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M.P. v. Campus Community School

United States District Court, D. Delaware

October 9, 2018

M.P., et al., Plaintiffs,
v.
CAMPUS COMMUNITY SCHOOL, Defendant.

          MEMORANDUM

          Gerald Austin McHugh United States District Judge.

         This is an appeal under the Individuals with Disabilities in Education Act (IDEA) challenging a compensatory education award by a Special Education Due Process Hearing Panel. Plaintiff M.P. is a student with disabilities who attended Defendant Campus Community School (CCS) without an Individualized Education Program (IEP) for nearly three years, despite documented health issues, frequent absences, academic and social struggles, and requests by his first grade teacher and mother that he be evaluated. With his parents (collectively, “Plaintiffs” or the “family”), M.P. filed a Due Process complaint, alleging that CCS failed to provide a free and appropriate education for M.P., as the law requires. The Panel agreed and awarded Plaintiffs nearly two years of compensatory education at $17.50 per hour, imposing a four-year limit on M.P.'s use of the funds. After careful review of the record, I modify the number of compensatory education hours, hourly rate, and time limit imposed, but affirm the remainder of the award.

         I. Background: Panel's Decision and Administrative Record

         Plaintiff M.P. is a disabled child with a seizure disorder, dyslexia, learning disabilities in reading, math, and writing, and processing and memory issues. After completing kindergarten in a public school, M.P. enrolled in first grade at Defendant Campus Community School (CCS), a charter school, in late August 2011. Months before M.P. started at CCS, his mother notified the school in her initial application that, although M.P. was not then on an Individualized Education Program (IEP) or 504 Plan, he was receiving “extra help with [a] reading specialist” and had epilepsy.[1] Administrative Record at 426, ECF No. 21 [hereinafter “A.R.”]. Despite this, and later, CCS's knowledge of M.P.'s health impairments, his academic and social struggles in the classroom, requests by both his first grade teacher and parent for educational evaluations, and his excessive absences due to documented health issues, including a five-month absence for pertussis, CCS failed to evaluate him until late in his third grade year, and did not implement an IEP until his last week of that year (May 2014). After three years at the school, M.P.'s family withdrew him from the school in September 2014, at the start of fourth grade.

         M.P.'s family filed a timely Due Process complaint in August 2015 asserting that CCS had violated his rights under the Individuals with Disabilities Education Act, 20 U.S.C. § 1414 (IDEA). Pursuant to Delaware's IDEA structure, the family's complaint went before a three-member Due Process Panel [hereinafter “the Panel”], which considered thousands of pages of records and conducted a two-day hearing in November 2015. The Panel issued its decision on December 11, 2015. See Decision and Order, A.R. at 6-19 [hereinafter “Panel Decision”].

         In its decision, the Panel summarized the hearing testimony and set out its factual findings and legal conclusions. Unfortunately, the phrasing of many of these findings and conclusions are vague and their underlying rationale even less clear. Indeed, the simple language of the Decision is at times difficult to comprehend because of its disjointed sentences and typos. What follows is my best attempt to decipher the Panel's findings and reasoning based on the language of the Decision and my own review of the administrative record.

         The Panel Decision can be divided into its findings as to what actually happened during M.P.'s three years at CCS and what the Panel concluded should have happened. I first review the former. The Panel found that “during the fall” of 2011, M.P.'s first grade year, he was exhibiting “certain behaviors” in class and his teacher and mother worked together to determine if he was having some kind of seizure. Panel Decision 10. M.P.'s mother consulted his neurologist and informed the teacher that, according to the neurologist, his behavior was not a seizure but could be a “possible processing issue” in reading. Id. The record shows that this Panel finding was based on emails between M.P.'s mother and teacher on November 3, 2011, in which they discussed M.P.'s epilepsy and that he would often “stare off, ” not respond when spoken to, and be unable to recollect what was being taught. See A.R. at 442. In that email, M.P.'s teacher told his mother: “I contacted special services today and talked to her about writing up a 504 [Plan] or IEP for [M.P.] due to his epilepsy . . . .” Id.

