B.D. v. Cornwall Leb. Sch. Dist.

B.D., by and through his Parents, B.D. and J.D.,and B.D. and J.D., Individually, Plaintiffs v. CORNWALL LEBANON SCHOOL DISTRICT, Defendants

No. 1:20-cv-01944

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 5, 2021

(Judge Kane)

MEMORANDUM

Before the Court is Defendant Cornwall Lebanon School District ("Defendant" or "CLSD")'s partial motion to dismiss (Doc. No. 7) several counts of Plaintiffs B.D. ("BD"), by and through his Parents, B.D. and J.D. ("Parents"), and B.D. and J.D., individually (collectively, "Plaintiffs")' complaint (Doc. No. 1) for failure to state a claim upon which relief may be granted. For the reasons provided herein, the Court will grant in part and deny in part Defendant's motion.

I. BACKGROUND¹

Plaintiff BD is the minor son of Plaintiffs B.D. and J.D., all of whom reside within the boundaries of Defendant's school district. (Doc. No. 1 ¶¶ 10-11.) Defendant is a school district created and existing under the laws of the Commonwealth of Pennsylvania with an office located at 105 East Evergreen Road, Lebanon, Pennsylvania. (Id. ¶ 16.) BD is a student who is nearlythirteen (13) years old and currently attends Cedar Crest Middle School in CLSD, where he is in seventh grade. (Id. ¶ 12.) BD has been enrolled in CLSD since kindergarten. (Id. ¶ 44.) BD is a student with a disability under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and a "qualified individual with a disability" within the meaning of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), as he has been diagnosed with "Ketonic Hypoglycemia, Fine Motor Delay and a Seizure Disorder, which is epileptic in nature, and a speech and language disorder." (Id. ¶¶ 1, 13.) Further, "a neuropsychological report completed by the Children's Hospital of Philadelphia ("CHOP"), dated June 5, 2019, diagnosed [BD] as a child with Attention Deficit/Hyperactivity Disorder - Combined Presentation (F90.2); Developmental Coordination Disorder (F82), and Adjustment Disorder with mixed anxiety and depressed mood (F43.23)." (Id. ¶ 13.) BD is eligible for special education and related services under the IDEA, as he has impairments that substantially limit him in major life activities, specifically the activities of speech, communication, socialization, and learning. (Id. ¶ 14.)

This action seeks review of certain findings in a final decision and order (the "Hearing Officer Decision")² entered in an administrative due process proceeding conducted under state law, and confirmation of other findings of fact and conclusions of law in the Hearing Officer Decision, ultimately seeking a remedy of compensatory education against Defendant for a certain period during which Plaintiffs contend that "Defendant CLSD denied Plaintiff BD a free appropriate public education (FAPE) under IDEA." (Id. ¶¶ 2-3.) This action also seeks "compensatory damages for discrimination against BD based on his disabilities, discriminationagainst BD based on his race, and common law torts, all arising in connection with BD's schooling within the District." (Id. ¶ 4.)

BD was adopted from Ethiopia as an infant and has suffered from "a number of chronic and acute medical conditions over the years that have required ongoing treatment, including cancer (currently in partial remission) and an epileptic disorder, which causes frequent seizures, all [of] which have and continue to have a negative impact on his overall success at school." (Id. ¶ 45.) BD has also been diagnosed with hypoglycemia, Russell Silver Syndrome, and Beckwith-Wiedemann Syndrome, and was treated for "complex-partial seizures the first four years of his life, however his epileptic seizure disorder returned in 2017 and has continued." (Id. ¶ 46.) Plaintiffs assert that BD's seizures can occur multiple times throughout the day and "manifest[] by BD lacking his awareness and ability to understand what is happening in his environment, as well as up to 20 minutes delay cognitively post seizure where BD is unable to absorb information and resume normal activities and cognitive functioning." (Id. ¶ 47.) Defendant initially classified BD in regard to three disabilities: Wilms Tumor, Ketonic Hypoglycemia, and Fine Motor Delay. (Id. ¶ 48.)

Plaintiffs assert that BD was evaluated by the Lancaster-Lebanon Intermediate Unit (Unit 13) initially in the spring of 2013, and an evaluation report was issued in September 2013 by Defendant. (Id. ¶ 49.) That report determined that BD had developmental delays in the following areas: attention/memory, reasoning/academic skills, and perceptions/concepts, and noted that his score was "greatly impacted by his attention/focus and willingness to attempt required tasks." (Id.) The report found BD eligible for special education services; specifically, special education early intervention ("EI") services under the IDEA in the area of cognitive development to address his attention to tasks and following directions. (Id.) BD received an EIIndividualized Education Plan ("IEP") in April 2013 and received EI services prior to entering kindergarten. (Id. ¶ 50.)

