The opinion of the court was delivered by: (Judge Rambo)
This case concerns the education of Breanne C.,*fn1 who, in the fall of this year will enter the 11th grade in the Southern York County School District ("the District"). Breanne has been continuously enrolled in the District since she was in kindergarten, and based on the court's review of the administrative record, it appears that her parents, Edward and Donna C., have been continuously at odds with the District concerning its education of Breanne during this entire time.
Currently before the court are cross-motions for judgment on the supplemented administrative record, (Docs. 66 & 68), which brings to a head the assertions by Breanne's parents that the District has failed to provide Breanne with a free appropriate public education ("FAPE") as it is required to do pursuant to the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. § 1400 et seq.,*fn2 and Section 504 of the Rehabilitation Act of 1974 ("RA").*fn3 Specifically, Breanne asks the court to: (1) find that the Pennsylvania Special Education Appeals Panel did not have jurisdiction to hear the appeal of the special education Hearing Officer's July 30, 2008 decision; (2) affirm the decision of the Hearing Officer who concluded that Breanne was denied a FAPE beginning October 12, 2005; (3) affirm the decision of the Hearing Officer that Breanne was entitled to compensatory education for the District's failure to provide FAPE, but overrule its decision to grant only three hours of compensatory education per day and instead award six hours of compensatory education per day; (4) affirm the Hearing Officer's decision to reimburse Breanne for the independent education evaluation ("IEE"); (5) affirm the Hearing Officer's decision to reimburse Breanne for the private reading tutoring expenses; and (6) award Breanne economic damages pursuant to § 504 of the RA.*fn4
For its part, the District's cross-motion for judgment on the supplemented administrative asks the court to: (1) affirm the Appeals Panel's jurisdiction; (2) reverse the decision by both the Hearing Officer and the Appeals Panel, and specifically find that Breanne was provided with a FAPE at all times from October 12, 2005 to present; (3) reverse the award of compensatory education; and (4) reverse the Appeals Panel's decision to award reimbursement for the IEE. The court has thoroughly reviewed the administrative record, and for the reasons that follow, will grant in part Breanne's motion for judgment on the supplemented administrative record. Specifically, the court will affirm the decision of the Hearing Officer and Appeals Panel that Breanne was denied a FAPE. The court will affirm the Appeals Panel's award of one-hour per day of compensatory education from October 12, 2005, through September 24, 2008, with a reasonable rectification period of thirty days, excluding summers. The court will also affirm the Appeals Panel's decision to award Breanne reimbursement for the IEE, and its decision to deny reimbursement for private reading tutoring. Finally, the court will not award Breanne reimbursement for her private counseling and will deny her request for additional damages under the RA. The court will deny the District's motion in its entirety.
II. Factual Background*fn5
A. Kindergarten through 3rd Grade
At the time of the Hearing Officer's decision, Breanne was fourteen years old and in the eighth grade. (Doc. 62, Certified Admin. R., Ex. 13, Decision of Due Process Hr'g at 2 ("Due Process Hr'g").) Breanne has attended the District since she was in kindergarten, and has continually experienced academic difficulty. (Id. at 4, ¶¶ 1-2.) At the beginning of Breanne's third grade year, (2002-2003), Breanne's parents 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. (Id. at 4, ¶ 5.)
After an evaluation, on February 27, 2003, the District determined that Breanne had a specific learning disability ("SLD") in the areas of reading and written expression, but not math. (Id. at 5, ¶ 7.) The evaluation also concluded that Breanne might have anxiety issues, which should be monitored. (Id. at 5, ¶ 12.) To rectify the SLD, the District formulated an Individualized Education Plan ("IEP") for Breanne.
At the end of her third grade year, in May of 2003, the District conducted a re-evaluation of Breanne's IEP. At this time, Breanne's teachers reported she had difficulty with focus, concentration, organization, and that the assignments she turned in were usually of poor quality. (Id. at 5, ¶ 13.)
