United States District Court, E.D. Virginia, Norfolk Division
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School Board of the City of Suffolk, Plaintiff: Wendell Myron
Waller, LEAD ATTORNEY, Suffolk Public Schools, Office of the
School Board Attorney, Suffolk, VA.
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,
JUDGE'S REPORT AND RECOMMENDATION
E. MILLER, UNITED STATES MAGISTRATE JUDGE.
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).
PROPOSED FINDINGS OF FACT
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,
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, and accordingly, whether autism is the
primary impairment inhibiting C.R.'s learning ability.
Background Prior to March 2012
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.
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.
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,"
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
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).
C.R.'s Departure from Southwestern Elementary
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).
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."  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
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
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.
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.
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. 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
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.
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
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.
result of the August 2012 meeting, Suffolk and Mr.
Rose 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).
The 2012-2013 School Year
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).
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).
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
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.
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).
Gildea issued her assessment report June 11, 2013. See Gildea
Report (ECF No. 25-1, at 1). 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
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
learning disability (written expression). See (ECF No. 4-1,