ANITA B. BRODY, District Judge.
This action has been brought by Lauren G., and her parents Scott G. and Jacqueline G. ("Parents"), against West Chester Area School District (the "District"). Parents allege that the District failed to provide Lauren with a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., and § 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794.
Lauren is a twenty year-old former District student. In seventh and eighth grade, Lauren attended the District. Parents withdrew Lauren from the District for the 2006-2007 ninth grade school year, and enrolled her in Bishop Shanahan High School ("Bishop Shanahan"), a private denominational school. Lauren remained at Bishop Shanahan for the first half of tenth grade, the 2007-2008 school year. In January or February 2008, Lauren returned to the District for the second half of tenth grade to attend East High School ("East High").
A few weeks after Lauren's re-enrollment in the District, East High's guidance counselor learned from a counselor at Bishop Shanahan that Lauren had "behavioral issues." H.O.D. ¶ 6. In the first couple of months that Lauren attended East High, she met weekly with the guidance counselor as part of the District's effort to ensure a smooth transition for new students. Although Lauren appeared to be handling her classes, the guidance counselor noticed that Lauren was struggling with attendance. Moreover, Lauren self-reported to the guidance counselor that she was seeing a psychiatrist.
On March 8, 2008, Lauren was admitted to an inpatient psychiatric hospital, Devereux Beneto Center ("Devereux"), for suicidal ideation. On March 9, 2008, Parents informed the District of Lauren's hospitalization. Lauren's guidance counselor spoke with Lauren's mother about the hospitalization and noted that Lauren had been admitted for "possible bipolar, depression," and "suicidal thoughts." H.O.D. ¶ 9 (internal quotation marks omitted).
On March 21, 2008, upon discharge from Devereux, Lauren entered the American Day Program ("American Day") for outpatient care. While at American Day, Lauren was diagnosed with Depression, Not Otherwise Specified (NOS), Obsessive Compulsive Disorder, Oppositional Defiant Disorder, and possible Attention Deficit Disorder. The assessment also noted that Lauren used marijuana; however, Lauren was not diagnosed with a substance abuse. Lauren explained to her mother that use of marijuana helped make the repetitive thoughts about the devil and the number six go away.
On March 24, 2008, Parents emailed a letter from Lauren's psychiatrist dated January 21, 2008 to the guidance counselor. The letter stated that Lauren had been diagnosed with Major Depression, Attention Deficit/Hyperactivity Disorder, Obsessive Compulsive Disorder, and Anxiety Disorder. At this time, reports prepared by Lauren's teachers noted that Lauren was cutting classes in math and history, and was being extremely talkative in biology.
In early April 2008, Lauren returned to East High after her treatment at American Day. Upon her return, Lauren felt the need to meet with the crisis counselor or guidance counselor once or twice a week. A few days after her return, Parents requested in writing that the District begin the process of getting Lauren a § 504
The District's Child Study Team, which included Lauren's guidance counselor, met to determine if Lauren was eligible for a § 504 Plan. The Child Study Team reviewed academic records, student meetings, and staff inclusion (written feedback provided by Lauren's teachers) before making a determination. On the afternoon of April 15, 2008, the guidance counselor emailed Lauren's mother and requested "additional information regarding your request for 504 services." P-24. However, on April 16, 2008, the District issued a Denial of Eligibility Letter, informing Parents that Lauren did not meet the criteria for a § 504 Plan. The letter also informed Parents of their right to request an informal conference with a school district representative, a due process hearing, or assistance from the Pennsylvania Department of Education. Additionally, Parents were notified of their right to file a federal lawsuit under the RA. Attached to the letter was a copy of the Procedural Safeguard Notice, which explained Parents' rights. Moreover, the letter also invited Parents to schedule an informal conference or to request a due process hearing by indicating such request on the bottom of the letter and returning it to the guidance counselor. Parents elected to do nothing at the time.
At the start of Lauren's junior year, the 2008-2009 school year, Lauren's problems began to escalate. N.T. 138. When Lauren returned to school after the summer, she was withdrawn, experiencing depression, complaining of headaches and other somatic symptoms, cutting classes, avoiding school, and voicing a desire to drop out. Lauren's mother had to physically drag Lauren to school. In an effort to get Lauren help, Lauren's mother spoke "on the phone a lot" with the guidance counselor and other District staff. H.O.D. ¶ 18 (internal quotation marks omitted).
