that a student did not qualify for a Section 504 plan partially on the basis of her academic records, despite being aware of the student’s emotional and behavioral problems at the time). This is what the Hearing Officer found took place here, and the evidence cited by the Hearing Officer is sufficient to support that conclusion.
As noted by both the Hearing Officer and the Parent, the School District’s evaluation of TD was inadequate. “[A] poorly designed and ineffective round of testing does not satisfy a school's Child Find obligations.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 250 (3d Cir. 2012). For example, a school district’s “child find” obligation extends to “[c]hildren who are suspected of [having] a disability . . . and in need of special education, even though they are advancing from grade to grade.” 34 C.F.R. § 300.111(c)(1). Thus, an evaluation may be inadequate where it overemphasizes a student’s academic proficiency while neglecting to consider 38 behavioral issues or other suspected areas of disability. See G.D. ex rel. G.D. v. Wissahickon Sch. Dist., 832 F. Supp. 2d 455, 465–67 (E.D. Pa. 2011). The School District fell into exactly this trap here, as it relied on TD’s relatively consistent academic performance as a basis for finding that TD did not need Section 504 services, while failing to adequately consider the clear signs of TD’s behavioral struggles. These signs of behavioral and socialization issues included TD’s frequent trips to the school nurse, incomplete homework assignments, and altercations with other students, all of which the Parent raised with School District officials. (Doc. 55, at 20.) Thus, the School District was aware of TD’s social and behavioral struggles, but never properly evaluated the impact of these problems. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 250 (3d Cir. 2012) (“[A]n evaluation should be tailored to the specific problems a potentially disabled student is having . . . .”); see also G.D., 832 F. Supp. 2d at 466 (upholding a hearing officer’s determination that a school district failed to provide FAPE and noting that the school district “had an obligation to look beyond simply Jack's cognitive potential or academic progress and to address the attentional issues and behaviors”). Because the hearing Officer found that the School District had ample evidence that TD’s impairments were hindering his behavioral and social interaction, the Hearing Officer did not err in concluding that the District’s failure 39 to properly evaluate these issues resulted in an inadequate evaluation and subsequent finding that TD was ineligible for FAPE.
Beyond the School District’s error in resting on TD’s academic record while failing to address his behavioral and social struggles, the Hearing Officer also noted multiple occasions where the School District displayed deliberate indifference to its obligations under Section 504 with respect to TD. First, in February of 2013, the School District refused the Parent’s request—made at the urging of Dr. Hoover—for a full adaptive behavior assessment of TD and instead offered to perform only a much more limited records review. (Doc. 10-2, ¶¶ 69- 73.) Because the School District expressly refused to perform the comprehensive evaluation specifically requested by Dr. Hoover, the School District cannot claim the benefit of a good-faith mistake or negligence in its failure to provide TD FAPE. The Hearing Officer also found that the School District bore culpability for the fact that it pre-determined that TD did not qualify for special education services under Section 504 prior to reviewing Dr. Hoover’s report. (Doc. 10-2, ¶¶ 87-94.) In light of this finding of some level of pre-determination by the District, the independence and legitimacy of any subsequent undertakings with respect to TD in the spring of 2013 were cast in doubt, and therefore the School District cannot claim the benefit of a good-faith mistake in failing to implement a Section 504 plan. 40
In its defense, the School District argues that it cannot be found liable for the denial of FAPE because it was not afforded sufficient time to develop a Section 504 program. (Doc. 4[3], at 19; Doc. 57, at 16.) School districts must identify and evaluate a student suspected of having a qualifying disability within a reasonable amount of time after those suspicions arise. Ridley Sch. Dist. v. M.R., 680 F.3d 260, 271 (3d Cir. 2012). Here, the School District claims that it did not receive a sufficient opportunity to develop a Section 504 program because only 26 school days elapsed between May 14, 2013, the date on which the Hearing Officer found that the School District began denying TD FAPE, and TD’s last school day as a public school student. This argument fails, however, because the School District’s own internal communications reveal that School District officials had predetermined that TD was not eligible for services under Section 504. Thus, the Hearing Officer concluded that the School District was not deprived of an opportunity to evaluate and determine TD’s eligibility because it was already set in its determination. Moreover, although only 26 school days elapsed between the date that the Hearing Officer found that the School District began denying TD FAPE and TD’s last day in public school, the School District continued to show indifference to its Section 504 obligations with respect to TD, even at one point unilaterally dis-enrolling TD from the School District without informing the 41 parent.
