FLICK et al v. DELAWARE COUNTY INTERMEDIATE UNIT

Filing 7

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 10/4/2017. 10/6/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
C.F., by and through his
parents, WILLIAM and LESLIE
FLICK,
Plaintiffs,
v.
DELAWARE COUNTY INTERMEDIATE
UNIT,
Defendant.

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CIVIL ACTION
NO. 17-CV-1599

MEMORANDUM
Joyner, J.

October 4, 2017

Before the Court is Defendant’s Motion to Dismiss (Doc. No.
5) and Plaintiffs’ response thereto (Doc. No. 6).

For the

reasons stated below, Defendant’s Motion to Dismiss is DENIED and
this case is REMANDED.1
I.

Factual and Procedural Background2
William and

Leslie Flick (“Parents”) brought this action

individually and on behalf of their son, C.F. (collectively with
1
This Memorandum primarily addresses DCIU’s argument that Plaintiffs’
IDEA-based claim should be dismissed under Fed. R. Civ. P. 12(b)(6), which was
the same basis upon which the Hearing Officer dismissed Plaintiffs’ Due
Process Complaint below. This Memorandum also addresses DCIU’s argument that
Plaintiffs’ pre-2014 injuries should be barred by the statute of limitations
based on the face of Plaintiffs’ Due Process Complaint, which, again, the
Hearing Officer accepted below. Infra p. 11 n.7. We write to correct the
Hearing Officer’s erroneous conclusions of law on these two points. DCIU’s
remaining argument, regarding administrative exhaustion, is denied without
prejudice and may be asserted after this matter is fully and properly
adjudicated at the administrative level. See id.
2
Unless otherwise noted, the facts are taken from Plaintiffs’
Complaint. (Doc. No. 1). In line with the standards governing Fed. R. Civ.
P. 12(b)(6), all factual allegations in the Complaint are generally accepted
as true. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

1

Parents, “Plaintiffs”), against the Delaware County Intermediary
Unit (“DCIU”) for alleged violations of the Individuals with
Disabilities in Education Act (“IDEA”), Section 504 of the
Rehabilitation Act, Title II of the Americans with Disabilities
Act, and Title 22, Chapters 14 and 15 of the Pennsylvania Code.
Compl. ¶¶ 26-41.
DCIU is a Local Education Agency (“LEA”) under the terms of
the IDEA.
14.103.

20 U.S.C. § 1401(19); 34 C.F.R. § 300.28; 22 Pa. Code
C.F. is a child with a disability under the IDEA and has

attended school in the area serviced by DCIU for all times
relevant to Plaintiffs’ claims.

Compl. ¶¶ 6,13.

C.F. was born with distal arthrogryposis and was later
diagnosed with hip dysplasia and strabismus by the age of two.
Id. ¶ 5.

Around 2006, while in preschool, DCIU first evaluated

and diagnosed C.F. with a Specific Learning Disability.
5, 11.

Id. ¶¶

In 2008, Parents enrolled C.F. in private school at St.

Katherine of Sienna for the first grade.

Id. ¶ 13.

Parents

allege that they “made th[is] move based, in part, on
representations from [] the DCIU . . . that C.F. did not require,
and would not receive, further special educational services or
programming.”

Id.

DCIU reevaluated C.F in 2012.

Id. ¶ 14.

Based on the

Complaint, DCIU diagnosed C.F. with Attention Deficit Hyperactive
Disorder and an Autism Spectrum Disorder.

2

Id. ¶¶ 5, 14.

In

2014, DCIU again reevaluated C.F.

Id. ¶ 15.

Despite noting that

C.F. tested below the average range in processing information and
defining vocabulary words, DCIU found that C.F. was no longer
disabled and was therefore not eligible for special education
services.

Id.

In 2016, Parents noticed C.F. was struggling to advance
academically.

Id. ¶ 16.

On their own initiative, Parents had

C.F. undergo two separate evaluations, one by a psychoeducational
professional and another by a speech and language pathologist.
Id.

Parents allege “[t]he private evaluators concluded that

C.F.’s underling deficits in expressive and receptive language
were far more severe than previously indicated and interfered
with his ability to acquire appropriate skills in reading
comprehension.”

Id.

Parents further allege that, “[i]n addition

to affirming the diagnosis of Autism Spectrum Disorder, both
private evaluators found that C.F. has a Mixed ReceptiveExpressive Language Disorder and a Reading Disorder.”

Id.