B. Fifth and Sixth Grades
By the time Breanne was in fifth grade, (2005-2006 school year), she was receiving forty-five minutes of learning support each day in a special education resource room. (Due Process Hr'g at 5, ¶ 14.) On May 17, 2005, a new IEP was created to be implemented for the following year when Breanne would be in the sixth grade. (Id. at 5, ¶ 15.) Under this new IEP, Breanne was placed on a "monitoring basis," which meant she was not receiving any direct special education support. (Id. at 8, ¶ 34.) 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 fluency. (Id. at 8, ¶ 35.) Under her previous IEP, Breanne would work on reading, English, spelling, social studies, science and health for approximately 240 minutes each week. (Id. at 8, ¶ 36.)
On March 15, 2006, towards the end of Breanne's sixth grade year, the District issued a Permission to Reevaluate form, which 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. at 8, ¶ 37.) Nothing on the form indicated that the reevaluation could result in a recommendation that Breanne be exited from the special education program. (Id.) However, that is exactly what happened: On May 10, 2006, the District issued a Reevaluation Report recommending that Breanne be removed from special education because it concluded that she did not have a disability and was not in need of specially designed education. (Id. at 9, ¶ 38.)
The reevaluation report that was the basis for exiting Breanne from special education consisted of a record review, along with achievement testing with outdated instruments being compared to cognitive testing with an outdated instrument, and teacher comments. (Id. at 8, ¶ 39.) The teacher reports utilized for the reevaluation focused on behaviors observed by the teachers rather than academic ability. (Id. at 9, ¶ 40.) The reevaluation report also stated numerous areas of decline in Breanne's academic progress. For instance, it noted that her oral reading was at the fifth grade range, and showed a decline from 108 words per minute in fifth grade-at a time she was receiving reading support-to 83 words per minute in the middle of sixth grade-at a time when she was merely being monitored. (Id. at 10, ¶ 48.) The writing sample administered at the time of the reevaluation demonstrated that Breanne was writing at the 75th percentile of the fifth grade level while in sixth grade. (Id. at 10, ¶ 50.)
Despite these observations, on May 10, 2006, the District issued a Notice of Recommended Educational Placement ("NOREP") exiting Breanne from special education. (Id. at 11, ¶ 56.) Although they voiced concern, Breanne's parents approved the NOREP because they trusted the District to know whether Breanne needed an IEP. After issuing the Reevaluation Report that formed the basis for exiting Breanne from special education services, and issuing the NOREP recommending that she be exited from special education, the District did not consider offering Breanne a § 504 service plan, which, like an IEP, is meant to ensure that she is provided with a FAPE. (Id. at 12, ¶ 59.)
C. Seventh Grade Evaluation
During the seventh grade, in September of 2006, Breanne's therapist assessed Breanne and formed a diagnostic opinion that she suffered from Attention Deficit Hyperactivity Disorder, combined type. (Id. at 12, ¶ 62.) As a result of the therapist's recommendation, Breanne began receiving medication to address this disorder. (Id.) On October 31, 2006, Breanne's parents requested that the District guide them through the process of obtaining a § 504 service plan for Breanne, including detailed reasons for the request. The District sent the required paperwork, which was returned by Breanne's parents. The District ultimately denied the request for a § 504 service plan.
Having been informed that the District would deny their request for a § 504 service plan, on November 30, 2006, Breanne's parents made a written request for a multidisciplinary evaluation to determine Breanne's eligibility for special education. (Id. at 13, ¶ 68.) The District conducted the evaluation in March of 2007, and concluded that Breanne was not a child with a disability, or that if she is a child with a disability she did not need specially designed instruction. (Id. at 13-14, ¶¶ 71, 85.)
D. Independent Education Evaluation -- and 8th Grade
After reviewing the evaluation, Breanne's parents requested permission to obtain an IEE at public expense. On May 1, 2007, the District agreed to fund an IEE and proposed that it be done by an evaluator from the Lincoln Intermediate Unit 12; however, the parents choose another evaluator-Dr. Margaret Kay. (Id. at 15-16, ¶ 92.) Breanne's parents hand-delivered a letter dated May 31, 2007, informing the District that they had chosen Dr. Kay to conduct the IEE and asked the District to let them know by June 1, 2007 whether they objected to Dr. Kay. (Id. at 16, ¶ 93.) The District did not respond to Breanne's letter until June 6, 2007, when they sent a letter stating that they would not pay for an IEE performed by Dr. Kay, although the District did indicate that it would pay for an IEE by an evaluator who met the District's standards. The District did not provide a written description of its criteria for independent evaluators. (Id. at 16, ¶ 97.) Ultimately, Breanne's parents decided to obtain an IEE from Dr. Kay despite the District's objections because they had already begun the process and were beginning to feel overwhelmed. (Id. at 16, ¶ 98.)
