SYLVIA H. RAMBO, District Judge.
Presently before the court are cross-motions for judgment on the administrative record, appealing the decision of a Pennsylvania hearing officer wherein he found that the defendant school district failed to identify an emotionally disabled child as a student in need of special education and failed to provide her with a free appropriate public education, in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. To compensate the student for this deprivation, the hearing officer awarded her limited compensatory education in the amount of thirty minutes per week for the statutory period.
The school district challenges the hearing officer's decision in its entirety, arguing, inter alia, that the student's claims are time barred as a matter of law, that it did not violate its obligations to the student, and that an award of compensatory education is inappropriate under the facts of the case. Alternatively, the district asks the court to affirm the hearing officer's decision to award thirty minutes of compensatory education per week for the statutory period. The student asks the court to affirm the hearing officer's decision insofar as he found that the district denied her a free appropriate education, but to overrule his award of thirty minutes of compensatory education and to instead grant full days compensatory education for the statutory period.
The court has thoroughly reviewed the administrative record, and for the reasons that follow, the court will grant the student's motion in its entirety and deny the district's motion in its entirety.
Jana K. ("Jana" or "the student") attended school at Annville-Cleona School District ("the District") from kindergarten until she withdrew in 2011 at the end of her 8th grade year. (Hearing Transcript, pp. 10, 33-34 ("N.T.___").) In the years prior to her withdrawal, Jana began exhibiting signs of emotional difficulty at school, including frequent unscheduled visits to the school nurse and guidance counselor, self-injurious threats and behavior, declining academic performance, and numerous unexcused absences. Nevertheless, the District failed to identify and evaluate Jana as a student with an emotional disability in need of special education.
During her 7th grade year, Jana's father began to notice signs of depression. (Id. at 37.) For example, Jana's eating and sleeping habits changed and she became more introverted. (Id.) Her grades also began to decline and, for the first time, she received poor and even failing grades.
Throughout the school year, Jana visited the school nurse at an alarming rate. Indeed, the nurse's daily log reveals that Jana visited the school nurse at least 54 times with various complaints, including illness/injury, hunger, peer conflict, nervousness, and anxiety. (S-15, pp. 6-9 of 13; N.T. 372-73.) On numerous occasions, the nurse responded to Jana's complaints by providing "moral support" and/or by consulting with the guidance counselor (S-15, pp. 6-8 of 13), yet the nurse's overall perception was that Jana was hungry and needed food (N.T. 373, 379). These concerns prompted the District to contact Jana's father about the District's free-and-reduced lunch program (id. at 379), and, ultimately, to refer the matter to Children and Youth Services, although the investigation resulted in no further action (id. at 55, 261). At no time, however, did the District notify Jana's father of the frequency at which Jana visited the school nurse and necessitated "moral support."
Jana's repeated visits to the school nurse were, at least to some extent, attributable to her tumultuous interactions with a certain peer group, which undisputably involved bullying. (See, e.g., id. at 193, 198, 280, 375.) While this behavior was both "reciprocal and cyclical," Jana clearly perceived herself as a victim of the bullying and made several complaints in this regard to the nurse and school administrators.
Jana's emotional well-being continued to decline throughout the school year, culminating in an incident on April 27, 2010, wherein Jana cut herself in school with a metal instrument, which she then swallowed. (Id. at 47, 52; S-15, p. 6 of 13.) She was immediately taken to the school nurse (S-15, p. 6 of 13), and the District instructed her father to take her to crisis intervention at a nearby hospital. (N.T. 259.) At the hospital, Jana was diagnosed with depression, for which her father was encouraged to pursue a psychiatric evaluation, counseling, and mobile therapy. (See N.T. pp. 52-55; P-4.) The District did not inquire as to the outcome of the hospital visit. Less than one week later, the school nurse observed scratches "in various stages of healing" on Jana's arms "from [her] cat and cutting," and treated Jana by wrapping her arms in gauze.
Pursuant to crisis intervention's recommendation that Jana receive counseling, Jana's father contacted the behavioral health wraparound agency that had been providing services to his son
Jana's difficulties continued to escalate throughout the 2010-2011 school year. Her visits to the school nurse began almost immediately upon her return to school and continued on a regular basis. (See S-15, pp. 1-6 of 13.) Indeed, Jana visited the nurse on 113 separate occasions that year, to which the nurse primarily responded by providing "moral support." (Id.) Despite the frequency of these visits, no one in the District evaluated whether a pattern existed to Jana's visits or whether she sought out the nurse for some underlying reason.
