KENNETTE PIERRE, Legal Guardian For STUDENT P. DOE
CITY OF PROVIDENCE SCHOOL BOARD; SUSAN LISI and in her official capacity as the Superintendent of the PROVIDENCE SCHOOL BOARD; DEBORAH GIST, in her official capacity as the COMMISSIONER OF THE STATE OF RHODE ISLAND; THE STATE OF RHODE ISLAND BOARD OF EDUCATION; And, EVA-MARIE MANCUSO, in her individual capacity as CHAIRWOMAN THE STATE OF RHODE ISLAND BOARD OF EDUCATION
Providence County Superior Court, Procaccini, J.
For Plaintiff: Gregory A. Mancini, Esq.
For Defendant: Paul V. Sullivan, Esq., Mary Ann Carroll, Esq. George Muksian, Esq.
Between the years 1980 to 2012, there were 137 school shootings resulting in 297 fatalities across the United States. As this Court releases its Decision today, there have been at least seventy-four additional incidents of school shootings in this country since the tragedy at Sandy Hook Elementary School in Newtown, Connecticut on December 14, 2012.
It is against this alarming and tragic backdrop that this Court is presented with a "fee dispute" pursuant to the Equal Access to Justice Act (Act) which requires this Court to determine the larger issue of whether the Providence School Board was "substantially justified" in prohibiting a student to return to Classical High School as it undertook an assessment of that student's attendance, disciplinary, and psychological issues.
Kennette Pierre (Plaintiff), legal guardian for Student P. Doe (Student Doe), appeals a decision by the Rhode Island Board of Education (Board) upholding a decision of the Rhode Island Commissioner of Education (Commissioner), denying Plaintiff's claim for reimbursement of reasonable litigation expenses pursuant to the Act. Jurisdiction is pursuant to G.L. 1956 § 42-92-5.
Facts & Travel
Student Doe was enrolled at Classical High School, a public examination school in Providence, Rhode Island, during the 2011-2012 school year. Compl. ¶ 10. She struggled with various mental health and depression issues throughout the year and was either entirely absent or significantly late to school most of the days during the 2011-2012 school year. Tr. 7, 13, May 16, 2012; Tr. 102, May 29, 2012. Student Doe's resulting educational disabilities necessitated the development of a "504 Plan" in middle school pursuant to the requirements of § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 and the American Disabilities Act. Compl. ¶¶ 13-14. Her 504 Plan included modifications and accommodations to assist her with her educational disabilities at Classical High School. Id. ¶ 13.
During the 2011-2012 school year, Student Doe was hospitalized at Butler Hospital twice, in October 2011 and May 2012, and underwent multiple psychological examinations. On December 2, 2011, Theresa L. Manela, LICSW (Manela) completed a Firesetting Behavior Assessment of Student Doe as a result of Student Doe's admission to Butler Hospital from October 25, 2011 through November 3, 2011. R. Ex. 10, PSB Ex. A, Firesetting Behavior Assessment (Dec. 2, 2011). That evaluation was "prompted by [Student Doe's] report of engaging in firesetting behaviors within her home over the past year, " as well as Student Doe's statement "that she was intending to use fire again following discharge." Id. at 1. The evaluation concluded that Student Doe relied "on fire as [a] compensatory coping strategy in response to feelings of powerlessness and social isolation." Id. at 10. The Firesetting Behavior Assessment recommended that Student Doe participate in "comprehensive clinical services, " including in-home stabilization and outpatient treatment services; therapy with an adolescent provider; be prohibited from potential ignition sources; engage in fire-specific, psycho-educational intervention; participate in positive social experiences in a supervised environment; and for her mother to seek additional testing for more support at school. Id. at 11.
The second evaluation was a Psychiatric Evaluation completed by Dr. David Kahn (Kahn) at the request of the Providence Public School District on April 9, 2012. R. Ex. 10, PSB Ex. B, Psychiatric Evaluation (April 9, 2012). The Psychiatric Evaluation was completed because of Student Doe's worsening depression and failure to comply with medication following her release from Butler Hospital in November 2011. Id. at 2. Kahn first noted that, of the Firesetting Behavior Assessment recommendations, Student Doe and Plaintiff had successfully prevented Student Doe from accessing ignition sources; engaged in psycho-educational intervention; and advocated for additional testing. Id. at 2. However, Plaintiff's advocacy had not resulted in obtaining more support at school and Student Doe was unable to engage in psychotherapy because of a lapse in insurance coverage. Id. The Psychiatric Evaluation diagnosed Student Doe with "Depressive Disorder NOS [Not Otherwise Specified], " ADHD, and ODD (Oppositional Defiant Disorder). Id. at 4. Kahn recommended that, "[t]o minimize the level of risk [Student Doe] poses, as much as possible, it is necessary to reduce her level of stress and enhance her supports to the extent she will accept [it]." Id. at 5.
On May 1, 2012, Student Doe asked her mother to take her out of school and admit her into Butler Hospital for treatment related to depression. Compl. ¶¶ 16-17. At this point in the school year, she had been absent fifty-four days and tardy an additional fifty-two days. Tr. 7, May 16, 2012. She was released from Butler Hospital on May 8, 2012. Compl. ¶ 17. Included in her release materials were "Aftercare Instructions, " electronically signed by her physician, instructing Student Doe to "return to school, " and suggesting that "patient would benefit from IEP given decompensation and more than one hospitalization despite 504 plan." R. Ex. 10.1, Patient Aftercare Instructions, at 1. In addition, her Transfer Discharge Summary noted that Student Doe had been "noncompliant with med[ication], " but that she "was pleased to return to school." R. Ex. 10, Pl.'s Ex. 4, Transfer Discharge Summary (May 8, 2012). The physician left blank a category entitled "Danger to Self/Others" but filled in all other categories on the form. Id. at 4.
When Student Doe attempted to return to school on May 9, 2012, Plaintiff was informed that she needed to provide the school with a copy of Student Doe's Aftercare Instructions before she would be allowed to return to her classes. Compl. ¶¶ 19-20. After presenting the document the next day, Plaintiff was told that it was insufficient because it was not physically signed by her treating physician. Id. ¶¶ 21-22. Plaintiff procured a note from Student Doe's treating physician stating, "Please allow patient [Student P. Doe] to resume all normal activities and return to her regular school program." Id. ¶ 23. However, the Providence School Board would not allow Student Doe to return to school and issued no trespass orders against her and Plaintiff prohibiting both of them from coming onto school property. Id. ¶ 24.
On May 10, 2012, Plaintiff sent a letter to the Commissioner requesting an Interim Protective Order Hearing Request pursuant to G.L. 1956 § 16-39-3.2. Id. ¶ 27; R. Ex. 9, Interim Protective Order Hearing Request (May 10, 2012). In the letter, Plaintiff alleged that the Providence School Board was denying Student Doe "a free and appropriate education" by denying her access to Classical High School after her release from Butler Hospital. R. Ex. 9. The Commissioner held a hearing on the matter on May 16, 2012. Compl. ¶ 29.
At the hearing, a representative of the Providence School Board informed the Commissioner that it had subpoenaed Student Doe's treating physician at Butler Hospital, but that the doctor's lawyer had filed a motion to quash the subpoena. Id. As the physician was not present, Providence School Board requested a continuance. Id. ¶ 30. A discussion ensued, during which Providence School Board offered tutoring to Student Doe. Id. ¶ 31. Following the discussion, the hearing officer permitted the Providence School Board to introduce its requirements ...