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I.H., By His Legal Guardian, D.S v. Cumberland Valley School

July 20, 2012

I.H., BY HIS LEGAL GUARDIAN, D.S., : PLAINTIFF,
v.
CUMBERLAND VALLEY SCHOOL: DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

I. INTRODUCTION

Presently pending before the Court are the Motion for Partial Judgment on the Administrative Record (Doc. 39) of the Plaintiff, I.H., by his legal guardian, D.S., and the Motion for Judgment on the Administrative Record or in the Alternative for Summary Judgment (Doc. 36) of the Defendant, Cumberland Valley School District. The Motions have been fully briefed (Docs. 38, 45, 48, 40, 44, 47) and are thus ripe for our review. For the reasons that follow, we will grant in part and deny in part each party's Motion and remand the case to the Hearing Officer for further proceedings consistent with this opinion.

II. PROCEDURAL HISTORY

This is a civil action brought by the Plaintiff, I.H. ("Student"), by his legal guardian, D.S. ("Plaintiff" or "Guardian"), against the Defendant Cumberland Valley School District ("District" or "Defendant") and District Superintendent William Harner ("Harner") to appeal the decision of a Pennsylvania Special Education Hearing Officer ("Hearing Officer") after a due process hearing and decision under the Individuals with Disabilities in Education Act ("IDEA"). Plaintiffs commenced the above-captioned action by filing a Complaint on March 25, 2011. (Doc. 1). In the Complaint, Guardian, on behalf of the Student, seeks additional compensatory education above that awarded by the Hearing Officer, attorneys fees, and additional relief that the Court finds appropriate.

On July 26, 2011, the District filed a Motion to Dismiss (Doc. 14). Briefing on said motion was held in abeyance while the parties attempted mediation, which was ultimately unsuccessful. The motion was fully briefed (Docs. 23-25) and on February 8, 2012, we issued an opinion granting in part and denying in part the District's Motion to Dismiss. See I.H. v. Cumberland Valley Sch. Dist., 2012 U.S. Dist. LEXIS 15215 (M.D. Pa. Feb. 8, 2012). In that opinion, we dismissed claims against Defendant Harner on qualified immunity grounds, dismissed the Plaintiff's claims in Count C and D for relief under the Americans with Disabilities Act ("ADA") and Section 1983, respectively, for failure to state a claim, and held that the IDEA's statute of limitations bars Plaintiff's claims predating June 8, 2008.

(Id.). We denied the motion, however, to the extent Defendant's sought dismissal of Plaintiff's prospective request for an Individualized Education Program ("IEP") and concluded that IDEA does not relieve a district of its obligation to provide resident students with an IEP, particularly where the student unenrolls due to the district's perceived failure to provide free appropriate public education ("FAPE") and related services in the first instance.

Defendant filed an Answer with affirmative defenses on March 19, 2012. (Doc. 31). In its Answer, the Defendant raised a Counterclaim, alleging error in the Hearing Officer's award of compensatory education beyond January 6, 2010. (Id.). The Plaintiff failed to answer the Defendant's counterclaim, and pursuant to Federal Rule of Civil Procedure 8(b)(6), the Plaintiff is deemed to have admitted all allegations therein. See Fed. R. Civ. P. 8(b)(6).

On May 1, 2012, Plaintiff filed a Motion for Partial Judgment on the Administrative Record (Doc. 39) and the Defendant filed a Motion for Judgment on the Administrative Record or in the Alternative for Summary Judgment. (Doc. 36). The Motions have been fully briefed (Docs. 38, 45, 48, 40, 44, 47) and are thus ripe for our review. For the reasons fully articulated herein, we will grant in part and deny in part both motions and remand the case to the Hearing Officer for further proceedings consistent with the within opinion.

III. STATEMENT OF MATERIAL FACTS

The following factual summary is derived from the parties' statements of material fact and the administrative record. At this juncture, both the parties and the Court are intimately familiar with the relevant facts in this undeniably complex litigation. Accordingly, we shall herein briefly summarize the pertinent facts as derived from the administrative record and supplement them as necessary with additional facts throughout our analysis.*fn1

Plaintiff I.H. ("Student") is a middle school student with disabilities who resides with his grandmother and guardian, D.S. ("Guardian") in the Cumberland Valley School District ("Defendant" or "District") in the Middle District of Pennsylvania. (Doc. 37, ¶¶ 1, 3). Student was enrolled in the District from the beginning of the 2006-2007 school year, Student's third grade year, through the end of the 2009-2010 school year, his sixth grade year. (Id. ¶ 2). Guardian enrolled Student in a public cyber charter school ("Agora") beginning September 15, 2010, and Student has remained enrolled at Agora since that time. (Id.). It is uncontested that the Student is eligible for special education services under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (Id. ¶ 3).

