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DELAWARE CTY. INTERMEDIATE UNIT #25 v. MARTIN

September 15, 1993

DELAWARE COUNTY INTERMEDIATE UNIT #25, Plaintiff,
v.
MARTIN & MELINDA K., individually and as PARENTS & NATURAL GUARDIANS OF PAUL K., and DONALD M. CARROLL, JR., SECRETARY OF EDUCATION FOR THE COMMONWEALTH OF PENNSYLVANIA, Defendants.



The opinion of the court was delivered by: EDUARDO C. ROBRENO

 EDUARDO C. ROBRENO, J.

 SEPTEMBER 15, 1993

 This matter involves a child's right to a free appropriate public education under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. After a bench trial, and pursuant to Fed. R. Civ. P. 52, the Court makes the following findings of fact and conclusions of law. *fn1"

 I. FINDINGS OF FACT

 Paul K., born on July 24, 1988, is the minor son of defendants Martin and Melinda K. *fn2" When Paul was two, he was diagnosed as suffering from "pervasive development disorder--not otherwise specified." Pervasive development disorder ("PDD") is "characterized by qualitative impairment in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity." American Psychiatric Ass'n, The Diagnostic and Statistical Manual of Mental Disorders 33 (3d ed. rev. 1987). The most severe form of PDD is autism; all less severe forms are deemed "not otherwise specified." Id.

 Paul turned three years old in July of 1991, at which point Paul's education became the responsibility of plaintiff Delaware County Intermediate Unit #25 (the "IU"). See 20 U.S.C. § 1412(2)(B); 22 Pa. Code § 14.51. The IU is under contract with the Pennsylvania Department of Education to provide "early intervention services," i.e., education to children over age three but not yet eligible for first grade, in Delaware County, Pennsylvania. Pursuant to the procedural requirements of the IDEA, a series of meetings took place between Paul's parents, representatives of the IU, and other interested parties in September and October of 1991. The purpose of these meetings was to develop an individualized education program ("IEP") for Paul. See 20 U.S.C. § 1414(a)(5); 22 Pa. Code § 14.54.

 The IU initially proposed, on an informal basis, continuation of Paul's education in the Ken-Crest program, again with nine hours of public funding per week. This proposal was not acceptable to Paul's parents. On October 4, 1991, the IU issued a Multidisciplinary Team Evaluation ("MDE") Report. See 22 Pa. Code § 14.53. The MDE, conducted by a team of professionals in cooperation with Paul's parents, is a comprehensive evaluation of Paul's educational development and needs. In mid-October of 1991, Paul's parents withdrew Paul from the Ken-Crest program and undertook to educate Paul through the Lovaas program. Supervision of Paul's education was conducted by Jacqueline Wynn, a Ph.D. candidate from UCLA who was studying under Dr. Lovaas. Ms. Wynn came to Paul's parents' home to instruct Paul's mother, and a group of college students hired by Paul's parents, in the proper methods of teaching Paul through the Lovaas method. Paul's education under the Lovaas program consisted of forty hours per week of one-to-one behavior modification therapy conducted at the K.'s home, plus a "mainstream" component. The mainstream component consisted of two and one-half hours per week of interaction with non-disabled children at the Ken-Crest facility.

 During the September-October, 1991 meetings, the IU had promised that an IEP for Paul would be forthcoming on or before November 1, 1991. On January 25, 1992, having failed to receive an IEP, Paul's parents requested a due process hearing. See 20 U.S.C. § 1415(b)(2); 22 Pa. Code § 14.64. The IU issued an IEP on January 31, 1992. The IEP was accompanied by two Notices of Recommended Assignment (the "NORA"). See 22 Pa. Code § 14.61(a)(3). The first NORA proposed to place Paul in the Ken-Crest program for fifteen hours per week, plus weekly speech, group language, and occupational therapy. Although it is not specifically stated in the NORA, the parties agree that this placement was to run only through mid- to late-February of 1992. Thereafter, Paul was to be placed, pursuant to the second NORA, in a new program, scheduled to be implemented by the IU during that mid- to late-February period, at the IU's Ridley School facility. The new program was to be based on the principles espoused by Division TEACCH, a program developed at the University of North Carolina for educating children with PDD. The TEACCH program, as opposed to Lovaas, stresses a cognitive rather than a behavioral approach. The proposed TEACCH program at Ridley consisted of ten hours of instruction per week (four days at two and one-half hours per day), plus a modified form of the therapy described above. Paul's parents rejected these proposed placements on February 5, 1992, in part because they felt that the TEACCH methods were similar to those used unsuccessfully in the Ken-Crest program, and again requested a due process hearing.

