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Derrick F. v. Red Lion Area School District

September 1, 2006

DERRICK F., A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, ET AL., PLAINTIFFS,
v.
RED LION AREA SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Plaintiffs' Motion for a Preliminary Injunction (Doc. 2). The parties have briefed the issues and the court held a preliminary injunction hearing over the course of three days, on August 8, 16, and 23, 2006. Thus, the matter is ripe for disposition. For the reasons that follow, the court will grant the motion in part.

I. Background

This matter arises out of a dispute over whether Defendant, the Red Lion Area School District (hereinafter "Red Lion" or "the School District") complied with various statutes and administrative orders regarding the School District's provision of special education services for Derrick F., a 9-year old who is deaf-blind.*fn1

A. Factual Background

1. Derrick's Prior Education History

Prior to September 2004 Derrick was enrolled in school in Red Lion but was placed in a residential program for children with deaf-blindness at the Perkins School for the Blind (hereinafter "the Perkins School" or "Perkins") in Massachusetts. In September 2004 Derrick bit a teacher at Perkins and was going to be subjected to a communicable disease test, per the school's policy. (Tr. Day One*fn2 10:21, 37:25-38:5.) Derrick's parents subsequently withdrew him from the Perkins School on September 12, 2004. (Id. 10:25.)

Derrick's parents then sought to enroll Derrick in his regular school within Red Lion in October 2004. After a number of meetings and evaluations of Derrick, which took place throughout 2004 and 2005, the School District's recommended placement was the Maryland School for the Blind (hereinafter "MSB"), an out-of-district private school. Derrick's parents continued to reject Red Lion's proposals regarding MSB and seek placement in Derrick's home school, the school he would attend if he were not a student with a disability. In December 2005, Derrick's parents began to develop an in-home program for Derrick.

2. Administrative Proceedings

Derrick's parents ultimately filed for a due process hearing, which was held over the course of four days in September and October 2005. One of the issues submitted for consideration at the hearing was the appropriate prospective placement for Derrick.*fn3 (Ex. P-3 at 6.) Special Education Hearing Officer Gregory J. Smith issued his decision on October 31, 2005, finding that "[t]he appropriate placement for [Derrick] is the school he would normally attend if he were not a student with a disability." (Id. at 18.) The Hearing Officer also ordered Red Lion to have a program and placement in place for Derrick within thirty school days of the receipt of the decision. (Id.)

In November 2005, both parties filed exceptions to the Hearing Officer's decision; Red Lion's exceptions pertained to the parts of the findings and order that dealt with Derrick's placement. On December 16, 2005, a Special Education Appeals Panel affirmed the Hearing Officer's determination that the appropriate placement for Derrick would be in his regular education school within Red Lion. (Ex. P-4.) Neither party appealed the decision and order of the Appeals Panel.

The Appeals Panel issued its decision either just before or during Red Lion's break for the winter holidays. Witnesses for the school district testified regarding the changes they began making to the school and their efforts to work with Derrick's parents when making related decisions and in the development of a new Individualized Education Program*fn4 ("IEP") for Derrick over the following months. (See, e.g. Tr. Day Two 83:5-87:4.) However, the parties agree that Derrick did not attend school when it was back in session in January 2006, or within thirty school days after the Appeals Panel's decision.

In March 2006, Derrick's parents filed a complaint with the Division of Compliance of the Bureau of Special Education of the Pennsylvania Department of Education ("PDE") requesting that PDE order Red Lion to comply with the Hearing Officer's decision. Shirley K. Curl, Ph.D., Special Education Advisor for PDE, subsequently sent a letter dated March 21, 2006, to Janet Stocco at the Education Law Center that summarized the actions taken by the School District in the early months of 2006. (See Ex. P-7.) Dr. Curl noted that Red Lion's superintendent signed an Assurance for the Implementation of Appeals Panel Decision on February 8, 2006, and sent it to the Office of Dispute Resolution, indicating that Derrick had been assigned to a classroom and the transition process had begun. (Id. para. 3.) Dr. Curl further noted that Red Lion's planned placement called for education in the regular second grade classroom with private instruction in a resource room for some components, with education services anticipated to begin on March 21 and March 24, 2006. (Id. paras. 3-4.) Dr. Curl also acknowledged that a facilitated IEP meeting had been held on February 17, 2006, although the IEP was still in draft form and missing measurable goals and objectives. (Id. para. 3.)

