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N.M. v. Central Bucks School District

United States District Court, E.D. Pennsylvania

January 16, 2014

N.M., BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, W.M. AND L.M., AND W.M. AND L.M., INDIVIDUALLY, Plaintiffs
v.
CENTRAL BUCKS SCHOOL DISTRICT, Defendant

Decided December 19, 2013.

Decided January 15, 2014.

Order Filed: December 20, 2013

For N.M., BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, W.M. AND L.M., W.M., L.M., INDIVIDUALLY, Plaintiffs: MICHAEL J. CONNOLLY, LEAD ATTORNEY, CONNOLLY, JACOBSON & JOHN LLP, DOYLESTOWN, PA; STEPHEN J. JACOBSON, CONNOLLY JACOBSON DEPIETRO & JOHN LLP, DOYLESTOWN, PA.

For CENTRAL BUCKS SCHOOL DISTRICT, Defendant: CHRISTINE M. O'BRIEN, SCOTT H. WOLPERT, TIMONEY KNOX LLP, FORT WASHINGTON, PA.

OPINION

Page 453

ORDER

NITZA I. QUIÑ ONES ALEJANDRO, J.

AND NOW, this 15th day of January 2014, upon consideration of the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski dated December 19, 2013 [ECF 20], and no objections filed thereto, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.
2. Plaintiffs' motion for judgment on the administrative record [ECF 10] is DENIED.
3. Defendant's motion for judgment on the administrative record [ECF 11] is GRANTED.

REPORT AND RECOMMENDATION

LYNNE A. SITARSKI, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Plaintiffs, W.M. and L.M. (collectively the " Parents" ), and their minor son N.M. (collectively " Plaintiffs" ) bring this action

Page 454

against the Central Bucks School District (the " District" ) alleging that the District failed to provide N.M. with a free appropriate public education (" FAPE" ) in violation 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" ). (ECF No. 1 (Compl.).) Plaintiffs and the District have filed cross-motions for judgment on the administrative record. (ECF No. 10 (Pls. Mot.); ECF No. 11 (Def's. Mot.).) On October 29, 2013, the Honorable Nitza I. Quiñones Alejandro referred these cross-motions to me for a Report and Recommendation. (ECF No. 19 (Order).)

For the reasons set forth herein, I RESPECTFULLY RECOMMEND that the Court DENY Plaintiffs' motion (ECF No. 10); and GRANT the District's motion (ECF No. 11).

II. BACKGROUND

A. Statutory Framework

In D.S. v. Bayonne Bd. of Educ., the United States Court of Appeals for the Third Circuit explained the IDEA's statutory framework:

The IDEA requires that states to receive [sic] federal education funding make available a [FAPE] to all children with disabilities residing within their borders. 20 U.S.C. § 1412(a)(1). In particular, the IDEA specifies that the education the states provide to these children " specially [be] designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 3042, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted). Although a state is not required to supply an education to a handicapped child that maximizes the child's potential, it must confer an education providing " significant learning" and " meaningful benefit" to the child. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). . . .

The IDEA contemplates that school districts will achieve these goals by designing and administering a program of individualized instruction for each special education student set forth in an Individualized Education Plan (" IEP" ). 20 U.S.C. § § 1412(a)(4), 1414(d). . . . " An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services." Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000) (citing 20 U.S.C. § 1401(a)(20)). A team consisting of the student's parents and teachers, a curriculum specialist from the local school district, and, if requested, a person with special knowledge or expertise regarding the student must develop an IEP. 20 U.S.C. § 1414(d)(1)(B). The IEP team will review the IEP at least annually to determine whether the stated goals for the student are being achieved. 20 U.S.C. § 1414(d)(4). When appropriate the team will revise the IEP to address, among other things, lack of progress, necessary changes arising from reevaluation of the child, and parental input. 20 U.S.C. § 1414(d)(4).

Though the IEP must provide the student with a " basic floor of opportunity," it need not necessarily provide " the optimal level of services" that parents might desire for their child. See Holmes, 205 F.3d at 590 (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34 (3d

Page 455

Cir. 1995)). Nevertheless, " at a minimum, '[t]he IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential.'" Chambers v. Philadelphia Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009) (quoting Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)). When a state is unable to provide a [FAPE] to a child but a private school can provide that education, the state must reimburse the child's parents for the private school costs. [ L.E. v. ]Ramsey Bd. of Educ., 435 F.3d [384,] 389-90 [(3d Cir. 2006)] (citing [ T.R. v. ]Kingwood Twp. Bd. of Educ., 205 F.3d [572,] 577 [(3d Cir. 2000)]).