Upon reevaluation for wraparound services in October, Dr. Pappas again diagnosed Jana with depression
As noted by Dr. Pappas, Jana continued to associate with a negative peer group and experienced ongoing bullying throughout the school year. In October, Jana's mobile therapist observed that, although the District "target[s] the bullies, ... [the bullying] gets worse because [Jana] tattled." (Id. at p. 3.) As part of their ongoing efforts to address the bullying, District personnel held meetings with Jana's father and mobile therapist, wherein the District suggested that Jana participate in peer mediation and student community groups, but Jana declined due to feelings of discomfort. (See, e.g., P-2; N.T. 63; S-17, p. 3 of 5.) On occasion, Jana sought assistance from school administrators in ending these negative interactions, and, at one point, even requested and received four reciprocal "No Contact" orders that prohibited her association with certain peers. (N.T. 203-04; S-3; S-4; S-5; S-6.) However, by the District's own account, the orders were ineffective. (N.T. 204-05.) Indeed, in a June 2011 psychological evaluation, Dr. Pappas added post-traumatic stress disorder, which he attributed to in-school bullying, to his prior diagnoses. (S-18, p. 5 of 6.)
In addition to visiting the school nurse, Jana also frequently initiated meetings with the school guidance counselor. (N.T. 157, 193.) Jana discussed her difficulty maintaining positive peer relationships and, on several occasions, expressed thoughts of self-harm.
Jana's emotional struggles became even more apparent, however, on January 13, 2011, when Jana verbalized a desire to commit suicide. In response, the District informed Jana's mobile therapist of the event. (Id. at 219-20.)
Jana's academic performance continued to decline throughout the school year. (P-6.) In response, the District offered Jana several services to help improve her grades, including the use of a fifteen-minute flex period before lunch and a structured, forty-minute study hall during 9th period to provide her with opportunities to meet with teachers and complete assignments. She was also offered use of an after-school homework center, during which certified math and English teachers were available three days per week for tutoring at no cost. (N.T. 302-03.) Nevertheless, by the third quarter, Jana was either failing or in danger of failing at least four classes, and each of her teachers noted that she was neglecting to complete assignments. (S-13.) She failed reading, which was in stark contrast to the A- she had received the previous school year and to the proficient and advanced scores she historically obtained in reading on standardized group achievement tests. (See P-1; P-6; S-10; S-11.) In the final quarter of the year, Jana failed science and received D's in reading and algebra. (P-6; S-14.)
Jana's poor academic performance coincided with increasing absenteeism. During the 2009-2010 school year, Jana had been absent two times. (P-1) In contrast, during the 2010-2011 school year, she was absent seventeen times. (Id.) To address Jana's frequent unexcused absences, the District fined Jana's father for truancy without first engaging in a truancy elimination plan, as recommended by the Pennsylvania Department of Education. (P-3.)
At the end of the school year, Jana's father withdrew her from the District out of concern for her mental health and safety, and enrolled her in Commonwealth Connections Academy ("CCA"), a cyber charter school. (N.T. 97-99.) At CCA's request, Jana's father consented to have Jana evaluated for special education services. On February 24, 2012, he received an initial evaluation report, which indicated, inter alia, that Jana suffered from depression (S-20) and that her scores on the Behavior Assessment System for Children and Child Depression Inventory showed clinically significant scores across multiple domains. (N.T. 97-99; S-21 at 6 of 23.) CCA concluded that she was eligible for specialized education services as a student with Emotional Disturbance,
Jana and her father, Tim K., (collectively "Plaintiffs") filed for a special education due process hearing on July 9, 2012, wherein they alleged that the District failed to provide Jana with a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794. (ODR File No. 3355-1213-AS.) On August 22, 2012, the District filed a motion to dismiss the complaint as untimely, or, in the alternative, to limit the scope of the claim. In a pre-hearing order dated September 11, 2012, the Hearing Officer denied the District's request to dismiss the claim in its entirety, and determined that the statute of limitations prohibited claims arising prior to July 9, 2010 (two years before Plaintiffs requested a due process hearing). (Doc. 7, p. 7 of 60.) However, because the District only asked him to preclude claims arising prior to February 24, 2010, the Hearing Officer limited the scope of claims to those occurring on or after February 24, 2010.
A due process hearing was conducted on September 21 and 24, 2012, and the administrative record closed on October 5, 2012. In an October 19, 2012 final decision and order, the Hearing Officer determined, inter alia, that the District had violated its Child Find obligation to Jana by not evaluating her for a disability prior to the beginning of the statutory period. His conclusion was based primarily upon his finding that there was ample evidence that Jana was exhibiting all of the symptoms and behaviors of Emotional Disturbance and that the District was well aware of the same. (Doc. 6-2, p. 13 of 17.) Although he found that the District should have suspected a disability as soon as the beginning of Jana's 7th grade year, the Hearing Officer determined that the IDEA's two-year statute of limitations permitted him only to consider violations that occurred after February 24, 2012, i.e., the middle of Jana's 7th grade year. (Id. p. 14 of 17.) Accordingly, he concluded that the District had violated its Child Find duty no later than the beginning of the statutory period.