Accordingly, it is recommended that the Hearing Officer’s finding the School District denied TD FAPE beginning in May of 2013 be upheld.
3. The Hearing Officer Did Not Err in Finding that the Denial
of FAPE Began in May of 2013.
The Parent argues that although the Hearing Officer correctly found TD eligible under Section 504, the Hearing Officer should have found that TD was denied FAPE much earlier than May of 2013. (Doc. 55, at 26-31.) In particular, the Parent argues that TD’s behavioral and social problems had manifested in the school setting by March of 2012, and that early missteps by the School District at that time resulted in a denial of FAPE. (Doc. 55, at 26-31.) However, after evaluating the evidence in the record, the Hearing Officer determined that prior to the spring of 2013, TD’s “conversion disorder and anxiety disorder were only beginning to emerge.” (Doc. 10-2, at 42.) The Hearing Officer also found it noteworthy that the Parent did not immediately share Dr. Hoover’s neuropsychological report, thus delaying the School District’s ability to gain an “understanding [of] the complex conversion disorder diagnosis . . . .” (Doc. 10-2, at 42.) The Hearing Officer therefore determined that the denial of FAPE began on May 14, 2013, once the School District had an opportunity to meet and review Dr. 42 Hoover’s report, but failed to enact a Section 504 plan. Doc. 10-2, at 42-43.)
The Hearing Officer’s determination that TD was denied FAPE beginning on May 14, 2013 is consistent with the Third Circuit’s mandate that school districts be given a “reasonable time” to identify students suspected of having a disability after they are first put on notice. Matula, 67 F.3d at 501 (3d Cir. 1995). Although the School District was put on notice of behavioral issues involving TD as early as January of 2012, those incidents—standing alone—were not enough for the School District to be placed on notice that TD had a potential disability. We will not disturb the Hearing Officer’s finding that Dr. Hoover’s April of 2013 neuropsychological evaluation was crucial to the School District’s understanding of, and ultimate responsibility to identify, TD’s impairments since that finding draws substantial support from the factual record that was before the Hearing Officer, and this court. (Doc. 10-2, at 42.) Accordingly, it is recommended that the Parent’s motion for judgment on the administrative record be denied to the extent that it seeks to overturn the Hearing Officer’s finding that the School District’s denial of FAPE began in May of 2013.
B. The Hearing Officer Did Not Err in Finding that the School
District Met Its Obligations Under IDEA.
The Parent also challenges the Hearing Officer’s determination that the 43 School District did not violate its obligations under IDEA. (Doc. 55, at 26-31.) As noted above, the affirmative duty to provide FAPE imposed by the IDEA is somewhat narrower than Section 504’s prohibition against discrimination, although a violation of one statute often results in a violation of the other. Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 349 (3d Cir. 2007). One manner in which the two statutes differ is how they define whether a student is disabled. Centennial Sch. Dist. v. Phil L. ex rel. Matthew L., 799 F. Supp. 2d 473, 481 & n.[4] (E.D. Pa. 2011). The IDEA defines a “child with a disability” as a child “(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . . , orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.” 20 U.S.C. § 1401(3)(A). The statute further goes on to define “special education” as “specially designed instruction . . . to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings . . . .” 20 U.S.C. § 1401(29).
