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Tyler W. v. Upper Perkiomen School District

United States District Court, Third Circuit

August 6, 2013

TYLER W., by and through his parents, Daniel W. and Kelly W., and DANIEL W. and KELLY W., individually. Plaintiffs,
v.
UPPER PERKIOMEN SCHOOL DISTRICT, Defendant.

MEMORANDUM

PETRESE B. TUCKER, Chief District Judge.

Plaintiffs-Kelly and Daniel W., alongside their minor son, Tyler W.-bring this action against defendant, the Upper Perkiomen School District (the "District"), alleging that defendant failed to provide Tyler a free appropriate public education ("FAPE") in contravention of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("section 504"), and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et. seq. ("ADA"). Plaintiffs and defendant have filed cross-motions for judgment on the supplemented administrative record. For the reasons set forth below, I will grant each of their motions in part and deny them in part.

I. Factual and Procedural Background[1]

Tyler was born on January 23, 2001. (Admin. R. Ex. 6 ("HOD") ¶ 1.) From an early age he displayed violent tendencies and developmental delays. ( Id. ¶¶ 2-3.) In January 2004, he was evaluated by the Montgomery County Intermediate Unit ("MCIU") for its early intervention pre-school program. (Pl.'s Mot. J. Admin R. Ex. A ("Klein Report") at 2.) After a re-evaluation in May 2004, it was determined that he should receive intervention services comprising of occupational therapy and an itinerant teacher on an as-needed basis. ( Id. ) When Tyler was four years old, various psychological evaluations diagnosed him with attention deficit hyper-activity disorder, separation anxiety, bipolar disorder, conduct disorder, and stuttering. ( Id. ¶ 7, 9-14.) The family went to Foundations Behavioral Health Agency ("Foundations") and on May 16, 2005, Foundations developed an initial wraparound treatment plan. Under this plan, a behavioral specialist, a mobile therapist, and a therapeutic staff support aide provided services to Tyler. (Klein Report 2.)

In light of the above issues, Tyler received an early intervention individualized education program ("IEP") on June 9, 2005. (HOD ¶ 8.) An IEP meeting was held on July 27, 2005; it was noted that, at the time, Tyler was attending an early intervention program (the "Children's Developmental Program") and was enrolled part-time at Red Hill School. (Klein Report 3.)

On February 8, 2006, the District held a transition meeting with the parents in anticipation of Tyler's entry into a District school program in the fall of 2006. ( Id. ) On February 10, 2006, the District issued a permission to evaluate form, and the parents consented on February 20. ( Id. ) An evaluation report ("ER") issued on June 5, 2006; incorporated input from Tyler's pre-school teacher, occupational therapist, and physical therapist, the parents, as well as observational data from Dr. Robert Broderick. (HOD ¶ 18; Klein Report 4.) In the interim, Foundations reviewed its treatment plan on May 9, 2006. The review noted that Tyler had been hospitalized at KidsPeace from May 3 to May 9, 2006. (Klein Report 3.)

The ER found Tyler eligible for special education and related services as a student with serious emotional disturbance. (Klein Report 4.) On June 8, 2006, the early intervention program held another IEP meeting. Tyler's early intervention regimen was left largely unaltered. ( Id. ) On August 14, 2006, a psychologist with Foundations evaluated Tyler. His report notes that Tyler exited the early intervention program some time in July and began attending a partial hospitalization program ("PHP") at Creative Health on July 31, 2006. ( Id. ). The report diagnosed Tyler with Asperger's syndrome. (HOD ¶ 22.)

An IEP meeting was held on August 14, 2006, to develop Tyler's kindergarten program and determine his placement. Prior to this, the District had applied to Centennial School-an approved private school ("APS")-as a possible placement for Tyler in kindergarten. (Klein Report 5.) At the meeting, an IEP was developed that provided for occupational therapy and physical therapy. (Admin. R. Ex. 18, at S-24.) The next day, the District issued a notice of recommended educational placement ("NOREP") indicating that Tyler would continue to attend the PHP on a "60 day interim" basis. (HOD ¶¶ 24-28; Admin. R. Ex. 18, at S-28) Tyler's first day of kindergarten would have been August 28, 2006. (Klein Report 5.)

In November 2006, the District initiated referrals to various private schools in order to place Tyler. On December 7, 2006, the school issued a letter to Tyler's parents recommending placement at Wordsworth Academy, another APS, and the parents approved. (HOD ¶ 39.) On February 12, 2007, in a meeting at Wordsworth, Tyler's mother expressed dissatisfaction with the program at Wordsworth and requested that Tyler be placed at Vanguard. ( Id. ¶ 45; Klein Report 6.) On March 7, 2007, physical therapy and occupational therapy evaluations were completed, and Tyler was found eligible for both. ( Id. ¶¶ 48-49; Klein Report 6.) Occupational therapy was set to begin at the MCIU on April 16, 2007. ( Id. ¶ 52.)

