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Neena S. v. School District of Philadelphia

December 19, 2008

NEENA S., A MINOR, BY AND THROUGH HER PARENTS, ROBERT AND TAMI S., AND ROBERT AND TAMI S., ADULTS, INDIVIDUALLY, AND ON THEIR OWN BEHALF
v.
THE SCHOOL DISTRICT OF PHILADELPHIA



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

On October 19, 2006, plaintiffs Neena S., a minor, by and through her parents Robert and Tami S., and Robert and Tami S., individually and on their own behalf, filed a complaint*fn1 against defendant the School District of Philadelphia challenging the final decision of the Pennsylvania Special Education Appeals Panel and seeking compensatory damages, the removal of the restrictions on the compensatory education awarded for the 1997-1998 school year through the 2001-2002 school year and compensatory education for the 2002-2003 school year through June 15, 2005. Plaintiffs seek such relief under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. (2007), 42 U.S.C. § 1983 of the Civil Rights Act and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 795 et seq. Before me now are the parties' cross-motions for summary judgment, the responses thereto and the administrative record.

BACKGROUND

Plaintiff Neena S. was a twenty-year-old adult at the time of filing of these motions who during all times relevant to this litigation was a resident of the School District of Philadelphia and eligible for special education services under the IDEA. The District is a publicly-funded school district designated by the Commonwealth of Pennsylvania as the local educational agency responsible for providing Neena with a free appropriate public education (FAPE).

Neena attended kindergarten in the district for the 1992-1993 school year and then transferred to parochial school. Neena received an initial psychological evaluation for special education services in 1996 while in parochial school by CORA Services, Inc., a testing institution. The evaluation concluded that Neena had a specific learning disability with deficits in the areas of reading, spelling and math.

Neena began attending a full-time learning support classroom at the Mayfair Elementary School in the District during her 1997-1998 fourth grade year. She remained at Mayfair through her 2001-2002 eighth grade year. Neena attended Lincoln High School, in part, and Frankford High School, in part, during her 2002-2003 ninth grade year, her 2003-2004 second ninth grade year and her 2004-2005 third ninth grade year.

Neena received an individualized education plan (IEP) in November 1997 for fourth grade, on November 9, 1998 for fifth grade, on November 30, 1999 for sixth grade, on March 23, 2001 for seventh grade*fn2 and on October 29, 2001 for eighth grade. These IEPs and other IEPs up to January 2004 were determined to be inappropriate by the hearing officer and the Panel in the decisions they made on remand. The District does not contest this finding so I will not detail the IEPs' inadequacies.

In July 2002, Neena received an independent evaluation from Dr. Margarat Kay. After testing, Dr. Kay noted that Neena did not evidence any significant social or emotional difficulties that would adversely affect her academic performance and that Neena might become anxious and reactively depressed without sufficient intervention. Dr. Kay recommended "an appropriate program of specially designed instruction to improve her basic academic skills" and offered classroom-based suggestions.

Sometime after this evaluation, an undated "Phyisician's Referral for Homebound Instruction" document was filled out and signed by Ray Newstadt. The document noted that Neena was unable to attend school because of phobias and depression. The individual who signed the document did so in the block marked "Physician's Signature" and stated he was a CAC*fn3 from New Start Associates. Mr. Newstadt also wrote a letter to plaintiffs' attorney dated March 6, 2003. The letter stated that Dr. Kay evaluated Neena in August 2003 at her parent's request because of Neena's sever anxiety and learning disorder. Mr. Newstadt stated in his letter that Neena had been in counseling with him since December 2002 for "Social Anxiety Disorder" and that she should be granted alternative compensatory education and given homebound instruction until placed in an alternative school to meet her needs.

Neena was enrolled in ninth grade at Lincoln High School for the 2002-2003 school year and was to receive special education learning support. Neena did not attend school during this year. Her parents claimed they did not want to send Neena to Lincoln High School due to her lack of progress in reading and her anxiety about school. An IEP team convened on November 5, 2002 but plaintiffs did not attend. Neena withdrew from school on November 8, 2002.

