The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on Plaintiffs' "Proffer for Additional Evidence Pursuant to the February 22, 2008 Order of Court" . On January 22, 2008, by Memorandum Opinion and Order, the Court granted in part and denied in part Defendant's motion to dismiss. (Docket Nos. 29 & 30). Within said Memorandum Opinion the Court denied Defendant Ambridge Area School District's ("AASD") motion seeking to strike Plaintiffs' request that this Court hear additional evidence pursuant to 20 U.S.C. § 1415(e)(2) and held that "to properly rule on Defendant's motion, the Court would first need to receive an offer of proof by the Plaintiffs (following the filing of an Amended Complaint) and then the Court must undertake a thorough examination of the current record to determine if such proffered evidence is supplemental, relevant, non-cumulative and useful, as required prior to any hearing and its admission." (Docket No. 29 at 20). The Court therein ordered that Plaintiffs make a proffer of evidence that they wish to submit to the Court by April 8, 2008.
Thereafter, on April 7, 2008, Plaintiffs filed their Notice of Proffer of Evidence (Docket No. 38) and Brief in Support (Docket No. 42). Defendant responded by filing its "Response to Plaintiffs' Proffer of Additional Evidence" on April 18, 2008. (Docket No. 44). Oral argument was heard on May 12, 2008. (Docket No. 47). The Court then ordered that the parties file supplemental briefs (Docket No. 48), which have been filed with the Court (Docket Nos. 49 and 50). Having received both parties' legal arguments, and having reviewed the administrative record, the Court is now able to rule on the Plaintiffs' proffer. For the following reasons, said motion is hereby GRANTED IN PART AND DENIED IN PART.
On March 3, 2006, Plaintiffs, through counsel, filed notice with the AASD requesting a due process hearing. (Docket No. 14 at 38; Docket No. 5-3). A due process hearing was subsequently conducted over a series of days on May 16, 2006, May 24, 2006 and June 23, 2006. (Docket No. 29 at 4). Dr. Gerald Dambach, Ed. D., presided over the due process hearing, at the beginning of which he presented both parties with a copy of the procedures to appeal his decision. (Docket No. 14-8 at 3). At the due process hearing, AASD stipulated, on the record, that it had violated J.L.'s right to a free, appropriate education ("FAPE") for the school years of 2004-2005 and 2005-2006. (Docket No. 14-8 at 6). As they had the burden of proof at the administrative level, Plaintiffs presented their case first. (Docket No. 14-8 at 4). At the first session of the hearing, Plaintiffs presented the testimony of two witnesses, Dr. Margaret Kay, Ed. D., and Andrew Marc Klein. (Docket No. 14-8 at 3- 55; 14-9 at 1-2). No testimony was heard at the second session on May 24, 2006. (Docket No. 14-7 at 51-55). At the third session, Plaintiffs immediately rested, and declined to present any additional testimony. (Docket No. 14-6 at 36). Despite their being present at the hearings, Plaintiffs' counsel did not offer the testimony of either of J.L.'s parents at the administrative level. Defendant AASD then proceeded to present the testimony of Steve Brown, formerly a teacher at the Huntington Learning Center, Kimberly Rippole, the school psychologist at AASD, Susan Martell, a special education teacher at AASD and Michelle Scala-Dubaich, the then supervisor of special education at AASD. (Docket No. 14-7). Upon the conclusion of the hearing, the Hearing Officer ordered that the parties file post hearing briefs outlining their respective positions. (Docket No. 14-7 at 30).
Subsequently, both parties filed proposed findings of fact and conclusions of law with the Hearing Officer. (See Defendant's Post Hearing Brief, Docket No. 14-5 at 20-36; Plaintiffs' Proposed Findings of Fact and Conclusions of Law, Docket No. 14-5 at 37-55, 14-6 at 1-36). The Hearing Officer then issued a decision dated July 16, 2006. (Docket No. 37-2). Relevant here, the Hearing Officer found that the Individuals with Disabilities in Education Act ("IDEA") statute of limitations barred Plaintiffs' claims prior to March 4, 2004. Id. at 6-8. In so holding, the Hearing Officer found that the IDEA statute of limitations was applicable because of evidence presented at the hearing that the parents had previously requested due process hearings on three occasions, two of which requests were withdrawn by the parents, and that the parents had been represented by Charles Jelly, Esq. in their dealings with the Defendant AASD since at least 2002.*fn2 Id. at 7. The Hearing Officer further found that the exceptions to the IDEA statute of limitations did not apply because "[n]o testimony was presented that the district misrepresented that it had not resolved the problem nor was there any evidence presented that the district withheld any information from the parents." Id. As J.L.'s claims for educational services for previous school years were time-barred, the Hearing Officer awarded 990 hours of compensatory education to remedy the violations in both the 2004-2005 and 2005-2006 school years for a total of 1980 hours of compensatory education. Id. at 8.
