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Lauren G. ex rel. Scott G. v. West Chester Area School Dist.

United States District Court, E.D. Pennsylvania

November 6, 2012

LAUREN G., through her Parents SCOTT G. and Jacqueline G., Plaintiffs,
v.
WEST CHESTER AREA SCHOOL DISTRICT, Defendant.

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Dennis C. McAndrews, Heidi Konkler-Goldsmith, Michael E. Gehring, McAndrews Law Offices, PC, Berwyn, PA, for Plaintiff.

Jonathan P. Riba, Sharon W. Montanye, Sweet Stevens Tucker & Katz LLP, New Britain, PA, for Defendant.

MEMORANDUM

ANITA B. BRODY, District Judge.

This action has been brought bye Lauren G., and her parents Scott G. and Jacqueline G. (" Parents" ), against West Chester Area School District (the " District" ). Parents allege that the District failed to provide Lauren with a free appropriate public education (" FAPE" ) in violation of the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400, et seq., and § 504 of the Rehabilitation Act (" RA" ), 29 U.S.C. § 794.[1] This action stems from Parents filing of a due process complaint. A due process hearing has already occurred, and a decision has been issued by a Pennsylvania Due Process Hearing Officer (" Hearing Officer" ). Both parties object to portions of the Hearing Officer's decision. Currently before me are the parties' cross-motions for judgment on the administrative record. I exercise jurisdiction to review the Hearing Officer's decision under

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20 U.S.C. § 1415(i)(2). For the reasons set forth below, I will grant in part and deny in part both motions.

I. BACKGROUND[2]

A. Factual Background

Lauren is a twenty year-old former District student. In seventh and eighth grade, Lauren attended the District. Parents withdrew Lauren from the District for the 2006-2007 ninth grade school year, and enrolled her in Bishop Shanahan High School (" Bishop Shanahan" ), a private denominational school. Lauren remained at Bishop Shanahan for the first half of tenth grade, the 2007-2008 school year. In January or February 2008, Lauren returned to the District for the second half of tenth grade to attend East High School (" East High" ).

A few weeks after Lauren's re-enrollment in the District, East High's guidance counselor learned from a counselor at Bishop Shanahan that Lauren had " behavioral issues." H.O.D. ¶ 6. In the first couple of months that Lauren attended East High, she met weekly with the guidance counselor as part of the District's effort to ensure a smooth transition for new students. Although Lauren appeared to be handling her classes, the guidance counselor noticed that Lauren was struggling with attendance. Moreover, Lauren self-reported to the guidance counselor that she was seeing a psychiatrist.

On March 8, 2008, Lauren was admitted to an inpatient psychiatric hospital, Devereux Beneto Center (" Devereux" ), for suicidal ideation. On March 9, 2008, Parents informed the District of Lauren's hospitalization. Lauren's guidance counselor spoke with Lauren's mother about the hospitalization and noted that Lauren had been admitted for " possible bipolar, depression," and " suicidal thoughts." H.O.D. ¶ 9 (internal quotation marks omitted).

On March 21, 2008, upon discharge from Devereux, Lauren entered the American Day Program (" American Day" ) for outpatient care. While at American Day, Lauren was diagnosed with Depression, Not Otherwise Specified (NOS), Obsessive Compulsive Disorder, Oppositional Defiant Disorder, and possible Attention Deficit Disorder. The assessment also noted that Lauren used marijuana; however, Lauren was not diagnosed with a substance abuse. Lauren explained to her mother that use of marijuana helped make the repetitive thoughts about the devil and the number six go away.

On March 24, 2008, Parents emailed a letter from Lauren's psychiatrist dated January 21, 2008 to the guidance counselor. The letter stated that Lauren had been diagnosed with Major Depression, Attention Deficit/Hyperactivity Disorder, Obsessive Compulsive Disorder, and Anxiety Disorder. At this time, reports prepared by Lauren's teachers noted that Lauren was cutting classes in math and history, and was being extremely talkative in biology.

In early April 2008, Lauren returned to East High after her treatment at American Day. Upon her return, Lauren felt the need to meet with the crisis counselor or guidance counselor once or twice a week. A few days after her return, Parents requested in writing that the District begin the process of getting Lauren a § 504

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Accommodation Plan (" § 504 Plan" ).[3] Parents requested a § 504 Plan after Lauren's mother spoke with a friend about Lauren's hospitalization. The friend had told Lauren's mother that Lauren's psychiatric hospitalization was a " huge red flag" for the District to provide Lauren with accommodations. H.O.D. ¶ 15.