On December 19, 2016, Plaintiffs filed a Due Process
Complaint, as permitted under the IDEA, with the Pennsylvania
Office of Dispute Resolution (“ODR”).

Id. ¶ 19; Pls. Due Process

Compl. (Doc. No. 5-3); Ruling of Hearing Officer, Jan. 6, 2017
(“H.O. Ruling”) (Doc. No. 5-1).

Plaintiffs sought “compensatory

education and other relief due to the failure of the DCIU to
identify C.F.’s disabilities and offer Equitable Participation.”

3

Pls. Due Process Compl. ¶ 4; see Compl. ¶¶ 19-20; Pls. Resp. at 2
(Doc. No. 6).

Specifically, Plaintiffs claimed DCIU violated

C.F.’s rights under the IDEA by denying him “equitable
participation in education” though its failure “to properly
identify C.F. as a parentally-placed private school child with a
Receptive-Expressive Language Disorder and a Reading Disorder
since the 2008-2009 year.”

Pls. Due Process Compl. ¶ 17; see

Compl. ¶ 26.
ORD assigned the matter to a Hearing Officer.

Compl. ¶ 20.

DCIU filed a sufficiency challenge to Plaintiffs’ Due Process
Complaint.

Id.

DCIU argued Plaintiffs had failed to state a

claim upon which relief could be granted and that, if any claims
survived, recovery should be limited to the two-year period
directly preceding Plaintiffs’ filing date.

Id. ¶ 21. The

Hearing Officer sustained DCIU’s sufficiency challenge and
dismissed Plaintiffs’ Due Process Complaint with prejudice.
Ruling at 1.

H.O.

The Hearing Officer also accepted DCIU’s argument

that Plaintiffs’ recovery would have been limited to the two-year
period directly preceding Plaintiffs’ filing date based on
negative inferences he made from the allegations within
Plaintiffs’ Due Process Complaint.

Id. at 9-11.

Following the

Hearing Officer’s adverse disposition, Plaintiffs timely filed
the instant lawsuit pursuant to 20 U.S.C. § 1415(i)(2)(A).
II.

Motion to Dismiss

4

DCIU moves to dismiss Plaintiffs’ Complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief
can be granted and under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction.3

DCIU Mot. to Dismiss at 5-6 (“DCIU

MTD”) (Doc. No. 5).
A.

Standard of Review

A party may move to dismiss a complaint for failure to state
a claim upon which relief can be granted.
12(b)(6).

Fed. R. Civ. P.

In considering such a motion, a district court must

“accept as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.”

Krantz v.

Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 142 (3d Cir. 2002)
(quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).

While a

court generally cannot consider matters outside the pleadings, “a
document integral to or explicitly relied upon in the complaint
may be considered without converting the motion to dismiss into
one for summary judgment.”

In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotation
marks and alteration omitted).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”

3

Ashcroft v. Iqbal, 556

It appears DCIU bases its jurisdictional challenge on its argument
that Plaintiffs failed to administratively exhaust their Section 504 and ADA
claims. This argument is addressed infra, p. 11 n.7.

5

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. (citation omitted).

Although a

plaintiff is entitled to all reasonable inferences from the facts
alleged, a plaintiff’s legal conclusions are not entitled to
deference, and the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Papasan v. Allain,

478 U.S. 265, 286 (1986).
Regarding the administrative proceedings below, this Court
applies a modified de novo review.

P.P. ex rel. Michael P. v. W.

Chester Area Sch. Dist., 585 F.3d 727, 734-35 (3d Cir. 2009).
“Factual findings from the administrative proceedings are to be
considered prima facie correct.”

Id. at 734 (citation omitted).

Conclusions of law, however, are subject to plenary review.4

Id.

at 735.
B.

Analysis

The primary purpose of the IDEA is to ensure all children
with disabilities have access to a free appropriate public
education (“FAPE”).

20 U.S.C. § 1400(d).

The IDEA defines a

FAPE as educational instruction “specially designed to meet the
4
Below, the Hearing Officer sustained DCIU’s sufficiency challenge
based solely on legal conclusions and without making any factual
determinations. Accordingly, we apply a plenary review to the entirety of the
Hearing Officer’s rulings.

6

unique needs of a child with a disability,” together with “any
additional related services that are required to assist a child
with a disability to benefit from that instruction.”

Id. §

1401(26), (29); see Council Rock Sch. Dist. v. Bolick, Civ. No.
09-5604, 2010 WL 5186154, at *7 (E.D. Pa. Dec. 22, 2010) (quoting
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007)),
aff'd, 462 F. App’x 212 (3d Cir. 2012).