         The Panel also found that M.P.'s mother “at some point during [his] first grade year requested . . . a psycho educational evaluation of [M.P.] for dyslexia reading and testing for Student's attention difficulties.” Panel Decision 10. This request, according to the Panel, “was based on and consistent with” a note from M.P.'s neurologist, which his mother provided to CCS sometime between December 20, 2011 and February [3], 2012.[2] Id. More precisely, emails in the record suggest that the mother's request was made sometime before January 27, 2012, when it is clear that she had already informed the school of M.P.'s dyslexia diagnosis. See A.R. at 444.

         Unfortunately, CCS did not comply with the family's request but instead scheduled M.P. for a far more limited evaluation-a test for Irlene Syndrome (light sensitivity)-without informing his mother of the change.[3] Panel Decision 10. CCS gave M.P.'s mother a Permission to Evaluate form on February 8, 2012, which she signed the same day, see A.R. at 446-47, but the Panel concluded that the document did not “put mother on notice that [M.P.] would not receive the psycho educational evaluation” she requested. Panel Decision 10. Afterward, despite M.P.'s mother's repeated inquiries about the test results, CCS waited until 2014 to inform her that it had not done the comprehensive testing she requested. See id.

         M.P.'s academic struggles, anxiety issues, and frequent, health-related absences continued into third grade, when his family hired a private tutor to work with him and his sister. In late March of that year (2014), CCS initiated an Informal Educational Evaluation by the school psychologist who determined that M.P.'s reading skills were “average” but that he needed more consistent attendance and “catch-up support, ” to be closely monitored, a consult with a speech/language therapist, and possible counseling for anxiety. A.R. at 524-29. The family disagreed with these results and requested, pursuant to their IDEA rights, a more comprehensive, school-funded independent evaluation. That evaluation, conducted on May 8, 2014 by Dr. Lynn Erb, Ph.D., revealed that M.P. had learning disabilities in math, reading, and written language, ADHD, and problems with memory and executive functioning. Id. at 560.

         Less than three weeks later, on May 27, 2014, CCS finalized an IEP for M.P., just before the close of his third grade year. See IEP, ECF No. 21-1 at 159-170. The Panel found the IEP “adequate, ” in that it “discuss[ed] [M.P.'s] particular, specific needs that result from his Disability, ” proposed evaluating him for occupational therapy, and “addresse[d] his focus and attention deficits, reading comprehension, written expression and math calculation with benchmarks.” Panel Decision 11, 13. The Panel emphasized that the IEP was “reviewed in detail by the Panel in light of the Independent Educational Evaluation done by Dr. Lynn Erb, Ph.D. and was found to be sufficient [-]not only agreeable by Mother.” Id. at 13. The IEP itself shows that it classified M.P. as disabled in the Other Health Impairment and Learning Disability categories. IEP 1. It recommended small group instruction in math, reading, and writing, and that he be evaluated for speech/language and occupational therapy, id. at 3-but, CCS failed to perform these recommended evaluations in the nearly four months between the creation of the IEP and M.P.'s withdrawal from CCS.[4] The IEP team concluded that Extended School Year (ESY) was not required, id. at 11, but CCS gave M.P.'s family the option of sending him to summer school (with instruction presumably governed by the new IEP), which the family declined. Panel Decision 11.

         Moving to what CCS should have done differently in educating M.P., the Panel concluded that he needed an IEP to receive an appropriate education and that the IEP should have been in place far sooner. The Panel stated that CCS “finally did what it was supposed to do” on May 28, 2014, the first day the IEP was in place. This is the closest the Panel came to a clear announcement that M.P. had, until then, not received the free and appropriate public education (“FAPE”) the IDEA guarantees. But exactly when, according to the Panel, M.P. should have been issued an IEP is unclear. The Panel seems to have concluded that CCS had “enough information” to know that M.P. “qualified for an IEP” by February 3, 2012 at the latest. See Panel Decision 12. The Panel wrote: “The evidence was that [CCS] had [MP's neurologist's] diagnosis of epilepsy in late September 2011 but that more critically . . . [the neurologist] was suggesting [that the] school do a psycho educational testing [sic] [of] Student for Dyslexia Reading and attention testing.” Id. The Panel concluded that the school knew all this, and also of his poor results on the limited testing it had performed by-at the latest-February 3, 2012. Id.

