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B.B. v. Delaware College Preparatory Academy

United States District Court, D. Delaware

February 27, 2019

B.B., by and through his Parents, CATHERINE B. JIMMY B., Plaintiff,

          Lauren 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 Education



         Plaintiff 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 reconsideration.

         I. BACKGROUND

         A. The IDEA

         The 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).

         The 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.

         B. Factual Background[1]

         B.B. 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)

         Three 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.).

         According 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].

(Id. at¶26).

         On April 1, 2016, through new counsel, Parents filed another administrative due process complaint (the "April 2016 complaint").[2] (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)

         C. ...

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