United States District Court, Western District of Pennsylvania
S.P., A MINOR, BY HIS PARENTS; J.A.P.; J.L.P., AND ON THEIR OWN BEHALF, Plaintiffs,
FAIRVIEW SCHOOL DISTRICT, Defendant. Re: ECF No. 23
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
This is a civil rights action arising out of alleged disability-based discrimination by the Fairview School District against a former high school student who suffered refractory migraine headaches preventing his regular attendance at school. Plaintiffs, S.P., through and with his parents, J.A.P. and J.L.P., ("S.P." and "Parents, " respectively, or "Plaintiffs" collectively) allege that Defendant Fairview School District (the "School District") failed to provide a Free Appropriate Public Education ("FAPE") and discriminated against S.P. in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ("Section 504"), the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq ("IDEA"), and Title 15 of the Pennsylvania Code. Plaintiffs seek declaratory and equitable relief, including an award of compensatory education services. (ECF No. 1, ¶4).
Pending before the Court is Plaintiffs' Motion for Summary Judgment (ECF No. 23), seeking the entry of judgment in their favor on their claim that the School District violated S.P.'s "Section 504 right to an education with his non-disabled peers to the maximum extent appropriate to his needs." For the following reasons, Plaintiffs' Motion for Summary Judgment (ECF No. 23) is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
S.P. is now nineteen years old. During all times relevant to this action, he has resided with his parents and older sister in the School District. The record reflects that as a result of migraine headaches, S.P. was absent from school and/or failed to comply with cyber-school requirements for nearly his entire high school academic career. Plaintiffs claim that the School District discriminated against S.P. because of his physical and mental health disabilities, and therefore failed to correctly identify him as disabled pursuant to the IDEA. In addition, Plaintiffs allege that the School District failed to make necessary accommodations to permit S.P. to attend school with his peers, in the least restrictive environment. To remedy these alleged violations, Plaintiffs seek an award of compensatory education services.
The School District contends that S.P. does not qualify as a student with a disability under the terms of the IDEA because evaluations conducted in 2004 and 2008 confirm that he does not suffer cognitive or emotional impairments requiring specially designed instruction. Further, to the extent S.P. may meet the broader definition of disabled under Section 504 because of his incapacitating migraine headaches, the School District argues that it has provided all necessary accommodations with and without a formal Section 504 plan in place. Therefore, the School District contends that Plaintiffs have not established a violation of S.P.'s rights so as to entitle him to an award of compensatory education or any other requested relief.
The factual background of this action is derived from the undisputed evidence of record and the disputed evidence, viewed in the light most favorable to the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor").Record evidence includes pertinent school records as well as extensive testimony before an impartial Pennsylvania Special Education Hearing Officer, conducted in four sessions over the course of five months during the summer and fall of 2012.
B. Pre-2009 Medical and Educational History
The record reflects that S.P. began suffering frequent refractory migraines at age 4 or 5. (Tr. 334). S.P.'s migraines typically last between 12 and 16 hours and require that he remain in a dark room away from noise. The precise cause for S.P.'s migraines has not been identified, but his father believes that S.P.'s triggers include changes in weather, lack of sleep, too much sleep, anxiety, and certain foods. Id.s The School District does not challenge the documented diagnosis of S.P.'s medical condition.
Correspondence provided to the School District from treating physicians and specialists explains that S.P.'s incapacitating migraines require his frequent and legitimate absence from school. (ECF Nos. 28-7 - 28-11). As a result of his migraines, S.P. suffered a significant and increasing rate of absence in his primary school years, as follows:
Kindergarten 39.5 absences
First grade 59.5 absences, 31 tardies
Second grade 40.5 absences, 29 tardies
Third grade 52.5 absences, 10 tardies
Fourth grade 55 absences, 14 tardies
Fifth grade 57 absences, 8 tardies
Sixth grade 101 absences, 2 tardies
The Parents often failed to provide written excuses for S.P.'s frequent absences, as required by Pennsylvania law. This led to the initiation of truancy-related judicial actions to confirm the underlying reasons for S.P.'s lack of attendance. In conjunction with resolving the truancy hearings, the parties entered into at least two Section 504 Service Agreements. The terms of a 2004 Service Agreement required the Parents to obtain medical excuses for S.P.'s absences for purposes of documenting compliance with Pennsylvania school attendance laws. (P-1). As part of the 2004 Service Agreement, the School District agreed to provide learning support during and after school on the days that S.P. was well enough to attend, so that he could receive instruction on missed material. These sessions were scheduled in the school resource room during non-core academic classes, ensuring he would not miss instruction in math, reading or science on the days he was well enough to attend school. (P-l).