In September and October 2008, Lauren frequently visited the crisis counselor. On September 29, 2008, Lauren told the crisis counselor that her "moods and emotional [sic] are not right," and that she was "tired all the time." H.O.D. ¶ 19 (internal quotation marks omitted). The guidance counselor recommended that Parents find Lauren a new psychiatrist to help stabilize her.
In October 2008, Lauren informed the crisis counselor that she was experiencing feelings of not wanting to do anything. The crisis counselor reported this to the guidance counselor, who advised Lauren of various programs that she could elect to participate in. Lauren did not choose to participate in any of them. Lauren's failure to seek out these services signified to the guidance counselor that "you can lead a horse to water, but you cannot make them, you know, drink it." H.O.D. ¶ 20 (internal quotation marks omitted).
In addition to her emotional struggles, Lauren was also struggling academically. In October 2008, the guidance counselor noted that Lauren was failing classes. N.T. 231. During the first quarter, Lauren failed history, earth science, Spanish, and Algebra. P-56.
On October 30, 2008, Parents completed a Permission to Evaluate (PTE)Evaluation Request Form, requesting "a complete evaluation so we can get some direction on how to help our daughter." H.O.D. ¶ 24 (internal quotation marks omitted). Additionally, the PTE noted that Lauren "ha[d] been diagnosed with a Mood Disorder, OCD, ODD, depression and an anxiety disorder which has an effect on her ability to perform academically." Id. (internal quotation marks omitted).
At the end of October 2008, Lauren's psychiatrist and psychologist recommended that Parents meet with an educational consultant to place Lauren. In November 2008, Lauren's psychologist recommended a therapeutic residential boarding school due to Lauren's "failing grades" and "recurrent acting-out behaviors" in order to provide Lauren with "the placement and treatment she needs at this time." P-58. As the psychologist explained, a residential placement would assist Lauren in "school success." Id.
On November 7, 2008, Lauren was discharged from American Day. Her Discharge Summary noted that Parents were considering placing Lauren in a boarding school. It also noted that Lauren required ongoing substance abuse treatment.
On November 10, 2008, the school psychologist determined that it was not necessary to conduct a psychiatric evaluation of Lauren because she had just been evaluated at American Day. On November 24, 2008, the District issued a Permission to Evaluate (PTE)Evaluation Consent Form seeking "to conduct an evaluation in order to explore if the symptoms of [Lauren's] Mood Disorder adversely affects her educational performance." H.O.D. ¶ 28 (internal quotation marks omitted). The PTE, along with a copy of the Procedural Safeguards were sent by regular and certified mail. The certified letter was returned to the District marked "unclaimed."
Parents did not respond to the District's PTE request because sometime between November 17 and November 28, 2008 Lauren began attending King George School ("King George"), a therapeutic boarding school in New England.
King George offers "an overall behavioral modification program that supplements with therapeutic aspects." P-71 at 4. While at King George, Lauren was assigned an academic advisor, a team leader, and a therapist, who met every few weeks to review Lauren's development. Id. Lauren spent half of her week at King George on academics, and spent the rest of the week doing activities like "rock climbing, art classes, things that would help her therapeutically. P-71 at 4; N.T. 156:15-17. Additionally, Lauren attended individual, group, and family therapy, as well as a recovery/12-step program. P-73 at 3.
In November or December 2008, Parents retained legal counsel. Additionally, Parents hired a Nationally Certified School Psychologist with licensure and school certification in his home state to conduct a private psychological evaluation of Lauren. On December 16, 2008 and January 5, 2009 the psychologist evaluated Lauren. Lauren was diagnosed with Dysthymic Disorder among other diagnoses. The psychologist concluded that Lauren qualified as an educationally disabled person
On April 1, 2009, Parents filed a due process complaint seeking only an independent educational evaluation ("IEE").
On July 9, 2009, the District conducted its evaluation of Lauren. As part of the evaluation process, the District psychologist had access to Lauren's diagnoses from two previous psychiatric hospitalization programs, as well as the private psychological evaluation completed by the out-of-state school psychologist in January 2009.
On August 15, 2009, Lauren graduated early from King George, after attending and passing all of her classes. N.T. 155:22-24; S-20; P-73 at 3. Following King George, she was able to successfully transition to Bloomsburg University. P-73 at 3.