In his decision, the Hearing Officer concluded that TD was not a “child with 44 a disability” under the IDEA because TD did not require special education. (Doc. 10-2, at 38.) The Hearing Officer noted that although TD had been diagnosed with conversion disorder and anxiety disorder, he continued to make solid academic progress and therefore did not require specialized educational instruction. (Doc. 10-2, at 38.) After independently reviewing the record, this court finds that the Parent has not met her burden of showing that the Hearing Officer’s conclusion is erroneous. A student’s academic performance is a crucial factor in the determination of whether a student requires “special education” and therefore may be deemed a “child with a disability” under the IDEA. See G.D. ex rel. G.D. v. Wissahickon Sch. Dist., 832 F. Supp. 2d 455, 465 (E.D. Pa. 2011).
Given that the parties do not dispute that TD consistently maintained strong grades throughout his time enrolled in the School District’s regular education curriculum, the burden fell on the Parent to produce some other evidence that TD required special education. See Taylor v. Altoona Area Sch. Dist., 737 F. Supp. 2d 474, 486 (W.D. Pa. 2010) (holding that a student’s average academic performance establishes a presumption that a student did not require special education under the IDEA). Indeed, unlike under Section 504, a school district’s obligations under the IDEA do not arise merely by suspecting that a child has a disability. See D.S. v. Neptune Twp. Bd. of Educ., 264 F. App'x 186, 190 (3d Cir. 2008). Here, the Parent 45 has failed to produce evidence sufficient to rebut the presumption that TD did not require special education. Indeed, the only indication in the record that TD potential needed special education under the IDEA came from an independent school psychologist’s consultation in November of 2013, which made limited findings, did not include interviews with School District personnel, and recommended further comprehensive evaluation. (Doc. 10-2, ¶¶ 120-122.) The value of this consultation report, conducted after TD had already left the School District, may properly be discounted because the findings were limited in nature and not based upon interviews with School District personnel. Moreover, by all indications the School District responded promptly and appropriately upon receipt of the consultation report, requesting permission to reevaluate TD and agreeing to provide a comprehensive IEE at its own expense, which ultimately found that TD did not qualify as an eligible student under the IDEA. (Doc. 10-2, ¶¶ 123-130.) Given the evidence in the record, including TD’s satisfactory grades and the independent school psychologist’s qualified findings in a consultation report that was later contradicted by a comprehensive IEE, this court finds that the Hearing Officer did not err in determining that TD did not require special education as a result of his conversion disorder and anxiety disorder, and therefore did not qualify as a “child with a disability” under the IDEA. 46
C. The Hearing Officer Did Not Err in Granting Compensatory
Education and Tuition Reimbursement as Remedies for the
School District’s Violation of Section 504.
As a final matter, the parties contest the Hearing Officer’s award of compensatory education and tuition reimbursement as remedies for the School District’s denial of FAPE under Section 504.
1. Compensatory Education
The Hearing Officer awarded one hour of compensatory education for each of the 26 school days that occurred between May 14, 2013, the date as of which the Hearing Officer determined that TD had been denied FAPE, and the last day of the 2012-13 school year, after which TD was no longer enrolled in the School District. (Doc. 10-2, at 42-43.) The parties do not contest that compensatory education is available as a remedy where a student is denied FAPE under Section 504. “‘A disabled student's right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.’” P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 739 (3d Cir. 2009) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007)). An award of compensatory education is made by calculating the period of deprivation of FAPE and “excluding only the time reasonably required for the school district to rectify the problem.” M.C. ex rel. J.C. v. Cent. Reg'l Sch. Dist., 47 81 F.3d 389, 391–92 (3d Cir.1996).
