Andrew M. v. Delaware County Office of Mental Health & Mental RetardationAndrew M. v. Delaware County Office of Mental Health & Mental Retardation
Barry W. Krengel, Dolchin, Slotkin & Todd, Philadelphia, PA, Deborah J. Israel, Louis J. Rouleau, Michael B. Hazzard, Womble, Carlyle, Sandridge & Rice, Washington, DC, for Appellant.
Thomas A. Leonard, Richard P. Limburg, H. David Seidman, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, PA, Joseph M. Ruggiero, Arlington, VA, for Appellee.
SUR PETITION FOR PANEL REHEARING
The petition for panel rehearing filed by Appellant having been submitted to the judges who participated in the decision of this court and are not recused, it is hereby ORDERED that the petition for panel rehearing is GRANTED. The opinion filed May 9, 2007, is hereby VACATED, and a subsequent opinion will be issued.
/s/ D. Michael Fisher Circuit Judge
* The Honorable D. Brooks Smith participated in the oral argument, panel conference, and joined in the decision in this case, but has discovered facts causing him to recuse from considering the petition for rehearing. As panel rehearing has been granted by the remaining members of the original panel, The Honorable Anthony J. Scirica will be added to complete the coram for further proceedings regarding the merits of the appeal.
** The Honorable Gustave Diamond, United States District Judge for the Western District of Pennsylvania, sitting by designation.
Susan McDonough (Argued), Holsten & Associates, Media, PA, for Appellants.
Before FISHER, JORDAN and ROTH, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
This case comes to us on appeal from the District Court‘s grant of summary judgment in favor of Andrew and Deirdre M. (jointly the “Ms“). The District Court concluded that the Delaware County Office of Mental Health and Mental Retardation (“the County“) had violated Part C of the Individuals with Disabilities Education Act (“IDEA“) and the Rehabilitation Act (“RA“) by denying the Ms’ twin sons services in their natural environment, and granted the Ms compensatory education and attorney‘s fees. The County appealed, claiming that the Ms did not put forth evidence proving that the services required under the IDEA were discontinued for the period in question or that the services were not provided in an appropriate environment, and that the Ms failed to prove an RA violation. For the reasons set forth below, we will affirm the District Court‘s grant of summary judgment on the IDEA claim and reverse its grant of summary judgment on the RA claim.
I.
A.
R.M. and P.M. are brothers and fraternal twins who were born on November 10, 2000. The Ms are their parents. In 2002, both twins were presenting with significant speech and communication delays and functioning at levels significantly below their peers. Based on these problems, the County determined that they were eligible for Early Intervention (“EI“) services in accordance with Part C of the IDEA, and assembled a team to develop an Individualized Family Service Plan (“IFSP“) for each boy. After it was determined that the speech services the twins received were not effective in the home, the IFSP team determined that services could better be rendered in a classroom-based program as the boys needed social interaction with peers and adults. Therefore, the team and the parents filled out a “Justification for Center-Based Services” form, which authorized the boys’ speech services to be provided at a center for special-needs children run by the Cerebral Palsy Association of Delaware County (“CADES“).1 Both parties agree that the center is a segregated environment as it does not provide services for children who are not disabled.
As part of their IFSPs, both R.M. and P.M. used the Picture Exchange Communication System (PECS). The PECS provides a way for children with speech delays to communicate through the use of icons. Both boys received year-round PECS services. In March of 2003, Mrs.
In the meantime, on January 20, 2003, Mrs. M. requested that the EI services which were currently provided at the CADES center be provided in a “typical setting.” She told the County that she had found a location, St. Faith‘s, where the boys could have a classroom setting that included involvement with non-developmentally-delayed children. The County denied that request, stating that Delaware County could not provide that service as it did not have a contract to provide services at St. Faith‘s. Therefore, on January 22, 2003, the Ms enrolled the twins at St. Faith‘s at their own expense. While there is a dispute as to whether the boys continued receiving certain EI services somewhere other than St. Faith‘s, the County agrees that it did not provide EI services at St. Faith‘s between January and June 2003. The County‘s records indicate that Mrs. M. requested services at St. Faith‘s on at least two other occasions, April 30, 2003 and May 2, 2003. Eventually, the County sent someone to observe the boys at St. Faith‘s. Mindy Glassberg, the boys’ primary PECS therapist, testified that she observed the boys on April 28 and May 1, 2003, at Mrs. M.‘s request. The County‘s records indicate that it sent someone from CADES to observe the boys at St. Faith‘s in late May 2003. On June 5, 2003, the County informed the Ms that the CADES observer believed that two, hour-long units per month of speech services would be appropriate at St. Faith‘s. While Mrs. M. had been hoping for more frequent services, she agreed to begin with the two hours per month. Shortly thereafter, the boys began receiving EI services at St. Faith‘s.
