Polk, Ronald v. Central Susquehanna Intermediate Unit 16

This appeal requires that we examine the contours of the "free appropriate public education" requirement of the Education of the Handicapped Act, as amended, 20 U.S.C. Secs. 1401-1461, (1982) (EHA), as it touches on the delivery of physical therapy, which is a "related service" under the EHA. Ronald and Cindy Polk are parents of Christopher Polk, a child with severe mental and physical impairments. They claim that defendants, the local school district and the larger administrative Intermediate Unit (which oversees special education for students in a five-county area) violated the EHA because they failed to provide Christopher with an adequate program of special education. Specifically, plaintiffs contend that defendants' failure to provide direct "hands-on" physical therapy from a licensed physical therapist once a week has hindered Christopher's progress in meeting his educational goals.

The district court granted summary judgment in favor of defendants. The court held that because Christopher derived "some educational benefit" from his educational program, the requirements of the EHA, as interpreted by the Supreme Court in Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), have been met, see infra at page 180-81.

We will reverse the district court's grant of summary judgment for two reasons. First, we discern a genuine issue of material fact as to whether the defendants, in violation of the EHA procedural requirement for individualized educational programs, have refused, as a blanket rule, to consider providing handicapped students with direct physical therapy from a licensed physical therapist. Second, we conclude that the district court applied the wrong standard in evaluating the appropriateness of the child's education. Although the district court relied upon language from a recent Supreme Court case, it took that language out of context and applied it beyond the narrow holding of the Supreme Court's opinion. More specifically, we believe that the district court erred in evaluating this severely handicapped child's educational program by a standard under which even trivial advancement satisfied the substantive provisions of the EHA's guarantee of a free and appropriate education. There is evidence in the record that would support a finding that the program prescribed for Christopher afforded no more than trivial progress. We will therefore reverse and remand for further proceedings consistent with this opinion.

The EHA requires that Pennsylvania, as a recipient of federal assistance thereunder, ensure that each disabled student in the state receive a "free appropriate public education." 20 U.S.C. Sec. 1412(1) (1982). The EHA mandates that participating states provide such education for all children "regardless of the severity of their handicap." 20 U.S.C. Sec. 1412(2)(C) (1982). In pertinent part, the Act defines a free appropriate public education as:

special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge,.... and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. Sec. 1401(18) (1982). The term "related services" includes "physical and occupational therapy ... as may be required to assist a handicapped child to benefit from special education." 20 U.S.C. Sec. 1401(17) (1982). Such special education and related services must be tailored to the unique needs of the handicapped child by means of an Individualized Education Program (IEP). 20 U.S.C. Sec. 1401(16).

An IEP is "more than a mere exercise in public relations," Georgia Ass'n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1570 (11th Cir.1983), vacated in part on other grounds, 468 U.S. 1213, 104 S.Ct. 3581, 82 L.Ed.2d 880 (1983), reinstated in relevant part, 740 F.2d 902 (1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 365 (1985); indeed, it is the "centerpiece of the statute's education delivery system for disabled children." Honig v. Doe, --- U.S. ----, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1988). 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. 20 U.S.C. Secs. 1401(19) (defining IEP), Sec. 1414(a)(5) (requiring an IEP). In practice the multi-disciplinary team will, as appropriate, consist of a teacher, psychologist, physician, physical and/or vocational therapist and administrator. Input is also sought from parents.

Additionally, the EHA imposes extensive procedural due process requirements upon the participating states. Complaints brought by parents or guardians must be resolved at "an impartial due process hearing." 20 U.S.C. Sec. 1415(b)(2). Any party dissatisfied with the state administrative hearing may bring a civil action in state or federal court. 20 U.S.C. Sec. 1415(e). In such action, the district court must conduct an independent review based on the preponderance of the evidence but in doing so "due weight shall be given to [state administrative] proceedings." Rowley, 458 U.S. at 206, 102 S.Ct. at 3051.

