ADA Decisions Archive: 1992 - 1995, DISABILITIES-DECISIONS 2 ADD ¶2-023, Brad J. et al., Plaintiffs v. Commonwealth of Pennsylvania et al., Defendants., (May 08, 1995), (May 8, 1995)

Brad J. et al., Plaintiffs v. Commonwealth of Pennsylvania et al., Defendants.

U.S. District Court for the Eastern District of Pennsylvania. No. 94-6669, May 8, 1995

Individuals with Disabilities Education Act

Pennsylvania Public School Code

Public accommodations/services--Court procedure--Jurisdiction. Lower court lacked supplemental jurisdiction to consider whether school district violated state law by its failure to place child with learning disability in gifted education program upon commencement of third grade. No sufficient nexus established between events surrounding child’s education from time in first grade and time in high school. Further, IDEA provided sole remedy for state law claims alleging district’s failure to provide appropriate special education.

Public accommodations/services--Educational services/goods--Free appropriate public education. Parents of child with learning disability entitled to reimbursement of expenses incurred in providing temporary home academic instruction during pendancy of administrative public placement review. No requirement that such instruction be mandated by IEP where necessitated by emotional problems, instituted on doctor’s recommendation and meaningful benefit would not have been derived by child’s attendance at public school.

Cahn, C.J.: Plaintiff Brad J. (“Brad”), by his parents Charles J. (“Mr. J.”) and Sylvia J. (“Mrs. J.”) (collectively, “plaintiffs”), brought this action against the Bethlehem Area School District (the “District” or “defendant”) and the Commonwealth of Pennsylvania Department of Education [1] pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq. [2] Plaintiffs allege that Brad is an “exceptional” child with a learning disability who was denied a free, appropriate education while enrolled in the District.

Currently before the court are defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and motion in limine to preclude supplementation of the administrative record, and plaintiffs’ motion for a preliminary injunction. The parties have reached an agreement regarding Brad’s prospective educational placement for the remainder of the 1994-95 school year and for the 1995-96 school year, and have filed a stipulation which embodies their agreement. The court will now address the sundry issues which remain.

I. BACKGROUND [3]

During the summer of 1985, Brad J. was referred for a child study evaluation after he had repeated first grade and continued to have difficulties in certain areas. A psychologist evaluated Brad and recommended screening by a learning disabilities specialist in order to ascertain Brad’s needs. R. 619. [4] An appointment with the district learning disabilities specialist was scheduled for August. However, Brad did not attend the appointment and no further action was taken with respect to his possible learning disability until he was in seventh grade.

In November 1990, while Brad was enrolled in the seventh grade at Northeast Middle School, he came to school with what appeared to be razor cuts on his wrists. Brad was referred to the District’s Child Study Center on an emergency basis. The school psychologist who completed the referral observed that the concerns about Brad which were expressed in the 1985 psychological evaluation were “absolutely” still present. [5]

In April 1991, a Multi Disciplinary Team (“MDT”) evaluated Brad and prepared a Multi Disciplinary Evaluation (“MDE”). The MDT described Brad as having both academic and emotional problems. The MDT noted that Brad was overly “self-absorbed in his perceived academic and social inadequacies.” R. 647. The MDT identified Brad as a student with a specific learning disability and recommended itinerant learning support. Id. The MDE stated that “[t]he parents need to understand that Brad does have emotional needs distinct from his learning disability and that these are at a level necessitating private psychotherapy apart from guidance counselor involvement.” Id.

In May 1991, the District issued a Notice of Recommended Assignment (“NORA”) recommending that Brad be placed in itinerant learning support for his eighth grade school year. On June 6, 1991, Brad’s parents attended an individualized education placement (“IEP”) meeting with various district representatives. An IEP plan was developed for Brad’s eighth grade school year specifying that he would participate in the regular education program 96% of the time and would receive 4% itinerant learning support.

Brad’s performance in school improved markedly during the 1991-92 school year. Mr. J. testified that Brad’s confidence improved considerably with the help of the special education teacher who was assigned to him. He played football and received B’s and C’s in school. Mr. J. stated that he and Mrs. J. felt that the school was meeting Brad’s needs at that time and that they were satisfied with Brad’s progress.

A NORA issued on June 1, 1992 specified that Brad’s itinerant support would continue when he entered ninth grade at Liberty High School (“Liberty”) in the fall of 1992. The IEP developed for Brad’s ninth grade year at Liberty provided that he would receive 11% itinerant learning support and would be integrated with non-exceptional peers 89% of the time. This was essentially the same program Brad had completed in eighth grade, except that the ninth grade IEP doubled the amount of support which he was to receive. However, the IEP was never implemented at Liberty.