 The IU initiated this action on July 2, 1992, pursuant to 20 U.S.C. § 1415(e)(2). In September of 1992, the parties, after a conference with the Court, agreed to submit their dispute to mediation. Sometime during that same month, the IU expanded its Ridley program from ten hours per week to fourteen hours per week. On October 16, 1992, the parties reported that mediation proved unsuccessful, and discovery commenced. In January of 1993, the Ridley program expanded from fourteen hours per week to twenty-three hours per week. The bench trial in this matter was held during the week of April 26, 1993.

 II. DISCUSSION

 A. Statutory Background

 The IDEA's purpose is to "assure that all handicapped children have available to them . . . a free appropriate public education . . . ." 20 U.S.C. § 1400(c). *fn3" Toward that end, the IDEA allows states to receive federal funding to educate disabled students provided their educational programs comply with the requirements of the IDEA. See id. § 1412. Among these requirements is the rule that participating states must have in effect "a policy that assures all children with disabilities the right to a free appropriate public education." Id. § 1412(1).

 Under the IDEA, a "free appropriate public education" is one that is "provided in conformity with the individualized education program required under section 1414(a)(5) of this title." Id. § 1401(18)(D). The IEP is the "modus operandi " of the IDEA, School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 368, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985), in that it is the "centerpiece of the statute's education delivery system for disabled children," Honig v. Doe, 484 U.S. 305, 311, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). An IEP sets forth an individualized educational plan for a particular disabled student. The IEP must include, inter alia, a statement of the services to be provided to the child, an assessment of the child's current educational levels, and the annual goals set for that child. See 20 U.S.C. § 1401(20). The IEP is developed jointly by parents and school officials. See id.

 The IDEA provides disabled children with rights that are both procedural and substantive. In Board of Education v. Rowley, the Supreme Court's seminal IDEA case, the Supreme Court held that in actions brought pursuant to the IDEA, "a court's inquiry . . . is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?" 458 U.S. 176, 207-08, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). The Supreme Court found that the IDEA's procedural requirements were of primary concern to Congress. See id. at 206 (stating that "adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP").

 Still, though Rowley clearly focused on the procedural aspects of the IDEA, the Supreme Court did not "espouse an entirely toothless standard of substantive review. Rather, the Rowley Court described the level of benefit conferred by the Act as 'meaningful.'" Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 179 (3d Cir. 1988) (quoting Rowley, 458 U.S. at 192), cert. denied, 488 U.S. 1030, 102 L. Ed. 2d 970, 109 S. Ct. 838 (1989). In Polk, the Third Circuit rejected the argument that any educational benefit obtained by a child could be considered "meaningful." Rather, the Third Circuit found that the legislative history of the IDEA, as well as Rowley itself, required educational benefits to be more than trivial or de minimis. See id. at 181-83; see also Board of Educ. v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986) (holding that benefit must be more than trivial). *fn4"

 The IDEA allows for both administrative and judicial review of the placement proposed by a school in an IEP. Participating states must choose either a one- or two-tiered system of administrative review. See 20 U.S.C. § 1415(b)(2), (c). Pennsylvania has opted for a two-tiered system. See 22 Pa. Code § 14.64. Pursuant to Pennsylvania's system, parents who object to an IEP may first request an "impartial due process hearing" before a hearing officer. Id. § 14.64(a). The party aggrieved by the hearing officer's decision may then appeal it to the Special Education Due Process Appeals Panel. See id. § 14.64(m).

 Under the terms of the IDEA, any party aggrieved by a final administrative resolution has the right to initiate a civil action in either an appropriate state court or a federal district court. See 20 U.S.C. § 1415(e)(2). In such a judicial action, "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id. In Rowley, the Supreme Court found that, despite this "preponderance of the evidence" standard and a court's ability to hear additional evidence, a court must not approach the matter as if it were writing on a clean slate. Specifically, the Court held that:

 
The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that § 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings.

 Rowley, 458 U.S. at 206 (emphasis added) (alteration in original).