In its brief, the School District appears to challenge the Hearing Officer’s award of compensatory education only to the extent that it asserts that no violation of Section 504 occurred. (Doc. 4[3], at 17-19.) Indeed, the award of 26 hours of compensatory education appears so inconsequential to the School District that it construes the award as de minimus. (Doc. 4[3], at 19.) As noted above, this court concludes that the Hearing Officer did not err in finding that the School District denied TD FAPE in violation of Section 504. Given this conclusion, the Hearing Officer’s award of 26 hours of compensatory education was altogether reasonable. Furthermore, contrary to the School District’s assertion that the relatively modest award of compensatory education is indicative of the Hearing Officer’s unspoken belief that the School District’s conduct was merely negligent, the Hearing Officer clearly laid out its basis for finding that the School District acted with deliberate indifference while also noting that the denial of FAPE lasted for only 26 school days. Therefore, the award of compensatory education accurately reflects the findings made by the Hearing Officer.
The Parent, on the other hand, argues that the awarded compensatory education was too modest and should have been far greater. (Doc. 55, at 29-31.) As noted above, however, this court does not recommend disturbing the Hearing 48 Officer’s determination that the denial of FAPE began on May 14, 2013. It is therefore recommended that the Parent’s request for compensatory education dating back to March of 2012 be denied. This leaves the court to weigh the Parent’s argument that the Hearing Officer should have awarded 26 full days of compensatory education as opposed to an hour per day. Courts within the Third Circuit have frequently upheld awards of full days of compensatory education, particularly where students are unable to make any meaningful academic progress due to the denial of FAPE. See Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d 584, 610 (M.D. Pa. 2014) (collecting cases). However, other courts within the Third Circuit infer that the amount of compensatory education be particularized to “the quantity of services improperly withheld . . . .” Jana K., 39 F. Supp. 3d at 606 (collecting cases). In considering the facts of this case, we recommend against disturbing the Hearing Officer’s award of 26 total hours of compensatory education. Given that the deprivation of FAPE only took place for a relatively short period, occurred at the end of the school year, and did not result in the full deprivation of TD’s ability to make meaningful academic progress, this court concludes that the Hearing Officer’s awarded compensatory education was appropriate. 49
2. Tuition Reimbursement
As a final matter, this court considers the Hearing Officer’s award of tuition reimbursement for the 2013-14 and 2014-15 school years. (Doc. 10-2, at 43-46.) The School District argues that the award of tuition reimbursement was inappropriate because the award required a showing of intentional discrimination as a form of compensatory damages, and because the Hearing Officer improperly applied the “poisoned waters” doctrine. (Doc. 4[3], at 24-30.) We consider each argument in turn.
The School District first asserts that tuition reimbursement under Section 504 is a form of compensatory damages and therefore requires proof of deliberate indifference. (Doc. 4[3], at 24-26.); see S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013) (“[A] showing of deliberate indifference may satisfy a claim for compensatory damages under § 504 . . . .”) In support of this position, the School District relies on the unreported Third Circuit case of T.F. by D.F. and T.S.F. v. Fox Chapel Area School District. 589 F. App’x. 594 (3d Cir. 2014). Although the nonbinding Third Circuit opinion in Fox Chapel found that tuition reimbursement is a form of compensatory damages, other precedential decisions establish that tuition reimbursement is an equitable remedy. (Doc. 55, at 33 (citing Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 50 370-71 (1985); Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12 (1993)).) While the question of whether tuition reimbursement is an equitable remedy most often arises within the context of IDEA claims, tuition reimbursement has also been found to be an equitable remedy specifically under Section 504. See Lauren G. ex rel. Scott G. v. W. Chester Area Sch. Dist., 906 F. Supp. 2d 375, 396 (E.D. Pa. 2012). The School District’s assertion that tuition reimbursement should be considered an equitable remedy under the IDEA but construed as compensatory damages under Section 504 has not been addressed in an opinion binding upon this court. In any event, the School District’s argument that tuition reimbursement under Section 504 should be construed as a form of compensatory damages does not affect the Hearing Officer’s decision in this case because the Hearing Officer already found that the School District acted with “deliberate indifference,” a finding that we do not recommend disturbing. Accordingly, the School District’s argument that an award of tuition reimbursement under Section 504 is a form of compensatory damages requiring a showing of deliberate indifference is unavailing.
