T. et al v. Carbondale Area School District
Filing
25
MEMORANDUM (Order to follow as separate docket entry) re 15 MOTION for Summary Judgment filed by Carbondale Area School District, 18 MOTION Judgment on the Administrative Record Plaintiffs' Motion for Judgment on the Administrative Record, Certificate of Service filed by Shane T., Cathy K. Signed by Honorable Malachy E Mannion on 9/28/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SHANE T., by and through his
parent CATHY K.,
:
:
Plaintiffs,
CIVIL ACTION NO. 3:16-0964
:
v.
(JUDGE MANNION)
:
CARBONDALE AREA SCHOOL
DISTRICT,
Defendant.
:
:
MEMORANDUM
Before the court are a motion for summary judgment/judgment on the
administrative record filed by the defendant Carbondale Area School District
(“the District”), (Doc. 15), and a cross-motion for judgment on the
administrative record filed by the plaintiffs, Shane T. (Shane) by and through
his mother Cathy K. (Cathy), (Doc. 18), with Cathy also requesting relief in the
form of private school tuition reimbursement. Shane is a special education
student residing in the District and currently attending a private school in
Scranton, Pennsylvania, Allied Services dePaul School (“Allied dePaul”). On
July 1, 2015, the plaintiffs filed a due process complaint with Pennsylvania’s
Office for Dispute Resolution (“ODR”) alleging that the District violated the
Individuals with Disabilities Education Act (“IDEA”), 84 STAT. 175, as
amended, 20 U.S.C. §1400 et seq. and Section 504 of the Rehabilitation Act
of 1973 (“Section 504"), as amended, 29 U.S.C. §701 et seq. because the
District failed to offer Shane a free appropriate public education (“FAPE”).
On February 23, 2016, after two days of hearings, an administrative
Hearing Officer ordered the District to evaluate Shane, but denied the plaintiffs’
request for tuition reimbursement and an independent educational evaluation
(“IEE”) at the District’s expense. (Doc. 8-2). The plaintiffs’ complaint, (Doc. 1),
challenges this decision. In their current motions, the plaintiffs seek to reverse
and the District seeks to uphold the Hearing Officer’s determination. Based on
the foregoing, the parties’ motions will be GRANTED IN PART and DENIED
IN PART and the case will be remanded to the Hearing Officer for further
findings.
I.
BACKGROUND1
Cathy has identified her son, Shane, as having learning disabilities and
speech and language impairments, specifically, Attention Deficit Hyperactivity
Disorder (“ADHD”), dysgraphia, and dyslexia. (Doc. 8-6 at 82). On September
12, 2013, Cathy re-enrolled Shane in the District while he was attending Allied
dePaul, a private school that serves children with learning disabilities.
Following Shane’s re-enrollment, the District did not perform an evaluation of
Shane or propose an individualized education program (“IEP”) for him. The
parties dispute whether the District’s failure to act violated the IDEA.
1
Unless otherwise noted, the court will look to the record for the facts.
(Doc. 8). Notably, none of the underlying facts appear to be in dispute, though,
as later explained in this memorandum, the parties do dispute a factual finding
made by the Hearing Officer in his February 23, 2016 decision. (Doc. 8-2).
2
Shane was born on April 15, 2005. (Doc. 8-6 at 81). Prior to his
kindergarten year, he attended a Head Start program and the District and he
received early intervention services. (Doc. 8-4 at 13; Doc. 8-5 at 8, 42). On
August 25, 2010, Cathy enrolled Shane in Fell Charter Elementary School
(“Fell Charter”), a public charter school. (Doc. 8-5 at 8). On September 3,
2010, she formally withdrew Shane from the District so he could attend
kindergarten at Fell Charter. (Doc. 8-5 at 6). According to Cathy’s testimony
at the administrative hearing, she withdrew Shane from the District because
her “niece and nephews went to Fell Charter and they thrived there.” (Doc. 8-4
at 19). At some point during his time at Fell Charter Shane was identified as
having learning disabilities and an initial IEP was completed for him. According
to Cathy’s testimony, this initial IEP was done at her written request. (Id. at 16).
By February 24, 2011, Shane had a IEP Team in place at Fell Charter
and a meeting was held to evaluate his special education needs into the
following year. (Doc. 8-5 at 10–29). This initial IEP indicated that Shane had
communication needs. In particular, he was identified as having difficulties with
letters and numbers, consistent with his mother’s testimony regarding Shane’s
dyslexia. (Id. at 13–15). It also indicated that he required specialized speech
and language support at the charter school, in addition to program
modifications incorporated into the general education learning environment.
(Id. at 21). Shane attended Fell Charter for the entirety of his kindergarten
year, the 2010 through 2011 school year. A reevaluation report was completed
3
on May 4, 2011 for the following school year. (Id. at 30–51). The reevaluation
again classified Shane as having a health impairment and a speech and
language impairment with the need for continued services. (Id. at 46).
Shane began the following school year, 2011 through 2012, at Fell
Charter. According to Cathy’s testimony, Fell Charter wanted Shane to repeat
his kindergarten year. (Doc. 8-4 at 14). He only attended Fell Charter a couple
of months out of the 2011 through 2012 school year, apparently completing the
first trimester. (Id.; see also Doc. 8-5 at 52 (special education progress report
completed by Fell Charter on November 3, 2011 )). As of November 3, 2011,
Shane was showing progress in some, but not all of his IEP goals. (Doc. 8-5
at 53–57). Ultimately, Cathy withdrew Shane from Fell Charter and placed him
in Allied dePaul to complete his first grade year. (Doc. 8-4 at 14). Cathy made
the decision to send Shane to Allied dePaul was based upon a doctor’s
recommendation to her. (Id. at 19). The placement into Allied dePaul was
supported by and paid for by Fell Charter. (Id.). Shane attended Allied dePaul
for the remainder of his first grade year and second grade year, both paid for
by Fell Charter. (Id. at 19; see also Doc. 8-6 at 97).
According to Cathy’s testimony at the administrative hearing, around the
time of the transition from Fell Charter to Allied dePaul, December of 2011,
Cathy spoke to the former director of special education services for the District,
Mary Ann Boyle, and had a few conversations with her about Shane. (Doc. 8-4
at 14–15). She testified that she called looking for information about possible
4
services for her son. (Id.). She also called other entities in an effort to get
services for her son. (Id. at 14).2 The record does not indicate exactly how
many times Cathy contacted Mary Ann Boyle to discuss Shane during the
2011–2012 school year. By May of 2012, however, Mary Ann Boyle was
replaced by a new special education director, Angela Geyer. (Doc. 8-4 at 7).
Mrs. Geyer did not become aware of Shane until the 2013–2014 school year
and Cathy did not speak to Mrs. Geyer before that time. (Id.; Doc. 8-4 at 22).
There is no evidence that the District offered a placement to Shane
during his transition from Fell Charter to Allied dePaul. By November 30, 2011,
however, an equitable participation/service plan was created for Shane by the
Northeastern Educational Intermediate Unit 19 (“NEIU”).3 (Doc. 8-6 at 31).
Thus, Shane did have a Service Plan Team in place at that time. Shane’s
November 30, 2011 service plan indicated that he was attending Allied dePaul
and that his “District/School” was “Carbondale/Fell Charter.” (Id.). Dr. Clarence
Lamanna, the director of the NEIU, was designated as Shane’s Local
Education Agency (“LEA”) Representative. (Id.; Doc. 8-4 at 11). The service
plan indicated that Shane would require speech and language support and that
2
The District has not offered any evidence to contradict Cathy’s version
of events during Shane’s transition from Fell Charter to Allied dePaul or
records of Mary Ann Boyle’s communications with Cathy at that time. There is
record of a December 13, 2011 fax transmittal from Allied dePaul to the District
requesting Shane’s information. (Doc. 8-5 at 69–70).
3
The NEIU services special education students enrolled in private
schools located in Northeastern Pennsylvania.
5
the intervention would take place at Allied dePaul until an anticipated end date
of November 29, 2012. (Doc. 8-6 at 40). The service plan made clear that it
was not an IEP. (Id. at 31).
Shane completed his first grade year at Allied dePaul without incident.
He also attended Allied dePaul for his second grade year, 2012–2013, without
incident. The NEIU updated Shane’s service plan on May 9, 2013 for the
2013–2014 school year, his third grade year. (Doc. 8-6 at 64). His updated
plan remained unchanged and indicated that Shane would continue to receive
speech and language support at Allied dePaul through an anticipated end date
of May 8, 2014. (Id. at 73).
On September 12, 2013, the beginning of Shane’s third grade year,
Cathy came to the District and completed a Student Registration Form, thereby
re-enrolling Shane in the District while he was still attending Allied dePaul.
(Doc. 8-4 at 15; Doc. 8-6 at 79–84). Cathy indicated on the form that Shane
was a special education student. (Doc. 8-6 at 82). According to her testimony,
she also provided whatever records she had available for Shane. (Doc. 8-4 at
15).
The only evidence in the record detailing what took place during the
Shane’s registration and re-enrollment was Cathy’s testimony at the
administrative hearing. Cathy described her registration with the District as
follows:
6
Q.
Do you remember that day when you went to register
Shane?