Throughout the duration of the Student's education with the District, both his Guardian and the District noted his behavioral problems, which were largely attributed to his impulsivity. (Doc. 37, ¶ 32; Doc. 46, ¶ 53; Doc. 21-2, ¶ 3). In May of 2007, at the Guardian's request, the Student was evaluated by the District. (Hearing Officer Decision ("HOD"), FOF ¶ 4). The report noted that the Student fell in the "average" range in all math sub-tests, but had considerable deficiencies in his full scale IQ, reading, and writing abilities. (Id. FOF ¶ 5). Student's teacher rated him just outside the clinically significant range on the Scale for Assessing Emotional Disturbance, but nonetheless expressed concerns about his emotional state affecting his performance and that of others. (Id. FOF ¶ 6).

Both the Student's teacher and his Guardian reported that the Student complained of voices telling him to do "bad things" and that he sometimes wanted to hurt himself. (Id.). The report ultimately concluded that the Student is a child with a disability, with a primary disability listed as "Emotional Disturbance" and a second category as "Other Health Impairment." (Id. FOF ¶ 8). Guardian approved the report and an Individualized Education Program ("IEP") was issued; Student began receiving special education services from the District at the beginning of the 2007-2008 school year. (Id.).

During the 2008-2009 school year, Student was reevaluated at Guardian's request. (Id. FOF ¶ 12). Guardian shared additional diagnostic information with the District, including a report from Dr. Jose Montaner, a psychiatrist, who concluded that Student suffered from Asperger's Syndrome and associated social interaction deficits. (Id. FOF ¶ 12; Doc. 37, ¶ 26; Doc. 46, ¶ 26). The revised report notes that the Student had been diagnosed with Attention Deficit Disorder ("ADD"), Post-Traumatic Stress Disorder ("PTSD"), Anxiety, and Pervasive Developmental Disorder ("Asperger's Syndrome"). (Id.). Despite repeated reports from the Guardian that the Student needed up to two-and-one-half hours per evening to complete his math homework, and notwithstanding the revised diagnoses, the District evaluators did not change Student's eligibility classifications nor amend his IEP to include math goals or accommodations. (Doc. 37, ¶ 26; Doc. 46, ¶ 26).

Student's IEP team convened on January 8, 2009, to review the Student's IEP based on the new evaluation. (Doc. 37, ¶ 35; Doc. 46, ¶ 35). The IEP provided that the Student requires assistive technologies and that he exhibits behaviors which impede Student's learning and that of others. (Doc. 37, ¶ 36; Doc. 46, ¶ 36). The IEP includes a behavioral plan and notes that the Student has sensory difficulties; it also documents his then-recent Asperger's Syndrome diagnosis. (Id.). The IEP did not consider or plan for Extended School Year ("ESY") services for the summer of 2009. (Doc. 37, ¶¶ 43-45). The January 2009 IEP included a writing goal, two emotional support goals, an organizational goal, and a social skills goal, in addition to an extensive list of modifications and specially designed instruction ("SDI") considerations. (Id.). The IEP noted that the student has strong math abilities and average reading ability, but that he avoids writing. (Id.).

Throughout the remainder of the 2008-2009 school year, while the January 2009 IEP was being implemented, Guardian frequently contacted Student's teachers to express concern about Student's math and organizational skills. (Doc. 37, ¶ 38; Doc. 46, ¶ 38). Guardian testified that she would frequently spend up to two-and-one-half hours per night helping Student with his homework, but that her complaints to the district were of no avail. (Doc. 37, ¶ 37).