In July, 2003, the Ms requested that a new PECS therapist replace Glassberg. The Ms claim that during the transitional period between therapists that followed, P.M. and R.M. were not provided the PECS services required by their IFSPs. The County did not dispute that there were missing PECS service hours.
B.
Based on their disputes with the County over the twins’ EI services, the Ms brought two different due process claims against the County. Initially, after the County denied Mrs. M.‘s request that it pay for her sons’ attendance at the PECS summer camp, the Ms brought a due process claim against the County seeking compensation for the boys’ attendance. After a three-day hearing (on June 10, June 25, and July 10, 2003), the Hearing Officer determined that, while attendance at the camp might be beneficial for the boys, it was not necessary. The boys were making appropriate progress under their IFSPs as written without attendance at the camp. Because there was general agreement between the Ms and the County that the IFSPs were appropriate, and because there was no strong evidence suggesting the boys were required to attend the camp, the Hearing Officer denied the Ms’ claim for compensation for the PECS summer camp.
The Ms appealed the decision to the District Court for the Eastern District of Pennsylvania.2 In addition to seeking compensation for the twins’ attendance at summer camp, the Ms also made a claim
In January 2005, the Ms returned to the administrative level seeking compensatory education for the PECS hours that were missed during the therapists’ transition and seeking relief because the twins were not provided EI services in their “natural environment” for the first five months they were at St. Faith‘s. The Ms also made a claim under the RA. All evidence and additional briefing was to be submitted to the Hearing Officer by May 24, 2005. The Ms submitted a brief on May 24 and additional exhibits on May 28. The County did not submit any information. Based on the evidence before her, the Hearing Officer ruled as to each twin individually.
The Hearing Officer made the following findings of fact. She determined that both children suffered from developmental delays that resulted in their approval for EI services under the IDEA. Both children had speech services transferred to the CADES center so as to receive services in a center-based program. This was necessary because the CADES program maximized interaction with peers and adults and provided a structured environment in which to engage in activities with other children and adults. After the twins began attending St. Faith‘s, the Ms expressed concerns that the boys were not interacting at an appropriate level and requested that someone from the County come observe the boys at St. Faith‘s. “It took at least two months for someone to observe [the twins] at St. Faith‘s.” As to the missing PECS hours, the Hearing Officer determined that the County failed to provide approximately nineteen hours of PECS services to R.M. and five hours of PECS services to P.M.
Based on these factual findings, the Hearing Officer made the same legal determinations as to each boy (except for finding that each was entitled to a different number of missing PECS hours). The Hearing Officer first determined that there was no dispute that the boys were deprived of PECS services while they were clients of the County. Finding that the most common remedy under Part B of the IDEA for deprivation of services is compensatory education, the Hearing Officer found that this was also an appropriate remedy under Part C and ordered the County to provide R.M. with seventy-seven fifteen-minute units of compensatory education services and to provide P.M. with nineteen fifteen-minute units of compensatory education services.
The Hearing Officer next addressed the Ms’ natural environment claims. The Hearing Officer determined that “natural environment” under Part C of the IDEA included St. Faith‘s, as it was an environment where typical, non-developmentally-delayed children would be found. Concluding that the “natural environment” requirement under Part C of the IDEA was analogous to the “least restrictive environment” requirement under Part B of the IDEA, the Hearing Officer found that it was the County‘s burden to show that the twins were educated in their natural environment. She found that the County had failed to show that it had provided the boys with services in their natural environment. The Hearing Officer ultimately awarded the Ms $755.50 in tuition reimbursement for each child for the time spent at St. Faith‘s without the services,
Following the decision, the County paid the tuition reimbursement ordered by the Hearing Officer, but the ordered compensatory education for the missing PECS hours was not provided, as the parties could not agree as to how to make up those hours. After the County refused to pay attorney‘s fees that the Ms had requested by letter, the Ms filed a complaint in the District Court for the Eastern District of Pennsylvania on August 12, 2005.