The Hearing Officer also concluded that the District's Child Find violation gave rise to a substantive violation of Jana's right to receive a FAPE, noting that, despite receiving various accommodations during the relevant academic years, Jana continued to suffer both socially and academically. (Id. pp. 14-15 of 17.) In short, the Hearing Officer found that Jana's need for additional educational support as she progressed through 7th and 8th grade indicated that those supports she did receive in the absence of an IED were inadequate. As a remedy, the Hearing Officer awarded Jana thirty minutes of compensatory education for each week that school was in session between February 24, 2010 and the end of the 2010-2011 school year. (Id. pp. 15-16 of 17.)
On January 16, 2013, Plaintiffs filed a complaint in this court in the nature of an appeal, seeking reversal of the Hearing Officer's decision to award only thirty minutes
"Judicial review in IDEA cases differs substantively from judicial review in other agency actions, in which the courts are generally confined to the administrative record and are held to a highly deferential standard of review." Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 757 (3d Cir.1995). In IDEA cases, district courts are to apply a "modified de novo" standard of review, under which factual findings from the administrative proceedings are to be accorded "due weight." S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir.2003). Pursuant to this standard, the hearing officer's factual findings are to be considered prima facie correct, but the district court may disagree with those findings if it explains its basis for doing so. See id.; Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir.1995) ("[A]lthough the district courts must consider the administrative findings of fact, they are free to accept or reject them.... But if the district court chooses to depart from the agency's ruling, it should provide some explanation for its departure."). The court must, however, accept the hearing officer's credibility determinations "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion." S.H., 336 F.3d at 270 (quoting Carlisle, 62 F.3d at 529).
The district court's review of the hearing officer's application of legal standards and conclusions of law, on the other hand, is subject to plenary review. Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83 (3d Cir.1999). However, the district court is not "to substitute its own notions of educational policy for those of local school authorities." S.H., 336 F.3d at 270 (quoting MM v. School Dist. of Greenville Cnty., 303 F.3d 523, 531 (4th Cir. 2002)).
Thus, pursuant to the above standards, the Hearing Officer's decisions regarding the application of the statute of limitations and the award of compensatory education are subject to plenary review as conclusions of law. P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir.2009). Whether the District fulfilled its Child Find and FAPE obligations are subject to clear error as questions of fact. See id. As the party challenging the administrative decision bears the burden of persuasion, Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir.2012), Plaintiffs bear the burden with regard to the amount of compensatory education awarded and the District bears the burden with regard to the remaining issues on appeal.
Under the Individuals with Disabilities Education Act, states that receive federal educational assistance must establish "policies and procedures to ensure," among other things, that a "free appropriate public education" is available to disabled children.
In this case, the Hearing Officer found that the District neglected its duties by failing to identify Jana as a child in need of special education services and by offering her inadequate support. Consequently, the Hearing Officer determined that Jana was denied a FAPE and awarded her compensatory education to make up for the District's deficiencies. The District seeks a complete reversal of the Hearing Officer's decision, arguing that Plaintiffs' claims are barred by the statute of limitations and that the record contains compelling evidence that Jana received substantial support and was not denied a FAPE. The District asserts that the Hearing Officer's conclusions to the contrary are based upon errors of law and unsupported findings of fact. The District also challenges the Hearing Officer's award of compensatory education.
Plaintiffs disagree with the District and ask the court to affirm the Hearing Officer's decision in nearly all respects. However,
The court considers in turn whether the Hearing Officer committed error in finding that the District violated its Child Find obligation and denied Jana a FAPE, or whether the amount of compensatory education was inadequate. Initially, however, the court must identify the time period to which Jana's claims apply under the statute of limitations.
Two subsections of 20 U.S.C. § 1415 guide the limitations period for IDEA claims. Section 20 U.S.C. § 1415(f)(3)(C) provides that "[a] parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint." Section 1415(b)(6)(B), on the other hand, provides "[a]n opportunity for any party to present a complaint ... which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint." 20 U.S.C. § 1415(b)(6)(B).
The District argues that the Hearing Officer made an error of law in determining that these sections, read together, create a single two-year filing limitation that bars an IDEA claim for relief as to any violation that occurred more than two years prior to the filing date of the due process complaint.