On October 21, 2009, the District completed its Evaluation Report ("ER") for Lauren and issued a Notice of Recommended Educational Placement ("NOREP"). The ER concluded that Lauren did not have a disability and was not eligible for special education. S-12. The ER explained its conclusion as follows:
H.O.D. ¶ 43-44 (internal quotation marks omitted). Based on the ER, the NOREP concluded that Lauren was not in need of special education. Additionally, the NOREP concluded that Lauren was not in need of a § 504 Plan or an Individualized Education Plan ("IEP")
On November 5, 2009, Parents requested an IEE at public expense. On April 16, 2010, the District agreed to fund an IEE.
H.O.D. ¶ 48 (internal quotation marks omitted).
On March 11, 2011, after unsuccessful attempts to reach a settlement with the District, Parents filed a formal due process complaint in which they requested a due process hearing.
Lauren's due process hearing was conducted in two sessions on May 10, 2011 and July 5, 2011. At the end of the first session, the Hearing Officer concluded that the statute of limitations limited Lauren's recovery period under the IDEA and § 504 to the two years prior to the filing of the due process complaint. The Hearing Officer determined that Lauren could not recover for any injuries that occurred prior to March 11, 2009 because a formal due process complaint was not filed until March 11, 2011. Thus, the potential period for recovery was March 11, 2009 through August 15, 2009, the date Lauren graduated high school. The Hearing Officer devoted the second session to the merits of Lauren's claims.
On August 6, 2011, the Hearing Officer issued a written decision on the merits of Lauren's claims. The Hearing Officer concluded that the District had violated its "child find" obligations when it failed to identify Lauren as a Protected Handicapped Student under § 504 in April 2008. The Hearing Officer also concluded that the District had violated its "child find" obligations when it failed to identify Lauren as a student eligible for special education under the IDEA in July 2009.
While the Hearing Officer initially identified the potential period of recovery as March 11, 2009 to August 15, 2009 based
"When considering an appeal from a state administrative decision under the IDEA, district courts apply a nontraditional standard of review, sometimes referred to as `modified de novo' review." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir.2010). Under this standard, the district court must give "due weight" to the findings of the administrative hearing officer. Id. "Factual findings from the administrative proceedings are to be considered prima facie correct. If a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however, to substitute its own notions of sound educational policy for those of local school authorities." S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir.2003) (citation omitted) (internal quotation marks omitted). "[S]tatute of limitations claims and ... claims for compensatory education and tuition reimbursement are subject to plenary review as conclusions of law.... [W]hether the District fulfilled its FAPE obligations — [is] subject to clear error review as [a] question[] of fact." P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir.2009).
"Within the confines of these standards, a district court is authorized to make findings based on the preponderance of the evidence and grant the relief it deems appropriate...." Bayonne, 602 F.3d at 564. "[T]he party challenging the administrative decision bears the burden of persuasion before the district court as to each claim challenged." Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir.2012).
Based on the statute of limitations, the Hearing Officer concluded that Parents could only recover for the period from March 11, 2009 to August 15, 2009. In its motion for judgment on the administrative record, "The District respectfully submits that the Hearing Officer's decision regarding the application of the statute of limitations was appropriate and should not be disturbed." Def.'s Br. 7. In contrast, Parents contend that the Hearing Officer improperly limited their period for recovery
Two subsections of 20 U.S.C. § 1415 speak to the limitations period for IDEA claims. The limitations provision in 20 U.S.C. § 1415(f)(3)(C)) provides: "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." (emphasis added). Whereas, § 1415(b)(6)(B) 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) (emphasis added). Parents contend that these two subsections work in conjunction to require a parent to file a due process complaint within two years of when the parent knew or should have known of the alleged action that forms the basis of the complaint, while simultaneously allowing a parent to raise and recover for any claims that occurred within the two years prior to the date the plaintiff knew or should have known of the alleged action that forms the basis of the complaint.
Parents assert that the date they knew or should have known that the District had denied Lauren services under § 504 and the IDEA is September 15, 2010 when they received the IEE report, which concluded that Lauren suffered from an emotional disturbance in 10th and 11th grade that negatively impacted her ability to succeed academically. Thus, Parents argue they timely filed their complaint on March 11, 2011 because it was filed within two years from when they knew or should have known the District had denied Lauren services. Additionally, they argue that § 1415(b)(6)(B) entitles them to recover for any violations that occurred within the two years prior to September 15, 2010; therefore, they may recover for the period from September 15, 2008 until August 15, 2009, when Lauren graduated from King George.