         The Panel also emphasized that the school should have complied with the mother's request for a comprehensive psycho-educational evaluation and that the “limited” assessments done in M.P.'s first grade year were inadequate. Id. at 12. The Panel deemed her request “equivalent to a request for Initial Evaluation” under the IDEA. Id. at 10; see 20 U.S.C. § 1414(a)(1)(B)-(C)(i) (setting out procedures for complying with a parent's request for an initial evaluation). Accordingly, the school's failure to comply-or to notify her of its refusal to do so-violated not only the IDEA but also the Delaware regulations implementing it. Id. at 12 (citing 14 Del. Admin. Code 926.3.1-2, which requires schools to provide written notice to parents before they propose to change the evaluation of, or refuse to evaluate, a child with a disability). But the Panel's focus on the mother's request seems to have factored principally into its timeliness analysis, rather than its decision on when the IEP should have been in place; it found the Complaint timely because the family filed it within two years after CCS finally informed them that it had not done the requested testing. See Id. at 12; see generally 20 U.S.C. § 1415(C) (explaining that a hearing request is timely when filed within two years of the date the parent knew or should have known of the violation).

         With no clear decision as to the date by which CCS should have identified M.P. as eligible for an IEP, the Panel next analyzed “if [CCS] should have been testing to formulate what the IEP would include, when should [CCS] have had an IEP in place.” See Id. at 13. Presumably, this inquiry sought to analyze how much time CCS reasonably needed to develop and implement an IEP once an evaluation determined he needed one. The Panel wrote:

[G]iven the complexity of the Student's symptoms, it is reasonable that Student should have had an IEP by the beginning of his Second School Year. In reaching this conclusion, we believed that it should have been done in about the same time frame as when the Student returned from Pertussis in the third grade until completion.”

Id. The Panel made no attempt to explain its reference to M.P.'s third grade pertussis absence and I can glean no significance from it.[5] I therefore return to the Panel's earlier finding that CCS “should have completed the testing requested by Mother and completed an [IEP] by the start of Student's second grade year [late August 2012]. This was a reasonable amount of time.” Id. at 11. Because the Panel concluded that the school should have known of M.P.'s need for an IEP before February 3, 2012, it appears that this “reasonable time” conclusion gave the school from then until August 2012, when M.P. began second grade. In other words, the Panel concluded-without explanation- that, from the time the school should have identified M.P. as needing an IEP, it would have been reasonable for CCS to take an additional six or seven months to create one. In actuality, the record shows that, when a comprehensive evaluation was finally conducted (by Dr. Erb on May 8, 2014), just seven days after the family requested it, the school finalized his IEP just nineteen days later-a total of twenty-six days from the evaluation request to the finalized IEP.

         The Panel ultimately awarded full, seven-hour days[6] of compensatory education [hereinafter “comp. ed.”] for M.P.'s second grade year and most of third grade, through the day the IEP was implemented at the very end of the year (May 28, 2014). The Panel did not hear evidence from either party as to the appropriate hourly rate. See Hr'g Tr. 654-55, A.R. at 158-59; Mem. 4, Robinson, J. (Jan. 6, 2017), ECF No. 27 ([P]laintiffs' counsel was under the impression that ‘the issue of relief' would be addressed in a separate hearing and, therefore, neither party affirmatively presented relevant evidence.”). Instead, the Panel concluded that the rate would be $17.50 per hour, based solely on the fact that the family had at one point paid a tutor $35 per hour to tutor M.P. and his sister: “District [sic][7] set forth no basis why the rates should be $75 per hour when Mother was paying a tutor who was a certified special education teacher $35 per hour to teach 2 students . . . .” Panel Decision 13. The Panel decided that the award should not be reduced by the meager homebound instruction hours provided during the pertussis absence, because they were “not pursuant to an IEP” and, as such, “do not offset the educational deficit” to M.P. Id. at 11. Finally, the Panel held that the funds must be used “for [M.P's] educational benefit” no later than December 11, 2019-four years from the date of the Decision-because M.P. “has an educational deficit and the sooner addressed the better prospect of greater remediation.” Id. at 13. The Panel ordered that any funds not used within that timeframe be returned to “District, and if District not around, the school district student is [then] attending.”[8]

         II. Standard

         The governing standard in this case, as I recently stated in the related case of ...


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