In I.H. ex rel. D.S. v. Cumberland Valley School District, 842 F.Supp.2d 762 (M.D.Pa.2012), this court directly addressed the relationship between these two statutory provisions and found that they should be read to provide two distinct time limitations. Id. at 773-74. The court explained that Section 1415(f)(3)(C), "which controls the limitations period for filing an IDEA action, requires that a plaintiff must request their due process hearing within two years of the date that the parent or agency `knew or should have known' about the alleged violations forming the basis of the [c]omplaint." Id. at 774. Because it
Similarly, in G.L. v. Ligonier Valley School District Authority, Civ. No. 2:13-cv-00034, 2013 WL 6858963 (W.D.Pa. Dec. 30, 2013), the District Court for the Western District of Pennsylvania agreed with this court's reasoning in I.H. and held that these two sections are appropriately read as separate provisions, with one setting a limitations period for the filing of claims and the other temporally limiting the scope of the alleged violations. Id. at *3-4. Specifically, the court explained that, under Section 1415(f)(3)(C), the IDEA plaintiff has two years after the KOSHK date to file a complaint requesting a due process hearing, and under Section 1415(b)(6)(B), the plaintiff's claims may include allegations of IDEA violations occurring up to two years prior to the KOSHK date. Id. at *4. Thus, the first subsection is forward-looking, setting a time limit beyond the KOSHK date for a plaintiff to file a complaint, and, conversely, the latter subsection provides a "look-back" limit on liability, prohibiting the plaintiff from bringing allegations of an IDEA violation occurring more than two years prior to the KOSHK date. Id.
In the matter sub judice, the Hearing Officer explained that, although he had previously looked to the KOSHK date to determine whether claims were timely filed — a method that this court supported on appeal, see I.H., 842 F.Supp.2d at 773-74 — he had since reconsidered both the legal analysis of and procedure used to apply the IDEA's statute of limitations and reached a different conclusion, i.e., that the statute precludes claims arising more than two years before the filing of a due process complaint. (See Doc. 7, p. 5 of 60.) In reaching this conclusion, the Hearing Officer relied on several cases that, pursuant to his interpretation, would essentially create an amalgam of Sections 1415(f)(3)(C) and (b)(6)(B). (See Doc. 7, pp. 5-6 of 60) (citing Steven I. v. Central Bucks Sch. Dist., 618 F.3d 411 (3d Cir. 2010); L.G. v. Wissahickon Sch. Dist., Civ. Nos. 06-0333, 06-3816, 2011 WL 13572 (E.D.Pa. Jan. 4, 2011); School Dist. of Phila. v. Deborah A., Civ. No. 08-2924, 2009 WL 778321 (E.D.Pa. Mar. 24, 2009); Evan H. ex rel. Kosta H. v. Unionville-Chadds Ford Sch. Dist., Civ. No. 07-4990, 2008 WL 4791634 (E.D.Pa. Nov. 4, 2008).) For example, in Steven I., the Third Circuit noted that Section 1415(f)(3)(C) "broke new ground by providing for a two[-]year statute of limitations where there previously had been none," Steven I., 618 F.3d at 413, and held that the statute precluded claims arising more than two years before the filing of the due process complaint, id. at 417. However, the Hearing Officer's reliance is misplaced. Each of these cases considered the applicability of the statute of limitations, which was created as part of the 2004 amendments to the IDEA, to compensatory education claims that were brought after the statute's effective date but arose from conduct that occurred before the statute's passage. See id. at 412; L.G., 2011 WL 13572, *7 n. 5; Deborah A., 2009 WL 778321 at *3-4; Evan H., 2008
In this court's judgment, the plain language of the statute provides that plaintiffs have two years after the KOSHK date to file a due process complaint, and, in that complaint, they may allege IDEA violations occurring within the two years preceding the KOSHK date.
Having found that the Hearing Officer erred in his application of the statute of limitations, the court must determine: (1) the appropriate KOSHK date, (2) whether the complaint was timely filed; and, if it was, (3) the proper scope of Plaintiffs' claims.
The District argues that Jana's father knew or should of known of the existence of a Child Find claim against the District on May 26, 2010, when he received the psychological evaluation report completed by Dr. Pappas in connection with his request for wraparound services for Jana, and was therefore compelled to file a due process complaint within two years of that date. Because Plaintiffs filed their complaint on July 9, 2012 — more than two years after receipt of the psychological evaluation — the District urges the court to dismiss the complaint in its entirety.
The District's interpretation of the legal effect of the statute of limitations in this setting is contrary to both law and logic. Plaintiffs allege that "[Jana]'s rights were violated every day that school was in session from the start of the 2009-[20] 10 school year through June 2011." (See Doc. 7, p. 1 of 5 (emphasis supplied).) Notwithstanding this allegation, the District asks the court to find that the statute requires a parent to file a due process complaint within two years of the date on which the parent first knew or should have known of a Child Find violation or forever relinquish any Child Find claim. This would lead to a preposterous result. While the parent's discovery of a Child Find violation may be the first point when he or she can bring a claim, it does not start a definitive limitations clock for the cause of actions; rather, the limitations clock runs for the individual violations. As in many other areas of law, a "continuing violation"
Relevant case law supports this conclusion. In Jefferson County Board of Education v. Lolita S., 977 F.Supp.2d 1091 (N.D.Ala.2013), the court considered whether the parent's Child Find claims arising more than two years prior to the filing of the due process complaint were barred by the IDEA's statute of limitations. Id. at 1123. Although the court found that the parent knew or should have known of her cause of action no later than the fall of 2008, it held that only those claims occurring prior to October 2009 (two years before the due process complaint was filed) were barred. Id. Applying the District's theory, the court should have dismissed the complaint outright because the parent did not file for a due process hearing until more than two years after she first had notice of her claims. The Lolita court was correct in declining to do so.
