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STAUFFER v. WILLIAM PENN SCH. DIST.

May 21, 1993

ROBERT STAUFFER, A Minor, by his Natural Guardian, MARGO E. DEMARCO
v.
WILLIAM PENN SCHOOL DISTRICT, DAVID GOBEL, TOBY GRECO, and ROBERT WETZEL



The opinion of the court was delivered by: BY THE COURT; JAN E. DUBOIS

 DUBOIS, J.

 MAY 21, 1993

 Presently before this Court is the Motion of defendants' William Penn School District ("School District"), David Gobel, Toby Greco and Robert Wetzel (collectively, "defendants") for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Plaintiffs, Robert Stauffer ("Robert"), a 13-year old boy with a learning disability, and Margo DeMarco ("Mrs. DeMarco"), his mother, brought this action pursuant to the Education for All Handicapped Children Act, 20 U.S.C. § 1401, et seq. ("EHA"); *fn1" 42 U.S.C. § 1983; and applicable provisions of the Pennsylvania School Code, 24 P.S. § 13-1371, et seq., and 22 Pa. Code 13.1 et seq.,2 alleging that their rights were violated by defendants. Plaintiffs contend Robert was denied a free appropriate education when defendants failed to adhere to certain requirements with regard to the preparation and implementation of Robert's Individualized Educational Program ("IEP"). *fn3"

 Specifically, plaintiffs contend the IEPs dated September 26, 1989, September 24, 1990 and October 7, 1991 were inadequate because "conspicuously absent" from the IEPS were (1) techniques to help Robert overcome his handicapping condition; (2) accommodations for the subjects in which Robert participated in a regular classroom; (3) advice to Robert's parents as to how to reinforce class lessons at home and assist with homework; (4) therapy to raise Robert's self-esteem and assist him in learning how to cope with frustrations caused by his learning disability, including appropriate behavior with teachers and in the classroom; and (5) counseling for Mr. and Mrs. DeMarco so that they could continue to reinforce what Robert was learning in his individual therapy. Plaintiffs maintain they were required to incur out-of-pocket expenses for services related to Robert's disability, including tutoring and psychotherapy, which, plaintiffs say, defendants should have provided. Plaintiffs seek reimbursement for these expenses as well as compensatory damages and attorneys' fees.

 Defendants have filed a Motion for Summary Judgment on several alternative theories: failure to exhaust administrative remedies, failure to state a claim upon which relief can be granted, no entitlement to compensatory damages or reimbursement for out-of-pocket expenses and qualified immunity of the individual defendants. For the reasons that follow, the Court will grant defendants' Motion.

 I. BACKGROUND

 Robert has attended school in the School District since he began kindergarten in September, 1984. Robert began experiencing difficulties in school in first grade, the 1985-1986 academic year. He had difficulties in all subjects with respect to learning, completing work and sitting still during quiet times. Because of these problems, a multi-disciplinary team ("MDT") meeting was held, and an MDT report was prepared detailing Robert's problems. Toby Greco, a School Psychologist, sent Mrs. DeMarco a Notice of Testing Form, which she signed on March 12, 1986 and returned, agreeing to the testing. The document which Mrs. DeMarco signed contained the following language:

 
If you do NOT agree to a psychological evaluation, as outlined above, at this time, please sign here. We will contact you to arrange a personal conference as soon as possible. You also have the right to request a hearing concerning this proposed evaluation.

 Mr. Greco conducted the agreed upon psychological testing of Robert on October 20, 1986, and prepared a report detailing the results of the evaluation. Mrs. DeMarco received written notice indicating that Mr. Greco would hold a conference on November 24, 1986 to discuss the psychological evaluation. At that meeting, it was suggested that Robert undergo neurological testing and Mrs. DeMarco signed a document, agreeing to the testing. This document contained language affording Mrs. DeMarco a right to a special education due process hearing ("due process hearing") if she opposed the testing. *fn4" Thereafter, Dr. David Baker conducted a neurological examination of Robert, and the results of his examination were mailed to Mrs. DeMarco.

 In December, 1986, Mrs. DeMarco was given a Notice of Recommended Assignment ("NORA") in which it was recommended that Robert be placed in Park Lane Elementary School's Learning Disability Placement Room. The NORA contained detailed notice of Mrs. DeMarco's special education due process rights, including the right to initiate the hearing process if she disagreed with the recommended course of action. The NORA referred to the applicable rules and regulations which set forth Mrs. DeMarco's due process hearing rights and explained the pre-hearing and due process hearing procedure. In addition, the NORA provided Mrs. DeMarco with information about different groups which might be of assistance to her, including the Delaware County Association for Children with Learning Disabilities. Mrs. DeMarco neither obtained copies of the rules and regulations nor contacted any group. (DeMarco Dep. at 53-55) Mrs. DeMarco read and understood the NORA and signed it on December 1, 1986. As a consequence of Mrs. DeMarco's approval of the NORA, an IEP was prepared for Robert.