A.
Yes.
Q.
What happened?
A.
So I filled out the forms. I handed them to someone
and I was told, am I enrolling Shane in Carbondale. I
asked - - I had said, right now I’m looking for to see
where the best placement for Shane is.
And I was treated very nasty. She said, well, are
you enrolling him here; because if not, you’re going to
be arrested for truancy because he’s not actually
going here.
And I said, well, can you please take the
records. I was like, I want to - - at this point I’m not
sure where he’s going right now. He’s in school so I’m
not going to get truancy charges.
She’s like, well, if you enroll him here and he
doesn’t come here, then there’s going to be a truant
officer coming to you and you could possibly get
arrested.
She was not forthcoming. She was not very,
once again, warm. I tried to give her the forms. And
she’s like, well, we’re not going to take them if he’s not
coming here.
And I said, you need to take these. What you do
with them after I leave is fine but you need to take
these. I’m giving these to the school to try to weigh out
my options for my son.
I got - - like I said, she was not very nice about
it. I asked her if she could actually time stamp and
give me something stating that she received them.
She told me that she has no stampers here or nothing
and that she would not write anything down to prove
that she had given me them.
With that, I had asked her name. I had wrote it
on the folder, the time and the date that I actually
handed them down to her because I was not - - she
was not willing to give me anything saying that she
had received this form or the records. And then I
7
proceeded to basically put them on the counter and
hand them to her and leave.
(Id.).
When asked why she enrolled Shane in the District, Cathy explained that
it would have been easier for her to have Shane attend the District because
the school was much closer to her home and more convenient than Allied
dePaul in Scranton. (Id. at 15–16). She explained the inconvenience of having
to ask family members to help her pick up or drop off Shane in Scranton. (Id.
at 16). In addition, Cathy explained the added convenience of the District’s
after-school program. (Id.). Cathy then had the following exchange with
counsel regarding her desire to place Shane in public school at the time of reenrollment.
Q.
Had the school district offered an educational program
in the district in September of 2013, would you have
sent Shane?
A.
If there was something in place for Shane and he
would be able to learn here and thrive academically,
of course. All I want for my son is to have the best
education possible or have him learn, like he’s still . .
.
Q.
Had the district offered to evaluate Shane, would you
have agreed to it - -
A.
Yes.
Q.
- - prior to filing a due process complaint?
A.
Yes. Matter of fact, I’m the one who requested an
evaluation when he was in Fell. Fell did not do that. I
8
actually wrote a written letter stating that I wanted him
evaluated.
So, of course, I’ve always been partial to him
being evaluated. The more needs that are met, the
more help he gets.
Q.
Did you - - when you registered him in the district, did
you make it clear you wanted him evaluated as a
special education student?
A.
Well, that’s what all the records were for so they had
all of them, yes.
(Id. at 16). On cross-examination, Cathy reiterated that had the District offered
a program she would have been willing to have Shane attend public school.
Q.
When you filled out the paperwork on September 12th,
was your plan to have him come to school the
following day, on September 13th?
A.
No, because I don’t know if his needs were going to
be met here. I needed to know that. That’s why I was
giving all his documents to the school.
So if I would have gotten a phone call after they
reviewed, which Angela said she did review the
documents, and they would have called me and said,
Cathy, great news, we can completely take care of
Shane’s needs, I would have definitely enrolled him
the following day. The reason I gave the documents
was so I was - - so you guys were aware of what his
needs were and if you could meet them.
So if Angela would have looked over these
documents like she said she did and told me that she
could have brought me - - and Shane’s needs would
have been met here, of course. Like I said, then I
wouldn’t have to put my family in complete turmoil
trying to get him to Scranton every day.
In contrast to Cathy’s account of the registration process, when Mrs.
Geyer reviewed Cathy’s registration packet she came to the conclusion that
9
Cathy intended to keep Shane at Allied dePaul. (Doc. 8-4 at 10). Cathy’s reenrollment allowed the District to pay for the services in his service plan. (Id.).
Mrs. Geyer believed Cathy intended to keep Shane in Allied dePaul based on
information received from clerical staff and based on Shane’s existing service
plan, which was included as part of Shane’s record. (Id.). At the administrative
hearing, Mrs. Geyer explained reaching this conclusion as follows:
Q.
You were asked if you had ever offered a plan in the
district or an IEP, and you said no. Explain to the
Hearing Officer why that was not offered when the
student was registered in 2013.
A.
When I received the registration packet from the
clerical staff, they informed me that the parent
registered but the parent was choosing to keep the
child enrolled in [Allied] dePaul. Then after reviewing
the documents I found that there was an equitable
participation plan and an evaluation plan completed by
the [NE]IU.
So it was my understanding that the parent was
keeping her son in dePaul and receiving special
education services with the option of equitable
participation.
Instead of Cathy’s alleged intentions to have Shane attend public school,
Mrs. Geyer interpreted Shane’s re-enrollment in the District as a dual
enrollment and concluded that Cathy never intended to have Shane actually
attend the District. The date that Cathy enrolled Shane in the District, the
District did request school records from Allied dePaul. (Doc. 8-6 at 79). The
September 12, 2013 date on the fax request form to Allied dePaul was notated
as being Shane’s “dual enrollment date.” (Id.). The author of this notation and
10
the corresponding signature on the request were not identified by the District
and the signature could not be identified by Mrs. Geyer at the hearing. (Doc.
8-4 at 8). After Cathy re-enrolled Shane in the District she did not reach out
again to the District or to Mrs. Geyer specifically. (Id. at 86–87). Shane
completed the remainder of his third grade year, the 2013–2014 school year,
at Allied dePaul without further contact with the District.
On October 28, 2014, the District received a bill from the NEIU for
services provided to Shane for the 2012–2013 school year. (Doc. 8-6 at
76–77). At the administrative hearing, Mrs. Geyer confirmed that the District
did fund services the NEIU provided to Shane. (Doc. 8-4 at 9). Specifically,
Mrs. Geyer confirmed that the District did pay for Shane’s speech and
language services after his re-enrollment in 2013.4 (Id. at 10). At some time
either before or after the NEIU bill, Mrs. Geyer did reach out to Cathy to talk
4
The documents submitted as evidence of the District’s payment were
for reimbursement for the 2012–2013 school year, the year that Cathy testified
Fell Charter was paying for Shane’s private school placement. (Doc. 8-6 at
76–78). The parties have not clarified why the District paid this bill for the
previous year, before Shane was re-enrolled in September of 2013. The bill
also did not include the actual services provided, only the administrative cost
of providing these services for the 2012–2013 year. It is unclear who paid what
for Shane’s speech and language support for the 2012–2013 school year. The
District also included a bill from NEIU for adaptive physical education for the
2013–2014 school year, after Shane’s re-enrollment. (Id. at 78). This bill,
however, does not indicate that the services provided were for Shane and,
instead, indicates the services were for someone named Keith Toolan. No
where is Shane’s name listed on the bill and there was no testimony clarifying
this absence of information.
11
about Shane. (Id. at 16–17). Cathy responded positively to this request but
wished to speak with her attorney prior to agreeing to meet. (Id.). Cathy’s
attorney encouraged her to attend a meeting with the District. (Id. at 17). The
meeting was scheduled for November of that year, 2014. (Id. at 18). Cathy was
not advised of any specific agenda for this meeting; the plan was to “sit down
and down about Shane.” (Doc. 8-4 at 17). At this stage, all parties had counsel
involved. (See Doc. 8-8 at 1–10 (communications exchanged between
counsel)). Without explanation, Mrs. Geyer and the District cancelled the
November meeting. (Doc. 8-4 at 18).
II.
PROCEDURAL HISTORY
On July 1, 2015, the plaintiffs mailed notice of their request for a due
process hearing to the District based on the District’s failure to evaluate Shane
after his September 12, 2013 re-enrollment. (Doc. 8-9 at 1–5). This notice
advised the District that the plaintiffs would be seeking tuition reimbursement
for Shane, an appropriate educational program and placement for Shane, and
an IEE for Shane. (Id. at 1). The plaintiffs alleged violations of the IDEA,
Section 504, and Title 22, Chapters 14 and 15 of the Pennsylvania
Administrative Code.
Shortly thereafter, on July 15, 2015, the District mailed Cathy a consent
form to complete, which, upon completion, would allow the District to
reevaluate Shane. (Doc. 8-6 at 86–89). Cathy objected to the proposed
12
reevaluation and refused to give her consent. (Id. at 87). Cathy’s handwritten
reason for the objection was as follows:
I do not consent because this offer to evaluate is an
inappropriate response to my request for an IEE due
to the District’s failure to timly [sic] offer to evaluate my
son.
(Id.). Administrative hearings on the due process complaint were held over the
course of two days, December 4, 2015 and January 14, 2016. (Doc. 8-3; Doc.
8-4). Mrs. Geyer and Cathy testified on December 4, 2015. (Doc. 8-4).
Suzanne Rickard, the principle of Allied dePaul, testified on January 14, 2016.
(Doc. 8-3).
On February 23, 2016, the Hearing Officer issued a written decision.