Christopher Polk is severely developmentally disabled. At the age of seven months he contracted encephalopathy, a disease of the brain similar to cerebral palsy. He is also mentally retarded. Although Christopher is fourteen years old, he has the functional and mental capacity of a toddler. All parties agree that he requires "related services" in order to learn. He receives special education from defendants, the Central Susquehanna Intermediate Unit # 16 (the IU) and Central Columbia Area School District (the school district). Placed in a class for the mentally handicapped, Christopher has a full-time personal classroom aide. His education consists of learning basic life skills such as feeding himself, dressing himself, and using the toilet. He has mastered sitting and kneeling, is learning to stand independently, and is showing some potential for ambulation. Christopher is working on basic concepts such as "behind," "in," "on," and "under," and the identification of shapes, coins, and colors. Although he is cooperative, Christopher finds such learning difficult because he has a short attention span.

Although the record is not clear on this point, until 1980, the defendants apparently provided Christopher with direct physical therapy from a licensed physical therapist. Since that time, however, under a newer, so-called consultative model,1 Christopher no longer receives direct physical therapy from a physical therapist. Instead, a physical therapist (one of two hired by the IU) comes once a month to train Christopher's teacher in how to integrate physical therapy with Christopher's education.2 Although the therapist may lay hands on Christopher in demonstrating to the teacher the correct approach, he or she does not provide any therapy to Christopher directly, but uses such interaction to teach the teacher. Plaintiffs do not object to the consultative method per se, but argue that, to meet Christopher's individual needs, the consultative method must be supplemented by direct ("hands on") physical therapy.3

In support of this position, plaintiffs adduced evidence that direct physical therapy from a licensed physical therapist has significantly expanded Christopher's physical capacities. In the summer of 1985, Christopher received two weeks of intensive physical therapy from a licensed physical therapist at Shriner's Hospital in Philadelphia. According to Christopher's parents, this brief treatment produced dramatic improvements in Christopher's physical capabilities.4 A doctor at Shriner's prescribed that Christopher receive at least one hour a week of direct physical therapy. Because the defendants were unwilling to provide direct physical therapy as part of Christopher's special education program, the Polks hired a licensed physical therapist, Nancy Brown, to work with Christopher at home. At the time of the hearing, she was seeing Christopher twice a week.

Plaintiffs acknowledge that the school program has benefited Christopher to some degree, but argue that his educational program is not appropriate because it is not individually tailored to his specific needs, as the EHA requires. Moreover, throughout all of the administrative and judicial proceedings that we now describe, plaintiffs have maintained that to comply with the EHA the defendants must provide, as part of Christopher's "free appropriate public education," one session a week with a licensed physical therapist.

Plaintiffs first challenged Christopher's IEP before a Commonwealth of Pennsylvania Department of Education Hearing Officer. At that hearing and in later depositions, the administrator of the IU, Christopher's teachers, the IU's physical therapy consultant, Christopher's current private physical therapist and his therapist from Shriner's all testified concerning Christopher's capabilities and educational needs. The Hearing Officer found that Christopher was benefiting from his education, and that his education was appropriate.5 This finding was affirmed by the Pennsylvania Secretary of Education.6

After exhausting administrative remedies to their dissatisfaction, the Polks brought suit in the district court for the Middle District of Pennsylvania. The district court initially permitted plaintiffs to conduct discovery about whether any of the 65 students in the five county intermediate unit whose IEPs call for some sort of physical therapy had received individualized "hands-on" physical therapy. Concomitantly, the court rejected defendants' motion under Fed.R.Civ.P. 12(f) to strike from the complaint the allegations that no child in the IU received direct physical therapy. Defendants refused to respond to this discovery, and the district court granted plaintiffs' motion to compel. Plaintiffs then moved for additional discovery concerning the services provided to other handicapped students. However, before the district court ruled on that request (and before the defendants provided any additional information), the district court granted summary judgment for the defendants. Relying on the Supreme Court's decision in Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51, the court held that the provisions of EHA had been met because Christopher had received some benefit from his education. This appeal followed.