Plaintiffs assert that CLSD enrolled BD in kindergarten without implementing his IEP, alleging that "CLSD made the decision not to accept [BD] as a child eligible for special education services even before conducting an evaluation or discussing options with the Parents," and that "Parents testified [in the administrative proceeding] that they wanted BD to remain eligible for special education and to maintain his IEP upon entry into kindergarten, but parents were not provided with any other options other than a reevaluation." (Id. ¶ 52.) Plaintiffs further assert that "[t]he decision to not implement BD's IEP was, therefore, based on the District's practice of not implementing EI IEPs." (Id.) Plaintiffs allege that CLSD's elementary school psychologist Phillip Rader ("Mr. Rader") testified in the administrative proceeding that he did not know whether the parents were able to waive reevaluation from EI to school age and create a new IEP, and that he further "testified that 'we would typically not just simply implement an early intervention IEP.'" (Id. ¶¶ 54-55.)

In May 2013 CLSD conducted a reevaluation of BD, and between May and September 2013, when the Reevaluation Report was issued, CLSD did not implement any of BD's EI IEP services. (Id. ¶¶ 57-58.) Plaintiffs allege that the Reevaluation Report was flawed in several respects, inasmuch as the CLSD "did not administer all of the subtests of the WPPSI [Wechsler Preschool and Primary Scale of Intelligence] for the September 2013 [report] or obtain a Full Scale IQ" and that "[d]espite Mr. Rader's knowledge of BD's eligibility for special education services in the area of cognitive development, the Reevaluation did not formally assess these underlying weaknesses, identified in the review of the Early Intervention findings, as impacting his cognitive and behavioral performance," and further, that "[i]n making his eligibilitydetermination, Mr. Rader also inaccurately claimed that there was no evidence that [BD's] health conditions adversely affected his educational performance." (Id. ¶¶ 60-63.) Plaintiffs assert that "[n]othing prevented the District from appropriately executing BD's EI IEP," but that despite the District's alleged obligation to do so, CLSD "stripped BD of his status as a student with a disability and then re-evaluated him without the test that related to and addressed his EI disability," ultimately concluding that BD was not eligible for an IEP. (Id. ¶¶ 65-67.) Plaintiffs allege that "[t]he Parents did not agree with the District's determination that [BD] was ineligible for special education services," but "were told that their options were to accept a 504 plan or go without any services at all." (Id. ¶ 68.)

Plaintiffs assert that while "[t]he District maintains that it developed a Section 504 Plan for [BD] in kindergarten," "no staff member has been able to locate the document" and "Parent has no recollection of its existence." (Id. ¶ 69.) Plaintiffs assert that "[a]ccording to the District, the Section 504 Plan developed for [BD] in Fall 2013 provided for occupational therapy, accommodations in fine motor skill weaknesses, and [BD's] access to the nurse, as needed, for medical reasons"; in addition, that 504 Plan "called for medical emergencies to be handled with a procedure that began with a call to 911." (Id. ¶¶ 70, 72.) Plaintiffs assert that the 504 Plan "referenced an Individual Health Plan (IHP), but none was provided to Parents at that time." (Id. ¶ 72.) Plaintiffs assert that "[d]espite their misgivings about the safety aspects of the District's plan, and its adequacy generally, Parents indicated general agreement with the Section 504 Plan as presented." (Id. ¶ 73.) Plaintiffs allege that during first and second grade, BD's occupational therapist and teacher noted that he had difficulty staying on task, while "Parent's requests for an IEP continued to be ignored." (Id. ¶ 74.)

Plaintiffs assert that "[i]n the fall of 2017, the District developed another Section 504 Plan, providing for occupational therapy, accommodations for fine motor skill weaknesses, a visual schedule, preferential seating, prompts to check work, end of day check-ins, and Student's access to nurse, as needed, for medical reasons," and that "[t]here was one goal for maintaining focus and attention and one for organizing materials," and that "[a]lthough the District was noticing that BD's needs were more involved, they added on to the 504 Plan and allocated the duty of remediating even more of Student's deficits to the [occupational therapist] instead of a special education teacher." (Id. ¶ 76.) Plaintiffs note that, "[a]s before, medical emergencies would be handled with a procedure beginning with calling 911, and the Plan referenced an IHP, but none was attached." (Id. ¶ 77.)

Plaintiffs assert that during the 2017-2018 school...