If parents believe that an IEP fails to provide their child with a [FAPE], they may challenge the IEP in an administrative proceeding. 20 U.S.C. § 1415(b)(6). . . . At an administrative hearing challenging an IEP, the party seeking relief bears the burden of proof. Ramsey Bd. of Educ., 435 F.3d at 392 (citing Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 537, 163 L.Ed.2d 387 (2005)). A party to the due process hearing aggrieved by its outcome has the right to bring a civil action challenging the decision . . . in a federal district court, without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2).

602 F.3d 553, 556-58 (3d Cir. 2010) (third and fourth brackets in original).

The Third Circuit has also recognized that a school district must design an IEP to permit a student to make " meaningful educational progress." M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996) (finding that residential program was required for student to make meaningful educational progress where student " could no longer make adequate progress in a day setting" ). Other courts have clarified that: " An IEP confers a meaningful educational benefit when it is more than a trivial attempt at meeting the educational needs of the student, and it is designed to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social and emotional." Breanne C. v. Southern York Cnty. Sch. Dist., 732 F.Supp.2d 474, 483 (M.D. Pa. 2010) (citing M.C., 81 F.3d at 394).

B. Factual Background [1]

1. 2006 Initial Evaluation Report

According to a January 23, 2006 initial evaluation report (" IER" ) conducted when N.M. was in the fifth grade, N.M. has struggled academically since kindergarten. (ECF No. 1 at 37 (Admin. Decision) at 2-3; P-1 (IER) at 2).)[2] An August 12, 2010, Reevaluation Report describes N.M. " as a student with [a] specific learning disability, he also meets the eligibility classification for special education services as a student with an Other Health Impairment, as a result of his Post Traumatic Stress Disorder

Page 456

and Generalized Anxiety Disorder diagnoses." (P-21 (Reevaluation Report) at 17; see ECF No. 1 at 37.)

In the IER, the District found that his reading ability was instructional at a grade level of three and a half. (P-1 at 4, 9 (emphasis in original).) On a writing test, N.M. performed well below average. (P-1 at 9-10.)[3] The Behavioral Assessment System for Children Second Edition (" BASC-2" )[4] categorized N.M. as " Clinically Significant" for anxiety, depression and the overall " Internalizing Problems Composite." (ECF No. 1 at 37; P-1 at 10-11.) A behavior evaluation reported that: " In school, [N.M.] sometimes seems lonely, is often sad, and is often pessimistic and sometimes cries easily. Socially, he sometimes complains about being teased and has trouble making new friends." (ECF No. 1 at 37; P-1 at 11.) The IER stated:

Review of this assessment and BASC-2 data reveals a youngster with overt depressive and anxious symptomology that seems to be impacting his academic and social performance in the classroom. . . .

These anxious and depressive characteristics are clinically significant and warrant further consideration by the medical personnel currently treating [N.M.] for his anxiety and mood disorder. [N.M.] is a gentle, sensitive, and fragile youngman who could experience more success at school socially and academically given the increased interventions and modifications. [N.M.]'s academic program will include specially designed instruction to support him in reading and writing. These changes in his programming may slowly increase his confidence to approach and complete tasks independently. It will be necessary to continue ongoing home/school communication to obtain optimal information regarding [N.M.]'s emotional and medication status. Therefore, the school will be best prepared to plan accordingly if additional behavior interventions need to be implemented with [N.M.'s] educational programming.

. . . .

Additionally, social emotional functioning should be monitored closely as this is expected to improve with the implementation of specially designed instruction and as [N.M.] begins to feel more successful academically. His parents may wish to continue to pursue issues related to his social-emotional functioning, more specifically with a mental health professional.

(P-1 at 12-14.)

2. Sixth Grade (2007-08)

On March 6, 2008, when N.M. was in the sixth grade, an IEP team drafted an IEP (the " March 2008 IEP" ). (P-3 (IEP) at 3.) The March 2008 IEP reported:

[N.M.] has shown steady growth in the area of reading. When Comparing [sic] the qualitative [sic] Reading Inventory (QRI) scores from last year to this year [N.M.] has shown a minimum of a years [sic] growth in the areas of wod [sic] identification, fluency, accuracy, and passage comprehension. [N.M.] increased his wod [sic] list scores to a fifth grade instructional level from a fourth grade instructional level. [N.M.] was

Page 457

also able to increase his fluency from 86 word [sic] per minute on a fourth grade passage, to 80 words per minute on a sixth grade passage. [N.M.] was also able to read the sixth grade passage with 96% accuracy, showing an increase in word identification skills within context.