The District's Child Study Team, which included Lauren's guidance counselor, met to determine if Lauren was eligible for a § 504 Plan. The Child Study Team reviewed academic records, student meetings, and staff inclusion (written feedback provided by Lauren's teachers) before making a determination. On the afternoon of April 15, 2008, the guidance counselor emailed Lauren's mother and requested " additional information regarding your request for 504 services." P-24. However, on April 16, 2008, the District issued a Denial of Eligibility Letter, informing Parents that Lauren did not meet the criteria for a § 504 Plan. The letter also informed Parents of their right to request an informal conference with a school district representative, a due process hearing, or assistance from the Pennsylvania Department of Education. Additionally, Parents were notified of their right to file a federal lawsuit under the RA. Attached to the letter was a copy of the Procedural Safeguard Notice, which explained Parents' rights. Moreover, the letter also invited Parents to schedule an informal conference or to request a due process hearing by indicating such request on the bottom of the letter and returning it to the guidance counselor. Parents elected to do nothing at the time.

At the start of Lauren's junior year, the 2008-2009 school year, Lauren's problems began to escalate. N.T. 138. When Lauren returned to school after the summer, she was withdrawn, experiencing depression, complaining of headaches and other somatic symptoms, cutting classes, avoiding school, and voicing a desire to drop out. Lauren's mother had to physically drag Lauren to school. In an effort to get Lauren help, Lauren's mother spoke " on the phone a lot" with the guidance counselor and other District staff. H.O.D. ¶ 18 (internal quotation marks omitted).

In September and October 2008, Lauren frequently visited the crisis counselor. On September 29, 2008, Lauren told the crisis counselor that her " moods and emotional [sic] are not right," and that she was " tired all the time." H.O.D. ¶ 19 (internal quotation marks omitted). The guidance counselor recommended that Parents find Lauren a new psychiatrist to help stabilize her.

In October 2008, Lauren informed the crisis counselor that she was experiencing feelings of not wanting to do anything. The crisis counselor reported this to the guidance counselor, who advised Lauren of various programs that she could elect to participate in. Lauren did not choose to participate in any of them. Lauren's failure to seek out these services signified to the guidance counselor that " you can lead a horse to water, but you cannot make them, you know, drink it." H.O.D. ¶ 20 (internal quotation marks omitted).

In addition to her emotional struggles, Lauren was also struggling academically. In October 2008, the guidance counselor noted that Lauren was failing classes. N.T. 231. During the first quarter, Lauren failed history, earth science, Spanish, and Algebra. P-56.

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On October 20, 2008, Parents requested in writing that the District conduct a psychiatric evaluation and a psychoeducational evaluation of Lauren. However, on October 23, 2008, Lauren was again admitted to American Day because she was acting erratically, refusing to attend school, smoking marijuana, and had stolen her mother's car in the middle of the night. Parents notified the District of Lauren's admittance to American Day. P-43.

On October 30, 2008, Parents completed a Permission to Evaluate (PTE) Evaluation Request Form, requesting " a complete evaluation so we can get some direction on how to help our daughter." H.O.D. ¶ 24 (internal quotation marks omitted). Additionally, the PTE noted that Lauren " ha[d] been diagnosed with a Mood Disorder, OCD, ODD, depression and an anxiety disorder which has an effect on her ability to perform academically." Id. (internal quotation marks omitted).

At the end of October 2008, Lauren's psychiatrist and psychologist recommended that Parents meet with an educational consultant to place Lauren. In November 2008, Lauren's psychologist recommended a therapeutic residential boarding school due to Lauren's " failing grades" and " recurrent acting-out behaviors" in order to provide Lauren with " the placement and treatment she needs at this time." P-58. As the psychologist explained, a residential placement would assist Lauren in " school success." Id.

On November 7, 2008, Lauren was discharged from American Day. Her Discharge Summary noted that Parents were considering placing Lauren in a boarding school. It also noted that Lauren required ongoing substance abuse treatment.

On November 10, 2008, the school psychologist determined that it was not necessary to conduct a psychiatric evaluation of Lauren because she had just been evaluated at American Day. On November 24, 2008, the District issued a Permission to Evaluate (PTE) Evaluation Consent Form seeking " to conduct an evaluation in order to explore if the symptoms of [Lauren's] Mood Disorder adversely affects her educational performance." H.O.D. ¶ 28 (internal quotation marks omitted). The PTE, along with a copy of the Procedural Safeguards were sent by regular and certified mail. The certified letter was returned to the District marked " unclaimed."

Parents did not respond to the District's PTE request because sometime between November 17 and November 28, 2008 Lauren began attending King George School (" King George" ), a therapeutic boarding school in New England.

King George offers " an overall behavioral modification program that supplements with therapeutic aspects." P-71 at 4. While at King George, Lauren was assigned an academic advisor, a team leader, and a therapist, who met every few weeks to review Lauren's development. Id. Lauren spent half of her week at King George on academics, and spent the rest of the week doing activities like " rock climbing, art classes, things that would help her therapeutically. P-71 at 4; N.T. 156:15-17. Additionally, Lauren attended individual, group, and family therapy, as well as a recovery/12-step program. P-73 at 3.

