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R.S. v. Morgan County Board of Education

United States District Court, N.D. West Virginia, Martinsburg

June 18, 2019

R.S., individually and on behalf of D.S., a child with a disability, and C.S., individually and on behalf of D.S., a child with a disability, Plaintiffs,
v.
MORGAN COUNTY BOARD OF EDUCATION, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

          GINA M. GROH, CHIEF UNITED STATES DISTRICT JUDGE.

         Now before the Court is the Plaintiffs' Motion for Summary Judgment, Additional Evidence and Attorney Fees [ECF No. 13], filed on March 6, 2019, and the Defendant's Motion for Summary Judgment and Response in Opposition to Plaintiffs' Motion for Summary Judgment [ECF No. 15]. The Plaintiffs filed a reply [ECF No. 17] on April 22, 2019. The Defendant filed a surreply on May 3, 2019. ECF No. 20. Accordingly, the matter has been fully briefed and is now ripe for review. For the following reasons, the Plaintiffs' Motion [ECF No. 13] is GRANTED IN PART and the Defendant's Motion [ECF No. 15] is GRANTED IN PART.

         I. Background

         On May 18, 2018, Plaintiffs R.S. and C.S. on behalf of D.S. (“Plaintiffs”) filed the complaint in this action under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), partially appealing Due Process Hearing Decision D18-007, dated February 19, 2018. ECF No. 1 at 1. Specifically, the Plaintiffs allege that the Impartial Due Process Hearing Officer (“IHO”) erred when she found that Defendant Morgan County Board of Education (“Defendant”) did not violate the IDEA and Section 504 by failing to provide a one-to-one aide and specialized instruction to address his reading disability. ECF No. 1 at 8-10. The relevant facts are as follows.

         Plaintiff D.S. is a child with a disability who attends an elementary school in Morgan County, West Virginia. Since birth, D.S. has suffered from a life-threatening disorder, Medium Chain Acyl CoA Dehydrogenase Deficiency (“MCADD”), which prevents his body from converting fats into energy. As a result, D.S.'s blood sugar must be checked on a regular schedule and when it is suspected that his blood sugar is low. If D.S.'s blood sugar falls too low, he must be transported to the hospital by ambulance, and if there is no timely treatment, D.S. could die. D.S. has also been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional/Defiant and Disruptive Behaviors (“ODD”).

         For D.S., MCADD manifests itself in several ways in the educational environment. For example, when D.S.'s blood sugar is low, he exhibits observable symptoms ranging from disassociation to hyperactivity. In kindergarten, D.S. became dehydrated during physical education and had to be hospitalized for a week. To ensure regular monitoring of D.S.'s blood sugar levels, D.S. spends a minimum of forty minutes per day in the nurse's office. Because of his medical condition, the school has been unable to provide transportation to and from school, and this transportation has been provided by D.S.'s parents. D.S.'s mother, his geneticist, and his dietician provided the school with instructions on how to manage and treat D.S.'s condition. Dr. Narumanchi, D.S.'s geneticist, further recommended the Defendant provide D.S. with an aide.

         As a result of D.S.'s health issues, D.S.'s parents requested he be tested for special education eligibility. The school declined to test D.S. prior to his beginning kindergarten. However, in first grade, D.S. was tested by the school psychologist who, along with the Eligibility Committee, determined that D.S. was ineligible for special education services. Instead, the Defendant proposed a Section 504 Plan.

         Unsatisfied with this solution, D.S.'s mother requested an Independent Educational Evaluation (“IEE”). After receiving the request, the Defendant provided D.S.'s mother with its criteria for evaluations and a list of pre-approved evaluators. D.S.'s mother chose Dr. Margaret Kay, who was not on the Defendant's list, as the evaluator. While Dr. Kay determined that D.S. was eligible for special education services, she reviewed only one of the eight special education evaluation criteria. Furthermore, Dr. Kay did not confer with D.S.'s teachers, nor did she observe D.S. in the educational setting. Nevertheless, Dr. Kay found that D.S. has a learning disability in reading for which he should qualify for special education services in addition to being eligible as Other Health Impaired (“OHI”) due to his MCADD and ADHD diagnoses.