The Ms’ complaint sought attorney‘s fees under the RA, the Americans with Disabilities Act (“ADA“) and
Following service of the Complaint, the parties filed cross-motions for summary judgment. Based on the motions, the District Court entered judgment in favor of the Ms. As to the Ms’ claim that the Hearing Officer agreed with them on their natural environment claim but failed to provide compensation, the District Court agreed, finding that the services that had been provided to the twins at the CADES center prior to their enrollment at St. Faith‘s had ceased as of January 2003. “The County has not argued here, nor did they argue before the H[earing] O[fficer], that the prescribed services were actually provided between January and June, 2003, such as if, for example, the children attended both CADES and St. Faith‘s at the same time.” It, therefore, awarded the Ms compensatory education. As to the Ms’ claim under the RA, the District Court simply stated that “I have found that the Plaintiffs’ claim for five months of compensatory education for the missing supplemental services was valid. As the prevailing parties in a Rehabilitation Act case, Plaintiffs are entitled to recover attorney‘s fees.”4 The District Court found that the County could not be held liable under
Following this initial decision, entered on January 18, 2006, the District Court allowed the parties to provide additional briefing on the issue of attorney‘s fees. Following the receipt of briefs on the issue, the District Court again determined that the Ms could recover attorney‘s fees. While Part C of the IDEA does not provide for the recovery of attorney‘s fees, the District Court stated that attorney‘s fees were recoverable under
This timely appeal followed.
II.
We have jurisdiction over the final order of the District Court pursuant to
III.
Two of the claims in this case arise under Part C of the IDEA,
The County claims that the District Court made two errors when finding in the Ms’ favor on their IDEA due process claim. It argues that the District Court inappropriately put the burden of proof on the County, as the defendant, to prove that services continued while the twins were at St. Faith‘s, and that the District Court improperly found that services were not provided in the twins’ natural environment.
A.
The County first contends that the District Court improperly placed the burden on it to prove that appropriate services were provided to the twins. In its opinion, the District Court stated that the County failed to prove that any services were provided to the twins while they were at St. Faith‘s, as would have been the case if, for example, the twins had continued attending CADES in addition to St. Faith‘s. This, the County argues, impermissibly required it to bear the burden of proving the
We begin our analysis of the appropriate burden of proof with the language of the statute. Under Part C of the IDEA, an aggrieved party may bring an action in a district court to resolve its grievance:
Any party aggrieved by the findings and decision regarding an administrative complaint shall have the right to bring a civil action with respect to the complaint in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph, the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
As we have no case law directing the appropriate burden under Part C of the IDEA, we turn to relevant case law under Part B. Prior to 2005, most courts agreed that, at the due process hearing, the state or county providing services to individuals eligible under the IDEA bore the burden of proving that it was providing appropriate services. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 391 (3d Cir. 2006). However, that changed with the Supreme Court‘s 2005 decision in Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005). The Supreme Court made very clear that it was speaking only of the burden of persuasion—in other words which party loses if the evidence is closely balanced—and not of the burden of production—which party bears the obligation to come forward with the evidence at different points in the proceedings. Id. at 534. Because of the presumption that the plaintiff bears the burden of proving the essential elements of his claim, id., and finding nothing in the language of the IDEA to suggest otherwise, id. at 535-37, the Supreme Court held that the burden of persuasion lies with the party seeking relief. Id. at 537. Therefore, when the school district challenges an Individualized Education Plan (“IEP“) under Part B, the burden lies with it. When the parents challenge the IEP, the burden lies with them. We see no reason why the burden of persuasion would lie with a different party under Part C.
In addition to bearing the burden of persuasion, the party challenging an administrative decision faces the additional hurdle of overcoming a presumption that the Hearing Officer‘s findings were correct. Although a district court may make its own findings of fact by a preponderance of the evidence and look at evidence outside the administrative record, it is required to give the administrative decision “due weight.” Shore Reg‘l High Sch., 381 F.3d at 199 (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). “Under this standard, ‘[f]actual findings from the administrative proceedings are to be considered prima facie correct,’ and ‘[i]f a reviewing court fails to adhere to them, it is obliged to explain why.‘” Id. (quoting S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003)). In the case before us, these standards
In her decision, the Hearing Officer made several factual findings. She determined that the twins were not provided services at St. Faith‘s prior to the time the County sent people to observe them. “Months went by before MH/MR [the County] even agreed to observe [the twins] at St. Faith[‘]s let alone provide services there although St. Faith[‘]s was [the twins‘] natural environment.” The District Court had to give due weight to that decision. However, the Hearing Officer did not explicitly find that the County failed to provide services to the twins at a location other than St. Faith‘s, such as CADES. Therefore, the District Court‘s statement that “[t]he County has not argued here, nor did [it] argue before the H[earing] O[fficer], that the prescribed services were actually provided between January and June, 2003, such as if, for example, the children attended both CADES and St. Faith‘s at the same time[,]” was made based on its own review, not by giving due weight to the Hearing Officer‘s determination.