Next, Dr. Curl stated that Red Lion had not complied with the Hearing Officer's decision by providing Derrick with a placement and program within thirty days of the decision as affirmed on December 16, 2005. (Id. para 5.) She directed the School District to comply immediately and set a deadline of March 31, 2006 to "finish developing" Derrick's IEP. (Id. para. 6.) Dr. Curl further directed Red Lion to forward her a copy of the IEP and Notice of Recommended Education Placement ("NOREP") no later than April 10, 2006 (id.), although that deadline was later extended to April 24, 2006 (Ex. P-8 at 3).

On June 30, 2006, PDE issued a Complaint Investigation Report ("CIR"). (See Ex. P-8.) After setting forth much of the history noted above, the CIR concluded that the School District had not complied with the Hearing Officer's decision because the IEP had not been developed and the NOREP had not been signed within thirty days of December 16, 2006, when the Appeals Panel affirmed that decision. (Id. at 4.) The CIR ordered compensatory education for the period from February 8, 2006 to April 3, 2006, but did not provide for further compensatory education because Derrick's absence from school caused the lack of participation in the education program. (Id. at 5.)

3. The IEP and NOREP

The IEP team met on March 31, 2006. The School District maintains that at the meeting Derrick's parents tabled a number of issues for later discussion. The meeting lasted until 8:30 p.m.; Derrick's mother had to leave a couple of hours early, but Derrick's father was able to stay until the meeting concluded. (Tr. Day Two 56:5-7.) Derrick's parents testified that they believed that the IEP developed at the March 31, 2006 meeting was the "final" IEP. A timeline developed by Laura Fitz, Red Lion's supervisor of special education, notes that a follow-up meeting was scheduled for April 19, 2006. (Ex. D-17.) Ms. Fitz testified that she later cancelled the meeting following a conversation with Derrick's father. (Tr. Day Two 49:21-50:8, 58:6-25.) Subsequent communications illustrate differing views or at least confusion regarding whether the March 31, 2006 meeting yielded a final IEP.

Throughout the preliminary injunction hearing, the parties focused almost exclusively on pages forty-seven and forty-eight of the document discussed at the March 31, 2006 IEP meeting. (See Ex. P-5.) Pages forty-seven and forty-eight of the IEP contain a chart entitled "Supports for School Personnel Provided for the Child." (Id. at 47.) The first row of the chart on page forty-seven describes a position the parties referred to as a "deaf-blind coordinator." It states, in the "Support" column, that the person serving as the deaf-blind coordinator should be a Professional with experience and training in working with children with deafblindness to provide training to regular education teacher, special education teacher, and therapists.

Professional with experience and training in working with children with deafblindness will consult with teachers, therapists, parents, and intervenor on an ongoing basis. (Id.) The description also indicates, in the "Frequency" column, the amount and frequency of training that the deaf-blind coordinator will provide to the regular education teacher, special education teacher, and therapists, and how often the deaf-blind coordinator will consult with the teachers, therapists, parents, and intervenor. (Id.) The columns for "Projected Beginning Date" and "Anticipated Duration" are blank. (Id.)

The third row on page forty-seven pertains to an intervenor trainer. It calls for an "[e]xperienced and qualified trainer to train intervenor" by conducting an [i]nitial 5-day training session before the intervenor starts, followed by 10-day training while the intervenor starts working with Derrick. Then periodic training sessions over the first 6 months of Derrick's program (at least 3 one-hour training sessions). Additional training as needed and determined by the trainer.

(Id. at 47-48.) The columns for the intervenor trainer's projected beginning date and anticipated duration are also blank. (Id.)

In addition to the information contained on pages forty-seven and forty-eight, the IEP includes a projected implementation date of April 3, 2006. (Id. at 1.) The copy submitted to the court is unsigned. (Id. at 2.) Included with the IEP is a "Transition Plan for Derrick [F.] Dated 3/31/2006" (hereinafter "Transition Plan"). (Id. foll. 50.) It designates Susan Prowell as Derrick's intervenor starting April 3, 2006 and sets forth the details of Derrick's transition starting with an orientation visit also scheduled for April 3, 2006. (Id.) ...


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