         Following Dr. Kay's evaluation, D.S.'s mother requested that D.S. be provided with an Individualized Education Program (“IEP”). That request was denied because the Eligibility Committee found that D.S. did not qualify as OHI or for a specific learning disability. In light of the denial, D.S.'s mother filed for a due process hearing. In that hearing, D.S.'s mother argued that the Defendant must: (1) identify D.S. as eligible for special education services; (2) provide him with an appropriate IEP; (3) provide an aide; (4) provide appropriate placement and transportation or reimburse for transportation; (5) pay the balance of $2, 400 for Dr. Kay's evaluation; and (6) pay D.S.'s parents' attorney fees.

         The IHO's findings are the subject of this lawsuit. Both parties filed motions for summary judgment [ECF Nos. 13, 15] requesting that the IHO's determinations be affirmed in part and reversed in part. Additionally, D.S.'s parents request that the Court hear additional evidence and reimburse them for the reasonable attorney fees, costs, and expenses incurred in bringing this action. ECF No. 13 at 2.

         II. MOTION FOR ADDITIONAL EVIDENCE

         Before the Court decides the parties' motions for summary judgment, the Plaintiffs seek to present additional evidence to inform the Court of D.S.'s current educational program and his continued need for an aide and for specialized instruction in reading. ECF No. 13 at 24. The Plaintiffs argue that this additional evidence will assist the Court in making its determinations on the motions for summary judgment.

         A. Applicable Legal Standard

         Pursuant to 20 U.S.C. § 1415, a court hearing an IDEA appeal “shall receive the records of the administrative proceedings [and] . . . hear additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C). The Fourth Circuit has defined “additional evidence” to mean “supplemental evidence.” Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 667 (4th Cir.1998). The Fourth Circuit stated:

We construe “additional” in the ordinary sense of the word . . . to mean supplemental. Thus construed, this clause does not authorize witnesses at trial to repeat or embellish their prior administrative hearing testimony; this would be entirely inconsistent with the usual meaning of “additional.” We are fortified in this interpretation because it structurally assists in giving due weight to the administrative proceeding, as Rowley requires.

Id. (quoting Town of Burlington v. Dept. of Educ., 736 F.2d 773, 790 (1st Cir. 1984) (citations and footnote omitted). The Springer court further held “[a] lax interpretation of ‘additional evidence' would ‘reduce the proceedings before the state agency to a mere dress rehearsal by allowing appellants to transform the [IDEA]'s judicial review mechanism into an unrestricted trial de novo.'” Springer, 134 F.3d at 667 (quoting Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997 (1st Cir. 1990)). “Therefore, the exclusion of testimony from all who did, or could have, testified before the administrative hearing would be an appropriate limit in many cases.” Springer, 134 F.3d at 667 (citing Burlington, 736 F.2d at 790) (internal citations omitted).

         When additional evidence relates to events that occurred after the administrative hearing, the Court should consider the evidence but may “treat[] such evidence cautiously . . . [because] [i]t is inevitable that additional information will become available after an administrative hearing.” Schaffer ex rel. Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009). “Assigning dispositive weight to evidence that arises only after the administrative hearing” would frustrate the purposes of the IDEA. Id. at 475-77.

         B. Analysis

         Here, the Plaintiffs seek to present Plaintiff Christinea Stotler's affidavit as additional evidence. ECF No. 13 at 25. While the affidavit contains some information that could have been presented at the administrative hearing, the affidavit also contains information regarding “ongoing violations.” These allegations concern events that have occurred since the hearing took place. In so far as the affidavit narrates acts that occurred after the December 19, 2017 and December 20, 2017 hearing, the Court will consider the evidence in relation to the parties' motions for summary judgment. See Schaffer ex rel. Schaffer v. Weast, 554 F.3d 470 (2009). Nevertheless, the Court will treat such evidence “cautiously” so as to “protect the role of the administrative hearing” under the IDEA. Id. at 476.