Of course, this leads the court to an interesting question: In a case asserting continuing violations of the IDEA, how must the court apply a statute of limitations that relies on a definitive KOSHK date?
In a case asserting a continuing violation, even one that continues after the parent definitively knows that a school district is violating its Child Find obligations and/or that the child is deprived of a FAPE, each subsequent day in which the child is not identified and/or denied a FAPE is a new and actionable occurrence for which the parent can seek a remedy. Thus, while a KOSHK date may serve to define the temporal scope of the look-back, it does not operate to foreclose the child's ability to seek redress for a right of which she was deprived that occurred after the parent first knew or should have known of the deprivation. Accordingly, in a continuing violations scenario, if the complaint is filed within two years of the most recent occurrence, it is timely filed, regardless of when the parent first knew or should have known of the cause of action. Ordinarily, the scope of the claims will be limited to those occurring within two years of the date the complaint was filed.
However, the scope of the claims may be expanded further if the parent can show that he did not know and should not have known that the school district was violating its Child Find obligations and/or depriving the child of a FAPE.
The District argues that Jana's father knew or should have known of the District's IDEA violations on May 26, 2010, when he received Dr. Pappas's report. Because May 26, 2010 is more than two years before the filing of the due process complaint on July 9, 2012, the District's proposed KOSHK date would
The court does not agree with the District's position that Jana's father knew or should have known about his claims when he received Dr. Pappas's report. The evaluation was performed solely for the purpose of identifying whether Jana was eligible for wraparound services and did not purport to assess whether she was eligible for services under the IDEA. The report concluded that Jana was eligible for mobile therapy, but made no specific recommendations as to special education, related services, or other accommodations that should be provided in the school setting. (See S-16.) Jana's father is not trained in special education, psychology, or the IDEA, and therefore should not be deemed qualified to have known that the issues addressed in the report should have triggered the District's Child Find obligations. Thus, receipt of Dr. Pappas's report did not establish that Jana's father knew or should have known of his cause of action at that time.
The court will, however, accept Plaintiffs' proposed KOSHK date of February 24, 2012. The Hearing Officer found credible Jana's father's testimony that, prior to receiving the evaluation from CCA, he did not know that students who have emotional disturbances, but no disciplinary issues, could qualify for special education services. (See Doc. 6-2, p. 12 of 17 (citing N.T. 99, 132-33, 137-38, 141).) Absent "non-testimonial, extrinsic evidence" to the contrary, the court must accept the Hearing Officer's credibility determinations. S.H., 336 F.3d at 270 (quoting Carlisle, 62 F.3d at 529). Moreover, the District has conceded that, in the event the court declined to dismiss the complaint in its entirety, the court should accept Plaintiff's proposed KOSHK date and limit the claims to those occurring on or after February 24, 2010. (See Doc. 25, p. 23.)
Accordingly, under 20 U.S.C. § 1415(b)(6)(B), the scope of Plaintiffs' claims may include IDEA violations occurring up to two years prior to the February 24, 2012 KOSHK date. Thus, despite a different interpretation and application of the IDEA's statute of limitations, the court affirms the Hearing Officer's determination regarding the proper scope of Plaintiffs' claims in this case.
The court next considers whether the District failed to identify Jana as a student in need of a special education in violation of its Child Find obligations. The IDEA's Child Find provision requires states to ensure that "all children residing in the state who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located and evaluated." 20 U.S.C. § 1412(a)(3). This provision places upon school districts "a continuing obligation ... to identify and evaluate all students who are reasonably suspected of having a disability under the statutes." P.P., 585 F.3d at 738. A child who is suspected of having a qualifying disability must be identified "within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability," W.B., 67 F.3d at 501, even if the child is advancing from grade to
In the matter sub judice, the court sees no reason to disagree with the Hearing Officer's conclusion that, by February 2010, the District should have evaluated Jana for a disability pursuant to the IDEA. By that point, the District had ample reason to suspect that Jana suffered from a disability, particularly Emotional Disturbance, and yet never initiated an IDEA evaluation. As the Hearing Officer explained in his decision:
(Doc. 6-2, p. 13 of 17.) During this time, Jana's grades also declined, which "only heightened the District's obligation to determine if [her] emotional state was affecting [her] educational performance." (Id. at p. 14 of 17.) Although "the District had no obligation to propose an evaluation the moment that the symptoms were expressed,... [Jana] was symptomatic from the beginning of the 2009-2010 school year. Under these circumstances, the District's failure to propose an evaluation is a Child Find violation." (Id.)
