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School Board of City of Suffolk v. Rose

United States District Court, E.D. Virginia, Norfolk Division

August 10, 2015


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          For School Board of the City of Suffolk, Plaintiff: Wendell Myron Waller, LEAD ATTORNEY, Suffolk Public Schools, Office of the School Board Attorney, Suffolk, VA.

         For Teri A. Rose, As Parent and Next Friend of C.A.R. a/k/a C.R., Defendant: Walter Neal Thorp, LEAD ATTORNEY, Law Offices of Walter N. Thorp, Newport News, VA; Lois N. Manes, Williamsburg, VA.

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         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).


         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 599 (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

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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 the autism 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.'s placement 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 4 3 8 (ECF No. 4 - 3 O, 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 Clinically Significant range." Id. at 5. C.R.'s " Externalizing Problems composite [was] characterized by disruptive behavior problems such as aggression, hyperactivity, and delinquency,"

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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 34 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 643-45 (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 the order 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 I at 21) o 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 to have [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 disciplinary meeting and suspended C.R. for one day. held a On March 15, 2012, the Roses withdrew

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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 school year, 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 unilateral placement decision made by Parents.

Id. at 3.

         The parties reconvened August 8, 2012. See (ECF No. 1, at 1). The IEP team considered Ellis's report, which involved administering several objective tests to C.R. See Ellis Report at 2 (ECF No. 4-13, at 31). Ellis also reviewed C.R.'s prior records, teachers' reports, background information provided by his parents, and conducted a clinical interview. Id. at 1-2. Again, C.R. generally tested in the low average range for the various aspects of intellectual functioning. See id. at 3-5 (ECF No. 4-13, at 3 2 - 3 4). Also similar to previous reports, C.R.'s teachers and parents scored his behavioral and social skills in the " significant problem range." Id. at 7 (ECF NO. 4-13, at 36). Ellis found that C.R. met the DSM-IV criteria for Asperger's Syndrome and " into the general category of Pervasive Developmental Disorder (PDD)." Id. at 8, 9 (ECF No. 4-13, at 37, 38). As cited above, the May 2013 DSM-V removed Asperger's and PDD as stand-alone disorders and placed them under the general diagnosis of Autism Spectrum Disorder. See supra note 1. As Ellis noted in 2012, " the term [PDD] is being increasingly

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conceptualized as a continuum running from most severe (e.g., Autistic Disorder), through varying degrees of severity, which extend to the high functioning edge of the spectrum." Ellis Report at 9 (ECF No. 4-13, at 38). Ellis opined that " [C.R.]'s PTSD symptoms of hypervigilance and intra-psychic confusion, combined with his ADHD distractibility will continue to dramatically compete with his ability to focus his attention and further diminish his ability to engage effectively in new learning." Id. at 10 (ECF No. 4-13, at 39). Ellis also concluded that C.R.'s Asperger's contributed to him being " easily overwhelmed by sensory input, including noise" but " in [his] opinion, in a secondary fashion." Id. at 9. " [C.R.]'s primary condition, Asperger's Syndrome, is a neurobiological disorder and it is not caused by environmental stress, parenting styles, or other situational factors although its expression and sequelle can be vastly worsened by insensitive and inappropriate environments." Id. In light of C.R.'s Asperger's, combined with his exhibition of PTSD symptoms, Ellis opined that " the extremely well-controlled and tranquil environment offered by Chesapeake Bay Academy appears to be the only appropriate and adequate environment for [C.R.] to recover from his previous educational traumas and avert having any additional losses." Id. at 10.

         As a result of the August 2012 meeting, Suffolk and Mr. Rose[4] executed an updated IEP for C.R. that found him eligible for receipt of special education services under the disability categories: emotional disability, other health impairment (ADHD), and specific learning disability (written expression). See (ECF No. 4-1, at 4-5). Worksheets were completed for each category, see (ECF No. 4-1, at 7-9), and Suffolk laid out an IEP. See (ECF No. 4-5, at 1-18).