Dr. Kay conducted the IEE in September of 2007, when Breanne was at the beginning of 8th grade. After a battery of tests, Dr. Kay found that Breanne qualified under the disability classifications of Specific Learning Disability (basic reading, reading fluency, math calculation and written expression) and Speech and Language Impairment (phonological awareness, phonological memory, and rapid naming). (Id. at 20, ¶ 125.) Dr. Kay agreed with the District's psychologist that Breanne did not meet the full diagnostic criteria for ADHD, and therefore did not recommend classification under the category of "Other Health Impairment" at the time of the IEE. (Id. at 20, ¶ 126.) Breanne's parents provided a copy of the IEE to the District as soon as it became available.
E. The District's Final Evaluation
Following receipt of the IEE, the District prepared a final report that consisted of a review of the IEE, the initial screening results from Breanne's private reading tutor, a letter from Breanne's private therapist, input from Breanne's parents, and results from its own evaluation. After explaining its methodology, the District continued to maintain its position that Breanne was not a child with a disability, or if she has a disability, she did not need specially designed instruction. (Id. at 22, ¶ 139.)
F. Private Therapy, Reading Tutoring, and Intensive Work by Parents
Breanne has been seen by a therapist every two weeks to discuss her struggles with schoolwork, her anxiety about schoolwork and her interactions with her peers. (Id. at 22, ¶ 142.) Additionally, since November 2007, Breanne's parents have retained a private tutor for twice-weekly individual reading tutoring sessions. (Id. at 22, ¶ 143.) Since Breanne was in kindergarten, but more so after the sixth grade when she had an IEP but was no longer receiving special education services, Breanne's parents would spend two to three hours working with her on her homework in the afternoons and evenings. (Id. at 27, ¶ 182.)
III. Procedural Background
On October 12, 2007, Breanne's parents filed for a due process hearing because they believed that the District had denied Breanne a FAPE by conducting inappropriate reevaluations and offering inappropriate IEPs from the third grade school year to May 10, 2006, when she was exited from special education.
On July 30, 2008, after holding hearings over the course of six days, the Hearing Officer issued her decision, concluding that (1) the District denied Breanne a FAPE from October 12, 2005 to May 10, 2006,*fn6 and by inappropriately exiting her from IDEA coverage, from May 11, 2006, until it offered her an appropriate IEP; and (2) that Breanne's parents were entitled to reimbursement of the IEE at public expense and reimbursement for private reading tutoring during the seventh grade, but not reimbursement for private counseling. The Hearing Officer awarded Breanne three hours per day of compensatory education for this entire period. (See Due Process Hr'g at 29-37.)
After the Hearing Officer's decision, the District filed exceptions with Pennsylvania's Special Education Appeals Panel. (See Doc. 62, Certified Admin. R., Ex. 2, Decision of Special Education Appeals Panel, In re the Educational Assignment of B.C., A student in the Southern York County School District, Sept. 4, 2008, at 7 ("Appeals Panel Decision").) Breanne's parents did not file exceptions with the Appeals Panel, instead they limited their actions at that level to challenging the Appeals Panel's jurisdiction based on then-new regulations which-effective July 1, 2008-removed the Appeals Panel from the review proceedings process. (Id.)
The Appeals Panel quickly reached its decision. On September 4, 2008, the Appeals Panel: (1) determined that it had jurisdiction to hear the District's appeal; (2) affirmed the decision of the Hearing Officer that Breanne was denied a FAPE from the sixth grade forward, but reduced the Hearing Officer's compensatory education award from three hours per day to one hour per day; (3) affirmed the Hearing Officer's reimbursement of the IEE; and (4) reversed the Hearing Officer's decision to reimburse Breanne's parents for private reading tutoring. (See id. at 11-17.) The Appeals Panel also determined that, in the absence of exceptions from Breanne's parents, it could ...