Parents theory of the allowable time period for recovery is highly dependent on when they knew or should have known of the alleged action that forms the basis of the complaint. Although the Hearing Officer failed to make any finding as to the date Parents knew or should have known of the District's failures, this date is easily ascertainable.
"Accrual of the statute of limitations does not depend on a plaintiff's knowledge of the law, but rather on a plaintiff's knowledge of the injury." Centennial Sch. Dist. v. S.D. ex rel. Daniel D., No. 10-4129, 2011 WL 6117278 at *5 (E.D.Pa. Dec. 8, 2011) (internal quotation marks omitted). It "is triggered when the parent `knew or should have known about the alleged action that forms the basis of the complaint' and not when the parent becomes aware that the school district's actions are actionable." J.P. v. Enid Public Schs., No. 08-937, 2009 WL 3104014 at *6 (W.D.Okla. Sept. 23, 2009) (quoting 20 U.S.C. § 1415(f)(3)(C)). "In other words, plaintiff has two years from the date she learned or should have learned of her injury to request that the School District provide
In March or April 2008, Lauren's mother learned from a friend that Lauren's psychiatric hospitalization was a "huge red flag" for the District to provide Lauren with accommodations. This information prompted Parents to request a § 504 evaluation of Lauren. In April 2008, the District sent them a Denial of Eligibility Letter informing them that the District did not believe that Lauren qualified as a Protected Handicapped Student. By the end of October 2008, Lauren's psychologist and psychiatrist recommended that Parents meet with an educational consultant to place her in a different school. In November 2008, Parents unilaterally moved Lauren to a therapeutic boarding school because they did not feel that Lauren's educational needs were being met at East High. Additionally, in November or December 2008, Parents retained legal counsel to address the District's treatment of Lauren's education. While Lauren's parents may not have known and should not have known in April 2008 that the District had denied a FAPE to Lauren, by the time Parents removed Lauren from East High in November 2008 they knew or should have known that the District had not properly addressed Lauren's needs. Moreover, Parents retention of legal counsel in November or December 2008 indicates that they knew or should have known of Lauren's injury and were consulting with counsel to see if the harm was actionable. Therefore, Parents knew or should have known of the alleged action that forms the basis of their complaint by December 2008.
Parents are not entitled to recover for the time period from September 15, 2008 to August 15, 2009 because they knew or should have known of the alleged action that forms the basis of their complaint by December 2008. Parents did not file their due process complaint within two years from December 2008, which they were required to do under § 1415(f)(3)(C). Therefore, they did not timely file their complaint and are not entitled to recover for this longer time period.
The Hearing Officer concluded that Parents may recover under the statute of limitations for the time period from March 11, 2009 to August 15, 2009. The District does not challenge the Hearing Officer's determination. Therefore, I adopt the Hearing Officer's determination and conclude that Parents may only recover for violations that occurred on or after March 11, 2009 to August 15, 2009.
The IDEA requires states receiving federal funding to provide a FAPE to all disabled children residing within the State. 20 U.S.C. § 1412(a)(1). Section 504 of the RA prohibits discrimination on the basis of disability in federally funded programs. 29 U.S.C. § 794(a). The Third Circuit has "held that there are few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition and have noted that the regulations implementing § 504 require that school districts provide a free appropriate education to each qualified handicapped person in its jurisdiction."
A violation of the IDEA is not a per se violation of the RA; thus the elements of a § 504 claim must still be proven. Id. at 349-50. To prevail on a § 504 claim, a plaintiff must prove that
Ridgewood, 172 F.3d at 253 (citations omitted). Denial of a FAPE satisfies prong four because "[i]t is the denial of an education that is guaranteed to all children that forms the basis of the claim." Andrew, 490 F.3d at 350; see also Centennial Sch. Dist. v. Phil L. ex rel. Matthew L., 799 F.Supp.2d 473, 489 (E.D.Pa.2011) ("Parents are correct in asserting that they can establish that [the student] was denied a benefits to which all other students were entitled simply on the basis that [the student] was disabled if they can establish a denial of a FAPE.").
The District first challenges Parents' entitlement to tuition reimbursement by arguing that Lauren is neither a Protected Handicapped Student under § 504 nor a student in need of special education under the IDEA.