In their papers before the District Court, the Ms argued that “the County failed to provide the twins with special instruction for the first five months that they were in the natural environment.” They further alleged that “each twin is entitled to compensatory education for missing special instruction that [was] identified on each one‘s IFSP but which [was] not delivered from the point the County stopped delivering the service until such time as the Team developed a new IFSP.” “Each twin was denied 20 hours of special instruction from January 2003 until June 2003—100 hours each.” In support of this contention, the Ms pointed to the fact that Mrs. M. requested that services currently provided at the CADES center be transferred to St. Faith‘s, subsequently enrolled her children in St. Faith‘s, and then twice requested that services be provided at St. Faith‘s. This, the Ms argue, allows for a reasonable inference that the twins were not being provided services anywhere. The County countered merely by stating that the Ms did not provide sufficient evidence that services were not provided. It never argued that services actually were provided. In its opinion, the District Court faulted the County for failing to argue that services were provided or provide any evidence of the continuation of services. The County argues that this improperly shifted the burden of proof.
However, we need not decide whether under these circumstances—where a party opposes summary judgment simply by claiming a lack of proof rather than by disputing a material fact—the District Court improperly placed the burden on the defendant. The Ms did not need to prove that services stopped entirely in order to prove their claim. Just as a state agency may violate Part B of the IDEA by providing services but failing to do so in the least restrictive environment, T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578-79 (3d Cir. 2000), when an agency
B.
The question we are left with, then, is not whether there was sufficient evidence to show that services were stopped altogether, but whether the District Court appropriately found that the County had violated the IDEA by not providing EI to the twins at St. Faith‘s. In other words, we must address whether St. Faith‘s is the kind of natural environment contemplated by the IDEA.
We again begin with the language of the statute. Part C of the IDEA provides money to states that “develop and implement a comprehensive, coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with disabilities and their families.”
In the present case, the Hearing Officer determined, and the District Court agreed, that the twins were denied access to special instruction in their natural environment. As the County did not appeal the decision of the Hearing Officer, it appears that it is bound by that decision. However, even if it was not bound by that legal determination, its claim would still fail. At this stage, the County argues that “natural environment” does not include preschools. It turns first to the language used to describe natural environment as support. Citing to Note 1 of
However, for these and other eligible children, early intervention services must be provided in natural environments (e.g., the home, child care centers, or other community settings) to the maximum extent appropriate to the needs of the child.
In fact, the regulations define “natural environment” much more broadly than the list provided in Note 1 to
The County also argues that the Hearing Officer‘s comparison between the “natural environment” requirement in Part C of the IDEA and the “least restrictive environment” requirement under Part B of the IDEA was error. Under Part B of the IDEA, a child must be provided with educational services in the “least restrictive environment.”
The County next claims that the District Court erred by granting the Ms attorney‘s fees under the RA. It argues, first, that the Ms failed to prove a violation of the RA, and, alternatively, that even if the Ms had proved a violation, attorney‘s fees are not appropriate because Part C of the IDEA does not allow such a recovery. We agree with the County that the Ms failed to prove a violation of the RA.
The Ms premised their RA violation on the same facts used to prove their IDEA claim, namely that the County failed to provide services for their sons in their natural environment. In its opinion, the District Court found that this was sufficient to prove a violation of the RA. Citing our opinions in Ridgewood Board of Education v. N.E., 172 F.3d 238 (3d Cir. 1999), and W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995),10 the District Court stated that “there are very few differences, if any, between the IDEA‘S affirmative duty to educate a handicapped child and the Rehabilitation Act‘s prohibition in
Our case law makes clear that a party may use the same conduct as the basis for claims under both the IDEA and the RA. In Matula, we found that “Congress specifically intended that [Education of the Handicapped Act, the predecessor to the IDEA,] violations could be redressed by
Section 504 of the RA states:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
(2) With respect to public preschool[,] elementary, secondary, or adult educational services, a handicapped person (i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is
mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; . . .
(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.
Based on this language, it is clear why violations of Part B of the IDEA are almost always violations of the RA. Under
As the County argues, the analysis is not the same under Part C of the IDEA as it is under Part B. As we have established, children denied services under Part B of the IDEA are “otherwise qualified” to participate in school and are denied that education because of their disabilities. However, children under the age of three, who are covered by Part C of the IDEA, are not entitled to a free and appropriate education under
For the reasons set forth above, we will affirm the District Court‘s grant of summary judgment and award of compensatory education on the Ms’ IDEA claim, but will reverse the District Court‘s grant of summary judgment and award of attorney‘s fees on the Ms’ RA claim and remand so that the District Court may enter summary judgment in favor of the County on that claim.