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A.W. Ex Rel. H.W. v. Middletown Area School District

United States District Court, M.D. Pennsylvania

January 28, 2015

A.W., by and through his parents, H.W. and A.W., Plaintiffs
v.
MIDDLETOWN AREA SCHOOL DISTRICT, Defendant

MEMORANDUM

CHRISTOPHER C. CONNER, Chief District Judge.

Minor plaintiff A.W., by and through his parents H.W. and A.W. ("Parents"), filed the above-captioned action, alleging that defendant Middletown Area School District ("District") violated the Individuals with Disabilities Education Act ("IDEA"), as amended, 20 U.S.C. § 1400 et seq. ; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), as amended, 29 U.S.C. § 794; the Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. § 12101 et seq. ; and Chapters 14 and 15 of the Pennsylvania Code. Plaintiffs appeal the decision of Pennsylvania Special Education Hearing Officer William F. Culleton, Jr. ("Hearing Officer") that, notwithstanding an unnecessarily delayed evaluation process, the District provided A.W. a free appropriate public education during the period in dispute and that compensatory education was unwarranted. Plaintiffs seek, inter alia, a reversal of the Hearing Officer's decision with respect to the 2011-2012 school year and portion of the 2012-2013 school year, full days of compensatory education, and reasonable attorneys' fees and costs. Presently before the court are cross-motions (Docs. 19, 21) for judgment on the supplemented administrative record. After thoroughly reviewing the record, and for the reasons that follow, the court will deny the District's motion, grant in part and deny in part plaintiffs' motion, and remand this matter to the Hearing Officer to determine the compensatory education award to which plaintiffs are entitled.

I. Background

A. Factual Background[1]

A.W. is a seventeen-year-old student with emotional support needs who attended District schools for much of his primary and secondary education. Plaintiffs contend that the District denied A.W. a free appropriate public education ("FAPE") during the 2011-2012 school year and through February 26, 2013 of the 2012-2013 school year. The court finds it useful to explicate A.W.'s medical and educational history prior to and during the time period at issue.

1. Kindergarten through Seventh Grade

Between kindergarten and second grade, A.W. was frequently absent from school. Parents received numerous letters from the District regarding his absences. (P-1; P-2; P-3). During third grade, the District advised A.W.'s mother to have A.W. evaluated. (N.T. 41:19-25). In February 2007, Dr. Angela A. Gorman ("Dr. Gorman") of Penn State Milton S. Hershey Medical Center diagnosed A.W. with social phobia, separation anxiety disorder, and generalized anxiety disorder. (P-5 at 2-4). A.W. has received therapy for his anxieties since third grade. (N.T. 42:10-11).

In January 2008, A.W. was admitted to a psychiatric ward at Hershey Medical Center. (Id. at 54:11-16). A.W. sought treatment for his anxiety. (Id. at 54:17-57:16). A.W.'s mother informed the District of this development via email. (P-7 at 1). A.W. was homeschooled from April 2008 to June 2008 before returning to a District elementary school. (P-12 at 2).

In a May 2008 letter to the principal of the elementary school, Dr. Gorman reiterated A.W.'s diagnoses and stated that the District must assist in alleviating A.W.'s separation anxiety by, inter alia, rewarding A.W. for attendance, providing intermittent "coping breaks, " and minimizing A.W.'s stress in school. (P-5 at 4-5). Dr. Gorman emphasized that "[c]onsistency in following through with interventions, and collaborating with [A.W.] and his family in all school interventions is crucial to his treatment success." (Id. at 5).

In April 2008, the District issued a permission to evaluate ("PTE") for the purposes of identifying whether A.W. was eligible for special education and related services. (P-8 at 1). A.W.'s mother consented to the PTE. (P-8 at 2). In August 2008, the District implemented a service agreement pursuant to Section 504 and Chapter 15 of the Pennsylvania Code, which included certain accommodations that Dr. Gorman recommended. (P-9; N.T. 71:5-12). A.W.'s mother approved the service agreement. (P-9).

The District issued its evaluation report in September 2008. The report noted A.W.'s positive academic performance and concluded that he should not be classified as a child with an emotional disturbance under the IDEA and hence was not eligible for special education services. (P-12 at 9-10).[2] The report also found that A.W. did not require any specially designed instruction other than the supports offered in his service agreement. (Id.) The report acknowledged the importance of reassessing A.W.'s accommodations if he demonstrated a need for additional supports. (Id. at 10). A.W.'s mother agreed with this evaluation. (Id. at 11, 13-14).

The District's lengthy attendance records for A.W. between 2003 and 2008 indicate, inter alia, illnesses, medical appointments, family matters, late arrivals, and anxiety issues. (P-10). In November 2008, A.W. withdrew from the District and enrolled in the Pennsylvania Cyber Charter School ("PA Cyber"). (P-13). A.W. remained a student at PA Cyber through the end of the 2009-2010 school year. (N.T. 189:9-13). PA Cyber implemented a service agreement that provided A.W. certain accommodations for the Pennsylvania System of School Assessment. (Doc. 14-1, Ex. A).