Neena did not attend school during the 2003-2004 school year. However, a Wilson-Certified Reading Instructor saw Neena at home for instruction from June 23, 2003 to June 7, 2004. In a February 2004 reevaluation, Neena's mother stated that she was reluctant to have Neena return to Lincoln High School because of anxiety Neena experienced with her reading problems and stated a preference for homebound instruction.

The March 15, 2004 IEP included a behavior support plan to address the truancy but it was not completed because plaintiffs did not attend the meeting. The IEP team reconvened on June 7, 2004 to finish developing the IEP because Neena was opposed to attending Lincoln High School. Neena also objected to attending Frankford High School. The IEP contained a Functional Behavior Assessment and Behavior Plan addressing Neena's attendance. Alternatives were also offered to Neena including an abbreviated school day, the Twilight Program and a work-study program with placement at a beauty salon.

In September 2004, the District received a letter requesting homebound instruction and attaching a letter from Neena's therapist Mr. Newstadt. Additionally, a prescription pad was presented from John P. Leichner, M.D., Ph.D, "General and Vascular Surgeon" that stated that Neena was unable to attend school because of dyslexia and an extreme anxiety due to personal insults and ridicule in school. This prescription also stated she required special schooling.

The Truancy Court ordered Neena to attend the Lindamood Bell private program from October 18, 2004 to November 23, 2004. Neena attended the program for 10 of the 26 treatment days from October 18, 2004 to November 2, 2004 and for 10 of the 14 days from November 2, 2004 to November 22, 2004. Neena stated that she liked the program but did not like the length of the commute.

The Truancy Court terminated the District's funding of the Lindamood Bell program because of Neena's attendance record and ordered that Neena return to school. There is testimonial evidence that at a March 8, 2005 Truancy Court hearing the District again offered to provide Neena with a Wilson Certified tutor. At the time of the first hearing, Neena was attending between two and two-and-a-half hours per day at Frankford High School receiving reading and math instruction. Plaintiffs requested the hourly limitation.

Neena's absences from school include the following: 1992-1993 kindergarten school year- 22 unexcused and 2 excused absences; 1997-1998 fourth grade school year - 27 unexcused; 1998-1999 fifth grade school year - 16 unexcused and 5 excused absences; 1999-2000 sixth grade school year - 33 unexcused and 2 excused absences; 2000-2001 seventh grade school year -10 unexcused and 18 excused absences; and 2001-2002 eighth grade school year - 32 unexcused and 22 excused absences. As discussed above, Neena had numerous absences, if not a complete lack of attendance, for the 2002-2005 school years. In response to the absences, individuals from the District testified that numerous telephone calls were made and letters sent between Neena's parents and the attendance officer, that the guidance counselor had conversations with Neena, that the principal visited Neena at home twice, that referrals were made to the District's attendance court, that truancy notices were served in April 2000, January 2001 and May 2002 and that Neena had to appear in Truancy Court. Later efforts were made to offer Neena the option of attending an abbreviated school day, the Twilight Program, a work-study program with a beauty salon and another high school.

In 2005,*fn4 her parents requested a hearing pursuant to 34 C.F.R. § 300.507 seeking compensatory education. A hearing officer held a due process hearing over two sessions on March 22, 2005 and June 29, 2005. On July 19, 2005, the hearing officer entered a decision denying relief after finding that the District had offered Neena a FAPE for the one-year period of January 2004 to June 2005 and that Neena was not entitled to compensatory education. The hearing officer found the District's witnesses to be credible. She also found Neena's parents honest but found the prescription for special schooling and Mr. Newstadt's "Physician's Referral for Homebound Instruction" and letter misleading at best.

The hearing officer found that the March and June 2004 IEPs satisfied the requirements of the IDEA and was reasonably calculated to provide meaningful educational benefit especially given the limitation that the District faced in developing the IEPs because it could not observe Neena in the school setting due to her absences. The hearing officer stated that the IEP could not be implemented until approximately March 2005 due to Neena's involvement in other programs and her absences. She also stated that a finding that the District did not provide a FAPE would blame the District for Neena's absences which she stated she would not do because the student refused the services offered to her including a choice of Lincoln or Frankford High School, a modified school day, the Twilight Progam and a work-study program in cosmetology. The hearing officer noted that Neena's parents had the primary responsibility for ensuring her attendance and that in this case they enabled her to stay at home or move to her boyfriend's home where she was out of their control. The hearing officer also questioned the legitimacy of the documentation and requests of Neena's parents for homebound instruction.