The Plaintiffs set forth several exceptions to the Hearing Officer's decision before the Appeals Panel, including the calculation of the compensatory education award and the application of the IDEA statute of limitations. (Docket No. 14-4 at 36-55, 14-5 at 1-17). In response, the Defendant submitted an Answer to Plaintiffs' Exceptions and a Brief in Support to the Appeals Panel. (Docket No. 14-4 at 9-30). The Appeals Panel thereafter issued an opinion after having first reviewed the hearing transcript and admitted exhibits. (Docket No. 14 at 34-47). Pertinent to the instant matter, the Appeals Panel upheld the Hearing Officer's determination that the IDEA statute of limitations was applicable and that the parents had not met their burden of proving that the exceptions to the statute had been met. Id. at 41-42. Further, the Appeals Panel reversed the Hearing Officer's order of compensatory damages finding, that in addition to the grant of 1980 hours of compensatory education, J.L. was entitled to: an additional three (3) hours of compensatory education for every day from March 3, 2004 to the end of the 2004-2005 school year; and an additional five and a half (5 1/2 ) hours of compensatory education for every day from March 3, 2004 to the end of the 2005-2006 school year representing other services that J.L. would have received over that period. Id. at 46-47. The Appeals Panel discussed the standard for calculating an award of compensatory education as set forth by the Commonwealth Court of Pennsylvania in B.C. ex rel. J.C. v. Penn Manor School Dist., 906 A.2d 642 (Pa. Cmwlth. Ct. 2006), but found the standard to be unworkable based on the record before it, as the expert testimony offered by the parents' experts was not conformed to the B.C. standard. Id. at 44. Specifically, the Appeals Panel held that "[a] careful review of the evidence in the present case reveals no testimony or exhibit that addresses the question of where [J.L.] would have been had he been provided FAPE. Instead, the witnesses testified to where he should be functioning based on his characteristics." Id.
Plaintiffs thereafter filed a Complaint in this Court alleging several claims against Defendant, including a request that the Court conduct a de novo review of the Appeals Panel decision, and that this Court admit additional evidence to supplement the administrative record. (Docket No. 1). Defendant responded by filing a motion to dismiss on multiple grounds. (Docket No. 4). This Court authored a Memorandum Opinion (Docket No. 29) in which the Defendant's motion to dismiss was granted in part but denied as to Plaintiffs' request that this Court admit additional evidence, and as to the claim that the IDEA statute of limitations barred all of Plaintiffs' claims prior to March 3, 2004. In so holding, this Court also ordered Plaintiffs to submit to the Court a Proffer of Additional Evidence to which the Defendant, in turn, filed a brief in opposition, as outlined above.
a. "Cooperative Federalism" of the IDEA
The Supreme Court of the United States has held that "[t]he goals of IDEA include ensuring that all children with disabilities have available to them a free appropriate public education and ensuring that the rights of children with disabilities and parents of such children are protected." Winkelman v. Parma City School Dist., --- U.S. ---, 127 S.Ct. 1994, 2000 (May 21, 2007)(citing 20 U.S.C. §§ 1400(d)(1)(A)-(B) (2000 ed., Supp. IV)). The "IDEA places on the states the primary responsibility for satisfying the goals of the statute. IDEA, described by several courts as a model of 'cooperative federalism', authorizes federal funding for states providing the special education that the statute requires, but funding is contingent on state compliance with its array of substantive and procedural requirements, 20 U.S.C. § 1412." Beth V. by Yvonne V. v. Carroll, 87 F.3d 80, 82 (3d Cir. 1996) (internal citations omitted).
Pursuant to the IDEA, the Commonwealth of Pennsylvania employs a two-tiered procedural system to resolve disputes as to whether a free, appropriate public education has been afforded to an eligible student. See 22 Pa. Code § 14.162. At the first tier, an impartial due process hearing is held in which the parties are permitted to admit evidence including the testimony of lay and expert witnesses. See 22 Pa. Code § 14.162(m). Hence, an administrative record is developed at the impartial due process hearing. A hearing officer presides over the impartial due process hearing, and at the conclusion of such hearing, the hearing officer issues a decision outlining his or her findings of fact and conclusions of law. See 22 Pa. Code § 14.162(n). The second tier permits a party to appeal the decision of the hearing officer to an Appeals Panel of three appellate hearing officers. See 22 Pa. Code § 14.162(o). The Appeals Panel is required by statute to examine the administrative record from the due process hearing to ensure that the procedures employed at such hearing comport with due process. See 22 Pa. Code § 14.162(r)(1)-(2). Ultimately, the Appeals Panel has the authority to "make an independent decision on completion of the review [of the administrative record.]" See 22 Pa. Code § 14.162(r)(5).
The IDEA also provides that this Court shall have judicial review over the state administrative proceedings. Specifically, the IDEA provides that: any party aggrieved by the findings and decision [of the administrative proceedings] ... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy. 22 U.S.C. § 1415(i)(2)(A). The IDEA further provides that:
[i]n any action brought under this paragraph, the 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.
22 U.S.C. § 1415(i)(2)(C).
Despite the permissive language used in the IDEA which seemingly grants wide discretion to district courts in the administration of IDEA proceedings, the United States Supreme Court has held that a district court is required to give "due weight" to the administrative proceedings. Board of Educ. of Hendrick Hudson Cent. Sch. Dist., et al. v. Rowley, 458 U.S. 176, 206 (1982). The "due weight" requirement has been interpreted by the United States Court of Appeals for the Third Circuit to require a district court to conduct a modified de novo review of the proceedings below. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 269 (3d Cir.2003). The amount of deference granted to the administrative proceedings is contingent upon a determination of whether or not the district court admits additional evidence pursuant to Section 1415(i)(2)(C)(ii) of the IDEA. If additional evidence is not admitted, the district court is "required to defer to the [administrative law judge]'s factual findings unless it can point to contrary non-testimonial extrinsic evidence on the record" and "must explain why it does not accept the [administrative law judge]'s findings of fact to avoid the impression that it is substituting its own notions of sound educational policy for those of the agency it reviews." S.H., 336 F.3d at 270 (citing Susan N., 70 F.3d at 757). If, however, additional evidence is admitted by the district court, it is "free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the Act." S.H., 336 F.3d at 270 (quoting Oberti v. Board of Education of the Borough of the Clementon School District, 995 F.2d 1204, 1220 (3d Cir.1993)).
As stated in the Court's Memorandum Opinion of February 22, 2008, the applicable legal standard with regard to Plaintiffs' request that this Court ...