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M.N. v. School Board of City of Virginia Beach

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

February 5, 2018

M.N., by and through her Parents, MICHELLE NORMAN and CASSIDY NORMAN, Plaintiff/Counter-Defendant,
SCHOOL BOARD of the CITY of VIRGINIA BEACH, Defendant/Counter-Plaintiff.

          OPINION & ORDER


         This matter is before the Court on two (2) Motions seeking review of an administrative decision: Plaintiff/Counter-Defendant M.N., by and through her Parents, Michelle Norman and Cassidy Norman's ("M.N.'s" or 'Tlaintiff/Counter-Defendant's") Motion for Summary Judgment, and Defendant/Counter-Plaintiff School Board of the City of Virginia Beach's ("Virginia Beach's" or "Defendant/Counter-Plaintiffs") Cross-Motion for Summary Judgment. Docs. 52, 54.[1] Because both Parties seek to modify the Hearing Officer's decision in part and to retain it in part, neither Motion completely defends the Hearing Officer's decision. For the reasons stated herein, the Court GRANTS both Motions IN PART, AFFIRMING the decision of the Hearing Officer and further GRANTING attorneys' fees to M.N.

         I. BACKGROUND

         This case is an appeal from an administrative hearing conducted by the Virginia Department of Education pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. See generally Doc. 1 ("Compl."). M.N. is a special education student in Virginia Beach's schools. Doc. 53 at 2. In 2014-2015, her family moved to the city of Virginia Beach, bringing along an individualized education program ("IEP") from Fairfax County Public Schools. See Ex. B887-919 (Doc. 28 at 68-100). She has multiple issues that affect her ability to learn, including the following:

Right Hemiplegia (paralysis of the right side of the body that is a symptom of an attack on the left side of the brain);
Cerebral Palsy (causes impaired movement and possibly chronic fatigue and slow performance);
Neurodevelopmental disorders (including deficits in executive functioning, visual figure-ground, sensory processing secondary to brain hemorrhaging);
Visual tracking problems (causes eye movements to be slow and/or inaccurate);
Language disorder (trouble understanding others or sharing thoughts, ideas and feelings);
Inattentive type of attention deficit hyperactivity disorder (ADHD) (a brain disorder marked by an ongoing pattern of inattention and/or hyperactivity that interferes with functioning or development);
Developmental coordination disorder (a chronic neurological disorder that can affect planning of movements and coordination as a result of brain messages not being accurately transmitted to the body);
Learning disorder (LP) (problems that affect the brain's ability to receive, process, analyze, or store information making it more difficult to learn);
Deficits in higher order reading comprehension (deficits in word reading accuracy and/or reading comprehension);
Voice projection disorder or Dysphonia (usually characterized by hoarseness, vocal fatigue, raspiness, periodic loss of voice, or inappropriate pitch);
Deficits in written expression (generally a combination of difficulties in the individual's ability to compose written texts evidenced by grammatical or punctuation errors within sentences, poor paragraph organization, multiple spelling errors, and/or poor handwriting skills);
Deficits in arithmetic calculation (unable to memorize many basic math facts and/or exhibits weak verbal skills for monitoring the steps of complex calculations);
Generalized anxiety disorder (characterized by excessive, exaggerated anxiety and worry about everyday life events with no obvious reasons for worry);
Obsessive compulsive disorder (OCD) (uncontrollable, reoccurring thoughts 'obsessions' and behaviors 'compulsions' that create the urge to repeat actions over and over); and
Brain Injury (In case, a loss of volume on the left side of her brain that increases her risk for seizures).

Doc. 1-1 ("Hearing Officer's Decision" or "Decision") at 7-8.

         The underlying IDEA proceeding resulted from M.N.'s parents' decision to enroll her in Chesapeake Bay Academy ("CBA"), a private school, after determining that Virginia Beach failed to provide her with a free appropriate public education ("FAPE"). Id. at 10-12. When M.N. moved to the city of Virginia Beach, Virginia Beach represented that it could implement the Fairfax IEP. See Ex. B919 (Doc. 28 at 100). In September 2014, M.N. enrolled in fifth grade at Red Mill Elementary School ("Red Mill") in Virginia Beach. Doc. 53 at 4; Doc. 55 at 4; see also, e.g., Ex. B001 (Doc. 22 at 2) (listing Red Mill as the school). After a meeting on October 1, 2014, to address parental concerns, the IEP team at Red Mill agreed on an addendum to the IEP. See Ex. B130 (Doc. 23 at 10). That same month, one of M.N.'s teachers, Julie Harrison ("Mrs. Harrison"), was placed on a Performance Improvement Plan. See Ex. 23.061- 062 (Doc. 31 at 61-62). Virginia Beach subsequently removed her from her teaching position in December 2014. Decision at 15; see also, e.g., Ex. 41.012 n.2 (Doc. 40 at 25).