A.W. returned to the District as a seventh-grade student for the 2010-2011 school year. A.W. desired increased socialization and felt ready to return to a physical classroom. (N.T. 78:25-79:11). Prior to his reenrollment, A.W.'s mother requested that Kevin Cook ("Cook), " principal of Middletown Area Middle School, review A.W.'s attendance records. (Id. at 81:2-8, 295:3-18). In the fall of 2010, A.W.'s mother informed Cook about A.W.'s anxiety. (Id. at 89:14-90:12, 294:24-295:2).

A.W. had difficulties in certain classes during seventh grade. He received failing grades in language arts/reading in the first two quarters of the year. (P-15). The District convened a meeting in the fall of 2010 to discuss A.W.'s performance or behavior in language arts. (N.T. 296:14-297:16). Notwithstanding a failing grade in social studies during the fourth quarter of that year, A.W. ultimately passed his seventh-grade courses and exhibited improvements in certain subjects during the final quarter. (S-2).

A.W. also struggled with anxiety during seventh grade. His anxiety increased during the flu season in January or February 2011 due to his fear of germs. (N.T. 84:3-15). A.W. would frequently cry before school and lock himself in the bathroom. (Id. at 89:14-90:4). A.W. was absent on forty-three days during the 2010-2011 school year, five of which were unexcused. (S-2) District attendance records do not reflect that any of A.W.'s absences in seventh grade were due to anxiety. (S-1 at 2-3). The District did not offer A.W. any special education support services during the 2010-2011 school year. (N.T. 90:13-20).

2. Eighth Grade (2011-2012)

As the Hearing Officer found, A.W.'s emotional health deteriorated in the beginning of eighth grade. (H.O.D. at 4 ¶ 19). A.W. became increasingly anxious not only about attending school and separating from his parents, but also about large group settings and "what ifs." (N.T. 97:19-98:6). A.W. also struggled with attendance and disciplinary issues during the early part of the year. He was absent on 24.5 days during the first quarter. (P-17).[3] And he received multiple out-of-school suspensions for defiance or disrespect. (P-19 at 1-4). On or around October 12, 2011, A.W.'s mother met with District personnel to discuss A.W.'s absenteeism, behavioral issues, and academic performance. (N.T. 106:16-107:14). A.W.'s first-quarter grades became available in November 2011; he failed four classes and received low passing grades in two others. (Id. at 104:19-24; P-17).

On November 1, 2011, A.W.'s mother called the District and spoke with the District's superintendent and Dr. Lori A. Suski ("Dr. Suski"), then assistant superintendent of the District. (N.T. 246:4-8). A.W.'s mother expressed frustration about the discipline that the District had imposed on A.W. and the District's intention to move him to a co-taught classroom. (Id. at 247:6-249:19). She referenced A.W.'s anxiety issues, noted that A.W. was seeing a therapist, and requested a Section 504 service agreement. (Id. at 246:20-247:20, 274:25-275:3). The District offered a psychiatric evaluation of A.W. during the call. (See id. at 250:19-251:9; 274:15-24).[4]

On November 4, 2011, the District offered A.W. a Section 504 service agreement. Among other accommodations, the service agreement afforded A.W. opportunities to take breaks from the classroom, make up schoolwork during the first two periods of the day, and receive additional time on tests and quizzes. (S-5 at 2). A.W.'s mother did not attend a scheduled meeting regarding this agreement but consented to the accommodations therein. (N.T. 417:6-10; S-5 at 2-3).

A.W.'s mother met with District personnel again on November 22, 2011 to discuss her son. She expressed that A.W. requested anger management therapy and noted that he saw a therapist once or twice per week. (P-25 at 10). She also informed the District that A.W. wished to attend the Dauphin County Technical School ("DCTS"). (Id.)[5] The District offered a psychiatric evaluation with Dr. Shawna A. Brent ("Dr. Brent"), which A.W.'s mother initially declined because A.W. was already receiving counseling and medication management services. (Id.; N.T. 448:12-23). The District revised A.W.'s service agreement on November 22, 2011 to add an accommodation for assistance in checking A.W.'s folder for missing assignments. (S-6 at 1). A.W.'s mother agreed to this revision. (Id. at 2-3). The District did not conduct an evaluation of A.W. before implementing the November 2011 service agreements. (N.T. 110:12-18). As the Hearing Officer found, implementation of the service agreements did not sufficiently alleviate A.W.'s anxiety. (H.O.D. at 5 ¶ 28). Indeed, A.W.'s school phobia and excessive absences continued unabated. (N.T. 130:3-131:9, 327:14-16).