(Doc. 8-2). His decision addressed three issues: (1) whether the District was
required to offer Shane an IEP; (2) whether Shane was entitled to an IEE at
public expense; and (3) whether Cathy was entitled to tuition reimbursement.
(Doc. 8-2 at 2). Without argument from the District, the Hearing Officer found
that the District was required to provide an IEP to Shane and ordered the
District to provide one, but only after an evaluation was completed. (Id. at 7).
Next, the Hearing Officer denied the plaintiffs’ request for an IEE at public
expense. (Id. at 7–8). Lastly, the Hearing Officer concluded that Cathy was not
entitled to tuition reimbursement for Shane’s placement at Allied dePaul. (Id.
at 9). It is the Hearing Officer’s decision with respect to Shane’s entitlement to
13
a District-paid IEE and tuition reimbursement that the plaintiffs now seek to
reverse and the District seeks to uphold.
On May 23, 2016, the plaintiffs filed a complaint in this court seeking
reversal of the Hearing Officer’s decision. (Doc. 1). The plaintiffs’ complaint
alleged violations of all the federal and state provisions referenced in the due
process complaint, with the inclusion of a claim under the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. §12101 et seq. The District
answered the plaintiffs’ complaint on July 11, 2017. (Doc. 6). The
administrative record from the ODR was filed in this court on July 29, 2016.
(Doc. 8). On August 2, 2016, the parties filed a joint case management plan
in preparation for an August 9, 2016 case management conference. (Doc. 9).
In their joint case management plan, all parties agreed that neither discovery
or trial would be necessary and proposed resolution of the matter on motions
for judgment on the administrative record. (Id. ¶¶3.0–4.1). Accordingly, no
additional evidence has been submitted to the court.
On October 28, 2016, the District filed the current motion for summary
judgment/motion for judgement on the administrative record, along with a
statement of facts and brief in support. (Docs. 15–17). On that same day, the
plaintiffs also filed their cross-motion for judgement on the administrative
record, along with a brief in support. (Docs. 18–19). On November 18, 2016,
the parties filed briefs in opposition. (Docs. 20–21). On November 30, 2016,
14
the parties filed reply briefs addressing the briefs in opposition. (Docs. 22–23).
The parties motions are now ripe for review.5
III.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction over the plaintiffs’ action pursuant to 28 U.S.C.
§1331 and, more specifically under the IDEA, 20 U.S.C. §1415(i)(3)(A). The
IDEA expressly provides that any party aggrieved by the findings of a hearing
officer may bring an action within ninety (90) days of the date of that decision
without regard to the amount in controversy. 20 U.S.C. §1415(i)(2)(A)–(B). The
statute also specifically provides that in any action brought under the IDEA the
court “shall hear additional evidence at the request of a party” and that the
court, “basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.” Id. §1415(i)(2)(C)(ii)–(iii).
The district court “may make its own findings of fact by a preponderance of the
evidence and look outside the administrative record.” Andrew M. v. Del. Cnty.
Office of Mental Health & Mental Retardation, 490 F.3d 337, 345 (3d Cir.
2007). In no instance, however, should the court “substitute its own notions of
sound educational policy for those of local school authorities.” S.H. v. StateOperated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003) (quoting MM
5
On December 20, 2016, the District also requested oral argument on
its motion. (Doc. 24). In light of the court’s decision today, the District’s request
will be denied as moot.
15
v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 531 (4th Cir. 2002)). Here, the
court relies solely on the administrative record as the parties have offered no
additional evidence for the court’s review.
A “nontraditional” standard of review applies to what are essentially
appeals from administrative IDEA proceedings. Mary T. v. Sch. Dist. of Phila.,
575 F.3d 235, 241 (3d Cir. 2009).6 The review in IDEA cases is “unusual”
insofar as the district court “must make its own findings by a preponderance
of the evidence,” yet afford due weight to the Hearing Officer’s decision.” L.E.
v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006) (quoting Shore Reg’l
High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). Under this
hybrid standard, the court must perform a “modified de novo review, giving
‘due weight’ to the underlying administrative proceedings.” C.H. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 65 (3d Cir. 2010) (quoting S.H., 336 F.3d
at 270).
6
There is no federal rule specifically addressing motions for judgement
on the administrative record. Thus, the District has labeled its motion a motion
for summary judgment, thereby referencing Federal Rule of Civil Procedure 56.
(Doc. 15). Despite the District’s title of its motion, the usual summary judgment
standard under Rule 56 does not apply. See Lillbask v. State of Conn. Dep’t
of Educ., 397 F.3d 77, n.3 (2d Cir. 2005) (explaining the role of Rule 56 in
IDEA cases as a mere procedural mechanism). “Though the parties may call
the procedure [in an IDEA case] a ‘motion for summary judgment’ in order to
obtain a calendar date from the district court’s case management clerk, the
procedure is in substance an appeal from an administrative determination, not
a summary judgment.” Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d
884, 892 (9th Cir. 1995).
16
The court exercises plenary review over the Hearing Officer’s legal
determinations. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528 n. 3 (3d Cir.
1995); Centennial Sch. Dist. v. Phil L., 799 F. Supp. 2d 473, 481 (E.D. Pa.
2011). However, “[f]actual findings from the administrative proceedings are to
be considered prima facie correct.” S.H., 336 F.3d at 270. The court should
defer to the Hearing Officer’s credibility determinations with respect to live
testimony and give those determinations special weight. P.S., 381 F.3d at 199;
see also Lauren W. v. DeFlaminis, 480 F.3d 259, 266 (3d Cir. 2007) (noting
that the district court properly deferred to the hearing officer’s credibility
determinations). As explained by the Third Circuit Court of Appeals:
Specifically, this means that a [d]istrict [c]ourt must
accept the state agency’s credibility determinations
“unless the non-testimonial, extrinsic evidence in the
record would justify a contrary conclusion.” In this
context the word ‘justify’ demands essentially the
same standard of review given to a trial court’s
findings of fact by a federal appellate court.7
P.S., 381 F.3d at 199 (quoting Scott P., 62 F.3d at 528) (emphasis in original)
(internal citation omitted). In addition, the court may disregard these factual
findings where “the record read in its entirety would compel a contrary
7
Under the ordinary appellate standard “[f]indings of fact [by the trial
court], whether based on oral or other evidence, must not be set aside unless
clearly erroneous, and the reviewing court must give due weight to the trial
court’s opportunity to judge the witnesses’ credibility.” FED. R. CIV. P. 52(a)(6);
see also Knowles v. Mirzayance, 556 U.S. 111, 126 (2009) (“[C]ourts of
appeals may not set aside a district court’s factual findings unless those
findings are clearly erroneous.”) (citing Rule 52(a) and Anderson v. Bessemer
City, 470 U.S. 564, 573–74 (1985)).
17
conclusion.” Scott P., 62 F.3d at 528. “If a reviewing court fails to adhere to
[the factual findings of the Hearing Officer], it is obligated to explain why.” S.H.,
336 F.3d at 270 (quoting MM, 303 F.3d at 531).
It is the party challenging the Hearing Officer’s decision that bears the
burden of persuasion. Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d
1057, 1064 (D.N.J. 2011). He or she also “faces the additional hurdle of
overcoming a presumption that the Hearing Officer’s findings were correct.” Id.
(quoting Andrew M., 490 F.3d at 345).
IV.
THE PLAINTIFFS’ ENTITLEMENT TO TUITION REIMBURSEMENT
The District contends that the Hearing Officer’s conclusions were correct
with respect to the plaintiffs’ right to tuition reimbursement. The plaintiffs
disagree and allege that the Hearing Officer made both legal and factual errors
in denying tuition reimbursement. The court agrees with the plaintiffs that the
Hearing Officer erred in denying tuition reimbursement.
A.
The Hearing Officer’s Burlington-Carter Analysis
The Supreme Court has set forth three factors to determine whether a
parent is entitled to tuition reimbursement under the IDEA outlined in three
Supreme Court decisions, School Committee of Burlington v. Department of
Education of Massachusetts, 471 U.S. 359 (1985), Florence County School
District v. Carter, 510 U.S. 7 (1993), and Forest Grove School District. v. T.A.,
18
557 U.S. 230, 246–47 (2009) (the “Burlington-Carter test”). Applying the
Burlington-Carter test, the Hearing Officer concluded that Cathy was not
entitled to tuition reimbursement because she did not bear her burden with
respect to the first factor of that test. (Doc. 8-2 at 9). Specifically, the Hearing
Officer concluded the District did not violate the IDEA by failing to provide a
free appropriate public education (“FAPE”) because the District had no
obligation to do so.
Discussing this first factor, the Hearing Officer explained that under
normal circumstances a school’s failure to offer any program to a student
would constitute a denial of a FAPE. The Hearing Officer then found that “the
District was not obligated to offer a program until [Cathy] changed her mind
about private school and sought placement within the District.” (Id. at 8–9).
This aligned with the Hearing Officer’s factual finding that Cathy did not
actually seek placement for Shane in the District despite re-enrolling him in
September of 2013. (Id. at 4, ¶15). Specifically, the Hearing Officer’s factual
findings were as follows:
There was a misunderstanding between the Parent
and District staff when the Parent registered the
Student [on September 12, 2013]. The Parent came to
the District with registration paperwork and information
about the services that the Student was receiving. The
Parent also explained that the Student was attending
the Private School. While I make no finding about
what District staff actually said to the Parent, the
Parent came away from the interaction believing that
the District would instigate truancy proceedings if the
19
Student enrolled but did not attend the District’s
schools.