         Throughout 2014-2015, M.N.'s IEP team met several times to craft an IEP for PAMS but was unsuccessful in agreeing on a new IEP. These meetings occurred on December 8, 2014, and several dates in 2015: January 22, February 5, March 23, March 30, April 2, and June 17, 2015. See Ex. B031 (Doc. 22 at 32); Ex. A031 (Doc. 21 at 36). During this time, M.N.'s parents also paid for tutoring and social skills classes to supplement M.N.'s education at Red Mill. See Ex. B309-21 (Doc. 24 at 92-98; Doc. 25 at 1-6). On August 10, 2015, M.N.'s parents timely noticed Virginia Beach of their intent to unilaterally place M.N. at CBA, a private school, should Virginia Beach not agree to private day placement. Ex. 41.005-006 (Doc. 40 at 18-19). On August 25, 2015, Virginia Beach rejected the parents' request for private day placement. Ex. B057-58 (Doc. 22 at 58-59).

         During 2015-2016, Virginia Beach and M.N.'s parents agreed on multiple evaluations of M.N. in support of ongoing IEP discussion, but they were still unable to reach agreement on a new IEP despite numerous additional meetings. Agreed evaluation topics included occupational therapy, physical therapy, sociocultural evaluation, and updated medical, educational, and observational reports. Ex. B186 (Doc. 23 at 65). The parents also paid for multiple independent evaluations in those categories in addition to the school's evaluations. See, e.g., Ex. CI72-204, C217-229 (Doc. 36 at 1-33, 46-58). After all of those evaluations and additional IEP meetings, the last proposed IEP for this school year was the one that Virginia Beach dated June 9, 2016, and offered to M.N.'s parents on June 23, 2016. Trial Tr. (Doc. 42) (hereinafter "Tr.") at 5:19-23.

         On July 11, 2016, M.N.'s parents filed a due process complaint pursuant to the IDEA with the Virginia Department of Education. Decision at 2. The Virginia Department of Education appointed a Hearing Officer, who heard the case on September 12-14, 2016. Id. The Parties presented four (4) issues to the administrative hearing officer:

Whether or not the local education agency (LEA) has properly implemented an individual educational program (IEP) for the student.
Whether or not the LEA is providing the student with a free appropriate public education (FAPE).
Whether or not the LEA provided sufficient educational evaluations to formulate an appropriate IEP within a reasonable time.
Whether or not private day placement is required for the student to receive a FAPE.

Id. at 12. The Hearing Officer entered her decision in the matter on October 30, 2016. Id. at 30.

         She made four (4) key findings: that Virginia Beach had not properly implemented an IEP for M.N., that Virginia Beach failed to offer FAPE to M.N., that Virginia Beach provided sufficient evaluations to form an IEP within a reasonable time, and that private day placement was required for 2015-2016 and for 2016-2017. See generally id She ordered reimbursement for two (2) years of private day placement, denied reimbursement for tutoring, and deferred any decision on attorneys' fees to a reviewing court on the ground that she lacked statutory authority to grant such an award. See Id. at 29-30.

         On January 27, 2017, M.N. timely filed a complaint with this Court seeking an award of attorneys' fees for prevailing in an IDEA due process hearing. Doc. 1. On January 30, 2017, Virginia Beach filed a separate action seeking reversal of the Hearing Officer's decisions in favor of M.N. No. 2:17cv66, Doc. 1 ("VB Counterclaim"). On May 22, 2017, M.N. filed an Amended Complaint in this action with leave of Court. Doc. 11. M.N. filed a counterclaim in the companion action seeking the tutoring and social skills fees denied by the Hearing Officer. No. 2:17cv66, Doc. 8.

         The Court entered a combined scheduling Order for both actions on June 16, 2017, directing the Parties to file cross-motions for summary judgment on the administrative record, [2]

         with the briefing on both motions complete by November 10, 2017. Doc. 10. The Parties filed the administrative record on July 28, 2017. Docs. 21-42. The Court FOUND that the second action was a compulsory counterclaim to the first action and consolidated the cases on August 21, 2017. Doc. 46. The Parties supplemented the record with leave of Court on August 28, 2017. Docs. 48-49. The Parties timely completed briefing for the cross-motions for summary judgment, and no Party requested an opportunity to present additional evidence.


         The IDEA offers federal funding to states in exchange for their agreement to educate disabled students in accordance with certain statutory criteria. See 20 U.S.C. § 1411. One of those criteria is that the state provide a "free appropriate public education" ("FAPE") to all disabled students residing in the state. See ii § 1412(a)(1). The statute defines FAPE as follows:

special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section ...

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