Plaintiffs present two arguments on appeal. First, they submit that the defendants violated EHA's procedural requirements because Christopher's program is not truly individualized.7 Plaintiffs rely, in this regard, on the defendants' failure to provide direct ("hands on") physical therapy from a licensed physical therapist to any of the children in the intermediate unit (a fact they learned during Christopher's due process hearing before the state examiner). This failure, they contend, is evidence that the defendants have an inflexible rule prohibiting direct therapy and that such a rigid rule conflicts with the EHA's mandate of providing individualized education. Plaintiffs argue that genuine questions of material fact exist as to the defendants' willingness to provide direct physical therapy under any circumstances, and that such disputes preclude summary judgment.

Second, plaintiffs assert that Christopher's education is inadequate to meet his unique needs. They claim that the district court found Christopher's education appropriate only because it applied an erroneous legal standard in judging the educational benefit of Christopher's program.III. ROLE OF PHYSICAL THERAPY IN PROVIDING A FREE

For some handicapped children, the related services provided by the EHA serve as important facilitators of classroom learning. In Irving Independent School District v. Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984), the Supreme Court unanimously held that the EHA required the provision of in-school intermittent catheterization services to a child with spina bifida so that she could attend a regular public school class. The Court distinguished between the types of related services contemplated by the EHA and the medical care that requires a doctor. In so doing, the Court explicitly acknowledged the importance of related services to the scheme of the EHA: "Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as 'trained occupational therapists.' " Id. at 893, 104 S.Ct. at 3377 (quoting S.Rep.No. 94-168, p. 38 (1975)).

For children like Christopher with severe disabilities, related services serve a dual purpose. First, because these children have extensive physical difficulties that often interfere with development in other areas, physical therapy is an essential prerequisite to education. For example, development of motor abilities is often the first step in overall educational development. See P.H. Pearson & C.E. Williams, eds., Physical Therapy Services in the Developmental Disabilities 173 (hereinafter Physical Therapy ) (noting close relationship between speech and head, trunk, and arm control).8 As we explained in Battle v. Pennsylvania, 629 F.2d 269, 275 (3d Cir.1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981), in discussing children with severe emotional disturbances:

Where basic self-help and social skills such as toilet training, dressing, feeding and communication are lacking, formal education begins at that point. If the child masters these fundamentals, the education moves on to more difficult but still very basic language, social and arithmetic skills, such as counting, making change, and identifying simple words.

Id. at 275.

Second, the physical therapy itself may form the core of a severely disabled child's special education. This court has recognized that "[t]he educational program of a handicapped child, particularly a severely and profoundly handicapped child ... is very different from that of a non-handicapped child. The program may consist largely of 'related services' such as physical, occupational, or speech therapy." DeLeon v. Susquehanna Community School Dist., 747 F.2d 149, 153 (3d Cir.1984). In Christopher's case, physical therapy is not merely a conduit to his education but constitutes, in and of itself, a major portion of his special education, teaching him basic skills such as toileting, feeding, ambulation, etc.

IV. THE PLAINTIFFS' PROCEDURAL CLAIM (THAT CHRISTOPHER'S

As we noted above, the plaintiffs have offered to prove that the defendants never genuinely considered Christopher's unique needs because of a rigid policy of providing only consultative physical therapy. They adduced evidence during cross examination at the state administrative hearing that none of the 65 children in defendants' intermediate unit whose IEPs call for physical therapy actually receive direct physical therapy. The plaintiffs also contend that, since the adoption of the consultative model, this rigid policy has precluded the defendants from recognizing Christopher's individual needs in violation of the EHA.9 Plaintiffs submit that the district court did not recognize the force of this procedural argument, and hence erred in granting summary judgment when a genuine issue of material fact existed as to the willingness of the defendants to provide direct physical therapy to any child.

The defendants respond that it is, and always has been, their position that direct therapy would be provided, if needed. The therapist who consults monthly with Christopher's teacher testified before the Department of Education hearing examiner that she would provide therapy treatment directly if she determined that such therapy were appropriate. The previous physical therapy consultant and the administrator of the IU similarly claimed in testimony before the hearing examiner that direct physical therapy would be provided, if needed, but that such a case has never arisen for Christopher nor for any other student in the Unit.