(P-3 at 5.)[5] With respect to writing, N.M. achieved basic scores at the rough draft stage, and, at the final draft stage, he improved to predominately proficient scores.[6] ( Id. at 7.) The March 2008 IEP established writing, reading, self-regulation and learning behaviors goals (P-3 at 11-15)[7], but it did not assess his emotional needs (ECF No. 1 at 38; see P-3 at 6-7).

N.M.'s mother stated that N.M. had always had issues making friends. (ECF No. 1 at 39; Hr'g Tr. at 57:22-23.) Yet, Luther Reed (" Reed" ), N.M.'s sixth grade special education teacher, stated that he was not personally aware of any bullying or inappropriate social interactions in school. (Hr'g Tr. at 1276:18-19; 1290:5-1291:19; 1364:16-1368:13, 1371:11-19.) However, Reed did speak with the Parents about an incident outside of school. (ECF No. 1 at 39; Hr'g Tr. at 1374:18-1375:4.) Reed characterized N.M.'s sixth grade experience as " very successful not only academically, but [N.M.] seemed to also enjoy the 6th grade year as well." (Hr'g Tr. at 1376:1-6.)

3. Seventh Grade (2008-09)

On September 10, 2008, N.M.'s IEP team prepared another IEP (the " Sep. 2008 IEP" ). (P-4 (IEP) at 1.) The Sep. 2008 IEP had almost all the same goals as the March 2008 IEP.[8] (ECF No. 1 at 39; P-4 at 11-14.)

During his seventh grade year, the school was aware of the following social issues:

o Before the seventh grade began, N.M.'s mother asked Kathryn Mallon (" Mallon" ), N.M.'s school counselor, to schedule N.M. away from two other students; and Mallon made such arrangements. (Hr'g Tr. 617:17-18; 619:10-12; 630:9-631:7.)

Page 458

o In late February and early March of 2009, N.M. was involved in two incidents with another student. (ECF No. 1 at 40-41.) N.M.'s mother reported the later incident to Mallon who rescheduled the other student's classes so that the other student shared only one class with N.M. (ECF No. 1 at 40-41; Hr'g Tr. at 639: 13-16; 642:7-9.) Kevin Marton (" Marton" ), the assistant principal, stated that the other student was also disciplined on each occasion. (Hr'g Tr. 493:17-18; 495:3-4; 504:16-505:7.)

o In May of 2009, N.M.'s mother contacted Mallon about another student from the neighborhood who had been bullying N.M., but N.M.'s mother declined Mallon's offer of assistance, wanting to deal with the issue herself. (Hr'g Tr. at 645:4-646:2.)

Neither Mallon nor Marton were aware of any other incidents during the remainder of the seventh grade. (ECF No. 1 at 41; Hr'g Tr. at 644:11-19.) N.M. had one special education teacher, Lisa Ring (" Ring" ), from September through January of 2009, and another, Nichole Taylor (" Taylor" ), from February to June of 2009. (Hr'g Tr. at 773:11-12, 784:3-10, 1460:6-10; 1467:5-17.) Ring did not observe any social problems between N.M. and any other students. (ECF No. 1 at 40; Hr'g Tr. at 1516:8-1517:10.) Taylor was familiar with, and communicated with N.M.'s mother regarding the incidents between N.M. and the student in February and March of 2009, but otherwise she was not aware of any other social problems. (ECF No. 1 at 41; P-39 (E-mail) at 1; Hr'g Tr. at 793:1-795:20.)

Progress reports show that with respect to fluency drills, N.M. was obtaining his goals (by reading at 97 words per minute on November 17, 2008, and 98 words per minute on January 30, 2009). (S-17 (Goal Progress) at 10.) In connection with his reading passage goal, N.M. was also reaching his goal (receiving comprehension scores of 75% on November 14, 2008, 100% on November 20, 2008, and 93% on January 30, 2009). (ECF No. 1 at 40; S-17 at 11-12.)

On March 4, 2009, N.M.'s IEP team developed an IEP (the " March 2009 IEP" ). (P-5 (IEP) at 3.) It described N.M's academic achievement, ...


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