The District challenges Parents' legal premise that a denial of a FAPE can satisfy the fourth prong of a § 504 claim, which requires proof that the student "was excluded from participation in, denied the benefits of, or subject to discrimination at, the school." Additionally, the District challenges Parents' factual assertion that the District knew or should reasonably have been expected to know of Lauren's disability in April 2008.
The District also contends that the Hearing Officer erred in her determination that Lauren was a Protected Handicapped Student under § 504 in April 2008 because the District did not know and should not reasonably be expected to have known of Lauren's disability — her mental impairment. The Hearing Officer correctly concluded that the District was well aware of Lauren's emotional and behavioral problems prior to its April 16, 2008 determination that Lauren was ineligible for a § 504 Plan. In early 2008, a counselor from Bishop Shanahan informed the District that Lauren had behavioral issues. Additionally, Lauren self-reported to the guidance counselor that she was seeing a psychiatrist. Moreover, the guidance counselor knew Lauren was struggling with attendance issues. On March 8, 2008 Lauren was admitted to an inpatient psychiatric hospital for suicidal ideation. Parents immediately informed the District of Lauren's hospitalization, and the guidance counselor wrote a note indicating that Lauren had been admitted for "possible bipolar, depression," and "suicidal thoughts." On March 24, 2008, Parents emailed the guidance counselor a letter from Lauren's psychiatrist, stating that Lauren had been diagnosed with Major Depression, Attention Deficit/Hyperactivity Disorder, Obsessive Compulsive Disorder, and Anxiety Disorder. At the beginning of April 2008, when Lauren returned to East High, she visited the guidance counselor or crisis counselor once or twice a week.
When the District's Child Study Team met to determine if Lauren was eligible for a § 504 Plan, the team only reviewed academic records, student meetings, and written feedback provided by Lauren's teachers. The District ignored Lauren's psychiatric diagnoses, her inpatient and outpatient psychiatric hospitalization, and the fact that she was cutting classes to see the guidance or crisis counselor once or twice a week. Despite all of this available information, the District did not conduct its own evaluation of Lauren to lean more. Even worse, the District emailed Lauren's mother on the afternoon of April 15, 2008 to get additional information on Parents' request for § 504 Plan, but then issued a Denial of Eligibility Letter on April 16, 2008 without waiting for her response. Ample evidence supports the Hearing Officer's conclusion that the District should be reasonably expected to have known about Lauren's disability.
The District also argues that the Hearing Officer erred in her determination that Lauren was a student eligible for special education under the IDEA because she suffered from an emotional disturbance. Under the IDEA a student is eligible for special education services if s/he suffers from an emotional disturbance:
34 C.F.R. § 300.8(c)(4)(i). The District's psychologist concluded that Lauren did not have an emotional disturbance because it was unclear how long she exhibited the characteristics of emotional disturbance and even if she was emotionally disturbed, it did not negatively impact on her educational performance. This conclusion is directly contradicted by two psychologists, one who evaluated Lauren in December 2008 and January 2009, and the other who evaluated Lauren in September 2010. The District argues that its psychologist is allowed to reach a different conclusion. However, as the Hearing Officer determined, the District's conclusion is contrary to the evidence.
The District psychologist notes in her ER that as early as January 2008, Lauren was diagnosed with mood disorder, depression, anxiety, OCD, ODD, and major depression, severe. The District's psychologist was aware of Lauren's multiple inpatient and outpatient hospitalizations in 2008 for psychiatric reasons. Additionally, the District psychologist was aware of Lauren's diagnosis of Dysthymic Disorder, a disorder described in the DSM-IV as a chronic state of depression for a duration of at least two years within which no more than two months are free of mood symptoms. Moreover, the District's psychologist was aware that beginning in the spring of 2008, Lauren was seeking help from the guidance counselor or crisis counselor at least once a week. Furthermore, the District psychologist knew that Lauren's poor attendance was in part due to her hospitalizations and her frequent visits to the counselors' offices. Lastly, the District psychologist knew that, by the fall of 2008, Lauren was failing several of her classes. The above evidence amply supports the Hearing Officer's conclusion that Lauren suffered from an emotional disturbance that effected her educational performance.
