Sch. Bd. of Suffolk v. Rose, 2:15cv18

SCHOOL BOARD OF THE CITY OF SUFFOLK, Plaintiff, v. TERI A. ROSE, AS NEXT FRIEND OF C.A.R., Defendant.

No. 2:15cv18

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

August 10, 2015

MAGISTRATE JUDGED REPORT AND RECOMMENDATION

Plaintiff School Board of the City of Suffolk ("Suffolk") brought this suit appealing the decision of an impartial hearing officer ("the hearing officer"), which resolved an Individuals with Disabilities Education Act ("IDEA") due process complaint submitted by Defendant, Teri A. Rose ("Rose"). See 20 U.S.C. § 1415(c), (f), and (i). The hearing officer ruled in favor of Rose, finding that Suffolk denied Rose's son, C.R., a free and appropriate education ("FAPE"), as required by the IDEA. C.R. suffers from various psychological and learning impairments that require him to receive special education. Suffolk alleges several errors in the hearing officer's decision. The matter is before the court on cross-motions for summary judgment on the administrative record, which were referred to the undersigned United States Magistrate Judge for recommended disposition. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).

I. PROPOSED FINDINGS OF FACT

At the time of the due process hearing in October 2014, C.R. was a fourteen year-old seventh-grader attending Rivermont School in Virginia Beach. See Hearing Tr. at 364, Test, of Dianne Rusnak (ECF No. 4-26, at 21). Since at least 2009, C.R.'s treating psychiatrist has consistently diagnosed C.R. with attention deficit hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD"). See Dep. of L. Matthew Frank, M.D. (ECF No. 4-41, at 10-11); (ECF No. 4-42, at 15); Letter of Dr. Frank (ECF No. 4-44, at 20). C.R. also saw educational psychologist, Michael Jay Buxton, Ed.D., from age four onward. Hearing Tr. at 5 99 (ECF No. 4-36, at 6). Buxton diagnosed C.R. with ADHD, and later, post-traumatic stress disorder ("PTSD"), which Buxton attributed to bullying at school. See Hearing Tr. at 79, 638 (ECF No. 4-16, at 19) (Buxton discussing March 2011); (ECF No. 4-37, at 14). In addition to clinical diagnoses, Buxton testified that C.R.'s parents and he "felt that [C.R.] had a learning disability in math also." Hearing Tr. at 79 (ECF No. 4-16, at 19). From the administrative record, it appears the psychiatrist, psychologists, educators, parents, and the hearing officer do not agree on where C.R.'s psychological disorder falls along theautism spectrum,¹ and accordingly, whether autism is the primary impairment inhibiting C.R.'s learning ability.

A. Background Prior to March 2012

Prior to March 2012, C.R. attended Southwestern Elementary School in Suffolk's public school system. See, e.g., (ECF No. 4-1, at 1). He was first found eligible for special education and related services in January 2009.

Relevant to the chronology here, on March 4, 2011, Suffolk completed an individualized education program ("IEP") for C.R.'s special education services for the next calendar year. See March 2011 IEP (ECF No. 4-12, at 33). It called for: C.R.'splacement at Southwestern Elementary for the remainder of the 2010-2011 school year and the 2011-2012 school year; instruction services on written language, five times per week for forty minutes; and accommodations that included assistance with directions, breaks during tests, smaller group sizes, preferential seating, having directions read orally, and having test items read orally, all on an as-needed basis. (ECF No. 4-12, at 29-30). The March 2011 IEP identified C.R.'s areas of need as mathematics, behavioral skills, and handwriting. Id. at 26-28. The IEP listed his sole disability as "other health impairment." Id. at 22.

In January 2012, C.R. was due for his triannual comprehensive review for eligibility of special education services. See Hearing Tr. at 439 (ECF No. 4-30, at 10). Accordingly, a Suffolk re-evaluation committee referred C.R. to school psychologist Pamela Ivey. Id. at 438 (ECF No. 4-30, at 9). Ivey issued a psychological report on C.R.'s "current levels of functioning" in January 2012. Ivey Report (ECF No. 4-8, at 1). Ivey administered various tests to C.R., reviewed his records and a writing sample, observed C.R., and interviewed him. Id. at 2-3. Ivey's report reflected that C.R. generally scored in "low average range" on the tests designed to assess intellectual functioning, e.g., 14th percentile. Id. at 3, 6. His "overall Behavioral Symptom Index f [ell] in the ClinicallySignificant range." Id. at 5. C.R.'s "Externalizing Problems composite [was] characterized by disruptive behavior problems such as aggression, hyperactivity, and delinquency," and thus, "was Clinically Significant in this domain." Id. Additionally, his teacher indicated that C.R. frequently annoyed others on purpose, teased others, and disrupted schoolwork. Id. Based on her observation and analysis, Ivey concluded that C.R. would likely benefit from being allowed to take oral tests, copying peers' notes, being given extended time for assignments, direct training on note-taking skills, and positive reinforcement, among other things. Id. at 7-8.