The foregoing interaction notwithstanding, the District
understood the Parent’s desire was to keep the
Student at the Private School and continue to receive
speech and language services from the [NE]IU.
Despite some testimony to the contrary, I find that the
District’s understanding of the Parent’s intention was
correct. The Parent choose [sic] to keep the Student
in the Private School and did not seek placement from
or within the District.
(Id. at 4, ¶¶13–15 (citations to the record omitted)). In finding that Cathy did not
seek placement in the District, the Hearing Officer cited to testimony from Mrs.
Geyer, who was not present during Cathy’s interaction with the school when
she re-enrolled Shane on September 12, 2013. The Hearing Officer explicitly
did not make factual findings regarding that interaction, but, nonetheless,
concluded that Cathy never sought placement in the District. (Id. at 4, ¶¶13,
15).
The Hearing Officer did not address the second factor of the BurlingtonCarter test in his decision. Exercising his discretion, the Hearing Officer did
find that the third factor would warrant a reduction or denial of tuition
reimbursement. (Id. at 9). Because no tuition was awarded, however, the
Hearing Officer did not explain how much of a reduction would be warranted
or if outright denial of reimbursement would be warranted.
The parties dispute the Hearing Officer’s finding with respect to the
District obligations to provide a FAPE to Shane. Even though the Hearing
20
Officer did not address the second factor or make a firm determination with
respect to the third factor, the parties also argue that all of the factors under
the Burlington-Carter test favor their position. The plaintiffs argue that the
Hearing Officer’s erred legally because the obligation to provide a FAPE was
automatically triggered when Cathy re-enrolled Shane on September 12, 2013.
In addition, the plaintiffs argue that the Hearing Officer’s factual finding that
Cathy had no intention of placing Shane in the District is unsupported. The
court agrees with the plaintiffs that the Hearing Officer made a legal error with
respect to the first factor in the Burlington-Carter test and will reverse his
finding. The court will remand the case back to the ODR so that the Hearing
Officer can make findings with respect to the second and third factor in the
Burlington-Carter test.
B.
The IDEA
In 1970, Congress enacted the Education of the Handicapped Act, later
renamed the IDEA, to assure that all children with disabilities have available
to them a free appropriate public education. 20 U.S.C. §1400(d). The IDEA
conditions a state’s receipt of federal funds for special education programs on
its implementation of “policies and procedures to ensure that . . . [a FAPE] is
available to all children with disabilities.” 20 U.S.C. §1412(a)(1)(A); P.S., 381
F.3d 194, 198 (3d Cir. 2004); see also C.H., 606 F.3d 59, 65 (3d Cir. 2010)
(“Under the IDEA, a state receiving federal educational funding must provide
21
children within that state a [FAPE].”). It “protects the rights of disabled children
by mandating that public educational institutions identify and effectively
educate those children, or pay for their education elsewhere if they require
specialized services that the public institution cannot provide.” D.K. v.
Abington Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012) (quoting P.P. v. West
Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009)). A public school’s
IDEA obligation has been summarized as two-fold: (1) “[to] identify children
in need of special education services (Child Find); and (2) [to] provide a FAPE
to disabled students.” D.K., 696 F.3d at 244.
i.
The IDEA’s Child-Find Obligation
The IDEA “requires that a state have a system in place to identify,
locate, and evaluate all children in the state who have disabilities and need
special education and related services.” P.P., 585 F.3d at 730 (citing 20
U.S.C. §1412(a)(3) and 34 C.F.R. §300.111(a)). The IDEA requires that
All children with disabilities residing in the State,
including children with disabilities who are homeless
children or are wards of the State and children with
disabilities attending private schools, regardless of the
severity of their disabilities, and who are in need of
special education and related services, are identified,
located, and evaluated and a practical method is
developed and implemented to determine which
children with disabilities are currently receiving
needed special education and related services.
22
20 U.S.C. §1412(a)(3) (emphasis added). “Each state must establish
procedures to fulfill this statutory directive.” Ridley Sch. Dist. v. M.R., 680 F.3d
260, 271 (3d Cir. 2012) (citing 34 C.F.R. §300.111). Pennsylvania has
implemented the IDEA requirements, including these child-find procedures,
in Title 22, Chapter 14 of the Pennsylvania Administrative Code. 22 PA. CODE
§14.101 et seq. Pursuant to the child-find duty, schools must identify and
evaluate a child within a “reasonable time after school official are on notice of
behavior that is likely to indicate a disability.” W.B. v. Matula, 67 F.3d 484, 501
(3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City Pub. Sch.,
486 F.3d 791 (3d Cir. 2007).
ii.
The IDEA’s FAPE Obligation
Once a disabled child is “found” so to speak, a FAPE will “consist[ ] of
educational instruction specifically 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.” W.B., 67 F.3d at 491 (quoting Bd. of
Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)). Providing a FAPE requires
that the student be educated in the “least restrictive environment,” defined as,
to the extent appropriate, education with children who are not disabled and in
the regular education environment. 20 U.S.C. §1412(a)(5)(A). This has been
labeled as the IDEA’s “mainstreaming requirement.” S.H., 336 F.3d at 265.
23
The “centerpiece” for implementing a FAPE and delivering education to
disabled children is the IEP, which is developed for each disabled child. D.S.
v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (quoting ” Polk,
853 F.2d at 173); see also 20 U.S.C. §1412(a)(4) (requiring an IEP for
disabled children). “The IEP consists of a detailed written statement arrived
at by a multi-disciplinary team summarizing the child’s abilities, outlining the
goals for the child's education and specifying the services the child will
receive.” Polk, 853 F.2d at 173; Melissa S. v. Sch. Dist. of Pittsburgh, 183 F.
App’x 184, 186–87 (3d Cir. 2006). An IEP need not provide “‘the optimal level
of services’ a parent might desire for their child.” D.S., 602 F.3d at 557
(quoting Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 590 (3d Cir.
2000)). It does require, in accordance with the mainstreaming requirement,
that the IEP “be reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s intellectual potential.”
Id. (quoting P.S., 381 F.3d at 198).
Generally, the IDEA requires that an IEP be in place “[a]t the beginning
of each school year.” 20 U.S.C. §1414(d)(2)(A); C.H., 606 F.3d at 68. Under
normal circumstances, an IEP is developed after a parent is given notice of
and consents to an initial evaluation of the child. 20 U.S.C. §1414(a)(1)(D)(i).
The IEP must be reviewed at least annually to ensure that stated goals are
being achieved.
Id. §1414(d)(4)(A)(I);
D.S., 602 F.3d at 557. “When
appropriate the team will revise the IEP to address, among other things, lack
24
of progress, necessary changes arising from reevaluation of the child, and
parental input.” D.S., 602 F.3d at 557 (citing 20 U.S.C. §1414(d)(4)). A
complete reevaluation may be performed if either the school determines the
child’s performance warrants reevaluation or the child’s parent or teacher
requests a reevaluation. 20 U.S.C. §1414(a)(2)(A).
iii.
Equitable Participation and Private School Children
A different statutory framework exists for disabled children who are
parentally-placed in private school. E.T. v. Bd. of Educ. of Pine Bush Cent.
Sch. Dist., No. 11-CV-5510, 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26,
2012). States must allocate a proportionate share of funds for these parentallyplaced private school children to provide them with related services, commonly
known as equitable participation. Id.; 20 U.S.C. §1412(a)(10). However, “[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. §300.137(a). A
state’s specific obligations to parentally-placed private school children are
detailed in 34 C.F.R. §§300.130–300.144. These students are not entitled to
an IEP but a “less comprehensive ‘services plan.’” Dist. of Columbia v.
Vinyard, 971 F. Supp. 2d 103, 108 (D.D.C. 2013) (quoting 34 C.F.R.
§§300.137(c), 300.138(b)).
25
The child-find obligation, however, does apply to both public and
parentally-placed private school children. 20 U.S.C. §1412(a)(10)(A)(ii)(I). But,
the obligation differs such that “[t]he child find process shall be designed to
ensure the equitable participation” of parentally-placed private school children,
not a FAPE. Id. §1412(a)(10)(A)(ii)(II). Unlike public school children, the
educational unit with child find and equitable participation obligations for
private school children is determined based on the location of the private
school, not the child’s residence. 34 C.F.R. §300.132(b). In Pennsylvania,
intermediate units are responsible for child-find obligations with respect to
parentally-placed private school children. 22 PA. CODE §14.121(d). Thus, as
explained by Pennsylvania’s Bureau of Special Education (“BSE”) within the
state’s Department of Education, in Pennsylvania, “it is conceivable that a
parent could obtain evaluations from both the [intermediate unit] the private
school is located [in] and the school district of residence.” Questions and
Answers
Regarding
Equitable
Participation,
¶1
(May
2014),
http://www.education.pa.gov (Follow “K-12" tab at top of page and click on
“Special Education” link, scroll page to find “Equitable Participation Q & A” pdf
document).
