Opinion
Case No. 19-cv-00159-KM-ESK
04-09-2020
J.M., et al., Plaintiffs, v. SUMMIT CITY BOARD OF EDUCATION, Defendant.
OPINION AND ORDER
KIEL, United States Magistrate Judge
This matter comes before the Court on plaintiffs' Motion to Supplement the Administrative Record (the "Motion") under the Individuals with Disabilities Education Act ("IDEA"). 20 U.S.C. § 1400, et seq. (ECF Nos. 32, 36.) Defendant, Summit City Board of Education (the "District"), opposes the Motion. (ECF No. 35.) This Court has considered plaintiffs' submissions and the District's opposition and decides the Motion on the papers and without argument pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, and for good cause shown, the Motion is GRANTED in part and DENIED in part.
BACKGROUND
I. PLAINTIFFS' CLAIMS
Plaintiffs, the parents of C.M., seek judicial review of the October 12, 2018 decision of Administrative Law Judge Thomas R. Betancourt. Judge Betancourt concluded that the District met its Child-Find obligations and that, as of February 8, 2016, C.M. was not eligible for special education and related services under the IDEA (the "ALJ Decision"). The ALJ Decision dismissed plaintiffs' due process petition with prejudice. (ECF No. 1 ("Compl."), ¶ 18.)
"Child Find" is a requirement under the IDEA that schools find, locate, and evaluate all children who have disabilities and who may be entitled to special education services.. --------
In this case, plaintiffs seek, inter alia, 1) a reversal of the ALJ Decision, 2) an award of compensatory damages, 3) a finding the District violated C.M.'s rights under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), 4) a judgment declaring that the District must develop an Individualized Education Plan ("IEP") for C.M., which aligns with the recommendations of plaintiffs' evaluators, and 5) an award for attorney fees and costs. Plaintiffs filed the Motion on December 5, 2019, to amend the ALJ administrative record with 14 exhibits, namely exhibits A-N ("Exhibits"). (ECF No. 23.)
II. RELEVANT LAW
"School districts have a continuing obligation under the IDEA and § 504 to identify and evaluate all students who are reasonably suspected of having a disability." P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009); see 20 U.S.C. § 1412(a)(3). The IDEA authorizes judicial review of administrative decisions and provides that, "[i]n any action brought under this paragraph, the court
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."20 U.S.C. § 1415(i)(2)(C).
"The IDEA directs that a reviewing court 'is obliged to conduct 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. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). "Factual findings from the administrative proceedings are to be considered prima facie correct[,]" while legal conclusions are reviewed de novo. Id.
On a motion to supplement the administrative record, a district court must exercise "particularized discretion in its rulings so that it will consider evidence relevant, noncumulative and useful in determining" whether a "child with disabilities has access to a program that is tailored to his or her changing needs and designed to achieve educational progress." See Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). A district court does not use the substantial evidence standard typically applied in the review of administrative agency decisions, but instead must decide independently whether the requirements of the IDEA are met. Id. (internal quotations and citations omitted).
The District argues "that a child study team's decision must be reviewed based on the 'snapshot' of information available at the time of decision, and it applies to both IEPs and eligibility determinations." (Defendant's December 24, 2019 Brief ("Df. Br.") at p. 9; ECF No. 35 at p. 10). The District cites to Fuhrmann on Behalf of Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993), for this proposition. Fuhrmann, however, "does not stand for the proposition that a student's later progress may not be considered in any way in evaluating a previous IEP. The issue is always whether the IEP decisions were proper and reasonable at the time." T.O. v. Summit City Bd. of Educ., No. 12-05350, , 2015 WL 4548780, at *17 (D.N.J. July 27, 2015).
A district court should "include relevant, non-cumulative, and useful evidence, even when it is from those who did, or could have, already testified in the due process hearing." See M.C. v. Sch. Dist. of Phila., 393 F.Supp.3d 412, 416 (E.D. Pa. 2019). "[A] court should determine the appropriateness of an IEP as of the time it was made, and should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district's decisions at the time that they were made." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564-65 (3d Cir. 2010); accord Susan N., 70 F.3d at. 762. In adopting a "reasonable time" standard, the Third Circuit employs a "case-by-case approach" to "assess whether the school district's response was reasonable 'in light of the information and resources possessed' by the district at a given point in time." See Ridley Sch. Dist. v. M.R., 680 F.3d 260, 272 (3d Cir. 2012).
LEGAL ANALYSIS AND DISCUSSION
The District does not address plaintiffs' proposed Exhibits (ECF No. 23) individually, but in two categories: those that pre-date February 8, 2016 (Exhibits E, M, and N) and those that post-date February 8, 2016 (Exhibits A-D, F-L). The Court will consider the Exhibits individually and in the two groupings.
I. EXHIBITS E, M, AND N ARE RELEVANT, USEFUL, AND NON-CUMULATIVE.
A. Exhibit E: Email Exchange Between September 24 , 2015 and September 30, 2015
Plaintiffs' email exchange with the District contains communications concerning how plaintiffs should communicate with the District about C.M. This is relevant and useful because it shows that the District promoted phone conversations with the parents over email communications. Plaintiffs argue that their credibility was attacked on this point. Exhibit E adds context to this issue, and thus, is useful, relevant, and non-cumulative.
B. Exhibits M and N: Voicemail From C.M.'s First Grade Teacher on December 15 , 2015
Plaintiffs' seek to include a recording and a transcript of a voice message from a District teacher who called plaintiffs concerning C.M. The call and the transcript are relevant and useful because they help establish what the District knew concerning C.M.'s condition and when the District knew it. While evidence concerning the voice message was presented at the hearing before the ALJ, the recording is not cumulative because the testimony at the hearing was based on E.M.'s recollection rather than a transcript or recording. Ex. M and N are useful and relevant.