To fulfil this purpose,

there must first be a process in which states identify children
that have disabilities.

Accordingly, the IDEA obligates states

with certain “child find” obligations as a condition of receiving
federal funding.

Id. § 1412(a)(3)(A).

Specifically, the IDEA

requires states to have “policies and procedures to ensure that .
. . [a]ll children with disabilities residing in the State,
including . . . children with disabilities attending private
schools, . . . are identified, located, and evaluated.”

Id.; see

P.P., 585 F.3d at 730.
Not only must states identify children with disabilities,
but they must also conduct a sufficiently comprehensive
evaluation to identify all of a child’s special education and
related service needs.

34 C.F.R. § 300.304(b)-(c).

Importantly,

in performing the evaluation, the LEA must assess the student in
all areas related to a suspected disability.5

Id. §

5
The child find obligations are important because the existence and
scope of a student’s disabilities dictate the services the LEA must provide to
ensure the student has access to a FAPE. See 20 U.S.C. § 1412(a)(10)(A)(ii).
While students enrolled at public school are entitled to the requisite

7

300.304(c)(4); see Council Rock Sch. Dist., 2010 WL 5186154, at
*7.
To ensure compliance among the LEAs, such as DCIU, the IDEA
explicitly recognizes a process in which parents can bring a
complaint against an LEA for failing to fulfill its child find
obligations.
§ 300.140.

20 U.S.C. §§ 1412(a)(10)(A), 1415(b)(6); 34 C.F.R.
The IDEA provides parents the right to a due process

hearing “with respect to any matter relating to the
identification, evaluation, or education placement of the child.”
Id. § 1415(b)(6); accord id. § 1415(f)(1)(A).

This right extends

to all children enrolled in both public and private schools.6
Id. §§ 1412 (a)(10)(A)(ii)(I), 1415(b)(6); 34 C.F.R. §§ 300.131,
300.140.
The primary point of contention arising from DCIU’s Motion

services to ensure the student has access to a FAPE, “[n]o parentally-placed
private school child with a disability has an individual right to receive some
or all of the special education and related services that the child would
receive if enrolled in a public school.” 34 C.F.R. § 300.138(a)(2). If a
parent chooses to forgo a FAPE and enrolls their child in a private school,
the child will receive “equitable services” provided through proportionateshare funding, as determined by the LEA. See 20 U.S.C. §§ 1412(a)(10)(A)(I),
(C)(I); 34 C.F.R. § 300.137; see also R.M.M. v. Minneapolis Pub. Sch., Civ.
No. 15-1627, 2016 WL 475171, at *6 (D. Minn. Feb. 8, 2016), aff'd, 861 F.3d
769 (8th Cir. 2017). Although children enrolled at public schools can assert a
due process complaint against an LEA for its failure to provide services that
would provide the student with a FAPE, parentally-placed private school
students may not assert a due process complaint against an LEA based on the
inadequacy of its equitable participation services. 34 C.F.R. § 300.138,
300.140(a).
6
As discussed supra, p. 8 n.5, parentally-placed private school
students cannot assert an IDEA-based due process complaint against an LEA on
the denial of equitable services. Claims regarding those services must
proceed through the state complaint process. 34 C.F.R. § 300.140(c)(1).
However, parentally-placed private school students may assert an IDEA-based
due process complaint against an LEA on the basis of a child find violation.
20 U.S.C. §§ 1412(a)(10), 1415(b)(6); 34 C.F.R. §§ 300.131, 300.140.

8

to Dismiss is whether Plaintiffs assert a cognizable claim under
the IDEA.

Plaintiffs characterize their claim as one based on

the IDEA’s child find provisions.

Pls. Resp. at 11-15.

DCIU

characterizes the claim as one based on the IDEA’s equitable
participation provisions for parentally-placed private school
students.

DCIU MTD at 10-12.

In viewing the allegations in a light most favorable to
Plaintiffs, we find that Plaintiffs have adequately stated a
cognizable claim based on the child find provisions of the IDEA.
Plaintiffs have alleged facts that can establish DCIU did not
fulfill its burden to adequately evaluate C.F. in all areas
related to a suspected disability.
The Hearing Officer incorrectly viewed Plaintiffs’ Due
Process Complaint as a “dispute about ‘equitable participation.’”
H.O. Ruling at 2, 11-12.

