The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Defendant Central York School District's ("the District") motion to dismiss (Doc. 7) Plaintiff's claims brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. Defendant seeks to dismiss Plaintiff's Section 504 and ADA claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies. Defendant also seeks to dismiss Plaintiff's IDEA, Section 504 and ADA claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons that follow, the court will grant Defendant's motion as it pertains to Plaintiff's failure to exhaust administrative remedies for Plaintiff's claims brought under the ADA and Section 504 and deny the motion as it pertains to failure to state a claim under the IDEA.
Plaintiff is a former student of the Central York School District. (Compl. ¶ 7.) Plaintiff was identified by the District as a student with a specific learning disability and it is acknowledged by the parties that at all relevant times was eligible for special education services. (Id. ¶ 14; see also Def.'s Br. in Supp., Doc. 8 at 6 of 25.) Plaintiff was first referred for a psycho-educational evaluation during the fourth grade due to reported low academic achievement and a difficulty processing multi-step instructions. (Id. ¶ 15.) The evaluation was completed on November 20, 2000, and the results identified a specific learning disability. (Id.) Plaintiff subsequently received special education services throughout the time he was enrolled in Central York School District. (Id.) Throughout his fourth, fifth and sixth grade years, Plaintiff received special education services on a resource basis and attained satisfactory marks of predominantly As and Bs, however, Plaintiff did not receive comparable scores on standardized measures of achievement. (Id. ¶ 16, 17.) Despite repeated requests by Plaintiff's mother for re-evaluation and change in services, minimal adjustments were made to Plaintiff's individualized education plan ("IEP"). (Id. ¶ 18.) In seventh grade, Plaintiff's grades began to decline dramatically, resulting in his placement in the resource room for language arts. (Id. ¶ 19.) Plaintiff began to have behavioral difficulties and his ninth grade teacher reported that he "failed to complete assignments," demonstrated "poor test results" and had a "high absence rate." (Id. ¶ 19.) By eleventh grade, Plaintiff's GPA dropped to 2.09 and his class rank was 333 out of 368 students. (Id. ¶ 20.)
Although being promoted to twelfth grade, Plaintiff's mother voluntarily chose to have him repeat eleventh grade. (Id. ¶ 21.) However, Plaintiff's difficulties continued. (Id.) Citing the District's refusal to make changes to Plaintiff's educational program, Plaintiff's mother withdrew him from the District and enrolled him in the Christian School of York. (Id.) However, Plaintiff's academic difficulties continued and in the fall of 2008, he was re-evaluated and it was determined that Plaintiff had a significant auditory processing disorder, difficulty coding, and difficulty storing information. (Id. ¶ 22, 23.) Other noted weaknesses included his inability to pay attention, inability to process and outline information, inability to extract meaning from what he read, inability to memorize, and his inability to ask for assistance. (Id. ¶ 25.) After repeating eleventh grade at the Christian School of York, Plaintiff completed twelfth grade and has since graduated. (Id. ¶ 26.)
On November 4, 2010, Plaintiff's mother, Jamie Swope, filed a request for a due process hearing on Plaintiff's behalf, requesting compensatory education under the IDEA for the years in which the District failed to re-evaluate Plaintiff and provide for his educational needs. (Id. ¶ 12; see also Def.'s Br. in Supp., Doc. 8 at 7 of 25.) A hearing was held in six hearing sessions between March and July, 2010. (Id. ¶ 13.) On September 25, 2010, the hearing officer denied Plaintiff's claims. (Id.) Plaintiff appealed the hearing officer's decision by filing a complaint with this court on December 15, 2010, which was subsequently served on Defendant on January 12, 2011. (Doc. 1.) The complaint makes claims pursuant to the IDEA, Section 504 of the Rehabilitation Act, and the ADA. By order dated February 24, 2011, the court referred the matter for mediation. (Doc. 6.) On March 11, 2011, Defendant filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 7.) A brief in support thereof was filed on March 25, 2011. (Doc. 8.) On April 8, 2011, Plaintiff filed a brief in opposition. (Doc. 11.) Defendant's reply brief was filed on April 22, 2011. (Doc. 12.) The court also permitted Plaintiff to file a supplemental memorandum, which was accepted for filing on May 26, 2011. (Doc. 16.) A mediator's report was filed on May 19, 2011, indicating that the parties were unable to reach a settlement. (Doc. 14.) Accordingly, Defendant's motion is now ripe for disposition.