Parents are entitled to tuition reimbursement under the IDEA for unilaterally changing their child's placement to a private school if the following three elements are proven: (1) the District failed to offer the student a FAPE; (2) the private placement is appropriate; and (3) equitable considerations favor reimbursement. Florence Cnty Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). Although the Third Circuit has not yet addressed whether tuition reimbursement is available for violations of § 504, several district courts have determined, based on the similarities between the IDEA and § 504, that tuition reimbursement is an available remedy for violations of § 504. See, e.g., Molly L. ex rel. B.L. v. Lower Merion Sch. Dist., 194 F.Supp.2d 422, 429 n. 5 (E.D.Pa.2002); Kevin M. v. Bristol Twp. Sch. Dist., No. 00-6030, 2002 WL 73233 at *5 (E.D.Pa. Jan. 16, 2002); Borough of Palmyra, Bd. of Educ. v. F.C., 2 F.Supp.2d 637, 641-42 (D.N.J.1998); Christen G. v. Lower Merion
"School districts have a continuing obligation under the IDEA and § 504 to identify and evaluate all students who are reasonably suspected of a having a disability under the statutes." P.P., 585 F.3d at 738. This is referred to as the statutes' "child find" obligations. See id. A child who is suspected of having a qualifying disability must be identified and evaluated "within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability." W.B. v. Matula, 67 F.3d 484, 501 (3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d Cir.2007) (en banc).
Once a child is identified as having a disability under the IDEA, "school districts must work with parents to design an IEP, which is a program of individualized instruction for each special education student." Ridley, 680 F.3d at 269. The IEP is "the primary mechanism for delivering a FAPE." Id. (internal quotation marks omitted). Like the IEP, a § 504 Plan is the mechanism for providing a FAPE under § 504. Phil L., 799 F.Supp.2d at 490. Thus, for a child with a qualifying disability, "a `free appropriate public education' consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child `to benefit' from the instruction." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). When a school district violates its "child find" obligations and fails to identify a student as a Protected Handicapped Student under § 504 or as a student in need of special education under the IDEA, and provides no specialized instruction to the student to meet the unique needs of his/ her disability, the student has been denied a FAPE. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) ("[W]hen a child
The Hearing Officer found that the District violated its "child find" obligations under § 504 in April 2008 when it failed to identify Lauren as a Protected Handicapped Student. Additionally, the Hearing Officer found that the District did not provide Lauren with a § 504 Plan, and Lauren did not receive any specialized instruction to meet the unique needs of her disability. However, the Hearing Officer failed to determine whether the District's failure to identify Lauren as a Protected Handicapped Student under § 504 in April 2008 was a denial of a FAPE. Rather, the Hearing Officer concluded that Lauren could not recover under § 504 because Lauren left the District before March 11, 2009, the start of the recovery period.
Parents argue that the District denied Lauren a FAPE in April 2008 when it failed to identify her as a Protected Handicapped Student under § 504. The District argues that even if Lauren is a Protected Handicapped Student, a school district's failure to provide a FAPE is not a violation of § 504. As discussed in the prior section, the District's assertion is legally incorrect. In April 2008, the District violated its "child find" obligations when it failed to identify Lauren as a Protected Handicapped Student under § 504. Because of this failure, the District never provided Lauren with specialized instruction to meet the needs of her disability. Therefore, the District denied Lauren a FAPE under § 504 beginning in April 2008 until her graduation on August 15, 2009.
Parents decision to remove Lauren from the District in November 2008 was due to the District's failure to provide Lauren a FAPE under § 504. The Hearing Officer's conclusion that Parents cannot recover because they removed Lauren from the District after it denied her a FAPE is contrary to the statute and established law. See Forest Grove, 557 U.S. 230, 238-39, 129 S.Ct. 2484 (holding that Parents are eligible for tuition reimbursement when a school district violates the IDEA by failing to provide a student with an IEP and the parents subsequently remove the student to a private school). Parents are entitled to seek tuition reimbursement for the District's denial of a FAPE to Lauren under § 504 for the entire period of recovery within the statute of limitations — that is from March 11, 2009 to August 15, 2009.