Plaintiffs’ claim could be categorized

as such had C.F. been properly evaluated in all areas of
suspected disability, then complained that the equitable services
DCIU provided were insufficient in light of his disabilities.
However, Plaintiffs also assert that DCIU breached its child
find obligations by failing to find C.F.’s “Receptive-Expressive
Language Disorder and [] Reading Disorder.”
at ¶ 26.

DPC at ¶ 17; Compl.

In viewing the allegations in a light most favorable to

Plaintiffs, it is plausible that DCIU should have evaluated and
found these disabilities given their relationship to C.F.’s other

9

known disabilities and the areas in which DCIU noted he was
struggling.

See supra p. 2-3.

Admittedly, Plaintiffs do allege that DCIU did not
“implement special education services,” which, as a parentallyplaced private school student, would have been equitable
participation services.

Id. ¶ 28.

However, as viewed by the

Court, this is a reference to a manner in which C.F. was injured,
rather than formulating the basis of Plaintiffs’ claim.

It is

improper to characterize Plaintiffs’ claim solely on a referenced
injury.

Moreover, in the words directly preceding their

reference to special education services, Plaintiffs clearly state
“DCIU did not identify C.F. as a child with a ReceptiveExpressive Language Disorder and a Reading Disorder.”

Id.

We

believe this is the essential portion that frames Plaintiffs’
claim as one based on the IDEA’s child find provisions.
DCIU further argues that even if Plaintiffs stated a claim
based on a child find violation, the claim should be dismissed
because Plaintiffs acknowledge that DCIU did in fact evaluate and
identify C.F. as a disabled student.

DCIU MTD at 15-16.

However, LEAs do not fulfil their child find obligations simply
because they identify some of a student’s disabilities.

Warren

G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 87-88 (3d Cir.
1999); see R.M.M., 2016 WL 475171, at *16.

As noted above, LEAs

are obligated to evaluate students in all areas related to

10

suspected disabilities.

It is plausible, as Plaintiffs allege,

that while DCIU found some of C.F.’s disabilities, it failed to
find others that DCIU should have suspected.
III. Conclusion
For the reasons stated herein, DCIU’s Motion to Dismiss is
DENIED.7

Because the Hearing Officer disposed of this case on

incorrect conclusions of law, the Court REMANDS this case to the
Hearing Officer to schedule and conduct administrative hearings
on Plaintiffs’ claims, consistent with this Memorandum.8

7

In addition, the Court finds error in the Hearing Officer’s conclusion
that the allegations in Plaintiffs’ Due Process Complaint establish their pre2014 injuries are, as a matter of law, barred by the state of limitations.
H.O. Ruling at 9-11. The Hearing Officer held that, based on Plaintiffs’
admissions in the Complaint that C.F. was screened multiples times dating back
to 2008, “[t]he multiple evaluations placed the Parents on inquiry notice of
the alleged . . . ‘child find’ violations.” H.O. Ruling at 10. However, the
mere fact that DCIU evaluated C.F. does not establish as a matter of law that
Parents knew or should have known that DCIU failed to evaluate C.F. in all
areas of suspected disability. DCIU is free to establish that point as a
matter of fact, and Parents may have a reasonable explanation as to why they
would not have reasonably known of the violation until 2016. In any event,
that is a factual determination that cannot be established as a matter of law
based on the allegations in Plaintiffs’ Due Process Complaint.
Lastly, we reject DCIU’s argument that Plaintiffs
their administrative remedies with respect to their ADA
claims. It would be premature for the Court to rule on
exhaustion before this matter is fully exhausted at the
See infra p. 11 n.8.

failed to exhaust
and Section 504
administrative
administrative level.

8
Remand is proper because the Hearing Officer disposed of the case on
incorrect conclusions, without any factual determinations. Dep’t of Educ. v.
L.K., 2006 WL 1892220, at *1, 6-12 (D. Haw. July 10, 2006) (reversing hearing
officer’s erroneous conclusions of law and remanding sua sponte for further
administrative proceedings); Kroot v. District of Colombia, 800 F. Supp. 976,
983 (D.D.C. 1992) (same); see Carlisle Area Sch. v. Scott P., 62 F.3d 520,
525-26 (3d Cir. 1995) (affirming district court’s remand of IDEA-based claims
for further administrative proceedings); R.M.M. 2016 WL 475171, at *13-17
(reversing hearing officer’s dismissal of plaintiffs’ child find claim and
remanding for further administrative proceedings).

11