In its motion, the District contends that, in reaching his decision, the Hearing Officer improperly relied on the CCA evaluation insofar as it was conducted more than eight months after Jana withdrew from the District and therefore cannot be used to prove that Jana would have been diagnosed with Emotional Disturbance had she been evaluated during the relevant time period. (Doc. 25, pp. 15-16.) The District argues that "the law does not permit such a `look back' to determine, after the fact, whether the [s]tudent should have been identified. Rather, when evaluating whether a school district committed a `[C]hild [F]ind' violation, courts [should] look to what the `[d]istrict knew or had reason to know at the time.'" (Id. at p. 16 (quoting Daniel S. v. Council Rock Sch. Dist., Civ. No. 06-3531, 2007 WL 3120014, *3 (E.D.Pa. Oct. 25, 2007)).)
To the extent the District takes exception with the Hearing Officer's reliance on the CCA evaluation itself, the court notes that the Hearing Officer never explicitly mentioned the evaluation in his analysis pertaining to Child Find. The court therefore assumes that the District more distinctly takes issue with the Hearing Officer's assessing Jana's emotional and academic performance during the relevant time with knowledge of her eventual Emotional Disturbance diagnosis. Taken in this context, the District insinuates that the Hearing Officer's post-hoc assessment is improper, as everything is colored with the lens of the diagnosis. The District's argument is not convincing. These types of proceedings are necessitated upon the finding that the school district failed to timely discover a subsequently diagnosed disability. While hindsight can seldom be used in law to impute to a party something it should have known, here it is precisely
Moreover, the court finds no merit to the District's argument that it should not be held accountable for failing to identify Jana as a student in need of an IDEA evaluation because her father neither provided the District with her psychological evaluations from the wraparound agency nor requested that the District evaluate her for special education services.
M.C., 81 F.3d at 397.
The court is likewise unpersuaded by the District's argument that, even if Jana had been diagnosed with Emotional Disturbance while still enrolled in the District, she nevertheless may not have qualified for special education services because Plaintiffs failed to prove that her disability adversely affected her overall educational progress, particularly her academic performance. (Doc. 25, pp. 17-18.) As the Hearing Officer observed, during the 2009-2010 school year, Jana's grades began to decline contemporaneously with her being bullied, exhibiting signs of depression, and frequently visiting the nurse for "moral support." During this time period, Jana also appeared at school with scratches on her arms from "cutting" and even cut herself while in school. Symptoms of Jana's worsening emotional condition persisted into the 2010-2011 school year, accompanied by an even more precipitous drop in her grades and threats of self-harm and suicide. Thus, the evidence as a whole "paints a picture of a capable but underperforming child" (Doc. 6-2, p. 14 of 17), and demonstrates a connection between Jana's emotional condition and her academic performance. Her under performance provided yet another signal that
The court appreciates, however, that the District took measures to address Jana's needs. A school district is not obligated to conduct a formal evaluation of every struggling student and it may be prudent to offer other interventions before rushing to a special education identification. See D.K., 696 F.3d at 249. However, the court is troubled by the fact that, despite its ongoing recognition of Jana's proliferating emotional, intellectual, and behavioral needs, the District failed to request reports or updates from her mobile therapist and failed to consider initiating an IDEA evaluation. Further, the District neglected to draft a formal plan for Jana to routinely receive counseling services through the school despite her need for such counseling being readily apparent. Not only did she frequently initiate visits with the guidance counselor and stop by the nurse's office for moral support, she also engaged in self-injurious behavior, expressed thoughts of self-harm to the guidance counselor, and verbalized, in school, a desire to commit suicide — all while the school knew she was being bullied and her grades were declining. Thus, while a school "need not rush to judgment or immediately evaluate every student," id. at 252, the court cannot reconcile Jana's glaring needs with the school district's failure to identify and evaluate her as a child potentially in need of special education.
In conclusion, the court has little trouble affirming the Hearing Officer's decision insofar as he found that the District violated its Child Find obligations to Jana. While no piece of evidence alone conclusively demonstrated her need for an evaluation, the mosaic of evidence in this case clearly portrays a student who was in need of a special education evaluation by — at the latest — the beginning of the statutory period. The District's failure to provide as much constituted a Child Find violation.
The next issue is whether the District's Child Find violation amounted to a substantive denial of a FAPE. As stated above, a school district's failure to comply with Child Find may constitute a procedural violation of the IDEA. However, while it is important for a district to comply with the IDEA's procedural requirements, compliance is not the goal in and of itself. Ridley, 680 F.3d at 274 (quoting D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir.2010)). Rather, compliance with Child Find's requirements is important because of the impact the requirements may have on the student's and parents' substantive rights. Id. "Accordingly, `[a] procedural violation is actionable under the IDEA only if it results in a loss of educational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of educational benefits." Id. (quoting D.S., 602 F.3d at 565.)