II. EXHIBITS A, B, C, AND D ARE RELEVANT, USEFUL, NON-CUMULATIVE, AND HELPFUL IN REVIEWING THE REASONABLENESS OF THE DISTRICT'S DECISION.
A. Exhibit A and B: July 20 , 2016 Letter From Jayne Wesler, Esq. to Caitlin Pletcher, Esq. and March 1, 2017 Letter From Jayne Wesler, Esq. to John Comegno II, Esq.
Plaintiffs seek to supplement the administrative record with two letters (Exhibits A and B), which plaintiffs assert help establish whether the District violated its continuing obligation under Child Find to monitor C.M.'s progress and further evaluate C.M. Exhibit A establishes the date when the District, through its counsel, first received the "speech-and-language evaluation." (ECF No. 23-1.) Exhibit B establishes the date when the District, through its counsel, first received the "Second Expert Report of Dr. Carolyn McGuffog dated 2017" (ECF No. 23-2), which plaintiffs refer to as a "Neuropsychological Evaluation Update." (Plaintiffs' December 5, 2019 Brief ("Pl. Br.") at p. 5, ECF No. 32-1 at p. 9.)
Plaintiffs assert that this information is not cumulative because there is no evidence in the record to establish when the District received the reports (the "Reports") referred to in the letters. (Id.) The District does not refute this assertion. This information is relevant and useful because it establishes the time when the District first knew of the Reports.
B. Exhibit C: Report of Psychiatric Evaluation of C.M. By Platt Psychiatric Associates , LLC
Plaintiffs seek to include a report from an evaluation performed by Platt Psychiatric Associates, LLC (the "Platt Report") on March 31, 2017 to show that C.M. was involved in multiple behavioral incidents following February 8, 2016. (ECF No. 23-3.) Plaintiffs assert that there is no evidence of any behavioral issues after February 8, 2016, and thus, the information in contained in Exhibit C is non-cumulative. (Pl. Br. at pp. 7-9; ECF No. 32-1 at pp. 11-13.) The District does not take a position as to Exhibit C, specifically.
The Court finds the Platt Report to be relevant to the extent that it identifies behavioral incidents but not useful in "evaluat[ing] the reasonableness of the school district's decision at the time the decision was made." Susan N., 70 F.3d at 762. For these reasons, the opinions in the Platt Report should not be included as a supplement to the administrative record.
C. Exhibit D: IEP issued on August 21 , 2017
Plaintiffs seek to include Exhibit D, which is C.M.'s IEP dated April 27, 2017, to establish when C.M. was classified as "Autistic" by the District (ECF No. 23-4 at p. 1) after February 8, 2016 and "whether [the] District's actions between February 8, 2016 and August 21, 2017 were 'reasonable in light of the information and resources possessed' by the [D]istrict[.]" (Pl. Br. at p. 10; ECF No. 32-1 at pp. 13-14 (quoting Ridley, 680 F.3d at 272).) The District does not take a position as to Exhibit D, specifically.
The Court finds plaintiffs' arguments to be persuasive. In addition to being relevant for the above reasons, the IEP is also relevant because it memorializes the District's learning plan for C.M. as of April 27, 2017. For these reasons, the Court finds Exhibit D to be relevant, useful, non-cumulative, and helpful to establish the reasonableness of the District's decision.
III. EXHIBITS F, G-I, J, K-L ARE NOT RELEVANT OR USEFUL.
Exhibits F, G-I, J, and K-L, were created or relate to events after February 8, 2016. They do not help to "evaluate the reasonableness of the school district's decision at the time the decision was made[.]" Susan N., 70 F.3d at. 762. For example, Exhibit F is an email on July 11, 2019 between plaintiffs and the District containing graphs of C.M.'s percentage compliance to four rules throughout the school day between February 11, 2019 and June 11, 2019. (ECF No. 32-6 at p. 1.) The email exchange provides little context as to what the graphs mean and how they were created, and therefore, their usefulness is unknown. Susan N., 70 F.3d at. 760. Further, the graphs were created years after February 8, 2016 and the ALJ's Decision, and thus, could not have had any impact on the District's decision. For the same reasons, the Court rejects plaintiffs' request to include Exhibit J, which is plaintiffs' July 19, 2019 letter forwarding a June 2019 neuropsychological report by Dr. McGuffog.
Exhibits G, H, and I are : (1) plaintiffs' letters to the District concerning their plan to enroll C.M. at Winston Preparatory School and demand that the District pay for C.M.'s Winston tuition (ECF Nos. 23-8, 23-12), and (2) the District's July 9, 2019 response (Exhibit H), in which the District rejects plaintiffs' demand and notifies plaintiffs of the District's desire and ability to provide C.M. a FAPE for the 2019-2020 school year. (ECF No. 32-11.) Exhibits K and L are invoices for tuition and occupational therapy.
Plaintiffs may need to rely on some of these documents to prove damages at a later stage of this case. An application to supplement the administrative record is not the appropriate way to introduce these documents into this proceeding. These documents are not relevant or helpful to evaluate the reasonableness of the ALJ's Decision.
Accordingly,
IT IS on this 9th day of April 2020 ORDERED that:
1. The Motion (ECF No. 32) is GRANTED in part and DENIED in part as follows:
A. Plaintiffs' request to add Exhibits A, B, C, D, E, M, and N to the administrative record is GRANTED.
B. Plaintiffs' request to add Exhibits F, G, H, I, J, K, and L to the administrative record is DENIED.
2. The Clerk of the Court is directed to terminate the Motion at ECF No. 31.
/s/ Edward S . Kiel
Edward S. Kiel
United States Magistrate Judge