Her parents filed timely exceptions to the hearing officer's order pursuant to 22 Pa. Code. § 14.162(o) which mandates a review of the hearing officer's decision by a panel of three appellate hearing officers. On August 23, 2005, a Pennsylvania Special Education Appeals Panel affirmed the decision. The Panel stated that regardless of whether it determined a FAPE was denied for this period, the parents and students' actions in consistently failing to avail themselves of the District's good faith offers amounted to a forfeit. The Panel noted the student's absences including her minimal attendance at the court-ordered Lindamood-Bell private programming, the parents' "spurious applications" for homebound instruction and faulted the parents and Neena for not taking advantage of the twilight program or the work-study program in cosmetology. The Panel also addressed plaintiffs' exceptions and stated that the hearing officer's alleged failure to provide documentary evidence for every factual finding was at most harmless error, that it was not outcome-determinative*fn5 and that it was "picking nit." The Panel affirmed the decision but noted that the IEPs were far from optimal and that the hearing officer too easily rejected the link between Neena's SLD or resulting school phobia and her lack of attendance. The Panel deferred to this rejection because substantial evidence supported it. The evidence included the counselor's testimony that during meetings regarding attendance issues no evidence of school phobia was detected. The Panel also referenced evidence from the record that teachers' reports showed lack of motivation as a reason for poor attendance, and a Functional Behavior Assessment hypothesized reasons for Neena's poor attendance that included concerns with academic failure, a need for adult attention, a need to control her parents and other adults, a concern for her physical security and poor motivation for appropriate behavior. Additionally, the Panel stated that Dr. Kay's evaluation which noted a lack of any significant social or emotional difficulties that would adversely affect her educational performance supported the rejection of the link between Neena's SLD and her lack of attendance.

Neena's parents appealed to this Court challenging the limitation of the period to January 2004 to June 15, 2005 and the finding that the District did not deny Neena a FAPE during this period. On March 27, 2006, I held that the statute of limitations imposed by the hearing officer on July 19, 2005 and affirmed by the Panel on August 23, 2005 did not apply to this case and I remanded the case to determine what compensatory education if any should be awarded.

The hearing officer issued a decision July 22, 2006 without the submission of additional evidence*fn6 and concluded that Neena was not offered a FAPE from February 1998 through January 9, 2004*fn7 because her IEPs were inappropriate which contributed toward a lack of meaningful progress.*fn8 The following compensatory education was awarded for this period: three hours per day for every day Neena attended school from February 10, 1998 to the end of the 1997-1998 school year; three hours per day for every day Neena attended school during the 1998-1999 through 2000-2001 school years; four hours per day for every day Neena attended school during the 2001-2002 school year; and no compensatory education for 2002-2003 school year through January 9, 2004. Three hours of the compensation awarded each day from February 10, 1998 to the 2001-2002 school year was specified for one hour of reading, one hour of math and one half hour for science and social studies. The additional fourth hour per day of compensation awarded in 2001-2002 was for the District's failure to justify the decision to move Neena to a more restrictive environment. The refusal to award compensatory education for the 2002-2003 school year through January 9, 2004 was based on Neena's failure to attend school during this period. The hearing officer further limited the compensatory education to allow the parents to use it for reading and mathematics skill-building and/or vocational counseling and training which the hearing officer noted would make up for the prior deprivation of service.

Her parents appealed the hearing officer's restrictions on Neena's use of compensatory education to the Appeals Panel which affirmed the decision on August 18, 2006.

STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment as a matter of law "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where, as here, cross-motions for summary judgment have been presented, we must consider each party's motion individually. Each side bears the burden of establishing a lack of genuine issues of material fact." Reinert v. Giorgio Foods, Inc., 15 F. Supp.2d 589, 593-94 (E.D. Pa. 1998).

Any party aggrieved by a state educational agency's findings and decisions made under the IDEA has the right to bring a civil action in a district court without regard to the amount in controversy. See 20 U.S.C. § 1415(i)(2)(A). In reviewing administrative findings and decisions under the IDEA, a 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 ...


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