The court will affirm the Hearing Officer's conclusion that the District's procedural violation of Child Find affected Jana's substantive rights. Indeed, the District's failure to evaluate Jana for special education deprived her of the opportunity to benefit from an IEP. While she did, in fact, receive specialized services and supports from the District throughout the
The District posits that Jana's father would have withheld his consent to an IDEA evaluation, and thus insinuates that it should not be held accountable for failing to provide Jana with an IEP that her father would have prevented it from implementing.
Accordingly, for the reasons stated above, the court affirms the Hearing Officer's conclusion that the District deprived Jana of a FAPE during the statutory period. For that deprivation, Jana is entitled to compensatory education.
To compensate Jana for the District's failure to provide a FAPE, the Hearing Officer awarded compensatory education
In support of their argument for full days compensatory education, Plaintiffs cite to cases standing for the proposition that courts should not attempt to parse out the exact amount of hours a child was deprived of a FAPE and should instead award full days of compensatory education for the relevant time period. See Damian J. v. School Dist. of Phila., Civ. No. 06-3866, 2008 WL 191176, *7 n. 16 (E.D.Pa. Jan. 22, 2008); Keystone Cent. Sch. Dist. v. E.E. ex rel. H.E., 438 F.Supp.2d 519, 526 (M.D.Pa.2006). Essentially, Plaintiffs ask the court to adopt a presumption that each day without a FAPE entitles the student to one day of compensatory education — a standard they argue was embraced by the Third Circuit.
In M.C. v. Central Regional School District, 81 F.3d 389 (3d Cir.1996), the Third Circuit held that "a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem."
The conflict arises, however, because those courts interpreting the decision as blanketly requiring an award of full days education have neglected to consider the very nature of this type of damages award. "Compensatory education for a period equal to the period of deprivation" does not mean specialized education for a full day. See M.C., 81 F.3d at 397. Rather, "compensatory," by its very definition, requires the court to identify the time period during which the child was deprived of appropriate education and assess the difference between the educational services the child should have received during that time period and the services the child did receive. That difference is the compensatory education, and the court must award its full value. For example, where a child should have received three hours of specialized education for two years, but instead received only one hour per day for two years, compensatory education would net an award of two hours per day for two years.
Other courts that have adopted this type of individualized approach to calculating a compensatory education award have focused on the equitable and discretionary nature of the award. See, e.g., Reid, 401 F.3d at 518, 523. In rejecting what it considered to be the Third Circuit's "mechanical," "hour-for-hour" approach, the D.C. Court of Appeals explained as follows:
Id. at 523-24 (internal citations omitted). Guided by the IDEA's aim to guarantee disabled students "specialized education and related services designed to meet their unique needs," Id. at 524 (quoting 20 U.S.C. § 1400(d)(1)(A) (emphasis supplied)), the court reasoned that "it would be highly incongruous if this qualitative focus on individual needs gave way to mechanical hour-counting when past rather than current violations of the FAPE standard were at issue. Accordingly, just as IEPs focus on disabled students' individual needs, so must awards compensating past violations rely on individual assessments." Id. The Reid court noted that:
Id. In every case, "the inquiry must be fact-specific and, to accomplish the IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Id. In conclusion, the court held that the disabled student is "not entitled ... to an amount of [compensatory education] predetermined by a cookie-cutter formula, but rather to an informed and reasonable exercise of discretion regarding what services he needs to elevate him to the position he would have occupied absent the school district's failures." Id. at 527.
Similarly, the Ninth Circuit rejected the plaintiffs' argument that the student was "ipso factor" entitled to an amount of compensatory education equal to the time of deprivation "without any further analysis." Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994). Rather, the court concluded that "[t]here is no obligation to provide a day-for-day compensation for time missed. Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA." Id. Focusing on the equitable nature of compensatory education, the court instructed district courts to apply a fact-specific analysis focusing on both parties' conduct and what the student had or had not achieved. Id.