Although parentally-placed private school children do not automatically
receive an evaluation and IEP, the public school where that child resides is not
automatically freed all of its IDEA obligations just because the parent has
made a private decision to enroll the child in private school. J.S. v. Scarsdale
26
Union Free Sch. Dist., 826 F. Supp. 2d 635, 665–66 (S.D.N.Y. 2011)
(collecting cases); E.T., 2012 WL 5936537, at *14 (collecting cases). Instead,
the obligation may be “shared.” J.S., 826 F. Supp. 2d at 665. In a wellreasoned opinion and after review of case law within and outside this circuit,
Judge Jones in this district concluded that “where a parent either re-enrolls
their child in the public school or requests evaluations with the intention of reenrolling the student, the public school is required to evaluate the child and
develop an IEP for purposes of proposing a FAPE.” I.H. v. Cumberland Valley
Sch. Dist., 842 F. Supp. 2d 762, 772–773 (M.D. Pa. 2012) (emphasis added).
In that case, the child was enrolled in a charter school, but only after the child
had been enrolled in public school and the school had failed to offer a
satisfactory special education plan. Id. at 768. Judge Jones found that the fact
that the child was enrolled in a private school did not obviate the public
school’s obligation to provide an IEP. Id. at 772. This finding comported with
other courts that have found that “residency, rather than enrollment, triggers
a district’s FAPE obligations.” E.T., 2012 WL 5936537, at *14 (quoting S.D.,
811 F. Supp. 2d at 1071).
This obligation of a public school to evaluate a private school child upon
request of the parent, whether or not the student enrolls, is clearly supported
by policy documents issued by the Office of Special Education and
Rehabilitative Services (“OSERS”), a division of the U.S. Department of
27
Education. In a 2011 policy document issued by the OSERS, the agency
explicitly stated that
Although the Department discourages parents from
requesting evaluations from two [local education
agencies (“LEAs”)], if the parent chooses to request
evaluations from the LEA responsible for providing the
child FAPE and from another LEA that is responsible
for considering the child for the provision of equitable
services, both LEAs are required to conduct an
evaluation.
Questions and Answers on Serving Children with Disabilities Placed by Their
Parents in Private Schools, Question B-4, (revised April 2011), available at
https://sites.ed.gov/idea/files/Private_School_Q_A_April_2011_1.pdf
(emphasis added).8 Similarly, the Pennsylvania BSE has adopted this
approach with respect to a public school’s obligation to parentally-placed
private school students. In a question and answer document dealing with
equitable participation the agency explained as follows:
A parent can request an evaluation from their school
district under any circumstances. The school district
has the option of either conducting the evaluation or
issuing a Notice of Recommended Educational
Placement (NOREP) declining to evaluate and offering
the parents the opportunity to initiate due process
proceedings. The resident district cannot refuse to
evaluate a child because the child is attending a
8
The court gives deference to the agency’s reasonable interpretation of
its own regulations. See Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp.
2d 1057, 1073 (D.N.J. 2011) (“When an agency interprets its own regulations,
a very deferential standard applies; such an interpretation is ‘controlling unless
plainly erroneous or inconsistent with the regulation.’” (quoting Fed. Express
Corp. v. Holowecki, 552 U.S. 389, 397 (2008))).
28
private school or because the [intermediate unit] also
has a duty to evaluate the child.
Questions and Answers Regarding Equitable Participation, ¶7 (May 2014)
(emphasis added). In a separate question and answer document, the BSE
again explained the continuing obligation of the school district of residence.
[Question:] What if the parent contacts the District
of Residence for a special education evaluation
and the district asks, ‘Are you going to bring them
back?’ Parent responds ‘no’ and the District refers
the parent to the [intermediate unit] for an
evaluation?
[Answer:] At the evaluation stage, the district may not
ask about a parent’s intent to enroll in the district. The
district has a child find responsibility and a refusal to
conduct the IDEA evaluation requires the district to
issue a NOREP/PWN.
Questions and Answers regarding Act 89 and Equitable Participation (IDEA),
¶17, http://www.education.pa.gov (Follow “K-12" tab at top of page and click
on “Special Education” link, scroll page to find “Act 89 and Equitable
Participation” pdf document).
Case law, OSERS policy guidance, and BSE policy guidance are also
supported by the express language of the IDEA which explicitly provides that
a reevaluation must be performed if either the school determines the child’s
performance warrants reevaluation or the child’s parent or teacher requests
a reevaluation. 20 U.S.C. §1414(a)(2)(A); see also Dist. of Columbia v.
Wolfire, 10 F. Supp. 3d 89, (D.D.C. 2014) (examining this provision to
29
conclude that enrollment is not a prerequisite for an evaluation where the
parent requests an evaluation).
iv.
IDEA Remedies and Tuition Reimbursement
The IDEA allows for private causes of action if a school district fails to
meet its IDEA obligations. C.H., 606 F.3d at 66 (3d Cir. 2010). Initially the
inquiry is two-fold: (1) Has the school district complied with the procedures set
forth in the IDEA? and (2) Has the school district fulfilled its obligation to
provide the student with a FAPE? Id. (citing Bd. of Educ. of Henrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07 (1982)). A procedural
violation may entitle the parent to tuition reimbursement but only if that
violation rises to the level of a denial of a FAPE. Id. The violation will rise to
the level of a denial of a FAPE “only if such violation causes substantive harm
to the child or his parents.” Id. (quoting Knable v. Bexley City Sch. Dist., 238
F.3d 755, 765 (6th Cir. 2001) (citations omitted)). For example, failing to have
a timely IEP in place after an evaluation is technically a procedural violation.
See C.H., 606 F.3d at 68 n. 7 (classifying the failure to have a timely IEP in
place as a procedural violation). But, “when a child requires special-education
services, a school district’s failure to propose an IEP of any kind is at least as
serious a violation of its responsibilities under [the] IDEA as a failure to
provide an adequate IEP[,]” thereby taking into account the child-find
obligation. Forest Grove, 557 U.S. at 238–39, 245.
30
Violations that rise above a procedural violation without substantive
harm may entitle the parent to tuition reimbursement for a private school
placement. C.H., 606 F.3d at 66. As a general matter a parent is not entitled
to tuition reimbursement if a FAPE was made available to the child but the
parent nonetheless chose to enroll the student in private school. 20 U.S.C.
§1412(a)(10)(C)(i). However, “[w]hen a state is unable to provide a [FAPE] to
a child but a private school can provide that education, the state must
reimburse the child’s parents for the private school costs.” D.S., 602 F.3d at
557. In those instances the parent “may unilaterally remove their disabled
child from that school, place him or her in another school, and seek tuition
reimbursement for the cost of the alternative placement.” Mary T. v. Sch. Dist.
of Phila., 575 F.3d 235, 242 (3d Cir. 2009) (citing 20 U.S.C. §1412(a)(10)(C)).
The Supreme Court made clear in Forest Grove that a child may still be
entitled to tuition reimbursement even if the child never received special
education services in the public school before. 557 U.S. at 247. Also, a child-
find violation and utter failure to propose an IEP may entitle the parent to
tuition reimbursement. As stated by the Supreme Court, “[a] reading of the
[IDEA] that left parents without an adequate remedy when a school district
unreasonably failed to identify a child with disabilities would not comport with
Congress’ acknowledgment of the paramount importance of properly
identifying each child eligible for services.” Id. at 245. The court takes away
from Forest Grove the general principle that a failure to evaluate and provide
31
an IEP where the public school must do so is a denial of FAPE entitling the
parent to possible tuition reimbursement. It is not just a procedural violation,
akin to failing to have an IEP in place on the first day of school, but a
substantive child-find violation that, in turn, leads to the denial of a FAPE.
The right to tuition reimbursement is guided by the Burlington-Carter test
that the Hearing Officer correctly relied on in his February 23, 2016 decision.
Under this test, first, the court must find that the IEP is not appropriate for the
child or, otherwise stated, that there was a denial of a FAPE. Forest Grove,
557 U.S. at 247; Lauren W., 480 F.3d at 276. This first inquiry is sometimes
broken into a two-part inquiry regarding procedural vs. substantive violations.
E.T., 2012 WL 5936537, at *12. Whether there was a denial of a FAPE is a
mixed question of law and fact. Dallas Indep. Sch. Dist. v. Woody, No. 1610613, -- F.3d --, 2017 WL 3187675, at *3 (5th Cir. July 27, 2017); N.W. v.
Boone Cnty. Bd. of Educ., 763 F.3d 611, 615 (6th Cir. 2014); K.E. v. Indep.
Sch. Dist., No. 15, 647 F.3d 795, 804 (8th Cir. 2011). Here, the failure to
evaluate and prepare an IEP for Shane would be a denial of a FAPE if the
District was obligated to do so.
Next, the court must find that the private school placement is
appropriate. Forest Grove, 557 U.S. at 247; Lauren W., 480 F.3d at 276. The
private school placement will be deemed appropriate if “it provides significant
learning and confers meaningful benefit . . . in the least restrictive
environment.” DeFlaminis, 480 F.3d at 276 (internal quotation marks omitted).
