United States District Court, D. Delaware
B.B., by and through his Parents, CATHERINE B. JIMMY B., Plaintiff,
DELAWARE COLLEGE PREPARATORY ACADEMY, and DELAWARE DEPARTMENT OF EDUCATION Defendants.
M. O'Connell Mahler, MCANDREWS LAW OFFICES, P.C.,
Wilmington, Delaware; Michael E. Gehring, MCANDREWS LAW
OFFICES, P.C., Berwyn, Pennsylvania Counsel for Plaintiffs
Valerie A. Dunkle, DELAWARE DEPARTMENT OF JUSTICE, Dover,
Delaware. Counsel for Defendant Delaware Department of
CONNOLLY, UNITED STATES DISTRICT JUDGE
B.B. (the "Plaintiff or "B.B."), by and
through his parents Catherine B. and Jimmy B. (the
"Parents"), move for reconsideration of the
court's opinion dated May 8, 2017 granting a motion by
Defendant Delaware Department of Education (the
"Department") to dismiss Plaintiff's complaint
pursuant to Fed.R.Civ.P. 12(b)(6) (hereinafter, the
"Dismissal Opinion"). (D.I. 19). Plaintiffs
complaint appeals the administrative decision of a due
process hearing panel denying his claims for a compensatory
education pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400 et
seq., and its federal and state implementing regulations,
including 14 Del. Admin. C. § 922 et seq. (hereinafter,
the "Panel Decision"). (D.I. 1). For the reasons
set forth below, I will deny Plaintiffs motion for
IDEA requires states receiving federal education funding to
provide a free appropriate public education to disabled
children. Coleman v. Pottstown School Dist., 581
Fed.Appx. 141, 146 (3d Cir. 2014); 20 U.S.C. §
1400(d)(1)(a). 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." Ridley Sck Dist. v.
M.R., 680 F.3d 260, 268-69 (3d Cir. 2012) (internal
punctuation omitted). An individualized education program
("IEP") is a written plan created by a team that
includes the child's parents and teachers. 20 U.S.C.
§ 1414(d)(1)(B). The IEP sets forth the package of
special educational and related services that are to be
provided to the disabled child. Carlisle Area Sch. Dist
v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995); Geis
v. Bd. of Educ. of Parsippany-Troy Hills, Morris Cty.,
774F.2d 575, 578 (3d Cir. 1985). The team must review the IEP
"not less than annually" and make revisions as
appropriate to ensure that the child is still receiving a
free appropriate public education that meets his or her
unique needs. 20 U.S.C. § 1414(d)(4)(A).
IDEA establishes several procedural safeguards for the
parents of a disabled child, including the right to present
an administrative due process complaint to the school
district "with respect to any matter relating to ... the
provision of a free appropriate public education to such
child." 20 U.S.C. § 1415(b)(6). If the school
district does not resolve the administrative complaint to the
parents' satisfaction, the parents have the right to
request an impartial due process hearing held before a panel
appointed by the Secretary of the Department of Education. 20
U.S.C. § 1415(f)(1); 14 Del. C. § 3135.
Absent two exceptions-neither of which Plaintiff invokes
here-the parents must request a hearing "within 2 years
of the date the parent[s]... knew or should have known about
the alleged action that forms the basis of the
complaint." 20 U.S.C. § 1415(f)(3)(C). This date is
sometimes referred to as the "KOSHK" date.
attended Red Clay Consolidated School District ("Red
Clay") at the West End Head Start preschool during the
2012-2013 school year. (D.I. 1 at ¶ 17). Red Clay
identified B.B. as a student eligible for and in need of
special education services. (Id. at ¶ 19). On
November 30, 2012, a team with Red Clay developed an IEP for
B.B. that included speech and language therapy six times per
month, for 30 minutes per session. (Id.). In August
2013, B.B. entered the kindergarten class at a public charter
school called the Delaware College Preparatory Academy (the
"Academy"). (Id. at ¶¶ 10, 20,
23). By November 30, 2013, which was the one-year anniversary
of B.B.'s first IEP, the Academy had not evaluated B.B.
for special education services, provided any special
education services to him, or ensured that the IEP team
conducted its annual review of the IEP as required.
(Id. at ¶ 20)
months later, on February 20, 2014, B.B.'s mother,
Catherine B., sent a letter to the Academy, noting that the
IEP was over a year old and requesting that the Academy
evaluate B.B. (Id. at ¶ 22). The next day,
February 21, 2014, Parents, on behalf of B.B., filed an
administrative due process complaint (the "February 2014
complaint"). (Id. at ¶ 23). The February
2014 complaint alleged that the Academy had "denied B.B.
a [free appropriate public education] by failing to provide
him with speech services for his entire kindergarten year and
by failing to update BJB.'s expired IEP."
(Id.). The February 2014 complaint requested that
the Academy fund an outside evaluation of B.B. to determine
his academic levels and speech and language therapy needs, as
well as provide compensatory speech therapy services.
(Id.). In May 2014, Parents voluntarily withdrew the
February 2014 complaint in order to seek the assistance of
new legal counsel. (Id.).
to Plaintiff, as of the end of August 2014:
[The Academy] still had not initiated an evaluation of B.B.
or convened a meeting to revise B.B.'s IEP. [The Academy]
consistently failed to comprehensively evaluate B.B.'s
educational needs, allowed his IEP to expire, and failed to
provide him speech services for a full school year ....These
failures were ongoing and continued through September 2014,
when B.B. was disenrolled from [The Academy].
April 1, 2016, through new counsel, Parents filed another
administrative due process complaint (the "April 2016
complaint"). (Id. at ¶ 29). By this time,
the Academy's charter had been revoked by the Red Clay
School Board, so the April 2016 complaint named both the
Academy and the Department as respondents. (Id. at
¶¶ 28-29). The April 2016 complaint sought "an
award of compensatory education for [the Academy's]
failure to provide B.B. a [free appropriate public education]
from September 2013 through September 2014."
(Id. at ¶ 29). On June 16, 2016, the hearing
panel issued the Panel Decision dismissing the April 2016
complaint based on the IDEA'S two-year statute of
limitations and the doctrine of latches. (Id. at
¶ 4; D.I. 4-1)