On May 30, 2007, an IEP team meeting was held and the District issued a NOREP that provided for extended school year ("ESY") services for the summer of 2007. ( Id. ¶ 55.) It recommended that Tyler continue with a full-time emotional support program at Wordsworth for ESY and for the 2007-2008 school year. (Klein Report 7; Admin. R. Ex. 18, at Exs. S-69, S-70; HOD at 17.)

On June 4, 2007, Wordsworth Academy informed the parents that it would no longer provide bus transportation for Tyler due to his violent behavior. In addition to spitting, hitting, shouting, kicking, and spreading feces on the bus, Tyler made statements to the effect that he would bring a gun on the bus and kill people. (HOD ¶ 57.) Based on this incident, Tyler underwent a psychiatric risk assessment at the MCIU on July 23, 2007. (Klein Report 7.) The psychiatrist diagnosed him with Asperger's Syndrome and Oppositional Defiant Disorder. (HOD ¶ 66.) In September 2007, plaintiffs moved to the Souderton School District; however, Tyler continued at Wordsworth for the fall of 2007. ( Id. ¶ 67; Klein Report 7.) He was eventually placed at Lower Gwynedd Elementary School and, subsequently, Fort Washington Elementary school for the 2009-2010 school year. (Klein Report 8.)

Plaintiffs filed a complaint with Pennsylvania's Office of Dispute Resolution ("ODR") on October 26, 2007, and requested a special education due process hearing on January 8, 2008. (Pls.' Br. Supp. Mot. J. Admin. R. ("Pls.' Br.") at 1; Admin. R. Ex. 17, P-4.) The complaint alleges that the District denied a FAPE to Tyler in contravention of the IDEA and Section 504, the attendant regulations, and provisions of the Pennsylvania Public School Code. Specifically, the plaintiffs alleged that the evaluation report that served as the basis of Tyler's kindergarten IEP was inadequate. (Admin. R. Ex. 17, P-4 at 1.) Second, his IEP was substantively defective in that it failed to provide appropriate research-based instruction in reading, writing, and math. ( Id. at 2.) Furthermore, Tyler did not receive "related services" as outlined in his IEP for most of the 2006-2007 school year. ( Id. ) Plaintiffs alleged Tyler's transportation to Wordsworth was inappropriate in that he was on the bus for approximately three hours a day. ( Id. ) Finally, plaintiffs contended that the placement at Wordsworth was not appropriate because it was not the "least restrictive environment" ("LRE") for Tyler's education, as required by the IDEA. ( Id. )

The hearing was held on eight separate dates spanning February to May 2008, and the hearing officer, Dr. David Bateman, rendered his written decision on June 27, 2008. As Dr. Bateman notes, the district conceded that it owed Tyler compensatory education for occupational and physical therapy that it failed to provide in accordance with his IEP for a portion of the 2006-2007 school year. Tyler did not receive occupational therapy for a period of seventeen weeks spanning from December 2006 to April 16, 2007, which amounted to 8.5 hours of instruction. He did not receive physical therapy from December 2006 to June 2007; he was entitled to thirty minutes a month, which amounted to 3.5 hours of compensatory education. Thus, the District conceded that it owed twelve hours of compensatory education. (HOD at 18.)

However, Dr. Bateman also found that the District was remiss in failing to ensure Tyler received occupational and physical therapy while he attended the PHP at Creative Health. Thus, he granted eight weeks' worth of occupational therapy and two months' worth of physical therapy (at the above rates) for an additional award of five hours compensatory education. ( Id. at 18-19.)

Dr. Bateman rejected the rest of plaintiffs' claims for compensatory education. He found that Tyler made notable progress at Wordsworth, and that the APS placement complied with LRE requirements because Tyler exhibited significant behavioral problems. ( Id. at 13-18.) He rejected plaintiffs' claim based on excessive transportation time. He noted that there was no firm limitation on transportation times, and there was no evidence that the lengthy bus ride denied Tyler a FAPE. ( Id. at 19.) He concluded that "[t]hroughout the testimony and evidence presented, the Parents were not able to demonstrate that Tyler did not receive a free appropriate education." ( Id. at 18.)

Plaintiffs appealed Dr. Bateman's decision to the Pennsylvania Special Education Appeals Panel. On August 7, 2008, the appeals panel largely affirmed the hearing officer's decision, but increased the grant of compensatory education by 7.5 hours, for a total of 24.5 hours. The appeals panel gave this additional award based on the District's failure to provide speech therapy and occupational therapy in accordance with the ...


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