The beginning of the 2009-2010 school year marked the Student's sixth-grade year and his transition to Good Hope Middle School, his neighborhood school. (Id. ¶ 46). Guardian stated that the Student became very overwhelmed in this new setting. (Id.). On September 8, 2009, the IEP team reconvened to discuss revisions to the January 2009 IEP. (Id. ¶ 47). Because of the Student's apparently heightened emotional needs, the District increased the time spent in emotional support services to two to three thirty (30) minute sessions per six-day cycle. (Id.). The IEP team also removed a math accommodation from the IEP, added while he was attending elementary school, which provided that the Student was to complete only half of the assigned math homework problems. (Id.).

The revised September 8, 2009 IEP provided for itinerant learning support, where the learning support teacher was "pushed into" the Student's regular classroom for social studies, science, and writing class. (Id. ¶ 48). Per that IEP, the Student would receive assistance with his organizational skills and writing in the learning support classroom. (Id.). The Student's time spent in the learning support classroom increased in the fall of 2009 from two (2) hours to approximately five (five) hours per week. (Doc. 46, ¶ 48).

During the fall of 2009, the District moved the Student to a lower-level math class; District staff testified that they believed that the Student was too advanced for this lower-level course, but had agreed to place Student in this class solely to acquiesce to the Guardian's demands. (Doc. 37, ¶ 52). Guardian testified that she was spending almost four (4) hours per night assisting the Student with his homework at this point, and that the District's sole response to her requests for help was, instead of modifying the amount of math homework, to place him in a lower level course. (Doc. 46, ¶ 52).

Student contracted swine flue approximately one month after the September 2009 IEP was initially implemented and, as a result, was absent from school from October 19, 2009 through October 29, 2009. (Doc. 37, ¶ 54). After his return to school, and to some extent prior to his absence, Student exhibited substantial symptoms of stress, and a gastroenterologist diagnosed him with "a condition in which the Student's physical reaction to stress caused esophageal spasms, which caused a small blood vessel to rupture, which caused the Student to spit up blood." (Id. ¶ 55). On November 11, 2009, the Student informed his emotional support teacher that he would like to "end it all;" as a result, an emergency meeting attended by Guardian, the school principal, and the emotional support teacher convened. (Id. ¶ 56). The Student's IEP was amended to provide that the Student would temporarily be relieved from homework assignments, other than studying for tests, and would no longer have Chinese class. (Id.). On November 24, 2009, the District and the Guardian agreed to a change in the Student's schedule, providing that he would spend the first four periods of each day in the special education classroom to further catch up on missed work. (Id. ¶ 57). Guardian testified that she agreed to this change only because she was "ready to give up" and did not know how to help the Student. (Doc. 46, ¶ 57).

On December 2, 2009, the District issued a new reevaluation report which indicated that the Student would benefit from placement at Hill Top Academy ("Hill Top"), a partial hospitalization program operated by the Capital Area Intermediate Unit ("CAIU"). (Id. ¶ 58). Based on this report, on December 4, 2009, the Student's IEP was revised to place the student in a half-day program. (Id.). This report was determined to be inappropriate by a hearing officer in a prior proceeding because it failed "markedly" to take into account Student's present status and difficulties and instead was virtually identical to the 2008 evaluation report. (Id.). At a January 6, 2010 IEP meeting, it was agreed that the Student's placement should be changed to Hill Top Academy. (Doc. 37, ¶ 69). Guardian testified that she only agreed to this placement because she believed the Student would receive one-on-one attention and therapeutic services at Hill Top. (Doc. 46, ¶ 69). Prior to deciding on the Hill Top placement, the District considered whether placement in a learning support classroom at its Eagle View Middle School or at Student's neighborhood Good Hope Middle School would be appropriate. (Doc. 37, ¶ 71).

Guardian testified that Student experienced such emotional trauma during his first two days at Hill Top that she felt compelled to immediately remove him. (Id. ¶¶ 73-75; Doc. 46, ¶¶ 73-75).*fn2 Staff at Hill Top believed that it was actually the Guardian who was struggling with the transition. (Id.). Upon removing Student from Hill Top, the Student was evaluated by Dr. Valentins Krecko, who prescribed homebound instruction for the following thirty (30) days. A second prescription extended homebound instruction through May 15, 2010. The Student received five (5) hours per week of one-on-one instruction with a special education teacher throughout the duration of the homebound instruction. (Doc. 37, ΒΆ 80). While the Student did not receive reading instruction, (Doc. 46, ...

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