 During the 1986-87 school year, Mrs. DeMarco did not object to any of the School District's actions with respect to Robert. Indeed, on March 12, 1987, she wrote a letter to Robert Clegg, principal of Park Lane Elementary School at that time, thanking him for his time and concern. (DeMarco Dep. at 62)

 Commencing in August, 1987, Mrs. DeMarco began contacting the Educational Law Center in an effort to resolve what she believed to be a transportation problem. On September 3, 1987, Mrs. DeMarco wrote a letter to Dr. T. Kerr, Assistant Superintendent of the School District, in which she expressed concern about Robert's transportation and requested a due process hearing. (DeMarco Dep. at 67-68) On September 11, 1987, Mr. David Gobel, Coordinator of Special Services for the School District, wrote Mrs. DeMarco a letter in which he responded to her concerns. This letter solved the transportation problems, obviating the need for Mrs. DeMarco to go through a due process hearing. (DeMarco Dep. at 77)

 In February, 1988, while Robert was enrolled in the full-time learning disability classroom, Mr. Gobel wrote a letter to Mrs. DeMarco advising her that the School District wanted to reevaluate Robert to determine whether his current educational program was appropriate. A reevaluation report dated April 11, 1988 was prepared and sent to Mrs. DeMarco.

 In March 1989, when Robert was finishing third grade at Walnut Street Elementary School, his teacher, Mrs. Engle, believed Robert had sufficiently progressed to go into regular education. Mrs. Engle sent a report to Mrs. DeMarco recommending that Robert go into a trial period in regular education. Mrs. DeMarco agreed and signed the report. In May, 1989, a NORA was prepared and sent to Mrs. DeMarco. This NORA detailed the same rights identified in the prior NORA, including the right to initiate a due process hearing. Mrs. DeMarco approved the recommended assignment with respect to this NORA. An IEP dated September 26, 1989 was prepared to which Mrs. DeMarco did not object. (DeMarco Dep. at 91-93)

 In September, 1990, Robert started fifth grade at Park Lane Elementary School. An IEP dated September 24, 1990, was prepared for the 1990-91 school year, which Mrs. DeMarco signed. Mrs. DeMarco did not exercise her right to a due process hearing to contest any part of the IEP. (DeMarco Dep. at 98-98)

 On January 13, 1991, Mrs. DeMarco sent a letter to Mr. Gobel requesting psychological re-testing. Mr. Gobel responded by letter dated February 12, 1991 scheduling an MDT meeting. Mrs. DeMarco stated that although she wanted a psychological reevaluation, not an MDT meeting, she did not initiate a due process hearing to voice her objections. (DeMarco Dep. at 92) Mr. Greco performed a psychological reevaluation of Robert, detailing his findings in a March 12, 1991 letter to Mrs. DeMarco. Soon after, an MDT meeting was conducted, which Mr. Greco, Mr. Robert Wetzel, principal of Park Lane Elementary School, Ms. Cheryl Wise, Robert's resource room teacher and Mrs. DeMarco attended. *fn5" At the meeting, Mrs. DeMarco did not raise any objections to the IEP. (DeMarco Dep. at 118) After the meeting, a report dated March 18, 1991, was prepared, which stated that the IEP prepared September 24, 1990 was still appropriate. Mrs. DeMarco neither objected nor initiated due process. (DeMarco Dep. at 118)

 On March 21, 1991, Mrs. DeMarco wrote Ms. Marveta Clark, Robert's homeroom teacher, a letter in which she made several suggestions about Robert's educational program. Ms. Clark responded by a writing a letter to Mrs. DeMarco, a letter Mrs. DeMarco found unsatisfactory. (DeMarco Dep. at 126) Mrs. DeMarco did not, however, ask for a due process hearing. Instead, she wrote to Ms. Wise, expressing her dissatisfaction with Ms. Clark. (DeMarco Dep. at 126)

 On April 10, 1991, Robert was evaluated by Dr. Robert Slater, a family neurologist to whom Mrs. DeMarco had been referred by her family physician. Dr. Slater prepared a report dated April 12, 1991, in which he stated there was no change in Robert's overall health; there was no significant behavior problem at school; there was no change in Robert's neurological status; his educational program was satisfactory; it was not necessary to make any changes in his educational program. On the basis of Dr. Slater's assessments, Mrs. DeMarco did not initiate a due process hearing. (DeMarco Dep. at 101; 130-32)

 On April 18, 1991, Mrs. DeMarco sent another letter to Ms. Wise, stating she was frustrated with teachers who do not understand or make allowances for learning disabled children. Mrs. DeMarco was referring to Ms. Clark and Mrs. Maxwell, Robert's resource room teacher from the previous year. However, Mrs. DeMarco acknowledged that she never observed these teachers in class. (DeMarco Dep. at 141-42) In this letter, Mrs. DeMarco also questioned whether the School ...


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