Plaintiff's IDEA claim is premised primarily on the District's alleged failure to provide a free and public education ("FAPE") within the IDEA, including allegations of failures to provide an updated psychological re-evaluation for Plaintiff and failure to develop or adjust an IEP to meet Plaintiff's special education needs. (Id. at ¶ 28 (a)-(e).) Plaintiff's complaint states that "due to Central York's failures to correctly evaluate him and provide him with a free and appropriate public Education, Kirk's academic achievement and skills are significantly below where they would be had he received a free and appropriate public education." (Id. ¶ 27.) Plaintiff's Section 504 and ADA claims are premised upon the District's alleged discrimination on the basis of Plaintiff's disability by failing to provide Plaintiff with an opportunity to participate and benefit from an education in the District that is commensurate to services provided to students without disabilities. (Id. ¶¶ 29(a)-(e) -- 30(a)-(f).)
The IDEA requires that a state receiving federal education funding provide a FAPE to disabled children. 20 U.S.C. § 1412(a)(1). School districts provide a FAPE by designing and administering a program of individualized instruction that is set forth in an IEP. 20 U.S.C. § 1414(d). "The IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's educational potential." Mary Courtney T., et al. v. Sch. Dist. of Phila., 575 F.3d 235, 240 (3d Cir. 2009) (citations omitted). A parent who believes that a school has failed to provide a FAPE may request a due process hearing to seek relief from the school district. See 34 C.F.R. § 300.507.
The IDEA and Section 504 of the Rehabilitation Act provide nearly equivalent requirements. The IDEA provides an affirmative duty to provide education, whereas the Rehabilitation Act prohibits discrimination against the disabled. Grieco v. New Jersey Dept. of Edu., 2007 U.S. Dist. LEXIS 46463, at *11 (D.N.J., June 27, 2007) (citing W.B. v. Matula, 67 F.3d 484, 492-93 (3d Cir. 1995) (abrogated on other grounds by A.W. v. The Jersey City Pub. Sch., 486 F.3d 791 (3d Cir. 2007)). "There appear to be few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition." Suscavage v. Bucks County Sch. Intermediate Unit, et al., 2002 U.S. Dist. LEXIS 1274, at *50 (E.D. Pa. Jan. 22, 2002) (quoting Matula, 67 F.3d at 492-93). Similarly, the ADA also prohibits discrimination against the disabled. Like Section 504, ADA claims can be based on the discriminatory effect on disabled children of seemingly neutral practices and do not require a finding of intentional discrimination. See Suscavage, 2002 U.S. Dist. LEXIS 1274, at *53.
A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)
Defendant argues that Plaintiff's Section 504 and ADA claims should be dismissed because Plaintiff failed to exhaust his administrative remedies. "'A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff's complaint.'" Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 537 (M.D. Pa. 2002) (quoting Ballenger v. Applied Digital Solutions, Inc., 189 F. Supp. 2d 196, 199 (D. Del. 2002)). The motion should be granted where the asserted claim is "insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Coxson v. Pennsylvania, 935 F. Supp. 624, 626 (W.D. Pa. 1996) (citing Growth Horizons v. Delaware County, 983 F.2d 1277, 1280-81 (3d Cir. 1993)). A plaintiff's failure to exhaust his administrative remedies is a jurisdictional issue, such that the appropriate device to raise this issue is a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. Matula, 67 F.3d at 492-93; Shadie v. Forte, 2011 U.S. Dist. LEXIS 14739, at * 7 (M.D. Pa. Feb. 15, 2011). Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks the authority to hear the case. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
Defendant argues that plaintiffs presenting Section 504, ADA and IDEA causes of action must first exhaust the administrative remedies provided under the IDEA prior to filing suit in federal court in instances where, as here, the relief sought pursuant to the ADA and Section 504 is essentially the same as that available under the IDEA. (Doc. 8 at 11 of 25.) Although a due process hearing was held wherein Plaintiff requested relief under the IDEA, Defendant points out that Plaintiff's ...