R.S. v. Lower Merion Sch. Dist.

R.S. and R.S., Individually and on Behalf of J.S., a minor v. LOWER MERION SCHOOL DISTRICT, 301 e. Montgomery Avenue, Ardmore, PA 19003

Civil Action No. 22-3478

United States District Court, E.D. Pennsylvania

February 24, 2023

MEMORANDUM OPINION

SAVAGE, J.

The goal of the Individuals with Disabilities Education Act (IDEA) is to provide each disabled student with an individualized educational program tailored to his changing needs and designed to achieve educational progress. As the Third Circuit Court of Appeals has recognized “[c]hildren are not static beings; neither their academic progress nor their disabilities wait for the resolution of legal conflicts.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995).

J.S. is caught in an administrative and legal process that does not timely respond to his changing needs. Citing his treating clinicians' recommendation that he return to his regular high school because his bipolar condition that led to his suspension and a proposed out-of-district placement is now successfully managed and his mood is stable, J.S. moved to supplement the administrative record and for a temporary injunction requiring the Lower Merion School District (“District”) to reinstate him.

Before explaining why we granted the motion for an injunction,^[1] we address the motion to supplement the record. We do so mindful of the Third Circuit's recognition that the legal and administrative processes do not readily adjust to a student's changing needs.

Factual Background

J.S suffered a manic episode with severe psychotic features over the weekend of November 19 through 22, 2021. He was hospitalized on November 22, 2021. Two days later, he was admitted to the Horsham Clinic where he received a preliminary working diagnosis of “Unspecified Bipolar disorder. Rule out, Bipolar disorder, manic with psychotic features.”^[2] J.S. was discharged from the Horsham Clinic on December 2, 2021. Upon discharge, he was prescribed 5 mg of Abilify at bedtime.

On December 16, 2021, J.S. had a second manic episode. Four days later, he was taken to Bryn Mawr Hospital Emergency Room where he was placed in restraints for one day. On December 22, 2021, J.S. was transferred to Montgomery County Youth Center (“MCYC”) where he remained until January 19, 2022. On January 4, 2022, while at MCYC, he had a third manic episode. He has had none since.

After his first manic episode, J.S. began treating with Dr. Robert L. Klein, a clinical psychologist, and Dr. Katie Hoeveler, a psychiatrist focusing on child and adolescent psychiatry. From December 7 to 19, 2021, J.S. engaged in six telehealth sessions with Dr. Klein. Dr. Klein shared his findings in his Psychological Report, dated December 19, 2021:

Diagnoses: Manic-Depression, ADHD, R/O Disruptive Mood Dysregulation Disorder

[J.S.], 16, was taken into custody and brought to Bryn Mawr Hospital for a psychiatric evaluation. He was then brought to Horsham Clinic for further treatment and discharged with further treatment recommendations.

We have engaged in six telehealth sessions starting 12/7/2021 to 12/19/2021. My conclusions to date are that [J.S.] is suffering from an undiagnosed manic-depressive disorder which has intensified during his teen years. He exhibits an excess of both manic and depressive cycling symptoms which account for his most recent behaviors and moods. Examples of these symptoms are: decreased need for sleep, racing speech and thoughts, excessive irritability, verbally aggressive behavior (in reaction to verbal threats,) impatience, poor judgment, an inflated sense of selfimportance, anger, worry and anxiety, inability to sleep, and grandiose thinking.

Reading through his internet communications, one notes an initial attempt to intimidate the provocateurs, followed by apologetic statements for his statements. Similarly, his encounters with the police were initially threatening then immediately submissive; not indicative of a violent person but suggesting a frightened rather than an aggressive person with a need for self-aggrandizement from the appreciation of others.

Manic-Depressive behavior is typically genetically inherited, triggered both by the genes and the environment. Presently, it is treated (but not cured) by a combination of medicine, talk therapy, family therapy, and “environmental therapy.” At present, the mood stabilizer he is taking (Abilify) is insufficient and the medication should be re-examined. (Also, to rule out DMDD, as should the previously diagnosed ADHD.)

In conclusion, given the proper treatment, [J.S.] should be able to function in his present school.^[3]

Dr. Hoeveler treated J.S. six times from January 2021 to May 2022. In a January 16, 2022 letter, Dr. Hoeveler wrote:

[J.S.] is under my care. He has been diagnosed with Bipolar Affective Disorder Type 1. He is being treated with Abilify 10 mg daily.

