Cynthia K. v. Portsmouth Sch. Dep't

2020 DNH 092

Cynthia K. v. Portsmouth School Department

Civil No. 19-cv-1129-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

June 2, 2020

ORDER

This is a case brought under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. The plaintiff, Cynthia K., challenges the decision of a New Hampshire Department of Education hearing officer that Portsmouth School Department is not required to pay for an independent educational evaluation ("IEE") of her son, S.K. Portsmouth School Department ("Department") asks the court to affirm the hearing officer's decision.

Statutory Framework

The purpose of the IDEA includes "ensur[ing] that all children with disabilities have available to them a free appropriate public education ["FAPE"]" and "ensur[ing] that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A) & (B); J.S. v. Westerly Sch. Dist., 910 F.3d 4, 7 (1st Cir. 2018). Under the IDEA, school districts are required to find and evaluate children with disabilities who live in the school district and who may require special education or related services. 20 U.S.C. § 1412(a)(3)(A). New Hampshire receives federal funds in order to provide FAPE for its children, under the IDEA, and has enacted policies and procedures for the required educational services. Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 10 (1st Cir. 2002).

Before special education and related services are provided, however, a state or local educational agency must conduct "a full and individual initial evaluation." 20 U.S.C. § 1414(a)(1)(A). Once an initial evaluation is done, if the parent disagrees, the parent may request that the school district provide an IEE at public expense. 34 C.F.R. § 300.502(b)(1). In response, the school district may either pay for an IEE or file a due process complaint to request a due process hearing to show that the initial evaluation is appropriate.¹ § 300.502(b)(2). At a hearing under § 300.502(b)(2), the school district bears the burden to show thatthe initial evaluation is appropriate. Id. A party who disagrees with the hearing officer's decision may bring a civil action in this court. 20 U.S.C. § 1415(i)(2).

Standard of Review

In an IDEA case seeking review of the decision of a hearing officer, the court "shall receive the record of the administrative proceedings; . . . shall hear additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). Despite that seemingly straightforward statutory provision, in reviewing the administrative record and other evidence, the court is instructed to apply a standard of "involved oversight, a standard which falls somewhere between the highly deferential clear error standard and the non-deferential de novo standard." South Kingston Sch. Comm. v. Joanna S., 773 F.3d 344, 349 (1st Cir. 2014). To implement involved oversight, the court makes an independent ruling, by a preponderance of the evidence, from the administrative record and any other evidence introduced, but that independent review must be "tempered by the requirement that the court give due weight to the hearing officer's findings." Johnson v. Boston Pub. Schs., 906 F.3d 182, 191 (1stCir. 2018). The party seeking review bears the burden of showing that the hearing officer's decision is wrong. Del Rosario v. Nashoba Reg'l School District, 419 F. Supp. 3d 210, 220 (D. Mass. 2019).

Background

A. Factual Background²

In the fall of 2017, S.K. enrolled at New Franklin School in the Portsmouth School Department as a kindergarten student. After he enrolled, the Department received S.K.'s early intervention records, records from when S.K. was referred for special education at the age of three, medical treatment records, and other treatment and evaluation records. Cynthia K. made a written referral of S.K. for special education, but the Department decided not to evaluate him at that time. The Department did develop a "Section 504 Plan" for S.K. to address feeding issues and impulsivity.³

During kindergarten, S.K.'s behavior caused his teacher to request school intervention services. The Department's Section 504 Team developed a Section 504 Plan to provide accommodations for S.K.'s "dysphagia and h [sic] impulsivity." Doc. no. 10 at 3. In December of 2017, S.K.'s kindergarten teacher requested school intervention services because of S.K.'s frequent disruptive and noncompliant behavior. The school developed an action plan to address those issues and added counseling and a behavior plan to S.K.'s Section 504 Plan. In April of 2018, the Section 504 team added accommodations for S.K.'s impulsivity and physical therapy to his Section 504 Plan.