32
If the first two prongs are met tuition reimbursement is an appropriate remedy,
but reimbursement may be reduced or denied fully based on equitable
considerations. Forest Grove, 557 U.S. at 246–47. This is the court’s third and
final inquiry with respect to tuition reimbursement. This inquiry aligns with the
statute’s express limitations on reimbursement if there are certain equitable
findings. 20 U.S.C. §1412(a)(10)(C)(iii).9 In particular, the Supreme Court has
9
This provision states:
The cost of reimbursement described in clause (ii) may be reduced or
denied -(I)
if–
(aa) at the most recent IEP meeting that the parents attended prior
to removal of the child from the public school, the parents did not
inform the IEP Team that they were rejecting the placement
proposed by the public agency to provide a free appropriate
education to their child, including stating their concerns and their
intent to enroll their child in a private school at public expense; or
(bb)10 business days (including any holidays that occur on a
business day) prior to the removal of the child from the public
school, the parents did not give written notice to the public agency
of the information described in item (aa);
(II)
if, prior to the parents’ removal of the child from public school, the
public agency informed the parents, through the notice
requirements in section 1415(b)(3) of this title, of its intent to
evaluate the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but the parents
did not make the child available for such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions
33
emphasized that courts should consider whether the parents failed to give
adequate notice of their intent to enroll the child in private school as an
equitable factor in its determination. Forest Grove, 557 U.S. at 246. “In
considering the equities, courts should generally presume that public-school
officials are properly performing their obligations under [the] IDEA.” Id. at 247.
C.
Discussion
In his February 23, 2016 decision, the Hearing Officer did not conclude
that the District offered a FAPE under the first factor of the Burlington-Carter
test but that the District was not obligated to do so “until the parent expressed
an interest in receiving services from the District.” (Doc. 8-2 at 8). The court
finds that the Hearing Officer erred in making this part legal and part factual
determination. The court finds that the Hearing Officer erred in finding that the
District had no obligation “until the parent expressed an interest in receiving
services from the District.” (Id. at 8). The inquiry is quite the opposite.
taken by the parents.
20 U.S.C. §1412(a)(10)(C)(iii). The only factor that could possibly warrant
tuition reduction or denial is a “finding of unreasonableness with respect to
actions taken by the parent[,]” Id. §1412(a)(10)(C)(iii)(III), or some broader
equitable consideration allowed by Forest Grove. The remaining statutory
reasons would not apply as they contemplate a child who was already in the
public school and was removed and placed into private school. Shane was
already enrolled in private school before his re-enrollment in the District. Cathy
chose not to keep him there, as was her right.
34
Moreover, his factual determination that Cathy “did not seek placement from
or within the District” when she re-enrolled Shane and that she did not intend
to place Shane in public school, (id. at 4, ¶¶14–15), indicated both a legal error
regarding the proper inquiry and, factually, is not supported by the record. (Id.
at 4, ¶15).
The case law is clear that enrollment of the student or a parent’s request
for evaluation would normally trigger the District’s obligation to provide a
FAPE. I.H., 842 F. Supp. 2d at 772–773; S.D., 811 F. Supp. 2d at 1071. What
is less clear is how explicit the parent must make their request for an
evaluation or if an explicit request is required where the state allows for dual
enrollment of one student.10 No where in Cathy’s testimony does she state that
she made an explicit request for an IEP or evaluation and there is no evidence
of an explicit request. The court must, in essence, ask whether Cathy’s actions
on September 12, 2013 were enough to trigger the District’s obligations and
the court answers this question in the affirmative. Moreover, none of the case
law the court has analyzed has dealt with the problems of dual enrollment in
the IDEA scheme. The court finds that this state device does not alter the
District’s IDEA obligations.
10
24 PA. STAT. §5-502 (“No pupil shall be refused admission . . . by
reason of the fact that his elementary or academic education is being or has
been received in a school other than a public school.”); Lower Merion Sch.
Dist. v. Doe, 931 A.2d 640 (Pa. 2007) (interpreting 24 PA. STAT. §5-502 in
conjunction with Section 504 to allow a dually enrolled student to receive
Section 504 services without cost while also attending private school).
35
First, the court addresses whether, under normal circumstances, the
parent must make his or her request clear to the public school that he or she
desires an evaluation and IEP for the child. Case law and OSERS answers to
comments when amending the regulations providing for parentally-placed
private school children in 2006 suggest the opposite. OSERS received
commentary requesting clarification of the role of the LEA of the child’s
residence where the child is a private school student. The OSERS answer was
clear that
If a determination is made by the LEA where the
private school is located that a child needs special
education and related services, the LEA where the
child resides is responsible for making FAPE available
to the child. If the parent makes clear his or her
intention to keep the child enrolled in the private
elementary school or secondary school located in
another LEA, the LEA where the child resides need
not make FAPE available to the child.
Assistance to States for the Education of Children with Disabilities and
Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46539, 46593
(Aug. 14, 2006) (amending 34 C.F.R. parts 300–301, 304) (emphasis added).
The agency reiterated this basic position again in a 2011 policy document,
stating the school’s obligation in negative terms:
If a determination is made through the child find
process by the LEA where the private school is
located that a child needs special education and
related services and a parent makes clear his or her
intent to keep the child enrolled in the private
elementary or secondary school located in another
LEA, the LEA where the child resides is not required
36
to make FAPE available to the child. However, if the
parents choose to accept the offer of FAPE and enroll
the child in a public school, then the LEA where the
child resides is obligated to make FAPE available to
the child.
Questions and Answers on Serving Children with Disabilities Placed by Their
Parents in Private Schools, Question B-5 (Revised April 2011) (emphasis
added). Several courts have evaluated this language and accepted it as a
correct interpretation of the public school’s obligation to private school
students. E.g., Vinyard, 971 F. Supp. 2d at 109; S.D., 811 F. Supp. 2d at
1071. Reading this language, it is not the parent’s obligation to clearly request
an IEP or FAPE; instead, it is the school’s obligation to offer a FAPE unless
the parent makes clear his or her intent to keep the student enrolled in the
private school. This language must comport with the case law holding that a
parent need not disenroll their child from private school and enroll the child in
public school in order for the child to be entitled to a FAPE. I.H., 842 F. Supp.
2d at 772–773; S.D., 811 F. Supp. 2d at 1071. In line with both of these
principles, it is not the secret desire of the parent that matters, but the objective
manifestation of those desires that dictate whether or not the public school
must offer a FAPE. If a parent comes to the District and clearly indicates that
he or she has no intention of ever placing the child in public school, the school
need not offer a FAPE. That is not the case here.
Here, Cathy re-enrolled Shane in the District but the Hearing Officer
nonetheless concluded that the District was not obligated to provide a FAPE
37
because Cathy had no intention of placing Shane in the District. His legal
conclusion was in error. Re-enrollment is enough to trigger the District’s FAPE
obligations and the parent’s “intent” is only relevant where it is objectively
made clear to the public school. Until then, the public school is obligated to
provide a FAPE. Under normal circumstances, it is clear that enrollment in
public school would trigger the IDEA’s FAPE obligations. I.H., 842 F. Supp. 2d
at 772–773 (“where a parent either re-enrolls their child in the public school or
requests evaluations with the intention of re-enrolling the student, the public
school is required to evaluate the child and develop an IEP for purposes of
proposing a FAPE.” ). Intent is only relevant where there was no enrollment,
which was not the case here. Further, when intent is relevant, it is not the
secret intention of the parent that dictates the school’s initial FAPE obligations
but whether or not that the “parent makes clear his or her intent to keep the
child enrolled in the private elementary or secondary school located in another
LEA” whether or not a FAPE is offered. Questions and Answers on Serving
Children with Disabilities Placed by Their Parents in Private Schools, Question
B-5 (Revised April 2011) (emphasis added).
The exchange between Cathy and District on September 12, 2013 in no
way “clearly” indicated that Shane would be staying at Allied dePaul from an
objective perspective. Quite the contrary. During Cathy’s testimony, the only
evidence of what took place on September 12, 2013, she explained that she
filled out the forms, and was asked “am I enrolling Shane in Carbondale.” (Doc.
38
8-4 at 15). Cathy testified that she responded by stating, “right now I’m looking
for [sic] to see where the best placement for Shane is.” (Id.). Cathy then
described the following exchange with the District’s personnel:
And I was treated very nasty. She said, well, are you
enrolling him here; because if not, you’re going to be
arrested for truancy because he’s not actually going
here.
And I said, well, can you please take the
records. I was like, I want to - - at this point I’m not
sure where he’s going right now. He’s in school so I’m
not going to get truancy charges.
She’s like, well, if you enroll him here and he
doesn’t come here, then there’s going to be a truant
officer coming to you and you could possibly get
arrested.
She was not forthcoming. She was not very,
once again, warm. I tried to give her the forms. And
she’s like, well, we’re not going to take them if he’s not
coming here.
And I said, you need to take these. What you do
with them after I leave is fine but you need to take
these. I’m giving these to the school to try to weigh out
my options for my son.
(Id. (emphasis added)). Though at no time did she clearly state, “I am
requesting an evaluation” or “I am requesting an IEP,” the above testimony
indicated that her statements to District personnel on September 12, 2103
included the following:
1.