Brad experienced academic difficulties from the outset of the 1992-93 school year. Liberty provided no learning support whatsoever and Brad’s teachers appeared to be unaware that an IEP had been established for Brad. Brad asked for help repeatedly, but his guidance counselor told him that it was too late in the school year to change his schedule.

In May 1993, a Two Year Multidisciplinary Re-evaluation Report (the “Report”) was prepared regarding Brad. R. 665. The Report stated that Brad’s education level for the 1992-93 school year had included 11% itinerant learning support. Joan Irvine, the teacher who prepared the report had never met Brad. R. 27. She based her assertion that Brad was receiving learning support on the IEP. R. 28. The Report described Brad as “[l]azy, unproductive, possible mental health issues.” R. 665. Ms. Irvine’s testimony with respect to this description of Brad was as follows:

I wrote that statement based on information that I had received from his guidance counselor. His guidance counselor at the time had been in contact constantly with Brad’s other teachers. His guidance counselor at the time conveyed to me that these were comments that were made regarding Brad’s functioning within their classrooms.

R. 27. As noted above, Brad’s teachers apparently had no knowledge that he was learning disabled or that an IEP had been established for Brad.

Brad attempted suicide by taking an overdose of his father’s heart medication in May 1993. He returned to school after a brief hospitalization, but had trouble coping and did not attend classes regularly. The District offered no special education services to Brad when he returned to school. Brad’s parents removed him from school and requested that the District place him on homebound instruction. The District initiated a request for homebound instruction, but apparently never followed through. Brad ultimately failed six of his ten ninth grade classes, and lost credit for three others because of attendance. Consequently, Brad failed ninth grade. Representatives of the District have acknowledged that Brad’s failing grades may have been attributable to Liberty’s failure to implement his IEP. R. 94-95, 130-31.

The District placed Brad on homebound instruction during the 1993-94 school year. The homebound instruction was not the result of an IEP. Instead, the referral was made upon the recommendation of psychologists who were treating Brad for anxiety and depression. No IEP was proposed for Brad for the 1993-94 school year until March 1994. Brad’s parents did not approve the proposed IEP and instead requested a due process hearing.

A hearing commenced May 27, 1994 before a Pennsylvania Special Education Hearing Officer (“hearing officer”). In a decision issued August 8, 1994, the hearing officer found that the District had denied Brad an appropriate educational program during the 1992-93 school year, and had not offered adequate compensatory education services. The hearing officer further determined that Brad’s parents’ hostility toward the District necessitated placement outside of the District for the 1994-95 school year. He therefore ordered that Brad be placed in an approved private school or, if the parties agreed to it, in a public school outside the District. Finally, the hearing officer found that an IEP which was developed in July 1994 (R. 769) would be appropriate and ordered that it be implemented with the additional component of biweekly psychotherapy as a related service.

Both parties filed exceptions to the hearing officer’s decision. On October 1, 1994, the Special Education Due Process Appeals Panel (“appeals panel”) largely affirmed the hearing officer’s decision. However, the appeals panel held that the hearing officer erred in ordering Brad’s placement in private school, reasoning that an appropriate program could be accomplished in a less restrictive setting. The appeals panel ordered that Brad be placed in a regular education program outside the District, and directed the District to complete the arrangements for Brad’s placement within one month of the order. The appeals panel further ordered the District to provide 480 hours of compensatory education.

Throughout the administrative proceedings, the District maintained that Liberty High School would be an appropriate placement for Brad. The District also asserted that, according to the “stay put” provisions of the IDEA, Brad should be attending Liberty High School pending the outcome of the administrative hearing and subsequent appeals. Brad did not, however, attend Liberty or any other school in the beginning of the 1994-95 school year. Instead, his parents engaged Ruth Kapo, the homebound instructor whom the school had provided during the 1993-94 school year, to teach Brad at home.

On October 28, 1994, the District proposed Saucon Valley High School as a placement for Brad for the remainder of the 1994-95 school year. [6] Upon learning of the District’s proposal, Brad set out to visit Saucon Valley High School. He drove by the school with a friend, and saw some students on the grounds whom he associated with conflicts he had at Liberty High School. Brad testified that seeing these students caused him to feel so much anxiety about Saucon Valley High School that he did not feel he could function there. His parents rejected Saucon Valley High School as a placement for Brad.

Brad’s parents filed this civil action on November 3, 1994, alleging a violation of the IDEA. They also alleged that the District violated the Civil Rights Act, 42 U.S.C. §1983, and the Pennsylvania Public School Code by failing to provide Brad with an appropriate eduction. Plaintiffs alleged additional violations of the Pennsylvania Public School Code arising from the District’s alleged failure to provide Brad with gifted education beginning in the third grade.