At the Parents' request, S.P. was evaluated for the School District's gifted program during his fourth grade year. S.P. scored in the superior range intellectually and in the above-average to superior range academically, with a scaled I.Q. score of 120. These tests confirmed that S.P.'s migraines did not affect his learning capacity or cognitive abilities, and further confirmed that S.P. did not require a specially designed curriculum. (Tr. 710).
By sixth grade, S.P.'s 2008 504 Service Agreement incorporated in-home cyber education classes in Science, Social Studies and English. (P-l, pp. 5-6). S.P. was required to attend school only in the afternoon, just for Reading and Math classes, and only for 70% of school days. If S.P. was absent, the Service Agreement provided that missed assignments were to be sent to the office for the Parents to pick up each afternoon. (P-l). Unfortunately, S.P. did not meet these reduced attendance and schoolwork completion goals.
C. 2009 Settlement Agreement and Evaluation
S.P. continued to frequently miss school and failed to comply with the abbreviated cyber program established for the first half of seventh grade. In January 2009, after the initiation of another truancy-related action, the parties entered into a Settlement Agreement, resolving all then-existing truancy issues, as well as federal and state claims arising out of S.P.'s "evaluation, identification, educational programming and/or educational placement." (P-10, S-8).
In accordance with the agreement, S.P. was to attend a partial hospitalization school-day program at Sarah Reed Children's Center ("Sarah Reed"), for a minimum of nine hours per week, in three-hour blocks of time. S.P. was permitted to start the school day by 11:00 a.m. on days he woke feeling ill. S.P. was also required to attend school at least once a month on a day that the Program's psychiatrist was available, so that he would receive appropriate psychological support. Sarah Reed was to provide S.P. a private area to rest as he felt necessary, and the Parents agreed to provide a written excuse signed by themselves or by a medical doctor whenever S.P. was absent. In the event S.P. was unable to meet the minimum attendance requirements, the School District and Parents agreed to reconvene to discuss other appropriate educational options for S.P., including residential treatment at Sarah Reed or full time in-home cyber school services. Finally, the School District agreed to provide cyber school services to permit S.P. to access academic curriculum at home, with the goal of completing and passing each required seventh grade course prior to the start of eighth grade in the fall of 2009. (P-10, S-8).
In compliance with the 2009 Settlement Agreement, S.P. began attending Sarah Reed's partial hospitalization program. The Parents were immediately dissatisfied with the program, and S.P. attended only eight days; some days staying for just one hour. (Tr. 712, P-6). According to the father, during the orientation tour, the Parents were shown a restraint system and padded "lock up room" for children who misbehave. (Tr. 335-337). While there is no evidence S.P. misbehaved or was ever restrained or placed in a "lock up room, " the father stated his son had difficulty attending because he did not want to be in the program. (Id.) In addition, S.P. had difficulty with "the environment" at Sarah Reed. (Tr. 332). At this point, the Parents opted for in-home cyber school, and it appears that for the remainder of seventh and eighth grade, S.P. did well.
In the months leading up to the 2009 Settlement Agreement, the School District performed an evaluation to determine whether S.P. was eligible to qualify as a disabled student under IDEA'S rubric of "Emotional Disturbance". Qualifying as disabled would have required the development of a specially designed curriculum memorialized with an Individual Education Plan ("IEP"). (Tr. 712-735). Kim Heberle, a certified school psychologist employed by the School District, compiled the components of the evaluation. (Tr. 703-710).