The Hearing Officer found that the District violated its "child find" obligations under the IDEA in July 2009 when it failed to identify Lauren as a student in need of special education under the IDEA. Additionally, the Hearing Officer concluded that the failure to identify Lauren as a student in need of special education in July 2009 was a denial of a FAPE. Specifically, the Hearing Officer determined that the District could not violate its "child find" obligations prior to July 9, 2009 because Parents had removed Lauren from the District in November 2008 and thereby prevented the District from evaluating Lauren. The Hearing Officer further determined that it was reasonable to give the District two weeks to complete its evaluation of Lauren before holding the District responsible for a denial of a FAPE. Thus, the Hearing Officer concluded that Lauren was not denied a FAPE until July 21, 2009. The District concedes that if Lauren is a student in need of special education
Parents argue that the District denied Lauren a FAPE under the IDEA much earlier then July 2009 because the District should have identified Lauren as a student in need of special education when it conducted its § 504 evaluation of Lauren in April 2008. However, the reason the Hearing Officer determined that Lauren was a student in need of special education is because she suffers from an emotional disturbance. To qualify as an individual with an emotional disturbance, a person must exhibit characteristics of emotional disturbance "over a long period of time." 34 C.F.R. § 300.8(c)(4)(i). In April 2008, the District was aware that Lauren had been diagnosed as of January 21, 2008 with Major Depression, Attention Deficit/Hyperactivity Disorder, Obsessive Compulsive Disorder, and Anxiety Disorder. The District was not provided with any earlier history of emotional struggles. Therefore, the District did not possess evidence in April 2008 that Lauren had been exhibiting characteristics of emotional disturbance "over a long period of time." The evidence does not support Parents' argument that the District should have identified Lauren as a student with an emotional disturbance in April 2008.
Alternatively, Parents argue that despite the fact that they unilaterally removed Lauren from the District in November 2008, and did not make her available for evaluation until July 9, 2009, the District denied Lauren a FAPE during this period.
In Mary T. v. School District of Philadelphia, the student was discharged from a psychiatric hospital on May 22, 2005. 575 F.3d 235, 239 (3d Cir.2009). The following day parents enrolled the student in a long-term psychiatric residential treatment center. Id. On June 15, 2005, approximately two weeks after learning of the student's placement in the residential treatment center, the school district sought to reevaluate the student and develop a new IEP. Id. at 249. However, with parents' consent, no evaluation took place for several months because of student's acute medical condition. Id. at 250. On October 12, 2005, Parents granted the school district permission to evaluate student because her condition had improved. Id. Thereafter, Parents alleged that student had been denied a FAPE from May 23, 2005 to October 12, 2005. Id. at 249. In Mary T., the Third Circuit held that the failure to evaluate the student and develop a new IEP was not the school district's fault, but was "attributable to the acute nature of [the student's] medical condition." Id. at 251. Accordingly, the Third Circuit held that the student had not been denied a FAPE. Id.
In this case, Parents completed and signed a PTE-Evaluation Request form on October 30, 2008. On November 24, 2008, the District sent Parents a PTE-Evaluation Consent Form, seeking permission to evaluate Lauren. Parents never responded to the District's request to evaluate Lauren because they had already removed her from the District and placed her in King George. Despite the District's willingness to evaluate Lauren, Parents did not make Lauren available for testing until July 9, 2009. As in Mary T., the District is not responsible for the failure to evaluate Lauren. Like the parents in Mary T., Parents chose not have Lauren evaluated until a later date. However, unlike Mary T., the failure to evaluate Lauren cannot be attributed to an acute medical condition; rather, it is attributable to Parents failure to follow through with Lauren's evaluation.
"The IDEA was not intended to fund private school tuition for the children
Lastly, Parents argue that even if a FAPE was not denied until July 2009, the date on which Lauren was first denied a FAPE is July 9, 2009, the date the District conducted its evaluation of Lauren. Parents dispute the Hearing Officer's determination that the District should be afforded two weeks to have completed its evaluation, and the resultant conclusion that the District did not deny Lauren a FAPE until July 21, 2009. Although the Hearing Officer gave the District a two week grace period to complete its ER, in actuality the District did not complete its ER until October 21, 2009, at which point it incorrectly concluded that Lauren was not entitled to services under the IDEA. There is no legal basis for providing the District with this grace period when in fact it took an unreasonably long time to complete its ER. Therefore, I find that the District denied Lauren a FAPE under the IDEA from July 9, 2009 until her graduation on August 15, 2009.
The Hearing Officer determined that the day portion of the program at King George was an appropriate placement for Lauren, but that there was no evidence that the residential portion of the program was appropriate. The District argues that there is no evidence that any portion of the King George Placement was appropriate. Parents argue the evidence supports that the entire program was appropriate.
