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February 13, 2003


The opinion of the court was delivered by: Bartle Harvey, United States District Judge


Plaintiff Eric H., by his parents John and Janet H. appeal the decision of the Pennsylvania Special Education Appeals Panel ("Appeals Panel") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Before the court are cross-motions for judgment on the administrative record.

In an opinion and order dated June 13, 2002, the Appeals Panel reversed the decision of a local administrative hearing officer. The latter had required the Methacton School District (the "District") to: (1) include video teleconferencing equipment ("VTC") as part of Eric's Individualized Education Program ("IEP"); (2) provide VTC for "all periods of [Eric's] absence"; and (3) provide training for "all staff, parents, students and [Eric] on effective use of VTC." The Appeals Panel held that Eric was not entitled to the use of VTC during those periods that Eric is unable to attend school.


States must provide every disabled or handicapped student within their jurisdictions with a "free appropriate public education" in the least restrictive educational environment appropriate to the needs of the student. 20 U.S.C. § 1412(a)(1) and 1412(5) (IDEA); 34 C.F.R. § 104.33(a) (§ 504). Under the IDEA, "[t]he core of this entitlement is provided by the IEP, the package of special educational and related services designed to meet the unique needs of the disabled child." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995) (citation omitted). An IEP is a written statement which must include, inter alia:

1) a statement of the child's present levels of educational performance; 2) a statement of measurable annual goals, including benchmarks or short term objectives; 3) a statement of the special education and related services to be provided to the child; 4) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class; 5) a statement of how the child's progress toward the annual goals will be measured.

Kristi H. v. Tri-Valley Sch. Dist., 107 F. Supp.2d 628, 630 n. 2 (M.D.Pa. 2000) (citing 20 U.S.C. § 1414(d)). The child's IEP must be "reasonably calculated to enable the child to receive [more than trivial or de minimis] educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); see Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 (3d Cir. 1993). Moreover, this benefit must be "meaningful" and "must be gauged in relation to the child's potential." Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184-85 (3d Cir. 1988).

Parents who are dissatisfied with their child's IEP are entitled to an "impartial due process hearing." 20 U.S.C. § 1415(f) (IDEA). See 34 C.F.R. § 104.33(c)(4), 104.36 (§ 504). In Pennsylvania, a local hearing officer conducts an initial hearing. The party aggrieved by the decision of the hearing officer may appeal to a state educational agency, in this case the Appeals Panel. 20 U.S.C. § 1415(g). The Appeals Panel "conduct[s] an impartial review . . . [and] make[s] an independent decision upon completion of such review." Id. A dissatisfied party may appeal the final judgment of the Appeals Panel by filing a civil action "in a district court of the United States." 20 U.S.C. § 1415(i)(2)(A).

When reviewing the decision of the Appeals Panel, the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). "This has been described as a `modified de novo review,' or as `involved oversight'" by the district court. Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3d Cir. 1995) (quoting Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)). Under this standard, we are not "free to substitute [our] own notions of sound educational policy for those of the educational agencies [we] review." Id. at 757; see Rowley, 458 U.S. at 206. Rather, we must give "due weight" to the state administrative proceedings. Susan N., 70 F.3d at 757. This court has "discretion to determine how much deference to accord the administrative proceedings, and although the district courts `must consider the administrative findings of fact, [they are] free to accept or reject them.'" Scott P., 62 F.3d at 527 (citations omitted).

Where, as here, the conclusions of the local hearing officer and Appeals Panel differ, our Court of Appeals has instructed that "due weight" to the administrative proceedings generally requires deference to the Appeals Panel and not the hearing officer. Id. at 529-30. The only exception arises where the Appeals Panel reverses a credibility-based finding of the hearing officer and the panel's decision to reverse is unsupported by non-testimonial, extrinsic evidence or by the record read in its entirety. Id. at 528-29.*fn1 In such a situation, the Third Circuit has suggested that a district court "should accord somewhat less consideration" to the panel's ruling. Scott P., 62 F.3d at 529 n. 4.


The following facts are generally undisputed. Eric is a nine year old resident of the District who, during the 2001-2002 school year, attended second grade at Audubon Elementary School. The District has identified Eric as a student with a disability who is eligible for special education services under the IDEA because he is what has been denominated as "other health impaired." In June 1994, Eric was diagnosed with acute lymphoblastic leukemia. Following chemotherapy treatment and a bone marrow transplant, he developed "graft vs. host" disease. This disease required high-dose immunosuppressant therapy so that his body would not continue to reject the bone marrow transplant. As a result, he contracted bronchiolitis obliterans organizing pneumonia, a form of bronchitis that has narrowed the air passageways in his lungs, making it difficult for him to breathe. The treatment used to control his bronchitis has further suppressed his already fragile immune system. Because his immune system has been significantly compromised, Eric has received no vaccinations.

On doctor's recommendations, Eric must miss school when the risk of infection to him is high. Since he reached school age, he has missed all of kindergarten, a significant amount of first grade, and forty-six days of second grade.*fn2 Given the nature of his illness, it is difficult to predict with certainty how many school days Eric will miss during each school year.

In December 2000, Eric's parents first requested that the District evaluate him to determine his need for special education services. In July 2001, the District offered and his parents accepted an IEP for Eric that provided for, among other things, homebound instruction for one hour per day after he had missed three days of school in a row.*fn3 Only if he missed more than twenty school days in a row would his IEP team reconvene to determine a need for more extensive instruction in the home.

Because Eric has missed a significant number of school days, his social progress and maturity has lagged behind that of his peers. In response, the IEP identified a variety of goals designed to address his social and behavioral needs. These needs are at the heart of this dispute. Like the Hearing Officer, the Appeals Panel specifically noted that "[Eric's] needs are in the area of socialization, organization, appropriate classroom behavior, and interpersonal relationships." Special Education Opinion Number 1252 (June 13, 2002) at 1. Accordingly, Eric's July 2001 IEP established goals concerning his knowledge of school rules, his sensitivity toward the feelings of peers and his understanding of the strengths and limitations of others.

While the parties generally agree on Eric's need for social and behavioral improvement, they disagree on how to accomplish the objectives set forth in his IEP during the times when he is physically unable to attend school. The District contends that his needs can be met through face to face contact with a homebound instructor or through instruction in the home. The District has acknowledged, however, that some of his social and behavioral objectives cannot be implemented during periods of homebound instruction and would therefore be eliminated.*fn4 The plaintiffs contend that the key to Eric's social progress is a consistent exposure to a classroom setting. Homebound instruction by itself, they argue, cannot supply this consistency. They have therefore asked the District to make available to them the use of video teleconferencing equipment so that Eric can participate "virtually" in the classroom even when he cannot physically be present.

Eric's parents first requested the use of VTC equipment in December 2000. Although the parties discussed including VTC in the July 2001 IEP, the District ultimately refused because it believed a free appropriate public education could be provided without it. On September 25, 2001, the parents and the District nevertheless reached an agreement on the use of VTC for the 2001-02 academic year.*fn5 At no point, however, did the use of VTC become a part ...

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