The District moved to dismiss plaintiffs’ state law claims. Plaintiffs filed a motion for a preliminary injunction to compel the District to provide a pendent placement for Brad and to correct his ninth grade records.

This court held a hearing on plaintiffs’ motion for a preliminary injunction. The parties have been able to work out Brad’s prospective placement amicably, but several issues remain.

II. DISCUSSION

A. Statutory Framework

The purpose of the IDEA is to “assure that all handicapped children have available to them . . . a free appropriate public education . . . .” 20 U.S.C. §1400(c). The IEP is the “modus operandi” of the IDEA. School Committee of Burlington v. Department of Educ., 471 U.S. 359, 368, 105 S. Ct. 1996, 2001, 85 L. Ed. 2d 385, 394 (1985). The IEP, which is developed jointly by parents and school officials, must include a statement of the services to be provided to the student, an assessment of the student’s current educational level, and the annual goals set for the student. 20 U.S.C. §1401(a)(20).

Pennsylvania has developed a two-tiered system of administrative review of the IEP. See 22 Pa. Cons. Stat. Ann. §14.64. Under this system, parents who object to a proposed IEP may request a due process hearing before a hearing officer. 22 Pa. Cons. Stat. Ann. §14.64(a). A party aggrieved by the hearing officer’s decision may appeal to the appeals panel. 22 Pa. Cons. Stat. Ann. §14.64(m).

Any party aggrieved by a final administrative resolution may initiate a civil action under the IDEA in either an appropriate state court or federal district court. 20 U.S.C. §1415(e)(2). “[T]he court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court deems appropriate.” Id.

This court essentially sits as an appellate court, “although its duty is to evaluate all evidence independently and not to merely affirm or reverse” the decision of the appeals panel. Valerie J. v. Derry Coop. School Dist., 771 F.Supp 483, 488, order clarified, 771 F.Supp 492 (D.N.H. 1991). “In explicitly providing in §1415(e)(2) that any aggrieved party has a right to bring a civil action . . . Congress clearly contemplated more than the customary appeal from an administrative decision.” Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 450 (3d Cir. 1981), cert. denied sub nom, Scanlon v. Tokarcik, 458 U.S. 1121, 102 S. Ct. 3508, 73 L. Ed. 2d 1383 (1982). The reviewing court must, however, give “due weight” to the administrative decision. Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). See also Colin K. v. Schmidt, 715 F.2d 1, 5 (1st Cir. 1983). (district court’s role is to provide “something short of de novo review.”)

B. Defendant’s Motion to Dismiss

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1111 (3d Cir. 1987); see also Brown v. Hammond, 810 F. Supp. 644, 645 (E.D. Pa. 1993). When considering a Rule 12(b)(6) motion, the court must “accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). A court should not dismiss an action unless it clearly appears that the plaintiff can prove no set of facts which would entitle him or her to relief. See Brown, 810 F. Supp. at 646. Dismissal is warranted when the facts pled and the reasonable inferences drawn therefrom are legally insufficient to support the relief sought. Id.

The District has moved to dismiss several of plaintiffs’ claims. [7] The court will address the claims seriatim.

1. Pennsylvania Public School Code - Gifted Education

During the administrative hearing, it came to light that an IQ test administered to Brad in the first grade had been scored incorrectly. Brad’s Full Scale IQ as measured by the test was 133; the school psychologist who scored the test erroneously scored Brad at 123. For purposes of defendant’s motion to dismiss, the court will take as true plaintiffs’ allegation that students with a measured Full Scale IQ of 130 or higher are considered exceptional children entitled to gifted education.

The IDEA contains no provision protecting the educational rights of gifted students. Plaintiffs concede that their claim stemming from the District’s alleged failure to provide Brad with gifted education does not raise a federal question. Instead, plaintiffs urge the court to exercise supplemental jurisdiction pursuant to 28 U.S.C. §1367. This court may exercise supplemental jurisdiction over state law claims which “form part of the same case or controversy” as the federal claims over which the court has original jurisdiction. 28 U.S.C. §1367.

Section 1367 codifies the jurisdictional standard established in United Mine Workers v. Gibbs, [53 LC ¶11,135] 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). See Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991). For a district court to consider exercising supplemental jurisdiction over state law claims, “[t]he federal claim must have substance sufficient to confer subject matter jurisdiction on the court.” Gibbs, 383 U.S. at 725, 86 S. Ct. at 1138, 16 L. Ed. 2d at 227. Plaintiffs’ IDEA claim indisputably satisfies this first requirement. There are two further requirements that must be met before federal courts may exercise supplemental jurisdiction to hear state law claims:

[1] The state and federal claims must derive from a common nucleus of operative fact. [2] But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, . . . there is power in federal courts to hear the whole.