         C. Conclusion

         For the aforementioned reasons, the Court ORDERS that the Plaintiffs' Motion for Additional Evidence [ECF No. 13] is GRANTED IN PART. The Court will consider the evidence submitted in so far as it relates to events that occurred after the administrative hearing.

         III. MOTION FOR SUMMARY JUDGMENT

         Next, the parties filed opposing motions for summary judgment seeking to affirm in part and reverse in part the IHO's decisions. ECF Nos. 13, 15.

         A. Standard of Review

         “When a district court reviews a state administrative decision under the IDEA, that court must make an ‘independent decision based on a preponderance of the evidence, '” affording the administrative findings “due weight.” AW ex rel. Wilson v. Fairfax Cty. Sch. Bd., 372 F.3d 674, 678 (4th Cir. 2004) (citing Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991), Springer v. Fairfax Cty. Sch. Bd., 134 F.3d 659, 663 (4th Cir. 1998)). Due weight requires that “findings of fact by hearing officers be considered prima facie correct.” Doyle, 953 F.2d at 105; see also Cty. Sch. Bd. V. Z.P. ex rel. R.P., 399 F.3d 298, 304 (4th Cir. 2005) (holding that “state administrative proceedings are entitled to a presumption of correctness”). If a district court declines to adopt the hearing officer's findings of fact, it is “required to explain why it does not.” Id.

         B. Analysis

         In their motion for summary judgment, the Plaintiffs request that the Court reverse the IHO's finding that D.S. does not qualify for a personal aide and that D.S. does not require specially designed instruction in reading. The Plaintiffs request that the Court affirm the IHO's findings that: (1) the Defendant violated multiple provisions of the IDEA and WV Policy 2419 by failing to timely and comprehensively evaluate D.S.; (2) the Defendant violated multiple provisions of the IDEA, WV Policy 2419 and WV Policy 4363 by failing to provide appropriate transportation or payment in lieu of transportation; and (3) the Defendant is required to reimburse the Plaintiffs for the remainder of the IEE, even if failure to reimburse was not a violation of the IDEA. ECF No. 13 at 9.

         The Defendant moves to dismiss all IDEA claims against it because the IHO did not find that any violation of the IDEA led to a denial of a free and appropriate public education. Additionally, the Defendant requests that the Court: (1) reverse the IHO's determination that D.S. is eligible for special education services; (2) affirm the IHO's determination that the Defendant did not violate the IDEA by refusing to reimburse the Plaintiffs for Dr. Kay's evaluation; (3) reverse the IHO's finding that the Defendant violated the IDEA by failing to provide transportation; and (4) affirm the IHO's determination that D.S. does not require a one-to-one aide. ECF No. 16 at 8, 10, 14, 16, and 17. These issues will be addressed in turn.

         1. Dismissal of Allegations Against the BOE

         First, the Defendant requests that the Court dismiss all alleged IDEA violations against it. ECF No. 16 at 5. In support, the Defendant argues that to constitute a violation of the IDEA, the IHO must have found that the IDEA violation resulted in a failure to provide a free and appropriate education (“FAPE”). ECF No. 16 at 8. Because the IHO did not find that alleged IDEA violations resulted in a failure to provide a FAPE, the Defendant argues that all IDEA violations must be dismissed.

         a. IHO's Decision

         In this case, the IHO found that the Defendant violated the IDEA in evaluating and transporting D.S. With respect to evaluation, the IHO found that the Defendant violated the IDEA by “refusing to evaluate [D.S.] starting on May 31, 2016” and by “substituting a § 504 Plan” for an IEP. ECF No. 12 at 76. The IHO further found that the Defendant violated the IDEA by failing to “ensure the evaluation was sufficiently comprehensive.” Id. With respect to transportation, the IHO found that the Defendant violated the IDEA by “failing to provide appropriate transportation to the student to and from school or in the alternative, to provide payment in lieu of transportation.” Id. at 77.

         b. ...


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