To be an appropriate placement, a private school need not be "perfect." Ridgewood, 172 F.3d at 249 n. 8. However, it must "provide[] significant learning and confer[] meaningful benefit." Mary T., 575 F.3d at 242 (internal quotation marks omitted). A residential placement is appropriate only if the placement is necessary for educational purposes. Id. at 244-45. Thus, the issue is "whether placement was required for emotional problems and was therefore the responsibility of the parents or social service agencies or whether full-time placement was a necessary ingredient for learning." Kruelle v. New Castle Cnty. Sch. Dist., 642 F.2d 687, 693-94 (3d Cir.1981). To make this determination "we are to look to whether the `social, emotional, medical and educational problems .. . [are] so intertwined that realistically it is not possible for the court to perform the Solomon-like task of separating them.'" Mary T., 575 F.3d at 244 (quoting Kruelle, 642 F.2d at 694).
In the Fall of 2008, Lauren was failing four of her classes, struggling with attendance problems, and struggling emotionally. In November 2008, Lauren's psychologist recommended a therapeutic residential boarding school, which she believed was necessary to address Lauren's "failing grades" and "recurrent acting-out behaviors," and would assist Lauren in "school success." As a result, Parents sent Lauren to King George in late November. Shortly after her arrival, Lauren was again evaluated, and a second psychologist affirmed the importance of Lauren's placement
Those surrounding Lauren, including Lauren herself, recognize the immense academic and emotional strides Lauren made at King George. Lauren's therapist describes her as a "`poster child' for the growth and development made at [King George]." P-71 at 4. Lauren's mother explains that Lauren "definitely flourished there and felt much better about herself." N.T. 156:21-23. "Lauren report[s] that her experiences at the King George School were central in treating her psychological difficulties," and that since King George she has become a "more confident learner." P-73 at 5, 16. Moreover, the psychologist who conducted Lauren's IEE notes that "Lauren did well emotionally and academically." P-73 at 3. The IEE psychologist also states that "Individual and group therapies and the general program and atmosphere at the school helped Lauren's mood, motivation and general ability to focus on life and academics." P-73 at 16.
It is indisputable that Lauren succeeded both academically and emotionally at King George. Clearly, King George provided "significant learning" and conferred meaningful" benefit to Lauren. Although the District argues that Lauren needed the residential program because of substance abuse
The Hearing Officer determined that equitable considerations favored providing
Parents unilateral removal of Lauren from the District in November 2008 does not negatively impact Parents entitlement to tuition reimbursement under § 504 because Parents removed Lauren after the District had already denied Lauren a FAPE. Although, Lauren was denied a FAPE under § 504 in April 2008, the statute of limitations prohibits Parents from receiving any recovery for the period from April 2008 until March 11, 2009. Parents cannot recover for this period under the statute of limitations because they waited until March 11, 2011 to file a due process complaint. Parents did not file a formal complaint until March 11, 2011 because they first tried to resolve their differences with the District through settlement. If Parents had initially chosen to litigate, rather than attempt to settle, they would have been able to recover for the entire period that Lauren was denied a FAPE under § 504. That Parents could have recovered more if they had not first attempted settlement is an equitable consideration that weighs strongly in favor of awarding Parents full tuition reimbursement for the allowable period of recovery. Therefore, I find that equitable considerations favor tuition reimbursement under § 504 for the period from March 11, 2009 to August 15, 2009.
Although Lauren was denied a FAPE under § 504 in April 2008, she was not denied a FAPE under the IDEA until July 2009 because Parents unilaterally removed her from the District and did not produce her for evaluation under the IDEA until July 9, 2009. In Cape Henlopen, the Third Circuit explained that "[t]he IDEA was not intended to fund private school tuition for the children of parents who have not first given the public school a good faith opportunity to meet its obligations." 606 F.3d at 72. Accordingly, the Cape Henlopen Court held that equitable considerations weighed against tuition reimbursement where the parents had "disregarded their obligation to cooperate and assist in the formulation of an IEP, and failed to timely notify the District of their intent to seek private school tuition reimbursement." Id. Because Parents did not return Lauren to the District for an evaluation under the IDEA until July 9, 2009, I find that equitable considerations disfavor tuition reimbursement under the IDEA prior to July 9, 2009. However, I find that equitable considerations favor tuition reimbursement under the IDEA for the period from July 9, 2009 to August 15, 2009.
For the reasons stated above, I conclude that Parents are entitled to tuition reimbursement under § 504 from March 11, 2009 to August 15, 2009.
Molly L. ex rel. B.L. v. Lower Merion Sch. Dist., 194 F.Supp.2d 422, 427 n. 3 (E.D.Pa. 2002) (internal quotation marks omitted).