S.K.'s behavior issues continued into first grade. The special education coordinator at New Franklin School referred S.K. for a "Functional Behavior Assessment" because of his noncompliant and unsafe behavior. The assessment was done by Dr. Jodi Deming between October 16 and November 6, 2018, and resulted in a report with a recommended positive behavior plan. The short-term objective was to reduce S.K's daily noncompliance level by 75% and his weekly unsafe behavior level by 90%. The plan included programming to teach S.K. about ways to cope, to communicate, and to change his behavior.

On November 14, 2018, Cynthia K. wrote to Principal Joanne Simons to request a referral to special education for S.K. Ameeting was held on November 28, which was attended by a speech language pathologist, Jaclyn Nutter; the "LEA [Local Educational Agency] Rep," Jeffery Martell; an occupational therapist, Jill Vinciguerra; case manager Tracie Gebhardt; Cynthia K.; Principal Simons; K-1 case manager, Alison Bedard; and first grade teacher, Erin Lane. After discussion, that group, referred to as the "IEP [Individual Education Plan] Team," decided to add paraprofessional support in S.K.'s classroom, include functional behavior assessment recommendations, and to complete assessments for special education.

The Department issued a "Written Prior Notice" on November 28, 2018, to evaluate S.K. for his eligibility for special education. The Department proposed to evaluate S.K. in the areas of academic performance, social and emotional status, intelligence, motor ability, and classroom observation for suspected disabilities in the categories of "other health impaired" and "specific learning disability." S.K.'s IEP Team did not consider his eligibility for special education under the category of "developmental delay." Cynthia K. signed a consent form for evaluating S.K. in the listed categories. Four referral questions were posed for the evaluations: "What are [S.K.'s] academic skills? What is [S.K.'s] learning profile?What are [S.K.'s] fine motor skills? What are [S.K.'s] social/emotional strengths, weaknesses?" Doc. no. 10, at *6.

S.K.'s Section 504 team met on January 11, 2019, to review the Functional Behavioral Assessment and Recommended Behavior Support Plan submitted in November of 2018.⁴ S.K's Section 504 Plan was amended to include a classroom paraprofessional to assist in addressing S.K.'s impulsivity issues. The Section 504 Plan was amended again to address S.K.'s anxiety issues.

On January 14, 2019, Tom Reynolds, a school psychologist employed by the Department did a psychological evaluation of S.K. Reynolds reviewed S.K.'s file for background information. He administered standardized tests for measuring intelligence and behavior. S.K.'s full scale IQ score was 97, which is average. S.K.'s teacher gave scores on his behavior that were in the at risk category. Another teacher who worked for the Department tested S.K. to assess his academic performance and found that S.K. was in the normal range. Testing for motor skills showed that S.K. was in the average range, except for fine motor skills that were adversely affected by S.K.'s distractibility.

The Department held a meeting on January 22, 2019, to review the assessments that had been done. The meeting reviewed a "Written Prior Notice" that included background information and the assessment results, and also referred to S.K.'s Section 504 Plan. The Eligibility Determination Form, completed on January 22, 2019, stated that S.K. has attention deficit hyperactivity disorder that adversely affects his educational performance but concluded that he did not require special education. The Department employees at the meeting signed the form in agreement with its conclusion, and Cynthia K. signed but disagreed with the conclusion.

An IEP meeting was held on March 5, 2019, to review the decision made on January 22 that S.K. was not eligible for special education. The group reviewed the record, including the evaluation results. The Department representatives reported that S.K. did not have cognitive impairment that impacted his academic achievement and that S.K. was within the average range. Cynthia K. said that she thought S.K. needed specially designed instruction and relied on assessments done when S.K. was an infant. The Department representatives stated that with the accommodation of a paraprofessional, S.K. was "accessing" the general school curriculum. As a result, they found that S.K. was not eligible for special education under the categories ofother health impaired or specific learning disability. The Eligibility Determination forms were signed by Department representatives, agreeing that S.K. was not eligible for special education, and Cynthia K. signed in disagreement.

On April 30, 2019, Cynthia K. requested an IEE at public expense in the areas of cognitive functioning, academic skills, physical therapy, and sensory processing. The Department denied her request.

B. Procedural Background

On May 23, 2019, the Department filed a complaint seeking an impartial due process hearing on whether Cynthia K. was entitled to an IEE at public expense....