Gibbs, 383 U.S. at 725, 86 S. Ct. at 1138, 16 L. Ed. 2d at 228 (emphasis in original). State claims must satisfy both the “nexus” and the “one proceeding” requirement before a district court may exercise supplemental jurisdiction. Lyon v. Whisman, No.CIV.A. 94-7190, 94-7283, 1995 WL 23671 at *2 (3d Cir. Jan. 19, 1995).

In Lyon, the plaintiff brought suit in federal court, alleging that her former employer violated the Fair Labor Standards Act, 29 U.S.C. §207(a), by failing to pay overtime wages. She also alleged violations of Delaware contract and tort law arising from a dispute over a bonus that the defendant had allegedly promised to pay her. Id. at *1. The Court of Appeals for the Third Circuit held that the district court did not have the power to hear the state law claims under §1367. Id. at *4. The court pointed out that the only link between the FLSA claims and the state law claims was “the general employer-employee relationship between the parties.” Id. The court found that the meager overlap between the evidence relevant to the FLSA and the state law claims failed to create a common nucleus of operative fact, and thus deprived the district court of jurisdiction over the state law claims. Id. at *6.

Plaintiff’s “gifted education” claim fails to satisfy the test for supplemental jurisdiction. Plaintiffs argue that the gifted claim and the IDEA claim arise from a common nucleus of operative fact, namely, all events surrounding Brad’s education. However, the IDEA claim involves very narrow factual issues about the District’s conduct while Brad was a student at Liberty High School. The gifted education claim involves only the erroneous scoring of a test which was administered while Brad was in first grade. The factual nexus alleged in this case is even looser than that alleged in Lyon. Therefore, the court is constrained to hold that it has no power to hear the gifted education claim. [8] Accordingly, the District’s motion to dismiss plaintiffs’ claim regarding gifted education will be granted.

2. Pennsylvania Public School Code - Special Education

Plaintiffs assert a claim under the Pennsylvania Public School Code stemming from the District’s failure to provide Brad with an appropriate special education, the same claim which is subject to the protection afforded by the IDEA. That the IDEA provides the sole remedy for a child denied an appropriate education is settled law. No pendent state law claim is available in the IDEA context. David D. v. Dartmouth School Committee, 775 F.2d 411, 422 (1st Cir. 1985), cert. denied sub nom, Massachusetts Dep’t of Educ. v. David D., 475 U.S. 1140, 106 S. Ct. 1790, 90 L. Ed. 2d 336 (1986). See also Frith v. Galeton Area School Dist., No. 92-1877, slip op. at 26-27 (M.D.Pa. April 23, 1994). Plaintiffs appear to concede this point in their response to the District’s motion for dismissal.

For the reasons stated above, the court will grant defendant’s motion to dismiss all of plaintiffs’ state law claims.

C. Defendant’s Motion in Limine

The District has filed a motion in limine to preclude supplementation of the administrative record. Given the court’s duty to reach an independent decision, “there would be little purpose served by freezing the evidence at the moment in time when the final state administrative decision was rendered.” Anderson v. Thompson, 495 F.Supp 1256, 1261 (E.D. Wis. 1980), aff’d, 658 F.2d 1205 (7th Cir. 1981). The IDEA specifically contemplates supplementation of the administrative record at trial. To the extent possible, evidence adduced at trial should not duplicate that which was presented, or could have been presented, at the administrative hearing. The court should, of course, use its discretion and “must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.” Burlington v. Department of Educ., 736 F.2d 773 (1st Cir. 1984), aff’d sub nom, School Committee of Burlington v. Department of Educ., 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).

The court has heard testimony from several witnesses who testified at the administrative hearing. However, these witnesses testified primarily about events related to the school’s attempts to implement the appeals panel decision. Obviously, the witnesses could not have testified to these facts during the administrative process. Moreover, none of the testimony which this court has heard unnecessarily duplicates any evidence contained in the administrative record. Accordingly, the District’s motion will be denied.

D. Pendent Placement

The IDEA contains a “stay put” provision which governs a child’s placement during the pendency of administrative review:

During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child . . . .

20 U.S.C. §1415(e)(3).

Brad’s parents seek reimbursement for homebound instruction which they have obtained for Brad during the 1994-95 school year. Specifically, they have submitted an invoice for services provided by Ruth Kapo totaling $1900. The invoice shows that Brad’s parents paid for seventy-six hours of homebound instruction from September 5, 1994 until October 30, 1994, at a rate of $25 per hour.