In B.C. ex rel. J.C. v. Penn Manor School District, 906 A.2d 642 (Pa. Commw.Ct.2006), the Commonwealth Court of Pennsylvania was persuaded by the Ninth and D.C. Circuits' standard "as it tailors the equitable award of compensatory education to the particular student's needs." Id. at 650. The court held that,
This court is similarly persuaded by the courts' applying an individually tailored approach to compensatory education and concludes that, while "a child is entitled to compensatory education for the period equal to the period of education, but excluding the time reasonably required for the school district to rectify the problem," the amount of compensatory education to be awarded for each school day during the period of deprivation should be reasonably calculated to provide the educational benefits the child should have received in the first place. Thus, the appropriate and reasonable level of reimbursement will match the quantity of services improperly withheld throughout that time period, unless the evidence shows that the child requires more or less education to be placed in the position he or she would have occupied absent the school district's deficiencies. The court is confident that such a standard for awarding compensatory education achieves the IDEA's aim to provide disabled students with specialized education and services and that it is consistent with the decisions of the D.C. and Ninth Circuits, as well as the Commonwealth Court of Pennsylvania. The court is similarly confident that its holding is in accordance with Third Circuit precedent. As the Third Circuit has articulated, compensatory education is an equitable remedy designed to replace the educational services a disabled child should have received pursuant to a FAPE, see Lester H. v. Gilhool, 916 F.2d 865, 873 (3d Cir.1990), and must therefore "aim to place [the] disabled [student] in the same position [she] would have occupied but for the school district's violations of [the] IDEA," Ferren C. v. School Dist. of Phila., 612 F.3d 712, 717 (3d Cir. 2010). A simply mechanical one-for-one approach would fall short of achieving this goal.
It is evident that the Hearing Officer failed to fashion his compensatory education award to put Jana in the educational position she would have occupied but for the District's violations. Although he recognized that this is the goal of such an award, the Hearing Officer noted that Plaintiffs failed to present evidence as to how many hours of specialized services Jana should have received. In lieu of "better evidence," the Hearing Officer looked to Jana's CCP IEP for guidance, which provided, inter alia, that Jana receive thirty minutes of online counseling per week to address her diagnosis of Emotional Disturbance. (Doc. 6-2, pp. 15-16 of 17.) Because counseling was the only service within the IEP directly applicable to her diagnosis, the Hearing Officer awarded Jana the equivalent retrospective relief for the District's denial of a FAPE, i.e., thirty minutes of counseling per week for the statutory period, and disregarded the services she was receiving to target her "organizational and executive functioning issues."
However, it is readily apparent that the amount of counseling Jana requires at
Moreover, the court is perplexed as to why the Hearing Officer, in a one sentence ipse dixit, determined that the only relevant portion of the CCA IEP was that which directly addressed Jana's Emotional Disturbance diagnosis. Certainly, it was this diagnosis which qualified Jana for an IEP. However, the impact of such a diagnosis is often widespread, as it was here. By definition, Emotional Disturbance "adversely affects a child's educational performance" and can manifest itself in a variety of ways, including "[a]n inability to learn that cannot be explained by intellectual, sensory, or health factors." 34 C.F.R. § 300.8(c)(4)(i). The Hearing Officer explicitly found that Jana was a "capable but underperforming child ... [whose] academic underperformance only heightened the District's obligation to determine if [her] emotional state was affecting educational performance." (Doc. 6-2, p. 14 of 17.) As such, "[s]ome assessment to determine whether [Jana] needed individualized specially designed instruction to help [her] overcome social deficits was in order." (Id.) Concluding that the services Jana did receive were "ineffective," the Hearing Officer found that Jana "suffered both socially and academically." (Id. (emphasis supplied).) Notwithstanding his own findings, the Hearing Officer disregarded the impact of Jana's disability on her entire education when calculating his award. As the Hearing Officer initially recognized, however, the District's failure to provide Jana with appropriate and effective emotional, behavioral, social, and executive functioning supports negatively affected her ability to fully access nearly every aspect of her education. Accordingly, the court concludes that the Hearing Officer's award of a mere thirty-minutes of compensatory education per week for nearly two years of educational decline was both arbitrary and inadequate, and will not affirm the Hearing Officer's decision in this regard.
The question thus becomes how much compensatory education Jana is owed. As stated, an award of compensatory education should be based on the amount of services necessary to provide the same qualitative educational benefit the student would have received during the period of deprivation absent the school district's deficiencies. However, in a case such as this, where the school district's failure to provide specialized services permeated the student's education and resulted in a progressive and widespread decline in her academic and emotional well-being, the court is reminded that, in some instances, "parsing out the exact amount of hours [a student] was not benefitted by [a] FAPE"
In awarding full days compensatory education, the court does not suggest that the District failed to provide any educational benefit whatsoever to Jana during the relevant time period, as the District contends such an award reflects. However, while the court endeavors to identify the difference between the education services the student received and those which she should have received, in a situation such as this, where the overall effect of the school district's deficiencies resulted in a widespread loss of educational benefit for the student, it would be futile to attempt to parse out the precise number of hours that the student was denied a FAPE. Thus, to err on the side of awarding too much compensatory education rather than too little, the court will award full days compensatory education for the statutory period.
For the foregoing reasons, the court will affirm the Hearing Officer's decision insofar as he found that the District breached its Child Find obligation by failing to identify
34 C.F.R. § 300.8(c)(4)(i).