Critical to resolution of this question are the Act's procedural protections. To repeat, the centerpiece of the procedural scheme is the IEP. See supra Section I. As the Supreme Court has noted, an essential protection of the EHA stems from the parental participation in the formulation of an IEP for the child's special education. See Rowley, 458 U.S. at 208, 102 S.Ct. at 3052 ("Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies, ... and in the formulation of the child's individual education program."). This system of procedural protection only works if the state devises an individualized program and is willing to address the handicapped child's "unique needs." 20 U.S.C. Sec. 1401(16). Accord Rowley, 458 U.S. at 209, 102 S.Ct. at 3052.

In Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981), this court held that Pennsylvania's inflexible policy of limiting special education to 180 days per year, regardless of individual need, violated the EHA. We noted that:

At the core of the Act is a detailed procedure for determining the contours of the free appropriate public education to be delivered to each child. We believe that these procedural safeguards require individual attention to the needs of each handicapped child.

629 F.2d at 280 (citations omitted). We stated that Pennsylvania's 180-day policy conflicted "with the Act's emphasis on the individual." Id. at 280. Similarly, in Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir.1983), vacated in part on other grounds, 468 U.S. 1213, 104 S.Ct. 3581, 82 L.Ed.2d 880 (1983), reinstated in relevant part, 740 F.2d 902 (1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 365 (1985), the Court of Appeals for the Eleventh Circuit held that the application of across-the-board findings to all profoundly retarded children in lieu of individual consideration of their unique needs was impermissible under the EHA.10 As Georgia Association explained, the force of this conclusion, "by itself, does not impose a substantive standard on the state; it requires no more than that the state consider the need ... when developing a plan of education and related support services that will benefit a handicapped child." 716 F.2d at 1576.

In our view, a rigid rule under which defendants refuse even to consider providing physical therapy, as did the rule struck down in Battle, would conflict with Christopher's procedural right to an individualized program. Drawing all reasonable inferences in favor of the non-moving party, see Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.1985), we believe that a genuine dispute exists over whether the defendants would consider, under any circumstances, offering direct physical therapy, and that this dispute is over material facts, precluding summary judgment. Concomitantly, we believe that plaintiffs should be given an opportunity to continue their discovery into this question because the existence of a rigid rule prohibiting such therapy would violate the EHA. Therefore, we will reverse and remand the district court's decision for inquiry into whether defendants possess a rigid policy prohibiting the provision of direct physical therapy to children in the IU.

V. PLAINTIFFS' SUBSTANTIVE CLAIM (THAT THE COURT MISAPPLIED

THE LEGAL STANDARD FOR EVALUATING APPROPRIATE EDUCATION)

We begin our discussion of the substantive protections of the EHA with the Supreme Court's opinion in Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), because the parties' arguments are so closely tied to that case; only in the context of Rowley can we intelligently present the parties' contentions and the district court's opinion.

Rowley concerned an eight year old deaf child, Amy Rowley, whose parents requested a full-time interpreter to assist her in school. The school district's refusal to provide this service under the EHA generated the dispute. Amy possessed some residual hearing and was an excellent lip reader. She was an above average student who performed at the level of her grade and was advancing from grade to grade in her regular public school classroom. Because of her hearing disability, she could only understand about 60% of what transpired in class. Nevertheless, she performed impressively in a "mainstreamed" classroom.

The school had made substantial efforts to assist Amy. Before her arrival at school, a number of administrators learned sign language to communicate with her. At the time of her request for a full time interpreter, the school was already providing Amy with a special FM hearing aid, speech therapy, and tutoring for the deaf. In addition, Amy's parents, who also were deaf, could communicate with the school by a teletype machine specifically installed in the principal's office for that purpose.