The District claims that the homebound instruction did not constitute an appropriate pendent placement for Brad under 20 U.S.C. §1415(e)(3). The District maintains that Brad should have been placed in Liberty High School pending the outcome of this litigation because the IDEA’s stay put provision provides that the child is to remain in the most recent “placement” pending the outcome of the dispute. The District argues that homebound instruction was not a “placement” dictated by an IEP, but was only a temporary measure necessitated by Brad’s emotional problems and instituted pursuant to a doctor’s recommendation.

Although the District’s textual argument is somewhat persuasive, the court will order the District to compensate Brad’s parents. The District’s contention that Brad should have stayed at Liberty ignores Brad’s needs and thus contravenes the IDEA’s intent. The hearing officer found that Liberty High School was not an appropriate placement for Brad. The appeals panel affirmed this finding. In addition, the court finds that Brad’s parents acted reasonably by enrolling him in homebound instruction pending the outcome of this dispute. Brad failed ninth grade, partially because the most recent IEP was never implemented, whereas he received A’s and B’s under the tutelage of his homebound instructor with whom he was comfortable. The District gave Brad’s parents no reason to believe that Brad would derive any meaningful benefit from attending Liberty High School. [9]

Section 1415(e)(3) “in no way purports to limit or pre-empt the authority conferred on courts by §1415(e)(2).” Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 606, 98 L. Ed. 2d 686, 709 (1988). This court agrees with the view espoused by the Court of Appeals for the First Circuit in Doe v. Brookline School Committee, 722 F.2d 910 (1st Cir. 1983), that §1415(e)(3) establishes a strong preference, but not a statutory duty, for maintenance of the status quo. In Doe, the court pointed out that Congress could not have intended to freeze an arguably inappropriate placement during lengthy review proceedings. 722 F.2d at 918.

In Burlington, the Supreme Court held that the Act authorizes reimbursement for appropriate unilateral private placement pending review of public placement which is later adjudged inappropriate. 471 U.S. at 371, 105 S. Ct. at 2004, 85 L. Ed. 2d at 396. The Court observed that the state agency’s decision in favor of the parents would seem to constitute agreement by the State to a change of placement. Accordingly, the Court held that from the date the hearing officer’s decision was issued, the parents’ unilateral placement of the child no longer violated §1415(e)(3). Id. In this case, Brad’s parents began to incur the expenses for homebound instruction after the hearing officer had already declared that the Liberty High School placement was inappropriate. Some of the expenses accrued after the appeals panel issued its decision.

In Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 (3d Cir. 1994), the Court of Appeals for the Third Circuit found that J.H.’s parents’ unilateral placement of their child was not reimbursable. However, the court based this finding on the fact that the parents removed the child from school before initiating the administrative review process. The court went on to hold that the school must reimburse the parents for all private school tuition which accrued after the date the parents began to pursue the review process.

The District offered the Saucon Valley High School placement on October 28, 1994. The court finds that Saucon Valley High School constitutes an appropriate placement under the appeals panel decision. [10] Thereafter, any unilateral placement of Brad by his parents would have been improper and, therefore, not compensable. Accordingly, the court finds that the District must reimburse Brad’s parents for their expenditure on homebound instruction prior to October 28, 1994.

E. Compensatory Education

The appeals panel awarded 480 hours of compensatory education which the District does not dispute in this action. Furthermore, the District agrees that plaintiffs may use the 480 hours of compensatory education in any manner they choose. Brad has expressed his preference to utilize the compensatory award to continue homebound instruction with Ruth Kapo in the form of extra tutoring. The parties have addressed the possibility of alternative uses for the 480 hours. To the extent that it may become necessary to assign a pecuniary value to the compensatory education award, however, the parties dispute what that value should be. Because Brad is likely to use the bulk of the award to retain the services of a private tutor, namely, Ruth Kapo, the court will base its assessment on the hourly rate of the tutor. Ms. Kapo charges private clients $25/hour. The school pays homebound instructors $21/hour.

This court holds that $21/hour is the rate to be applied to compensatory education in this case. This District routinely pays its homebound instructors at this rate; indeed, Ms. Kapo was retained for the entire 1993-94 school year to teach Brad at home and was paid $21/hour. The court does not need to look any further to hold that this is a reasonable rate.

F. Psychotherapy

The court also adopts the appeals panel’s order of psychotherapy as a related service. Accordingly, the District shall compensate Brad’s parents, if it has not done so already, for their out-of-pocket expenditures to date on psychotherapy to the extent that it was ordered by the hearing officer and the appeals panel.