As his bipolar disorder is effectively treated at this time, his moods should remain stable, and his moods should not interfere with typical schooling. He should return to typical school.^[4]

She wrote four days later:

[J.S.] is under my care. He is diagnosed with Bipolar Affective Disorder 1.

[J.S.'s] potentially threatening comments and behaviors were made while he was in a manic state, a state characterized by grandiosity and delusions, when untreated. [J.S.] is now adequately treated for his Bipolar Affective Disorder 1, is currently euthymic, and poses no threat.^[5]

The manic episode and disciplinary referrals instigated an evaluation by the District. The Evaluation Report (March 2022 ER) was prepared by Dr. Tim Edge, the District's psychologist. Dr. Edge considered information from the parents, Dr. Hoeveler, Dr. Klein, the school records, school personnel, interviews of J.S., and test results. After reviewing this information, Dr. Edge concluded J.S. was a child with an emotional disturbance in need of special education and qualified to receive it. Dr. Edge explained why a typical school could not provide what J.S. needed:

[J.S.] requires a program which is academically challenging, but at the same time therapeutic, structured, and supportive. When increased insight into his behavior is evidence [sic], as well as ownership of his contribution to problems he has encountered, and an ability to see things from another's perspective, a return back to a less restrictive setting would be in in [sic] order. To program for [J.S.] in a public school setting at this time, which lacks an intensive therapeutic support component which he clearly requires at this time in his life, would place him at risk of failure and potentially increased behavioral difficulties. His medication and therapy supports are an excellent start, but there is a history of behavioral difficulties, lack of reaching potential, and considerable restorative work needed. [J.S.] responded well to his experience at the Youth Detention Center based on self, parent, and therapist report; this is obviously a highly regimented and structured program. Structure is something that [J.S.] needs right now.^[6]

Based on the March 2022 ER, an Individualized Education Program (“IEP”) was developed. The IEP recommended a therapeutic out-of-district placement, reasoning that “[a]t this time, [J.S.] is not able to participate in the general education classroom within his home School District. [J.S.] requires intensive therapeutic, emotional, behavioral, and social supports in order to appropriately meet his needs.”^[7] The District sent referral packets to potential placements. Only Lifeworks, an accredited academic school in a therapeutic setting designed to provide emotional support, accepted. Parents rejected the proposed placement and unilaterally enrolled J.S. in a private school, Fusion Academy, on February 28, 2022.

On March 24, 2022, Parents filed a due process complaint. A hearing officer conducted a four-day hearing over the course of three months, beginning in May 2022. Among the witnesses testifying were J.S.'s treating psychiatrist, the District's psychologist, and a psychiatrist retained by the District. The parties submitted over 1,500 pages of exhibits. The hearing officer issued his Final Decision and Order on August 26, 2022.

The hearing officer wrote:

The 2022 ER very clearly paints a picture of a child with Emotional Support needs that cannot be met in a typical high school. The level of therapeutic services that the Student requires to receive a FAPE do not exist in typical high schools, and the District is not obligated to create a school within a school for the Student.

....

A full-time, therapeutic, Emotional Support placement is appropriate for the Student.^[8]

Upholding the IEP, he explained:

Through the 2022 IEP and the Private School, the District offered a FAPE to the Student. I find no procedural or substantive flaw in the 2022 ER, and the 2022 IEP flows directly from, and is directly responsive to, that evaluation. It is individually tailored to the Student's needs and was reasonably calculated to provide a FAPE when it was offered.

....

. . . the District completed the 2022 ER and offered the 2022 IEP. While there are some flaws in the 2022 IEP, none of them are fatal. Moreover, the 2022 IEP flows directly from the 2022 ER and targets the Student's needs through appropriate goals with SDI and modifications tailored to enable the Student to satisfy those goals. The Private School in which the District offered to implement the IEP is also appropriate and does not constitute a violation of the Student's right to be educated in the least restrictive environment under the facts of this case. 2022 IEP was reasonably calculated to provide a FAPE at the time i[t] was issued.^[9]

J.S remained at Fusion Academy until November 2022 when...