The School District alternatively argues that the Hearing Officer impermissibly relied on the “poisoned waters” doctrine in granting an award of tuition reimbursement. (Doc. 4[3], at 26-30.) According to the School District, the 51 “poisoned waters” doctrine does not lie in either federal or Pennsylvania courts and purportedly involves pervasive hostility between the parties to the point where they would be unable to cooperate together. (Doc. 4[3], at 26-29.) We do not view the Hearing Officer’s decision as turning on this doctrine. Indeed, the Hearing Officer does not explicitly mention the “poisoned waters” doctrine in his decision. Rather, he simply opines as to the parties’ inability to “engage in a productive, mutually trusting/respectful relationship.” (Doc. 10-2, at 48.) However, it is unclear to what extent—if at all—the Hearing Officer relied on his findings as to the relationship between the parties in deciding to grant tuition reimbursement. Indeed, the fact that the Hearing Officer discussed the “relationship between the parties” in a separate section of the opinion apart from his tuition reimbursement analysis supports a conclusion that the “poisoned waters” doctrine was not a major factor in the decision to grant tuition reimbursement. Instead, the Hearing Officer separately provided a thorough analysis for its decision to grant tuition reimbursement. (Doc. 10-2, at 43-46.) This analysis, in our view, supported the Hearing Officer’s decision to grant tuition reimbursement. To the extent that the sustainability of the relationship between the parties may have also factored into this analysis, this court declines to find error given the other evidence cited by the Hearing Officer to support this aspect of the decision. See Lauren G, 906 F. Supp. 2d at 396 (E.D. Pa. 52 2012) (considering equitable factors in determining that student was entitled to tuition reimbursement).
Accordingly, it is respectfully recommended that the Hearing Officer’s award of tuition reimbursement for the 2013-14 and 2014-15 school years be upheld.
V. RECOMMENDATION
For all of the foregoing reasons, it is respectfully recommended that the parties’ motions for judgment on the administrative record or, in the alternative, for summary judgment (Docs. 42 and 54) should be GRANTED IN PART and DENIED IN PART, and the Hearing Officer’s decision should be AFFIRMED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her 53 discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. Submitted this 14th day of March 2018.
S/Martin C. Carlson
54
Footnotes
[1] These claims proceeded in accordance with the normal rules of discovery and thus are not addressed by the court in this Report and Recommendation. (Doc. 35.) Further, the parties reached a partial settlement in September of 2016 addressing any claims for traditional compensatory damages. (Doc. 71.)
[2] In mid-January of 2012, in an unrelated incident, an instructor at the karate school that the Student attended was arrested for statutory rape. (Doc. 10-2, ¶ 9; Doc. 42-2, ¶ 3; Doc. 55-1, ¶ 4 n.1.) In response, the karate school provided all karate students and their parents with a community-based education session addressing sexual abuse, in which any unwanted sexual contact was identified as “rape.” (Doc. 10-2, ¶ 10; Doc. 42-2, ¶¶ 3-5; Doc. 55-1, ¶ 4 n.1.) Thus, the Parent notes that the Student’s use of the word “rape” likely referred to any form of unwanted sexual touching.
[3] The School District presents a slightly different timeline from the Parent with respect to the events of January 24-27, 2012. (Doc. 10-2, ¶ 13 n.4; Doc. 42-2, ¶¶ 4-14.) The School District asserts that the parent first learned of the alleged touching on January 24th, that the Parent first informed the School District of these allegations by telephone on January 25th, that the School District began its investigation on January 26th, and that the Parent accompanied the Student to school on January 27th. (Doc. 10-2, ¶ 13 n.4; Doc. 42-2, ¶¶ 4-9.) The Hearing Officer ultimately adopted the Parent’s chronology of events for that week, finding it to be more credible. (Doc. 10-2, ¶ 13 n.4.) In any event, the slightly different chronologies offered by the parties does not impact our analysis in this case.
[4] The parties dispute whether the accused classmate admitted to the allegations and whether the assistant principal ever spoke with the school cafeteria