The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers the motion for partial summary judgment filed by C.F., by and through his parents, M.F. and A.F. ("defendant"), the motion for summary judgment filed by Penn Trafford School District ("District" or "plaintiff") and defendant's motion for preliminary injunction in this civil action arising under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA") and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. After considering the parties' statements of material facts and responses thereto, the administrative record, and the respective motions and briefs submitted by the parties, the court will convert the defendant's motion for partial summary judgment into a motion for complete summary judgment and will grant the motion in part and deny the motion in part and the court will grant the plaintiff's motion in part and deny the plaintiff's motion in part. The court will also deny defendant's motion for preliminary injunction.
At all points relevant to this litigation, defendant C.F. was a student in the District, where he attended school since he began kindergarten in the fall of 1998. The parties do not dispute that C.F. is disabled and is eligible federal and state special education programs. The parties do dispute that the District provided C.F. with a free appropriate public education (FAPE) from 1998-2004.
Since as early as August 1998, C.F. exhibited numerous developmental delays and was diagnosed with pervasive developmental disorder ("PDD"). Plaintiff's Concise Statement of Material Facts ("P.S.F.") ¶ 4. C.F. received specialized preschool services from the Westmoreland County Intermediate Unit Occupational Therapy Program before he began kindergarten in the District. P.S.F. ¶ 7,9. The parties dispute whether C.F. was enrolled in specialized educational services during the school year 1998-99. P.S.F. ¶ 16.
In 2000, the Children's Hospital of Pittsburgh issued a neurodevelopment evaluation report that reported that C.F. had a verbal IQ of 67, a performance IQ of 59 and a full scale IQ of 60 based on the Wechsler Intelligence Scale for Children-III ("WISC-III"). P.S.F. ¶ 14. During the 2001-02 school year, the District presented C.F.'s parents with two proposed individual educations programs ("IEPs"). P.S.F. ¶ 18. In February 2002, the District presented a "permission to evaluate" form that named several tests that were to be used in a proposed reevaluation of C.F. P.S.F. ¶ 21. C.F.'s parent's objected to the proposed evaluation. P.S.F. ¶ 22. On March 5, 2002, the District proposed an IEP to C.F.'s parents. P.S.F. ¶ 24. The parties dispute whether the proposed IEP met certain criteria provided for in the IDEA. P.S.F. ¶ 26-36.
In August 2002, the District performed a reevaluation of C.F.'s "need for continued support services." P.S.F. ¶ 39. Results on the WISC-III showed scores of a verbal IQ of 69, a performance IQ of 46 and a full-scale IQ of 53, a substantial decrease from the 2000 test. P.S.F. ¶ 44. The reevaluation report categorized C.F.'s disabilities as having mild mental retardation and pervasive developmental disability NOS and concluded that concluded that C.F. was eligible for and in need of special education services. P.S.F. ¶ 49-50. The reevaluation recommended, inter alia, repetitive instructional keyboarding using frequent motoric memory skills and strategies, reading of test materials, allowing verbal responses to classroom assessments and specific instructional methods in mathematics, handwriting and integration into the regular education program. P.S.F. ¶ 51.
A team met on September 23, 2002, at the beginning of C.F.'s fourth grade school year, and proposed an IEP, which C.F.'s parents rejected. P.S.F. ¶ 53. On November 6, 2002, the IEP team presented another proposed IEP, the pendent IEP, which C.F.'s parents did accept. P.S.F. ¶ 63-64. The November 2002 IEP included annual goals and short-term goals related to C.F.'s performance in mathematics, language arts and spelling, handwriting, communication, organization, science, social studies, reading, and language content. P.S.F. ¶ 66-71, 75. The parties do not dispute the content of the November 2002 IEP, but do dispute whether these goals were sufficiently specific and measurable to provide C.F. with a free appropriate public education. The November IEP also described specific and individualized program modifications and specially designed instruction. P.S.F. ¶ 72.
On April 16, 2003, C.F. had Dr. Margaret Kay and Associates privately evaluate C.F. P.S.F. ¶ 98. Dr. Kay rejected the conclusion that C.F. was mildly mentally retarded and instead concluded that he had specific learning disabilities in reading comprehension, math reasoning, math calculation and written expression. Independent Evaluation at 29-30. C.F.'s parents did not share the results of the evaluation with the District until after they filed for due process.
In May 2003, C.F.'s IEP team met again to revise C.F.'s IEP and proposed a new IEP for C.F.. P.S.F. ¶ 81. C.F.'s parents rejected the May 2003 proposed IEP. P.S.F. ¶ 82. On July 25, 2003, the parents requested a special education due process hearing to address whether C.F. had received a FAPE. P.S.F. ¶ 101.