 In his recent dissent in Fuhrmann v. East Hanover Board of Education, Judge Hutchinson noted that the Third Circuit "has not yet definitively stated what constitutes 'due weight'" under the Rowley standard. 993 F.2d 1031, 1042 (3d Cir. 1993) (Hutchinson, J., dissenting). Judge Hutchinson suggested that this Circuit follow the standard established by the First Circuit in Burlington v. Department of Education, 736 F.2d 773, 792 (1st Cir. 1984), aff'd, 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985). After noting that the First Circuit "concluded that the weight due the administrative decision is best left to the discretion of the district court," Fuhrmann, 993 F.2d at 1042 (Hutchinson, J., dissenting), Judge Hutchinson quoted the following language from Burlington :

 
The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.

 Id. (Hutchinson, J., dissenting) (quoting Burlington, 736 F.2d at 792). Judge Hutchinson further defined this standard by saying "if the evidence fairly and rationally supports the agency's findings, and those findings are not cast into doubt by other evidence the agency did not have before it, the district court is justified in deferring to the state education authorities' expertise in deciding what educational program is appropriate for an individual child." Id. at 1043 (Hutchinson, J., dissenting) (citing Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir.), cert. denied, 479 U.S. 825, 93 L. Ed. 2d 49, 107 S. Ct. 99 (1986)). Absent further guidance from the Third Circuit (the Fuhrmann majority having made no comment on the dissent's proposed definition of "due weight"), this Court will apply the standard endorsed by Judge Hutchinson.

 The burden of proof in this case is on the IU. This result stems from either, or both, of two premises. First, since mainstreaming is at issue in this case, the Third Circuit's recent decision in Oberti ex rel. Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993), places the burden of proof on the IU at least as to the mainstreaming issue. See id. at 1219 ("When the IDEA's mainstreaming requirement is specifically at issue, it is appropriate to place the burden of proving compliance with the IDEA on the school."). To the extent that this Court must consider issues other than mainstreaming, it could be argued that Oberti also requires placing the burden of proof on the school for all purposes. See id. at 1218-19. Since the IU does not appear to contest the conclusion that it retains the burden of proof, the Court will read Oberti as maintaining the burden of proof on the IU in this proceeding.

 Finally, a word about the "additional evidence" aspect of § 1415(e)(2). Although the IDEA clearly permits supplementation of the administrative record in a judicial appeal, courts have held that the nature and extent of such supplementation is limited by Rowley 's command that courts give due weight to the administrative proceedings. In Burlington, the First Circuit fashioned this rule:

 
A trial court must make an independent ruling based on the preponderance of the evidence, but the Act contemplates that the source of the evidence generally will be the administrative hearing record, with some supplementation at trial. The reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of witnesses, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding.
 
. . . .
 
The determination of what is "additional" evidence must be left to the discretion of the trial court which must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.

 Burlington, 736 F.2d at 790-91; see Fuhrmann, 993 F.2d at 1040 n.1 (Mansmann, J., concurring) (citing Burlington in discussion of the additional evidence requirement). Consistent with this standard, the Court reviewed the entire record below and also heard additional evidence at trial which was neither cumulative nor inconsistent with the evidence presented at the due process hearing. *fn5"

 B.

 
Has the IU Offered an Appropriate Placement for Paul K?

 1. October, 1991, to January 31, 1992

 The validity of the IU's conduct during this period warrants little discussion. It is not disputed that the IU did not issue an IEP for Paul until January 31, 1992. The IU, however, was required to implement Paul's IEP at the beginning of the 1991-1992 school year. See 34 C.F.R. § 300.342(a). Further, Pennsylvania regulations require creation of the IEP within thirty days of the MDE report, which in this case was issued on October 4, 1991. *fn6" See 22 Pa. Code § 14.54(j)(1). As the Panel noted, "even if the IU's January 1992 IEP and NORAs were found to be appropriate, the IU's failure to offer a free, appropriate public education prior to that time would entitle Paul's parents to reimbursement for expenses incurred up to that point." Panel Decision at 13 n.9. The Hearing Officer also found that the IU's delays in formulating an IEP were impermissible. See Hearing Officer Decision at 8. These determinations are entitled to deference. Because it would have been unreasonable for Paul's education to have been placed on hold while the parents waited for the IU's IEP, the IU's failure to develop an IEP in a timely fashion is a ...


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