The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court for consideration and disposition are the parties' cross-motions for judgment based on the administrative record, which are captioned as DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 16) and PLAINTIFF'S MOTION FOR DECISION ON THE ADMINISTRATIVE RECORD (Document No. 20). The Administrative Record has been provided. The issues have been thoroughly briefed (Document Nos. 17, 22, 31, 32) and are ripe for resolution.
This litigation involves the services to be provided under the Individuals with Disabilities Education Act (IDEA) to Mitchell Case, a three-year-old boy with cerebral palsy. When a child turns three, he must transition from Part C of the IDEA, which provides services through the Infants and Toddlers Early Intervention program administered by the County Office of Mental Health and Mental Retardation, to Part B of IDEA, a Preschool Early Intervention program which is operated in this instance by Defendant, the Allegheny Intermediate Unit (AIU).
Mitchell received Conductive Education as part of his Individualized Family Service Plan (IFSP) that applied for ages 0-3. The family and the AIU disagree as to whether the child is entitled to continue to receive Conductive Education services as part of his Part B Individualized Education Plan (IEP). The AIU refused to provide Conductive Education, a decision that was upheld by Hearing Officer Dorothy O'Shea in a twenty-page written opinion dated December 22, 2006.
On June 28, 2007, the Court issued a Memorandum Order which granted Plaintiff's Motion to Enforce Pendency and directed the AIU to provide Conductive Education services to Mitchell until this litigation has been ultimately resolved. During an oral argument on June 27, 2007 regarding the Motion to Enforce Pendency, the parties agreed that no further evidence was needed and that the Court would resolve the merits of the litigation based solely upon the administrative record. See 20 U.S.C. § 1415(i)(2)(B).*fn1
A federal district court applies a "modified de novo review" of an administrative decision and must give "due weight" to the facts found during the administrative hearing. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 269-70 (3d Cir. 2003). Purely legal conclusions are subject to plenary review. Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 528 n.3 (3d Cir. 1995). Factual findings from the administrative proceedings are to be considered prima facie correct. Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). The hearing officer's credibility determinations are entitled to special weight, unless the non-testimonial, extrinsic evidence would justify a contrary conclusion, similar to a "clearly erroneous" standard of review. Id. Although the statute directs courts to base their decision on a preponderance of the evidence, that is not an invitation for courts "to substitute their own notions of sound educational policy for those of the school authorities which they review." Board of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982).
1. The Question in Dispute
As an initial matter, the parties disagree as to the question in dispute. Plaintiff frames the question as: "whether the law prohibits Allegheny Intermediate Unit from providing an appropriate therapeutic service to Mitchell Case." Defendant frames the question as: "whether or not the AIU is required to provide Conductive Education as a related service to ensure M.C.'s free and appropriate public education." The distinction is important. Plaintiff seeks to argue a question of law regarding whether, under any circumstances, the AIU may be permitted to provide Conductive Education. Defendant, by contrast, seeks a determination that, under the specific record facts of this litigation and applicable law, there is no mandate to provide Conductive Education as part of a free and appropriate public education.
At the beginning of the Administrative Hearing, the parties agreed to the Hearing Officer's summary of the question in dispute: "[I]s the Allegheny Intermediate Unit required to provide conductive education as a related service to ensure Mitchell's free and appropriate education?" Transcript at 24. That is the question that the Hearing Officer decided and that is the question that this Court will review. The issue is primarily factual, rather than legal. In other words, the primary focus is on the proposed IEP for Mitchell Case, instead of a theoretical exercise about how the relevant regulations might be interpreted.*fn2
2. The Reasons Asserted by the AIU
At the administrative hearing, Mitchell's parents contended that because Conductive Education was not included in the proposed IEP, Mitchell had been denied a free and appropriate public education ("FAPE").*fn3 The AIU contended that the proposed IEP did provide Mitchell a FAPE, and presented evidence that Conductive Education was not included in the proposed IEP because: (1) there is only one Conductive Education provider in the Pittsburgh area, Krisztina Weiszhaupt, and she was not certified or licensed by the state of Pennsylvania; (2) there is no scientifically-based research to demonstrate the efficacy of Conductive Education; and (3) Conductive Education is a ...