The opinion of the court was delivered by: J. Rambo
Before the court are two motions. First is Defendant Southern York County School District's ("the District") motion to dismiss certain claims by Plaintiffs. (Doc. 19.) These claims have been brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. § 1400 et seq.,*fn1 and Section 504 of the Rehabilitation Act of 1974 ("RA") and are premised on the allegation that the District failed to provide and/or denied Plaintiff Breanne C.*fn2 ("Breanne" or "Plaintiffs") a free appropriate public education ("FAPE").*fn3 (Doc. 13 at 1 of 28.)
The second motion is Plaintiffs' motion to compel payment for an independent educational evaluation of Breanne done in the fall of 2007. Both motions have been fully briefed and are ripe for disposition. For the reasons set forth below, Defendant's motion will be granted in part and denied in part. Plaintiffs' motion will be denied.
Breanne is a fourteen year old student who resides and attends school in the District. (Doc. 21-2, Def.'s Br. Ex. A, Decision of Due Process Hr'g, at 2.) On October 12, 2007, Breanne's parents requested a due process hearing be held to determine if Breanne would be eligible for special education services and provided with an Independent Education Program ("IEP"). Plaintiffs claim that they are entitled to compensatory education from the 2000-2001 (First Grade) school year to the present because Breanne has been denied a free, appropriate public education as required by the IDEA and the RA. (Am. Compl. Doc. 13, ¶ 1.)
Breanne has been attending school within the District since she was in kindergarten, and has continually experienced academic difficulty. (Decision of Due Process Hr'g, at 4.; Am. Compl., Doc. 13, ¶ 39.) On November 14, 2002, Plaintiffs made a written request to the District for a comprehensive evaluation because of concern over Breanne's academic struggles as well as a family history of dyslexia and Attention Deficit Hyperactivity Disorder. (Decision of Due Process Hr'g, at 4.) On November 15, 2002, the District issued a Permission to Evaluate Form and a Parent Input Form. After processing this information, the District conducted a psychological evaluation on February 12, 2003. (Id. at 5.) On February 27, 2003, the District concluded its Evaluation Report finding that Breanne had a specific learning disability in reading and writing, but not in math. (Compl., Doc. 13, ¶ 41.) The report also indicated Breanne might have anxiety issues, and that this potential problem should be monitored. (Compl., Doc. 13, ¶ 40.) Breanne's teachers reported she had difficulty with focus, concentrating, organization, and that the assignments she turned were usually of poor quality. (Decision of Due Process Hr'g, at 5.)
By the time Breanne was in fifth grade*fn5 (2005-2006 school year), she was receiving forty-five minutes of learning support each day. On May 17, 2005, a new IEP was created for her sixth grade year. Under this new IEP, Breanne was placed on a "monitor basis," which meant she was not receiving any direct special education support. (Id. at 8.) Breanne's time with her learning support teacher was also reduced to between five and ten minutes each week, during which time they could work on her reading skills. Under her previous IEP, Breanne would work on reading, English, spelling, social studies, science and health for approximately 240 minutes each "cycle."*fn6
On March 15, 2006, the District issued a Permission to Reevaluate form. The form indicated that "[t]he IEP team will review all current data concerning your child" but "no new assessment tools, tests, or procedures will be used" for the re-evaluation. (Id.) Nothing on the form indicated that there was a possibility Breanne would be removed from the special education program. (Id. at 9.) On May 10, 2006, the District issued a Reevaluation Report recommending that Breanne be removed from special education because she did not have a disability and was not in need of special, individually designed education. (Id.) The Hearing Officer found that this report was based on "outdated" achievement and cognitive testing, as well as teacher comments and observations by the school principal. The Hearing Officer found that there was no indication that any of the parents concerns were taken into account. (Id.) In addition, no certified psychologist was used for any of the testing outlined in the report. (Id.)*fn7
After hearing all of the testimony, the Hearing Officer concluded that beginning on October 12, 2005, the District failed to provide and/or denied Breanne FAPE in violation of the IDEA and RA. The Hearing Officer ordered the district to pay three hours per day of compensatory education during this period, and to reimburse Plaintiffs for an independent education evaluation ("IEE") that was obtained during the 2007 school year. The hearing officer relied on the 2004 amendments to the IDEA to conclude that any events occurring before October 12, 2005, were beyond the statute of limitations and therefore not reviewable. (Id. at 2, 38.)
On August 13, 2008, Plaintiffs appealed the decision of the Hearing Officer to this court. During this same time period, Defendant appealed the decision of the Hearing Officer to the Special Education Due Process Appeals Review Panel ("Appeals Panel"), which accepted jurisdiction and rendered an opinion on September 4, 2008.*fn8 This opinion affirmed the order of the Hearing Officer on all but two issues. Due to the Appeals Panel rendering a decision, Plaintiffs filed a motion for Declaratory Relief which this court denied on October 1, 2008 seeking to have this court declare that the Appeals Panel lacked jurisdiction to hear the case. See Breanne C., et al v. S. York County School Dist., 1:08-cv-1526, Mem. and Order Den. Mot. for Declaratory Relief (Oct. 1, 2008). On October 21, 2008, Defendant filed a partial Motion to Dismiss and brief in support. (Docs. 19, 21.) Plaintiffs filed an opposition brief on December 2, 2008, (Doc. 34) and Defendant replied on December 16, 2008 (Doc. 36). This motion is now ripe for disposition.
In addition to the motion to dismiss, Plaintiffs filed a motion to compel payment for an independent education evaluation which was conducted on Breanne in September 2007. (Docs. 41, 42.) This motion has also been fully briefed (Docs. 42, 43, 44) and is also ripe for disposition.
Generally, among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Phillips, 515 F.3d 224, 233 (3d Cir. 2008). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 550 U.S. at 555, 570; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). See Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1949 (2009) (explaining a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). Further, when a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).
"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Defendant has filed a motion to dismiss certain claims in Plaintiffs' amended complaint. Defendant asks this court to dismiss all claims for damages under both the IDEA and the RA, all claims relating to events occurring before October 12, 2005, because they are barred by the IDEA and RA's statutes of limitations. Defendant also requests the motion to compel payment for an independent education evaluation be denied, as deciding this issue at this stage would be premature.
Plaintiffs counter that monetary damages are proper under both the IDEA and the RA. In addition, they argue that the IDEA's two-year statute of limitations should not be applicable in this case because it went into effect after many of the events underlying Plaintiffs claims took place. They also argue that any potentially relevant statute of limitations under either the IDEA or RA should not be applied because of principles of equitable tolling. Finally, Plaintiffs maintain that it is the proper time for the court to order Defendant to pay for Breanne's September 2007 independent ...