Heberle's evaluation was hampered by the repeated refusal of the Parents to provide input regarding S.P.'s behavior at home. According to the father, the family's attorney advised them not to complete a behavioral assessment for the evaluation process. (Tr. 345, 438-439). Heberle was unable to personally observe or interview S.P. for the evaluation because he did not attend school as scheduled, and she does not conduct in-home observations. (Tr. 743-744). In addition, Sarah Reed teaching personnel were unable and unwilling to evaluate S.P., because he attended the program for eight days and was not in school long enough to gather sufficient information to complete an assessment. (Tr. 749). Heberle did not seek evaluations from his sixth grade teachers because S.P. was out of school for much of the year. However, Heberle reviewed his academic records and determined that on those days he was able to attend school, S.P. never presented a behavioral concern or psychological issue that impaired his ability to learn. Heberle also confirmed that correspondence provided to the School District by the Parents and S.P.'s doctors indicated that S.P.'s inability to attend school was solely the result of a medical issue caused by migraine headaches. (Tr. 717-723).
Heberle reviewed the psychiatric evaluation completed at Sarah Reed in conjunction with S.P.'s admission to the partial hospitalization program. (Tr. 710-786). This psychiatric evaluation, completed in the fall of seventh grade, indicates that S.P. has some psychological issues with stress and depression, but none severe enough to result in a disability for emotional disturbance. (P-4) The evaluation concludes that S.P.'s emotional issues do not affect his ability to learn or to take advantage of educational opportunities. As of the day of his exam on November 10, 2008, S.P. had accumulated 22 unexcused absences for the school year. During the exam, S.P. stated he was suffering a migraine. However, the psychiatrist noted that S.P. was not in distress, laughed, joked, "made good eye contact and appeared to be having an overall good time." (P-4, p. 1). S.P. reported that he believed he was bipolar, based upon research he conducted on the internet, but that he was not having symptoms of major depression. While sad at times, S.P. reported some happy times. The examining psychiatrist noted that S.P.'s anxiety, stemming from being worried or nervous about school, did not approach the level of panic disorder. S.P. revealed that he was doing well in the partial hospitalization program and worried less. He reported that he had no significant behavioral issues at school and was not participating in any outpatient psychological counseling. S.P. reported he had friends at school and at home. S.P. also indicated he had never received emotional or learning support services at school.
The Sarah Reed psychiatric exam revealed no evidence of abnormal mood or behavior, and S.P.'s judgment and insight "appeared to be fine." The psychiatrist found that S.P. was not suffering from Major Depression, but had mood variability. Medication for anxiety and depression did not significantly improve his condition but no changes would be recommended in the absence of meeting with family. The evaluation resulted in a diagnosis of non-specified mood disorder, and an adjustment disorder with mixed anxiety and depression, as well as a recommendation that S.P.'s emotional issues be treated with Family Based Mental Health Services and participation in a program to build better coping skills to support school attendance. (P-4).
Heberle also reviewed a behavioral assessment completed by a School District-provided in-home math tutor, who worked with S.P. in November 2008 through January 2009. (P-6). During the months of November, December and January, there were thirteen in-home tutoring sessions, although another fifteen sessions were cancelled due to S.P.'s migraine headaches. The tutor indicated that during the sessions, S.P. was cooperative and worked hard. He did have some difficulty with number operations, likely due to not regularly attending school and failing to use mathematical operations on a consistent basis. However, S.P. "appeared to grasp most concepts with little difficulty when they were retaught." (P-6, p. 3) The tutor assigned scaled scores for the following categories: learning problems, interpersonal relationships, inappropriate behavior, unhappiness/depression and physical systems/fears. All of S.P.'s scores were well within the average range of most students in the standardized population, and he was "not rated to be in the serious level of any of the behavior problems." (P-6, p. 6).
In terms of academic progress, Heberle noted that in February 18, 2009, S.P. was enrolled in cyber classes for all course work, but as of March 10, 2009, he had only spent a total of eleven hours and seventeen minutes online. The School District sent a letter to the Parents expressing concern as to S.P.'s minimal progress.
Based upon the available information, Heberle determined that S.P. is an intelligent young man, with no significant behavioral issues, but who suffers "low motivation." (P-6, p.7). Accordingly, S.P. did not meet the criteria to satisfy "the federal definition of emotional disturbance" and so was neither disabled nor eligible for special education pursuant to the IDEA. (Id.) In addition, Heberle found that S.P. did not meet the criteria for a disability requiring special education under the category "other health impairment." This conclusion was based upon her determination that while S.P.'s migraines constitute a health issue, they do not affect cognitive skills necessitating adaptation of the normal curriculum. ...