The Supreme Court held that Amy was not entitled to a private interpreter as part of her IEP under the EHA even though she could not follow 100% of the class' activities without such extra assistance. The Court analyzed the EHA and held that "if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a 'free appropriate public education' as defined by the Act." 458 U.S. at 189, 102 S.Ct. 3042.11 The Court thus explained that the purpose of the Act was to provide a basic level of educational opportunity, not to provide the best education money can buy. See id. ("certainly the language of the statute contains no requirement ... that states maximize the potential of handicapped children"); id. at 197 n. 21, 102 S.Ct. at 3046 n. 21 ("Whatever Congress meant by an 'appropriate' education, it is clear that it did not mean a potential-maximizing education."); Muth v. Central Bucks Schools Dist., 839 F.2d 113, 119 (3d Cir.1988) (citing Rowley ). However desirable the goal of maximizing each child's potential may be in terms of individuals, the Court obviously recognized that achieving such a goal would be beyond the fiscal capacity of state and local governments, and that Congress had realized that fact as well.

Furthermore, the Court cautioned against too much judicial interference in the substance of the child's education. It concluded that, where a handicapped child is receiving an appropriate education, it is not the job of this court or any other to dictate educational methods to special education experts. See Rowley, 458 U.S. at 208, 102 S.Ct. at 3052 ("once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States") (citations and footnotes omitted); Rettig v. Kent City School Dist., 720 F.2d 463, 465-66 (6th Cir.1983), cert. denied, 467 U.S. 1201, 104 S.Ct. 2379, 81 L.Ed.2d 339 (1984). Instead, the Court focused on access to special education rather than the content of that education. It quoted at length the legislative history of the EHA, holding that its sponsors emphasized receipt of educational services rather than any specific form or level of educational benefit. Id. 458 U.S. at 195-97, 102 S.Ct. at 3045-46; see id. at 200, 102 S.Ct. at 3047-48 ("neither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access"). Adverting to the legislative history, the Court concluded that "the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192, 102 S.Ct. at 3043.

Although the tenor of the Rowley opinion reflects the Court's reluctance to involve the courts in substantive determinations of appropriate education and its emphasis on the procedural protection of the IEP process, it is clear that the Court was not espousing an entirely toothless standard of substantive review. Rather, the Rowley Court described the level of benefit conferred by the Act as "meaningful." 458 U.S. at 192, 102 S.Ct. at 3043. As the Court explained:

By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful.

Id. (emphasis added). After noting the deference due to states on questions of education and the theme of access rather than a guarantee of any particular standard of benefit, the Court acknowledged that:

Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such ... supportive services ... as may be required to assist a handicapped child to benefit from special education." Sec. 1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

Id. at 200-01, 102 S.Ct. at 3048 (emphasis in original).

The preceding quotation demonstrates that the Supreme Court in Rowley did not abdicate responsibility for monitoring the substantive quality of education under the EHA. Instead, it held that the education must "provide educational benefit." The Court thus recognized that the substantive, independent judicial review envisioned by the EHA was not a hollow gesture. Instead, courts must ensure "a basic floor of opportunity" that is defined by an individualized program that confers benefit.

Finally, it is important to note that, notwithstanding Rowley 's broad language, the Court indicated that its holding might not cover every case brought under the EHA. Indeed, Rowley was an avowedly narrow opinion that relied significantly on the fact that Amy Rowley progressed successfully from grade to grade in a "mainstreamed" classroom. The Court self-consciously limited its opinion to the facts before it:

We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.

Although we do not argue that Rowley "contradicts itself," id. at 212, 102 S.Ct. at 3053 (White, J., dissenting), we nevertheless note the tension in the Rowley majority opinion between its emphasis on procedural protection (almost to the exclusion of substantive inquiry) and its substantive component quoted and discussed supra at 179.13 This tension is unresolved in the Rowley case itself because the facts of the case (including Amy Rowley's quite substantial benefit from her education) did not force the Court to confront squarely the fact that Congress cared about the quality of special education. In the case sub judice, however, the question of how much benefit is sufficient to be "meaningful" is inescapable. Therefore we must examine the Act's notion of "benefit" and appl