The hearing lasted months from September 2003 through May 2004. In a March 25, 2004 Decision/Order, the hearing officer held that a one year statute of limitations applied to C.F.'s claims and that there were no mitigating circumstances to warrant adding another year to the statute of limitations. P.S.F. ¶ 112. The state Appeals Panel upheld this ruling on May 13, 2004. P.S.F. ¶ 114. On May 19, 2004, the hearing officer issued an order in which she concluded that the District had provided C.F. with an FAPE for the 2002-03 school year, that the proposed IEP was appropriate, that the District did not need to compensate C.F.'s parents for the cost of the independent evaluation and that the District did not discriminate against the student. Hearing Opinion at 25-36.
On July 14, 2004, the Appeals Panel reversed the May 19, 2004 decision in part, concluding that the District's evaluation of August 2002 was flawed, the IEPs of November 2002 and May 2003 were flawed and C.F. was entitled to compensatory education for the 2002-03 and 2003-04 school years. Appeals Panel Decision ("A.D.") at 5-8. The Appeals Panel affirmed the hearing officer's conclusions that a one year statute of limitations applied to C.F.'s claims and that the District did not need to compensate C.F.'s parents for the cost of the independent evaluation. Id. at 8-10.
On August 14, 2004, the District filed a petition for review of the Appeals Panel decision in the Commonwealth Court of Pennsylvania. (Doc. No. 1, ex. A). On September 10, 2004, defendant filed a notice of removal in this court pursuant to 28 U.S.C. § 1441 on the basis of federal question jurisdiction, 28 U.S.C. § 1331.
The motions before the court are cross-motions for summary judgment, although they are essentially appeals of the Appeals Panel's decision. Any party aggrieved by the decision made under the IDEA by a state educational agency has a right to bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A). This court has jurisdiction over those actions "without regard to the amount in controversy." 20 U.S.C. § 1415(i)(3)(A).
The court reviewing the administrative action "(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). Thus, a court reviewing a state agency decision under the IDEA does not adopt the traditional summary judgment standard of review. See, e.g., Bucks County Dep't of Mental Health/Mental Retardation v. De Mora, 227 F.Supp.2d 426 (E.D.Pa.2002). This standard also differs from the usual standard for review of agency actions. See Susan N. v. Wilson School Dist., 70 F.3d 751, 757 (3d Cir. 1995) ("'[J]udicial review in IDEA cases differs substantively from judicial review in other agency actions, in which the courts are generally confined to the administrative record and are held to a highly deferential standard of review.'" (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir.1993)).
In IDEA cases, district courts are required to give "due weight" to the factual findings in state administrative proceedings. Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). The United States Court of Appeals for the Third Circuit further defined "due weight" as "modified de novo" review. S.H. v. State-Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir. 2003). Under this modified de novo review, "'a district court is required to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings.'" Id. (quoting Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir.2001)). Further, "'[f]actual findings from the administrative proceedings are to be considered prima facie correct,'and '[i]f a reviewing court fails to adhere to them, it is obliged to explain why.'" Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.2004) (quoting S.H., 336 F.3d at 271). Where, as here, the conclusions of the local hearing officer and Appeals Panel differ, "due weight" to the administrative proceedings generally requires deference to the Appeals Panel and not the hearing officer. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995).
After evaluating all of the evidence according to the modified de novo review, this court will grant summary judgment if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249.
The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993) (citing 10A CHARLES ALAN WRIGHT, ARTHURR. MILLER& MARYKAYKANE, FEDERALPRACTICE AND PROCEDURE § 2721 at 40 (2d ed. 1983)); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J.1956), aff'd, 248 F.2d 543 (3d Cir.1956) ("[I]n considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence.") (emphasis added). Inferences are to be drawn in the light most favorable to the non-moving party. Pa. Prot. & Advocacy, Inc. v. Pa. Dept. of Welfare, 402 F.3d 374, 379 (3d Cir.2005) ("We are required to review the record and draw inferences in a light most favorable to the non-moving party, . . . yet the non-moving party must provide admissible evidence containing 'specific facts showing that there is a genuine issue for trial.'")(quoting FED. R. CIV. P. 56(e)).
A. Conversion Of motion For Partial Summary Judgment Into Motion For Complete Summary Judgment
District courts are entitled to grant summary judgment sua sponte. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) ("[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence."). A district court may not grant summary judgment sua sponte unless the court gives notice and an opportunity to oppose summary judgment. See Otis Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903, 909-10 (3d Cir.1994). In the present case, the District filed its own motion for summary judgment with respect to all issues and responded to defendant's motion for partial summary judgment. The District clearly ...