The opinion of the court was delivered by: Bartle, C.J.
Annika T., a minor child with a "nonverbal" learning disability, brings this action, along with her parents John T. and Simone T., pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("§ 504") and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. Plaintiffs allege the defendant, Unionville Chadds-Ford School District (the "School District") failed to provide Annika T. with a free appropriate public education ("FAPE") as required by the IDEA and discriminated against her on the basis of her disability by failing to provide her with equal educational access and opportunities to obtain a meaningful educational benefit in violation of § 504 of the Rehabilitation Act and the Americans with Disabilities Act. Before the court is the motion of the School District to dismiss the plaintiffs' complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
When deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint, draw all inferences from the facts alleged in the light most favorable to the plaintiff, and "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Umland v. Planco Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Our Court of Appeals has characterized the Supreme Court's "formulation of the pleading standard" for stating a claim as requiring "'a complaint with enough factual matter (taken as true) to suggest' the required element." Phillips, 515 F.3d at 234 (citing Twombly, 127 S.Ct. at 1965).
The School District also moves under Rule 12(b)(1) to dismiss the parents' claims for lack of standing. Ballentine v. U.S., 486 F.3d 806, 810 (3d Cir. 2007). When considering such a motion, the trial court must accept as true all material allegations in the plaintiffs' complaint. Warth v. Seldin, 442 U.S. 490, 501 (1975).
According to the complaint, Annika, who is currently eleven years old, was identified by the School District as a child with a specific learning disability. She began the first grade in the School District in the 2004-2005 school year after attending kindergarten for two years. During her first grade year, she experienced significant academic and emotional problems. She read at 50% below her expected level and visited the nurse more than 86 times. Due to these problems, the School District completed an Instructional Support Team ("IST") report on Annika on February 14, 2005. During the first IST meeting, the school psychologist for the School District detailed some of Annika's problems, including her academic difficulties as well as her difficulties focusing on instruction, following directions and persevering with tasks. IST was continued through the following school year because she continued visiting the nurse "in an attempt to evade work that was difficult for her," and continued performing below expected levels. Compl. ¶ 17. Annika required daily, one-on-one assistance. Her second-grade teacher, who was concerned about Annika's academic abilities, conducted a variety of assessments, including the Test of Word Reading Efficiency. This test showed that her word reading efficiency was below average and her sight word reading score was in the 8th percentile. A Qualified Reading Inventory-3 test was also conducted, which demonstrated that Annika's frustrational level in reading was at a first to second grade level.
In the 2005-2006 school year, Annika was referred for a Multidisciplinary Evaluation. According to this Evaluation, Annika had needs in basic reading skills, reading comprehension, spelling, written expression, math computation, coping skills, independence, and task competition. She was diagnosed with a "nonverbal" learning disability. The school psychologist suggested that this disability was present at a very early age and in the first grade.
The Individualized Education Programs ("IEP") designed for Annika did not require "research-based" instruction in reading, writing and math and did not include psychological services or counseling. Despite recognizing that Annika was restless, impulsive, gave up easily, had difficulty sustaining attention, needed frequent breaks, and engaged in avoidance behaviors, the IEPs provided no intervention in these areas and did not provide a behavior management plan based on a functional behavior assessment.
On December 5, 2007, the plaintiffs requested a special education due process hearing pursuant to 34 C.F.R. §§ 300.507(a) and 300.508 and 22 Pa. Code § 14.162. The plaintiffs sought compensatory education for the period beginning April, 2005. The due process hearing was held over several days on January 28, 2008, February 4, 2008 and April 23, 2008. The decision of the hearing officer, David F. Bateman, Ph.D., was issued on June 14, 2008.
Dr. Bateman's decision addressed whether Annika was identified as a student with a disability in a timely fashion pursuant to the child find provision of the IDEA, 20 U.S.C. § 1412(a)(3).*fn1 He also addressed whether the IEPs and program and services implemented for Annika were appropriate and whether compensatory education was a necessary, equitable remedy.
Dr. Bateman wrote in his decision that the School District "sought to work with Annika in regular education before using special education, and did so appropriately." See Dr. Bateman's June 14, 2008 Decision, p. 9. He noted that Annika's teachers reported she was making progress, had friends and was easy to work with in the first and second grade. In light of these findings, Dr. Bateman concluded that there was "no evidence or testimony presented in this case indicating the District did not identify Annika in a timely fashion." Id. He further opined that the IEPs and program and services implemented by the School District for Annika were appropriate. He reasoned that the IEPs were reasonably calculated to provide meaningful educational benefit, contained all legally required components, and were tied to Annika's weaknesses.
On July 28, 2008, the Special Education Due Process Appeals Review Panel for the Commonwealth of Pennsylvania affirmed Dr. Bateman's opinion. The Panel ruled that the School District did not violate the child find clause of the IDEA, 42 U.S.C. § 1412(a)(3), in that it identified her as a student at risk and placed her within the IST process.*fn2 The Panel stated that the District had followed an instructional support approach for Annika with the goal of maximizing her individual success in the regular classroom while at the same time screening her as a student who may be in need of special education services. A reading specialist delivered interventions, and these were followed to determine whether they were working. During this time, Annika made ...