On December 13, 2011, the District filed a criminal complaint against A.W. for violation of Pennsylvania's compulsory attendance laws. (P-18 at 5-6).[6] The District suspended the truancy proceedings in an effort to secure Parents' consent to a psychiatric evaluation of A.W. for the purposes of obtaining information about his medical condition. (N.T. 255:12-256:18; S-8 at 1).[7] During a January 18, 2012 telephone conversation with A.W.'s mother, Dr. Suski again proposed a psychiatric evaluation by Dr. Brent at District expense. (S-8 at 2). The District issued a PTE for a psychiatric evaluation that same day. (S-7). A.W.'s mother consented to the evaluation on January 24, 2012. (Id. at 2-3). She also requested an Individualized Education Program ("IEP") for her son around this time. (N.T. 135:21-136:2).

On February 6 and February 9, 2012, Dr. Brent conducted a psychiatric evaluation of A.W. Dr. Brent diagnosed A.W. with generalized anxiety disorder (provisional) and oppositional defiant disorder. (S-13 at 5). She concluded that A.W. should be identified as a student with an emotional disability under the IDEA and receive special education services in the form of itinerant emotional support. (Id.) Dr. Brent emphasized that it was in A.W.'s long-term interests to attend school each day and proposed a transition plan whereby A.W. would return to school on a half-time basis and increase his time in the school building each week. (Id. at 5-6). She also recommended that A.W. be allowed to take breaks from class and that he be subject to discipline for disruptive behavior. (Id. at 6). In the event that A.W. did not adhere to this plan, Dr. Brent believed that truancy charges would be appropriate. (Id.) In light of Dr. Brent's recommendations, A.W. began attending school for half days in the afternoons. (N.T. 149:10-151:19).

The District did not revise A.W.'s Section 504 plan or convene an IEP team meeting after receiving Dr. Brent's evaluation report. (See N.T. 472:6-474:14). It determined that Dr. Brent's report did not provide enough information to draft an IEP. (N.T. 450:5-19, 490:10-491:13). Absent from the evaluation was information from which the District could develop a positive behavior plan, craft IEP goals, or rule out a specific learning disability. (Id.) On February 22, 2012, the District issued a PTE for a comprehensive psychoeducational evaluation to determine "whether [A.W.] met the diagnostic criteria to qualify as a student in need of emotional support services." (S-12 at 4). A.W.'s mother consented to the second evaluation shortly thereafter. (Id. at 5).

In February 2012, the District informed Parents that A.W. was in jeopardy of failing several courses for the year. (P-17 at 3). A.W. also had numerous disciplinary incidents in January and February 2012. (P-19 at 5-9). On March 29, 2012, Parents withdrew A.W. from the middle school and enrolled him in Raider Academy, a District-operated online program. (S-18). The District cannot prevent students from enrolling in Raider Academy. (N.T. 257:19-23). A.W.'s mother decided to change A.W.'s placement to the online program because he was not making sufficient emotional or educational progress at the middle school. (Id. at 156:16-158:17, 161:25-162:2). A.W. had few if any interactions with peers or teachers at Raider Academy. (Id. at 163:17-164:8). A.W. finished the 2011-2012 school year at Raider Academy and performed well academically. (Id. at 164:16-18; S-15 at 1). He had no participation or attendance issues in the program. (N.T. 373:14-374:5). The District did not implement a Section 504 plan while A.W. attended Raider Academy. (Id. at 163:13-16).

The District scheduled a comprehensive evaluation for April 26, 2012 with school psychologist Bethany Fratus ("Fratus"). (S-16 at 1). A.W. refused to attend the evaluation because he did not feel comfortable in the school setting. (S-17 at 1; N.T. 148:8-149:2). Fratus offered to reschedule the evaluation and provide various testing accommodations. (Id.) A.W. did not attend the rescheduled testing session on May 7, 2012. (P-25 at 31). Parents filed a due process complaint in early May 2012. (See S-16 at 6). At some point thereafter, the parties agreed to an independent evaluation by Dr. Lee Ann Grisolano ("Dr. Grisolano") (N.T. 452:22-453:4), and the May due process complaint was withdrawn.

3. Ninth Grade (2012-2013)

A.W. remained at Raider Academy at the start of his ninth-grade year. On August 29 and September 5, 2012, Dr. Grisolano evaluated A.W. (S-20 at 1). In a thorough report, Dr. Grisolano diagnosed A.W. with anxiety disorder and depressive disorder and agreed with Dr. Brent that A.W. should be classified as a student with an emotional disability due to his anxiety disorder. (Id. at 14, 16). Dr. Grisolano also found that A.W. does not have a learning disorder but reasoned that he may have a language processing disorder and advised the District to rule out such a disorder. (Id. at 11, 14). She noted that school-based interventions to alleviate A.W.'s anxieties had proved unsuccessful and that A.W. had developed avoidance strategies to cope with anxiety-provoking situations. (Id. at 10, 13). Over time, A.W. came to apply these same strategies to escape other ...


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