[R]ight now I’m looking for [sic] to see where the best placement
for Shane is;
2.
[A]t this point I’m not sure where he’s going right now; and
3.
I’m giving these to the school to try to weigh out my options for my
son.
39
(Doc. 8-4 at 15). None of these statements provided clear indication to the
District that Cathy would be keeping Shane in Allied dePaul even if the District
offered Shane a FAPE. At best, her statements were ambiguous, leaving the
District obligated to offer a FAPE until there was some clear indication that
Cathy would be keeping Shane in private school. Even if she was unclear or
simply unsure, it was the District’s obligation to offer services to Shane. The
court could find no case law holding that a parent is obligated to make a clear
request for evaluation or an IEP during the enrollment process.
In addition, the court finds that the Hearing Officer’s factual conclusions
with respect to Cathy’s intentions are unsupported. The Hearing Officer
concluded that Cathy intended to keep Shane in private school and did not
seek placement in the District “[d]espite some testimony to the contrary.” (Doc.
8-2 at 4, ¶¶14–15). In the first instance, the Hearing Officer made no finding
about what happened on September 12, 2013 when Cathy re-enrolled Shane
stating he would make “no finding about what District staff actually said to
[her].” (Doc. 8-2 at 4, ¶13). He then found that Cathy “came away from the
interaction believing that the District would instigate truancy proceedings if the
Student enrolled but did not attend the District’s schools.” (Id.). In that instance,
while he had no evidence other than hearsay regarding the interaction, he
credited Cathy’s testimony.
Next, the Hearing Officer concluded that the “District understood the
Parent’s desire was to keep the Student at the Private School and continue to
40
receive [equitable participation].” (Id. ¶14). He cited to Mrs. Geyer’s testimony
in making this finding. In her testimony, Mrs. Geyer explained reaching her
conclusions with respect to Shane as follows:
When I received the registration packet from the
clerical staff, they informed that the parent registered
but the parent was choosing to keep the child enrolled
in [Allied] dePaul. Then after reviewing the documents
I found that there was an equitable participation plan
and an evaluation plan completed by the [NE]IU.
So it was my understanding that the parent was
keeping her son in [Allied] dePaul and receiving
special education services with the option of equitable
participation.
(Doc. 8-4 at 10).
After restating the District’s understanding of Cathy’s desires with
respect to Shane, the Hearing Officer found that the District’s understanding
was “correct”—i.e., that Cathy intended to keep Shane in private school—and
that Cathy “did not seek placement from or within the District.” (Id. ¶15). He
again cites Mrs. Geyer, who was not present during enrollment and who
reached her own conclusions after seeing Shane’s service plan. (Id.).
The testimony relied upon by the Hearing Officer does not support his
factual finding regarding Cathy’s intent. His citation to Mrs. Geyer’s testimony
does not support the factual finding that Cathy did not seek placement in the
District. Either the Hearing Officer credited unknown clerical staff that did not
testify at the hearing or the Hearing Officer concluded that, even if Cathy’s
testimony was correct and accurate, what she really wanted was equitable
41
participation, not an offer of FAPE. Neither of these findings are supported by
the actual record.
There is no evidence that Cathy made any statements indicating that she
had no desire to place Shane in the District. Instead, she testified that she
gave records to the District “to try to weigh out [her] options for [her] son.”
(Doc. 8-4 at 15). When asked whether she made it “clear” that she wanted
Shane evaluated, Cathy responded by stating, “Well, that’s what all the
records were for so they had all of them, yes.” (Id. at 16). It is arguable whether
this sort of action “clearly” indicates a request for anything, but this testimony
was consistent with Cathy’s testimony that she had some desire for Shane to
attend the District because it was convenient for her and her family. To state
otherwise would be to discredit a large portion of Cathy’s testimony. The
Hearing Officer made no explicit credibility finding to that effect. Quite the
opposite, he believed portions of Cathy’s testimony regarding her September
12, 2013 interaction with District personnel.
More importantly, as explained above, the Hearing Officer’s inquiry into
Cathy’s actual intent on September 12, 2013 was not the proper inquiry. The
proper inquiry was whether it was clear to the District that Shane would not be
attending the District even if a FAPE was offered. Without contradictory
evidence or other testimony about the September 12, 2013 registration
process, there is nothing “clear” in the record to show this and the evidence,
as a whole, suggests the opposite was true. There is nothing in the record to
42
contradict Cathy’s version of events on that day. The District concedes that
she came on that day, re-enrolled Shane, indicated her son was disabled on
the registration form, and provided paperwork, which happened to include a
service plan at the time. In that moment, the District had all it needed to be
able to begin discussions with Cathy about offering a FAPE to Shane. Further,
the fact that she was “keeping her son in [Allied] dePaul” was not enough for
the District to automatically be relieved of its IDEA obligations. (Doc. 8-4 at 10).
If this was the District’s assumption, then this assumption was incorrect. Cathy
was entitled to keep her son in private school until the District made an offer
of FAPE to Shane, in accordance with Forest Grove. It is only if Cathy were to
clearly indicate a rejection of any such offer that the District would be relieved
of its IDEA obligation.
Next, the court addresses whether the ability to dual enroll a student for
the payment of services proposed by a different LEA, in this case the NEIU,
altered the District’s obligation to propose a FAPE to Shane. Here, unidentified
District personnel concluded that Shane was not actually re-enrolling but was
being dual enrolled. (Doc. 8-6 at 79). The court finds that this state device did
not alter the District’s obligations under the IDEA.
In passing the regulations providing for parentally-placed private school
children, OSERS received comments requesting that the regulations not apply
to states with dual enrollment provisions. The agency’s response was, in part,
as follows:
43
With regard to the comment requesting that the child
find and equitable participation requirements for
parentally-placed private school children with
disabilities not apply in States with dual enrollment,
there is no exception in the Act to the child find and
equitable participation requirements of section
612(a)(10(A) for States that permits dual enrollment of
a child at a parent’s discretion. Therefore, there is no
basis to regulate to provide such an exception. It
would be a matter of State or local discretion to decide
whether to have a dual enrollment policy and, if
established, how it would be implemented. Whether
dual enrollment alters the rights of parentally-placed
private school children with disabilities under State law
is a State matter.
71 Fed. Reg. at 46590. Reviewing the IDEA the court agrees with OSERS
position that there is no exception in the IDEA for states with dual enrollment
provisions when in comes to servicing parentally-placed private school
children. Moreover, there is no exception for states with dual enrollment
provisions anywhere in the statute. Thus, when Cathy re-enrolled Shane in the
District on September 12, 2013 with an existing service plan, the fact that
Pennsylvania law allowed the District to classify Shane as “dually-enrolled”
and, therefore, pay for these services did not obviate the District’s IDEA
obligations to Shane in that moment.
In addition, the fact that Shane had an existing service plan also did not
lessen the District’s IDEA obligations. The BSE has made it clear that “[t]he
resident district cannot refuse to evaluate a child because the child is attending
a private school or because the [intermediate unit] also has a duty to evaluate
the child.” Questions and Answers Regarding Equitable Participation, ¶7.
44
Thus, although the District concluded that Cathy simply wanted dual
enrollment and equitable participation because her documents included a
service plan, this assumption was in error. (Doc. 8-4 at 10). The fact that
Shane had a service plan did not lessen the District’s obligation. Though it
appears that it was possibly a misunderstanding and not a “refusal” to evaluate
Shane, there is no reason for this distinction to make a difference with respect
to the first factor of the Burlington-Carter test.
The District failed in its IDEA obligations when Cathy re-enrolled Shane
in the District, notified the District of Shane’s disabilities, and the District failed
to offer a reevaluation and propose a FAPE. As such, the Hearing Officer’s
erred with respect to this first factor in the Burlington-Carter test. Accordingly,
his finding that Cathy was not entitled to tuition reimbursement because the
District was not obligated to provide Shane with a FAPE will be reversed.
Although the plaintiffs seek judgment in their favor on the issue of tuition
reimbursement, the court will instead remand to the Hearing Officer for further
consideration of the Burlington-Carter test. In this circuit, the court is
authorized to remand where clarification of the record is required. Evan H. v.
Unionville-Chadds Ford Sch. Dist., No. 07-4990, 2008 WL 4791634, at *2
(E.D. Pa. Nov. 4, 2008)(citing Carlisle Area Sch. v. Scott P., 62 F.3d 520, 526
(3d Cir. 1995)); see also Centennial Sch. Dist. v. Matthew L., 799 F. Supp. 2d
473, 491 (E.D. Pa. 2011) (remanding to the Hearing Officer for further facts
and conclusions of law with respect to the denial of a FAPE)). “Remand may
45
also be appropriate when a hearing officer applies the wrong legal standard.”
Evan H., 2008 WL 4791634, at *2.
Here, the Hearing Officer did not make any findings with respect to the
appropriateness of Allied dePaul as a private school placement, the second
consideration in the Burlington-Carter test. The parties clearly disagree on this
issue. The Hearing Officer had the benefit of live testimony from Ms. Rickard,
the principle at Allied dePaul who spoke about the school’s programs in some
detail. Clarification of this testimony and Shane’s school record at Allied
dePaul is best left in the hands of the state’s educational administrative body,
the ODR.