In November or December 2008, Parents retained legal counsel. Additionally, Parents hired a Nationally Certified School Psychologist with licensure and school certification in his home state to conduct a private psychological evaluation of Lauren. On December 16, 2008 and January 5, 2009 the psychologist evaluated Lauren. Lauren was diagnosed with Dysthymic Disorder among other diagnoses. The psychologist concluded that Lauren qualified as an educationally disabled person

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because she has serious emotional disturbance and a specific learning disability in math calculation. Additionally, he opined: " Lauren distinctly requires a therapeutic boarding school for two years or more such as King George School to aid her mental health care by structuring her day, supporting her sobriety, and attending school regularly. Lauren would not readily recover without such 24 hour support." P-67 at 6.

On April 1, 2009, Parents filed a due process complaint seeking only an independent educational evaluation (" IEE" ).[4] The District declined to fund an IEE. However, on April 16, 2009, the District agreed to conduct its own evaluation. Lauren was not available for testing until July 2009 because she was living at King George, which was nine hours away from the District. N.T. 99.

On July 9, 2009, the District conducted its evaluation of Lauren. As part of the evaluation process, the District psychologist had access to Lauren's diagnoses from two previous psychiatric hospitalization programs, as well as the private psychological evaluation completed by the out-of-state school psychologist in January 2009.

On August 15, 2009, Lauren graduated early from King George, after attending and passing all of her classes. N.T. 155:22-24; S-20; P-73 at 3. Following King George, she was able to successfully transition to Bloomsburg University. P-73 at 3.

On October 21, 2009, the District completed its Evaluation Report (" ER" ) for Lauren and issued a Notice of Recommended Educational Placement (" NOREP" ). The ER concluded that Lauren did not have a disability and was not eligible for special education. S-12. The ER explained its conclusion as follows:

Given Lauren's previous diagnosis and social-emotional and behavioral challenges, one might quickly associate Lauren with the educational disability of Emotional Disturbance (ED). It is clear that Lauren may have demonstrated one or more of the ED characteristics. However, it is unknown how long Lauren truly exhibited these characteristics, and if this duration of time would qualify as, the law states, ‘ a long period of time.’ Furthermore, these characteristics do not appear to have adversely affected Lauren's educational performance to a marked degree.... Any social-emotional or behavioral issues did not seem to be manifesting themselves within the school environment.

H.O.D. ¶ 43-44 (internal quotation marks omitted). Based on the ER, the NOREP concluded that Lauren was not in need of special education. Additionally, the NOREP concluded that Lauren was not in need of a § 504 Plan or an Individualized Education Plan (" IEP" ) [5] because she did not demonstrate a disability.

On November 5, 2009, Parents requested an IEE at public expense. On April 16, 2010, the District agreed to fund an IEE.

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A psychologist completed the IEE on September 15, 2010. The IEE psychologist concluded:

[Lauren's] struggles with OCD and emotional/behavioral functioning during high school resulted in a significant impairment in global functioning, including academic performance. Lauren's presentation during 10th and 11th grade (based on record review, consultation with treating therapists and clinical interview) suggests that she was struggling with an emotional disturbance that impeded her ability to learn, access academic curriculum and attend school on a daily basis to a marked degree.... Lauren's school district can consider identification of Lauren as requiring SDI based on an emotional disturbance.

H.O.D. ¶ 48 (internal quotation marks omitted).

On March 11, 2011, after unsuccessful attempts to reach a settlement with the District, Parents filed a formal due process complaint in which they requested a due process hearing.

B. Procedural Background

Lauren's due process hearing was conducted in two sessions on May 10, 2011 and July 5, 2011. At the end of the first session, the Hearing Officer concluded that the statute of limitations limited Lauren's recovery period under the IDEA and § 504 to the two years prior to the filing of the due process complaint. The Hearing Officer determined that Lauren could not recover for any injuries that occurred prior to March 11, 2009 because a formal due process complaint was not filed until March 11, 2011. Thus, the potential period for recovery was March 11, 2009 through August 15, 2009, the date Lauren graduated high school. The Hearing Officer devoted the second session to the merits of Lauren's claims.

On August 6, 2011, the Hearing Officer issued a written decision on the merits of Lauren's claims. The Hearing Officer concluded that the District had violated its " child find" obligations when it failed to identify Lauren as a Protected Handicapped Student under § 504 in April 2008. The Hearing Officer also concluded that the District had violated its " child find" obligations when it failed to identify Lauren as a student eligible for special education under the IDEA in July 2009.[6] Although Parents requested a complete evaluation of Lauren in October 2008, the Hearing Officer reasoned that the District did not have a duty to evaluate Lauren while she was attending King George because she was outside the District and unavailable for evaluation. Thus, it concluded that the District did not violate its " child find" obligations under the IDEA until Lauren returned from King George in July 2009. [7] According to the Hearing Officer, the District's evaluation failed to identify Lauren as a student eligible for special education under the IDEA; therefore it failed to offer Lauren an IEP. The Hearing Officer further concluded that the failure to provide Lauren with an IEP in July 2009 denied Lauren a FAPE.

While the Hearing Officer initially identified the potential period of recovery as March 11, ...


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