Following Ivey's report, Suffolk found C.R. eligible for continued receipt of special education under the disability categories: other health impairment (due to ADHD) and specific learning disability in written expression. See 20 C.F.R. § 300.8(c)(9) and (10).

B. C.R.'s Departure from Southwestern Elementary

During the 2011-12 school year, C.R. was involved in two incidents at school, and on his school bus, characterized as "bullying." See, e.g., Hearing Tr. at 643-4 5 (ECF No. 4-37, at 19-21); id. at 653 (ECF No. 4-37, at 29). As described by Buxton, in the first instance in response to "being tormented by other children," C.R. "threatened to get . . . a sledgehammer and bash the youngster's head in" - "or something along theorder that he would severely injured [sic] or kill the other individual." Id. at 644 (ECF No. 4-37, at 20). Around February 15, 2012, Suffolk suspended C.R. for ten days for the incident. Due Process Hearing Request (July 2012) at 7 (ECF No. 4-8, at 25).

The second incident - which "precipitated the removal from Suffolk Public Schools" - involved another student "wiping boogers on C.'s seat" and someone stating "they were going to get a shotgun and shoot someone."² Hearing Tr. at 645 (ECF No. 4-37, at 21). It appears that in early 2012, the Roses "made frequent contacts with school teachers and administrators to advise them that [C.R.] was being bullied by N on an ongoing basis." Due Process Hearing Request (July 2012) at 7 (ECF No. 4-8, at 25). On February 17, 2012, the Roses gave Suffolk ten days' notice that they would withdraw C.R. from Southwestern Elementary and "seek reimbursement for a unilateral private placement" due to a perceived denial of FAPE. Id. at 7-8 (ECF No. 4-8, at 25-26); see 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb). Then, after discussions with Suffolk staff, the Roses "agreed tohave [C.R.] remain at SPS while more effective short-term IEP goals were developed." Id. at 8 (ECF No. 4-8, at 26). At the Roses' request, they and Suffolk executed a "Procedures for Reporting Incidents with Classmates" for C.R. to report bullying. Id. And, on February 29, 2012, the Roses and Dr. Buxton attended an IEP meeting, which did not result in an agreed upon placement. Id.

Then on March 6, 2012, the bus incident described above occurred where C.R. "told another student he would bring a gun on the bus and shoot them and that he wasn't afraid to use it." Id. Two days later, Southwestern's principal held a disciplinary meeting and suspended C.R. for one day. On March 15, 2012, the Roses withdrew C.R. from Southwestern Elementary and enrolled him at Chesapeake Bay Academy ("CBA"), see Hearing Tr. at 20 (ECF No. 4-14, at 20), following another failed IEP meeting. See Due Process Compl. at 8 (ECF No. 4-8, at 26). C.R. completed the 2011-12 school year at CBA. Id.

In July 2012, the Roses filed their first due process complaint under the IDEA in an effort to be reimbursed for the cost of CBA that spring and for the 2012-13 school year. See id. at 8-9. The due process complaint alleged that Suffolk had not set any goals "to develop social skills and pragmatic speech which [C.R.] lacks, are disability driven by his diagnosed ADHD, Asperger's, ODD, depression, and emotional liability . . . ."Id. at 3 (ECF No. 4-8, at 21). It alleged: "No bullying prevention plan; no acknowledgement of bullying issues. No services for SOL skills - failed SOLs. No ADHD accommodations. No mention, identification or service provision for diagnosed for [sic] emotional disabilities which adversely affect education performance and school behavior." Id.

The Roses and Suffolk resolved the first complaint by an agreement dated July 23, 2012. Under the agreement, Suffolk agreed to reimburse the Roses one half of the tuition they paid to CBA for March through June 2012 ($4,925), Resolution Agreement at 2 (ECF No. 4-13, at 2); and one half of the CBA tuition for the 2012-13 school year, id. at 3. In the due process complaint that produced the agreement, the Roses had relied in part on a psychological evaluation conducted by C. Rick Ellis, Ed.D. in April 2012. See id.³ Accordingly, as part of the resolution agreement, Suffolk and the Roses agreed to reconvene and reevaluate C.R. based on a review of Ellis's report, "to determine if based on new information, a change in [C.R.]'s special education eligibility is warranted." Resolution Agreement at 2 (ECF No. 4-13, at 2). Finally, the Resolution Agreement provided that

If Parents decide not to re-enroll [C.R.] in Suffolk Public Schools with the start of the 2013-2014 schoolyear, but opt[] instead to have [C.R.] continue receiving services at Chesapeake Bay Academy or some other private school setting, it is expressly agreed to by the parties that Suffolk Public Schools will not have any financial responsibility whatsoever for any such

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