Similarly, with respect to the third factor, the Hearing Officer suggested
that equitable considerations might warrant a significant reduction or denial of
tuition reimbursement under 20 U.S.C. §1412(a)(10)(C)(iii). (Doc. 8-2 at 9).
This possibility was not clarified based on the Hearing Officer’s finding that the
District had no obligation to offer Shane a FAPE.
The Hearing Officer’s
finding regarding equitable considerations should be clarified in the light of the
court’s decision today.
The court agrees that there are equitable factors the Hearing Officer
should consider if it is determined that Allied dePaul is an appropriate school
placement. In particular, the court notes that Cathy did not follow up with the
District for over a year and, instead, waited for the District to reach out to her
after Shane’s re-enrollment on September 12, 2013. This unusual delay took
46
place despite the fact that she had some experience requesting IEPs before.
(See Doc. 8-4 at 16 (testifying that Shane’s initial IEP at Fell Charter was done
at her written request)). Thus, while the District had notice that Shane was in
Allied dePaul, there appears to have been no notice that Cathy would be
seeking tuition reimbursement for at least a year. See Forest Grove, 557 U.S.
at 246 (indicating that notice to the public school is an important
consideration).
The court also notes that the Third Circuit, in circumstances dealing with
the appropriateness of an IEP, has indicated that failing to place the
educational problem at issue with the school for more than a year is
unreasonable. Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 (3d Cir.
1994). In Bernardsville the court explained as follows:
We, of course, recognize that the school district has
the duty in the first instance to provide an appropriate
IEP, and moreover, to demonstrate by a
preponderance at a due process hearing that the IEP
it offered was indeed appropriate. With that foremost
in mind, we must nevertheless also recognize that as
a practical reality, and as a matter of procedural law of
which [the] parents where fully apprised, the right of
review contains a corresponding duty parental duty to
unequivocally place in issue the appropriateness of an
IEP. This is accomplished through the initiation of
review proceedings within a reasonable time of the
unilateral placement for which reimbursement is
sought. We think more than two years, indeed, more
than one year, without mitigating excuse, is
unreasonable delay.
47
Id. (footnote omitted). Although the IDEA was amended in 2004 to include an
explicit two-year statute of limitations for due process complaints, 20 U.S.C.
§1415(f)(3)(C), courts have used the reasoning in Bernardsville to deny tuition
reimbursement claims on equitable grounds. E.g., Mittman v. Livingston Twp.
Bd. of Educ., No. 09-4754 (DRD), 2010 WL 3947548, at *5 (D.N.J. Oct. 7,
2010). The unusual facts of this case may warrant further consideration.
In addition, at least one court has concluded that the parent’s actual
intent should play a role in considering the equities. E.T., 2012 WL 5936537,
at *16. While the court finds that only objective intent made clear to the public
school matters with respect to the initial offering of a FAPE, the court also
agrees that behavior indicating no desire or a change in desire to place the
child in public school after the re-enrollment is an equitable factor to keep in
mind. Whether these equities would lead to a denial or reduction of tuition
reimbursement is appropriately left to the administrative agency to determine
in the first instance.
V.
THE PLAINTIFFS’ ENTITLEMENT TO AN IEE AT PUBLIC EXPENSE
Lastly, the parties dispute the Hearing Officer’s finding that Shane was
not entitled to an IEE at public expense. (Doc. 8-2 at 9). Specifically, the
District contends that the Hearing Officer correctly found that the District was
not obligated to fund an IEE until Cathy disagreed with some initial evaluation.
While the District argues that this legal determination was correct, the plaintiffs
48
disagree and have advanced the same argument that was advanced at the
administrative proceeding, an argument that the Hearing Officer rejected. They
primarily rely on a February 23, 2015 policy letter issued by the OSERS. The
court agrees with the Hearing Officer that Shane is not entitled to a Districtfunded IEE and will affirm his decision.
The Hearing Officer described two reasons in his February 23, 2016
decision why Shane was not entitled to an IEE. Initially, he explained that “an
IEE at public expense is not triggered until the Parent disagrees with the
District’s evaluation” and “[i]n this case, there [was] no District evaluation for
the [p]arent to disagree with.” (Id. at 7). The Hearing Officer then explained that
the right to an IEE would also be triggered “when an LEA has an obligation to
evaluate but does not do so,” thereby failing to meet child-find obligations
under the IDEA. (Id. at 8). Applying these principles, the Hearing Officer
concluded that the District had not violated any child-find obligations, Shane
was “found,” and Cathy “exercised a choice to privately educate [Shane].” (Id.).
The court will affirm on the first ground alone.
“A parent has the right to an [IEE] at public expense if the parent
disagrees with an evaluation obtained by the public agency.” 34 C.F.R.
§300.502(b)(1); P.P, 585 F.3d at 740; see also 22 PA. CODE
§14.102(a)(2)(xxix) (expressly adopting 34 C.F.R. §300.502 by incorporation).
“A parent is entitled to only one independent educational evaluation at public
expense each time the public agency conducts an evaluation with which the
49
parent disagrees.” 34 C.F.R. §300.502(b)(5). “[T]he object of parents’ [sic]
obtaining their own evaluation is to determine whether grounds exist to
challenge the District’s.” Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d
80, 87 (3d Cir. 1990). Moreover, the Third Circuit has applied the regulation
“broadly to permit reimbursement not only when the parents expressly
disagree with the evaluation but also when ‘the parents[ ] fail[ ] to express
disagreement with the District’s evaluations prior to obtaining their own’
evaluation’” in order to render meaning to the regulation’s above-stated
purpose. Lauren W., 480 F.3d at 274–75 (quoting Warren G., 190 F.3d at 87)
(alteration in original). Consistent with the above, in a February 23, 2015
private letter relied on by the plaintiffs the OSERS concluded that a parent has
a right to an IEE “[w]hen an evaluation is conducted . . . and a parent
disagrees with the evaluation because [the] child was not assessed in a
particular area.” Letter from Melody Musgrove, Dir. of Office of Special Educ.
Programs, U.S. Dep’t of Educ., to Debbie Baus (Feb. 23, 2015), https:
//www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acc-14-012562r-baus-i
ee.pdf.
Here, as the Hearing Officer noted, there was no public evaluation of
Shane. Thus, there was nothing for the plaintiffs to object to. The regulation
that allows parents to obtain district-funded IEEs envisions a public evaluation
prior to the parents obtaining the IEE. This right is triggered “each time the
public agency conducts an evaluation with which the parent disagrees.” 34
50
C.F.R. §300.502(b)(5). Even in the private letter relied upon by the plaintiffs,
there is some public evaluation of the child that is somehow lacking which then
triggers the right to an IEE to evaluate those areas that were missed,
presumably to challenge the public evaluation. Letter from Melody Musgrove
(allowing an IEE “[w]hen an evaluation is conducted . . . and a parent
disagrees with the evaluation”). The regulation does not envision the
circumstances here, where there has been no initial evaluation to object to.
Moreover, this usage of IEEs is not in line with the regulation’s purpose.
The purpose of allowing district-funded IEE’s “is to determine whether grounds
exist to challenge” the public evaluation. Warren G., 190 F.3d at 87. On July
15, 2015, the District mailed Cathy a consent form which would have allowed
the District to reevaluate Shane. (Doc. 8-6 at 86–89). Cathy objected to the
proposed reevaluation and refused to give her consent. (Id. at 87). Thus, the
District was never given an opportunity to perform a reevaluation that Cathy
might challenge. Allowing the plaintiffs to obtain a District-funded IEE even
though Cathy refused to allow consent for a public evaluation would not be in
line with the regulation’s purpose of allowing parents to challenge a public
school’s evaluation of the child. The court also finds that the letter relied upon
by the plaintiffs supports the District’s position and the court will not expand the
letter beyond its facts—namely, where a public evaluation has occurred first
that is somehow lacking a child may receive another private evaluation to
challenge the public one. Accordingly, the plaintiffs were not entitled to a
51
District-funded IEE and the court will affirm the Hearing Officer’s decision in
this respect.11
V.
CONCLUSION
In accordance with the above, the District’s motion for summary
judgment/judgment on the administrative record, (Doc. 15), and the plaintiffs’
cross-motion for judgment on the administrative record, (Doc. 18), will both be
GRANTED IN PART and DENIED IN PART. The District’s motion will be
granted and the plaintiffs’ motion denied with respect to the Hearing Officer’s
conclusion that Shane is not entitled to an IEE at public expense. The Hearing
Officer’s decision on this issue will be affirmed. The District’s motion will be
denied and the plaintiffs’ motion granted, in part, with respect to Officer’s
Ford’s decision that Cathy is not entitled to tuition reimbursement under the
IDEA. The Hearing Officer’s decision with respect to tuition reimbursement will
be reversed and the case remanded for further consideration of the remaining
factors in the Burlington-Carter test. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: September 28, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0964-01.wpd
11
The court affirms the Hearing Officer’s determination on this ground
alone and does not reach his determination that a parent is entitled to a
district-funded IEE if the district fails, though does not refuse, to evaluate a
child. (Doc. 8-2 at 8). The court could not find support for this legal conclusion
and need not reach it in light of the facts of this case.
52
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