         C. The 2012-2013 School Year

         In October 2012, while attending CBA, Mrs. Rose hospitalized C.R. for psychiatric evaluation, as a result of an incident. Hearing Tr. at 526-28 (ECF No. 4-32, at 25-27). Mrs. Rose testified that prior to a family outing, C.R. locked himself in her bedroom. Id. at 527. She unlocked the door, and C.R. held a BB gun and gestured like he was going to hit her with the butt end. Id. at 527-28. After calming him down, Mrs. Rose called Dr. Buxton and decided to take him to Maryview Hospital for an evaluation of his medications. Id. C.R. was hospitalized for a week. Id. at 528. The treating doctor at Maryview reported a conversation with Dr. Buxton and noted that his impression was " a mood disorder and an autistic spectrum disorder in the context of psychosis and learning problems." Maryview Records (ECF No. 4-8, at 15).

         In January 2013, the Roses and Suffolk held an IEP meeting to discuss C.R.'s current IEP and transition services for the following school year. At the meeting, the Roses expressed concern and opposition to transitioning C.R. back to Suffolk schools. Suffolk and the Roses scheduled an April 2013 meeting " to review progress and discuss his transition to SPS." (ECF No. 4-5, at 24).

         The next IEP team meeting occurred May 8, 2013. See (ECF No. 4-1, at 15). At the meeting, Dr. Buxton and Mrs. Rose expressed concern about C.R.'s " emotional stability" and requested a clinical assessment before any readmission to Suffolk Public Schools. See (ECF No. 4-1, at 15-16). At the hearing, Buxton testified that during spring 2 013, C.R. " would get very, very upset" at the prospect of returning to public school. Hearing Tr. at 655 (ECF

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No. 4-38, at 1). If required to return to Suffolk public schools, C.R.'s " response was that he would have to kill himself." Id.

         Suffolk agreed to obtain a clinical assessment of C.R. 's risk of harm, but rejected Buxton and Rose's request for Ellis to conduct the assessment. Id. at 16. The parties agreed that Suffolk would provide the assessment " by a qualified mental health provider unaffiliated with SPS or the parents." Id. Following the assessment, the IEP team planned to re-draft a transition plan and discuss extended school year (summer) services. Id. The parties agreed on Jennifer Gildea, Ph.D. to conduct the threat assessment. Hearing Tr. at 187 (ECF No. 4-20, at 3).

         D. Summer 2013

         Dr. Gildea issued her assessment report June 11, 2013. See Gildea Report (ECF No. 25-1, at 1).[5] Specifically, Dr. Gildea conducted a " psychological evaluation to assess [C.R.'s] diagnostic concerns and his risks for posing harm to himself and others." Id. She conducted a clinical interview, reviewed records, and administered tests. See id. Gildea found that C.R. " struggled to exhibit age appropriate social skills during th[e] evaluation and, based on background information, testing results, and interview presentation, [C.R.] demonstrate[d] significant symptoms associated with an Autism Spectrum Disorder that complicate and contribute to other symptoms that he experiences." Id. at 14 (ECF No. 25-1, at 14). Her additional diagnoses included: a Major Depressive Disorder, PTSD, ADHD, and a learning disorder. Id. Gildea opined that " [l]arger social gatherings, larger classroom environments, exposure to more aggressive and behaviorally challenged peers, disruptions in his structure and routine, unpredictable changes, and a high level of expressed stress and emotion" all place C.R. " at high risk for depression, anxiety, anger, and aggression, and to engage in further threatening behaviors, including either verbal or physical threats." Id. Accordingly, Gildea recommended, among other things, avoiding abrupt changes in C.R.'s school placement and developing " safety plans, and interventions strategies" with C.R.'s teachers. Id. at 16. She also noted that C.R. would benefit from " continued one-on-one assistance, reduced stimulation at school, aid in transitioning between tasks, the ability to complete some tasks in a separate, quieter setting. . . . or the ability to go to a 'cool down' area when he becomes agitated or distressed, and before he becomes aggressive, in the classroom." Id.

         Following Gildea's report, Suffolk and the Roses held an IEP meeting June 12, 2013. The resulting IEP called for C.R. to receive extended school year services at CBA from June 24, 2013 through August 2, 2013. See (ECF No. 4-1, at 22). The goals for C.R. focused on writing and organizational skills, social development and conflict management, and staying on task. See (ECF No. 4-1, at 22, 29, 32). C.R.'s disabilities remained: emotional disability, other health impairment (ADHD), and specific

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learning disability (written expression). See (ECF No. 4-1, ...

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